James Rybak v. Famous Barr

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-089914

Employee: James Rybak

Employer: Famous Barr (Settled)

Insurer: Federated Retail Holdings (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: July 26, 2003

Place and County of Accident: St. Louis, 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 July 20, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued July 20, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $12^{\text {th }}$ day of January 2007.

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? No
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: July 26, 2003
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 chasing a shoplifter when he fell through a glass door. 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 upper extremity 14. Nature and extent of any permanent disability: 371 / 2 % of the left arm at the level of the wrist 15. Compensation paid to-date for temporary disability: $\ 662.15 16. Value necessary medical aid paid to date by employer/insurer? $\ 3,097.26

Employee: James Rybak Injury No.: 03-089914 17. Value necessary medical aid not furnished by employer/insurer? -0 - 18. Employee's average weekly wages: Unknown 19. Weekly compensation rate: $\$ 246.66 / \ 246.66 20. Method wages computation: Stipulation

1. Amount of compensation payable: (Settled)

1. Second Injury Fund liability: No

TOTAL:

-0-

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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

A hearing was held on May 12, 2006, at the Division of Workers’ Compensation in the City of St. Louis. James Rybak (Claimant) was represented by Mr. Ray Gerritzen. Famous Barr (Employer), its Insurer, Federated Retail Holdings, and Claimant previously settled, and the case proceeded to hearing against the Second Injury Fund only. The Second Injury Fund was represented by Assistant Attorney General Kristin Frazier. Mr. Gerritzen requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about July 26, 2003, Claimant sustained an accidental injury arising out of and in the course of his employment; at that time Claimant was an employee of Employer; venue is proper in the

City of St. Louis; Employer received proper notice of the injury; and the claim was timely filed. The parties further stipulated that Claimant's rate of compensation for temporary total disability benefits and permanent partial disability benefits is $\ 246.66. The issues for determination by hearing are: what is the nature and extent of permanent partial disability sustained by Claimant; and what is the liability of the Second Injury Fund.

Claimant is a 26-year-old high school graduate. After graduating from high school, Claimant worked for Schnucks for a couple of years as a cashier. Claimant enrolled in the Missouri College of Massage Therapy, which is an eight-month program, but dropped out of the program one month prior to the completion of the course due to family reasons. Following his study of massage therapy, Claimant went to work for Sears Automotive, and then worked for Employer for one year in loss prevention.

The primary injury occurred on July 26, 2003, while Claimant was working for Employer in loss prevention. While attempting to apprehend a shoplifter, Claimant fell through a glass door landing on concrete. Claimant injured his left hand and elbow on the glass and was taken to the hospital where he received stitches, was xrayed, and released. Eventually Claimant was referred to Dr. Stregge who performed surgery on December 22, 2003. Dr. Stregge did not fix the nerve in his hand because it could have made the problem worse. Currently, Claimant has difficulty with his ring finger and pinky, which are clawed. He is unable to close his hand all the way. He experiences discomfort, swelling, discoloration, and bruising around his thumb. He has decreased strength and grip, and his hand wakes him up and locks on him. Claimant has difficulty using his left hand, and must use his right hand. When he goes to grab a glass, he is unable to use his ring and pinky finger. He is unable to maneuver his left hand very well. Claimant testified that when he did construction work he had trouble holding a nail because his hand locked up, although it is not clear when he did construction work. Claimant testified that the last job he had was doing home security, but he was recently laid off due to downsizing, and Claimant is currently unemployed.

Claimant testified that he has memory problems, which he attributes to seizures. According to Claimant, he had his first seizure when he was 15 years old, which he believes resulted from taking Zoloft for depression which began when he was 13 or 14 years old. Claimant testified his first seizure occurred when he was hit by a bus outside of the art museum. He testified that when he went outside, he walked across the street and stopped in the middle of the street, fell back and hit his head, and had a seizure. Claimant testified that as a result, he was in a coma and woke up in a hospital one week later.

According to Claimant, he had a seizure while at a friend's house watching television; while on a bus; and while at Soccer Park. Claimant testified that he also had a seizure in 2004 after he broke up with his girlfriend, but he did not go to the hospital at that time.

Claimant does not remember when he first went on seizure medication, but he believes it was when he was a teenager. Claimant testified that he still has seizures, but they are more like blackouts where he has blank stares and his eyes flutter really fast.

Claimant testified that at one point in his life he was on drugs. At the time he was hit by the bus he was on acid. Claimant testified in the last couple of years he has experienced a loss of his short-term memory. Claimant testified that he does not remember his childhood at all. Claimant also testified that there are times when he is driving, and for a split second he goes blank.

Claimant takes Tegretol three times a day. The Tegretol was prescribed by Dr. Temple who has been treating him for his seizures. Things such as strobe lights and certain video games can trigger a seizure. Claimant must get plenty of rest and take plenty of breaks as a result of his seizure problem.

Claimant received both inpatient and outpatient treatment for depression but is not currently being treated for depression, and is not making a claim for preexisting disability due to depression.

Emergency room records from DePaul Health Center dated July 26, 2003, reflect that Claimant reported to the emergency room with multiple lacerations from falling through a plate glass door. The past medical history indicates Claimant is an epileptic and is on Tegretol. Claimant received stitches and was x-rayed. Claimant had multiple deep lacerations to his head, right elbow, right hand, right ring finger, and left hand. Claimant was discharged with instructions to follow up with his workers' compensation doctor.

Records from SSM Corporate Health Services indicate that Claimant was seen on July 28, 2003. His past medical history was significant for a seizure history and indicated Claimant was on Tegretol XR 200 milligrams daily. Claimant indicated that he was under the care of a neurologist who follows him on a regular basis, which keeps his seizures from reoccurring.

Claimant was seen by Dr. David Stregge, an orthopedic surgeon, on August 27, 2003. Dr. Stregge examined Claimant and thought he had a rather significant left ulnar neuropathy involving primarily the motor component. He suspected Claimant sustained a laceration to the motor branch of the ulnar nerve in the region of the Guyon's canal. Dr. Stregge ordered an EMG and nerve conduction study. Following an EMG and nerve conduction study, Dr. Stregge performed an external neurolysis, ulnar nerve left hand on December 22, 2003. The post-operative diagnosis was partial ulnar nerve laceration, left hand. In his procedural admission form on November 4, 2003, Claimant gave a history of having his last seizure two years ago.

Claimant was seen on December 2, 1998, in the St. John's Mercy Medical Center emergency room. Claimant gave a history of seizures. According to Claimant's father, Claimant had been tapering himself off his anti-seizure medicine, Depakote. According to the history given two to three weeks prior to admission, Claimant had a self-terminating seizure and was seen in the emergency department. Claimant was told he needed to be back on his medications, but he refused to take them. Claimant stated he does not like the Depakote because it makes him drowsy. Claimant reported that he had been playing soccer and again had a seizure.

In an admission note from St. John's Mercy Medical Center of April 14, 1999, Claimant had a past medical history remarkable for seizure disorder. The history indicated that the seizures occurred within the last two years but are controlled with Depakote.

Emergency room records from St. John's Mercy Medical Center indicate that Claimant was seen in the emergency room on July 28, 1999. The history given was of a 19 year old white male who arrived via ambulance after experiencing seizure activity while at a friend's house.