Gary Short v. Missouri Baptist Medical Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-016663

Employee: Gary Short

Dependent: Martha R. Short

Employer: Missouri Baptist Medical Center

Insurer: Self-Insured

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 § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 7, 2012. The award and decision of Administrative Law Judge Edwin J. Kohner, issued February 7, 2012, 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 $28^{\text {th }}$ day of June 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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 modified.

Employee had significant preexisting disabilities, including diabetic polyneuropathy. At the time of the work injury, employee already had limited control of his left leg and ambulated with crutches. While at work, employee caught a crutch on the strap of a purse that was on the floor causing him to fall and break his right hip. Employee underwent hip replacement surgery.

The administrative law judge concluded that employee is permanently and totally disabled considering only the effects of the hip fracture and replacement. I disagree.

The administrative law judge's conclusion relies heavily on the opinions of Dr. Poetz. Dr. Poetz believes employee's depression and sciatica are causally related to his work injury. Those opinions are belied by the other evidence in the record. Employee's depression resulted from the loss of his job, which was not related to his work injury. Dr. Poetz found no evidence of sciatica when he examined employee. Dr. Poetz did not diagnose any structural problem with employee's lumbar spine nor did he adequately explain how the work injury caused the sciatica. Nonetheless, Dr. Poetz offered his opinion that employee has a 20% permanent partial disability of the body as a whole referable to the lumbar spine due to sciatica. I am not persuaded by Dr. Poetz's opinion because he factored in depression and sciatica that are not shown to be related to the work injury.

To the extent that Mr. Weimholt relied upon Dr. Poetz's opinions that the depression and sciatica were caused by the work accident in reaching his conclusion that employee was permanently and totally disabled as a result of the work injury considered alone, his opinion is also unpersuasive.

I find most persuasive the opinion of Dr. Johnston. Dr. Johnston performed employee's total hip replacement and provided his subsequent care. Dr. Johnston was in the best position to determine if employee's sciatica was related to the work injury and he could not connect it with employee's work injury.

According to Mr. Weimholt, it was employee's ambulation restrictions upon which Mr. Weimholt primarily relied in reaching his conclusion that employee is permanently and totally disabled. Before the work injury, employee's mobility was significantly hampered by his inability to control his left leg and his difficulty in assessing the position of his lower extremities while ambulating. After his hip replacement surgery, employee developed weakness in his right leg due to a combination of post-surgical weakness and weakness attributable to his diabetic polyneuropathy. Dr. Johnston opined that the diabetic polyneuropathy is the source of employee's inability to sense the position of his lower extremities and the primary driver of employee's ambulation problems.

Injury No.: 04-016663

Employee: Gary Short

- 2 -

Because I find most persuasive Dr. Johnston's opinion that employee's polyneuropathy is the primary source of employee's mobility problems, I conclude that employee's permanent total disability was caused by the effects of his hip fracture in combination with his many preexisting disabilities, most notably, his diabetic neuropathy.

I would modify the administrative law judge's award. I would award permanent partial disability from employer to employee. I would award permanent total disability from the Second Injury Fund to employee.

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

James G. Avery, Jr., Member

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 12, 2004
5. State location where accident occurred or occupational disease was 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? Self insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The claimant, a medical laboratory technician, suffered a fractured hip when he tripped on a purse strap on the floor and fell while walking on the employer's premises.
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: Right hip
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 9,992.52
16. Value necessary medical aid paid to date by employer/insurer: $\ 52,704.24

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary Short

1. Value necessary medical aid not furnished by employer/insurer? None to date
2. Employee's average weekly wages: $\ 813.35
3. Weekly compensation rate: $\$ 542.23 / \ 347.05
4. Method wages computation: By agreement

1. Amount of compensation payable:

$163 / 7 weeks of temporary total disability (subject to a credit of

\ 9,992.52 previously paid)

Permanent total disability benefits from Employer beginning May 18, 2006, for Claimant's lifetime

1. Second Injury Fund liability: No

TOTAL:

Indeterminate

1. Future requirements awarded: See Additional Finding of Fact and Rulings of Law

Said payments to begin as of May 18, 2006, 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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ronald D. Edelman, Esq.

Employee: Gary Short

Injury No.: 04-016663

Dependents: Martha R. Short

Employer: Missouri Baptist Medical Center

Additional Party: Second Injury Fund

Insurer: Self Insured

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 an alleged work related injury in which the claimant, a medical laboratory technician, suffered a fractured hip when he tripped on a purse strap on the floor and fell while walking on the employer's premises. The issues for determination are (1) Future medical care, (2) Temporary Disability, (3) Permanent disability, (4) Second Injury Fund liability, and (5) Dependency. The evidence compels an award for the claimant for future medical care, permanent total disability benefits, and a finding that his spouse was his dependent at the time of the occurrence and as of the hearing in this case.

At the hearing, the claimant testified in person appearing in a battery powered wheelchair and offered a deposition of Robert P. Poetz, D.O., and Gary Weimholt, public records from the Missouri Division of Workers' Compensation, correspondence from the claimant's attorney, and voluminous medical records. The Employer offered depositions of the claimant and Richard Johnston, M.D. The Second Injury Fund offered no evidence beyond cross-examination of witnesses offered by other parties.

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 February 12, 2004, this then fifty-three year old hospital medical technician sustained a compensable work injury in which he tripped on an object and fell while he was walking on the employer's floor. Due to a pre-existing diabetic neuropathy in his left leg the claimant used arm crutches or Canadian crutches to ambulate. As he was walking in the lab, he caught the tip of his crutch on a co-worker's purse strap and fell on his right side. He had immediate pain in his right

Injury No.: 04-016663

hip, knee, and ankle. As a result of the fall, he was diagnosed with a fracture of his right femoral neck and underwent a right total hip replacement. He now has a prosthetic hip joint. This case is complicated due to the severity of the injury and the extensive pre-existing debilitating conditions. The facts of the accident will be presented followed by the details of the claimant's pre-existing conditions and a summary of expert medical opinion evidence.

After the 2004 accident, the claimant went to the hospital emergency room and received x-rays and pain medication. He followed up with Dr. Eljaiek on February 16, 2004, who treated the condition for two months, provided pain medication, and kept the claimant off work. A fracture had not yet been diagnosed. The claimant testified that he was unable to even get in and out of bed. The claimant purchased a hospital type bed that could be elevated to permit access based on a therapist's recommendation.

On March 29, 2004, the claimant consulted Dr. Gragnani who reported that the claimant was unable to walk or stand on his right leg. An MRI on the same date confirmed a fracture to the femoral neck, and Dr. Gragnani referred the claimant to Dr. Johnston, an orthopedic surgeon. See Exhibit F.

On the same date, March 29, 2004, Dr. Johnston examined the claimant and performed a right total hip replacement on March 31, 2004. See Exhibit G. The claimant underwent physical and occupational therapy as an in-patient and was discharged on April 21, 2004. See Exhibit E. The claimant testified the