Andrew Hayden v. Thi of Baltimore

Employer/insurer offered the expert testimony of Dr. Markenson. Dr. Markenson also diagnosed a partial pectoralis tear. Remarkably, Dr. Markenson believes that the pectoralis tear resulted in a 7\% permanent partial disability measured at the shoulder.

Employee complained of pain and cramping in his chest. Employee also complained of loss of strength when performing with his left arm and loss of balance when performing with both arms.

The administrative law judge and Commission majority accept the opinion of Dr. Markenson as credible. I do not. Based upon employee's description of his problems resultant from the work injury, I find Dr. Berkin's opinion that employee sustained a disability to the body as a whole to be the most credible. I would award to employee permanent partial disability of 20 % of the body as a whole.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Employee: Andrew Hayden

Injury No.: 04-064365

Dependents: N/A

Before the

Employer: Thi of Baltimore

Division of Workers'

Additional Party: N/A

Compensation

Department of Labor and Industrial

Injury: N/A

Jefferson City, Missouri

Insurer: ACE USA

Hearing Date: December 2, 2005

Checked by: JED:tr

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: June 29, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee was taking trash out and lifting trash into a dumpster.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Left shoulder
3. Nature and extent of any permanent disability: 7.5 % of the left shoulder
4. Compensation paid to-date for temporary disability: None
5. Value necessary medical aid paid to date by employer/insurer? \$6,096.94

Employee: Andrew Hayden Injury No.: 04-064365

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 186.67
3. Weekly compensation rate: $\ 280.00
4. Method wages computation: Stipulation

1. Amount of compensation payable:

17.4 weeks of permanent partial disability from Employer \$3,248.06

Underpayment of temporary partial disability benefits \298.67

1. Second Injury Fund liability: No

TOTAL:

\ 3,546.73

1. Future requirements awarded: None

Said payments to begin N/A and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Christopher Geldmacher

This case involves bilateral elbow repetitive traumas resulting to Claimant with the reported onset date of June 29, 2004. Employer admits Claimant was employed on said date and that any liability was fully insured. The Second Injury Fund is a party to this claim but remains open for a determination of liability at a future date. Both parties are represented by counsel.

1. nature and extent of permanent partial disability;
2. disfigurement; and
3. liability for under payment of TPD benefits.

The parties stipulated that the employee's compensation rate was $\ 186.67 for both temporary total disability and permanent partial disability. Employer paid $\ 6,096.94 in medical expenses and no TTD (indemnity) benefits to date. Also stipulated was the amount of TPD unpaid during Claimant's light duty healing period (i.e. \$298.67).

1. Claimant sustained a tear of his left pectoral muscle on the reported accident date while lifting large (80-100 pound) trash bags into a dumpster.
2. A second MRI on August 16, 2004 was positive for the pectoral tear. Dr. Markenson did not recommend surgery and place Claimant at MMI about three months post-accident.
3. Claimant sought no more treatment after August 24, 2004.
4. Dr. Berkin examined Claimant and reported an essentially negative physical examination, including no weakness, together with a patient history that Claimant was able to perform his duties as a waiter without any problems. Dr. Berkin assigned a twenty percent PPD of the body as a whole ( 400 week level).
5. Claimant was examined By Dr. Markenson again on August 23, 2005 and reported a history of no problems performing his job. Noting only mild discomfort in an otherwise negative physical examination, Dr. Markenson assigned a seven percent PPD of the left shoulder.

1. While identifying a photograph of his pectoral disfigurement he also acknowledged stretch/strain marks from weightlifting exercise (Exhibit 2). He stated he no longer engages in that activity.
2. Claimant was apparently paid eight percent of his normal weekly wages for "light duty during the period June 29, 2004 through August 24, 2004 which was the same forty hour week but with different duties, i.e. mopping and trash removal were excluded from his job for that period.
3. Claimant testified he aggravated his injury several times while working but he sought no additional treatment after August 24, 2004.
4. Claimant described marked reductions in strength which have no parallel in his subsequent employment as a waiter.
5. Claimant described pain of three or four on a scale of ten but also stated he had less tenderness since his examination by his expert, Dr. Berkin.
6. Claimant sustained prior injury to his left shoulder in a motor vehicle accident in 1988.
7. Claimant recalled a subsequent motor vehicle accident on July 8, 2004 in which he was wearing seatbelt and underwent some chiropractic treatment of his mid and low back for eight or nine weeks.

1. Claimant's reported accident resulted in an unusual and therefore, perhaps, under-treated pectoral muscle (partial) tear that never was surgically improved.
2. Claimant's asserted reduction in strength contrasts with the histories and physical exams of both his own expert and Employer's expert. It also contrasts with his current unlimited duties as a waiter.
3. Nevertheless, Claimant guards his left side using his right hand to pick up heavier items. He stated he has no problems performing his job as a waiter.
4. The evidence suggests at least minor prior and subsequent injury to the left shoulder girdle.

Employee: Andrew Hayden

Injury No.: 04-064365

1. Claimant is under no prescription drug therapy and engages his subsequent employment as a waiter without problems or restrictions.
2. No provision is made under Chapter 287 for disfigurement of the chest. Section 287.190.4 RSMo (2000).
3. Employer underpaid Claimant during the healing period by a method not recognized under Chapter 287. Claimant was underpaid temporary partial disability (TPD) benefits in the stipulated amount.

Accordingly, on the basis of the substantial competent evidence contained in the whole record, Claimant is found to have sustained a seven and one-half percent PPD of the left shoulder (232 week level). Claimant is also entitled to past due TPD benefits of $\ 298.67.

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation