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Richard Gattenby v. Stanger Industries

Decision date: August 5, 2016Injury #14-01998630 pages

Summary

The Commission affirmed the Administrative Law Judge's award allowing permanent total disability compensation to employee Richard Gattenby, finding the Second Injury Fund liable for benefits. The decision addressed whether Gattenby's preexisting disability from a 1977 work-related motorcycle accident constituted a hindrance and obstacle to his employment in the plumbing trade.

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Caption

FINAL AWARD ALLOWING COMPENSATION (Affirming Award of Administrative Law Judge by Separate Opinion)
Employee:Richard Gattenby
Employer:Stanger Industries (Settled)
Insurer:Midwest Builders’ Casualty Mutual Co. (Settled)
Additional Party:Treasurer of Missouri as Custodian of Second Injury Fund
This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, heard the parties’ arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award of the administrative law judge by separate opinion.
Preliminaries
The parties asked the administrative law judge to resolve the following issues: (1) whether employee’s preexisting disability was a hindrance and obstacle to his employment; and (2) whether the Second Injury Fund has any liability to the employee for any disability compensation.The administrative law judge concluded that the Second Injury Fund is liable to employee for permanent total disability benefits.
The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred in concluding the Second Injury Fund is liable to employee for permanent total disability benefits.On December 16, 2015, the Commission received from the Second Injury Fund a Motion to Strike arguing that certain attachments to employee’s reply brief were not a part of the record on appeal from the Division. On December 21, 2015, employee filed a Motion to Supplement the Record on Appeal or in the Alternative to Submit Additional Evidence, and Suggestions in Opposition to Appellant’s Motion to Strike.
By order dated January 14, 2016, the Commission overruled the Second Injury Fund’s Motion to Strike, and granted employee’s Motion to Supplement the Record.On January 22, 2016, the Commission received the Second Injury Fund’s Motion to Reconsider and Set Aside the Order of January 14, 2016. By order issued February 11, 2016, we denied the Second Injury Fund’s Motion to Reconsider.
Findings of Fact
Employee’s date of birth is November 26, 1958. After finishing high school, he completed two years of community college, but did not receive a degree. Instead, employee enrolled in a four-year plumbing apprenticeship with his local union, and thereafter went to work as a plumber on residential, commercial, and industrial jobs. Employee continued in the plumbing trade until 2014. Employee has no other job skills, training, or work history.

Preexisting conditions of ill-being

In 1977, employee was operating a motorcycle in the course of his employment delivering parts for a plumbing company, when another driver ran a stop sign and crashed into him. As a result, employee suffered multiple compound fractures of the left lower extremity which required approximately 13 surgeries to correct. Ultimately, treating surgeons fused employee's entire left ankle at $10^{\circ}$ plantar flexion, and also fused each of the toes of his left foot.

After more than a year on crutches, employee was eventually able to return to normal work duties, but his coworkers dubbed him the "hobbling plumber" owing to the effects of the 1977 injury. As a result of employee's 1977 injury and subsequent surgeries, employee suffers a total loss of plantarflexion and dorsiflexion in his left ankle and is unable to move the toes to stabilize his left foot. At the time of the primary injury, this condition caused employee to walk with a markedly antalgic gait, and he was unable to endure prolonged standing or walking on his left leg without suffering severe left ankle and foot pain. He also experienced difficulty carrying, owing to the inability to flex the ankle or toes to stabilize weight, and was unable to walk backwards at all, or to climb stairs normally. In addition, employee suffered marked atrophy of the musculature of his left leg.

Employee entered a workers' compensation settlement in his claim arising out of the 1977 motor vehicle accident for approximately 60 % permanent partial disability of the left leg rated between the ankle and the knee. On August 19, 2009, employee's evaluating expert, Dr. James Stuckmeyer, assigned a 40\% permanent partial disability of the left ankle. In a subsequent report of August 2, 2014, Dr. Stuckmeyer again assigned a 40\% rating to employee's 1977 left ankle injury.

After careful consideration, given the profoundly limiting effects of the 1977 injury, including the near total loss of motion in employee's left ankle, his ongoing pain, and his considerable difficulty with numerous activities such as carrying, climbing stairs, and prolonged weight bearing, we find that employee suffered a 60 % preexisting permanent partial disability of the left ankle at the 155-week level as a result of the 1977 injury and fusion surgeries; this correlates to 93 weeks of permanent partial disability.

On August 23, 2007, employee suffered a work injury affecting his left shoulder. The initial treating physician, Dr. Joseph Noland, determined following an MRI that employee suffered tears of the supraspinatus, infraspinatus, and superior labrum. On February 7, 2008, Dr. Vincent Key performed a left shoulder medial arthroscopy with biceps tendon and rotator cuff debridement. Dr. Key's post-surgical diagnoses were (1) left shoulder pain, (2) left shoulder biceps tendon tear, and (3) left shoulder rotator cuff tear; he did not find evidence that employee had suffered a tear of the superior labrum. After a course of physical therapy, Dr. Key returned employee to work on May 9, 2008.

After he returned to full duty work in 2008, employee continued to suffer considerable pain and loss of strength in the left shoulder; difficulty pushing, pulling, lifting, and reaching; and difficulty performing overhead work. In particular, employee was no longer able to raise a screw gun with his left hand, which was an essential activity he performed as a plumber, and employee's pace of work suffered as a result. Owing to his seniority within the union, employee was able to continue working in a supervisory role as a foreman, although he was still expected to perform physical work in this capacity.

Employee entered a workers' compensation settlement in his claim arising out of the 2007 left shoulder injury for approximately 17.5 % permanent partial disability of the left shoulder at the 232-week level. In his August 2009 report, Dr. Stuckmeyer assigned a 25\% permanent partial

Employee: Richard Gattenby

disability of the left shoulder. In the subsequent August 2014 report, Dr. Stuckmeyer again assigned a 25 % rating to employee's left shoulder. We find the 17.5 % settlement amount most persuasive; this correlates to 40.6 weeks of permanent partial disability.

On January 13, 2009, employee suffered a right shoulder work injury while attempting to throw an extension cord up to a roof. Following an MRI, the initial treating physician, Dr. Kenneth Reynolds, diagnosed a complete rupture of the long head of the biceps tendon. On February 4, 2009, Dr. Key performed a right shoulder tenodesis. At some point following the surgery, employee suffered a re-rupture of the tendon. Employee underwent a course of physical therapy, and Dr. Key returned him to full duty on April 13, 2009. Following Dr. Key's release, employee continued to suffer lost strength in the right arm, which limited his ability to carry heavy items, such as buckets of gravel. Employee relied on coworkers to perform such tasks.

Employee entered a workers' compensation settlement in his claim arising out of the 2009 right shoulder injury for approximately 17.5 % permanent partial disability of the right shoulder at the 232-week level. In his August 2009 report, Dr. Stuckmeyer assigned a 25\% permanent partial disability of the right shoulder. In the subsequent August 2014 report, Dr. Stuckmeyer again assigned a 25 % rating to employee's 2009 right shoulder injury. We note that employee's only ongoing complaint referable to the right upper extremity appears to be some loss of strength; accordingly, we find employee suffered 17.5 % permanent partial disability of the right shoulder at the 232-week level as a result of the 2009 right shoulder injury; this correlates to 40.6 weeks of permanent partial disability.

On August 13, 2010, employee suffered multiple injuries after a hard landing while skydiving. Employee suffered a comminuted fracture of the left tibia; tears of the supraspinatus and infraspinatus tendons in the left shoulder; and a medial meniscus tear of the right knee. Treatment for these injuries involved multiple surgeries, and employee was off work for over a year.

Employee's initial treatment for the left leg fracture included surgery in the form of an open reduction/internal fixation of the tibial facture followed by extensive physical rehabilitation. Employee later developed extra-articular scars and heterotopic ossification affecting the left femur, for which he underwent manipulation under anesthesia on December 14, 2011, with surgical excision of the heterotopic ossification. In his evaluating report of March 20, 2014, Dr. Chris Fevurly noted that employee's left knee problems referable to the skydiving accident caused him to struggle with his work duties as a plumber, such as kneeling, squatting, and climbing ladders, and that employee continued to suffer from left knee pain and reduced range of motion. In the physical examination described in his August 2014 report, Dr. Stuckmeyer noted that employee had only 0 to $90^{\circ}$ range of motion in the left knee, diffuse joint line tenderness over the medial lateral compartment, patellofemoral pain, crepitus, and a positive grind test. Although Dr. Stuckmeyer did not provide a rating for the left knee injury, ${ }^{1}$ we deem the evidence sufficient to support a finding that the skydiving accident caused employee to suffer a 25 % permanent partial disability of the left lower extremity at the 160-week level; this correlates to 40 weeks of permanent partial disability.

For the left shoulder injury resulting from the skydiving accident, Dr. Key performed an arthroscopic decompression, acromioplasty, open rotator cuff repair, and open distal clavicle excision on March 24, 2011. Dr. Stuckmeyer did not increase his permanent partial disability rating of the left shoulder in his August 2014 report; instead, as we have noted, he retained his

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[^0]: ${ }^{1}$ Dr. Stuckmeyer did not discuss the skydiving accident in his August 2014 report, and instead focused solely on employee's disability referable to his 1977, 2007, 2009, and 2014 work-related injuries.

25\% rating. Nor did Dr. Fevurly provide a disability rating referable to the skydiving accident in his March 2014 report; instead, Dr. Fevurly related complaints from employee that are generally indistinguishable from those that we have found employee suffered following the prior 2007 left shoulder injury: pain and weakness in the left shoulder; difficulty pushing, pulling, lifting, and reaching; and an inability to hold power tools overhead with the left arm. In fact, apart from generally describing employee's ongoing struggles with the left shoulder after returning to work, the only new physical complaint described by Dr. Fevurly is popping in the left scapula and shoulder following the 2011 surgery.

Meanwhile, at the hearing before the administrative law judge, employee failed to specifically describe any new complaints affecting his left shoulder which he did not already experience as a result of his prior 2007 left shoulder work injury. Instead, in re

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