Joseph Duever v. All Outdoors Inc.

pursuant to $\S 287.140$, for that treatment which may reasonably be required to cure and relieve from the effects of his work injury of February 19, 2007.

The award and decision of Administrative Law Judge Linda J. Wenman, issued January 27, 2011, as supplemented and clarified herein, 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 $14^{\text {th }}$ day of October 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

VACANT

Member

Attest:

Secretary

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: February 19, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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: While returning to his office after conducting a safety meeting, Employee slipped and fell on a patch of ice.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left shoulder
14. Nature and extent of any permanent disability: 35 % overall permanent partial disability (PPD) referable to left shoulder, 10 % preexisting this injury and 25 % PPD related to the February 19, 2007 injury.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Joseph Duever Injury No.: 07-134607

1. Value necessary medical aid not furnished by employer/insurer? $\ 31,233.57
2. Employee's average weekly wages: $\ 598.33
3. Weekly compensation rate: $\$ 398.89 / \ 376.55
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 31,233.57

58 weeks of permanent partial disability from Employer $\ 21,839.90

1. Second Injury Fund liability: No

TOTAL: $\quad \ 53,073.47

1. Future requirements awarded: Yes

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 in favor of the following attorney for necessary legal services rendered to the claimant: Robert Arb

Employee: Joseph Duever

Injury No.: 07-134607

Dependents: N/A

Employer: All Outdoors Inc.

Additional Party: Second Injury Fund

Insurer: Guarantee Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW

A hearing for final award was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on October 25, 2010. Posttrial briefs were submitted by November 22, 2010. Attorney Robert Arb represented Joseph Duever (Claimant). Employer is insured by Guarantee Insurance Company, and represented by Attorney John Kafoury. Assistant Attorney General Da-Niel Cunningham represented the Second Injury Fund (SIF).

Prior to the start of the hearing, the parties identified the following issues for disposition in this case: accident; arising out of and in the course and scope of employment; liability for past medical expenses; future medical care; and liability of Employer and SIF for permanent partial disability (PPD) benefits. Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

Claimant offered Exhibits A-I, and Employer offered Exhibit 1. All exhibits were admitted without objection. Any objections not expressly ruled on in this award are overruled. All markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit.

All evidence presented has been reviewed. Only testimony and evidence necessary to support this award will be reviewed and summarized.

1. Claimant is 58 years old, and is the founder, owner and operator of Employer's business. Employer's business conducts landscape construction and maintenance, garden design, and during the winter months, snow removal. When performing snow removal, Employer's workers plow snow, shovel snow, and provide de-icing. Claimant's equipment (trucks, trailers, etc.) when not in use, were parked onsite in parking spaces designated for his use, as specified under the terms of his lease. Prior to February 19, 2007, Claimant performed all forms of work expected of his crews.

1. On February 19, 2007, Claimant arrived at his office at approximately 3 a.m., and performed office work until his crews arrived. Once his crews arrived, Claimant proceeded outside to his parked equipment and held a safety meeting to discuss wiring issues and the importance of maintaining tail-lights on company trailers. At the end of the meeting, Claimant demonstrated to an employee how to properly wire a trailer. When he finished, Claimant began walking back to his office and he slipped on a patch of ice falling on his left shoulder and hitting his head. Claimant believes he may have briefly lost consciousness. Several of his employees came over to assist him, and once up, Claimant proceeded to his office. When he arrived in his office, Claimant noticed he was having difficulty moving his left arm, but he continued with his normal workday. The next day, Claimant kept an appointment with his endocrinologist, Dr. Oiknine, but made no mention to Dr. Oiknine of the fall. ${ }^{1}$ When Claimant continued to experience difficulty with his left arm, he consulted a family friend who recommended Claimant see Dr. Thomas, an orthopedist.
2. Dr. Thomas first examined Claimant on March 6, 2007, and initially diagnosed possible left shoulder post-traumatic bursitis, but ordered an MRI due to Claimant's level of complaints. The MRI demonstrated full thickness tears of both the supraspinatus and infraspinatus tendons with musculotendinous retraction and moderate atrophy, along with a likely tear of the subscapularis tendon; fluid in the glenohumeral joint and subacromial-subdeltoid bursa. Dr. Thomas recommended surgical repair due the subscapularis tear, but indicated he would also repair the supraspinatus tendon during the procedure. On March 26, 2007, Dr. Thomas performed a left shoulder subacromial decompression with arthroscopic supraspinatus repair, and an open subscapularis repair with biceps tenodesis. During the procedure, Dr. Thomas noted an area of grade III chondromalacia on the anterior aspect of the humeral head.
3. By May 10, 2007, Claimant was engaged in post-operative physical therapy, and told Dr. Thomas he was unable to do any lifting with his left arm. Dr. Thomas noted "Joe is clearly a hard charging individual," and opined Claimant was doing extremely well, but should not feel "normal" at this stage in his recovery. On October 2, 2007, Claimant complained of pain over the outer aspect of his left arm when pushing himself off the ground, which his job duties required multiple times per day. Dr. Thomas encouraged Claimant to continue his exercise routine, offered Claimant a cortisone injection that was declined, and discussed the use of antiinflammatory medication. Dr. Thomas encouraged Claimant to contact him if his symptoms persisted.
4. As of hearing Claimant complained of: stabbing left shoulder pain; stiffness in his shoulder that requires icing; waking during the night due to pain; the need to tape his arm to his shoulder to limit his pain; can only shovel 40 % of snow that he used to shovel; and he can only accomplish 60 % of the physical activity he used to perform. Claimant testified that prior to his injury, he was very physically active, and experienced no hospitalizations due to his diabetes. When presented with medical bills incurred as a result of the February 19, 2007 fall, Claimant identified the bills.
5. On February 11, 2010, Dr. Poetz examined Claimant at his request. Upon examination, Dr. Poetz noted the following abnormal findings: bilateral shoulder crepitus with range of m