Larry Abt v. Mississippi Lime Company

(In Compliance with the January 3, 2013, Mandate

from the Missouri Court of Appeals for the Eastern District)

Injury No.: 01-071426

Employee: Larry Abt

Employer: Mississippi Lime Company

Insurer: Federal Insurance Company

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

On December 11, 2012, the Missouri Court of Appeals for the Eastern District issued an opinion affirming in part, reversing in part, and remanding the March 13, 2012, decision of the Labor and Industrial Relations Commission (Commission). Abt v. Mississippi Lime Company, ED98282 (Mo. App. Dec. 11, 2012).

By mandate dated January 3, 2013, the court reiterated its reversals as to the Commission's determinations and remanded the matter to the Commission for reconsideration.

On January 15, 2001, employee was using a locomotive to transport rail cars between a loading area and a rail yard. ${ }^{1}$ Employee was standing on the side of the locomotive while driving it and looking behind him to ensure that he did not derail. When employee looked forward, he observed a truck stopped in the locomotive's path on the railroad tracks. Employee was unable to stop the locomotive before it collided with the truck. Employee's body hit the truck before he "ended up on the ground." As a result of the accident, employee sustained a degloving injury ${ }^{2}$ to his left calf, injuries to his lower back, and fractured ribs.

At the time of the primary injury, employee suffered from a number of preexisting conditions. Employee was morbidly obese, fractured his left wrist in 1982, had suffered from bilateral lower extremity cellulitis and/or phlebitis resulting in hospitalizations in 1993, and was diagnosed with bilateral lower extremity swelling, rashes, and bilateral dermatitis of his legs in 1999. As a result of these diagnoses to his lower extremities, employee had been instructed to wear elastic stockings and to keep his legs elevated whenever possible. However, progressive swelling of the left lower leg resulted in employee being admitted to Ste. Genevieve Memorial Hospital on September 6, 1999. He was discharged on September 15, 1999. As a result of employee's hospitalization and post-operative care, he missed a month of work and returned to employment on

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[^0]: ${ }^{1}$ There is some inconsistency throughout the record regarding the date of injury. In some instances, the date of injury is listed as January 15, 2001, and in other instances, it is listed as January 16, 2001. The employee's Claim for Compensation lists January 15, 2001, as the date of injury, therefore, we will use that date in this decision.

${ }^{2}$ In a degloving injury, a section of skin is torn from the underlying tissue.

October 4, 1999. At the time of discharge, he was again instructed to keep his left leg elevated with no prolonged standing or excessive ambulation.

Following employee's January 15, 2001, primary injury and subsequent recovery, a May 7, 2001, functional capacity evaluation determined employee to be employable at a heavy workload demand level. Employee went back to work for employer in May 2001. Employee returned to work at his previous job for 4½ years until December 2005. The only assistance employee required in performing his job during this time was lifting 100 lb. doors on a locomotive. He required this assistance due to back complaints, but not the result of any residual disability with his left leg.

On January 26, 2005, employee sustained a lower back injury at work while lifting. On February 26, 2005, employee sustained an injury to his left ankle. In May 2005, employee developed left wrist discomfort, which necessitated conservative care and diagnostic evaluation. In October 2005, employee was hospitalized at Ste. Genevieve Memorial Hospital for 4-5 days for lymphedema and cellulitis of the lower left leg and was treated with antibiotics.

Employee did not notify employer as to why he was hospitalized in October 2005, nor did employee ever request additional medical care for his left leg from employer after May 1, 2001. Employee went back to work following the October 2005 hospitalization, but was only able to work for a week or two due to left leg swelling. Employee officially quit his job in December 2005.

Dr. Tate opined that employee reached maximum medical improvement on September 3, 2001. She further opined that as a result of the primary injury employee sustained 7% permanent partial disability to his left calf. Dr. Tate did not attribute any other permanent disability to the primary injury. Further, she testified that employee would be able to sustain employment. However, she also stated that due to his bilateral venous stasis, lymphedema, and cellulitis, standing might be difficult and he would be restricted to a sedentary job with a limited amount of walking or standing up to one hour at a time for a total of three hours a day.

Dr. Cadiz noted in his August 9, 2002, report that employee had a preexisting condition of venous insufficiency, bilaterally, and that the January 2001 incident was a soft tissue acute injury, superimposed upon a chronic condition. Dr. Cadiz stated in his September 5, 2002, report that the acute injury from the January 2001 accident had resolved.

Dr. Poetz provided three separate independent medical evaluation reports, one in 2004, 2007, and 2010. In 2004, Dr. Poetz opined that as a result of the primary injury employee sustained 60% permanent partial disability to the left lower extremity at the knee, 25% permanent partial disability of the body as a whole for the rib injury, and 30% permanent partial disability of the body as a whole referable to the lumbar spine injury. With respect to employee's preexisting disabilities, Dr. Poetz opined that employee suffered from 10% permanent partial disability of the left leg for phlebitis, 10% permanent partial disability of the left leg for cellulitis, 25% permanent partial disability of the left wrist, 10% permanent partial disability of the body as a whole for astigmatism.

presbyopia, and myopia, and 30\% permanent partial disability of the body as a whole referable to his morbid obesity and metabolic syndrome. Dr. Poetz further opined in this 2004 report that " $[t]$ he combination of the present and prior disabilities results in a total which exceeds the simple sum by 10-15 %."

In Dr. Poetz's 2007 report, all of his ratings remained the same except his rating for employee's lower left extremity. In 2007, he opined that as a result of the primary injury employee sustained 70 % permanent partial disability of the lower left extremity at the left knee, as opposed to his 60 % rating in 2004. In addition, Dr. Poetz also opined in his 2007 report that employee is permanently totally disabled as a result of his primary injuries combining with his preexisting disabilities. Dr. Poetz's conclusions in his 2010 report mirrored those in his 2007 report.

Vocational expert, Wilbur Swearingen, concluded that employee is permanently and totally disabled as a result of the primary injury in isolation.

Employee filed a claim for compensation in April 2003. On March 21, 2011, an ALJ held a hearing on the claim. Employee and employer advised the ALJ that the claim involved three issues: 1) the "nature and extent of disability, PTD vs PPD"; 2) Second Injury Fund liability; and 3) employer's liability for past medical expenses.

The ALJ issued an award denying employee's claim for permanent total disability benefits against employer and the Second Injury Fund. In arriving at this decision, the ALJ found that Mr. Swearingen's report and Dr. Poetz's 2007 and 2010 reports were not credible because they lacked information and "failed to review records concerning employee's injury to his left ankle in February 2005, left wrist problem in May 2005, neck problem in October 2005, right elbow and hand in October 2005, and left leg hospitalization in October of 2005." The ALJ also held that "[t]he record clearly supports a finding that employee's permanent total disability condition was a result of subsequent deterioration and not a result of employee's ... work injury."

The ALJ did, however, award permanent partial disability benefits against employer for the primary injury and enhanced permanent partial disability benefits against the Second Injury Fund. The ALJ found that as a result of the primary injury employee sustained 30 % permanent partial disability of his left lower extremity at the 160 week level, 4 % permanent partial disability of the body as a whole referable to the ribs, and 15 % permanent partial disability of the body as a whole referable to the lumbar spine. With respect to employee's preexisting disabilities, the ALJ found that employee suffered from 15 % permanent partial disability of the left wrist, 5 % permanent partial disability of the body as a whole referable to phlebitis of the left leg, 5 % permanent partial disability of the body as a whole referable to cellulitis of the left leg, 5 % permanent partial disability of the body as a whole referable to astigmatism with presbyopia and myopia, and 7.5 % permanent partial disability of the body as a whole referable to morbid obesity with metabolic syndrome.

The ALJ found that employee's primary injury disabilities to his lower left extremity and lumbar spine combined with his preexisting left wrist disability to create greater overall disability than their simple sum. The ALJ assessed 15\% enhanced permanent partial disability against the Second Injury Fund. ${ }^{3}$

In addition to the aforementioned findings, the ALJ found employer liable for past medical expenses in the amount of $\ 3,266.03. These past medical expenses were incurred by employee for lumbar treatment provided by Dr. Kuenzel at Physicians Health and Rehab (1/14/02 - 3/31/04). The ALJ denied employee's claim for past medical expenses related to treatment provided by Ste. Genevieve Memorial Hospital (10/23/05 - 11/01/05), Mid America Rehab (11/01/05 - 11/22/05), and Dr. Pearson (10/23/05 - 10/12/06). The ALJ found that the denied expenses are "a result of subsequent deterioration and not related to [e]mployee's January [15], 2001, work related injury."

Employee filed an Application for Review with the Commission alleging the ALJ erred in: 1) finding Mr. Swearingen's report and Dr. Poetz's 2007 and 2010 reports not credible; 2) finding employee permanently totally disabled as a result of subsequent deterioration; and 3) denying his claim for future medical care. Employee also argued in his brief that the ALJ erred in denying him past medical expense reimbursement for his treatment with Dr. Kuenzel and his October 2005 hospitalization at Ste. Genevieve Memorial Hospital.

On March 13, 2012, the Commission issued an award modifying the amount of permanent partial disability enhancement awarded to employee. The Commission found that employee's other primary and preexisting disabilities should be included in the calculation despite the fact that they do not each, individually meet the statutory thresholds in § 287.220 RSMo. The Commission adopted and affirmed the ALJ's award with respect to all other issues.

Employee appealed to the Missouri Court of Appeals for the Eastern District. Employee essentially raised the same arguments with the court as he did with the Commission.

As mentioned above, on December 11, 2012, the court issued an opinion affirming in part, reversing in part, and remanding the March 13, 2012, decision of the Commission. Abt v. Mississippi Lime Company, ED98282 (Mo. App. Dec. 11, 2012). In said opinion, the court first addressed the rejection of Mr. Swearingen's report and Dr. Poetz's 2007 and 2010 reports. The court found that Dr. Poetz's 2010 report addressed employee's 2005 injuries and hospitalization. The court determined that this unimpeached evidence directly contradicts the Commission's finding that in 2010, D