c,er,or - labor.mo.govsection 287.800.1 rsmo, requires that the workers' compensation law be...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

Employee:

Employer:

Insurer:

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge)

Injury No.: 15-063148 Frank Starks

Import Specialists, Inc.

United Fire & Casualty Co.

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 September 17, 2019. The award and decision of Administrative Law Judge Victorine R. Mahon, issued September 17, 2019, 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 ---'ci_3_r_d __ day of June 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

~ ,,·

f"- C,er,or Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member Attest:

Issued by MISSOURI DIVISON OF WORKERS' COMPENSATION

AWARD

Employee: Frank Starks

Dependents: Not Applicable

Employer: Import Specialists, Inc.

Additional Party: Treasurer of the State of Missouri, as Custodian of the Second Injury Fund

Insurer: United Fire & Casualty Co.

Hearing Date: July 16, 2019; record closed 30 days thereafter.

InjuryNo. 15-063148

Before the DIVISION OF WORKERS'

COMPENSATION Department of Labor and Industrial

Relations of Missouri Jefferson City, Missouri

Checked by: VRM/va

FINDINGS OF FACT AND RULINGS OF LAW

I. 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: August 5, 2015.

5. State location where accident occurred or occupational disease contracted: Springfield, 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 happened or occupational disease contracted: Employee tripped over a cord at work, causing him to fall on his hip.

12. Did accident or occupational disease cause death? No. Date of death? NIA.

13. Parts of body injured by accident or occupational disease: Right hip and body as a whole.

14. Compensation paid to-date for temporary disability: $68,075.10.

15. Value necessary medical aid paid to date by employer/insurer? $66,140.51.

16. Value necessary medical aid not famished by employer/insurer? $3,502.95.

Issued by M!SSOURJ DIVISION OF WORKERS' COMPENSATION Employee: Frank Starks

17. Employee's average weekly wages: $855.00.

18. Weekly compensation rate: $570.00 (TTD)/$464.58 (PPD)

19. Method wages computation: By agreement.

COMPENSATION PAYABLE

20. Amount of compensation payable:

• For unpaid temporary total disability:

• Unreimbursed medical expenses:

• Permanent total disability: (see below)

23. Second Injury Fund: None.

24. Future Requirements:

Injury No.: 15-063148

$26,544.90

$ 3,502.95 $30,047.85

For permanent total disability, beginning October 10, 2018, and continuing for the remainder of Employee's lifetime, Employer/Insurer shall pay to Employee weekly benefits in the amount of $570.00.

Employer/Insurer shall provide future medical care to cure and relieve the effects of the work injury. Employer/Insurer shall name the health care provider who shall direct care consistent with the recommendations of Dr. Charapata. Its failure to do so shall be deemed a waiver of Employer/Insurer's right to select the healthcare provider, and Employee then shall have the right to select his own provider and shall be entitled to reimbursement of his related medical expenses.

Except as to future medical treatment, the compensation awarded herein shall be subject to a lien of 25 percent in favor of Attorney Patrick J. Platter of the law firm of Neale & Newman, LLP, as a fee for necessary and reasonable services provided to Employee. From the fee awarded, Neale & Newman, LLP, shall satisfy the lien filed on behalf of Hosmer & Wise, P.C., in the amount of $1,500 in fees and $482.08 in expenses.

This Award is subject to review and modification as provided by law. Interest shall be paid according to law.

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Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION Employee: Frank Starks Injury No.: 15-063148

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Frank Starks Injury No. 15-063148

Dependents: Not Applicable Before the

Employer: Import Specialists, Inc.

Additional Party: Treasurer of the State of Missouri, as Custodian of the Second Injury Fund

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Insurer: United Fire & Casualty Co.

Hearing Date: July 16, 2019; record closed August 19, 20191 Checked by: VRM/va

INTRODUCTION

The undersigned Administrative Law Judge conducted a final hearing, in Springfield, Greene County, Missouri. Employee, Frank Starks, appeared in person and with his attorney, Patrick Platter. Import Specialists, Inc., and its insurer, United Fire & Casualty Insurance Co., appeared by attorney Brian McBrearty. Anthony Garrels appeared as Employer's corporate representative. The Treasurer of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Skyler Burks. The parties stipulated to certain facts and nan-owed the issues, as follows:

STIPULATIONS OF FACT

1. Frank Starks worked as an employee for Import Specialists, Inc. (Employer). 2. Both Employee and Employer were subject to the Missouri Worker's Compensation Law. 3. Venue and jurisdiction is appropriate in Greene County, Springfield, Missouri. 4. Employer was fully insured by United Fire & Casualty Company. 5. Employee suffered an accident and was injured as a result of that accident on August 5, 2015. 6. These injuries arose out of and in the course of employment. 7. Notice was provided as required by§ 287.420 RSMo. 8. The claim was filed timely. 9. The accident medically caused the conditions for which benefits are claimed. 10. The average weekly wage is $855.00, yielding compensation rates of $570 for temporary total and

permanent total disability and $464.58 for permanent partial disability. 11. Employer/Insurer have paid medical expenses in the amount of$66,140.51. 12. Employer/Insurer paid temporary total disability benefits in the amount of $68,075.10. Of this

an10unt, $40,000 was paid in a lump sum in 2018. 13. Counsel for Employee seeks an attorney's fee of25 percent of all disability awarded. 14. Counsel for Employee agrees to satisfy the lien filed by the law firm of Hosmer and Wise, P.C., which

includes $1,500 in attorney's fees of $482.08 in expenses.

1 As petmitted by 8 CSR 50-2.060(2)(B)1B, due to the complexity of the issues involved and extraordinary circumstances requiring rebuttal expert testimony by deposition, the record remained open more than 30 days. This occurred at the request of Employee's counsel and without objection by any party.

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Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION Employee: Frank Starks

ISSUES

1. What is the nature and extent of any permanent disability? 2. Does Employer/Insurer have liability for any future medical treatment?

Injury No.: 15-063148

3. Does Employer/Insurer owe temporary disability benefits in the amount of $26,544.90? 4. Is Employer/Insurer owe medical expenses in the amount of $3,502.957 5. What is the nature and extent of any liability of the Second Injury Fund? 6. Should future medical treatment be awarded, and does Employer/Insurer retain the right to select the

medical providers?

EXHIBITS

The following exhibits were offered and admitted into evidence:2 3

Employee's Exhibits:

1) Complete Medical Report of Dr. Steven Charapata. 2) Supplemental Complete Medical Report of Dr. Steven Charapata. 3) Medical records - Ferrell-Duncan Clinic. 4) Medical records - Springfield Neurological and Spine Institute. 5) Medical records - Cox Medical Center. 6) Medical records - Ozarks Community Hospital. 7) Medical records - Family Medical Walk-In Clinic. 8) Walgreens prescription records. 9) Medical report - Dr. Scott Wingerter dated December 12, 2017. 10) Medical report-Dr. Scott Wingerter dated March 22, 2018. 11) Timeline of medical treatment and medical examinations. 12) Motion for Production. 13) Amended Motion for Production. 14) Handicapped decal certificate. 15) Rebuttal deposition of Dr. Steve Charapata (with attached exhibits).

Employer/Insurer's Exhibits:

I) Deposition of Dr. Ted Lennard (with attached exhibits). 2) Letter dated May 12, 20 I 6. 3) Job description dated 09/08/15.

No exhibits were admitted into evidence on behalf of the Second Injury Fund.

Upon notice to the parties, the Administrative Law Judge took official/administrative notice of the file of the Division of Workers' Compensation. It was not marked as an exhibit.

2 The record remained open until the submission of Exhibit 15, which was received into evidence, without objection, on August 19,2019.

3 All exhibits appear the same as when they were offered for admission. None of the highlighting or other marks in the exhibits were made by the Administrative Law Judge.

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Issued by MISSOURJ DIVISION OF WORKERS' COMPENSATION Employee: Frank Starks

Findings of Fact

Injury No.: 15-063148

Employee resides near Fair Grove, Missouri, with his wife of 41 years. Employee attended public schools through the 11 th grade. He does not have a high school diploma or a GED. He has no formal vocational or technical education, no college credits, and no military experience.

Employee is slightly built, weighing approximately 125 pounds and stands five foot, six inches in height. Dr. David Hicks at Ferrell-Duncan mentioned in chart notes that Employee looked malnourished. At one point prior to surgery, Employee's weight had dropped to approximately 92 pounds.

Employment

Employee worked in automotive positions his entire adult life, last working for Import Specialists, Inc., from 2001 - 2015. During his first four years with the company, he was a parts specialist. When the service manager passed away in 2005, the owners - Anthony and Janet Garrels - offered Employee the position of service and parts manager. Employee and his wife also purchased a 10 percent share of the company by paying $25,000.00. The previous service manager similarly worked with the ownership share. Despite the ownership share, Mr. Starks still was considered an employee of the company.

Employee's desk was located in the garage. The garage had two floors. The second floor held parts of lighter weight. His desk was close to the adjacent office used by Mr. and Mrs. Garrels. There was also an 18 x 20 foot "showroom" that held the cars that had been repaired. The garage had ten stalls. The business typically employed four to five mechanics.

Employee's role as a service and parts manager required that he answer the phone and handle customers, write up work orders, interact with mechanics, figure tickets, maintain an inventory list, and handle UPS parts deliveries. The parties disagreed on the weight of the patts, but a few could weigh in excess of 100 pounds, and others were light. The heavier parts were downstairs next to the service desk where Employee worked.

Accident

On August 5, 2015, Employee was walking through the garage across the polished concrete floor when he tripped over an electrical cord and fell directly upon his left side. No one else was present at the business when he fell. He dragged himself to his desk. After owner Anthony Garrels and another employee atTived, Employee informed Mr. Garrels of his work injury. He then drove himself home.

Medical Treatment

After arriving home, Employee's wife took Employee to the Family Medical Walk-in Clinic, where the staff took x-rays that suggested a right femoral neck fracture. An ambulance then took Employee from the clinic to the Cox emergency depat1ment. A subsequent MRI scan revealed a non-displaced fracture through the femoral neck intertrochanteric location, as well as severe arthritic changes, avascular necrosis, and a gluteal muscle teat· and hematoma. The hospital held Employee overnight and discharged him to see Dr. David Hicks, an orthopedic surgeon.

Dr. Hicks first saw Employee on August 13, 2015. He recommended waiting upon surgery for approximately six to eight weeks to allow bony datnage to heal. He recommended Employee remain nonweight bearing. When Employee returned to Dr. Hicks on September 3, 2015, the surgeon recommended a right hip at1hroplasty within two weeks.

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The surgery was scheduled for September 23, 2015. Employee initially did not intend to claim workers' compensation, but was going to use his group health insurance to pay for the surgery. He then learned that his health insurance had been canceled. The hospital then canceled the surgery given that Employee had no means to pay for the treatment. The treatment had not yet been authorized through workers' compensation. In an October 8, 2015 letter to Employee, Dr. Hick's nurse wrote:

Dear FRANKIE STARKS

PT arrived to Dr. Hicks' office today for a pre- scheduled 2 week post-surgery (right hip) appointment. However, Mr. Starks' surgery that was scheduled for 09/23/15 was canceled due to injury being taken over by work comp. Because we do not yet have authorization we were unfortunately unable to see Mr. Starks today. Patient was advised to contact work comp representative, receive proper authorization and follow-up with our office at that time to schedule the proper appointment.

Thank you.

Elizabeth England, GPN Nursing Staff for David Hicks, MD

On February 11, 2016, Employee saw Dr. Ted Lennard at Employer/Insurer's referral. Dr. Lennard diagnosed avascular necrosis in the bilateral hip joints, status post-right femoral head collapse, chronic severe right hip degenerative joint disease, a right non-displaced intertrochanteric hip fracture, and a gluteal maximus partial tear. Although Dr. Lennard stated that Employee's right hip problems could have resulted from radicular symptoms starting from the low back and extending into the right hip, he opined that the acute need for a right hip joint replacement flowed from the work accident. He stated the work accident was the prevailing factor in the onset of the hip fracture. He recommended the total hip arthroplasty, routine follow-up care, and physical therapy.

Employee went to the Cox emergency department via ambulance on February 26, 2016, due to progressive pain. He had repeat x-rays of the right hip and pelvis.

When Employee next saw Dr. Hicks for his pre-operative exam on March 24, 2016, the physician noted Claimant's frail state. Dr. Hicks observed that Employee was in his wheelchair, exhibited pain, was thin and frail, and his right leg was "considerably shorter" than the left. Dr. Hicks said Employee would have more trouble recovering from the arthroplasty due to being wheelchair bound for many months:

Mr. Starks says that he has fmally gotten authorization to have his hip replaced. I had a long discussion with him regarding the post-operative course. I do think that he will have a little bit more trouble recovering from this than most because he has essentially been wheelchair confined for the last nine months and there is no doubt that he has developed significant atrophy around his hip and thigh.

I would like to check his liver function tests as Mr. Starks does have a history of chronic alcohol use although he says he has not had anything to drink for a number of months now.

(Ex. 3, p. 44 ).

Dr. Hicks perf01med a total right hip arthroplasty on April 11, 2016. Dr. Hicks discharged Employee with Eliquis, oxycodone, OxyContin, Docusate, and home medications. At a follow-up visit on April 26,

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2016, Employee specifically inquired about physical therapy. Dr. Hicks declined to order physical therapy, noting Employee's frail state.

On a May 24, 2016 visit, Dr. Hicks agreed that Employee would benefit from some reconditioning since "he is so frail," but he did not want a therapist performing a "lot of exercises" on Employee. On the May 24, 2016 visit, Dr. Hicks restricted Employee to seated work, but said he did not want him moving around in a garage or a shop-type environment. Employee was to return in six weeks.

Oddly, in a letter dated May 12, 2016, Janet Garrels offered Mr. Starks full-time work "within the restrictions for you effective 4-26-2016 per work status of Dr. Hicks." (Ex. B). Clearly there was no authorized return to work by Dr. Hicks in his April 26, 2016 medical record. Following the May 24, 2016 medical appointment, while Dr. Hicks indicated that Employee could perform some seated work, he specifically restricted Employee from performing any work in a garage or shop-type environment. Without question, Employee was in no physical position to perform the work offered from Employer.

On July 5, 2016, Dr. Hicks noted that Employee was doing really well. The leg lengths appeared to be equal. He was ambulating with a wheeled walker. Dr. Hicks agreed to refill his pain medication one last time. Employee thereafter had a setback. When he returned to Dr. Hicks on August 9, 2016, he complained of having pulled something while trying to swim. On examination, however, the prosthesis was stable. Dr. Hicks offered one more prescription of oxycodone and said he would see him again the following April. He informed Employee that his primary care physician should prescribe any needed medications.

On February 2, 2017, Employee again saw Dr. Hicks complaining of ongoing pain and a lump in the mid portion over the scar located over the greater trochanter. Dr. Hicks believed Employee exhibited a slightly antalgic gait when not using an assistive device. Employee was not happy with the care that he received from Dr. Hicks. Dr. Hicks thought Employee could have a detachment of the abductor tendon, but given Employee's displeasure with Dr. Hicks, the physician recommended that Employee see a different health care provider.

Dr. Boyd Crockett

Employer/Insurer next referred Employee to Dr. Boyd Crockett, who examined Employee on April 14, 2017. Dr. Crockett found Employee to have an antalgic gait. The lumbar spine revealed no pain with flexion or extension. There was pain with movement of the right hip with palpable lateral tenderness. Fortin's sign was negative with what Dr. Crockett called a normal bilateral upper and lower extremity exam. His diagnosis was status post-right hip arthroplasty, right hip pain, and antalgic gait. He rated the permanent disability at 40 percent of the 207-week level. He failed to address any restrictions.

Dr. Scott Wingerter

Employer/Insurer sought the opinion of Scott Winge1ier, M.D., PhD, of Kansas City. He did not examine Employee until December 12, 2017, and then recommended an MRI. After receiving the MRI, he issued his report on March 22, 2018. Dr. Wingerter found that Employee was status post-right total hip arthroplasty with abductor tendinitis. He found no evidence of a hardware failure and had no need for surgery. He specifically recommended, however, physical therapy focused on abductor tendinitis treatment and pelvic stabilization strengthening. He concluded that his findings were "directly related to [Employee's] original accident on August 5, 2015 and the subsequent total hip arthroplasty." Despite a

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Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION Employee: Frank Starks Injury No.: I 5-063148

recommendation for physical therapy by Dr. Wingerter, Employee received no such treatment until four months later.

Dr. Jeff Woodward

Dr. Woodward first saw Employee on July 19, 2018, and directed the physical therapy. Employee attended 19 physical therapy sessions at Advantage Physical Therapy from July 24, 2018 to September 10, 2018. Employee missed no appointments, and there is no evidence that he gave less than full effort. The September 10, 2018 note of Advantage Physical Therapy, stated that Employee still could not walk with a normal gait without assistance. He could not walk without pain. He could not stand or walk up to 30 minutes without pain. Although the physical therapist had recommended four additional weeks of physical therapy to improve strength, range of motion, and improve the patient's symptoms and functional integrity, Dr. Woodward did not authorize the additional treatment. On September 12, 2018, Dr. Woodward released Employee from care and recorded that the power scooter and oral narcotic pain medication was not medically necessary. He deferred other opinions to Dr. Lennard.

Dr. Ted Lennard

As noted above, Dr. Ted Lennard was the examining physician who saw Employee on February 11, 2016, and reported that the accident was the prevailing factor causing the hip fracture and leading to the need of a hip joint replacement. He believed the hematoma was evidence of trauma and confirmed the gluteus maximus tear. He also examined Employee on November 9, 2016, and June 24, 2019, at the request of Employer/Insurer. Dr. Lennard is a specialist in physical medicine and rehabilitation. He is affiliated with Cox Neurosurgery. In addition to his practice, he has spent a portion of his professional time in the publication and editing of medical textbooks. His deposition was admitted into evidence as Exhibit A.

Dr. Lennard opined that the lump found on Employee's right hip was an abductor tear, which included the gluteus tendon. These tears can be part of the original injury or a complication following the joint replacement. It could also be scar tissue. Treatment can either include anti-inflammatory medication, injections, or letting the lump "scar down".

Dr. Lennard !mew of no objective limitation given or provided Employee concerning his hips before the fall. Although Employee had preexisting bilateral avascular necrosis, there was no record of previous treatment to either hip before the fall. Rather, there was only a reference to hip pain during treatment for the low back. Dr. Lennard noted that avascular necrosis can be a long-standing asymptomatic condition and a traumatic event, such as Employee's fall at work, can trigger the need for medical treatment that otherwise would not have been necessary.

Dr. Lennard agreed that after the accident, but prior to the surgery, with the femur pressed in the hip socket, Employee would have had chronic pain and the inability to ambulate. Dr. Lennard said this led to a wasting of the muscle, loss of strength, and a delay in the prospect for effective rehabilitation. Dr. Lem1ard agreed that Employee was deconditioned because of his lack of activity and reliance on a wheelchair between the date of the accident and the hip surgery.

Dr. Lennard said following surgery he would have recommended progressive activity and lower extremity strengthening in order to eliminate the need for any type of assistive or mobility device. When Dr. Lennard saw Employee after surgery in 2016, Employee was ambulatory in the room, but was moving with a moderate limp. When Dr. Lennard last saw Employee in 2019, however, Employee could stand, "but was reluctant to -- to do much walking in the exam room. Had moderate pain with range of motion

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Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION Employee: Frank Starks Injury No,; 15-063148

of the hip." (Ex. A, p, 17). Asked whether he would have continued Employee's physical therapy for four more weeks after September lO, 2018, Dr. Lennard replied, "Certainly would depend on factors of a patient's motivation and desire to continue and whether or not he is performing home exercises independently of the therapist time." (Ex. A, p. 45). Dr. Lennard indicated that "the decision to continue therapy is often made on the basis of the patient independently performing exercises along with attendant physical therapy appointments." (Ex. A, p. 46).4

Dr. Lennard rated Employee's permanent disability as 30 percent to the right hip at the 207-week level, with 20 percent of that amount being attributable to the work-related injury and the remaining 10 percent to his preexisting non-work-related degenerative changes and necrosis. Dr. Lennard also found that the employee would have a 10 to 15 percent permanent partial disability to the preexisting low back.

Dr. Lennard believed Employee could work, but only within the restrictions of no squatting or lifting in excess of 25 pounds. He provided no restrictions on sitting, standing, or walking. He strongly encouraged Employee to exercise daily, including walking, and participating in a progressive strength training program "in a very serious manner." (Ex. A, p. 56). He said Employee needed to progressively ambulate from assistive devices as he progressively walks. He advised that Employee should discontinue smoking and narcotics. He said the better practice medically is to wean the patient from narcotics "while adding either anti-inflammatories or anticonvulsants, antidepressants, types of medication, or reducing to a lesser-strength opiate medicine." (Ex. A, p. 55). He said Employee may want to consult his primary care physician for treatment of depression and anxiety.

Dr. Steven Charapata

Dr. Steven Charapata was the examining physician retained by Employee's counsel. He issued reports dated September 13, 2017 and October 10, 2018. Dr. Charapata is an interventional anesthesiologist who recently retired from active practice. He previously spent a portion of his professional time conducting clinical research trials to assess different pain treatment protocols. Those included medication, therapies, and interventional procedures. He now consults on litigation and workers' compensation claims.

He diagnosed the following conditions to result from the accident: the right trochanteric hip fracture, the femoral head collapse, the chronic right hip pain, the tear to the gluteus maximus, and the possible abductor avulsion to the right hip. When Dr. Charapata first examined Employee, he found him to have a permanent disability of 50 percent without treatment as a direct and prevailing result of the accident. He did not believe Employee had realized a good outcome from the hip joint replacement, and Employee had not had any treatment for either the gluteus maximus tear or addressing the possible abductor tendon avulsion. Dr. Charapata had recommended an MRI scan of the right hip, rehabilitation due to Employee's deconditioning from his lengthy wheelchair dependenee, and injections. On his second examination, Dr. Charapata increased his permanency rating to 60 percent of the right hip, opining that Employee's condition had regressed due to the termination of a physical therapy program. Also in his report of October 10, 2018, Dr. Charapata opined that Employee was permanently and totally disabled.

Dr. Charapata testified that since Employee had been immobilized for nine months before surgery, it could potentially take him that long to complete a therapy and strengthening program after surgery. Dr. Charapata used the September 10, 2018, note of Advantage Therapy as a reference. He testified that the plan in that report was "pretty routine" with physical therapists to assess patients and ask for four to six

4 Employee's spouse testified at the hearing that Employee tried to comply with physical therapy by continuing the exercises at home. Vihile he did not do well, he did not stop trying.

9


weeks of a continuing program, asking for more time if there is progress. Dr. Charapata further testified that Employer/Insurer's failure to authorize surgery for nine months following the accident further

damaged Employee's condition:

A: Well, the importance is, you don't want to delay surgery too long, because you really can't do anything with a broken hip. You can't walk, you can't exercise, you can't do anything. So you really lose muscle mass. You get deconditioned. So you need to get it fixed, so that he can get into therapy and get rehabilitation. So the longer you put it off, the more debilitated someone is going to be.

In this case, it really was a travesty that he had to wait that long to get corrective surgery, because now he is really deconditioned. The way I look at it, is if it takes nine months to be completely wheelchair bound, it would take six to nine months of rehab to build you back.

Q: In your opinion, did the failure to perform surgery for nine months following his fall, endanger his health and recovery?

MR. McBREARTY: I'm going to object. It assumes facts not in evidence. Furthermore, there is a seven - day rule, because this opinion is not expressed anywhere in the two reports that we have with us. This is completely out of left field.5

MR. PLATTER: I would say that it is.

A: It is actually in my report. I opined that part of his problems being the long delay in treatment and - would you ask the question again.

Q. Sure. Did the failure to get the surgery for nine months following the original fall endanger his health and recovery? [Same objection]

A: Yes.

Q. (By Mr. Platter) Did the failure to get any kind of physical therapy for him from August of2015 until the last week in July 2018 also endanger his recovery. [Same objection]

A: It definitely endangered his ability to assume anywhere near normal recovery from a total hip arthroplasty. Normally there is therapy - well, within weeks after having a total hip arthroplasty that is normal post-operative care. Then to put it off for as long as they did, it just continues to add to his debility, weakness, atrophy of muscles. Compounded on this that people are forgetting is that he had a massive tear of his gluteus maximus muscle which is your most powerful muscle used in walking, running, squatting, that kind of thing. That muscle alone needed to be rehabbed, because you've got to have that muscle before you are going to be able to walk normal.

(Ex. 15, pp. 15-17).

Dr. Charapata opined that Employee was unemployable due to the accident alone. Dr. Charapata gave the following restrictions: 1) no pushing or pulling, 2) no lifting in excess of 10 pounds; 3) sitting limited to 10 or I 5 minutes with the ability to reposition; 4) have the ability to lie down to relieve pain; 5) no walking more than 50 feet; 6) no climbing stairs or ladders; and 7) no squatting or bending.

5 These objections are without merit and are overruled. Dr. Charapata specifically noted in his reports that the delay in surgical n·eatment and the lack of physical therapy following surgery adversely affected the Employee's recovery. See e.g., Exhibit 1, pp. 6-7. All other objections in this and other deposition are ovem1Jed unless specifically addressed otherwise in this Award.

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Dr. Charapata recommended treatment in a rehabilitation hospital or specialized therapy center to develop a program to assist Employee in regaining his ability to walk with confidence, as opposed to outpatient treatment. He also recommended that Employee be weaned from narcotics and be tried on other types of pain relief, such as gabapentin and amitriptyline.

Preexisting Low Back

Employee first reported low back pain on March 18, 2013 to Dr. Morrison. He could not perform a treadmill test (for his heart) due to low back pain on December 23, 2013. He further injured it when he was riding his Harley motorcycle on April 1, 2014. He first saw neurosurgeon Dr. Robert Strang on October 20, 2014, and underwent a right-sided L4-5 lateral decompression on December 31, 2014.

About a week or two following his back surgery, Employee had returned to sedentary work for Employer. He had an exacerbation of pain for which he sought some pain medication. On March 3, 2015, Employee believed he was having withdrawal symptoms from "Tramadol." By March 24, 2015, he reported being 80 percent better. Two months thereafter, however, Dr. Morrison indicated that Employee had extreme low back pain. On June 11, 2015, Employee underwent facet joint injections by Dr. Michael Workman, which Employee said were not helpful and were most painful. Dr. Morrison increased Employee's oxycodone medication to three times per day beginning July 21, 2015. This was the last medical appointment Employee had before the work accident.

The witnesses disagreed on whether Employee had difficulty working after his lumbar surgery and before his hip injury. Employee testified during his case-in-chief and on rebuttal that he could work full duty, with no problems, no problems in memory or endurance despite needing narcotic mediation for back pain. In response to questioning by the Second Injury Fund's attorney, Employee asserted that before August 5, 2015, he had no problems at work or away from work in standing, walking, driving, lifting, bending, his memory was good, and he could work all day long.

Employer's witnesses indicated that Employee's condition initially improved following the back surgery, compared to what it had been before, but that within three months Employee eventually could not physically do things. Roger Lance testified that mechanics, not Employee, performed most of the lifting at work. He said that after his back surgery, Employee was not lifting more than 10 pounds. Dr. Lennard rated Employee's preexisting back disability at 10 to 15 percent to the body as a whole.

In 2017, Employer repurchased Mr. Starks' 10 percent share in Import Specialists for $25,000.

Temporary Disability

Employer/Insurer paid installment benefits equaling $28,075.10 and a lump sum of $40,000 in lieu of a hearing that was scheduled for August 1, 2018. These amounts total $68,075.10 and was stipulated at the beginning of the hearing. Employee claims a balance due of $26,544.90 for temporary total disability between August 6, 2015 (date of accident) to October 9, 2018 (the day prior to Employee's maximum medical improvement.

Present Condition

Employee describes pain of a 7 to 8 on a I 0-point scale. Sitting in a recliner helps alleviate pain. He continues to have a !mot on his right hip, which he compared to the length of an egg. He does not have good balance. He still uses a wheelchair when he needs to travel any long distance. He can drive his three-wheeled cycle around the block, but he no longer drives his two-wheeled motorcycle.

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Employee believes he is unemployable. He stated that while he previously could talk to customers all day long, he no longer can concentrate more than 15 minutes. He cannot walk long distances and relies on a wheelchair. He cannot sit for more than 20 to 30 minutes at a time. He gets weak throughout the day. He is unable to lift more than 25 pounds. He does not believe that he could work at a desk long enough to maintain employment. He admits that narcotic medication affects his memory and he would like to be weaned from such medication. Employee states, however, that he wants to participate in a local program rather than the specific residential program recommended by Dr. Charapata. Employee stated he is willing to try anything to get rid of the pain.

Employee's wife echoed much of her husband's testimony except that she was unaware of the extent to which Employee was taking narcotic medication at the time of the work accident. In comparing Employee's back and hip conditions, Employee's wife said it was like "night and day," with the hip being much worse. Employee's spouse said she does not push her husband to do more than he does because she knows that he can't.

Credibility Finding

I generally find Employee and his wife credible, although I find that Employee's work for Employer was less physically demanding than what Employee described in his testimony. Based on the testimony of Employer's witnesses and considering Employee's slight build even before the hip injury, I fmd that he overstated the degree to which he performed heavy lifting in his job as a parts and service manager. I also fmd that Employee downplayed the intensity of his back pain and whether it had interfered with his work prior to the hip injury. I find Employer's witnesses credible that Employee was performing no heavy lifting immediately prior to his hip injury. Clearly, the back pain was the impetus for requesting that his doctor increase his dosage of narcotic pain medication in July 2015. Still, Employee was holding a fulltime job on the open labor market prior to the hip injury and had demonstrated a strong work ethic in returning to work very shortly after his prior back surgery.

I fmd credible the causation opinions of Dr. Lennard and Dr. Charapata. The work injury was the prevailing factor in causing the hip injury, and the hip replacement surgery flowed from the work accident and injury.

While Dr. Lennard believed that Employee could work if he found employment within his restrictions, I find more persuasive the opinion of Dr. Charapata that Employee is permanently and totally disabled, as discussed below. While there was discussion at the hearing as to whether Employer previously had made a legitimate offer of employment or whether he might now reemploy Mr. Starks, I specifically find that Employee is physically incapable of working in a position in the open labor market, as discussed below.

Rulings of Law

Section 287.800.1 RSMo, requires that the Workers' Compensation Law be strictly construed. No presumptions are afforded to any party when weighing the evidence and resolving factual conflicts. § 287.800.2 RSMo. The burden of proving an entitlement to compensation is on the employee. The burden of proving an affirmative defense is upon the employer. The pariy asserting the claim or defense must establish that such proposition is more likely to be true than not hue. § 287 .808 RS Mo.

Employee seeks Permanent Total Disability against Employer/Insurer, but also filed a claim alternatively against the Second Injmy Fund. Employer/Insurer contends that if Employee is totally disabled, then it is the result of a combination of disabilities from the last accident and that which were preexisting. In

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Hughey v. Chrysler Corp. 34 S.W.3d 845, 847 (Mo. App. E.D. 2000), the first determination in this type of case is the degree of disability from the last injury. If Employee's last injury in isolation rendered Employee permanently and totally disabled, then the Second Injury Fund has no liability. Feld v. Treasurer of Missouri as Custodian of Second Injury Fund, 203 S.W.3d 230,233 (Mo. App. E.D. 2006). I have found credible the opinion of Dr. Charapata that Employee is permanently and totally disabled as a result of the last accident in isolation. The evidence supports the conclusion that no realistic employer would hire Employee given his medical condition, restrictions, age, limited education, skills limited to the automotive field, and present medical condition. Permanent total disability has been defined as follows:

"Under Section 287.020, the term 'total disability' is defined as the 'inability to return to any employment and not merely ... inability to return to the employment in which the employee was engaged at the time of the accident.' " Scott v. Treasurer of State-Custodian of Second Injury Fund, 417 S.W.3d 381,386 (Mo.App.2014) (internal quotations and citations omitted). The well established test for determining permanent total disability is "'whether the worker is able to compete in the open labor market.' "Id. at 387 (quoting Molder v. Missouri State Treasurer, 342 S.W.3d 406, 411 (Mo.App.2011) (internal quotations and citations omitted)). The ability to compete in the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition. Id. "Whether a particular employee is permanently and totally disabled is a factual question." Rader v. Werner Enterprises, Inc., 360 S.W.3d 285, 301 (Mo.App.2012).

Archer v. City of Cameron, 460 S.W. 3d 370,375 (Mo. App. W.D. 2015).

Archer also recognizes that an injured employee may hold sporadic or highly accommodated employment by good fortune and still be permanently and totally disabled and the test is the open labor market rather than an individual employer. Archer, 460 S.W.3d at 376. Factors will include the injured employee's age, education, and physical abilities. Gonzalez v. Butterball, LLC, 457 S.W.3d 880, 888-889 (Mo. App. S.D. 2015). See also, Underwood v. High Road Industries, LLC, 369 S.W.3d 59, 66-67 (Mo. App. S.D. 2012) ( citing the importance of whether an employee can walk 50 feet and concentration issues when assessing the degree of disability).

There is substantial evidence to conclude Employee is unable to return to any type of employment in the open labor market. The September 10, 2018 note of Advantage Physical Therapy, verifies that just one year ago, Employee still could not walk with a normal gait without assistance. He could not walk without pain. He could not stand or walk up to 30 minutes without pain.

Dr. Steven Chara pa ta issued significant restrictions. While Employee's testimony indicates that he can exceed some of these restrictions, he still has substantial limitations in walking, sitting, standing, lifting, and concentration. While Dr. Lennard only issued restrictions of no lifting in excess of 25 pounds and to avoid squatting, the lack of his restrictions appear incongruous with the assessment made by Advantage Physical Therapy.

Employee was 64 years of age when he fell. He does not hold a high school degree or a GED. He has worked in the automotive field all his adult life. He is in pain and cannot walk or sit for extended periods. He has concentration problems due to chronic narcotic use. He has never had they type of rehabilitation recommended by Dr. Charapata. All of these factors lead to the conclusion that a realistic employer in the open labor market would not hire Employee.

While the Ganels purportedly offered a "seated position" to Employee, the evidence demonstrates that Employee could not perform this job or a similar job. Employee has difficulty sitting for more than 30

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Issued by MfSSOURI DIVISION OF WORKERS' COMPENSATION Employee: Frank Starks InjruyNo.: 15-063148

minutes without changing positions. Employee is unable to walk any appreciable distance without assistance, and still has significant pain while moving. Employee's difficulty in concentration would be a hindrance in dealing with customers and mechanics. Thus, even if Employer offered a job to Employee, this in isolation does not defeat a claim for permanent total disability.

Moreover, this degree of disability resulted from the last accident in isolation. Employee's preexisting bilateral hip condition had been asymptomatic prior to August 5, 2015. It is significant that Employee does not have complaints with the un-operated hip. Although Employee was taking narcotic pain medicine following his back surgery eight months earlier, he routinely was working, performing all but the more heavy lifting aspects of the position. He continued to interact with customers and mechanics as a parts and serv.ice manager. He opened the shop, even being the first one at work on August 5, 2015. There was no documented evidence of any complaints about the quantity or quality of Employee's work prior to August 5, 2015. After the work accident on that date, Employee's medical condition changed drastically. His concentration and postural limitations made it impossible for him to perform even the most sedentary aspects of his prior job. As Employee's spouse said, it was a night and day difference between Employee's condition prior to August 5, 2015, and his condition now.

Having determined that employee permanently and totally disabled from the last accident in isolation, there is no Second Injury Fund liability. Employer/Insurer is liable for permanent total disability benefits from beginning October 10, 2018, which is the date Dr. Charapata opined that Employee was permanently and totally disabled, and thus, necessarily at maximum medical improvement.

Even assuming arguendo that Employee was permanently or partially disabled as a result of the combination of primary and preexisting disabilities, the Second Injury Fund still would have no liability. In Cosby v. Treasurer of State as Custodian of Second Injury Fund, (SC973 l 7), _ S.W.3d _ (Mo. bane June 25, 2019), the Missouri Supreme Court held that§ 287.220.3 RSMo, as amended January I, 2014, applies to all claims of permanent disability against the Second Injury Fund occurring after January 1, 2014 (Slip Op. 7). Section 287.220.3 RSMo Cum. Supp. 2014, reads in applicable part, as follows:

(I) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January I, 2014, shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287 .200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active militaiy duty in any branch of the United States Armed forces; or

(ii) A direct result of a compensable injury as defmed in section 287.020; or (Hi) Not a compensable injury, but such preexisting disability directly and

significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related inju,y; or

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Issued by MISSOURI DIVISION OF WORKERS' _COMPENSATION Employee: Frank Starks Injury No.: 15-063148

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work related related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b). An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

None of Employee's preexisting problems fall under the criteria set forth in i, ii, iii, or iv of § 287.220.3(2)(a) RSMo, because they are not a direct result of active military duty or of a compensable injury as defined in§ 287.020 RSMo. No physician who has treated or evaluated Employee expressed the opinion that Employee's 2014 back injury or any other condition somehow aggravated or accelerated the August 5, 2015 injury to Employee's right h:ip. 6 In short, there is no avenue to place any liability on the Second Injury Fund.

Future ./yfedical Treatment

Section 287 .140 RSMo, requires Employer/Insurer to provide medical treatment as rea5onably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. Landman v. lee Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. bane 2003). "Section 287.140.1 makes no reference to a 'prevailing factor' test.. .. " Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511 (Mo. App. W.D. 2011). Employee needs only show by a reasonable probability that future medical treatment is required. Greer v. SYSCO Food Services, 475 S.W. 3d 655,672 (Mo. bane 2015). Employee does not have to prove that a specific treatment will work when the hearing is held, only a reasonable probability that treatment in general is required. Mathia v. Contract .Freighters, Inc., 929 S. W.2d 271, 275 (Mo. App. S.D. 1996); Sharp v. New Mac Elec. Co-op, 92 S.W.3d 351, 354 (Mo. App. S.D. 2003). Employee also is not required to prove that the medical treatment he seeks must treat only the "workrelated injuries." While the treatment must flow from the work injury, the medical treatment is not noncompensable merely because it also benefits another condition. i\1.orris v Captain D's, 537 SW 3d 420, 424 (Mo. App. S.D. 2018).

Certainly, Employee needs help in becoming more mobile. Dr. Charapata had some specific recommendations in this regard. Both Dr. Lennard and Dr. Charapata recommended that Employee have

6 There are other conditions noted in Employee's medical records, such as a 2004 left knee arthroscopy and a lung surgery in !967. There is no evidence suggesting that these conditions were disabling or met the criteria§ 287.220.3(2)(a)a RSMo.

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some humane help in weaning from narcotic pain relievers. Thus, there is credible expert opinions to support a determination that employee is entitled to future medical care to cure or relieve the effects of the work accident. Employee has met his burden of proof through the opinions of Dr. Lennard and Dr. Charapata.

Designation of Medical Providers

Although employers have the right to choose medical providers under § 287.140 RSMo, that right is subject to one caveat:

If it be shown to the division or the commission that the requirements are being furnished in such manner that there is reasonable ground for believing that the life, health, or recovery of the employee is endangered thereby, the division or the commission may order a change in the physician, surgeon, hospital or other provider if there is reasonable ground to believe that Employee's health and recovery have been endangered.

§ 287.140.2 RSMo.

There is no dispute that Employee was immobilized nearly nine months before he obtained the surgery that had been recommended by Employer/Insurer's chosen orthopedic surgeon, Dr. Hicks. The record substantiates that the delay caused significant deconditioning and atrophy due to Employee's inability to ambulate. Dr. Hicks, Dr. Lennard, and Dr. Charapata all recognized the adverse effect the delay had on Employee's condition and recovery.

It is understandable given Employee's frail state that Dr. Hicks initially avoided an order of physical therapy post-surgery, as documented in his medical record. Dr. Hicks, however, recognized that Employee needed reconditioning. But once Dr. Hicks was off the case, there again was a considerable delay in providing even a modicum of physical therapy or reconditioning, even though Employee had experienced a setback in his recovery. Employee still needs additional reconditioning and/or physical therapy and help in managing his pain relief without reliance on narcotic medications. Employee has sustained his burden of demonstrating that Employer/Insurer endangered his health and recovery.

Rather than immediately remove the selection of the health care provider, however, Employee has suggested in his proposed Award that Employer/Insurer be directed to select a health care provider who will provide future medical care consistent with the recommendations of Dr. Charapata to relieve the effects of the work injury. If Employer/Insurer then fails to provide such treatment, it will be deemed to have waived the right to select providers, and Employee shall thereafter be entitled to reimbursement of his future medical expenses. I find such solution appropriate, within the contemplation of the statute, and order the same.

Past Medical Expenses

Employee's prescription record from Walgreens (Ex. 8) was admitted without objection. The record substantiates bills in the amount of $3,502.95 for the oxycodone that Employee has taken since starting his medication prescriptions through his primary care physician. Dr. Hicks referred Employee to his primary care physician for these prescriptions. Employer/Insurer stipulated to medical causation. Dr. Charapata testified the medication oxycodone was necessary. Even Dr. Lennard testified that Employee should be weaned from the medication. Given that Employer/Insurer has not provided humane treatment to wean Employee from prescription narcotic pain medication, and Employee still experiences significant

16


pain, the prescription costs were necessary to relieve the effects of the work injury and reimbursement is owed.

Past Temporary Disability

Employer/Insurer is liable for past temporary disability in the amount of $26,544.90. Employee did not reach maximum medical improvement until October 10, 2018, at which time Dr. Charapata found that Employee was at maximum medical improvement. This date is uncontradicted. Any defense to shorten the length of temporary disability due to a purported offer of employment is denied as Employee was physically incapable of working in a garage. Temporary total disability is for the healing period and is granted only for the time prior to when an employee is capable of returning to work. Williams v. Pillsbury Co., 694 S.W. 2d 488,489 (Mo. App. E.D. 1985). Stipulations between the parties indicate the amounts paid for temporary total disability, but there is a balance due from August 6, 2015 to October 9, 2018, in the amount of $26,544.90.

SUMMARY

Employer shall pay the following:

• Permanent total disability beginning October 10, 2018, and continuing for the remainder of Employee's lifetime, subject to review and modification as provided by law.

• Past Temporary Disability in the amount of $26,544.90.

• Past medical benefits for prescriptions totaling $3,502.95.

• Employer/Insurer shall provide future medical treatment to cure or relieve the effects of the work injury. Employer/Insurer shall select a healthcare provider who will provide future medical care consistent with the recommendations of Dr. Charapata. Its failure to do so shall be deemed a waiver of its right to select the provider, and Employee shall thereafter be entitled to reimbursement of his future medical expenses.

The Second Injury Fund has no liability.

Except as to future medical treatment, the compensation awarded herein shall be subject to a lien of 25 percent in favor of Attorney Patrick J. Platter of the law fum of Neale & Newman, LLP, as a fee for necessary and reasonable services provided to Employee. From the fee awarded, Neale & Newman, LLP, shall satisfy the lien filed on behalf of Hosmer & Wise, P.C., in the amount of $1,500 for fees and $482.08 in expenses.

This Award is subject to review and modification as provided by law. Interest shall be paid according to law.

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Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION Employee: Frank Starks lnjuryNo.: 15-063148

I ceriify I/cc: Cl\ 9-/ 7-/ ~ i df~1vered _a copy of lhe foregoing GWard o e parties lo the case A co I t

record _of the melhod of delivery an:~!t! of service upon each party is retained with the execuled award in lhe Division's case file.

Ma~hy~~ Victorin~Mah~

Chief Administrative Law Judge Division of Workers' Compensation

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