FINAL AWARD ALLOWING COMPENSATION
(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 01-070581
Employee: Tony Gross
Employer: Daimler-Chrysler (Settled)
Insurer: Self-Insured (Settled)
Additional
Party: Treasurer of
of Second Injury Fund
Date of Accident: April 18, 2001
Place
and
The above‑entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 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 Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 22, 2007. The award and decision of Administrative Law Judge John K. Ottenad, issued August 22, 2007, 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
LABOR AND INDUSTRIAL RELATIONS COMMISSION
NOT SITTING
William F. Ringer, Chairman
Alice A. Bartlett, Member
John J. Hickey, Member
Attest:
Secretary
AWARD
Employee: Tony Gross Injury No.: 01-070581
Before the Division of Workers’ Compensation Department of Labor and
Industrial Relations of
Dependents: N/A
Employer: DaimlerChrysler Corp. (Settled)
Additional Party: Second Injury Fund
Insurer: Self-Insured (Settled)
Hearing Dates: April 9, 2007 Checked by: JKO
FINDINGS OF FACT AND RULINGS OF LAW
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: April 18, 2001
5.
State location where accident occurred or occupational
disease was contracted:
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: Claimant worked on the assembly line for Employer and injured his right knee, as well as caused a worsening of his psychiatric condition, when he was struck on the right knee by an axle suspended on a hoist.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right Knee and Body as a Whole referable
to psychological impairment
14. Nature and extent of any permanent disability: 50% of the Right Knee and 25% of the Body as a Whole
referable to the psychological impairment
15. Compensation paid to-date for temporary disability: $55,684.98
16. Value necessary medical aid paid to date by employer/insurer? $93,614.26
Employee: Tony Gross Injury No.: 01-070581
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: $869.27
19. Weekly compensation rate: $579.51 for TTD/ $314.26 for PPD
20. Method wages computation: By agreement (stipulation) of the parties
COMPENSATION PAYABLE
21. Amount of compensation payable:
Employer previously settled its risk of liability
22. Second Injury Fund liability:
$265.25 per week for 180 weeks from 04/19/03 until 09/30/06 $47,745.00
$579.51 per week for Claimant’s lifetime starting 10/01/06, subject to review and modification by law
Total: $47,745.00 through 09/30/06 plus continuing weekly benefits as described
23. Future requirements awarded: As awarded
Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.
The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Evan J. Beatty.
FINDINGS OF FACT and RULINGS OF LAW:
Employee: Tony Gross Injury No.: 01-070581
Dependents: N/A Before the
Division of Workers’
Employer: DaimlerChrysler Corp. (Settled) Compensation
Department of Labor and Industrial
Additional
Party: Second Injury Fund Relations of
Insurer: Self-Insured (Settled) Checked by: JKO
On April 9, 2007, the employee, Tony Gross, appeared in
person and by his attorney, Mr. Evan J. Beatty, for a hearing for a final award
on his claim against the Second Injury Fund.
The employer, DaimlerChrysler Corp., which is duly self-insured, was not
present or represented at the hearing since it had previously settled its risk
of liability in this case. The Second
Injury Fund was represented at the hearing by Assistant Attorney General
Jennifer R. Chestnut. At this hearing,
Claimant also submitted evidence and sought an award on his companion case of Injury
No. 99-182682. A separate award has been
issued to bring resolution to that Claim.
At the time of the hearing, the parties agreed on certain stipulated
facts and identified the issues in dispute.
These stipulations and the disputed issues, together with the findings
of fact and rulings of law, are set forth below as follows:
STIPULATIONS:
1) On or about April 18, 2001,
Tony Gross (Claimant), sustained an accidental injury arising out of and in the
course of his employment that resulted in injury to Claimant.
2) Claimant was an employee of
DaimlerChrysler Corp. (Employer).
3) Venue is proper in the City
of
4) Employer received proper
notice.
5) The Claim was filed within
the time prescribed by the law.
6) At the relevant time,
Claimant earned an average weekly wage of $869.27, resulting in applicable rates
of compensation of $579.51 for total disability benefits and $314.26 for
permanent partial disability (PPD) benefits.
7) Employer paid temporary
total disability (TTD) benefits in the amount of $55,684.98, representing a
period of time from April 18, 2001 to April 18, 2003, or 103 6/7 weeks.
8) Employer paid medical
benefits totaling $93,614.26.
9) Claimant reached maximum
medical improvement as of April 18, 2003.
ISSUES:
1) What is the nature and
extent of Claimant’s permanent partial and/or permanent total disability
attributable to this accident?
2) What is the liability of the
Second Injury Fund?
EXHIBITS:
The following exhibits were admitted into evidence:
Employee Exhibits:
A. CLSS
in Injury No. 99-182682 (between Claimant and Employer)
B. CLSS
in Injury No. 01-070581 (between Claimant and Employer)
C. Certified
medical records from
D.
Medical records of Michael
Gutwein, M.D.
E.
Certified medical records of
Orthopedic Associates (Drs. Wagner & Hulsey)
F.
Certified medical records of
HealthSouth
G.
Certified medical records of
Aquatic Fitness, Inc.
H.
Certified medical records of
Mercy Medical Arts-Eureka (Dr. Ballard)
I. Certified
medical records of Gregory Galakatos, M.D.
J.
Certified medical records
of
K.
Certified medical records of
L.
Certified medical records of
Rashid Zia, M.D.
M.
Certified medical records of
N. Certified
medical records of St. Anthony’s
O.
Medical records of St. Louis
Behavioral Medicine Institute
P.
CLSS in Injury No. 98-028316
(between Claimant and Employer)
Q.
CLSS in Injury No. 98-071031
(between Claimant and Employer)
R. Medical
records of the DaimlerChrysler Plant Dispensary
S.
Certified medical records of
T.
Certified medical records of
Henry Ollinger, M.D.
U.
CLSS in Injury No. 97-013155
(between Claimant and Employer)
V.
Certified medical records of
Orthopedic Associates (Dr. Wagner)
W. Certified
medical records of West County Sports,
X. Certified
medical records of HealthSouth Surgery Center of West County
Y. Certified
medical records of
Z. Deposition
of Dr. David T. Volarich dated September 21, 2006
AA. Deposition
of Delores Gonzalez, with attachments, dated November 6, 2006
BB. Deposition
of Dr. Richard Anderson, with attachments, dated October 2, 2006
Second Injury Fund Exhibits:
I. Vocational
Rehabilitation Evaluation Report of James M. England, Jr.
Notes: 1) Exhibits AA and BB were admitted with objections contained in
the record. Unless otherwise
specifically noted below, the objections are overruled and the testimony fully
admitted into evidence.
2) Although
Exhibit Z purports to contain attachments, and although such attachments are
referenced in the body of the exhibit, no such attachments were included with
the exhibit at the time it was admitted into evidence.
3) Any stray marks
or handwritten comments contained on any of the exhibits were present on those
exhibits at the time they were admitted into evidence, and no other marks have
been made since their admission into evidence on April 9, 2007.
FINDINGS OF FACT:
Based on a comprehensive review of the substantial and
competent evidence, including Claimant’s testimony, the expert medical and
vocational opinions and depositions, the medical records, the Stipulations for
Compromise Settlement for various pre-existing injuries, and the Stipulation
for Compromise Settlement resolving Employer’s portion of this case, as well as
based on my personal observations of Claimant at hearing, I find:
1) Claimant is a 43-year-old, currently
unemployed individual, who last worked for DaimlerChrysler Corp. as an assembly
line worker. Claimant currently receives
a monthly payment from Social Security Disability.
2) Claimant testified that he
completed the 12th grade, and then tried on two occasions to go to community
college, but he flunked out both times.
3) Claimant testified extensively
about emotional and psychological problems that started when he was a
child. He described himself as a
loner. He said that he was molested at
around age 12. He had to hitch a ride to
ball practice because his parents did not drive, and the person that picked him
up, molested him. He said that after
that incident, he felt “dirty” and had recurring intrusive thoughts. His parents divorced when he was 14 years
old. He said he came home one day and
everything was gone except for his father.
Claimant said that he only saw his mother 3 times while he was in high
school. He said that he often stayed
with other families and rarely at home, because he always needed a ride to ball
practice. He always felt like a
“project” for them. He said that some
nights he slept in the cold on the school steps if he could not find a family
to stay with. He testified that he only
saw his father once every couple of months.
He described a family history of alcoholism in his aunts and uncles, as
well as a family history of depression in his mother and younger sister. He described being “smacked around” by his
family because he was the oldest.
4) Claimant said he first noticed the feelings of
depression in high school. He thought
about jumping off of a 40-foot bridge, and actually started to jump off several
times, but he stopped himself. He said
he portrayed himself as a jokester to hide his problems, and because he needed
everyone else’s help with rides, food, and other necessities. He said that he “ate a lot of crap.” Claimant also testified that he played
Russian roulette with a .38 special on several occasions, first with one bullet
and then later with two. He said that he
saw his uncles doing it, so he tried it too.
He said he started playing that at 13 or 14 years old.
5) Claimant testified that
around the age of 12 or 13, he also started with cutting and burning
himself. He would use things such as a
knife, piece of glass, saw, or carpet cutter to cut himself. He said the pain he caused himself took away
the inside pain he was feeling. He then
discovered that he could burn himself with a cigarette on his hand to create a
new sensation and a new smell of burning flesh.
At the hearing, I observed numerous scars all up and down his arms, both
new and old. He testified that his son
was in a car accident which caused a recent bout of cutting behavior. Claimant also described risk-taking behavior,
including playing chicken with other cars and driving 125 to 130 miles an hour. He said that he would also lie down in the
road while he was in school, because he was tired and just wanted it all to end. Finally, Claimant described obsessive-compulsive
disorder that started while in school, but which got worse while working for
Employer. He said he would wash his hands
500 times per day, and he felt that everything had to be perfect. He even described getting in trouble for
stopping the line to fix things while working for Employer.
6) Claimant served in the Navy
for 4 years in active duty from 1985 to 1989.
He was responsible for maintenance on the planes, and for making sure
they were ready for launch. He received
an honorable discharge as a grade E3. He
said he could not score high enough on the test to get the next rank. He said that he could not concentrate long
enough to read. He said he also had bad
intrusive thoughts and a bad vocabulary.
Although he had a few injuries in the Navy, he had no on-going treatment
for any injuries while in the service.
He did get some treatment, however, for alcohol dependence, because he
was (by his own description) a weekend alcoholic. He went to a class two times, and also went
for some counseling to try to get him to quit drinking.
7) Claimant testified that his
emotional and psychological problems seemed to be well-controlled while in the
Navy. He said they were always busy, and
everyone was straightforward with no tricks and no agendas. He said those that worked hard got the
benefits, and he liked that. He said
that he also liked the physical nature and speed of the work. It was an adrenaline rush for him. He said this helped him cope. It helped keep his “pit bull” mind on a
collar, so that he could function. He
described a similar situation with his work for Superior Aviation (described
below). He said hard work allowed him to
be successful there.
8) Following his time in the
Navy, Claimant worked at Superior Aviation in
9) Claimant moved to
10) Claimant testified that his
psychological problems did not fare as well while he worked for Employer. He said he got yelled at every day. He said he thought they were supposed to be a
“team,” but the union people and supervisors would yell at him for doing extra
things. He said authority got to be a
problem. He would see waste, ask
questions, and get sent to the Union rep for asking. He testified that people were backstabbing
each other there, and he felt more depressed.
He said he really noticed it when he got injured the first time. He said he would talk to the EAP
representative 2-3 times per year at Employer because of stress and how it was
affecting him on the job.
11) He first injured his right
knee in 1997 when he fell into a pit while working for Employer. He received initial care at
12) Claimant and Employer
entered into an agreement to resolve their portion of this 1997 claim (Injury
No. 97-013155) by Stipulation for
Compromise Settlement (Exhibit U) for $8,599.04 or 20% permanent partial
disability of the right knee.
13) Claimant described continued
problems he had following this injury and the surgery. He said he could not stand all day, and he
would go to the plant dispensary to get some ibuprofen. He testified that he also received other
stronger pain medications from the plant doctor. Claimant testified that his depression also
worsened after this 1997 injury, because he was “pegged as a whiner” by others
on the line. He said that he missed some
days at work, because he simply could not stand for 6 days on the line.
14) Medical records from
15) Claimant said that he missed
time from work as a result of his psychological condition. He said he had issues with co-workers and
supervisors because they made him the whipping boy and treated him like a
“piece of crap.” He said he got into a fight
with a co-worker over lunch when they were playing stickball. He pitched too close, and the guy threw his
bat, so Claimant “slapped him around.”
On one occasion, he said he followed a supervisor home and then to a
bar, and challenged him to a fight.
Claimant said he had these problems because he could not work at the
same level he once did. He said it made
him mad when he was put back on a job worse than the one before, despite being
on restrictions from his injuries. He
said his mental health continued to worsen, and he told co-workers and
supervisors that he would cut their throats.
16) In March 1998, Claimant
appeared at the DaimlerChrysler Plant
Dispensary (Exhibit R) complaining of his right ring and baby finger
locking up on him. He was sent for
treatment with Dr. Henry Ollinger
(Exhibit T). Then on March 20, 1998,
Claimant injured his right index finger when his hand slipped and he caught the
edge of the transmission, lacerating his extensor tendon in the right index
finger. Dr. Ollinger performed an
extensor tendon repair of the right index finger on March 20, 1998. Dr. Ollinger then performed surgery on April
3, 1998 at
17) Claimant and Employer
entered into an agreement to resolve their portion of the March 9, 1998 claim
(Injury No. 98-028316) by Stipulation
for Compromise Settlement (Exhibit P) for $3,417.61 or 22.5% permanent
partial disability of the right ring finger (proximal) and 20% permanent
partial disability of the right little finger (proximal). Employer paid a total of 12.275 weeks of
permanent partial disability in this settlement.
18) Claimant and Employer
entered into an agreement to resolve their portion of the March 20, 1998 claim
(Injury No. 98-071031) by Stipulation
for Compromise Settlement (Exhibit Q) for $3,382.23 or 25% permanent
partial disability of the right index finger (proximal) and 1 week of
disfigurement. Employer paid 11.25 weeks
of permanent partial disability in this settlement.
19) Claimant next injured his
right knee at work for Employer on March 14, 1999, when he tripped over some
metal bands on the floor, causing him to fall onto his right knee. He said he started getting a lot of swelling,
and so he got more narcotic pain medications to deal with the complaints.
20) Claimant had an MRI of the
right knee taken at
21) Claimant had no other
significant treatment for the right knee from the date of this injury until he
next injured his right knee on April 18, 2001, although Claimant testified that
he was missing work because of the continued problems he was having with the knee. He testified that he was actually missing
more time than he was working in between these two knee injuries.
22) Medical treatment records
from Dr. Rashid Zia (Exhibit L)
document the psychological treatment Claimant received both before and after
the 2001 injury. Dr. Zia’s records
contain off-work slips for numerous periods of time dating back to 1999, when
Claimant was kept out of work on account of his psychological problems. Claimant was given a number of medications by
Dr. Zia during this time, including Prozac and Depakote, to try to regulate his
mental status.
23) Claimant was admitted to
24) Claimant was hospitalized
again for his psychological condition at
25) On April 18, 2001, Claimant
again injured his right knee at work for Employer when he was struck on the
right knee by an axle that was up on a hoist.
He said the guard was missing from the button, and his knee was struck
when the button was hit.
26) Claimant again received treatment
from Dr. John Wagner at Orthopedic
Associates (Exhibit E) for his right knee.
On June 12, 2001, Dr. Wagner performed a debridement and chondroplasty
of the medial femoral condyle, and an abrasion arthroplasty of the patella and
tibia to remove anterior spurs. When
Claimant continued to have problems and complaints with the knee, Dr. Wagner
eventually recommended a total knee replacement procedure. Dr. Wagner performed the total right knee
replacement on October 16, 2001 at Missouri
Baptist Medical Center (Exhibit C).
27) Claimant followed up with
Dr. Wagner after the knee replacement surgery, and was readmitted to
28) During this whole period of
recovery after the April 18, 2001 injury, Claimant had extensive courses of
physical therapy and a work hardening evaluation at HealthSouth (Exhibit F). He
also had an extensive course of physical therapy at Aquatic Fitness, Inc. (Exhibit G) where they worked on increasing
his range of motion and functioning in the knee, while decreasing his
complaints.
29) Claimant testified that he
tried to go back to work in 2003, but Dr. Malec at the plant disregarded all of
his restrictions, and Claimant was walking, bending and lifting even more than
he was doing before his last injury. He
said they moved him around for a half a day and then sent him out for a
week. He said that all the walking,
stooping and kneeling made his symptoms in the right knee worse.
30) On June 4, 2003, Claimant
was admitted directly to the outpatient psychiatric program at St. Anthony’s Medical Center (Exhibit
N) by Dr. Zia. He reported increasing
depression over the last several months.
He reported mood swings with feelings of being very depressed to very
angry. His GAF (Global Assessment of
Functioning) at admission was 35. He was
discharged from the program on June 25, 2003 to follow-up with Dr. Zia. His diagnoses were major depression,
recurrent, and obsessive-compulsive disorder.
31) Medical records from the St. Louis Behavioral Medicine Institute
(Exhibit O) document visits Claimant has had there since 2003 for psychological
counseling. There are references to
depression and anxiety, as well as stress and cutting behaviors. There are also indications that he tried to
work, and he wants to work, but it is “torture” on his knees, and he simply
cannot do it.
32) Claimant testified that his
mental status grew progressively worse following this last injury because he
could not do anything physical anymore.
He said he used to be obsessive about exercise as a coping skill, but he
could not run or even really pedal a bicycle anymore because of the right
knee. He said he gained 60 pounds since
2001. Claimant testified that at one
point he loaded up his guns and was going to head to Chrysler because he was
“going to kill 10 or 12 of those SOBs.”
He said that he also got involved with obsessive gambling, and was in
debt thousands and thousands of dollars.
He said that his wife gives him an allowance now every two weeks, and
she handles all of the money. He said he
continues to take antidepression and antianxiety medications, but they are not
helping him. He testified though that if
he does not take his medication, then bad things happen to people. He said, for example, that he got into an
altercation with his neighbor, and had to go to the hospital. He said that generally he does okay with
people as long as it is on his terms. He
admitted that he has several weapons, but his psychologist will not let him
have them, because of a fear that he would use them to kill people at Chrysler,
or other people in general.
33) Following his release from
Dr. Wagner for his right knee, Claimant then came under the care of Dr. Gregory Galakatos (Exhibit I) for
his left knee. Dr. Galakatos performed a
left knee arthroscopy with a partial medial meniscectomy, and a chondroplasty
of the patella, at the
34) The deposition of Dr.
David T. Volarich was taken by Claimant on September 21, 2006 to make his
opinions in this case admissible at trial (Exhibit Z). Dr. Volarich is an osteopathic physician with
a certification as an independent medical examiner. He examined Claimant on one occasion, April
13, 2004, at the request of Claimant’s attorney. This single examination occurred after
Claimant had sustained his 2001 injury and also underwent his knee replacement
surgery as a result of that last injury.
Interestingly, Dr. Volarich describes the 1999 injury as having occurred
on February 14, 1999, not March 14, 1999 as is pled in the Claim. He describes the same mechanism of injury of
Claimant tripping over a metal band from an axle that was on the floor, causing
him to twist his knee and fall onto it.
35) Referable to the February
14, 1999 (March 14, 1999) injury, Dr. Volarich diagnosed aggravation of right
knee syndrome including degenerative arthritis and chondromalacia with a bone
contusion, which was not surgically repaired.
Referable to the April 18, 2001 injury, he diagnosed another contusion
of the knee causing a significant aggravation of his degenerative arthritis and
chondromalacia, and resulting in a total knee joint replacement, which was
complicated by post-surgery infection. He
opined that the work injuries of February 14, 1999 and April 18, 2001 were the
substantial factors in causing these respective diagnoses, and need for
treatment. He rated Claimant at 15%
permanent partial disability of the right knee for the February 14, 1999 injury,
and 60% permanent partial disability of the right knee for the April 18, 2001
injury. Dr. Volarich also rated
pre-existing disabilities to the right knee (20%) and to the right hand
(20%). He opined that there was
considerable psychiatric disability, but deferred to a psychiatric evaluation
for that assessment. Dr. Volarich
further opined that the combination of the disabilities creates a substantially
greater disability than the simple sum or total of each separate injury or
illness, and so a loading factor should be added.
36)