Steven Penrod v. Trammell Crow Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-109748

Employee: Steven Penrod

Employer: Trammell Crow Company (Settled)

Insurer: Ace American Insurance 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 December 28, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued December 28, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $12^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

The administrative law judge discounted the opinion of Dr. Shuter regarding the extent of employee's right elbow disability because it was "based solely on [employee]'s history which is incomplete and inconsistent." Dr. Shuter's opinion was not based solely on employee's history. Dr. Shuter physically examined employee. Dr. Shuter's examination revealed objective functional limitations of employee's right arm. In particular, Dr. Shuter noted that employee is unable to fully extend at the elbow. Employee testified about how his elbow limitations affected the way he did his work.

The administrative law judge also discounted Dr. Shuter's permanent partial disability opinion because Dr. Shuter reviewed no medical records or diagnostic studies regarding the right elbow injury, and had no knowledge of the medical treatment received by employee over 20 years ago. There is no requirement that an expert opinion regarding the nature and extent of a preexisting disability can only be issued if the expert has seen all treatment records regarding the condition. In fact, in many instances including this one, medical records from many years ago are no longer available. And in this case, the old medical records are not necessary. The old medical records might have told us how employee's elbow ended up in its condition of ill, but we do not need to know that in this case. We need to know the nature and extent of that condition of ill as of the date of the primary injury. Dr. Shuter was more than qualified to determine the nature and extent of an orthopedic problem by examining the affected arm.

The Second Injury Fund seemingly urges us to discount Dr. Shuter's permanent partial disability opinion because employee has not needed medical treatment for his right elbow in years and employee has not missed work due to his right elbow condition. Many permanent conditions do not require ongoing medical care. As to missing work, I cannot conceive of a reason a worker would need to call off work because his elbow did not extend all the way.

Dr. Shuter's opinions regarding employee's right elbow condition were based upon a physical examination of employee's arm, its functional deficits and employee's description of how the elbow dysfunction affects his activities.

I find credible the opinions of Dr. Shuter regarding the disability associated with employee's right elbow, obesity and sleep apnea. I find that the limitations caused by employee's right elbow condition result in a permanent partial disability of 20 % of the elbow. I find that the adverse effects of employee's obesity and sleep apnea constitute permanent partial disabilities of 25 % of the body as a whole. Employee's preexisting disabilities constituted hindrances and obstacles to employee's employment or reemployment at the time employee sustained his work injury and the preexisting disabilities meet the thresholds necessary to trigger Second Injury Fund liability.

Finally, I find persuasive Dr. Shuter's opinion that disabilities from employee's pre-existing obesity, sleep apnea and right elbow condition synergistically combine with the disability from his left elbow to produce a greater overall disability than the simple sum of the disabilities. I would award enhanced permanent partial disability from the Second Injury Fund based upon a load factor of 15 %.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

Employee: Steven Penrod

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Trammell Crow Company (Settled)

Additional Party: Second Injury Fund

Insurer: Ace American Insurance Co. (Settled)

Hearing Date: October 14, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

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: November 2, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 fell off the third rung of a ladder while working and fractured his left elbow.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left elbow (Settled)
14. Nature and extent of any permanent disability: 30 % PPD of the elbow - previously settled
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? At least $\ 29,274.89

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for maximum permanent partial disability rate
3. Weekly compensation rate: $\ 376.55
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Employer previously settled.

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 be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Nancy Mogab

Employee: Steven Penrod

Injury No.: 06-109748

Dependents: N/A

Employer: Trammell (Settled)

Additional Party: Second Injury Fund

Insurer: Ace American Insurance Co. (Settled)

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC

The parties appeared before the undersigned administrative law judge on October 14, 2010 for a final hearing to determine the liability of the Second Injury Fund (SIF) in a matter regarding Steven Penrod (Claimant). ${ }^{1}$ Attorney Nancy Mogab represented Claimant. Assistant Attorney General Todd Matheny represented the SIF. The Employer, Trammell Crow Company, and its' Insurer, Ace American Insurance Company, previously settled with Claimant for 30 % of the left elbow on October 16, 2009. ${ }^{2}$

The parties stipulated to the following:

1. On or about November 2, 2006, Claimant was an employee of Employer pursuant to Chapter 287 RSMo.;
2. Claimant sustained an accident which arose out of and in the course of employment and resulted in injury to Claimant;
3. The accident occurred in St. Louis County;
4. Venue is proper;
5. Employer and Claimant operated under the Missouri Workers' Compensation Law;
6. Employer's liability was fully insured;
7. Employer received proper notice of the claim;
8. Claimant filed the claim within the time allowed by law;
9. Claimant's average weekly wage was sufficient for a maximum Permanent Partial Disability (PPD) rate of $\ 376.55,
10. Employer paid Temporary Total Disability (TTD) benefits but the amount is unknown, and
11. Employer paid medical benefits totaling at least $\ 29,274.89

The issues to be determined are:

[^0]

[^0]: ${ }^{1}$ All statutory references are to the 2005 Revised Statutes of Missouri unless otherwise stated.

${ }^{2}$ All references in this award to Employer also include the Insurer unless otherwise indicated.

1. What is the nature and extent of Claimant's disability?; and
2. What is the liability of the Second Injury Fund, if any?

Only evidence necessary to support the award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

Claimant offered Exhibits A-E without objection. The SIF offered no Exhibits.

1. Claimant testified live. Claimant is 40 years old, married and has two dependent children, Dillon age 17 and Katlyn age 14. Claimant is a high school graduate with an associates' degree in heating and cooling. Claimant is six feet tall and weighed about 450 pounds in 2006 when he was injured at work.
2. For the past two years Claimant has worked as a facility engineer for Jones, Lange, and LaSalle. His maintains the building which includes HVAC, hot/cold calls, electrical, fire safety, and security issues with the doors.
3. Claimant worked for Employer for six years. On November 2, 2006, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to his left elbow when he fell off the third rung of a ladder and fractured his elbow.
4. Claimant received medical care at St. John's Emergency Room in the form of medication and a sling. Claimant was referred to Dr. Howard who performed surgery on November 6, 2006. Plates and screws were inserted. Claimant missed work for several weeks before returning to work on light duty.
5. Due to poor healing, a bone stimulator was implanted; however Claimant continued to heal slowly. The radial head of the elbow was removed and physical therapy was prescribed. Claimant was released to full duty in April 2007.
6. On October 16, 2009 Claimant and Employer settled the workers' compensation claim arising out of the accident for 30 % PPD of the left elbow and future medical expenses.

1. Complaints included constant left elbow pain, decreased strength, limited range of motion, and grinding. It is difficult to reach and rotate his left wrist. He takes 800 milligrams of Tylenol twice a day. Dr. Howard offered no additional treatment.
2. Dr. Haueisen surgically implanted a prosthetic elbow on April 10, 2008 and returned Claimant to regular duty in July 2008. In 2009 Dr. Haueisen removed an elbow cyst