Mike Nelson v. Vee Jay Cement Contracting Co., Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-047565

Employee: Mike Nelson

Employer: Vee Jay Cement Contracting Co., Inc.

Insurer: Builders Association Self Insurance

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

Date of Accident: May 17, 2004

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 February 6, 2007. The award and decision of Administrative Law Judge Linda J. Wenman, issued February 6, 2007, 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 $16^{\text {th }}$ day of August 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

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: May 17, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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: While working with concrete, Claimant twisted his right knee, and aggravated and/or extended a deep vein thrombosis present in his right leg.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right leg
14. Nature and extent of any permanent disability: 20 % at the 207 week level referable to the right leg, 5 % preexisting, and 15 % referable to the May 17, 2004 injury.
15. Compensation paid to-date for temporary disability: $\ 3,059.86, representing $46 / 7^{\text {th }}$ weeks.
16. Value necessary medical aid paid to date by employer/insurer? $\ 34,327.77

Employee: Mike Nelson Injury No.: 04-047565 17. Value necessary medical aid not furnished by employer/insurer? $\ 371.00 18. Employee's average weekly wages: $\ 944.00 19. Weekly compensation rate: $\$ 629.60 / \ 347.05 20. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: $\ 371.00

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 20% of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Robert Kister

The above referenced Workers’ Compensation claim was heard by the undersigned Administrative Law Judge on December 8, 2006. [1] Attorney Robert Kister represented Mike Nelson (Claimant). Vee Jay Cement Contracting Co., Inc., (Employer) was insured by Builders Association Self Insurance, and represented by Attorney Jeff Stigall. Assistant Attorney General Tracey Cordia represented the Second Injury Fund (SIF).

Prior to the start of the hearing the parties identified the following issues for disposition in this case as: occupational disease; medical causation; past medical expenses; future medical care; and liability of Employer and SIF for permanent partial disability (PPD) benefits. [2] With submission of his post hearing brief, Claimant dismissed his SIF claim.

Claimant offered Exhibits A-Y, and Employer offered Exhibit 1. Employer objected to Exhibit W, Claimant’s deposition, on the grounds of improper use during direct examination. Employer’s objection is sustained. The remaining

exhibits were admitted into the record. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

Post hearing briefs were received and the case was formally submitted on January 8, 2007. ${ }^{[3]}$ Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

All evidence presented has been reviewed. Only testimony necessary to support this award will be summarized.

Claimant: Claimant has worked as a concrete laborer for Employer over the past twenty years without suffering a significant injury. On Monday, May 17, 2004, Claimant was assisting in filling a pool with concrete when he caught and twisted his right leg on a piece of untied rebar. Initially, Claimant did not experience symptoms, he completed his shift, and worked the next day. Claimant did not work on Wednesday due to rain, but his right leg had become very swollen, and he went to the emergency room at Jefferson Memorial Hospital. Prior to May 17, 2004, Claimant had not experienced pain or swelling in his right leg.

At the hospital emergency room testing was completed, Claimant was informed he had a blood clot in his right leg, and he was admitted to the hospital for further medical management. Claimant came under the care of internist, Dr. Patel, and a hematologist, and was hospitalized for twelve days. Claimant was placed on blood thinning medication, and later discharged with instructions to continue his medication, and to elevate his right leg when sitting.

Claimant was kept off work until June 20, 2004. When he returned to work, Claimant was restricted from working in concrete, instructed to elevate his leg when it was possible, and to only work forty hours per week. Claimant was assigned to grating and flagging, and he tried to arrange a break every three to four hours.

Claimant continued to experience pain and swelling that extended from his mid-thigh to his ankle. He applied ice to his right leg, and the swelling would go down over night. Claimant continued to treat with Dr. Patel, he was kept on Coumadin, underwent frequent INR testing, and occasional venous doppler studies. ${ }^{[4]}$ Eventually, Employer had Claimant examined and his medical records reviewed by Dr. Rao and Dr. Bolger, and Claimant was found to be at maximum medical improvement (MMI). Dr. Rao and Dr. Bolger did not believe Claimant required further Coumadin therapy.

After being found at MMI, Claimant resumed treatment with Dr. Patel, and treatment of Coumadin, INR tests, and venous doppler studies continued. Claimant paid $\ 83.30 per month for his Coumadin medication, $\ 90.00 every other month for office visits with Dr. Patel, and $\ 55.00 bi-monthly for INR blood testing. During the course of treatment, Claimant developed a large area of abdominal bruising. Dr. Patel sent Claimant to Jefferson Memorial Hospital for testing, and Claimant later received a bill related to this treatment.

As of hearing, Claimant complained of a burning sensation in his right leg. He also experiences right leg swelling with prolonged standing, and he elevates his leg four to eight times per day.

Upon cross-examination, Claimant verified although his claim for compensation was filed as seeking permanent total disability, he was working full-time for Employer at the time his claim was filed. Claimant also verified he stopped working in January 2006, after sustaining a new injury in August 2004. Claimant testified he now feels better since he no longer participates in physical work.

Jefferson Memorial Hospital: Pertinent records summarized in chronological order as follows:

5/19/04 - Claimant's right knee x-rays demonstrated early mild degenerative changes. A venous doppler study was interpreted as demonstrating a thrombus, poor compression, and poor flow in the right common femoral, superficial femoral, and popliteal veins. Some recannulization was present in the region of the superficial femoral and popliteal vein, which suggested the findings might be subacute.

12/28/04 - A repeat venous doppler study is obtained of Claimant's bilateral lower extremities. The study was interpreted as demonstrating a chronic thrombus in the right superficial femoral and popliteal vein, with partial compression and augmentation. Claimant's left lower extremity was found to be without thrombus.

4/20/05 - A venous doppler study was repeated of Claimant's right lower extremity, which was interpreted as unchanged

from $12 / 28 / 04$.

11/30/05 - A repeat right venous doppler study was interpreted as demonstrating chronic thickening of the walls of the superficial femoral vein without an identified thrombus.

Dr. Rao: Dr. Rao is a vascular surgeon who examined Claimant on January 10, 2006. Upon examination, Dr. Rao noted Claimant had mild swelling of his right leg. Dr. Rao provided a current diagnosis of post phlebitic syndrome, and indicated Claimant needed to wear, at a minimum, knee-high compression hose. Dr. Rao wanted Claimant to be referred to a hematologist to rule out a hypercoagulation disorder. If Claimant did not have a hypercoagulation disorder, Dr. Rao opined Claimant should stop his Coumadin, and would be considered to be a maximum medical improvement (MMI). Dr. Rao found Claimant to have permanent disability of 5-10 %.

Dr. Bolger: Dr. Bolger is a hematologist/oncologist, and Claimant was referred to Dr. Bolger by Dr. Rao. Dr. Bolger examined Claimant on January 25, 2006. Upon examination Dr. Bolger noted Claimant had been prescribed knee high compression hose, and Claimant had never obtained the hose. Dr. Bolger noted Claimant exhibited mild pretibial swelling in his right leg, greater than his left, up to his knees. Dr. Bolger also noted Claimant had subtle dermatitis of his right lower leg, which was compatible with venous stasis dermatitis.

Dr. Bolger diagnosed Claimant as having sustained a single venous thrombus of his right lower limb, and associated post phlebitic syndrome. Dr. Bolger indicated medical guidelines for a first time thrombus recommend anticoagulation for three months, but no longer than six months.