Gary Gieck v. Ross Allen Floor Covering, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-053634

Employee: Gary Gieck

Employer: Ross Allen Floor Covering, Inc.

Insurer: Nationwide Mutual Insurance Co./Allied Group Insurance

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 24, 2017. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued May 24, 2017, 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 $\qquad 28 ^{\text {th }} \qquad$ day of December 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Insurer: Nationwide Mutual Insurance Co./Allied Group Insurance

Hearing Date: March 20, 2017

Checked by: HDF/scb

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: June 1, 2004
5. State location where accident occurred or occupational disease was contracted: Cole 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: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Bilateral knees
14. Nature and extent of any permanent disability: Permanent and total disability
15. Compensation paid to-date for temporary disability: $\ 19,648.66
16. Value necessary medical aid paid to date by employer/insurer? $\ 58,644.26

Employee: Gary Gieck Injury No. 04-053634

1. Value necessary medical aid not furnished by employer/insurer? $\ 149,598.53
2. Employee's average weekly wages: ----
3. Weekly compensation rate: $\ 662.55 for temporary and permanent total disability benefits $\ 347.05 for permanent partial disability benefits
4. Method wages computation: By agreement

1. Amount of compensation payable: Permanent and total disability benefits from December 28, 2004
2. Second Injury Fund liability: $\quad-0$ -
3. Future Requirements Awarded: Medical treatment for bilateral knee injuries

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder except future medical in favor of the following attorney for necessary legal services rendered to the claimant: Rudolph Veit.

Employee: Gary Gieck

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on March 20, 2017. Memoranda were submitted by April 14, 2017.

The parties stipulated that on or about June 1, 2004, the claimant, Gary Gieck, was in the employment of Ross Allen Floor Covering, Inc. (Ross Allen). The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by Nationwide Mutual Insurance Co./Allied Group Insurance. The employer had notice of the injury. A claim for compensation was timely filed. The compensation rate is $\ 662.55 per week for temporary and permanent total disability benefits and $\ 347.05 per week for permanent partial disability benefits. Temporary disability benefits have been paid in the amount of $\ 16,563.75 from August 4, 2004, through December 21, 2004. Temporary partial disability benefits were paid in the amount of $\ 3,084.91 for three different periods of time before December 28, 2004. Medical aid has been provided in the amount of $\ 58,644.26.

The issues to be resolved by hearing include 1) whether the employee sustained an occupational injury or disease through June 1, 2004, 2) whether the alleged occupational injury or disease arose out of and in the course of employment, 3) the liability of the employer/insurer for past medical treatment, 4) the liability of the employer/insurer for additional medical treatment, 5) the liability of the employer/insurer for temporary total disability benefits as of December 21, 2004, 6) the nature and extent of permanent disability, and 7) the liability of the Second Injury Fund.

The parties entered into stipulations regarding both past and future medical expenses as set out in the attached agreement, marked as Exhibit 1.

In addition, the parties agreed that temporary disability benefits were paid through December 28, 2004. (See March 21, 2016 e-mail attached as Exhibit 2.)

This workers' compensation claim was the subject of a hearing on July 20, 2005; the 2005 award that resulted from that hearing is attached hereto and incorporated herein. The facts as stated in that 2005 award will not be repeated in the current award.

The claimant, Gary Gieck, testified that he is 55 years as of the date of hearing. Mr. Gieck was educated through the $9^{\text {th }}$ grade, but said that he had had to repeat the first grade. Mr. Gieck testified that he was always placed in special education classes, could not keep up with other students and failed his GED examination. Mr. Gieck cannot follow complicated instructions, but has learned how to read blueprints for laying out flooring. Mr. Gieck can add and subtract but uses a computer for more complicated math.

Mr. Gieck's work history includes assembly line work, work as a fry cook, work as a bartender, work at a different flooring company getting floors ready to be laid and carrying tools, and work for different carpet stores laying flooring. Mr. Gieck began working for Ross Allen in 1996 or 1997 preparing floors for new flooring and laying carpets, primarily, but also tiles. Mr. Gieck testified to the use of a "knee kicker" to stretch the carpet so that the seams would abut; Mr. Gieck would use either knee to hit the knee on a pad on a tool designed to grab the carpet and stretch it. Mr. Gieck described the "knee kicking" as jarring to the entire body.

In 1994, according to Mr. Gieck, he had a back injury after carrying tools and carpet. Mr. Gieck testified that he took medication, including anti-inflammatory medications, had physical therapy and went back to laying carpet. Mr. Gieck believes that he lifted less weight after that and occasionally iced his back.

In 2000, said Mr. Gieck, he fell into a wall while lifting the bottom end of a roll of carpet after the person carrying the other end of the carpet let go of the carpet. Mr. Gieck had back surgery as the result of the 2000 accident. Mr. Gieck believes that he settled the ensuing workers' compensation claim based on a permanent disability of about 18 percent of the body. After the 2000 injury Mr. Gieck had accommodations on the job, including help unloading the truck with the assistance of a person or a crane; his back was still sore and he iced it at lunch break and at night he would take a warm bath with Epsom salt to relieve the back pain. Mr. Gieck noted that after the 2000 accident and injury he was a lot slower going up and down stairs and would often take hold of the handrail as he was taking stairs. Mr. Gieck said that he had an assistant with work 90 percent of the time after 2000 and that he primarily laid carpet between 2000 and 2004.

Mr. Gieck testified that he had had knee and back complaints leading up to 2004. On June 2, 2004, Mr. Gieck sought emergency room treatment at Capital Region Medical Center "with complaints of pain in both of his knees, worse since Saturday... [Mr. Gieck] states he finally thinks he needs to have something done for both of his knees and presents for evaluation." Mr. Gieck also discussed chronic back pain since his surgery that "intermittently bothers him." (Capital Region records Ex.46) The next record of a back complaint is during physical therapy at Peak Performance in September of 2004, after Mr. Gieck reported a fall, landing on his shoulder and complained of left shoulder and back soreness. Two days later there is another reference to back soreness. (Peak Performance records Ex. 46) Subsequent complaints of back pain after

Employee: Gary Gieck Injury No. 04-053634

dinner at Pizza Hut and during physical therapy as well as analysis of and treatment for the back are discussed in the 2005 award.

Ross Allen, the owner of Ross Allen Floor Covering, testified that Mr. Gieck was an excellent, hard working employee. After Mr. Gieck recuperated from his 2000 back surgery he performed his work as well as he had prior to his back injury, albeit with assistance in lifting heavier weights.

Dr. Garth Russell, certified orthopedic surgeon and in injury evaluations, testified by deposition in June of 2010 that Mr. Gieck is permanently and totally disabled as the result of his history of back surgery in combination with his repeated back and knee injuries while laying carpet over a 20-year period. Dr. Russell also noted that Mr. Gieck suffered from depression and narcotic addiction secondary to the knee and low back injuries. Dr. Russell did not feel that Mr. Gieck is capable of employment. Although Dr. Russell did not believe that Mr. Gieck is a surgical candidate, he did opine to the need for Mr. Gieck to have treatment for pain and depression associated with the 2004 back and knee injuries. Dr. Russell also noted that at some point Mr. Gieck would need bilateral knee replacements. Dr. Russell admitted that Mr. Gieck's degenerative condition of his knees progressed from 2004 through 2008 when Dr. Russell examined his knees. Dr. Russell acknowledged that Dr. Bondurant performed back surgery on Mr. Gieck in 2000 and released him from treatment in 2001 with a 25-pound pushing, pulling, and lifting restriction and that Mr. Gieck returned to his job laying carpet at Ross Allen. Dr. Russell reiterated that Mr. Gieck's 2000 back surgery was going to leave him with back pain and that his condition in 2004 was "a condition that had built up all the way up until June of 2004". (Russell 2010 depo p61, 18,19)

Dr. Russell testified again by deposition on September 15, 2015, and noted that Mr. Gieck had had bilateral knee replacements since he last testified regarding Mr. Gieck's condition in 2010. Dr. Russell affirmed that he believed that Mr. Gieck was permanently and totally disabled as the result of the bilateral knee and back injuries he sustained in his work for Ross Allen. Dr. Russell also testified that the care and treatment Mr. Gieck had received for his knees was necessitated by the trauma Mr. Gieck sustained to his knees as the result of laying carpet and tile through June 1 of 2004. Dr. Russell stated in response to a question about Mr. Gieck's prior back condition that "it was when [Mr. Gieck] got up to about in the late '90s, in 1998, it began to get more severe and hit its worst time in - in the year 2000. And that's when they did the significant surgery to his lower back at that time." (Russell depo 2015 p22, 3-7) Dr. Russell concluded that Mr. Gieck's "back condition as it existed prior to 2004 and previous back condition and the ...cumulative trauma to his back combined with the present and the ultimate condition as of 2004 make him permanently and totally disabled." (Russell 2015 depo p32, 1 14-21) Dr. Russell testified to the relationship between the knee injuries and the back injury stating that Mr. Gieck could not engage in any job where he would have to stand or walk because the artificial knees Mr. Gieck has cannot hold up to that activity and because his back injury does not allow Mr. Gieck to compensate for knee weakness with his back. While Dr. Russell discussed Mr. Gieck's depression which he believed was secondary to his physical injuries, Dr. Russell opined to Mr. Gieck's permanent and total disability even absent the depression.

Employee: Gary Gieck

Injury No. 04-053634

Gary Weimholt, vocational rehabilitation consultant, testified by deposition on December 9, 2015, that he believed that Mr. Gieck is permanently and totally disabled and has no access to the open labor market. Mr. Weimholt opined that it is the condition of Mr. Gieck's knees and back that foreclose his ability to participate in the open labor market and that he is permanently and totally disabled as the result of the June 1, 2004 work injury. Mr. Weimholt then stated that he would defer to the opinion of medical specialists regarding the issue of whether the permanent total disability is as the result of a combination of disabilities or from the disabilities attributable to the last injury alone. Mr. Weimholt stated that Mr. Gieck's disability attributable to his knees alone would disqualify him from his past or any other work. If the condition of the knees were not alone to disqualify him from work then he would be disabled as the result of the condition of the knees and his back surgery. Mr. Weimholt opined that Mr. Gieck is permanently and totally disabled as the result of his last knee injury in 2004 alone when viewed in the context of Mr. Gieck's education and intellectual and social capabilities.

Donna Abrams, certified rehabilitation counselor, testified by deposition that she believes that Mr. Gieck is capable of employment, but that given his many years of unemployment, his use of narcotic medications and his complaints, it would be difficult for Mr. Gieck to find employment.

Dr. Michael Nogalski, orthopedic surgeon, testified by deposition in 2010 that he evaluated Mr. Gieck on June 7, 2007. Dr. Nogalski assessed a permanent disability of eight percent of each knee as the result of Mr. Gieck's June 1, 2004 injury.

Dr. Nogalski testified by deposition again on January 23, 2017, that he reexamined Mr. Gieck on October 22, 2013. Dr. Nogalski opined that Mr. Gieck's bilateral knee replacements (right knee2011, left knee-2012) were not necessitated by the accident and injury of June 1, 2004. Dr. Nogalski opined that a large part of Mr. Gieck's knee complaints were the result of preexisting chondromalacia as well as foraminal stenosis in the lumbar spine. Dr. Nogalski opined that permanent disability attributable to the injury of June 2, 2004, is two percent of each knee. Dr. Nogalski said that he had seen no record from a physician indicating that the back injuries are the result of the June 2004 work injury.

Dr. Michael Chabot, orthopedic spine surgeon, testified by deposition that he evaluated Mr. Gieck on June 9, 2014. Dr. Chabot did not find Mr. Gieck's complaints of back pain to be related to the injury of June of 2004; rather, Dr. Chabot diagnosed Mr. Gieck with chronic degenerative back pain unrelated to his work duties.

Dr. Joann Mace, MD, testified by deposition in October of 2005, that she believed the condition of Mr. Gieck's knees had deteriorated to the point where she believed he needed the attention of an orthopedic surgeon to determine additional care. Dr. Mace described the condition of Mr. Gieck's knees to be that he was suffering from progressive osteoarthritis.

A workers' compensation claimant is permanently and totally disabled when the worker "cannot return to any normal or reasonable employment" due to a disability. Schussler v. Treasurer, 393 S.W.3d 90, 96 (Mo.App. 2012). If the worker can compete in the open labor market, the worker

is not PTD. Id. "The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition." Id. The worker need not be inert or completely inactive to be considered PTD. Id.

"Employers are required to 'provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.'" Goerlich v. TPF, Inc., 85 S.W.3d 724, 731-32 (Mo. App. E.D. 2002) (quoting §287.140.1, RSMo). "All charges for medical services must be fair and resonable." Id. at 732 (citing §287.140.3, RSMo).

Claimant has sustained his burden to show that he is entitled to the payment of future medical expenses incurred as a result of his work-related injury. In order to obtain entitlement to future medical care, a claimant must show by a "reasonable probability" that future medical care is needed by reason of his or her work-related injury. See Tilley v. USF Holland, Inc., 325 S.W.3d 487, 494 (Mo.App. E.D. 2010). "Probable" means found on reason and experience which inclines the mind to believe but leaves room for doubt. Fitzwater v. Department of Public Safety, 198 S.W.3d 623, 628 (Mo.App. 2006).

In cases of permanent total disability, the employer is only liable for permanent total disability benefits if the disability that resulted from the employer's work-related injury alone would have rendered the Employee permanently and totally disabled. See Burgstrand v. Crowe Coal Co., 62 S.W.2d 406, 409 (Mo.1933).

The claimant, Gary Gieck, has sustained his burden of proof that he sustained an occupational injury resulting in bilateral knee injuries as the result of his work for Ross Allen up to and including June 1, 2004. Mr. Gieck's testimony, as well as the testimonies of Dr. Haupt and Dr. Russell, confirms that Mr. Gieck's work as a carpet and tile layer resulted in injury to both knees. (Note discussion of Dr. Haupt's testimony in 2005 temporary award.)

Mr. Gieck has failed to prove that his continued back complaints are the result of an occupational injury as the result of his work for Ross Allen up to and including June 1, 2004, separate and apart from his work injuries preexisting and including his 2000 accident and injury. The 2005 award discusses the lack of a finding of a relationship between the 2004 injury and a back injury. Dr. Russell does not establish a correlation between the back and a new occupational injury when he discusses the gradual deterioration of the back culminating in the need for surgery in 2000. Dr. Russell admitted that Mr. Gieck was expected to have ongoing back complaints after his 2000 surgery.

Mr. Gieck has sustained his burden of proof that he is entitled to payment of his medical bills for his treatment of his knees, including his bilateral knee replacements. Dr. Russell testified that the knee replacements were necessitated by the original knee injuries of 2004 and that the treatment

Employee: Gary Gieck

Injury No. 04-053634

flowed from those injuries. The parties have stipulated that the bills that are the responsibility of the employer/insurer are in the amount of $\ 149,598.53.

Mr. Gieck has sustained his burden of proof that he is entitled to future medical treatment for his knees. Dr. Russell testified to the continuing care and treatment that Mr. Gieck would need as the result of his bilateral knee injuries in his 2010 deposition.

Mr. Gieck has sustained his burden of proof that he is permanently and totally disabled as the result of the June 1, 2004 injuries to his knees. Mr. Weimholt testified that the knee injuries alone are sufficient to cause Mr. Gieck to be unable to gain employment in the open labor market given his intellectual deficits and deficits in vocational education. While Mr. Gieck presented with preexisting disabilities, it is the last injury alone which suffices to render him unemployable. Mr. Gieck was determined to be at maximum medical improvement when Dr. Haupt released him from treatment on December 9, 2004. Thus permanent total disability benefits are awarded as of December 10, 2004, with a credit for temporary total disability benefits paid through December 28, 2004.

Mr. Gieck has failed to prove liability on the part of the Second Injury Fund given the evidence with regard to the affect of the knee injuries of June 1, 2004 on Mr. Gieck's ability to achieve gainful employment.

Made by:

HANNELORE D. FISCHER

Administrative Law Judge

Division of Workers' Compensation