Ricky Tyson v. Midwest Transit

not be prejudiced by the admittance of his opinions regarding employee's disability. Therefore, in reviewing this matter, the Commission has taken into consideration Dr. Wade's testimony in its entirety.

After reviewing all the evidence on the record, including the medical evidence provided by Dr. Wade, the Commission still agrees with the ultimate conclusion reached by the administrative law judge that employee is entitled to permanent partial disability benefits from the Second Injury Fund for 29.4 weeks based on the synergistic effect of employee's work injury and preexisting cardiac condition.

The award and decision of Administrative Law Judge Linda J. Wenman, issued December 21, 2007, is affirmed, and is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 25th day of July 2008.

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? Yes

- 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: December 21, 2002

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

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: While unloading a mail delivery, Claimant fell on the dock stairs injuring his left knee.
3. Did accident or occupational disease cause death? No
4. Part(s) of body injured by accident or occupational disease: Bilateral knees

- Nature and extent of any permanent disability: 55\% PPD referable to the left knee, and 17.5\% PPD referable to the right knee, paid by employer/insurer.

1. Compensation paid to-date for temporary disability: $\ 27,569.48 representing 42 weeks.
2. Value necessary medical aid paid to date by employer/insurer? $\ 65,551.76

Employee: Ricky Tyson

Injury No.: 02-155590

1. Value necessary medical aid not furnished by employer/insurer? None

- Employee's average weekly wages: Sufficient for maximum rates.

1. Weekly compensation rate: $\$ 649.32 / \ 340.12
2. Method wages computation: Stipulated

1. Second Injury Fund liability: Yes

29.4 weeks of permanent partial disability from Second Injury Fund

1. Future requirements awarded: None

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 25 % of all payments in favor of the following attorney for necessary legal services rendered to the claimant: James Guirl

A hearing for final award was held regarding the Second Injury Fund portion of the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on December 4, 2007. The parties were given until December 18, 2007 to submit post-trial memorandums if they desired. The case was submitted on December 18, 2007 without receipt of post-trial memorandums. Attorney James Guirl represented Ricky Tyson (Claimant). Assistant Attorney General Toni Camp represented the Second Injury Fund (SIF).

Prior to the start of the hearing the parties identified the issue for disposition in this case as the liability of SIF for permanent total disability (PTD), or permanent partial disability (PPD) benefits. Claimant offered Exhibits A-O. Only deposition objections were preserved, and the exhibits were admitted into the record without further objection. In Exhibit L, SIF objected to any opinions rendered by Dr. Wade regarding Claimant's permanent total disability status or his employability, as prior to the deposition Dr. Wade had never rendered such an opinion. Dr. Wade's medical records were not placed in evidence at deposition or trial. No physicians report or medical records of Dr. Wade exist. SIF's objections contained in Exhibit L are sustained.

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.

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

1. Claimant is 53 years old, completed the 10th grade, and later obtained a GED. Claimant has not received additional educational or vocational training. Claimant has worked in various jobs as a construction truck driver since completing his education. Since 1999, Claimant has worked as a truck driver for several companies hauling U.S. mail.
2. On December 21, 2002, Claimant was working for Employer hauling U.S. mail, and while delivering mail he fell on the dock steps striking his left knee. Claimant received initial care from orthopedist, Dr. Stein, who diagnosed a medial meniscus tear and degenerative arthritis. Left knee surgery was recommended and performed. Postoperatively, Claimant continued to experience left knee pain, and came under the care of Dr. Strickland, an orthopedist.
3. Ultimately, Dr. Strickland performed a left total knee replacement on September 19, 2005. Post-operatively, Claimant developed right knee pain due to overcompensation. Dr. Strickland found Claimant to be at maximum medical improvement on April 17, 2006, and recommended Claimant avoid squatting and kneeling. Dr. Strickland opined Claimant was able to return to work as a truck driver.
4. On November 27, 2007, Claimant and Employer reached a compromise lump sum settlement that represented PPD of 55 % referable to Claimant's left knee, and 17.5 % referable to Claimant's right knee due to the December 21, 2002 injury. Claimant's current knee complaints include: constant pain in both knees; inability to bend his left knee; difficulty climbing stairs; rare to no use of ladders; difficulty standing after 15-20 minutes; difficulty walking after $1 / 2$ block; limits lifting to 50 pounds; frequent use of ice and heat during the day; and the need to elevate his knees to control pain and swelling.
5. Claimant has a history of coronary artery disease (CAD) with the following medical history leading up to the December 21, 2002 injury, and documented by certified medical records:

2/19/90 - Claimant suffered an anteroseptal myocardial infarction (MI ). He was hospitalized at St. Elizabeth's Hospital, received intravenous TPA, and underwent a cardiac catheterization. The cardiac catheterization demonstrated a 75 % lesion of Claimant's left proximal anterior descending (LAD) coronary artery, and mild obstruction of the right coronary artery (RCA) and circumflex. It was recommended Claimant consider angioplasty.

3/14/90 - Following recurrent chest pain, Claimant underwent an angioplasty at Jewish Hospital. Following the procedure, Claimant's 75 % LAD lesion was reduced to a 20 % lesion.

8/31/90 - Following recurrent chest pain, Claimant underwent a cardiac catheterization at St. Elizabeth's Hospital. The catheterization demonstrated a 60 % lesion of the proximal LAD, a 50 % lesion of the mid LAD, plaque formation of the distal RCA, and plaque formation at the distal circumflex. The physician's final diagnosis was "single vessel CAD with borderline stenosis of the proximal LAD coronary artery at the site of the previous angioplasty, and normal hemodynamics."

9/23/92 - Claimant underwent a thallium stress test. The treadmill portion of the test was negative for myocardial ischemia, and the thallium scan was suggestive