Robert March v. Milbank Manufacturing Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 15-088007

**Employee:** Robert March

**Employer:** Milbank Manufacturing Company (Settled)

**Insurer:** Safety National Casualty (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 reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the award of the administrative law judge denying 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 and decision of the administrative law judge with this supplemental opinion.

Due to various grammatical errors and confusing language, we correct and supplement the facts and conclusions from the Administrative Law Judge, as follows:

The Administrative Law Judge heard this matter on January 9, 2020, pursuant to 287.110, RSMo. Robert March (employee) appeared with counsel, Jerry Kenter, and Assistant Attorney General Alexandria Wilson, counsel for the Second Injury Fund, also appeared at the hearing.

The sole issue before the administrative law judge was the liability of the Second Injury Fund. Employee and the employer/insurer previously settled their disputes in this matter.

The evidence at the hearing before the administrative law judge consisted of employee's live testimony, employee's Exhibits 1 through 15, and Exhibit A offered by the Second Injury Fund. No party objected to any exhibits.

Employee graduated from high school in 1981 and never attended college. He worked as a meat cutter from 1982 through sometime in 1996. As a meat cutter, employee used an electrical knife that caused "a lot of vibration" and pain in his hands. Transcription, p. 1002. Employee also had to push 1800-pound racks.

On November 8, 2016, Dr. William Hopkins, an orthopedic surgeon, performed an independent medical examination of employee and reviewed employee's medical records. In his report, Dr. Hopkins summarized employee's preexisting conditions.

In 1989, employee had surgery on his right hand to address trigger finger and carpal tunnel syndrome. After his surgery, employee had difficulty forming his right hand into a fist. Dr. Hopkins rated that preexisting condition at 5% permanent partial disability to the right hand.

In 1996, employee had thyroid surgery. Employee had no permanent restrictions due to that surgery.

Injury No.: 15-088007

Employee: Robert March

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Quoting from his report, Dr. Hopkins summarized other medical issues as follows:

I reviewed a series of medical records from the Western Missouri Medical Center in Warrensburg, Missouri, where he was evaluated for general medical problems. On a medical report, which appears to be on May 10, 2001, it was reported that he had stasis edema, in addition to other medical problems including thyroid deficiency. He was found to have a thyroid goiter, requiring a surgical removal. A series of medical records through the year 2001 were also reviewed and he was evaluated for hypothyroidism and hypertension and fluid retention and was treated medically. He subsequently had two brief medical records for 2002 and 2003, unrelated to his work.

June 28, 2005: His medical record reflects continued swelling and tenderness in his legs down to the foot with ankle pain. It was felt that his pain was secondary to stasis changes in his lower extremities, with the complication of venous varicosities in association with obesity. Additional medical records were reviewed into 2010, at which time he was found to have atrial fibrillation. In addition, he was evaluated medically into 2010 and 2011, again for medical problems, primarily treated for atrial fibrillation, hypothyroidism and hypertension and being overweight.

February 20, 2007: A medical record indicates that Mr. March reported that he was struggling with pain in his ankles and feet and that he had chronic brawny edema of his lower extremities below the knees on both sides with satisfactory pulses. He was felt to have a pes planus with eversion of the feet as a separate entity. He was placed into arch supports and was given diuretic medications.

In 2011, employee suffered a stroke. In his testimony at the hearing, employee indicated that he did not have lasting effects from the stroke. However, at his deposition on February 25, 2019, employee testified that he had memory issues stemming from his stroke. Dr. Hopkins did not rate this condition.

In December 2012, employee suffered an injury to his left leg while climbing over a fence; employee cut his left leg. The wound became ulcerated and required treatment. Dr. Hopkins stated, "treatment for that condition continued into 2013, and on September 17, 2013, [employee's] medical record noted a stasis ulcer of the left leg treated topically." Transcript, p. 695.

In 2014, employee received treatment for chronic ankle swelling that Dr. Hopkins stated was unrelated to employee's previous medical history.

In November 2014, employee tore his left rotator cuff and underwent surgery. Dr. Hopkins rated this preexisting condition at 10% permanent partial disability to the left shoulder.

In February 2015, Dr. Jerry Meyer, from the Meyer Medical Clinic, treated two stasis ulcers² on employee's left leg, one was 2 cm and the other was 4 cm. It appears that Dr. Meyer linked in part the stasis ulcers with employee's hunting injury, stating that employee "continues to struggle with initial trauma and then complicating stasis ulcers in his lower left leg." Transcript, p. 695.

The Administrative Law Judge stated that this occurred on January 1988. However, Dr. Hopkins's evaluation placed this preexisting condition in 2014. Dr. Jerry Meyer's medical records supports the 2014 date as well.

According to the https://medical-dictionary.thefreedictionary.com/stasis-ulcer, a stasis ulcer "occur as a result of venous insufficiency in the lower limb." (accessed on January 27, 2021).

Injury No.: 15-088007

Employee: Robert March

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p. 215. Dr. Meyer continued in his note that employee "is also getting to the point were [sic] he cannot tolerate standing on his legs and feet through an entire work day." *Id.*

Dr. Meyer noted, "The lower legs show chronic stasis changes of the skin below the knees." *Id.* (emphasis added). This agrees with employee's testimony at the hearing that both of his legs leaked fluid. Medical documentation dated October 6, 2015, from the Western Missouri Medical Center, Advanced Wound Center, describes a venous ulcer on employee's right ankle and five separate venous ulcers on employee's left leg, ranging from his left ankle to his left medial upper leg. On October 13, 2015, Dr. Jonathan Wilson assessed employee with venous stasis ulcers in both legs. The recommended treatment was to use compression wraps.

In a note dated March 3, 2016, Dr. Wilson stated,

> I reviewed his vein mapping which demonstrates somewhat tortuous greater saphenous veins bilaterally. They do demonstrate greater than 3 and 4 seconds of reflux. He also has a right lower extremity accessory saphenous vein in the proximal thigh to mid-calf and distal calf perforators which may also need to be addressed.

*Transcript*, p. 561. At that time, Dr. Wilson recommended compression stockings daily and stated that employee "would benefit from greater saphenous vein ablation bilaterally." *Id.*

On April 18, 2016, Dr. Mike Waldschmidt, performed saphenous laser vein ablations on both lower extremities. On May 3, 2016, employee was placed on restrictions to avoid standing or sitting for more than one hour at a time. In September 2016, Dr. Waldschmidt opined that standing for long periods of time exacerbated employee's leg conditions.

Dr. Hopkins opined that at the time of the November 28, 2016 evaluation, employee had a 45% permanent partial disability to each leg at the 160-week level. However, 15% of that 45% for each leg was due to "preexisting medical factors of his right and left lower extremities and the remaining 30% right and left lower extremity as the direct and prevailing factor of his cumulative work-incurred injuries." *Transcript*, p. 703. He also assessed a 15% loading factor due to the bilateral nature of employee's injuries.

Employee testified that because of his legs, he was on restrictions and needed to keep them elevated 90% of the day, keep them wrapped, and to only walk "every once in a while." *Transcript*, p. 30. Since he left employer on April 15, 2016, employee has been unable to go to church, fish, mow grass, perform household chores or repairs, or work on his car.

Employee worked for employer as a welder and a sander from sometime in 1996 to April 15, 2016. Employee fabricated metal electrical boxes through MIG (metal inert gas) welding and stick welding, and then sanding the finished product with a 20-lb grinder. He averaged 300 to 400 boxes a day.³ The boxes ranged in weight from 10 to 500 pounds.

Since the beginning of his employment, employer allowed employee to sit at his work station. However, around 2015, employer no longer allowed employee to sit. Employee then stood up to eleven hours a day. It was more difficult for employee to perform aspects of his work while

3 These statistics came from the report from Dr. Hopkins. Employee testified at the hearing to working on 500-600 boxes per day. We find the figure from Dr. Hopkins's report more persuasive.

Injury No.: 15-088007

Employee: Robert March

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standing. It was at this point in time that employee's issues with his legs started to worsen dramatically. At the time of the primary injury, employee weighed around 500 lbs. After employee requested an accommodation in September 2015, employer allowed employee to sit for two hour intervals, followed by two hours of standing.

According to employee's testimony at the hearing, his legs became considerably worse after he was no longer able to sit for his work.

On or around April 17, 2015, employee began complaining to employer of bilateral hand problems and shooting pains in his arm, shoulder, and neck area. Employer sent employee to see Dr. Thomas Winston, at U.S. Health Works. Dr. Winston believed that employee's bilateral upper extremity complaints were work-related. Dr. Winston found:

1. Right shoulder pain probably secondary to muscle strain and/or arthritis.
2. Bilateral knee pain secondary to arthritis.
3. Hand pain secondary to arthritis.
4. Right elbow pain secondary to arthritis.

Transcript, p. 396. Dr. Winston injected employee's shoulder and ordered an EMG for both arms. The tests returned a negative result. Dr. Winston did not authorize any other treatment or place employee on any permanent restrictions regarding his arms or hands.

On November 8, 2016, Dr. Hopkins found that employee "sustained injuries to both upper extremities indicating bilateral carpal tunnel entrapments, culminating on or about 4/09/2015, after the use of a buffer and grinder to weld up to 300-400 electrical wiring boxes daily." Transcript, p. 701. Dr. Hopkins found that employee had a loss of grip strength, especially in the right hand. Dr. Hopkins opined that employee's work duties resulted in a 25% permanent partial disability to the right hand and a 20% permanent partial disability to the left hand, both at the 175 week-level.

As stated earlier, Dr. Hopkins also opined that employee's work was the direct and prevailing factor for 30% of employee's permanent partial disabilities in both of his legs. Dr. Hopkins added a 15% loading factor due to the bilateral nature of employee's injuries.

Dr. Hopkins opined that employee was not at maxi