Robert Brandt v. St. Louis County Government

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. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated November 24, 2008.

The Commission affirms all findings and conclusions of the administrative law judge, but for the calculation of the amount of the Second Injury Fund's liability. The administrative law judge made the following findings: 20% permanent partial disability at the level of the left knee for employee's primary injury; 45% permanent partial disability to the body as a whole for employee's pre-existing disability to the spine; and a 20% load factor for the synergistic effect of the combined injuries. The administrative law judge found the Second Injury Fund's liability to be $21,378.28, based on 61.6 weeks of permanent partial disability.

The correct calculation of the amount of the Second Injury Fund's liability, based upon the administrative law judge's findings of employee's disability, is as follows:

Based on the above calculation, the Commission ascertains and determines that the correct amount of the Second Injury Fund's liability is $14,714.92, and we modify the November 24, 2008 award accordingly.

As stated above, all remaining findings of fact and conclusions of law are affirmed.

The award and decision of Administrative Law Judge Mathew D. Vacca issued November 24, 2008, as modified, 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 3rd day of April 2009.

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: November 10, 2003

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

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: Inspecting sewer drain elevation and fell injuring knee.
3. Did accident or occupational disease cause death? No Date of death?
4. Part(s) of body injured by accident or occupational disease: Knee

- Nature and extent of any permanent disability: 20\% Knee

1. Compensation paid to-date for temporary disability: $\ 0
2. Value necessary medical aid paid to date by employer/insurer? $\ 4,448.19

Employee: Robert Brandt

Injury No.: 03-114542

1. Value necessary medical aid not furnished by employer/insurer? $\ 0

- Employee's average weekly wages: $\ 1205.92

1. Weekly compensation rate: $\$ 662.55 / \ 347.05
2. Method wages computation: Agreed

1. Future Medical

32 weeks of permanent partial disability from Employer

$\ 11,105.60

1. Second Injury Fund liability: Yes

61.6 weeks of permanent partial disability from Second Injury Fund

$\ 21,378.28

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: Dean Christianson

Employer/Insurer submitted as Exhibit 1, the deposition of Dr. Nogalski, but the original deposition transcript was mispaginated going from page 11 to page 13,14,15 in sequence, and then back to page 12 . I left the pages as they were but note the discrepancy for the record. Redacted records were submitted in their current form, not altered by the Court.

The issues presented by resolution by way of this hearing are accident, arising out of and in the course of employment, notice, the statute of limitations, the nature and extent of any permanent partial disability, the liability of the employer for past medical expenses in the amount of $\ 3,987.00, future medical care and the liability of the Second Injury Fund.

1. Claimant was born on December 31, 1946. Claimant is 6' 2" tall and weights 215 lbs. Claimant served in the Navy from 1960 to 1970 on an aircraft carrier off the coast of Vietnam. Claimant received an honorable discharge and went to work for St. Louis County where he has since worked for the next 34 years for the highway department from 1972 until his retirement in January 2007.
2. Claimant last worked for the highway department as an inspection supervisor at the end of his career. In this capacity Claimant would supervise inspectors of all different grades. Claimant's department would oversee the concrete contracts for the highway department. Claimant retired from St. Louis County when he was no longer physically capable of doing a good job.
3. On November 10, 2003, Claimant was on Buckley Road near a church and school with one of his junior

inspectors, Jeff Bond. Claimant and Jeff Bond were engaged in checking the alignment of the storm line. Claimant was standing on the curb inlet of the storm sewer drain to establish its elevation when Claimant stepped backwards off the storm sewer and into the sump. The sump is the ramp or inlet where water flows into the storm sewer.

1. Claimant then fell forward twisting his knee and striking it just below the kneecap on a concrete lid. Claimant's co-worker Jeff Bond helped him over to the truck. His knee had swollen up to the size of a grapefruit and was extremely painful.
2. Claimant filled out a medical accident form, called his supervisor on the cell phone and was immediately referred to personnel where he was directed to medical care.
3. It took about an hour before Claimant received medical attention, but he received treatment the same day at Unity Health on Gravois Road. Claimant was seen there three times. The first time Claimant received an examination and evaluation and was given some pain prescriptions. Claimant followed up with Dr. Rende in his office and the doctor performed some x-rays, examined the Claimant and released him. Claimant also received an MRI and some physical therapy and was seen at Unity Health on two more occasions.
4. Dr. Rende believes that Claimant has a degenerated osteoarthritic knee that was the result of prior injuries to his knee and that Claimant therefore suffered no permanent injuries as a result of the incident at work.
5. Claimant had a prior a tibia plateau fracture at the age of 24 after which Claimant was in a cast for seven months. Claimant healed extremely well and experienced no problems as a result of the injury.
6. At the age of 34, Claimant had a knee arthrotomy where the medial meniscus was removed in an open procedure.
7. Following these prior injuries to the left knee Claimant did extremely well physically and engaged in very competitive sports. He was a racquetball champion seeded number three in the state. Claimant also engaged in weight lifting. Claimant performed these activities up until the date of this accident.
8. Claimant could not hyperextend his knee following these two prior injuries, but Claimant could straighten it out to 180 degrees. Claimant was able to walk every inch of ten concrete subdivision streets on a near daily basis as he performed his job for the highway department.
9. After Claimant was released by Dr. Rende, Claimant had continuing knee problems. Claimant's pain increased on any activity, he had difficulty performing most of his job at work and co-employees would have to pick up the slack at work.
10. Claimant's knee would constantly give way over the next few years. In 2005, Claimant was mowing at his weekend property near the Lake of the Ozarks when Claimant was going backwards and his knee gave way. Claimant fell with his left foot going under the mower. Also, Claimant severed his great toe and injured the second toe.
11. Claimant's right leg now aches because of his altered gait. It is not clear that the altered gait follow as a result of the injured knee or because of imbalance accruing as a result of the severed toes. Claimant has to pitch to the right to clear the riser when he walks up steps and can no longer push a mower. Claimant now has a riding mower.
12. Exhibit I are the medical bills associated with the toe being severed and reattached. Claimant requests those be paid as being part of the claim.
13. Prior to these injuries Claimant had back problems and underwent a diskectomy at L3-4 and following that a second surgery where Claimant underwent a fusion with placement of a bone graft plug and rod. Claimant continues to experience numbness and tingling. His muscles are slower and he has difficulty lifting as a result of the back injury.
14. Dr. Rende believes that Claimant will need a knee replacement sometime in the future, but does not believe the

need for the knee replacement was in any way caused by any injuries that happened at work.

1. Dr. Nogalski also believes that the Claimant will need a total knee replacement, but does not believe the need for the surgery is related to anything that happened on the job.
2. Dr. Rende and Dr. Nogalski believe Claimant sustained a knee strain superimposed on a severely end-stage osteoarthritic knee. They assigned 0 % disability for the incident that happened at work.
3. An MRI was performed on December 4, 2003. It demonstrated that Claimant had a lateral meniscus tear which Dr. Rende and Dr. Nogalski believe reflected only generalized degeneration because Claimant had no swelling in the knee after the accident. They found that the ACL ligament was attenuated, that the posterior cruciate ligament was intact and that the collateral ligaments and patellar tendon were also intact. Thus, they concluded that because there was no swelling, Claimant's osteoarthritic condition was not work related and that Claimant had only a knee sprain which r