Melvin Boyers v. Ameren UE

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 05-085871

Employee: Melvin Boyers

Employer: Ameren UE

Insurer: Self-Insured

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

The above-captioned workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence and considered the whole record and we find 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, except as modified herein. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the April 20, 2010, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We believe the opinions of Drs. Lichtenfeld and Johnston establish that there is a reasonable probability that employee will need future medical care. We modify the award of future medical care to provide that employer/insurer shall provide to employee such future medical care as is reasonably necessary to cure and relieve him of the effects of his injury.

In all other respects, we affirm the award of the administrative law judge.

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.

The award and decision of Administrative Law Judge Maureen Tilley, issued April 20, 2010, is attached and incorporated by this reference except to the extent modified herein.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Melvin Boyers

Injury No. 05-085871

Employer: Ameren UE

Additional Party: Second Injury Fund

Insurer: Self Insured; TPA: Corporate Claims Management Inc.

Hearing Date: February 22, 2010

Checked by: MT/rf

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? August 26, 2005.
5. State location where accident occurred or occupational disease contracted: Stoddard 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 happened or occupational disease contracted: The employee was injured on August 26, 2005 after a storm. A pole had fallen down and they were dragging a new pole across a ditch. His left foot became tangled in some debris and he slipped and fell. The employee injured his left knee and eventually received a total knee replacement.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Left knee.
3. Nature and extent of any permanent disability: See findings.
4. Compensation paid to date for temporary total disability: $\ 31,632.30.
5. Value necessary medical aid paid to date by employer-insurer: $\ 67,712.10.
6. Value necessary medical aid not furnished by employer-insurer: None.
7. Employee's average weekly wage: $\ 1,221.60.
8. Weekly compensation rate:

Temporary total disability and permanent total disability: $\ 696.97.

Permanent partial disability: $\ 365.08.

1. Method wages computation: By agreement.
2. Amount of compensation payable: See findings.
3. Second Injury Fund liability: See findings.
4. Future requirements awarded: See findings.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Dean Christianson.

On February 27, 2007, a hearing for a temporary award was held. The Administrative Law Judge presiding over the case was Judge Carl Strange. In April of 2007, a temporary award was issued. In that award, the employer-insurer was directed to furnish additional medical aid and past temporary total disability benefits. On February 22, 2010, the employee, Melvin Boyers appeared in person and with his attorney, Dean Christianson, for a hearing for a final award. The Administrative Law Judge presiding was Judge Maureen Tilley. The employer was represented at the hearing by its attorney, John Dietrick. The Second Injury Fund was represented by attorney, Cliff Verhines. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to provisions of the Missouri Workers' Compensation Act and its liability was fully insured by Ameren UE c/o Corporate Claims Management, Inc.
2. On or about the date of the alleged accident the Claimant was an employee of Ameren UE and was working under the Workers' Compensation Act.
3. On or about August 26, 2005, the Claimant sustained an accident arising out of and in the course of his employment.
4. Employer had notice of the Employee's accident.
5. Employee's Claim was filed within the time required by law.
6. The average weekly wage was $\ 1,221.60 resulting in a TTD rate of $\ 696.97 and a PPD rate of $\ 365.08.
7. The employee's injury was medically causally related to accident or occupational disease.
8. The Employer/Insurer paid $\ 67,712.10 in medical benefits.
9. The Employer/Insurer paid $\ 31,632.30 in Temporary Total Disability benefits for approximately forty-three and three-sevenths weeks from October 5, 2005 through November 15, 2005; October 10, 2006 through February 27, 2007 and from May 20, 2007 to October 2, 2007.
10. The employee is not claiming additional or future medical aid
11. The employee is not claiming additional temporary total disability or temporary partial disability.

1. Additional medical care.
2. Permanent total disability.
3. Permanent partial disability benefits.
4. Liability of the Second Injury Fund.
5. Dependency.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A) Deposition of Dr. Hertel

B) Medical records of Orthopedic Associates

C) Medical records of MSH Family Medical

D) Medical records of HealthSouth

E) Medical records of Missouri Bone \& Joint

F) Medical records of Barnes West County Hospital

G) Certified records from Division of Workers' Compensation

H) Demand for medical care

I) Deposition of Dr. Lichtenfeld

J) Medical records of Parkcrest Orthopedics

K) Certificate of Marriage

Employer-Insurer's Exhibits

1. Deposition of Dr. Schafer
2. Deposition of Dr. Johnston
3. Medical records from Select Physical Therapy

Employee's Exhibits A-H and Employer-Insurer's Exhibit 1 were admitted into evidence on February 27, 2007 at the temporary hearing. At the final award hearing, ALJ took judicial notice of those exhibits. Those exhibits are therefore listed on the exhibit list.

- The employee's birthday is June 27, 1951. The employee was injured on August 26, 2005 after a storm. A pole had fallen down and they were dragging a new pole across a ditch. His foot became tangled in some debris and he slipped and fell, twisting his left knee and felt a pop and pain in his knee. He continued working until they finished the job. He then returned to the home office and reported the injury. Rather than continue working that day, he went home and rested his knee. On the next Monday, he was sent for medical care to the company physician, Dr. Fox. He was provided with a brace and placed on light duty. Eventually an MRI was performed and he was then referred to an orthopedic surgeon, Dr. Schafer.

- Dr. Schafer evaluated the employee and noted he had some pre-existing arthritis as well as acute tears of his medial and lateral meniscus. Dr. Schafer performed arthroscopic surgery on October 10, 2005 to repair the meniscus tears. The procedure included

menisectomies, chondroplasty, debridement and a synovectomy. After the surgery, the employee received physical therapy but continued to have ongoing complaints to his left knee. Dr. Schafer believed that part of the problem was going to be his pre-existing arthritis which he thought would slow his recovery.

- On January 17, 2006, Dr. Schafer opined that the employee was at maximum medical improvement and could work with permanent restrictions. He also noted that the employee sustained a permanent partial disability of 5 % of the knee.

- The employee continued to have problems with his knee and was evaluated by Dr. Ronald Hertel. Dr. Hertel opined that the injury of August 26, 2005 brought on the onset of symptoms and the need for a joint replacement and indicated that the employee was a candidate for a total knee replacement.

- Dr. Schafer later opined that a total knee replacement may help the employee but the need for a total knee replacement was a result of the pre-existing arthritis and therefore, he did not believe he needed further medical treatment to cure and relieve the effects of the August 26, 2005 injury.

- A temporary hearing was held on February 27, 2007 and treatment was awarded. The employee was referred to Dr. Richard Johnston for additional medical treatment. Dr. Johnston diagnosed severe degenerative joint disease of the left knee. On June 20, 2007 Dr. Johnston performed a left total knee replacement using Zimmer components. The post operative diagnosis was severe degenerative joint disease, medial compartment of the left knee.

- On July 24, 2007, Dr. Johnston noted that the employee had a good range of motion, good strength, near full flexion and good stability. Dr. Johnston took x-rays which showed the prosthesis was in good position and alignment. Dr. Johnston was pleased with his progress and recommended continued physical therapy.

- Dr. Johnston saw the employee on September 18, 2007 and at that time noted excellent range of motion of the left knee, good stability, and some moderate quadricep atrophy. Dr. Johnston indicated at that time he found out that there was light duty available which would involve driving and very light lifting. He subsequently changed his recommendation for two weeks of work hardening and re-evaluation in two weeks and probable return to light duty.

- Dr. Johnston re-evaluated the employee on October 2, 2007. At that time he noted that the employee had done very nicely with the work hardening program and that he had reached most of the requirements of his job description except for the requirement of constant standing and walking on uneven ground. He noted excellent range of motion and excellent strength in the left knee. He noted it was reasonable for him to return to light duty work with no squatting, no kneeling, no pole climbing, no constant standing for more than one hour and no shoveling.

- Dr. Johnston saw the employee again on November 13, 2007. At that time, he stated that he did not need further orthopedic follow up and was at the point of maximum medical improvement. He no