David Busch v. Fred Weber, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-031665

Employee: David Busch

Employer: Fred Weber, Inc.

Insurer: St. Paul Fire \& Marine Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: January 18, 2002

Place and County of Accident: St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 6, 2006. The award and decision of Administrative Law Judge Matthew D. Vacca, issued April 6, 2006, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 22^{\text {nd }} \qquad$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: David Busch

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Fred Weber, Inc.

Injury No.: 02-031665

Before the

Division of Workers'

Compensation

1. Claimant was 61 years old on the date of the injury. He will have worked for Fred Weber, Inc., the Employer herein, for 24 years as of June of 2006. At the time of the hearing Claimant was working as an equipment inspector/light mechanic. In this capacity he would inspect up to 900 pieces of equipment and determine what repairs were necessary. He had been working in this capacity since February or March of 2004. From January 2004 to February 2004 he was working light duty updating records on the equipment. From July 11, 2003 to January 2004 he was off work undergoing knee surgeries. Prior to that, Claimant had been working as a shop mechanic for one and one-half years, which involved working on any of the equipment that came into the Fred Weber shop and performing maintenance and repairs.
2. At the time of the injury Claimant was working as a maintenance supervisor and had worked as a maintenance supervisor for 12 years. In this capacity he would supervise 24 mechanics and 4 laborers. He would make all of the repair decisions and assign others to perform the work. He would be up on his feet and up and down in a chair at his desk and perform quite a bit of fieldwork.
3. On the date of the accident, January 18, 2002, it was approximately 4:00 p.m. and Claimant was engaged in closing the shop. He was halfway down from the end of the shop when he stepped on a hose, twisting his knee and fell to the floor. The right knee popped, but as it was late Friday afternoon, no one else was at work to whom to report the injury, so he went home.
4. Claimant spent a difficult weekend with the knee hurting and swelling. Claimant retrieved a pair of crutches in his garage, which had been last used by his mother and used those to ambulate. On the following Monday he immediately reported the injury to the Head of Safety, Lynn Schwartz.
5. Claimant was sent for care at SSM on January 22, 2002 and an MRI was performed on January 23, 2002.
6. On February 6, 2002 Claimant was examined by a surgeon, Dr. Markenson, and surgery was performed by him on Friday, February 7, 2002.
7. Claimant returned to work immediately on the following Monday, not missing any work. Claimant returned to light duty, performed physical therapy over the next few months, and was released in May of 2002. The knee still hurt but Claimant did his job nevertheless.
8. In the summer of 2002 there was a change in management and Claimant was reassigned back to regular mechanic duties when a new supervisor was named. Claimant went from maintenance supervisor to line mechanic. This was heavy work involving a lot of standing to perform undercarriage manipulation.
9. Dr. Markenson testified on behalf of the Employer/Insurer by way of deposition. Dr. Markenson treated Claimant following the January 18, 2002 knee injury. Claimant had told Dr. Markenson about his previous knee surgeries.
10. Dr. Markenson examined the Claimant, reviewed the MRI, performed arthroscopic surgery on February 7, 2002 with a diagnosis of a tear of the lateral meniscus with the patient having previously undergone a near complete previous medial meniscectomy. Dr. Markenson described the knee having the inside cartilage basically gone. There was only a little thin rim left when Dr. Markenson performed his surgery. He saw no new tears of the remaining meniscus but noted there was not much left to tear. He also discovered chondromalacia which means a significant amount of damage and change and wear over the smooth joint surfaces. Instead of a nice white smooth surface, parts of it were worn down to the bone. The other parts that were not worn down to the bone were extremely worn, irregular and lumpy. Chondromalacia was underneath the patella on both sides of the joint.
11. Dr. Markenson thought that the chondromalacia preexisted the January 2002 injury. He removed the torn piece of lateral meniscus, smoothed what was left of it down as best he could and performed a chondroplasty, which is a smoothing down of the rough areas.
12. Following this, Dr. Markenson also injected Claimant's knee with cortisone and Hyalgan. Hyalgan is a purified cartilage substance believed to help lubricate the joint and spur cartilage growth. Dr. Markenson doesn't believe that either of these treatments gave Claimant any major significant relief.
13. When Dr. Markenson last saw Claimant he told him his knee was arthritic and the next step was going to be a knee replacement to get relief from the symptoms. Dr. Markenson discharged Claimant from treatment on May 10, 2002 at maximum medical improvement. Dr. Markenson also rated Claimant at 5\% permanent partial knee disability as a result of the work related injury.

1. Claimant returned to see Dr. Markenson on July 15, 2002 still complaining of soreness and discomfort in his knee. Dr. Markenson suggested that Claimant obtain a position where he didn't have to do a lot of squatting, kneeling, bending and utilizing of the knee. Claimant told Dr. Markenson he had switched to a different job but that the one that he switched to was more physical and actually required more flexing of the knee. Claimant wanted more injections and Dr. Markenson told him he had to wait six months in between injections.
2. Claimant sought treatment thereafter on his own.
3. Dr. Markenson saw Claimant again June 2, 2005. Dr. Markenson prepared a report on that date and discovered that Claimant had had an interim total knee replacement and other treatment related to the total knee replacement because of complications.
4. Claimant had gone to see Dr. Shively in May of 2003. His knee had been getting worse and swelling every night after work and he was unable to deal with the pain. Surgery was scheduled for July of 2003 at BJC. A knee replacement was undertaken and Claimant spent five days in the hospital. Initially the repair was good but Claimant contracted a Staph infection after about eight days and a fifth surgery was performed July 25, 2003. Claimant underwent intravenous antibiotic treatment followed by six weeks of prescription antibiotic pills. He was off work during this entire time.
5. Claimant went to physical therapy from August 13 to September 19, 2003. Claimant was not progressing in physical therapy and his leg was stuck unable to bend at a 45-degree angle. Claimant describes it as being 17 degrees off of the ability to bend at a 45 -degree angle.
6. A sixth procedure was performed. The doctor cut through scar tissue and replaced the hardware. Claimant underwent physical therapy again and returned to work in January of 2004 to light duty. In this light duty Claimant would perform paperwork and update repair documents.
7. In March of 2004 Claimant was given the job of Inspector and has continued in that capacity up until the date of the hearing. This is lighter work than Line Mechanic.
8. Claimant experienced two prior surgeries to the right knee. On June 25, 1991 Claimant was working for Fred Weber as a mechanic when he jumped out of a truck and hit a rock at an unusual angle and underwent knee surgery on July 25, 1991 with Dr. Piontek. Claimant was released by that physician in December of 1991.
9. In May of 1991 Claimant began having further knee trouble and treated and was ultimately released by Dr. Lehman after surgery. A compromise lump sum settlement was entered into in 1993 for 25 % permanent partial disability measured at the level of the right knee.
10. From 1993 until 2002, the date of the injury herein, Claimant had experienced good luck with his knee and only experienced minor swelling.
11. Claimant treated over the course of the years with a chiropractor by the name of Dr. Van Horenbeeck who treated him for neck complaints he had as a result of the awkward position he held his neck while welding.
12. Claimant testified that Dr. Van Horenbeeck would pop "it". The testimony was unclear as to whether he popped Claimant's knee when he popped his neck.
13. Claimant now complains of swelling in the leg at the end of the day. He had prescription pain medications but they did not work so he pretty much gave up taking prescription medication.
14. The knee was swollen at the time of the hearing.
15. Claimant admits that in January of 1999 when he saw Dr. Van Horenbeeck he complained of his knees locking up and producing a grinding sensation.
16. Claimant also admits that in November of 2001 Dr. Holzini or Holzem took a history of no relief with Celebrex from bilateral knee pain. Claimant testified he had no real knee treatment between 1992 and 2002. Claimant testified that he only complained to Dr. Holzini during regular office visits as part of his overall health picture.
17. Claimant also injured his left knee in 1985 when he fell off a paver.
18. Claimant believes he is now favoring his right knee and his left knee is beginning to hurt.
19. Claimant would describe the pain in his right knee in between 1993 and 2002 as a level of 2 to 3 out of a

1. The knee replacement surgery and two follow up surgeries were reasonable and necessary and Claimant's out of pocket expenses are $\ 5,393.49 which was rendered for reasonable and necessary medical care for which Claimant should be reimbursed.
2. Claimant may require future medical care to cure and relieve him of the effects of this injury. This may include analgesic medications and whatever future medical care he may need as a result of his right knee condition which is medically and causally related to the original injury on January 18, 2002.
3. As a direct result of the accident and injuries occurring on January 18, 2002, the damage caused by the subsequent medical treatments and following a reasonable period of rehabilitation, Claimant is left with a 45 % permanent partial disability measured at the level of the right knee.

The original injury of January 18, 2002 was the substantial factor in the need for all of the subsequent right knee care. Dr. Markenson's care was really not adequate to treat the condition. Claimant requested further medical care in July of 2002, but the Hyalgan treatment was not available for several more months and Claimant needed some relief, especially since his job had gotten more physical. It is unrealistic to believe that the minimal smoothing Dr. Markenson performed on Claimant's knee would resolve the problems caused by the January 18, 2002 injury.

While Claimant was not entirely asymptomatic prior to the January 18, 2002 injury, he had no real treatment other than an unsuccessful trial of Celebrex and lost no time from work on account of the bilateral knee pain. Nevertheless, the right total knee replacement is a direct and natural result of the admittedly compensable primary injury. See, Cypher v. Independent Plumbing and Interior Electric, Injury No. 01-143256 (Mo.L\&IRC March 21, 2006). The minor treatment immediately prior to this accident was to both knees, not just the right knee. There had been no other significant right knee treatment for 11 years leading up to this accident. Obviously something changed radically with the right knee following the January 18, 2002 injury and Dr. Markenson's surgery. The right knee markedly deteriorated. I think surgeries 4,5 and 6 are work related.

Employee: David Busch

Date: $\qquad

Made by: \qquad$

Matthew D. Vacca

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation