Kent Spies v. Altivity

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-107465

Employee: Kent Spies

Employer: Altivity

Insurer: ACE American Insurance/Crawford \& Company

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 September 20, 2010. The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 20, 2010, 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 $\qquad 9^{\text {th }} \qquad$ day of February 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: November 9, 2006
5. State location where accident occurred or occupational disease contracted: Franklin 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 adjusting stacks of cardboard when he felt pain in his left shoulder.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: Left shoulder
14. Nature and extent of any permanent disability: 30 % permanent partial disability to the left shoulder
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 1,505.40
17. Value necessary medical aid not furnished by employer/insurer? $\ 16,611.53

1. Employee's average weekly wages: 966.83
2. Weekly compensation rate: 643.90/$376.55
3. Method wages computation: By agreement

1. Amount of compensation payable:

1. Second Injury Fund liability: Yes
2. 13.34 weeks of permanent partial disability from Second Injury Fund: 5,023.18

TOTAL: 81,144.42

1. Future requirements awarded: None.

Each of said payments to begin immediately 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% which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mark Rudder, Esq.

Employee: Kent Spies

Injury No.: 06-107465

Dependents: N/A

Employer: Altivity

Additional Party: Second Injury Fund

Insurer: ACE American Insurance/Crawford \& Company

Hearing Date: August 11, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of a work-related injury in which the claimant, a pressman at a printing firm, alleges that he injured his left shoulder while adjusting and moving a stack of cardboard. His employer has denied liability and paid only nominal benefits to date. The issues for determination are (1) Medical causation, (2) Liability for Past Medical Expenses, (3) Temporary Disability from December 6, 2006, to March 3, 2008, (4) Permanent disability, (5) Second Injury Fund liability, (6) mileage, and (7) Costs and Attorney Fees under Section 287.560, RSMo 1994. The evidence compels an award for the claimant for medical expenses, future medical care, temporary total disability benefits, and costs.

At the hearing, the claimant testified in person and the parties offered the following exhibits, all of which were received in evidence:

Employee's Exhibits:

A. Medical records from Select Physical Therapy.

B. Medical records from St. John's Mercy Corporate Health.

C. Medical records from Unity Corporate Health.

D. Medical records from Washington University Medical School, Orthopaedic Surgery, set 1 of 4.

E. Medical records from Washington University Medical School, Orthopaedic Surgery, set 2 of 4.

F. Medical records from Washington University Medical School, Orthopaedic Surgery, set 3 of 4.

G. Medical records from Washington University Medical School, Orthopaedic Surgery, set 4 of 4.

H. Medical records from Patients First Health Care set 1 of 2.

I. Medical records from SSM Rehab.

J. Medical records from St. Anthony's Medical Center.

K. Medical records from Tesson Heights Orthopaedic \& Arthroscopic Associates.

L. Medical records from Patients First Health Care set 2 of 2.

M. Billing statement from Select Physical Therapy.

N. Lien statement - ACS Recovery Services.

O. Medical report from Dr. Raymond Cohen.

P. Medical report from Michael P. Nogalski.

Q. Supplemental report from Dr. Michael P. Nogalski.

R. Supplemental report from Dr. Michael P. Nogalski.

Employer/Insurer Exhibits:

1. Deposition of Dr. Michael Nogalski dated April 13, 2009
2. Photographs of the Employee re-enacting his accident of November 9, 2006

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

The parties stipulated to the following:

1. Employer and Employee were operating under the provisions of the Missouri Workers' Compensation law on the alleged date of injury.
2. Employer's liability was fully insured by ACE American Insurance by and through Crawford \& Company.
3. Employer had notice of the alleged injury and a claim for compensation was timely filed.
4. Employee's average weekly wage was $\ 966.83 yielding a TTD rate of $\ 643.90 and PPD rate of $\ 376.55.
5. Employer has paid medical benefits in the amount of $\ 1,505.40, and has paid no TTD benefits.

The parties stipulated the sole issues to be resolved are: (1) Medical Causation, (2) Temporary total disability benefits from 12/06/06 - 03/03/08, (3) Past medical expenses, (4) Permanent partial disability, and (5) Second Injury Fund liability.

On November 9, 2006, the claimant, a pressman at a printing firm, was rearranging a 2200 to 2600 pound load of cardboard that was loaded on his machine. While trying to shift this load, the claimant was pushing and pulling on the load with both arms and experienced a sudden onset of pain in his left shoulder which felt like a "hot poker" had been stuck through his shoulder and an immediate inability to lift or use his left arm. The employer provided an ice pack and sent him to Dr. Charles Keefe the next day. Dr. Keefe treated him several times and eventually discharged him and released him to work regular work duties. See Exhibit B. On December 6, 2006, Dr. Keefe diagnosed strain of the left shoulder rotator cuff twenty-seven days post injury and not improving. See Exhibit B. Dr. Keefe's prognosis was:

Patient's status is now to return to work regular duties. This is because I've been informed that the patient's left shoulder injury of 2003 was settled with the insurance company with maximum medical improvement. In a prior office visit,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kent Spies

Injury No.: 06-107465

the patient had mentioned that the left shoulder had never returned to normal that he would have pain with certain activities. That being the case, the patient's status will resume the regular duties. I did tell the patient though that as he still has restricted movements with pain that he does need to see his primary care physician. In the interim, he is to use ice or heat whichever helps more. Use over the counter Tylenol or Ibuprofen whichever provides more relief. At this point, he is released. Permanency of this will be left up to those who assume his care. Causation is a bit murky because of the preexisting injury and the settlement between the patient and the insurance carrier. See Exhibit B, page 2.

The claimant testified that he did not return to work when Dr. Keefe released him, because he was physically unable to do the job. He testified this was due to his limited use of the left arm and severe pain that he was in at the time.

Shortly thereafter, the claimant consulted Dr. Rickmeyer, his family physician, who ordered an MRI. On December 12, 2006, the MRI revealed a massive tear of almost all tendons in the claimant's left shoulder. See Exhibit H.

On January 8, 2007, the claimant filed his claim for compensation with the Missouri Division of Workers' Compensation. On January 23, 2007, the employer filed its answer to the claim stating, "We, therefore, deny each and every, all and singular, of the allegations contained in said Claim."

Dr. Rickmeyer referred the claimant to a specialist, Dr. James Rotramel. Dr. Rotramel subsequently referred him to Dr. Yamaguchi. On June 19, 2007, a Limb Sonography revealed a massive full thickness tear of the left rotator cuff and a small full thickness tear of the supraspinatus tendon. See Exhibit D, page 39. On June 28, 2007, Dr. Yamaguchi performed an arthroscopic rotator cuff repair, open biceps tenodesis, and open subscapularis repair. See Exhibit D, page 70. Dr. Yamaguchi noted in his Operative Report that the location of this tear was separate and apart from the location of Mr. Spies prior left shoulder injury. See Exhibit D, page 71. On November 9, 2006, Dr. Yamaguchi opined that the claimant's work injury was the predominant factor necessitating the June 28, 2007, surgery. See Exhibit G, page 2. The claimant testified that this surgery improved the pain.

Dr. Cohen examined the claimant on March 7, 2008, took a medical history, and reviewed the claimant's medical records. He diagnosed a large rotator cuff tear involving the supraspinatus and subscapularis tendon and biceps tear, status post surgical procedure for repair of the same with open biceps tenodesis, open subscapularis repair, and arthroscopic rotator cuff repair, chronic left shoulder pain, and inability t