James Taylor v. City of Kansas City, Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-031687

Employee: James Taylor

Employer: City of Kansas City, Missouri

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 23, 2009. The award and decision of Administrative Law Judge Mark S. Siedlik, issued July 23, 2009, 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 $\frac{4^{\text {th }}}{}$ day of November 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: James Taylor

Injury No. 03-031687

Dependents: N/A

Employer: City of Kansas City, Missouri

Insurer: Self-Insured

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: May 12, 2009

Checked by: MSS/lh

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: April 2, 2003.
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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, self insured by City of Kansas City, Missouri.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was involved in altercation with an inmate while attempting to subdue him, and was knocked to the ground, with other guards and the inmate falling on top of him.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Body as a whole.
14. Nature and extent of any permanent disability: Permanent and total disability.
15. Compensation paid to-date for temporary disability: $\ 115,393.38

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Taylor

1. Value necessary medical aid paid to date by employer/insurer? $\ 145,654.57
2. Value necessary medical aid not furnished by employer/insurer? None to date.
3. Employee's average weekly wages: $\ 649.32.
4. Weekly compensation rate: $\$ 483.69 / \ 340.12
5. Method wages computation: Mo. Rev. Stat. §287.250.1(5).

1. Amount of compensation payable: Permanent and total disability, the responsibility of the Employee/Insurer.
2. Second Injury Fund liability: None

TOTAL: To be determined.

1. Future requirements awarded: Future medical care, weekly benefits for Claimant from Employer/Insurer.

Said payments to begin upon date of award 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. T K Thompson.

On May 12, 2009, the employee and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The employee, James Taylor appeared in person and with counsel, T. K. Thompson. The employer appeared through counsel, Anthony Bush. The Second Injury Fund appeared through Assistant Attorney General, Maureen Shine. This is an alleged permanent total disability case. The primary issue the parties requested the Division to determine was whether or not Mr. Taylor is permanently and totally disabled and whether City of Kansas City, Missouri or the Second Injury Fund has any liability for permanent total disability benefits. For the reasons outlined below, I find that James Taylor is permanently and totally disabled from the 4/2/03 last accident in isolation, and therefore, I find that The City of Kansas City, Missouri is liable for permanent total disability benefits and that there is no permanent total disability liability assessed against the Second Injury Fund.

The parties stipulated that:

1. On or about April 2, 2003 ("the injury date"), the Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Law with its liability self insured by the City;
2. Mr. James Taylor was its employee operating under and working subject to the Missouri Workers' Compensation Law; at the time of injury, he was working in Kansas City, Missouri;
3. Mr. Taylor filed his claim within the time allowed by law; and gave proper notice to the Employer in a timely manner;
4. Employee's compensation rate is $\$ 483.69 / \ 340.12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Taylor

1. Past temporary total disability benefits of $\ 115,393.38 representing 239 6/7 weeks have been paid by the Employer.
2. Medical benefits have been provided by Employer totaling $\ 145,654.57.

The parties requested the Division to determine:

1. The nature and extent of disability; whether James Taylor is permanently and totally disabled; and whether James Taylor is permanently and totally disabled by either the April 2, 2003 injury in isolation or the combined effects of pre-existing disabilities with the April 2, 2003 injury.
2. Whether James Taylor is entitled to future medical benefits.

James Taylor

None

None

Exhibits A through C were admitted into evidence.

Exhibits 1 through 7 were admitted into evidence.

Exhibit A, Deposition of claimant, James Taylor was admitted into evidence.

Based on the above exhibits and the testimony of James Taylor, I make the following findings.

James Taylor is a 52 year old man who lives with his wife at 5040 N.E. $56^{\text {th }}$ Place, Kansas City, Mo. 64119. He is a 1975 graduate of North Kansas City High School, and completed two years of college courses at Central Missouri State University in Warrensburg, Missouri. He was majoring in Music. He has a law enforcement background, having completed training in first aid, security, and carrying concealed weapons.

On 4/2/03 Mr. Taylor was employed by the City of Kansas City, Missouri at the city jail, the Municipal Correctional Institution, as a correctional officer/security guard. His job required driving a bus, picking up inmates from police departments, transporting inmates to jail and checking them in, which involved taking their money and their clothes, and giving out uniforms and bed linens. He ran the inmate commissary which involved stocking shelves with food, selling food to the inmates, logging the inmates' money in and out of the computer, watching the inmates, and returning clothes and property to inmates who were leaving the jail. During the course of a day, claimant stood, walked, pushed, pulled, bent, drove, reached overhead and lifted from one to thirty pounds. He was under the restrictions from Joseph Ketcherside, M.D., including: no lifting greater than 30 pounds; no prolonged sitting or standing; and no repetetitive bending or twisting. The claimant was required to take a pre-employment physical prior to employment with the City, and was allowed to work without restrictions, including "the yard", despite numerous prior lower back surgeries and four left knee surgeries.

On 4/2/03, while handing out clean clothes to inmates, an un-restrained inmate, a 23 year old male, 5'10" tall and 160 pounds allegedly didn't like the wash cloth that he was given, and threw it into another officer's face. He then snapped a towel into Mr. Taylor's face. The claimant and another officer tried to restrain the inmate, but the inmate broke free and ran down the hall. The claimant called for assistance and 2 more officers blocked the inmate at the end of the hallway. Then, all four officers, including the claimant, were wrestling with the inmate. The inmate and someone else stepped on the claimant's left foot. Then everyone fell on the claimant. The total combined weight was approximately 1300 pounds. The claimant fell through the doorway, landing flat on his back, with his right knee flexed and in a valgus direction, and he struck his posterior skull. The claimant was in severe pain in his low back and could not move his right leg. He was transported to North Kansas City Hospital by ambulance, and underwent a CT scan, and X-rays. He was told that he had a torn right ACL, and was placed in a knee brace and referred to Jonathan Blake, D.O. He told Dr. Blake about his low back pain, but was not referred to anyone else at that point. Dr. Blake placed him in an immobilizer, gave him medications, and prescribed him to undergo physical therapy for two days at North Kansas City Hospital, with no relief of his symptoms. He then underwent a right knee allograft hamstring ACL reconstruction at St. Mary's Hospital, on May 15, 2003. Post operatively, he underwent physical therapy at SERC for approximately five months for his right knee and low back pain. During physical therapy, he had a new onset of right lower extremity pain, cramping, numbness, tingling and right buttock burning sensation. He was referred to Dr. Zarr for his low back pain. At this point, he was five months post-right ACL reconstruction. He had symptoms of right knee

instability, swelling, low back pain, right foot cramping, but denied calf cramping, numbness or tingling to either foot. He was treated by Dr. Zarr, and was advised that the back pain was secondary to his gait. He was recommended to have a right total knee replacement, and to continue with Dr. Blake and physical therapy.

In October 2003 claimant underwent a Functional Capacity Evaluation at SERC, following which Dr. Zarr gave him a 5\% BAW rating and advised him to follow up with Dr. Blake. He was returned to work on light duty. However, he was advised by his employer that there was no position available that could accommodate light duty restriction. Dr. Blake referred him to North Kansas City Pain Management Clinic. He underwent an EMG by Dr. Hollenbeck and returned to Dr. Charapata, who ordered X-rays and a CT scan. On December 17, 2003 he had a $2^{\text {nd }}$ spinal cord stimulator inserted at Heartland Spinal Hospital. Thereafter, in 2004, claimant underwent two epidural steroid injections under the direction of Dr. Charapata, without subjective relief. On 10/10/05 claimant underwent an elective primary left total knee arthroplasty by orthopedic surgeon, William Bohn, M.D. In 11/05, when leaving his home to go to his first post-operative appointment with Dr. Bohn, following his left primary total knee arthroplasty, he slipped and fell on an icy d