Richard Ambrozetes v. Smurfit Stone Container Enterprise d/b/a Rock Tenn

Past medical expenses

In its brief, employer argues that the administrative law judge misstated the opinions from its medical expert, Dr. John Krause. We disagree, but wish to provide some clarifications. The administrative law judge suggests in her award that Dr. Krause "insists" that surgery to employee's right ankle was not indicated because employee did not have instability in the ankle. See Award, page 8. This statement by the administrative law judge correctly recites the initial opinion from Dr. Krause set forth in his letter of September 10, 2012. Employer notes, however, that Dr. Krause conceded, on cross-examination at his deposition, that ankle instability is not necessarily required before surgery for the right ankle would be indicated, and that if employee had a tear of his peroneal tendon with ongoing pain, it was appropriate to repair it. See Transcript, page 643. Having acknowledged this ambiguity in Dr. Krause's opinions, we fail to appreciate how this circumstance supports employer's arguments on appeal.

In any event, we defer to and adopt as our own the administrative law judge's wellreasoned findings with regard to the weight to be given to the various medical expert opinions in this matter. We do note, however, that the administrative law judge's award of past medical expenses appears to have included the cost of treatments for employee's right knee pain on July 25, 2011, and October 31, 2011. Specifically, the administrative law judge cited employee's Exhibit 5 as supporting her award of a total of $\ 29,148.70 in past medical expenses. Exhibit 5 lists treatments on July 25, 2011, and October 31, 2011, at a cost of $\ 102.00 each. The medical treatment records corresponding to those dates of service reveal that those costs were incurred for doctor's office visits in connection with injections of the right knee performed by Dr. James Schaberg. See Transcript, pages 244, 304, 397-98.

It appears that the July 25, 2011, treatment with Dr. Schaberg was at least somewhat related to the right ankle work injury, given that Dr. Schaberg's note suggests that employee's right knee pain arose in the context of employee's limping after right ankle surgery. But in both his testimony at the hearing before the administrative law judge and in his brief before this Commission, employee specifically conceded that he is not seeking any recovery for his right knee complaints. See Transcript, page 57. We note also the uncontested evidence that employee suffered from longstanding preexisting arthritis in his right knee, as well as the absence of any expert medical opinion that the right knee treatments with Dr. Schaberg flowed from the effects of the accident of November 12, 2009.

Given these circumstances, we conclude pursuant to $\S 287.140 .1$ RSMo that the July 25, 2011, and October 31, 2011, right knee treatments with Dr. Schaberg were not reasonably required to cure and relieve the effects of the right ankle work injury, and we hereby modify the administrative law judge's award accordingly.

We modify the award of the administrative law judge as to the issue of past medical expenses.

Employer is liable for a total of $\ 28,944.70 in past medical expenses.

The award and decision of Administrative Law Judge Linda J. Wenman, issued March 10, 2015, is attached hereto and incorporated by this reference to the extent not inconsistent with our findings, conclusions, decision, and modifications herein.

The Commission approves and affirms the administrative law judge's allowance of an 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 $14^{\text {th }}$ 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:

Secretary

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: November 12, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis 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: While using a smart cart moving materials from one line to another, contact was made with materials on another line, and the materials shifted falling on Employee.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right knee (resolved), right ankle/foot.
14. Nature and extent of any permanent disability: 20 % PPD referable to the right ankle/foot at the 155 week level.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $\ 425.82

Employee: Richard Ambrozetes

Injury No.: 09-111355

1. Value necessary medical aid not furnished by employer/insurer? $\ 29,148.70
2. Employee's average weekly wages: $\ 748.49
3. Weekly compensation rate: $\$ 498.99 / \ 422.97
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: $\ 29,148.70

$104 / 7^{\text {th }} weeks of temporary total disability (or temporary partial disability) \ 5,275.04

31 weeks of permanent partial disability from Employer $\ 13,112.07

1. Second Injury Fund liability: Open

TOTAL: $\ 47,535.81

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: Nancy Mogab

Employee: Richard Ambrozetes

Injury No.: 09-111355

Dependents: N/A

Employer: Smurfit Stone Container Enterprise presently DBA Rock Tenn

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW

A hearing for final award was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on September 30, 2014, and reconvened on December 10, 2014. ${ }^{1}$ Attorney Nancy Mogab represented Richard Ambrozetes (Claimant). Smurfit Stone Container Enterprise, dba Rock Tenn (Employer) is self-insured and represented by Attorney David Green. The Second Injury Fund (SIF) did not participate in the hearing and remains open.

Prior to the start of the hearing, the parties identified the following issues for disposition in this case: medical causation; liability of Employer for past medical expenses; liability of Employer for past temporary total disability (TTD) benefits; liability of Employer for permanent partial disability (PPD) benefits; and liability of Employer for opposing counsel's costs and fees. Claimant offered Exhibits 1-15. Employer offered Exhibit A-J. Exhibits 1-14 and A-J were admitted into the record, and objections to Exhibit 15 were sustained. 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 currently 50 years old, a high school graduate, and has completed approximately 90 college credit hours. Claimant has worked for Employer in several different job positions, but currently works for Employer as a senior material handler. As a senior material handler, Claimant drives a "smart cart" that travels down a set line picking up stock from the assembly

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[^0]: ${ }^{1}$ At the close of testimony on September 30, 2014, the parties consented to leave the hearing record open to allow the parties to offer additional exhibits and testimony regarding the disputed issues of costs and attorney fees, which were unknowable on the date of the original hearing. A post-trial briefing schedule was established on September 30, 2014, which required Claimant's brief to be due on October 31, 2014, and