Bobby Cureton v. Construction Trailer Specialists, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-068793

Employee: Bobby Cureton

Employer: Construction Trailer Specialists, Inc.

Insurer: Zurich American Insurance Company

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 April 29, 2013, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued April 29, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Bobby Cureton

Injury No. 11-068793

Dependents: N/A

Employer: Construction Trailer Specialists, Inc.

Additional Party: N/A

Insurer: Zurich American Insurance Company

Appearances: Sarah Heise and Mark Lanzotti, attorneys for the employee. Jared Cone, attorney for the employer/insurer.

Hearing Date: Commenced: January 7, 2013

Checked by: LCK/rm Completed: January 31, 2013

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease? August 22, 2011.
5. State location where accident occurred or occupational disease contracted: Scott 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? No.
9. Was claim for compensation filed within time required by law? Yes.

1. Was employer insured by above insurer? Yes.
2. Describe work employee was doing and how accident happened or occupational disease contracted: The employee tripped and fell.
3. Did accident or occupational disease cause death? No.
4. Parts of body injured by accident or occupational disease: N/A.
5. Nature and extent of any permanent disability: None.
6. Compensation paid to date for temporary total disability: None.
7. Value necessary medical aid paid to date by employer-insurer: $3,834.21.
8. Value necessary medical aid not furnished by employer-insurer: None.
9. Employee's average weekly wage: Undetermined.
10. Weekly compensation rate: Undetermined.
11. Method wages computation: Undetermined.
12. Amount of compensation payable: None.
13. Second Injury Fund liability: N/A.
14. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: N/A.

On January 7, 2013, the employee, Bobby Cureton, appeared in person and with his attorneys, Sarah Heise and Mark Lanzotti for a hearing for a temporary award. The employerinsurer was represented by its attorney, Jared Cone. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Construction Trailer Specialists, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Zurich American Insurance Company.
2. On August 22, 2011, Bobby Cureton was an employee of Construction Trailer Specialists, Inc. and was working under the Workers' Compensation Act.
3. On August 22, 2011, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employer-insurer paid $\ 3,834.21 in medical aid.
7. The employer-insurer did not pay any temporary disability benefits.

1. Medical causation.
2. Claim for previously incurred medical aid.
3. Claim for mileage under Section 287.140 RSMo.
4. Claim for additional medical aid.
5. Attorney's fees and expenses under Section 287.560 RSMo by the employee.

A. Letter from Dr. Lents dated December 5, 2011.

B. Letter from Dr. Lents dated December 27, 2011.

C. Account Statement from Twin City Pharmacy.

D. Affidavit of Attorney's Fees and Expenses.

E. Deposition of Dr. Palen.

F. Certified medical records of Advanced Orthopedic Specialists.

G. Certified medical records of Crosstrails Medical Center.

H. Certified billing records of Crosstrails Medical Center.

1. Deposition of Dr. Strecker.

Joint Exhibits:

1. Supplemental pre-existing medical records (Note: On January 31, 2013 upon the agreement of the parties, the record was reopened for the admission of this exhibit. The exhibit was admitted into evidence and the record was closed).

Judicial Notice of the contents of the Division's file for the employee was taken.

WITNESS: Bobby Cureton

BRIEFS: The employee filed his brief on February 11, 2012. The employer-insurer filed its brief on February 7, 2013.

2007:

The employee testified in 2007 he had a motorcycle accident where he ran off the road and crashed. He injured his right wrist but did not injure his back.

On October 7, 2007, the employee saw Dr. Schafer due to the motorcycle accident. Dr. Schafer diagnosed a periluntate dislocation of the right wrist; and performed a closed reduction of the transscaphoid perilunate dislocation and application of a short arm thumb spica cast. On October 10, Dr. Schafer diagnosed a transscaphoid perilunate dislocation of the right wrist with a scaphoid fracture and scheduled surgery. On October 16, Dr. Lents performed an open reduction and internal fixation of the right scaphoid fracture. In November, Dr. Lents noted the scaphoid fracture separated just a bit, but there was probably less gap than perceived. There was no sign of a malformation and no widening of the scaphoid lunate interval. A short arm thumb spica splint was continued. On December 12, the employee had some discomfort on the radial side. The xrays showed alignment of the carpus was good and the scaphoid fracture was healing. Vicodin was prescribed. On December 20, Dr. Lents refilled the Vicodin. On December 27, a prescription for Darvocet was called in by Dr. Lents who denied the request for Vicodin.

2008:

On January 23, 2008, the employee's wife called asking for a prescription for pain medication which Dr. Lents denied since the employee did not keep his last appointment on January 9. On March 10, the employee saw Dr. Lents with continued difficulty with his wrist. On exam the employee was tender to palpation over the distal pole of the scaphoid. X-rays showed the carpus to be aligned nicely, however there was a large cystic lesion in the mid portion of the scaphoid which may go to a non-union. The alignment and fixation of the Acutrak screw

**Injury No. 11-068793**

looked good. Dr. Lents ordered tomograms. On March 27, 2008 Dr. Lents stated the tomograms showed a clear non-union of the scaphoid and loosening of the previously placed Acutrak screw. Dr. Lents diagnosed a non-union of the right scaphoid.

On April 16, 2008, Dr. Lents performed an open reduction and internal fixation with bone graft for a non-union of the right scaphoid. On April 28, Dr. Lents stated that the x-ray showed good alignment and good fixation. Vicodin was prescribed. The employee was to return in two weeks. On May 8, a prescription refill for Vicodin was called in by Dr. Lents who stated that would be the last Vicodin refill. On May 12, the employee canceled his appointment. On May 15, the employee requested Vicodin that was denied. It was noted that the employee must make a follow up appointment. Dr. Lents prescribed Darvocet. On June 16, Dr. Lents stated that the employee was still having significant pain. The employee had been laid off and was not working. X-rays showed good position of the screw and union of the fracture was not noted. The employee was to return in two weeks. On June 30, the employee requested Vicodin stating that Darvocet was not helping. The request for Vicodin was denied. Dr. Lents called in a prescription for Ultracet with no refills.

The employee testified that it was his understanding that in June of 2008 he was diagnosed with a non-union of the right scaphoid. When he last saw Dr. Lents in 2008 he was prescribed medication for his wrist. After that he returned to work, and was able to complete all of his job duties. He started seeing Dr. Doyle at Cross Trails for his right wrist, low back and other conditions.

The employee went to Dr. Doyle on September 24, 2008, for a prescription refill due to right wrist pain. Dr. Doyle diagnosed chronic pain due to non-union of the right scaphoid fracture; prescribed pain medication and a cock-up splint; and physical therapy was discussed.

On October 20, the employee had right wrist pain, tenderness and decreased grip strength which affected its use and he was unable to work. Dr. Doyle diagnosed pain from the right scaphoid fracture and noted a referral to Dr. Tobin was due to the non-union. On November 17 the employee had continued pain in the right wrist due to a long standing scaphoid non-union. He had decreased grip in his right hand and tenderness. Dr. Doyle continued the medications and splint. On December 15, 2008, the employee had right wrist pain due to the non-union of the scaphoid fracture. It appeared the employee had, or Dr. Doyle recommended, a surgical consultation.

On January 6, 2009, Dr. Doyle saw the employee for the scaphoid non-union and anxiety. The employee had increased pain in his right wrist and hand. On examination, there was crepitation and limited range of motion due to pain. There was a note to search for an orthopedic surgeon. The employee saw Dr. Doyle on January 29 with chronic right hand pain. Medications were prescribed and an orthopedic referral was discussed.

Dr. Doyle noted on February 25, 2009 that the employee had right wrist pain and was unable to lift without a cock-up splint. He had decreased grip in the right hand. Dr. Doyle prescribed Vicodin 7.5/500 and noted that the employee was waiting for a consult with a hand surgeon. On March 23, Dr. Doyle noted that the right wrist pain was getting worse due to the scaphoid non-union. The employee had tenderness and was using a cock-up splint. Medications were prescribed. Dr. Doyle noted on April 21, that the right wrist pain was worse. Prescribed were Vicodin 7.5/500 and Klonipin. On May 21, the employee returned for his monthly pain medication refill due to right wrist pain of 6 out of 10 . The clinical impression was chronic pain and right scaphoid non-union. Medications were prescribed.

The employee saw Dr. Doyle on June 25, 2009, who noted that the right wrist and hand pain was worse; there was sensory loss; and decreased grip. The pain was mild to moderate and it interfered with work. There was swelling, pain on palpitation and decreased grip from the right scaphoid non-union. Medications were prescribed. On July 28, Dr. Doyle noted continuing pain and decreased grip. He diagnos