Richard Hayden v. Ameriwood Industries, Inc.

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 04-130301

Employee: Richard Hayden

Employer: Ameriwood Industries, Inc.

Insurer: Sentry Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo { }^{1}$. Having read the briefs, reviewed the evidence and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge by this supplemental opinion.

We offer this supplemental opinion to address arguments raised by employee in his application and brief.

First, employee alleges error because subpoenas issued by the administrative law judge were not enforced. The administrative law judge issued three subpoenas at employee's request (Exhibits J, K, and L). The subpoenas directed three witnesses to appear for the hearing to testify.

Section 287.560 RSMo provides, in part, that, "[t]he division, any administrative law judge thereof or the commission, shall have power to issue process, subpoena witnesses, administer oaths, examine books and papers, and require the production thereof, and to cause the deposition of any witness to be taken and the costs thereof paid as other costs under this chapter." The administrative law judge did so. The section goes on to provide that, "[a]ny party shall be entitled to process to compel the attendance of witnesses and the production of books and papers, ..."

The transcript of the hearing reflects that none of the subpoenaed witnesses testified at the hearing. The transcript of the hearing reveals no complaint by employee about the absence of the witnesses' testimony. Nor does the transcript reveal a request by employee to continue the hearing so he could secure the attendance of the witnesses. Employee failed to preserve any objection regarding the enforcement of the subpoenas. This argument must fail.

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[^0]: ${ }^{1}$ All statutory references are to the Revised Statutes of Missouri 2004 unless otherwise indicated.

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Injury No.: 04-130301

Next, employee alleges ineffective assistance of counsel. Employee directs us to no statute authorizing us to grant him relief on the basis of ineffective assistance of counsel. This argument also fails.

We affirm and adopt the award of the administrative law judge, as supplement herein. The November 3, 2010, award and decision of Administrative Law Judge Edwin J. Kohner is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **9th** day of June 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

VACANT 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? Yes
4. Date of accident or onset of occupational disease: November 18, 2004
5. State location where accident occurred or occupational disease was contracted: Warren 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: On November 19, 2004, the claimant woke up with left hip pain after pulling on a 300 pound batch of materials with a dolly on the day before his onset of pain. He did not have any discomfort while he was actually performing this action but he awoke the next day with pain in his groin and left hip area. .
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: None
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: $\ 2,700.30

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Richard Hayden

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 531.20
3. Weekly compensation rate: $\$ 354.13 / \ 354.05
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

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 NOT be subject to a lien in favor of any attorney for necessary legal services rendered to the claimant for lack of any evidence to support an attorney's lien. See Kuczwara v. Continental Baking Co., 24 S.W.3d 712, 715 (Mo.App. E.D. 1999).

Employee: Richard Hayden

Injury No.: 04-130301

Dependents: N/A

Employer: Ameriwood Industries, Inc.

Additional Party: Second Injury Fund

Insurer: Sentry Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/ch

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a production and design technician, suffered a left hip strain while moving production materials on a dolly. The issues for determination are (1) Medical causation, (2) Liability for Past Medical Expenses, (3) Future medical care, (4) Temporary Disability, (5) Permanent disability, (6) Second Injury Fund liability, and (7) a Medicaid lien, a Lien for Child Support, and (8) an attorney's lien for the claimant's former legal counsel. The evidence compels an award for the defense, because the weight of the credible evidence proves that the claimant's work related occurrence was not the prevailing factor causing his avascular necrosis and disability from his avascular necrosis. The request for an attorney's lien is denied for lack of any evidence to establish an attorney's lien. See Kuczwara v. Continental Baking Co., 24 S.W.3d 712, 715 (Mo.App. E.D. 1999). The Medicaid lien and lien for child support are established as a matter of law, but have no recovery, because the claim is not compensable.

At the hearing, the claimant and his former supervisor, Janice McKenzie, testified in person and offered depositions of himself and Raymond F. Cohen, D.O., medical records from St. Josephs Hospital West, three subpoenas, and a Medicaid Lien letter. The claimant also offered correspondence from the claimant's former legal counsel, four photographs, an article from Wikipedia, but objections were sustained based on the rule against hearsay. The defense offered a deposition of Thomas E. Albus, M.D., medical reports from Ronald L Pearson, D.O., and Chad J. Smith, D.O., and pharmacy records from Wal-Mart Pharmacy.

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.

On October 1, 2004, this fifty-five year old claimant, a production worker, suffered anterior and lateral thigh and hip pain that gradually began after moving heavy objects with a dolly for a friend. See Exhibit 3. He received a prescription muscle relaxant, Cyclobenzapr, a generic form of Flexeril. See Exhibits 3, 4. On November 19, 2004, the claimant woke up with left hip pain after pulling on a 300 pound batch of materials with a dolly on the day before his

onset of pain. He did not have any discomfort while he was actually performing this action but he awoke the next day with pain in his groin and left hip area. See Exhibit 2.

On December 14, 2004, Dr. Pearson examined the claimant's leg and concluded that the claimant suffered from left hip pain. He prescribed Naprosyn and Darvocet-N-100 for pain relief and recommended that the claimant consult an orthopedic specialist. See Exhibit 2. He opined that the claimant could only perform sedentary work due to his hip pain. See Exhibit 2. A December 23, 2004, CT revealed ischemic necrosis and a small pathologic fracture. See Exhibit E. Dr. Roush diagnosed avascular necrosis after those tests. See Exhibit D.

The claimant consulted physicians at the U.S. Department of Veterans' Affairs for his various cardiac conditions. See Exhibit D. The left hip pain apparently resolved by April 19, 2005, but the claimant reported right hip pain. See Exhibit D. The claimant was able to flex and extend, and externally and internally rotate his left hip without pain. See Exhibit D. He had pain with internal and external rotation of the right hip. See Exhibit D. At that time, Dr. Rummell diagnosed arthritis of the hips, possible AVN, possible transient osteoporosis, tobacco addiction, alcohol use, and high cholesterol. See Exhibit D.

An April 20, 2005, bone scan revealed bilateral avascular necrosis involving both femoral heads with associated reactive changes. See Exhibit C. The increased activity on both sides of the joint was in keeping with reactive change and early degenerative change. See Exhibit C.

On May 5, 2005, Dr. Albus performed a right total hip arthroplasty. On June 29, 2005, Dr. Albus performed a right hip arthrotomy and revision of the acetabular implant. On September 23, 2005, Dr. Albus conducted an incision and drainage, irrigation and placement of drains to reduce any infection from the two prior surgeries. Dr. Albus prescribed antibiotic medicine to avoid any additional infection. On October 25, 2005, Dr. Albus performed a second look irrigation debridement of the right hip. On February 2, 2006, Dr. Albus performed a left hip arthroplasty with no intraoperative or postoperative complications. Dr. Albus' last examination of the claimant was on April 3, 2006.

"The claimant in a workers' compensation case has the burden to prove all essential elements of her claim, including a causal connection between the injury and the job." Royal v. Advantica Rest. Group, Inc., 194 S.W.3d 371, 376 (Mo.App.W.D.2006) (citations and quotations omitted). "Determinations with regard to causation and work relatedness are questions of fact to be ruled upon by the Commission." Id. (citing Bloss v. Plastic Enters., 32 S.W.3d 666, 671 (Mo.App.W.D.2000)). Under the statute, "[a]n injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability." § 287.020.2. On the other hand, "[a]n injury is not compensable merely because work was a triggering or precipitating factor." Id. "Awards for injuries 'triggered' or 'precipitated' by work are nonetheless proper if the employee shows the work is a 'substantial factor' in the cause of the injury." "Thus, in determining whether a given injury is compensable, a 'work related accident can b