Taylor Poole v. City of St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-055173

Employee: Taylor Poole

Employer: City of St. Louis

Insurer: Self-Insured c/o CCMSI

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 April 23, 2009. The award and decision of Administrative Law Judge Matthew D. Vacca, issued April 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 $23^{\text {rd }}$ day of November 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Taylor Poole

Departments: $\mathrm{n} / \mathrm{a}$

Employer: City of St. Louis

Additional Party: None

Insurer: Self c/o CCMSI

Hearing Date: February 19, 2009

Injury No.: 02-055173

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:MDV:cw

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 27, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 occurred or occupational disease contracted: Employee tripped over tines of a fork lift.
12. Did accident or occupational disease cause death? No Date of death?
13. Part(s) of body injured by accident or occupational disease: Left ankle, right ankle, left wrist, cervical spine
14. Nature and extent of any permanent disability: 45 % left ankle, 10 % right ankle, 10 % left wrist, 5 % cervical spine
15. Compensation paid to-date for temporary disability: $\ 13,886.00 plus an advance payment of $\ 10,000.00, with a TTD underpayment of $\ 2,472.90
16. Value necessary medical aid paid to date by employer/insurer? $\ 45,668.24

Employee: Taylor Poole Injury No.: 02-055173

1. Value necessary medical aid not furnished by employer/insurer? Nil
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\$ 371.00 / \ 329.04
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

None

weeks of temporary total disability (or temporary partial disability)

$\ 2,472.90 (underpayment)

122.75 weeks of permanent partial disability from Employer

Equals $\ 40,389.66 less $\ 10,000 advance

1. Second Injury Fund liability: No

TOTAL:

$\ 32,862.56

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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Charles Bobinette

Employee: Taylor Poole

Injury No.: 02-055173

Dependents: $\mathrm{n} / \mathrm{a}$

Employer: City of St. Louis

Additional Party: Second Injury Fund

Insurer: Self c/o CCMSI

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDV:cw

Two claims were tried together, Injury Nos. 02-055173 and 03-062880. Pursuant to 8 C.S.R. 203.050 (1)(2) and (3) the claims are inextricably intertwined and resolution of one requires resolution of the other. As Claimant's 2002 injury and his 2003 injury were heard contemporaneously, the following findings incorporate both claims. Nevertheless, two separate awards will issue out of one transcript which shall remain in the designated master file, earlier claim \# 03-062880. The parties agree that Claimant is entitled to an additional \$2,472.90 in TTD and that an advance against future payments was made to Claimant in the amount of $\ 10,000.00 for which Employer is entitled to a credit.

The parties stipulated the issues to be resolved by way of this hearing are whether Claimant's condition is medically and causally related to his injury and the nature and extent of Claimant's permanent partial disability.

Based upon the testimony, all of the competent and substantial evidence, my observations of Claimant at trial and the reasonable inferences to be derived therefore, I find:

1. Claimant is a 54 year-old male who is 5 ' 8 " tall and weighs 180 pounds. He is a high school graduate with some junior college. His employment history consists mainly of labor types of jobs. Claimant worked for Employer at various times over the years. In 2002, he worked for Employer in maintenance at the airport. He repaired runways, drove snow plows and large equipment and kept the field drains open. His duties required he be able to lift 75 pounds, and he was on his feet all day.
2. Claimant married Donetta Kee September 8, 2008.
3. On April 27, 2002, Claimant was operating a forklift and tripped over the tines of the lift. He injured his left ankle and sustained a trimalleolar fracture. Dr. Weiss performed three surgeries on Claimant's left ankle. Dr. Gary Schmidt performed a fourth surgery to remove the hardware.

1. During his convalescence for this injury, Claimant tripped in his bathroom and injured his back. He was treated and had physical therapy. Claimant testified he had no back complaints prior to this episode. The back pain was transient and claimant admitted it completely resolved.
2. On July 22, 2002, Dr. Weiss diagnosed Claimant with carpal tunnel syndrome from use of his crutches. Claimant had limited treatment for his hand complaints, and no further recommendations were made. After the use of crutches stopped, claimant's carpal tunnel symptoms resolved. Claimant was involved in a motor vehicle accident later in April 2005, after which he had consistent complaints of numbness tingling and waking up at night with regard to his hands. Claimant's expert, Dr. Schlafly, examined Claimant after the motor vehicle accident and testified a portion of the carpal tunnel condition is attributable to an April 19, 2005, motor vehicle accident. Dr. Schlafly rated Claimant's disability at 30 % of each wrist, with 10 % attributable to crutches use after the April 27, 2002, injury.
3. Claimant was released to return to work December 3, 2002 from the first accident. He had complaints at that time with his ankle, general back pain and bilateral hand pain. Claimant testified his co-workers helped him with bending and lifting.
4. In January 2003, while Claimant was receiving authorized treatment from Employer's selected physicians, Claimant's attorney sent him to Dr. Knapp for his ankles and back. There is no indication as to when, if ever, Employer became aware of treatment with Dr. Knapp.
5. Dr. Weiss released Claimant to return to work July 9, 2003. He rated Claimant's disability at 30 % of the left ankle.
6. Claimant's second work injury occurred June 24, 2003. He injured his low back while lifting an auger from a drum. He felt pain in his low back and around his hips. There was no radiation into the legs.
7. Claimant treated with Dr. Lee and was diagnosed with strain/sprain of the lumbar spine. He was off work and paid TTD benefits until October 1, 2003. The Concentra Medical records indicate no complaints of radiating pain on examinations of June 24 and June 30, 2003. Dr. Lee testified Claimant gave no history of, nor complaints of pain into the left extremity until an intervening episode which occurred at Claimant's home in August, 2003. At that time, Claimant injured his low back while flipping a mattress. He had an increase in low back symptoms and for the first time reported leg pain radiating into his left leg. Claimant denied the mattress episode in deposition, but at Hearing, he remembered the episode.
8. An MRI taken August 23, 2003, after the mattress flipping incident showed a small lateral protrusion in the inferior recess of the left foramen, which contacts the left L4 root. (Dr. Lee's deposition, p. 21, 22) Dr. Lee testified this protrusion didn't appear to be displacing the root or denting the root or causing swelling of the root. Claimant underwent steroid injections.

1. On September 15, 2003, Claimant was involved in an automobile accident. He was rearended by a vehicle going 40 to 45 miles per hour. He testified he injured his neck, his shoulder, and the same part of his low back. Claimant testified this was a "temporary exacerbation", and he saw Dr. Knapp twice. Claimant testified he had pain on the outside of his left leg to the calf.
2. Claimant treated with Dr. Lee from July 18, 2003 through October 1, 2003. Dr. Lee ordered a functional capacity evaluation (FCE), which was done September 26, 2003, and showed Claimant was able to work at the medium demand level. Based on the FCE results, Dr. Lee released Claimant to return to work October 1, 2003, with a 25 pound lifting restriction. He diagnosed Claimant with degenerative disc disease in the low back. He rated Claimant's disability at 1 % of the low back attributed to the work injury and 3 % of the low back attributed to his degenerative arthritic condition.
3. Claimant was laid off from Employer October 4, 2003, due to lack of funds. He drew unemployment compensation December 6, 2003, through the week of March 27, 2004. He has not had meaningful employment since that time. Claimant attributes his lack of employment to his injuries, including the two automobile accidents, which have left him with limitations and pain in his low back and left leg.
4. Claimant did not return to Dr. Lee at any time after the lay off, nor did he seek additional authorized treatment. Neither Dr. Schmidt, Dr. Lee, nor Dr. Weiss told Claimant he could not work. Claimant has not worked steadily since his lay off.
5. Claimant treated with Dr. Knapp for pain in the left ankle, neck, left wrist and low back. Dr. Knapp referred Claimant to Dr. Chen for pain management. Dr. Chen treated Claimant with injections, therapy, and medications at ProRehab and the Rehabilitation Institute. Claimant treated with Dr. Chen until 2005 when his COBRA ran out. He then went to CHIPS clinic from February 9, 2005, until October 2, 2006. Claimant also saw an acupuncturist, Dr. Kim. In October 2006, Dr. Knapp took over treatment and continues to see Claimant monthly for his back and ankle. There is no evidence Employer was aware of any of this treatment nor that the employer denied Claimant further treatment. Claimant never asked for additional treatment and testified he did not speak to anyone at Employer after his lay off in October 2003.
6. During the course of Claimant's unauthorized back treatment, he was involved in another auto accident. This occurred in April 2005. Claimant injured his upper back, right knee, and hands.
7. Claimant te