Darryl Hines v. Fedex Freight East, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-145139

Employee: Darryl Hines

Employer: Fedex Freight East, Inc.

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 November 17, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Grant C. Gorman, issued November 17, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $18^{\text {th }}$ day of May 2010.

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? 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? No
4. Date of accident or onset of occupational disease: Alleged April 6, 2004
5. State location where accident occurred or occupational disease was contracted: St. Charles 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? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
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: Claimant alleges injury to right knee from repetitive activity.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Alleged right knee
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

Employee: Darryl Hines Injury No. 04-145139

1. Value necessary medical aid not furnished by employer/insurer? $\ 0
2. Employee's average weekly wages: $\ 1,000.00
3. Weekly compensation rate: $\ 662.55 TTD/\$347.05 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

None

TOTAL:

None

1. Future requirements awarded: None

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:

Frank Niesen

Employee: Darryl Hines

Employee: Darryl Hines

Injury No: 04-145139

Dependents: None

Employer: Fedex Freight East, Inc.

Additional Party Second Injury Fund

Insurer: Self-Insured

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: GCG/ln

Hearing in the above referenced case was held June 22, July 14 and August 14, 2009, in the St. Charles office of the Division of Workers' Compensation before the undersigned Administrative Law Judge. Claimant Darryl Hines (Claimant) was present and represented by attorney Frank Niesen. Employer Walgreens (Walgreens) and its Insurer American Manufacturers Mutual Insurance Company (Insurer) were represented by attorney Jennifer YatesWeller. Employer FedEx Freight East, Inc. (FedEx), which is self insured, was represented by attorney Constance Warner. The Second Injury Fund (SIF) was represented by Assistant Attorney General Caroline Bean. The evidentiary hearing was held in conjunction with injury \# 02-010878, in which Claimant is proceeding against Walgreens.

The parties entered into the following stipulations:

1. Claimant was an employee of Employer pursuant to Chapter 287 RSMo. on April 6, 2004.
2. Venue is proper in St. Charles County.
3. Claimant earned an average weekly wage of $\ 1,000.00 resulting in applicable rates of compensation of $\ 662.55 for total disability (TTD) benefits and $\ 347.05 for permanent partial disability (PPD) benefits.
4. Employer has not paid any benefits to date.

The following issues were presented for resolution in this hearing:

1. Notice.
2. Accident/occupational disease.
3. Arising out of and in the course of employment.

1. Medical causation.
2. Employer liability for past medical care.
3. Employer liability for future medical care.
4. Is Claimant entitled to TTD benefits from April 1, 2005 to February 15, 2006?
5. Nature and extent of Claimant's disability.
6. Liability of the SIF.

Only evidence necessary to support this award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. Certain exhibits offered into evidence may contain handwritten markings, underlining and/or highlighting on portions of the documents. Any such markings on the exhibits were present at the time they were offered by the parties. Further, any such notes, markings and/or highlights had no impact on any ruling in this case.

The following exhibits were offered by Claimant:

Exhibit A - DePaul Health Center Records

Exhibit B - Northland Orthopedic Records

Exhibit C - HealthSouth Records

Exhibit D - Bridgeton MRI and Imaging

Exhibit E - St. Mary's Health Center Records

Exhibit F - St. Mary's Health Center Billing

Exhibit G - Signature Health, Mid County Records

Exhibit H - Signature Health, Mid County Billing

Exhibit I - City Point Surgical Records and Billing

Exhibit J - St. John's Mercy Medical Center Records

Exhibit K - St. John's Mercy Medical Center Billing

Exhibit L - SSM Rehab Records

Exhibit M - SSM Rehab Billing

Exhibit N - Allied Behavioral Consultants Records

Exhibit O - Christopher LaBonte, M.D. Records

Exhibit P - Alan M. Jacobs, D.P.M. Records

Exhibit Q - Massachusetts Hospital and ER Records

Exhibit R - David T. Volarich, D.O. Deposition

Exhibit S - Edwin D. Wolfgram, M.D. Deposition

Claimant's exhibits were received into evidence without objection.

Exhibit 1 - Northland Orthopedic 03/26/02 Record

Exhibit 2 - Wage/TTD documents

Exhibit 3 - Dr. James Burke Deposition

Exhibit 4 - Dr. Stacey Smith Deposition

Exhibit 5 - DWC Notice of Commencement/Termination of Compensation

Exhibit 6 - Wage Statement

Each of the exhibits, with the exception of Exhibit 2, was received into evidence without objection. Claimant made an objection to Exhibit 2, based on hearsay. The ruling on said objection was deferred until this Award. As Walgreens provided no further foundation for the admission of Exhibit 2, the objection is sustained, the admission of Walgreen's Exhibit 2 is denied.

FedEx offered the following exhibits:

Exhibit 1 - Deposition of Dr. Michael Nogalski

Exhibit 2 - Deposition of Dr. Stacey Smith

Exhibit 3 - Deposition of Darryl Hines dated December 16, 2005

Exhibit 4 - St. Mary's Hospital ER records

Exhibit 6 - Claim for Compensation dated June 11, 2005

Exhibit 7 - Statement of Darryl Hines

Exhibit 8 - Injury Investigation Report

Exhibit 9 - Missouri Division of Employment Security Tribunal

Exhibit 12 - FedEx Freight Associate Handbook

Exhibit 13 - Photos

Exhibit 14 - DVD

Exhibit 15 - Operations Comprehensive Assessment Results

Exhibit 16 - Correspondence dated February 15, 2006

Exhibit 17 - Photos

Exhibit 18 - Deposition of Darryl Hines dated November 5, 2004

The exhibits offered by FedEx were received into evidence. All deposition transcripts were received subject to objections made at the time of the deposition. The exhibits offered by the Employers are marked with both the name of the Employer and the exhibit number.

The relevant evidence is summarized based on the above exhibits and the testimony of the witnesses. Mr. Hines testified that he is 6 ' 3 " tall and weighs 235 lbs . He has been with his companion, Sandra, for 25 years though they are not legally married. He has 5 children and 2 step-children, 3 of which live at home with him. He had 2 daughters who were killed in a motor vehicle accident in February 1997.

Mr. Hines completed the $11^{\text {th }}$ grade and has vocational training in retail sales and market merchandising. He was in the Army and received a dishonorable discharge after he was absent without leave. The Employee testified that he began working at Walgreens in September 2002 as an assistant manager in the training program. On February 17, 2002, he was stepping off of a ladder when he twisted his right knee.

Mr. Hines was initially seen at SSM DePaul Health Center on the date of the injury. He provided a history of twisting his right knee after stepping down off of a ladder at work. He denied any other injury. X-rays revealed mild degenerative changes with no evidence of fracture or dislocation and he was diagnosed with a sprained right knee. (Ex. A) Mr. Hines was referred to Dr. Crystal Knierim and seen on February 19, 2002. He provided a history of putting all of his weight on his right knee as he was coming down off of a ladder. Dr. Knierim diagnosed right knee effusion and recommended an MRI. (Ex. B)

The MRI was performed on February 21, 2002 and showed a tear of the medial meniscus and osteoarthritis. He underwent surgery on March 11, 2002 at North County Surgery Center. The procedure performed was a right knee arthroscopy with partial posterior horn meniscectomy and chondroplasty of the medial and lateral femoral condyles as well as the femoral trochlea. Dr. Knierim noted fairly significant chondromalacia changes in both the medial and lateral femoral condyles, Grade II and III with flaking of the cartilaginous surface. (Ex. B)

Mr. Hines was seen in follow up with Dr. Knierim and attended post-operative physical therapy at HealthSouth. He was last seen by Dr. Knierim on April 16, 2002 at which time his therapy was extended. (Ex. B) Mr. Hines' care was then transferred to Dr. James Burke. Dr. Burke first evaluated Mr. Hines on May 20, 2002. His examination and x-rays revealed findings consistent with his post-arthroscopy status in addition to signs of arthritis and chondromalacia, which is rough cartilage on the undersurface of the bone and is the early stages of arthritic change. He provided Mr. Hines with an injection to the knee and ordered continued physical therapy. (Walgreens Ex. 3)

Dr. Burke eventually recommended a functional capacity evaluation but Mr. Hines did not attend per the advice of his attorney. Dr. Burke last saw Mr. Hines on August 19, 2002, six months after the injury. Mr. Hines felt his knee had gotten to a point where he could deal with it at work, full duty. Physical examination revealed full extension and flexion, a negative McMurray's sign (which is a sign for torn cartilage), and no point tenderness on the medial or lateral joint line. Overall, Dr. Burke thought he looked good and provided him with a full duty work release indicating he had reached maximum medical improvement. On November 27, 2002, Dr. Burke issued a permanent partial disability rating of 10 % of the right knee, 5 %