Ralph Mountjoy v. Curators of the University of Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-086381

Employee: Ralph Mountjoy

Employer: Curators of the University of Missouri

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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated February 20, 2014. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued February 20, 2014, 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 $24^{\text {th }}$ day of September 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Ralph Mountjoy

Injury No. 07-086381

Dependents:

Employer: Curators of the University of Missouri

Address: 20110777

Address: 20110777

Address: 20110777

Address: 20110777

Address: 20110777

Additional Party: Second Injury Fund

Address: 20110777

Address: 20110777

Injurer: Self-Insured

Address: 20110777

Address: 20110777

Hearing Date: November 26, 2013

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: September 7, 2007.
5. State location where accident occurred or occupational disease was contracted: Boone 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? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was on a ladder changing a ballast in a light fixture when he received an electric shock, causing him to fall from the ladder.
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: Left shoulder; head; body as a whole.
14. Nature and extent of any permanent disability: 20 % permanent partial disability of the left shoulder; 12.5 % permanent partial disability of the body as a whole.
15. Compensation paid to-date for temporary disability: $\ 11,973.13.
16. Value necessary medical aid paid to date by employer/insurer? $\ 97,494.84.

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

Jonathan McQuilkin

Employee: Ralph Mountjoy

Injury No. 07-086381

Dependents:

Employment: Curators of the University of Missouri

Additional Party: Second Injury Fund

Insurer: Self-Insured

Hearing Date: November 26, 2013

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

The evidentiary hearing in this case was held on November 26, 2013 in Columbia. The record was left open for the filing of the deposition transcript of witness Anita Ness; the transcript was filed on December 3, 2013. The parties requested leave to file post-hearing briefs, which leave was granted, and the cases were submitted on January 13, 2014.

The hearing was held to determine the following issues:

1. The liability, if any, of Employer for permanent partial disability benefits or permanent total disability benefits;
2. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits;
3. The liability, if any, of Employer for future medical benefits pursuant to Section 287.140, RSMo; and
4. Whether the work accident of September 7, 2007 was the prevailing factor in the cause of any or all of the conditions alleged in the evidence.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this claim;
2. That venue for the evidentiary hearing is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;

1. That Claimant's average weekly wage is $\ 821.68, with compensation rates of $\ 547.79 for temporary total disability benefits and permanent total disability benefits, and $\ 389.04 for permanent partial disability benefits;
2. That Claimant sustained an accident arising out of and in the course of his employment with the University of Missouri on September 7, 2007;
3. That Employer paid medical benefits in the amount of $\ 97,494.84;
4. That Employer paid temporary total disability ("TTD") benefits of $\ 11,973.13 for the period September 8, 2007 through February 7, 2008;
5. That Claimant returned to work on February 4, 2008, and therefore Employer is entitled to a credit for $4 / 7$ weeks TTD overpayment; and
6. That the University of Missouri was and is an authorized self-insurer for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of Claimant, Ralph Mountjoy, as well as the deposition testimony of Ralph Mountjoy; the testimony of Cynthia Mountjoy, Claimant's wife; medical records; hunting records from the Missouri Department of Conservation; records from the Missouri Division of Workers' Compensation; the narrative report and deposition testimony of Dr. P. Brent Koprivica; the narrative report and deposition testimony of James England, Jr., a vocational rehabilitation consultant; a letter from Anita Ness at Broadspire posing questions to Dr. James Kessel and Dr. Kessel's hand-written answers; the narrative report and deposition testimony of Dr. Dave Rengachary; the narrative report and deposition testimony of Dr. William Frisella; the narrative report and deposition testimony of Michael Dreiling, a vocational rehabilitation consultant; testimony of Christopher Haile, a former private investigator; surveillance videos; Internet information regarding Claimant; and the deposition testimony of Anita Ness.

Ralph Mountjoy ("Claimant") was born November 16, 1955 and has lived in Columbia, Missouri since an early age. Claimant graduated from Hickman High School in 1974 and has not attended college or technical school. Claimant worked as a plumber and pipefitter for several companies from 1974 to 1982; in 1982 Claimant began working for the University of Missouri ("Employer") as a pipefitter. Claimant worked continuously for Employer from 1982 until his 2007 discharge effective June 30, 2008. Until early 2007, Claimant's work consisted primarily of design and installation of fire suppression sprinkler systems.

In the spring of 2007, Claimant transferred to a position in the Custodial Maintenance Department performing small plumbing jobs and general maintenance. On September 7, 2007, Claimant was changing a light ballast when he received an electrical shock and fell approximately 10 feet from a ladder. He spent eleven days at University Hospital where he underwent a splenectomy and received treatment for a pneumothorax and several broken ribs.

After being discharged, Claimant was seen in follow-up by Dr. James Kessel. In November, Dr. Kessel recommended Claimant see Dr. Steven Kane, an orthopedic surgeon, for evaluation of shoulder pain. Dr. Kane recommended an MRI because he felt Claimant might have a rotator cuff tear. The MRI showed evidence of a large tear of the supraspinatus with retraction and atrophy, atrophy of the infraspinatus, subscapularis tendinosis, a torn bicep tendon, a superior labrum tear that was likely degenerative in origin, multiple cysts and osteophytes, and anchors in the humeral head consistent with a prior shoulder surgery. Dr. Kane described the MRI as showing a massive rotator cuff tear with retraction. Although he was not sure the tear could be successfully repaired, he recommended arthroscopic evaluation. Surgery was performed on December 3, 2007 and consisted of an arthroscopic subacromial decompression, an arthroscopic repair of a massive rotator cuff tear, and debridement of diffuse intra-articular synovitis. Claimant began physical therapy focused on passive range of motion after the surgery. On 1/11/08, Dr. Kane stated that Claimant was progressing quite nicely and had excellent range of motion. Dr. Kane recommended the therapy progress to active range of motion as of that date. When he re-examined Mr. Mountjoy in February, Dr. Kane noted 3+/5 strength and recommended continued therapy. While receiving therapy on 3/17/08, Claimant reported considerable pain in conjunction an audible pop while performing active range of motion. When he was seen by Dr. Kane the next day, Claimant reported having no strength in his arm and decreased range of motion. Dr. Kane recommended a repeat MRI. The MRI was performed on 3/28/08 and showed that the supraspinatus repair had re-torn. Dr. Kane advised Claimant to continue with a home exercise program and released him to return to work with permanent restrictions. In his follow-up note dated 5/1/08, Dr. Kane stated that no further surgery would be of benefit.

On December 18, 2007, approximately 3-1/2 months after the work accident, and two weeks after the shoulder surgery, Claimant consulted his personal physician, Dr. Ellen McQuie, with complaints of headaches. He gave a history of a gradual onset of frontal left and front right headaches following the accident in September. He described the headache symptoms as pressure, sharp, squeezing, and throbbing. Dr. McQuie documented associated symptoms of blurred vision and dizziness and noted "about 60 % are migraine (has had previously)". She recommended Amitriptyline for headache prevention and Imitrex to be taken at the onset of a migraine. Claimant continued to treat with Dr. McQuie periodically through the date of the hearing. Claimant has also seen a neurologist, Dr. Allyn Sher, on three occ