General Parker v. Alston Power Integrated, Incorporated

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 January 15, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Gary L. Robbins, issued January 15, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 9th day of October 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge erred in finding that employee failed to satisfy his burden to show that his left knee injuries were medically causally related to his work accidents in 2001. Claimant's medical expert, Dr. Musich, opined that the two work accidents in 2001 were a substantial factor in the cause of employee's left knee problems. Even employer/insurer's medical expert, Dr. Nogalski, believed employee's left knee problems were the result of the work accidents as demonstrated by his 1 % permanent partial disability rating for those injuries. Dr. Nogalski stated that "it looks like 1 percent of the permanent partial disability would be attributable to his two claimed injuries in 2001 . . ." Thus, the undisputed evidence shows that employee's left knee injuries were medically causally related to his April 20, 2001, and December 6, 2001, work accidents.

The administrative law judge also erred in finding that there was no evidence apportioning separate percentages of disability between the two left knee injuries. Dr. Musich's expert medical opinion that employee's left knee surgery was related to his work injury is more credible than the contrary opinion of Dr. Nogalski. Dr. Musich opined that as a result of the two work accidents in 2001, employee suffered 30\% permanent partial disability of the left knee. I agree that Dr. Musich did not apportion the 30\% disability finding between the two separate injuries. However, Dr. Nogalski did provide credible evidence that employee suffered permanent partial disability of 7 % solely as a result of the left knee surgery. Therefore, employee should have been awarded 7\% permanent partial disability for his December 6, 2001, work injury and 23 % permanent partial disability for his April 20, 2001, work injury.

Furthermore, since employee's need for left knee surgery was caused by the December 6, 2001, work accident, I would award employee past medical expenses in the amount of $\ 16,673.13. Finally, I would award employee 5 and $3 / 7 weeks of temporary total disability benefits at the stipulated rate of \ 628.90. This is for the time period between his surgery (February 19, 2004), through the date he was released to return to work (March 29, 2004).

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission to deny employee benefits.

John J. Hickey, Member

Employee: General Parker

Injury No. 01-037858

Dependents: N/A

Employer: alston Power Integrated, Incorporated

Additional Party: Second Injury Fund

Insurer: American Zurich Insurance Company, TPA Gallagher Basset Services

Hearing Date: November 1, 2007

Checked by: GLR/kh

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? Yes
4. Date of accident or onset of occupational disease? April 20, 2001
5. State location where accident occurred or occupational disease contracted: Franklin County, 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 happened or occupational disease contracted: The employee struck his left knee against a piece of steel scaffolding.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Left knee
14. Nature and extent of any permanent disability: None
15. Compensation paid to date for temporary total disability: $\ 0
16. Value necessary medical aid paid to date by employer-insurer: $\ 85.06
17. Value necessary medical aid not furnished by employer-insurer: Non-issue
18. Employee's average weekly wage: Not determined

1. Weekly compensation rate: $\ 599.96 per week for TTD. $\ 314.26 per week for PPD.
2. Method wages computation: By agreement
3. Amount of compensation payable: $\ 0
4. Second Injury Fund liability: N/A
5. Future requirements awarded: None

Said payments shall be payable as provided in the statement of the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

No attorney fees are awarded in this case.

On November 1, 2007, General Parker, the employee, appeared in person and by his attorney, D. Andrew Weigley for a hearing for a final award in three cases: 01-037858, 01-044871, and 01-151550. The employee dismissed 01-044871 in its entirety. The employee also dismissed the Second Injury Fund in the remaining two cases. The Second Injury Fund was not represented at trial. Its attorney, Maria W. Campbell, represented the employer-insurer at the hearing. Venue in 01-037858 was properly in Franklin County, Missouri. Venue in 01-151550 was properly in St. Louis Co unty, Missouri. The parties specifically requested and agreed to venue in Jefferson County, Missouri. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and

liability was fully insured by American Zurich Insurance Company.

1. On or about the date of the alleged accident or occupational disease the employee was an employee of Alston Power

Integrated, Incorporated and was working under the Workers' Compensation Act.

1. On or about April 20, 2001, the employee sustained an accident or occupational disease arising out of and in the

course of his employment.

1. The employer had notice of the employee's claim.
2. The employee's claim was filed within the time allowed by law.
3. The employee's rate for temporary total, permanent total and death is $\ 599.96 per week. His rate for permanent

partial disability is $\ 314.96 per week.

1. The employer-insurer paid $\ 85.06 in medical aid.
2. The employer-insurer paid $\ 0 in temporary total disability benefits.

1. Medical Causation-Whether the employee's injury was medically causally related to his accident of April 20,

2001?

1. Permanent Partial Disability-Whether the employer-insurer is liable to pay permanent partial disability benefits?

The following exhibits were offered and admitted into evidence:

Joint Exhibits

1. Medical records Unity Corporate Health-April 24, 2001.
2. Medical records St. John's Mercy Hospital-Washington, Missouri
3. Medical records Unity Corporate Health-December 8-28, 2001.
4. Medical records Edward Schlafly, Jr., M.D.
5. HealthSouth records-January 25-October 15, 2002.
6. Medical records St. Alexius Hospital-February 9, 2002.
7. Medical report of James Walentynowicz, M.D.-March 15, 2002.
8. Medical records Eric Washington, M.D.-July 15 and August 5, 2002.
9. Medical records Northland Mid-America Orthopedics-February 12 and 20, 2003.
10. Medical records Forest Park Hospital and Clayton R. Perry, M.D.
11. Medical records Julian Mosley, M.D.-January 23, 1998-April 14, 2005.

Employee's Exhibits

A. Medical bill Clayton R. Perry, M.D. PC/\$3,109.00

B. Medical bills Forest Park Hospital/\$393.00 and \$13,171.13

C. Deposition of Thomas F. Musich, M.D.

Employer-Insurer's Exhibits

1. Deposition of Michael Nogalski, M.D.

The parties stipulated that the employee sustained work related injuries to his left knee on April 20, 2001 (Case Number 01-037858) and again on December 6, 2001 (Case Number 01-151550). The cases were not consolidated, but were tried at the same time. The parties requested and agreed to venue in Jefferson County, Missouri. In addition the employee dismissed Case Number 01-044871. The employee also dismissed the Second Injury Fund in Case Number 01-037858 and Case Number 01-151550.

General Parker, the employee has worked as a union boilermaker for the last nine to ten years. He is a certified welder. Generally his duties involved some form of welding at large industrial facilities.

The employee testified that he first injured his left knee on April 20, 2001 when he struck his knee against a piece of steel scaffolding. He promptly reported his accident to his employer, and was initially sent to Unity Corporate Health for medical care. Multiple physicians and medical providers treated the employee due to pain complaints with his left knee up to and through his second accident on December 6, 2001. The employee testified that he continued to have pain complaints in his left knee whether he was working or not. The employee received conservative care including work restrictions and physical therapy. Mr. Parker's description of his problems and his diagnoses have remained consistent. The employee always indicated that he struck his knee near and/or above the kneecap, and he always indicated that he had pain. The diagnoses given were generally for a contusion of the left knee-specifically of the quadriceps tendon. The employee also testified that in about October 2001 he saw his personal doctor, Dr. Julian C. Mosley concerning his knee, and that Dr. Mosley made referrals and prescribed some pain pills.

On December 6, 2001, Mr. Parker had another accident where he injured his left knee. On this occasion he testified

that he was welding in a sitting position and got up to go on break. He indicated that as he got up he struck his left knee against a piece of angle iron. He testified that he struck his knee in about the same spot, but more on top of the kneecap. He testified that he felt immediate pain and his knee started to swell. He again immediately reported this injury to his employer and he was again sent for medical care to Unity Corporate Health. The employee