Huston Pointer v. City of Marshall

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 10-037444

Employee: Huston Pointer

Employer: City of Marshall

Insurer: Missouri Rural Services Workers' Compensation Trust

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 18, 2015. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued February 18, 2015, 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 1st day of July 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: | Huston Pointer |

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: November 18, 2014

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: May 17, 2010.
5. State location where accident occurred or occupational disease was contracted: Saline 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 approximately $41 / 2$ feet above the concrete floor, shoveling lime, when the ladder "kicked out", flipping Employee, who landed on his left shoulder and left buttock, on the concrete floor.
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, body as a whole.
14. Nature and extent of any permanent disability: 20 % permanent partial disability of the left shoulder, 15 % permanent partial disability of the body as a whole; Claimant is permanently and totally disabled due to the injury combined with preexisting disabilities.
15. Compensation paid to-date for temporary disability: $\ 4,606.33.

Employee: Huston Pointer

Injury No. 10-037444

Dependents:

Employee: | City of Marshall |

The evidentiary hearing in this case was held on November 18, 2014 in Marshall. Huston Pointer ("Claimant") appeared personally and by counsel, Michael Wilson. City of Marshall ("Employer") appeared by counsel, Clinton Collier. The Treasurer of the State of Missouri, as custodian of the Second Injury Fund, appeared by counsel, Assistant Attorneys General Brian Herman and John Reeves. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on December 19, 2014. The hearing was held to determine the following issues:

1. Whether the May 17, 2010 work accident is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. Whether Employer shall be liable to reimburse Claimant for any past medical expenses and/or mileage;
3. The liability, if any, of Employer for permanent partial disability benefits or permanent total disability benefits;
4. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits;
5. The liability, if any, of Employer for future medical benefits pursuant to Section 287.140, RSMo; and
6. The liability, if any, of Employer for temporary total disability ("TTD") benefits after September 2, 2010.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Saline County;

1. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
2. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
3. That Claimant's average weekly wage is $\ 879.35, with compensation rates of $\ 586.26 for temporary total disability benefits and permanent total disability benefits and $\ 422.97 for permanent partial disability benefits;
4. That Claimant, Huston Pointer, sustained an accident arising out of and in the course of his employment with City of Marshall on May 17, 2010;
5. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation;
6. That Employer-Insurer has paid $\ 34,518.07 in medical benefits and $\ 4,606.33 in temporary benefits and that such benefits were paid through September 2, 2010; and
7. That City of Marshall was, at all relevant times, self-insured for Missouri Workers' Compensation purposes through Missouri Rural Services Workers' Compensation Insurance Trust.

The evidence consisted of the testimony of Claimant, Huston Pointer, as well as the deposition testimony of Claimant; the testimony of Kenneth Clause; the deposition testimony of Dr. John Ciccarelli; the deposition testimony of Dr. Eddie Runde; the deposition testimony of Dr. Daniel Stechschulte; the deposition testimony of Dr. Garth Russell; the deposition testimony of Dr. Thomas Highland; the deposition testimony of Dr. P. Brent Koprivica; the deposition testimony of vocational counselor Terry Cordray; the deposition testimony of vocational counselor Michael Dreiling; rating report of Dr. J. Clinton Walker; extensive medical records; records of the Missouri Division of Workers' Compensation; report of injury, claim for compensation, and answers in the case; miscellaneous correspondence.

Huston Pointer ("Claimant") was born August 6, 1958. He graduated from high school in 1976. While in high school, he was vocationally trained in building trades. Post-high school, Claimant has had no additional schooling or training other than on-the-job training. Prior to graduating high school, Claimant worked as a farm laborer. After graduating from high school, Claimant worked very briefly for the Illinois Central Gulf Railroad. In July 1976, Claimant began working for Quinn Concrete, now known as Coreslab; Claimant worked there for almost 17 years. On March 1, 1993, Claimant began working for the Marshall Municipal Utilities (sometimes hereinafter referred to as "MMU"), which is owned by the City of Marshall

(sometimes hereinafter referred to as "Employer"). Claimant worked for Employer/MMU continuously from March 1, 1993 until the May 17, 2010 accident which is the subject of this claim.

Prior to May 17, 2010, Claimant had a significant medical history. The timeline of that history is as follows:

1979 Work injury. Left knee medial meniscus tear, surgically repaired.

Sept. 1984 Work injury. Underwent L4-S1 fusion surgery in Oct. 1984. Was off work six months.

July 1985 Work injury. Slight disruption of prior fusion. No surgery.

July 1986 Work injury. Surgery performed in Jan. 1987 consisting of L5-S1 discectomy and decompression and fusion from L3 through S1 with placement of Knodt rods. Claimant returned to work in late July 1987.

2004 Sinus surgery

2006 Hernia repair

2007 Surgery - partial colectomy

Sept. 2008 Knodt rods removed

Nov. 2008 Right knee arthroscopy: partial medial meniscectomy and abrasion chondroplasty

Dec. 2008 Left total knee replacement

Aug. 2009 Work injury to both knees; no additional surgery performed

It is also noted here that Claimant has been a $11 / 2$ pack/day smoker for many years, and continues to smoke although advised to quit numerous times. Claimant denies any significant respiratory problems, although the medical records document chronic obstructive pulmonary disease secondary to cigarette smoking treated with Combivent inhaler, Flonase nasal spray and Advair Diskus inhaler.

As stipulated, Claimant sustained an accident arising out of and in the course of his employment with MMU on May 17, 2010. The accident occurred as Claimant was on a ladder, shoveling lime, with his feet about $41 / 2^{\prime}$ off the floor when the ladder "kicked out", flipping Claimant who landed on the concrete on his left shoulder and left buttock. Claimant immediately experienced pain in the left leg, low back and left shoulder.

After emergency room evaluation and treatment, Claimant was off of work for about a week. Claimant continued to work for MMU, but in continued pain. Finally an MRI was done of Claimant's left shoulder which suggested a torn labrum and biceps tear. Claimant was referred to

Dr. J. Clinton Walker, an upper extremity surgeon, for treatment of the left shoulder. Dr. Walker initially offered conservative treatment, including steroid injections. On August 20, 2010, Dr. Walker performed arthroscopic surgery consisting of subacromial decompression, debridement and mini open rotator cuff repair; he could not repair the biceps tear. Claimant was kept off work through September 1, 2010 and then returned to light duty with restrictions of no use of his left arm and to keep it in a sling. TTD was paid from August 20 - September 2, 2010 and no additional TTD was ever paid by Employer.

In a follow up exam on October 4 2010, Dr. Walker prescribed phys