Jerry Taylor v. Prairie Farms Dairy, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-018788

Employee: Jerry Taylor

Employer: Prairie Farms Dairy, Inc. (Settled)

Insurer: Fidelity \& Guaranty 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 § 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated October 4, 2012. The award and decision of Administrative Law Judge Linda J. Wenman, issued October 4, 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

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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: March 19, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis City, 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 loading a milk truck, Employee fell injuring his right knee.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right knee
14. Nature and extent of any permanent disability: 25 % PPD referable to the right knee and 5\% BAW PPD referable to a psychiatric condition previously paid by Employer. PTD benefits from SIF.
15. Compensation paid to-date for temporary disability: $\ 14,896.80 previously paid by Employer.
16. Value necessary medical aid paid to date by employer/insurer? $\ 32,896.37 previously paid by Employer.

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to produce the rates listed below.
3. Weekly compensation rate: $\$ 744.85 / \ 404.66
4. Method wages computation: Stipulated

1. Amount of compensation payable:

60 weeks of permanent partial disability from Employer Previously paid

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential of $\ 340.19 payable by SIF for 60 weeks beginning

August 7, 2009, and $\ 744.85 thereafter for Claimant's lifetime.

TOTAL:

TO BE DETERMINED

1. Future requirements awarded: N/A

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: Daniel Walkenhorst and Ellen Morgan

Employee: Jerry Taylor

Departments: N/A

Employer: Prairie Farms Dairy, Inc. (settled)

Additional Party: Second Injury Fund

Insurer: Fidelity \& Guaranty Ins. Co. (settled)

Injury No.: 09-018788

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW

A Second Injury Fund hearing for final award was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on September 11, 2012. The case was taken under submission with receipt of post-trial briefs on September 25, 2012. Attorneys Ellen Morgan and Daniel Walkenhorst represented Jerry Taylor (Claimant). Assistant Attorney General Kristen Frazier represented the Second Injury Fund (SIF).

On July 6, 2011, Claimant and Prairie Farms Dairy, Inc., (Employer) reached a settlement regarding the issue of Employer's liability for permanent partial disability. The stipulation represented 25 % PPD referable to the right knee, and 5\% BAW PPD referable to a psychiatric condition.

Prior to the start of the hearing the parties identified the issues for disposition in this case as the liability of SIF for permanent total disability (PTD) or permanent partial disability (PPD) benefits. Claimant alleges he reached maximum medical improvement (MMI) on August 6, 2009. Claimant offered Exhibits A-P, and SIF offered Exhibits I-X. Claimant's objections to Exhibits III, VIII, and IX were sustained. The remaining exhibits were admitted into the record. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

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

1. Claimant is 61 years old, attended but did not graduate high school, but later obtained a GED. Claimant did not receive any vocational or post-high school training. Claimant obtained a commercial drivers license (CDL) when he was 18, and spent his working years as a truck driver. For approximately 25 years, Claimant drove a milk delivery truck for Prairie Farms Diary (Employer). Claimant's work duties included loading his truck with milk crates piled 6 crates high on a dolly, delivering milk in the same fashion, stacking the milk for customers, and

collecting payment. Claimant drove a "time sensitive" route that included hospitals and educational facilities in and around St. Louis, Missouri. ${ }^{1}$ If Claimant was physically unable to "timely" deliver his load, Employer would send out an assistant to the delivery site to help.

1. On March 19, 2009, while loading his delivery truck, Claimant fell backwards twisting his right knee. ${ }^{2}$ Claimant was initially provided conservative medical treatment, and when he did not improve an MRI of his right knee was obtained. The MRI demonstrated degenerative joint disease, a prominent joint effusion, and a previous lateral meniscectomy. Claimant was referred to Dr. Haupt, an orthopedic surgeon. ${ }^{3}$ Dr. Haupt continued Claimant's conservative medical care until April 30, 2009, when Dr. Haupt opined Claimant required arthroscopic surgery. On May 1, 2009, Claimant underwent right knee surgery where extensive tearing of the lateral meniscus was found along with removal of a loose body. Dr. Haupt's post-operative diagnoses included: extensive tearing of the right lateral meniscus; grade IV articular cartilage erosion of the entire tibial plateau; loose body formation in the medial gutter; and grade III chondromalacia of the patellofemoral joint. Post-operatively Claimant received physical therapy, and was fitted with both a knee stabilizing brace and a varus unloader brace. When Claimant completed physical therapy and work hardening a functional capacity examination (FCE) was obtained. On August 6, 2009, Dr. Haupt reviewed the FCE results and opined Claimant was at MMI. Dr. Haupt placed the following permanent work restrictions: lifting from floor to neck of no greater than 40 pounds; knuckle to shoulder lifting of no greater than 40 pounds; shoulder to overhead lifting of no greater than 40 pounds; a 40 pound restriction for carrying up and down stairs, or with use of a dolly for up or down stairs; and a 60 pound carrying limit if on a flat surface. Due to the level of his restrictions, Employer was unable to accommodate Claimant and his employment terminated. Claimant has not returned to employment after his release.
2. Prior to the primary injury, Claimant had documented and rated preexisting injuries/ conditions that included: a) his right knee; b) his left wrist; c) an anxiety disorder; and d) hypertrophic obstructive cardiomyopathy (HOCM).

a) During January 2000, Claimant twisted his right knee while walking down a ramp at work. An MRI indicated Claimant had an extensive tear of his right lateral meniscus. Surgery was recommended. At surgery Dr. Haupt noted that in addition to the lateral meniscus tear, Claimant was found to have anterior and posterior meniscus tears, and most of the anterior horn of the lateral meniscus was resected. Following post-operative care, Claimant returned to work, but found the residual injury "slowed him down," and he continued to experience pain in the knee with bending, standing for long periods, or stepping in and out of his truck. Claimant settled his claim with Employer for 20\% PPD referable to his right knee. ${ }^{4}$

b) During 2004, during a milk delivery, Claimant injured his left wrist. Initially, Claimant received medical treatment for a left wrist sprain, but as his condition worsened he was referred to a hand surgeon. Ultimately, Claimant underwent left wrist fusion for a SLAC wrist

[^0]

[^0]: ${ }^{1}$ Due to the nature of the business conducted, "time sensitive" deliveries included most of the major St. Louis Hospitals.

${ }^{2}$ Claimant also injured his low back and left elbow, but these injuries resolved with conservative medical treatment.

${ }^{3}$ Dr. Haupt died unexpectedly shortly after Claimant's release from treatment, and neither party was able to depose him.

${ }^{4}$ During 2000, Claimant also suffered a left elbow strain and settled his case with Employer for 7.5 % PPD referable to the left elbow. Dr. Poetz did not rate this injury. During 2011 Claimant underwent a partial knee replacement.

during which bone was removed from his left iliac crest for grafting. Since surgery, Claimant has retained hardware in the wrist, is unable to bend the wrist, has limited rotation of his wrist, and is unable to lift with the wrist. Claimant is left-handed. Claimant continues to experience difficulty with writing, has left hip pain, is unable to play sports, and while working frequently required assistance to complete his "time sensitive" deliveries. Claimant settled his case with Employer for 35 % PPD referable to his left wrist.

c) Claimant suffered his first anxiety attack after his first knee surgery in 2000. During that attack Claimant sought care in the emergency room and was treated with medication. During 2004 through 2008, Claimant was provided Ativan prescriptions through his internist on at least 12 occasions with each prescription giving multiple refills. Claimant testified he would have frequent feelings of being "closed in," and had problems with depression and sleeping. During August 2009, ${ }^{5}$ the internist placed Claimant on Celexa and Ambien after Claimant complained of being tearful, depressed, and nervous. ${ }^{6}$ Cla