Richard Walters v. City of St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-130594

Employee: | Richard Walters |

Date of Accident: October 27, 2000

Place and County of Accident: St. Louis City

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 September 11, 2007, and awards no compensation in the abovecaptioned case.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued September 11, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 29th day of May 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

1. Are any benefits awarded herein? No.

- Was the injury or occupational disease compensable under Chapter 287? Yes.

1. Was there an accident or incident of occupational disease under the Law? Yes.

- Date of accident or onset of occupational disease: October 27, 2000

- State location where accident occurred or occupational disease was contracted: St. Louis City.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
2. Did employer receive proper notice? Yes.
3. Did accident or occupational disease arise out of and in the course of the employment? Yes.

- Was claim for compensation filed within time required by Law? Yes.

1. Was employer insured by above insurer? Yes.
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant fell into a wall after walking up steps.
3. Did accident or occupational disease cause death? No.
4. Part(s) of body injured by accident or occupational disease: N/A

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

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Richard Walters

Dependents: N/A

Employer: City of St. Louis (settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured

Injury No.: 00-130594

Before the

Division of Workers’

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB:tr

PRELIMINARIES

The matter of Richard Walters (“Claimant”) proceeded to hearing to determine the nature and extent of Claimant’s disability and the liability of the Second Injury Fund. Attorney Ray Marglous represented Claimant. Assistant Attorney General Eileen Krispin represented the Second Injury Fund. The City of St. Louis (“Employer”) previously settled its risk of liability. Two cases were tried concurrently, Injury No 00-130594 and Injury No. 01-166881.

With respect to Injury Number 00-130594, the parties agreed that on or about October 27, 2000, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury. Based on an average weekly wage of $\ 812.00, Claimant is entitled to rates of compensation of $\ 541.33 for total disability benefits and $\ 314.26 for permanent partial disability benefits. Employment, venue, notice, and timeliness of the claim were not at issue. The parties agreed that Employer paid $\ 3,212.83 in medical benefits. There is no indication that any temporary total disability benefits were paid, and the Compromised Lump Sum Settlement entered into with Employer indicates the letters "CLSS" with respect to the payment of temporary total disability benefits on that claim.

The issues to be determined are: 1) what is the nature and extent of the disability attributable to Claimant's primary injury; and 2) what is the liability of the Second Injury Fund? Claimant is seeking permanent total disability benefits, or in the alternative, permanent partial disability award.

Claimant submitted the following Exhibits, which were admitted without objection:

Claimant is a 60 year old man who is a long-term employee of Employer. Claimant attended high school, but left in his senior year for financial reasons. He did not obtain a GED, but did attend a technical school to learn how to drive tractors.

Claimant enlisted in the military and saw over one year of combat service in Vietnam, where he earned a Bronze Star, a Silver Star, and several Purple Hearts. Claimant sustained a bullet wound to his left wrist which required surgery. A second wrist surgery was required when he fell, breaking his wrist and injuring tendons. As a result of his left wrist injuries in the service, Claimant finds it hard to move his hand. He has poor circulation and, on occasion, experiences cramps and clawing of the left hand. He can only lift a limited amount of weight and often found it hard to grasp certain items while working. Claimant was also shot in separate occasions in the chest and the buttocks, but other than an itchy scar, there was no long term impact from these wounds that posed a hindrance or obstacle to employment.

Upon returning home from Vietnam in 1969, Claimant was depressed. He suffered from nightmares, and for several years was unable to do anything productive. His parents attempted to get him psychiatric treatment, and he receives a federal disability due to his Vietnam experience.

In 1972, Claimant got a maintenance job in the St. Louis Parks Department. One year later, he transferred to the City of St. Louis Street Department, where he worked the rest of his career. Although the retirement age is generally 65 , pursuant to the "Rule of 85 ," he earned enough time to retire at age 55 , so he chose to retire in May 2002.

Claimant had injuries in addition to his war wounds. In 1985, he slipped on the ice, landing on his neck and shoulder. He had right rotator cuff surgery with a very poor outcome. Claimant demonstrated that he cannot lift his arm above a 90 degree angle away from his body. The shoulder injury affected his work. For example, he has trouble using a trowel to finish concrete and has difficulty working overhead. Following his shoulder injury, Claimant was promoted to a Foreman II that required less labor work.

During his earlier years with Employer, Claimant's depression continued to affect him. He isolated himself, became quiet, and did not want to work. Claimant testified he discussed his depression with his primary care physicians, but refused to see a psychiatrist as recommended by his doctors. However, he did take prescription medication to address his depression.

In the summer of 2000, Claimant underwent open heart surgery. Leading up to surgery, Claimant had trouble, felt dazed, and was unable to lift and move as he usually did at work. Following surgery, Claimant testified his depression got worse, he felt useless, and he still had trouble breathing.

On October 27, 2000, Claimant was walking up steps when his foot caught and he tripped, jamming his neck into a concrete pillar. He received authorized treatment and physical therapy through Concentra and at the workplace. He missed three days of work and then returned to light duty, focusing on supervisory work instead of physical work. His said his neck and right shoulder were sore all the time, he had trouble turning his head, and his arm and hands got tired and stiff.

Claimant was still on light duty when, on April 27, 2001, he stopped to move a large boulder out of the road by himself, and in doing so felt a sensation in his back. He said he received physical therapy at the workplace, but there are no such records in evidence. As a result of this pushing incident, Claimant testified that his lower back on the right side felt painful. He said that the symptoms he associated with the boulder incident lasted a couple of months until he started getting pain pills. The affects of the injury were that his walking ability was limited. Claimant asked Employer to remove the light duty restrictions so he could return to work at the labor level. Beginning in October 2001, he received mildly helpful physical therapy at HealthSouth and treatment through his primary care physician. However, his depression got worse as of the fall of 2001. He returned to work, but decided to retired, and last worked in May 2002.

Claimant testified he decided to retire, even though he enjoyed work, because he felt he could not perform his duties wholly, and would be unable to get the promotions he wanted to go up the ladder with Employer's organization. He felt as if he had physical and mental limitations, and he was a hindrance to his bosses and fellow employees.

Since he stopped working, Claimant has not sought any additional work because it hurts. He occasionally fishes, and draws Social Security disability. Because Claimant has a place at Table Rock Lake, a friend who owns a boat company occasionally paid Claimant to transport boats back and forth when Claimant was otherwise traveling to the lake. This job had no physical requirements other than driving. Claimant testified that he can not work because he was told he could not work again.

Claimant submitted a limited number of medical records. Only two entries in the Southside family practice medical records pre-date the October 2000 accident. In August and September 2000, Claimant was recovering from cardiac surgery and had some depression, but wanted to return to work. By October 27th, after returning to work, his family doctor noted he had a blackout and fall at work that led to a bruised shoulder and chest. This is the event that is the subject of Injury No. 00-130594. Over the next month, Claimant went to Concentra for treatment of cervical, lumbar and shoulder strains. The Southsi