DeAndre Collins v. United Parcel Service, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-116889

Employee: DeAndre Collins

Employer: United Parcel Service, Inc.

Insurer: Liberty Mutual Insurance Co.

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

Date of Accident: October 22, 1998

Place and County of Accident: St. Louis County

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. The parties stipulated that the employee sustained an injury due to an accident arising out of and in the course of his employment. 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 July 5, 2006. The award and decision of Administrative Law Judge Joseph E. Denigan, issued July 5, 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 $\qquad 14^{\text {th }}$ day of November 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: October 22, 1998
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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:

Claimant contused knee on a steel bar. 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Right knee 14. Nature and extent of any permanent disability: 25 % permanent partial disability of right knee 15. Compensation paid to-date for temporary disability: $\ 3,450.78 16. Value necessary medical aid paid to date by employer/insurer? $\ 17,891.48

Employee: Deandre Collins Injury No.: 98-116889 17. Value necessary medical aid not furnished by employer/insurer? See Narrative Award 18. Employee's average weekly wages: Unknown 19. Weekly compensation rate: $\$ 180.27 / \ 180.27 20. Method wages computation: Stipulation

1. Amount of compensation payable:

1. Second Injury Fund liability: Open

TOTAL:

1. Future requirements awarded: None

Said payments to begin immediately 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:

Alvin Wolff (see narrative award)

This case involves a compensable right knee injury resulting to Claimant with the reported accident date of October 22, 1998. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund remains open for a determination of liability at a future date. Claimant proceeds pro se pursuant to Hardship Petition.

1. medical causation (attainment of maximum medical improvement);
2. liability for unpaid medical expenses;

1. liability for past due temporary total disability;
2. nature and extent of permanent partial disability (PPD);
3. liability for future medical treatment;
4. assessment of attorney lien.

The parties stipulated that Claimant sustained a fall at work and that Claimant's TTD/PPD compensation rates are $\$ 180.27 / \ 180.27. Employer paid medical benefits to date in the amount of $\ 17,891.48 and TTD benefits in the amount of $\ 3,450.78. Parties further stipulate receipt of a Medicaid lien in the amount of $\ 26,541.81.

Claimant testified that, prior to his June 22, 2000 surgery with Dr. Nogalski, he was advised by Dr. Nogalski that physical therapy would be important in his recovery process. He also recalls the instruction and use of the continuous passive motion (CPM) machine for his right knee. Claimant testified he did not present to physical therapy earlier because he did not have the prescription.

Claimant testified that, post-operatively, he was groggy from the medication ordered from the right knee surgery by Dr. Nogalski. The records document Claimant was prescribed Lodine and Tylenol III, post-operatively. Because he was too groggy, Claimant claims his mother called Dr. Nogalski's office multiple times seeking the prescription for physical therapy for the right knee. Claimant testified he did not receive the prescription until he received it in the mail on or about July 27, 2000.

Claimant admits did not call Dr. Nogalski's office himself anytime between June 22, 2000 and his first presentation to physical therapy on July 27, 2000. He explains this was because he was too groggy from the medication. (The surgery was apparently an outpatient procedure allowing Claimant to return home that same day.) Dr. Nogalski's office notes contain do not reflect the multiple phone calls to the office regarding physical therapy. Exhibit A-7. Claimant admitted he was authorized to use a cab when needed for rides to make medical and physical therapy appointments.

Claimant was released by Dr. Nogalski in September and began treating with Dr. Lehman a month later. Dr. Lehman performed five surgical procedures thereafter. Claimant asserts minimal relief from these procedures.

Current complaints include pain on a daily basis. He thinks his knee has improved since September 2004. He states he takes Ultracet on a daily basis. According to Claimant, this is ordered by Dr. Perry whose records are not in evidence.

Claimant's mother, Beverly Van Hook, testified on behalf of Claimant. She contradicted Claimant both in regard to the number of calls to Dr. Nogalski's office (i.e. she called once) and with respect to receipt of the actual prescription (i.e. she drove to the office and picked it up). Claimant lives with his mother. She also testified that she witnessed Claimant call Dr. Nogalski's office on one occasion. Both versions contrast with the medical records. (Exhibits A-4 and A-7.)

Claimant sustained a contusion to his right knee. Claimant was immediately treated and subsequently released from the emergency room at St. Joseph's Emergency Room in St. Charles, Missouri. Claimant had an abrasion and x-rays ruled out fracture. He first treated with Dr. Meadows on October 27, 1998 who prescribed medication and physical therapy. Eventually he was referred to an orthopedist, Dr. Richard Rende, on November 16, 1998.

Dr. Rende felt Claimant had been immobilized too long and discontinued use of the immobilizer. An MRI, which

was performed on November 23, 1998. It showed some swelling and an "equivocal" tear of the medial meniscus. Dr. Rende ultimately diagnosed Claimant with a right knee contusion. Dr. Rende concluded Claimant was not a candidate for arthroscopic surgery. Dr. Rende repeatedly advised Claimant to discontinue use of the immobilizer and discontinue use of a cane. Dr. Rende ultimately discharged Claimant on December 18, 1998, because Claimant was non-compliant with therapy in that he refused to bend his knee.

A second opinion was obtained from Dr. Nogalski on January 6, 1999. He diagnosed right knee pain with unexplained etiology. He recommended a change of therapist and aquatic therapy which was ordered through Dr. Meadows. Specifically, Dr. Nogalski recommended against arthroscopic surgery because it could make Claimant's complaints worse. (Exhibit A-7, 1/6/99.) At this time, Claimant could not flex his knee beyond thirty degrees. Dr. Nogalski continued to evaluate Claimant and ordered a bone scan on February 2, 1999, which did not reveal any clear findings warranting further care. Exhibit A-7. Dr. Nogalski returned Claimant to seated work as a permanent restriction and discharged him from care.

In March 1999, Claimant was evaluated by Dr. Richard Lehman. Dr. Lehman recommended an evaluation by a neurologist to rule out reflex sympathetic dystrophy (RSD). By July 6, 1999, Dr. Lehman found Claimant had no evidence of RSD and recommended closed manipulation and possible arthroscopy. Claimant requested treatment from the employer. The employer authorized Dr. Hogan who examined Claimant on September 7, 1999, and found no evidence of RSD. Dr. Rende re-examined Claimant, almost one year after the reported injury, on October 14, 1999. Dr. Rende diagnosed chronic ankylosis related to the fact that Claimant simply refused to bend his right knee. Dr. Rende agreed that if Claimant could bend the knee on his own, a manipulation under anesthesia may be considered.

Dr. Nogalski subsequently performed an arthroscopic debridement of adhesions of the right knee on June 22, 2000. The medial meniscus was normal. Dr. Nogalski was able to flex Claimant's knee to ninety degrees in the operating room after surgery. Post-operatively, Claimant did not pursue physical therapy until one week before the follow-up on August 1, 2000. This, despite the fact that physical therapy was ordered at the first post-operative visit on June 28, 2000. Claimant testified he was aware that physical therapy was necessary after Dr. Nogalski's surgery, but claims not to have received the physical therapy prescription order.

Dr. Nogalski notes some inconsistencies regarding Claimant's claimed use of the CPM at 50 degrees of flexion and Dr. Nogalski's physical exam findings of less than that. Exhibit A-7, 8/1/00. Dr. Nogalski noted Claimant was displaying behavior causing concern about Claimant's rehabilitation, reliability and cooperation.

The HealthSouth Rehabilitation records document Claimant did not present for physical therapy until approximately four weeks after surgery, or until July 27, 2000. (Exhibit A-4.) The HealthSouth records include a copy of Dr. Nogalski's prescription dated June 28, 2000 for physical therapy three times per week. In addition, Dr. Nogalski' records, dated June 28, 2000, document a physical therapy prescription was provided to Claimant at this visit.

Dr. Nogalski examined Claimant again on August 1, 2000 whereupon he first learned Claimant received physical therapy approximately one we