Greer v. SYSCO Food Servs., No. SC 94724

• Court: Missouri Supreme Court
• Writing for the Court: George W. Draper III, Judge
• Citation: 475 S.W.3d 655
• Parties: Carl Greer, Appellant/Cross–Respondent, v. SYSCO Food Services, Respondent/Cross–Appellant, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
• Docket Number: No. SC 94724
• Decision Date: 08 December 2015

475 S.W.3d 655

Carl Greer, Appellant/Cross–Respondent,
v.
SYSCO Food Services, Respondent/Cross–Appellant,
and
Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.

No. SC 94724

Supreme Court of Missouri, en banc .

Opinion issued December 8, 2015

Greer was represented by Jonathan Sternberg of Jonathan Sternberg Attorney PC in Kansas City, (816) 292–7000; and Ray B. Marglous, Robert S. Merlin and Sarah H. Hale of Ray B. Marglous PC in St. Louis, (314) 721–6757.

SYSCO was represented by John M. Allen and Cynthia L. Parnell of Restovich Allen LLC in Kirkwood, (314) 434–7700.

The treasurer was represented by Tracy E. Cordia of the attorney general's office in Jefferson City, (573) 751–3321.

The Missouri Chamber of Commerce and Industry, which filed a brief as a friend of the Court, was represented by Brian A. Bunten of the chamber in Jefferson City, (573) 634–3511, and Richard M. AuBuchon of AuBuchon Law Firm LLC in Jefferson City, (573) 614–1845.

George W. Draper III, Judge

Carl Greer (hereinafter, "Greer") appeals the Labor and Industrial Relations Commission's (hereinafter, "the commission") decision denying him permanent total disability ("PTD") benefits because he contends that, after he sustained a crush injury to his left ankle, he is unemployable in the open labor market. Greer's employer, SYSCO Food Services (hereinafter, "Employer"), cross-appeals, arguing the commission erred in awarding Greer an additional award of temporary total disability ("TTD") benefits after Greer reached maximum medical improvement, erred in failing to reduce Greer's benefits due to an alleged safety violation, and erred in awarding Greer future medical care benefits. After examining the evidence in the context of the whole record, this Court holds the commission's decision is supported by substantial and competent evidence. The commission's decision is affirmed.

475 S.W.3d 660

Factual and Procedural History

Greer began working for Employer in 1989. Greer first worked in Employer's warehouse as an order filler, then was promoted to forklift operator. The operator position required Greer to stand between eight and twelve hours a day, to climb in and out of a forklift, and to maneuver the forklift. Greer repetitively lifted heavy objects and engaged in pushing, pulling, overhead reaching, stooping, squatting, and using his upper body throughout the work day. Greer sustained several work-related injuries prior to the crush injury to his ankle, including a bulging disc in his cervical spine, a lower lumbar strain, and a rotator cuff injury to his right shoulder.

On February 23, 2006, Greer was standing on a stationary forklift inside a freezer at the warehouse attempting to scan a pallet containing inventory. Greer's scanner gun malfunctioned, requiring him to lean forward to scan the pallet. As Greer leaned forward, his left leg extended outside the running lines of his forklift. At that moment, a co-employee driving another forklift caused the other forklift to grab Greer's left foot and crush it between the two forklifts. Greer was taken by ambulance to the hospital, and his left foot was placed in a cast.

Five days after the accident, Greer saw Dr. Blair, an orthopedic surgeon, who diagnosed Greer with a crush injury to his left ankle. Dr. Blair treated Greer for several months, prescribing pain medication, ordering physical therapy, and monitoring his recovery. Greer participated in two functional capacity evaluations while under Dr. Blair's care. The first evaluation, conducted in August 2006, showed Greer could work at the heavy demand level. Greer was released to return to work at that time. However, Greer began experiencing difficulty working and in October 2006 underwent a second functional capacity evaluation, which determined he could work at a medium demand level.

In February 2007, Dr. Blair noted tenderness over Greer's tarsal tunnel and ordered Greer to undergo an electromyogram and nerve conduction test. Dr. Blair noted the electromyogram was normal, but Greer could not complete the nerve conduction test due to pain intolerance. After ordering Greer to undergo additional work hardening, Dr. Blair released Greer to full duty in March 2007. Greer last saw Dr. Blair on April 23, 2007, at which time Dr. Blair released Greer at maximum medical improvement and opined Greer sustained a five percent permanent partial disability of his left ankle due to a limited range of motion.

Greer attempted to return to work several times after being released to full duty. In July 2007, Greer visited Dr. Grebing, who diagnosed Greer with a left ankle and foot crush injury and left tarsal tunnel syndrome. Dr. Grebing administered a cortisone injection to provide Greer relief. However, Greer found he was unable to perform his job duties and voluntarily resigned his employment on November 7, 2007. Employer did not authorize or pay for any further medical treatment after Greer voluntarily terminated his employment.

Because Greer continued to have issues with his left foot, he sought treatment on his own, first consulting with a pain management specialist, Dr. Graham, in November 2007. Dr. Graham administered a psychological evaluation as part of his examination. Dr. Graham found Greer had symptoms of possible tarsal tunnel syndrome. However, Dr. Graham concluded Greer had a strong likelihood of functional overlay, wherein a patient's subjective complaints are disproportionate to the objective

475 S.W.3d 661

medical findings and are recalcitrant to treatment. Based on this finding, Dr. Graham did not offer Greer any pain management treatment and did not recommend Greer undergo surgery or any other invasive treatment.

Between November 2007 and December 2009, Greer engaged in physical therapy and various treatments with at least five physicians, all whom diagnosed Greer with tarsal tunnel syndrome. In December 2009, Greer consulted with Dr. Johnson, an orthopedic surgeon, about the pain in his left foot and ankle. Dr. Johnson initially diagnosed Greer with a fixed deformity in his left foot, which caused his foot to turn inward, and possible tarsal tunnel syndrome. Dr. Johnson ordered additional tests and referred Greer to Dr. Mackinnon, a plastic surgeon, to evaluate his nerve pain. Dr. Johnson eventually recommended Greer undergo tarsal tunnel release surgery, wherein the goal of the surgery would be to reduce Greer's nerve pain and correct his foot deformity.

On June 22, 2010, Drs. Johnson and Mackinnon performed a tarsal tunnel release, tendon lengthening, removal of cutaneous neuromas, and internal neurolysis. Dr. Johnson found the nerve pain Greer described was consistent with the nerve damage he observed during the tarsal tunnel surgery. Dr. Johnson believed the damage inside Greer's foot could be caused by trauma or a crush injury. Dr. Johnson treated Greer for several more months while Greer recovered from the surgery. Although Greer gained some improvement in his foot positioning, his foot eventually contracted to an inward position and he continued to have nerve pain. Dr. Johnson thought a tendon transfer might be Greer's next treatment option for the foot deformity, but he believed Greer's primary problem was pain-related. Dr. Johnson recommended future pain management for Greer's neurogenic pain. Dr. Johnson released Greer from his care on February 4, 2011.

Dr. Berkin, a family physician, conducted three independent medical examinations of Greer, occurring in August 2007, January 2009, and March 2011. Dr. Berkin also reviewed Greer's medical records and interviewed him to obtain his medical history. Dr. Berkin opined Greer suffered a crush injury to his left ankle and tarsal tunnel syndrome as a result of the work-related accident. Dr. Berkin placed restrictions on Greer to avoid the following: excessive squatting, kneeling, stooping, turning, twisting, lifting and climbing, standing on his feet for longer than twenty to thirty minutes, climbing ladders and stairs, working at heights above ground level, walking on uneven surfaces, lifting with his right arm extended from his body, and excessive lifting or working with his right arm above shoulder level. Dr. Berkin imposed other lifting restrictions and stated Greer should pace himself and take frequent breaks. Dr. Berkin stated these restrictions were based upon a combination of all of Greer's work-related injuries. Dr. Berkin opined Greer was permanently and totally disabled due to all of his injuries. With respect to Greer's tarsal tunnel surgery, Dr. Berkin found Greer did not have a good outcome from the surgery because his functioning was not improved and his condition worsened after surgery.

Dr. Schmidt, an orthopedic surgeon, conducted two independent medical evaluations of Greer on Employer's behalf in February 2008 and May 2011. Dr. Schmidt also reviewed Greer's medical records and obtained a medical history from him. Dr. Schmidt opined Greer suffered a five percent permanent partial disability in his left foot, and agreed with Dr. Blair that Greer achieved maximum medical improvement on April 23, 2007. Dr.

475 S.W.3d 662

Schmidt's opinion did not change after Greer had tarsal tunnel surgery. Dr. Schmidt opined the tarsal tunnel surgery was not reasonably necessary and...