David Groves v. Infrasource Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-136005

Medical Fee Dispute No.: 05-01791

Employee: David Groves

Employer: Infrasource Services, Inc.

Insurer: Travelers Property \& Casualty

Health Care Provider: Freeman Hospital

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

This matter is submitted to the Labor and Industrial Relations Commission (Commission) for review. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge resolving the workers' compensation claim and the medical fee dispute 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 March 20, 2013. The award and decision of Administrative Law Judge Robert H. House, issued March 20, 2013, 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 $29^{\text {th }}$ day of October 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: OCTOBER 17, 2005
5. State location where accident occurred or occupational disease was contracted: JASPER 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: DRIVING HEAVY EQUIPMENT
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: LEFT LEG, RIGHT LEG, LEFT ELBOW
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: $\ 87,236.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 337,982.69
17. Value necessary medical aid not furnished by employer/insurer? -0 -
18. Employee's average weekly wages: $\ 902.30

Employee: David Groves Injury No. 05-136005

1. Weekly compensation rate: $\$ 601.63 / \ 365.08
2. Method wages computation: STATUTORY

1. Amount of compensation payable:

Unpaid medical expenses: See medical fee dispute in award.

0 weeks of temporary total disability (or temporary partial disability)

234.4 weeks of permanent partial disability from Employer $\ 365.08 for a total of $\ 85,574.75

20 weeks of disfigurement from Employer

1. Second Injury Fund liability: Permanent total disability differential (601.63 - \$365.08 = \$236.55) x \234.4 weeks =\ 55,447.32, thereafter, $\ 601.63 per week

TOTAL: UNDETERMINED

1. Future requirements awarded: FUTURE MEDICAL CARE

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

JohnWise

The parties presented evidence at a hearing on February 19, 2013. Claimant appeared in person and with his attorney, John Wise. Employer/insurer appeared through their attorney, Greg Carter. The Second Injury Fund appeared through its attorney, Stephen Freeland. The medical fee provider appeared through its attorney, Matt Adrian. The parties presented five issues for determination:

1. The nature and extent of disability with claimant alleging permanent and total disability.
2. The liability of the Second Injury Fund for any disability.
3. The need for future medical care - although all of the parties agree that claimant is in need of future medical care and no doctors find otherwise.
4. Disfigurement of the left elbow.
5. The direct pay medical dispute of Freeman Health Systems show additionally as med fee dispute number 05-01791.

Claimant's attorney, John Wise, seeks an attorney's fee of 25 percent.

The parties agreed that claimant's average weekly wage was $\ 902.30 per week and that the workers' compensation rate for permanent total disability was $\ 601.63 and for permanent partial disability was $\ 365.08. The parties additionally agreed that medical benefits have been paid in the amount of $\ 337,982.69 and that temporary total disability benefits have been paid in the amount of $\ 87,236.00. The parties also agree that should I find claimant to be permanently

and totally disabled that claimant reached maximum medical improvement on August 9, 2010, and that permanent total disability benefits would begin on August 10, 2010.

Claimant was employed by Infrasource Services, Inc., and worked as a foreman/laborer. On October 17, 2005, he was injured when a large metal plate weighing approximately 5000 pounds fell onto his left leg. He was transported to the emergency room where it was noted that he had sustained an open left tibia and fibula fracture. He was also evaluated by Dr. Grantham who opined that claimant had a malleolus fracture, a left calcaneus fracture, a closed $5^{\text {th }}$ metatarsal fracture, and a laceration of the left ankle joint. Dr. Grantham performed an open reduction internal fixation (ORIF) of the malleolus and the tabular fibular fracture. Claimant later underwent skin grafting procedures and was referred to Dr. Knudsen for pain management. Claimant experienced severe pain, and there was a delayed union in the left tibia and fibula requiring claimant to be placed on a bone stimulator. Claimant then developed a sympathetic nerve condition and underwent a left tarsal tunnel release by Dr. Silverberg. Claimant additionally underwent knee surgery in July 2006 because of a large tear of the medial meniscus resulting from his accident at work. In August 2006 claimant underwent an additional surgical revision of the scar on his foot. Claimant was later referred to Dr. Horton who performed multiple procedures on June 6, 2007. An MRI later revealed that claimant had a tear in the right knee for which a surgical repair was performed in August of 2007. Claimant also had pain in the left elbow and had a left lateral repair in October 2007 by Dr. Silverberg as a result of his accident at work. In November 2007 additional surgery was necessitated because of pain in claimant's foot resulting in an amputation of the left $5^{\text {th }}$ metatarsal. In January 2008 claimant was evaluated by Dr. Grantham who performed a second right knee surgery because of claimant's continuing knee pain. Since that time claimant has had continuing pain in both legs, especially the left foot and ankle, which includes constant aching, burning, stinging, and throbbing along with pain in his right leg. Claimant uses an AFO or fiberglass brace, which he wears every day on his left ankle and foot, uses a cane regularly, and continues to use braces on his right knee.

Claimant has been examined by Drs. Lennard and Corsolini for employer/insurer and Dr. Swaim, an orthopedic surgeon and independent medical examiner for his attorney. All of the doctors have opined that claimant is in need of future medical care. The need for future medical care is undisputed even though the parties raise future medical care as an issue in this case. I find and conclude that claimant is in need of future medical care to cure and relieve him from the effects of his injury. I order employer/insurer to provide claimant with such medical care as is necessary to cure and relieve him from the effects of his injury.

All of the doctors opine that claimant is basically limited to sedentary work as a result of his October 17, 2005, injury alone. Only Dr. Swaim has addressed any disability as a result of a combination of his preexisting low back injury with his disability from the last injury at work.

Dr. Lennard, a board certified physical medicine and rehabilitation physician, has rated claimant as having a permanent partial disability to the left lower extremity based upon residual numbness, weakness, pain, immobility, and surgical treatment of 50 percent of the left lower extremity at the 160 -week level. He has additionally assessed a 15 percent permanent partial disability to the right lower extremity at the 160 -week level for the right knee disorder that

required two surgeries. He additionally assessed a 15 percent disability to the left upper extremity at the 210 -week level for the residual left elbow problems from claimant's two prior surgeries.

Dr. Corsolini, a board certified physical medicine and rehabilitation physician, has also examined and rated claimant. He opined that claimant had a permanent partial disability of 75 percent of the left lower extremity at the 160 -week level and a 15 percent permanent partial disability of the right lower extremity at the 160 -week level. He further gave claimant a restriction of lifting and carrying no more than 20 pounds.

Dr. Swaim, an orthopedic surgeon (retired) and board certified independent medical examiner, rated claimant as having a 100 percent permanent partial disability of the left leg at the 160 -week level. He additionally opined that claimant had a 25 percent permanent partial disability of the left arm at the 210 -week level because of his elbow condition. Dr. Swaim also assessed a 25 percent permanent partial disability of the right leg at the 160 -week level because of claimant's knee condition. Dr. Swaim also assessed a preexisting 20 percent permanent partial disability to the body as a whole due to claimant's earlier lumbo-sacral condition which included a fusion surgery. There is a notation in the record that claimant's treating physician at the time rated his condition as a 17 percent body as a whole disability. Dr. Swaim also found claimant had a 5 percent permanent partial disability to the body as a whole due to an aggravation of his preexisting lumbar condition and development of sacroiliac joint dysfunction and right hip discomfort. Dr. Swaim ultimately found that claimant was permanently and totally disabled as a result of the combination of his preexisting disability with the disabilities from the last injury at work.

Dr. Swaim also pr