Glenn Fernau v. City of Florissant

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: March 22, 2003
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, a police officer, was checking a building at night when he fell down concrete steps. 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 arm at shoulder level, low back and hip, mental and facial fractures 14. Nature and extent of any permanent disability: Claimant is permanently and totally disabled 15. Compensation paid to-date for temporary disability: 34 weeks ( 33.7 weeks) at $\ 648.67 for a total of $\ 21,870.84 16. Value necessary medical aid paid to date by employer/insurer? \$102,944.63

Employee: Glenn Fernau Injury No.: 03-027182 17. Value necessary medical aid not furnished by employer/insurer? \25,223.65 18. Employee's average weekly wages: \ 973.00 19. Weekly compensation rate: $\$ 648.67 / \ 340.12 20. Method wages computation: By agreement

1. Amount of compensation payable:

FINDINGS OF FACT and RULINGS OF LAW:

On March 1, 2006, a hearing was held in the above-mentioned matter. The Claimant was represented by Attorney Cynthia Hennessey. The Employer/Insurer was represented by Attorney Paul Huck. The Second Injury Fund was represented by Assistant Attorney General Da-Niel Cunningham.

1. Statement of Dr. Feinberg showing charges and payments.
2. Certified records of Division of Employment Security.
3. Certified records of Missouri Department of Conservation.* (Exhibit 23 was taken under submission

and offered by Employer pursuant to $\S 490.180$ R.S.Mo.)

1. Certified Transcript of Glennon R. Fernau from Lindenwood University for 2004-2005.
2. Private disability claim records of Prudential Insurance.

26.SSDI claim record.

1. At the time of the hearing, the Claimant, Mr. Fernau, was 41 years of age and a right-hand dominant individual who was a police officer for approximately 14 years prior to his injury. On March 22, 2003, he fell down a flight of concrete stairs resulting in his injuries. Employee lost consciousness and eventually was taken from the scene of the fall by ambulance to Christian Hospital Northeast where he was diagnosed as having a jaw fracture, right orbital fracture, fifth cranial nerve injury, and seventh cranial nerve injury resulting in facial weakness and hypersensitivity, right upper extremity injuries including fracture of the right elbow, carpal tunnel syndrome, right wrist fracture and adhesive capsulitis of the right shoulder as well as hip and low back injuries. Claimant was further diagnosed with having mental/emotional trauma.
2. Employee was in the hospital for six days and remained off work until November 2003 when his Employer allowed him to return to work at light duty capacity. The Employer, City of Florissant, terminated the Employee's employment on May 21, 2004 because of the permanent restrictions that he had.
3. Employee's medical treatment terminated in May of 2004 and since that time to the date of the hearing his physical as well as mental condition has certainly deteriorated.
4. At the time of the hearing it was very obvious that the Employee's right hand was in a clawed position and he was unable to move the right arm because of injury to the right elbow and the right shoulder.
5. Claimant testified very credibly that because of pain he is unable to sleep, has difficulty with concentration, is depressed, and has anxiety. Although the Employee did try to seek work as a security officer, employers rejected him because of his physical condition.
6. Since May of 2004, the Employee began treatment with Dr. Rachel Feinberg who diagnosed the Employee with reflex sympathetic dystrophy and to the date the hearing was still seeing Dr. Feinberg approximately three times a week for injection, physical therapy and medication.
7. Claimant was not worked since May 21, 2004.
8. Summary and treatment resulting from the primary injury of March 22, 2003: a) after Employee was released from the hospital after six days he underwent a closed reduction of the right wrist and an MRI of the right shoulder showed impingement and effusion; b) Employee was diagnosed with a closed head injury with secondary cognitive deficits, a right orbital fracture and right mandibular fracture, right seventh cranial nerve paresis and a right fifth cranial nerve paresis, right radial and ulnar fractures, right iliac contusion, slurred speech and carpal tunnel syndrome; c) Employee was also treated for blurring of the right eye as well as numbness in the right facial area with right eye complaints; d) Employee underwent a right carpal tunnel release and resection of the distal ulna; e) Employee sustained injuries to his right shoulder and underwent an arthroscopic subacromial decompression and extensive

debridement of adhesions of the right shoulder and was further diagnosed with rotator cuff tendonitis and persistent adhesive capsulitis; f) Employee has lost all use and motion in his right wrist, arm and shoulder and this is very evident when you look at the Employee while testifying his hand was clawed and he couldn't move his arm; g) Employee's right hand is clawed and he is unable to open his fingers at all; h) Employee testified he has very severe pain in the right hip and low back and is unable to sit, stand or walk for any length of time and he has a great deal of problems trying to sleep and while observing the Employee walking in and out of court it was very visible that he has a limp on the right leg; i) Employee's face is drooping to the right side and he has facial weakness and as a result of the injury to the fifth and seventh cranial nerve; and j) Employee testified that he has migraine headaches and his neck always hurts him as well as suffering from depression, fatigue, slow thinking, memory problems, concentration problems, and is truly depressed.

1. Employee's prior injuries before the primary injury of March 22, 2003 include: a) Employee, while in grade school, suffered a fracture of his right hip as a result of a soccer injury which resulted in a leg length difference which has caused problems with his spine and upper back and shoulder; b) while Employee was attending St. Louis University he injured his right knee and underwent surgery for a torn right meniscus resulting from a injury while playing soccer at the university; c) in 1989 Employee sustained a right wrist fracture and underwent a closed reduction; d) Employee, while working at the University of Missouri-Columbia as a police officer, sustained an injury while trying to restrain a suspect and sustained a closed head injury and concussion which resulted in having migraine headaches; and e) Employee, in 2000, sustained a low back injury with pain going into his right leg as a result of bending and lifting.
2. Employee, in May of 2004, was placed at maximum medical improvement by all of his treating physicians and all medical treatment provided by the Employer was terminated.
3. Employee, in June of 2005, came under the care of Dr. Rachel Feinberg, a pain management specialist, and has continued to treat Claimant approximately three times a week with physical therapy, injections and medication.
4. Dr. Feinberg testified very credibly that the Employee is permanently and totally disabled and unable to work and that his inability to work is a result of the primary injury of March 22, 2003 and his preexisting disabilities and testified that each of the preexisting disabilities combine with the disabilities due to the primary work injury to produce a greater overall disability than that which would have occurred from each injury alone.
5. Dr. Wayne Stillings, a psychiatrist, testified that the Employee suffers from dementia due to the traumatic brain injury of March 22, 2003 as well as having major depression and pain disorder and he felt that his diagnosis was directly related to the March 22, 2003 primary work injury.

1. Dr. Stillings also testified very credibly that the Employee is permanently and totally disabled from employment due to psychiatric problems. Dr. Stillings also testified he felt that the Employee is in need of psychiatric treatment in the future because he felt that Employee had a high risk of suicide as a result of the primary injury of March 22, 2003.
2. Mr. James England, a vocational expert, testified very credibly that Employee had very obvious problems with his right arm and hand, which was curled, and that it was his opinion that Employee was permanently and totally disabled due to the primary injury as well as the preexisting disabilities.

1. Employee is permanently and totally disabled and unable to compete in the open job market as a result of the combination of the preexisting disabilities and the primary work injury of March 22, 2003 and thus the Second Injury Fund is liable for permanent total disability benefits.
2. The permanent and total disability benefits should commence as of May 21, 2004 and with credit being given for the permanent partial disability benefits paid by the Employer/Insurer.
3. I find that the Employee, as a result of the primary injury of March 22, 2003, sustained permanent partial disability in the following amounts: 100 % of the right upper extremity at the shoulder, 15 % of the low back and hip, 25 % of the body as a whole referable to the psychiatric mental condition, and a 10 % of the body as a whole referable to the facial fractures and injuries.
4. The Employer is liable and must pay the past medical bills for medical treatment in the amount of $\ 23,592.00 to Injury Specialists, $\ 1,066.00 to Missouri Baptist Hospital, and $\ 565.65 to Goldsmith Pharmacy.
5. I find that the Employer/Insurer is required to provide future medical treatment to the Employee for the injuries sustained in the primary injury of March 22, 2003 as testified to by Dr. Feinberg and Dr. Stillings.
6. With regard to the attorney's fees and liens presented by Attorneys Patrick Chassaing and Mr. Schaller of Pleban and Associates, I find the following: With regard to Attorney Patrick Chassaing, who testified to 27 hours of legal work on behalf of the Employee on his workers' compensation case, I find that at $\ 100.00 an hour he is awarded $\ 2,700.00 and with regard to Mr. Schaller who testified his firm had 37 hours and thus at $\ 100.00 is awarded $\ 3,700.00. I find that the hourly rate is fair and reasonable in light of the legal work done and is a fair rate in the St. Louis, Missouri area.

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

.