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David Porting v. Contractors and Municipal Sweeping

Decision date: June 17, 201022 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award denying all workers' compensation benefits to David M. Porting for an occupational disease (infected blister on right big toe) that occurred on March 1, 2003. Although the injury was found to be compensable and work-related, no compensation was awarded due to the finding that there was no permanent disability or temporary disability warranting benefits.

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This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

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Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-054540

Employee: David M. Porting

Employer: Contractors and Municipal Sweeping (Settled)

Insurer: TIG Insurance Company (Settled)

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 December 1, 2009, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Grant C. Gorman, issued December 1, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Employee:David M. PortingInjury No. 03-054540
Dependents:NoneBefore the
Employer:Contractors and Municipal Sweeping (Settled)DIVISION OF WORKERS'
Additional Party: Second Injury FundCOMPENSATION
Insurer:TIG Insurance Company (Settled)Department of Labor and Industrial
Hearing Date:August 26, 2009Relations of Missouri
Jefferson City, Missouri

FINDINGS OF FACT AND RULINGS OF LAW

  1. Are any benefits awarded herein? No
  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: March 1, 2003
  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? 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: Claimant developed a blister which became infected.
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: Right big toe
  14. Nature and extent of any permanent disability: None
  15. Compensation paid to-date for temporary disability: Not applicable
  16. Value necessary medical aid paid to date by employer/insurer? Not applicable

Employee: David M. Porting Injury No. 03-054540

  1. Value necessary medical aid not furnished by employer/insurer? Not applicable
  2. Employee's average weekly wages: Sufficient to qualify for maximum rates of compensation.
  3. Weekly compensation rate: $\ 649.82 TTD/\$340.12 PPD
  4. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable: $\ 0
  2. Second Injury Fund liability:

No

The Claim against the Second Injury Fund is denied.

TOTAL:

$\ 0

  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:

James Logan

Employee: David M. Porting Injury No. 03-054540

FINDINGS OF FACT and RULINGS OF LAW:

Employee:David M. PortingInjury No: 03-054540
Dependents:NoneBefore the
Employer:Contractors and Municipal Sweeping (Settled)DIVISION OF WORKERS'
Additional PartySecond Injury FundCOMPENSATION
Insurer:TIG Insurance Company (Settled)Department of Labor and Industrial <br> Relations of Missouri <br> Jefferson City, Missouri

Checked by: GCG/In

PRELIMINARY STATEMENT

A hearing was held before the undersigned ALJ in the above referenced case on August 26, 2009 in the St. Charles office of the Division of Worker's Compensation. Claimant was present, and represented by James Logan. The cases against Employer and Insurer were previously settled. The Second Injury Fund (SIF) is a party and is represented by Assistant Attorney General Laura Wagener. The hearing in this case was held in conjunction with Injury No. 03-124837.

Claimant and SIF entered into the following stipulations: Claimant sustained an accidental injury arising out of and in the course of employment on March 1, 2003; venue is proper in St. Charles County, Missouri; Employer received proper notice of injury; the Claim was filed in a timely manner; Claimant's average weekly wage was above the statutory maximum rate, resulting in applicable rates of compensation of $\ 649.32 for total disability and $\ 340.12 for permanent partial disability (PPD); and Claimant reached maximum medical improvement (MMI) on June 10, 2003.

The following issues are presented for determination: Nature and extent of disability from the primary work injury; and liability of Second Injury Fund for permanent total or permanent partial disability.

SUMMARY OF THE EVIDENCE

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. The exhibits offered by the parties were received into evidence without objection. 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.

Claimant testified at hearing. Claimant testified he began working for Employer operating a street sweeper in 1995. Prior to 1995, he was employed as a delivery driver.

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** David M. Porting

**Injury No.:** 03-054540

Sometime prior to March 2003, Claimant developed a blister on his right big toe from the rubbing of his work boots. He indicates he had a callus on the toe for a period of time before the blister developed. Eventually the condition became painful and Claimant sought medical treatment.

Claimant's treatment history is summarized from his testimony and the medical records and reports. Mr. Porting sought treatment at Barnes Jewish Hospital on March 27, 2003, for a complaint of a toe callous that wasn't healing. An x-ray showed mild osteoarthritis at the interphalangeal joint of the first toe, but no fractures or dislocations. Claimant was assessed with abscess/cellulitis of the right foot. Mr. Porting was then admitted to the hospital due to cellulitis. On March 28, 2003, he underwent an MRI of the right great toe which revealed osteomyelitis of the distal phalanx of the right great toe and osteoarthritis of the right first metatarsal phalangeal joint.

Claimant required long-term course of antibiotics due to his osteomyelitis. He underwent Hohn catheter placement on March 30, 2003. Claimant was discharged from the hospital on April 4, 2003, with the diagnosis of osteomyelitis of the ankle/foot, ulcer of the foot, unspecified cellulitis and abscess of the toe. He was released with instructions to continue taking medications.

Claimant was released back to work with no restrictions on June 10, 2003. He testified that after he was released from care, his diabetes, which was problematic during treatment, was brought back under control. He further testified he was able to go back to work and had no ongoing physical difficulties from the March 2003 injury.

On July 24, 2003, Claimant was injured while attempting to adjust the deck of the street sweeper he was operating. The chain holding the rear skid slipped off a bolt which was holding it up, and the skid dropped onto his right second toe.¹

Claimant returned to Dr. Polish, an infectious disease specialist, on July 29, 2003, and it was noted his foot had healed and was doing much better until being struck with the metal plate. He was treated with Bactrim DS and was sent for an x-ray of the foot, which revealed osteoarthritis of the MTP, interphalangeal joint and sesamoid-metatarsal joint of the great toe. The film also showed bunionectomy defect, but there was no fracture demonstrated of the first or second toe. Mr. Porting then sought treatment at Barnes Jewish Hospital Emergency Room on August 7, 2003, for a complaint of right second toe pain. An x-ray of the right foot revealed soft tissue swelling, distal aspects 2nd toe right foot without underlying bony destruction; bunionectomy defect right foot; osteoarthritis of the metatarsal phalangeal joint and interphalangeal joint of the great toe of the right foot; osteoarthritic changes of the mid foot and dorsal soft tissue swelling is noted of the right foot.

Mr. Porting was then admitted to Barnes Jewish Hospital due to an abscess or possible osteomyelitis of the second toe. He underwent an MRI of the lower extremity the next day which reported: Right second toe ulcer with associated new focus of osteomyelitis involving the distal

¹ The injury described here is the subject of Injury No. 03-124837, the hearing for which was held in conjunction with the instant case.

WC-32-R1 (6-81)

Page 4

phalanx with second toe. There is no non viable bone and no abscess; improving osteomyelitis of the great toe distal phalanx; and progressive tearing of the flexor hallucis longus tendon which shows now a high grade partial rupture at the level of the sesamoids.

On August 9, 2003, Claimant underwent a Hohn catheter placement and he was discharged from the hospital the next day to continue on intravenous Ceftriaxone. Claimant was admitted to Barnes Jewish Hospital again on August 24, 2003, due to right neck pain and fever. An x-ray of the chest showed the lungs were well expanded and clear bilaterally without infiltrates, nodules or effusions. The film revealed no pneumothorax or edema, but there was a mildly tortuous aorta. Cardiac silhouettes were normal and the right internal jugular Hohn catheter was seen with its distal tip overlying the superior vena cava.

Claimant was discharged from the hospital on September 3, 2003, with the diagnosis of right upper extremity septic thrombophlebitis with right upper extremity deep venous thrombosis, coagulase-negative staphylococcus bacteremia related to the Hohn, right upper extremity deep venous thrombosis, and chronic pain syndrome. His discharge medications included intravenous Vancomycin, Lovenox, and Flagyl. Claimant returned to Dr. Polish on September 30, 2003, and was advised to continue his antibiotics for right foot osteomyelitis. It was also suggested he continue the Lovenox and Coumadin for his right upper extremity deep venous thrombosis. On October 16, 2003, Claimant underwent a left upper extremity venography and single lumen PICC line placement due to his PICC line breaking apart after getting caught in a laundry basket. He then continued to follow up with Dr. Polish and on November 18, 2003, and it was noted his osteomyelitis had healed. His Hohn catheter was then removed and he was scheduled for PICC line removal on November 21, 2003.

Claimant testified after his toe healed, he was released from care, but never returned to work for Employer. He testified he was advised by Dr. Polish that he should not return to heavy work while he was still taking blood thinners. Claimant has not returned to work since being released in November, 2003.

Claimant testified regarding his preexisting back and neck injuries. In 1991, he injured his back, and he reinjured it in 1993. He ultimately had to have a fusion at L5-S1. During his physi

Full decision text continues in the plain-text archive copy.

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