David Callaway v. Brentwood City Hall

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-027578

Employee: David Callaway

Employer: Brentwood City Hall

Insurer: St. Louis Area Insurance Trust

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

Date of Accident: March 12, 2005

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 December 12, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued December 12, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 4^{\text {th }}$ day of June 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? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: March 12, 2005
5. State location where accident occurred or occupational disease was contracted: N/A
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? No
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: N/A
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

Employee: David Callaway Injury No.: 05-027578 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: Unknown 19. Weekly compensation rate: $\$ 675.90 / \ 354.05 20. Method wages computation: Stipulated.

1. Amount of compensation payable: None

1. Second Injury Fund liability: No

TOTAL: -0-

1. Future requirements awarded: N/A

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:

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

This case involves a disputed injury resulting to Claimant with the reported accident date of March 12, 2005. Employer admits Claimant was employed on said date and that any liability was fully self-insured. The Second Injury Fund ("SIF") is a party to this claim. All parties are represented by Counsel. No benefits were paid by Employer.

1. accident;
2. whether injury arose out of and in the course of employment;
3. medical causation;
4. liability for unpaid medical expenses;

1. liability for future medical expenses;
2. nature and extent of temporary total disability;
3. nature and extent of permanent disability;
4. liability of the SIF.

The incident at issue occurred is alleged to have occurred on March 12, 2005 at a service station on Brentwood Boulevard in the City of Brentwood, Missouri. On that date Claimant went to the station to follow-up on a police complaint.

Kelvin Pittman, the Assistant Manager of the Station, was working at that time. While Claimant was still at the Station, Officer Bernard Shultz arrived. Immediately prior to the incident, both Mr. Pittman and Officer Shultz were behind the service counter in the area reserved for the cashier. Claimant, on the other hand, was standing directly in front of the service counter in the area utilized by customers to pay for their purchases.

Claimant testified that, while standing in front of the counter, he turned to his left and took a step with his left foot. He stated that, when he did so, his foot slipped in a forward direction. He came to an abrupt stop and then fell forward onto the floor. At the time he took the step, Claimant stated he did not hear or feel anything involving his hip. Nonetheless, when he was lying on the ground, he felt pain in his left hip and groin.

According to Mr. Pittman, Claimant poured himself a cup of coffee and then stood opposite of him in front of the counter. (Exhibit A-I (x), 11:13-14.) Mr. Pittman testified that Claimant placed his coffee on the counter and, while talking to Mr. Pittman and Officer Shultz, pivoted to the left to put a napkin into the trash can behind him. (Exhibit A-I (x), 14:13-15, 14:18-19, 16:4-6, 43:10-11.) After pivoting approximately a quarter of a rotation to the left, Mr. Pittman saw Claimant fall to the ground. (Exhibit A-I (x), 14:15-16, 16:4-6, 16:13-14.) Mr. Pittman stated that Claimant fell off to the side, landing on the left side of his body. (Exhibit A-I (x), 17:11-24.)

Mr. Pittman stated that Claimant did not tell him what caused the fall. (Exhibit A-I (x), 19:15-21.) Mr. Pittman testified that, to his knowledge, there was nothing on the floor that would have caused Claimant to fall. (Exhibit A-I (x),15:17-20.) The floor was in a clean condition and good repair. (Exhibit A-I (x), 22:7-9, 22:15-16.) Mr. Pittman stated that he performed a walk-through of the store at least an hour and a half before the fall and did not notice anything slippery or sticky on the floor. When Mr. Pittman checked the floor after the fall, it was in good condition. (Exhibit A-I (x), 22:10-12.)

Officer Shultz confirmed the position of himself, Mr. Pittman, and Claimant at the time of the incident. (Exhibit A-I (u), 11:2-7, 11:11-20, 70:19-24, 71:1-4.) He estimated that he was seven to eight feet from Claimant. (Exhibit A-I (u), 10:21-23.) Although Officer Schultz had a clear view of Claimant, he could only see him from the waist up. (Exhibit A-I (u), 12:8-15.) Officer Shultz testified that, when the incident occurred, Officer Schultz was looking to his left. (Exhibit A-I (u), 12:16-20.) However, Claimant was in his peripheral vision. (Exhibit A-I (u), 12:21-22.) Officer Schultz testified that saw Claimant turn to his left and then fall to the ground. (Exhibit A-I (u), 14:1-6.) After Claimant fell, he told Officer Shultz that his hip went out. (Exhibit A-I (u), 18:3-6, 48:5-9, 48:15.)

Officer Schultz testified that, prior to the incident, he had been in the area where Claimant was standing. (Exhibit A-I (u), 20:12-16, 63:6-18.) He neither recalled seeing anything on the floor nor the floor being slippery or slick in that area. (Exhibit A-I (u), 20:17-22.)

The Emergency Medical Technicians from the Richmond Heights Fire Department responded to the incident and recorded the following version of events:

"P[atien]t stated his leg gave out causing him to the fall the floor, no [loss of consciousness]. Patient found conscious/alert, lying on the floor. [Complained of] dislocation pain to left hip. States was standing, sudden onset of pain, falling to floor. (Exhibit A-I (c).)

This is a 50-year-old white male who states he was standing, pivoted with his left foot to turn left and he felt a popping, his left hip gave out and he fell down to the ground with excruciating 10/10 pain. The patient had a left hip replacement in September 2004 on that side.

No pain anywhere else. He did not hurt himself when he fell. Patient is still having excruciating pain. He received 4 of Morphine and 10 of Reglan IV by EMS en route which has not helped him at all." (Exhibit A-I (s), Emergency Department Note, pg. 1.)

The contemporaneous medical records in this matter reflect:

(1) Claimant told the Emergency Medical Technicians that he was standing, had a sudden onset of pain, and then his leg gave out and he fell to the floor. (Exhibit A-I (c).)

(2) Claimant stated to Dr. Scott Soerries, in the Emergency Room, that he was standing, pivoted with his left foot to turn left, felt a popping, and then his left hip gave out and he fell to the ground. (Exhibit A-I (s), Emergency Department Note, pg. 1.)

(3) The Emergency Department Record documented Claimant's statement that his left hip suddenly gave out, he fell to the ground, and was unable to get up. (Exhibit A-I (s), Emergency Department Record.)

(4) The Interdisciplinary History \& Progress Notes stated Claimant twisted left hip, felt a pop, and then experienced pain. (Exhibit A-I (s), Interdisciplinary History \& Progress Notes.)

(5) The Pre-Sedation Physician Assessment showed Claimant, Awhile pivoting, felt pain[,] popping[,] and fell in pain. (Exhibit A-I (s), Pre-Sedation Position Assessment.)

(6) Another record from St. Mary's Health Center recorded that Claimant was standing gas station, pivot on left foot and left hip dislocated. (Exhibit A-I (s).)

(7) Dr. Gregory Galakatos, in the Operative Report, documented that Claimant was standing, twisted his leg, felt a pop, was unable to bear weight, and had pain in his left hip. (Exhibit A-I (s), Operative Report, pg. 1.)

Claimant filed a Motion in Limine to exclude the foregoing documentary evidence containing patient histories that are inconsistent with the allegation of a work related injury. The Motion is denied. First, like expert testimony that is poorly qualified or founded, the correct evidentiary treatment here is to allow the fact finder to assign more or less weight to its probative value rather than exclude the testimony altogether. Second, contemporaneous records are an extremely reliable convention of proof in medical cases; no authentication issues or provider negligence were raised. Third, nothing else in the record is offered as corroborative of the argument that Claimant was incoherent or incompetent in other respects; none of the independent providers above (seven) noted same. Fourth, the request for exclusion of "any and all statements" is over broad. The Motion also bears consideration as to the foundation laid for acceptable levels of on-the-job medication and its consequence on accident causation.

On July 5, 2005, Claimant submitted a request to the Brentwood Police and Fire Pension Board (board for

pension benefits). (Er. Exhibit 2, Correspondence of David Callaway dated July 5, 2005.) In his correspondence requesting pension benefits, he asked to be granted a non-service related total disability retirement. (Id.) (emphasis added).

Dr. Sheridan advised th