Anthony Darris v. St. Louis Connect Care

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-144182

Employee: Anthony Darris

Employer: St. Louis Connect Care (Settled)

Insurer: Commerce \& Industry Ins. Co. (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 July 9, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued July 9, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $4^{\text {th }}$ day of January 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

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) January 1, 2003
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? 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 was a Security Officer for Employer, who allegedly injured his feet from walking and standing during the course of his workday.
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: (alleged) Left Foot and Right Foot
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Anthony Darris Injury No.: 03-144182

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 392.61
3. Weekly compensation rate: $\ 261.74 for TTD/ $\ 261.74 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer previously settled its risk of liability in this case

1. Second Injury Fund liability:

None $\ 0.00

TOTAL:

$\underline{\$ 0.00}$

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: Mark L. Akers and Greg Kloeppel.

Employee: Anthony Darris

Dependents: N/A

Employer: St. Louis ConnectCare (Settled)

Additional Party: Second Injury Fund

Insurer: Commerce \& Industry Insurance Company

C/O AIG Domestic Claims, Inc. (Settled)

Injury No.: 03-144182

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On March 23, 2010, the employee, Anthony Darris, appeared in person and by his attorney, Mr. Mark L. Akers (on behalf of Mr. Greg Kloeppel), for a hearing for a final award on his claim against the Second Injury Fund. The employer, St. Louis ConnectCare, and its insurer, Commerce \& Industry Insurance Company C/O AIG Domestic Claims, Inc., were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorney General Da-Niel Cunningham. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about January 1, 2003, Anthony Darris (Claimant) has alleged an occupational disease claim.

2) Claimant was an employee of St. Louis ConnectCare (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 392.61, resulting in applicable rates of compensation of $\ 261.74 for total disability benefits and $\ 261.74 for permanent partial disability (PPD) benefits.

7) Employer paid no temporary total disability (TTD) benefits in this case.

8) Employer paid no medical benefits in this case.

1) Did Claimant sustain an occupational disease?

2) Did the occupational disease arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to his alleged exposure at work leading up to January 1 , 2003 ?

4) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this alleged injury?

5) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Deposition of Dr. Barry Feinberg dated March 6, 2009

B. Medical treatment records of Dr. Thomas Kirisits

C. Stipulation for Compromise Settlement for Injury Number 03-144182 (Date of Injury of January 1, 2003) between Claimant and Employer

D. Claimant's performance appraisals from Employer

E. Photographs of Claimant's feet

F. Claimant's job description from Employer

G. Certified medical treatment records of St. Mary's Health Center

H. Report of Dr. Barry Feinberg dated April 23, 2007

I. Deposition of Dr. Stephen Schuman, with attachments, dated August 5, 2009

II. Certified medical treatment records of Abbott \& Associates, Inc.

III. Deposition of Dr. Russell Cantrell dated March 12, 2008

IV. Certified medical treatment records of Dr. John Mellas

Notes: 1) Unless otherwise specifically noted below, any objections contained in these Exhibits are overruled and the testimony fully admitted into evidence.

2) Although Exhibits A and Roman Numeral III purported to have deposition exhibits attached to the them, there were no such deposition exhibits attached to those two Exhibits when they were admitted into evidence at trial.

3) Some of the records submitted at hearing contain handwritten remarks or other marks on the Exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on March 23, 2010.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the medical records, the Stipulation for Compromise Settlement between Claimant and Employer, and the other documentary evidence, as well as my personal observations of Claimant at hearing, I find:

1) Claimant is a 60-year-old, currently unemployed individual, who last worked for St. Louis ConnectCare (Employer) as a Security Officer until he left that employment in October 2005.

2) Claimant completed $11 / 2$ years of education in law enforcement at St. Louis Community College at Florissant Valley and Forest Park. He then graduated from the St. Louis Police Academy in 1970.

3) Following graduation from the St. Louis Police Academy, he worked for 11 years for the St. Louis Metropolitan Police Department. He first worked eight years as a Patrolman, and then the balance of his time there as a Detective. Claimant then went to work for the Pine Lawn Police Department. He worked two years as a Patrol Officer and in Traffic, and then worked the balance of his ten years in Pine Lawn in the Detective Bureau. He left Pine Lawn for more money, and became employed at the Breckenridge Hills Police Department. He worked there five years as a Patrol Officer. Then, Claimant spent six years at the Wellston Police Department. First, he worked a few months as a Patrol Officer, but then he spent the balance of his time there as a Detective. Claimant testified that after he left Wellston, he was unemployed for approximately six months, and then he became employed by St. Louis ConnectCare (Employer) in approximately January 2000.

4) Claimant testified that he suffered his first heart attack in 1996. He underwent an angioplasty procedure. He suffered his second heart attack in 1998, after which the doctors inserted a stent. Claimant had another heart attack in 2004, but was treated with only medications, no surgery. He also suffered three strokes in 1996, 1998 and 2008. He was diagnosed with high blood pressure in approximately 1998 and takes medications and aspirin for that condition. He also has a thyroid condition which was diagnosed in approximately 2002. Claimant has never been diagnosed with diabetes.

5) In approximately 2000, Claimant was diagnosed with chronic renal failure. About a year later he was put on a course of dialysis. Claimant said Employer put him on a

day shift so that he could do the dialysis at night. Claimant testified that he did have neuropathy in his toes, but not in the rest of his legs or feet, that he first noticed ten years prior (in the early 1990s) to the diagnosis of chronic renal failure. The chronic renal failure resulted in a kidney transplant on January 24, 2006. Claimant testified that he has been doing well with the transplant.

6) Claimant testified that he was employed by Employer as a Security Officer beginning in 2000. He was responsible for covering six different posts, some of them in the hospital and others on the various parking lots. The job description from Employer (Exhibit F) details the various duties Claimant was responsible for on a daily basis while working for Employer. Of note, the job description, under "Work Conditions" lists prolonged standing and walking as a part of the job. Claimant also testified that, indeed, he performed a lot of walking and standing on the job. He noted that he was specifically assigned to pick up the money, and it was after he had been doing that assignment that his foot problems started. He said that he was assigned to walk the whole hospital, not just stay at one post, and he had been doing that for a year to a year and a half when he developed the progressive onset of foot symptoms. He admitted that in the summer he wore black tennis shoes and in the winter he wore black combat boots. He testified that he had no prior issues with his feet and no prior problems with walking before going to work for Employer.

7) Claimant's performance appraisals from Employer (Exhibit D) span the years of 2000 through 2003 while Claimant worked as a Security Officer for Employer. In the earli