Billy Castile v. Sander Siding

(Affirming Award and Decision of Administrative Law Judge)

Imjury No.: 03-078784

Employee: Billy J. Castile

Employer: Sander Siding

Insurer: Missouri Employers Mutual Insurance Company

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 July 10, 2008. The award and decision of Administrative Law Judge Gary L. Robbins, issued July 10, 2008, 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 27th day of January 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Billy J. Castile

Injury No. 03-078784

Dependents: N/A

Employer: Sander Siding

Additional Party: None

Insurer: Missouri Employers Mutual Insurance Company

Hearing Date: May 29, 2008

Checked by: GLR/kh

- Are any benefits awarded herein? Yes

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

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

- Date of accident or onset of occupational disease? August 19, 2003

- State location where accident occurred or occupational disease contracted: Cape Girardeau County, Missouri.

- Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

- Did employer receive proper notice? Yes

- 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

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: The employee fell off scaffolding. His right foot landed in a cement block and broke his right ankle.

- Did accident or occupational disease cause death? No

- Parts of body injured by accident or occupational disease: Right ankle

- Nature and extent of any permanent disability: 64 % permanent partial disability to the employee's right ankle at the 155 level.

- Compensation paid to date for temporary total disability: \$10,094.03

- Value necessary medical aid paid to date by employer-insurer: \$41,448.52

- Value necessary medical aid not furnished by employer-insurer: \5,390.00

- Employee's average weekly wage: \ 454.00

- Weekly compensation rate: $\ 302.67

- Method wages computation: By agreement

- Amount of compensation payable: \$30,024.86. See Award

- Second Injury Fund liability: None

- Future requirements awarded: Yes. See Award

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Chris N. Weiss

On May 29, 2008, the employee, Billy J. Castile, appeared in person and by his attorney, Chris N. Weiss, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Christopher E. Patt. 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:

- The employer was operating under and subject to the provisions of the Missouri Workers’ Compensation Act, and liability was fully insured by Missouri Employers Mutual Insurance Company.

- On or about the date of the alleged accident or occupational disease the employee was an employee of Sanders Siding and was working under the Workers’ Compensation Act.

- On or about August 19, 2003 the employee sustained an accident or occupational disease arising out of and in the course of his employment.

- The employer had notice of the employee's claim.

- The employee's claim was filed within the time allowed by law.

- The employee's average weekly wage is $\ 454.00 per week. His rate for temporary total, permanent total and death is $\ 302.67 per week. His rate for permanent partial disability is $\ 302.67 per week.

- The employee's injury was medically casually related to his accident or occupational disease. The employerinsurer agreed to medical causation for all medical treatment that the employee received excluding massage therapy.

- The employer-insurer paid $\ 41,448.52 in medical aid.

- The employer-insurer paid $\ 10,094.03 in temporary total disability benefits.

- The employee has no claim for mileage or other medical expenses under Section 287.140 RSMo.

- The employee has no claim for permanent total disability.

- Past Medical Bills-Whether the employer-insurer is responsible to pay to the employee \$5,390.00 for previously incurred medical bills?

- Future Medical Aid-Whether the employer-insurer is responsible to provide future medical care? The employerinsurer agreed to provide future medical care that is necessary to cure and relieve the employee from the effects of his injury excluding massage therapy.

- Temporary Disability-Whether the employer-insurer is responsible to provide additional temporary disability benefits?

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

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

- Medical records from Southeast Missouri Hospital

- Medical records of Raymond A. Ritter, Jr., M.D.

- Medical records of Gary J. Schmidt, M.D.

- Medical records of Kevin K. Nagamani, M.D.

- Medical records of John Krause, M.D.

- Records of Resource O\&P

- Records of Tammy M. Piatt-Message Therapist

- Deposition of Bernard Charles Burns, D.O.

- Deposition of Anthony Zoffuto, M.D.

Employer-Insurer's Exhibits

- Deposition of John D. Graham, M.D.

- Medical record from Cape Imaging dated 6/15/06

- Medical Records from St. Francis Medical Center

- Medical records of Bernard C. Burns, D.O. dated 1/17/08 and 2/27/08

- Medical records of Kevin K. Nagamani, M.D.

- Medical records from HealthSouth

Mr. Castile, the employee, is twenty-seven years old, married and a graduate of high school. After high school, he served in the U. S. Marine Corps and received a lot of training as a firefighter. After his discharge from the Marines, Mr. Castile intended to serve in the National Guard and work in the private sector as a firefighter. He testified that before his accident he was in excellent shape and could run three miles in sixteen minutes. He testified that he is no longer able to serve in the National Guard and cannot pass the physical examination to be a full time firefighter. After his accident he started his own construction company and works as a volunteer firefighter for Fruitland Fire Department as a first responder. Mr. Castile testified that his duties as a volunteer firefighter only involve light duty.

The parties stipulated that the employee sustained a compensable accident on August 19, 2003, while working for Sanders Siding. At that time Mr. Castile was working on scaffolding about sixteen to eighteen feet above the ground.

He fell off the scaffold and fell to the ground breaking his right ankle. When he hit the ground, his right ankle actually lodged in one of the holes in a cement block. Mr. Castile testified that his toe was actually touching his leg while it was inside the cement block and that his coworkers had to break the cement block with a sledge hammer to get his foot out.

As a result of his injury, the employee received extensive medical treatment and was receiving pain management treatment/therapy at the time of trial. He has been treated or evaluated by Raymond A. Ritter Jr., M.D., Gary J. Schmidt, M.D., Kevin K. Nagamani, M.D., John Krause, M.D., Anthony Zoffuto, M.D., John D. Graham, M.D. and Bernard Charles Burns, D.O. Dr. Burns is the physiatrist who continues to provide pain management care to Mr. Castile.

As a result of his accident the employee has undergone four surgeries and as many as seven total procedures. He has had extensive physical therapy and prescriptions for orthotics and various medications including narcotic medications.

On August 19, 2003, the date of the accident, Dr. Ritter diagnosed an open fracture "... involving the medial malleolus of his right ankle and a closed fracture of the distal fibula". Mr. Castile had surgery entailing open reduction and internal fixation with plate and screws on the distal fibula fracture and debridement of his wound and internal fixation of the medical malleolar fracture with a compression type screw. The surgical record reports "Open bimalleolar fracture of the right ankle". Dr. Ritter discharged the employee from his care as of December 2003.

Due to continued problems, Dr. Schmidt began care as of January 22, 2004. At that time Dr. Schmidt recommended that Mr. Castile undergo additional surgery. On April 7, 2004 Dr. Schmidt's surgical report documents the employee's second surgery: "Procedure: Repair right non-union medial malleolus. Repair stenosis right tibial anterior tendon".

As of June 15, 2004 Dr. Schmidt reported that one of the screw heads had become prominent and was causing pain. He recommended addition surgery to remove hardware. Surgery was cancelled due to problems between the employee and Dr. Schmidt.

On July 21, 2004, Dr. Nagamani began treating the employee for ankle pain. His "Diagnosis/Assessment was:

1. Right ankle saphenous neuritis
2. Tibial anterior tendonitis
3. Painful lateral hardware".

4.

Dr. Nagamani reported that the employee was not at MMI due to saphenous neuritis. He prescribed Lidoderm patches, reported that the employee needed physical therapy, antiinflammatories/Bextra, released Mr. Castile to full duty "for now" and indicated he would need surgery in the future.

On or about October 14, 2004, Mr. Castile had his third surgery for hardware removal. As of December 17, 2004, Dr. Nagamani was treating the employee for pain with medications etc., but due to continued problems he ordered another MRI that was performed on December 29, 2004. The MRI reported "Impression:

1. FINDINGS OF OSTEONECROSIS FELT TO BE PRESENT WITHIN THE DISTAL TIBIAL METAPHYSEAL REGION, EXTENDING THE LAST 4 TO 5 CM TO THE LEVEL OF THE PLAFOND WITH A SMALL AMOUNT OF IRREGULARITY AT THIS LOCATION. NO LOOSE BODY IS SEEN. NO DEFINITE TALAR DOME ABNORMALITY.
2. POST-SURGICAL CHANGES OF THE ANKLE FROM PRIOR SURGICAL FIXATION".

On or about February 25, 2005, Mr. Castile had his fourth surgery. The operative report indicates "Decompression and bone grafting of right tibial osteomyelitis. Bone marrow aspirate".

The employee continued to have problems including pain and was treated with physical therapy and medications etc. As of September 28, 2005 Dr. Nagamani reported that Mr. Castile needed a referral for pain management.

Dr. Graham testified by deposition that was taken on May 1, 2008. He testified that his practice deals with pain management and that he first saw the employee on October 26, 2005. Dr. Graham