Lewis v. Treasurer of State

• Decision Date: 30 June 2014
• Docket Number: No. ED 100657.,ED 100657.
• Citation: 435 S.W.3d 144
• Parties: Sylvester LEWIS, Claimant/Respondent, v. TREASURER OF the STATE of Missouri, Custodian of the Second Injury Fund, Appellant.
• Court: Missouri Court of Appeals

435 S.W.3d 144

Sylvester LEWIS, Claimant/Respondent,
v.
TREASURER OF the STATE of Missouri, Custodian of the Second Injury Fund, Appellant.

No. ED 100657.

Missouri Court of Appeals,
Eastern District,
Division Two.

June 30, 2014.

[435 S.W.3d 146]

David G. Plufka, St. Louis, MO, for claimant/respondent.

Adam T. Sandberg, St. Louis, MO, for appellant.

SHERRI B. SULLIVAN, J.
Introduction

The Second Injury Fund (Fund) appeals from the Labor and Industrial Relations Commission's (Commission) decision awarding Sylvester Lewis (Claimant) permanent and total disability benefits from the Fund. We affirm.

Factual and Procedural Background

Claimant was employed at Crane Company (Employer), a vending machine manufacturer, between November 6, 1978, and November 6, 2009, a period of 31 years. During this time, Claimant sustained a number of injuries relevant to this appeal. The following facts were established at the hearing on Claimant's claim against the Fund.

Claimant's Injuries and Treatment January 2004 Left Shoulder and Elbow Injuries

On January 8, 2004, Claimant sustained a work injury to his left shoulder and elbow. Dr. Mitchell Rotman (Rotman) obtained an MRI of the left shoulder which revealed a rotator cuff tear. Claimant's symptoms did not improve after receiving injections, so on September 15, 2004 Rotman performed a left shoulder arthroscopy and subacromial decompression along with a left elbow ulnohumeral arthroplasty and partial resection of the distal humerus. During surgery, Rotman observed that the tear in the rotator cuff was just under 50% but decided not to perform an open procedure on the shoulder because of the extensive work being done to the elbow. Although Claimant continued to complain of pain in his shoulder following the surgery, Rotman released Claimant to return to full duty on November 29, 2004. In December 2004, to address Claimant's continued pain, Rotman gave Claimant another injection.

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On February 10, 2005, Rotman attributed Claimant's persistent left arm pain to cervical radiculopathy at C5–C6 due to a non-work-related degenerative condition. Rotman found Claimant was at maximum medical improvement (MMI), assessed a 6% permanent partial disability (PPD) at the left shoulder and a 7% PPD at the left elbow, and released Claimant to full duty with no restrictions.

On May 13, 2010, Claimant returned to Rotman for his continuing left shoulder pain. Rotman ordered an MRI and, noting there was no evidence of a recurrent or second injury, opined that the January 2004 injury was the prevailing factor in the need for a new MRI scan. The MRI revealed a partial tear in the shoulder. On November 29, 2010, Claimant was referred to Dr. James Emanuel for a second opinion, who diagnosed bursitis subacromial and rotator cuff syndrome and recommended surgery.

On February 16, 2011, Rotman performed a “[l]eft shoulder arthroscopy biceps tenodesis and repair of a chronic partially healed 50% dime sized rotator cuff tear ... with an arthroscopic subacromial decompression.” On March 3, 2011, Rotman reported, “[Claimant's] rotator cuff didn't look too bad. It looked about the same as where it was several years ago after the original arthroscopy and debridement.” On June 14, 2011, Rotman found Claimant was at MMI with regard to his left shoulder rotator cuff repair and released Claimant to work without any restrictions.

On April 12, 2012, Claimant settled his claim with Employer for 30% PPD of the left shoulder and 22.5% PPD of the left elbow.

Claimant testified at the hearing that he continued to have pain in his left shoulder and elbow after Rotman released him to work in 2005. Claimant had difficulty picking things up, lifting things over his head, and said he “was having basically the same problems that [he] was having before [the] operation.” Although Claimant voiced these complaints to Employer, it would not approve additional treatment because Rotman had concluded that his shoulder pain was originating from his neck and had released him to work.

Claimant testified he currently has limited range of motion, decreased strength, and difficulty lifting over his head, picking things up or making rapid movements. When asked during cross-examination if his shoulder got better or worse after the second surgery, Claimant responded, “I think it got, it's, it didn't change. I would say the pain intensity didn't change.... The pain intensity didn't, it didn't go away and the things that I was having problems doing, like lifting and putting my, reaching for stuff the pain is still there with that.” Claimant testified his “shoulder problems never left.” When repeatedly asked if his shoulder pain got worse up until the time of surgery, Claimant stated “[t]he pain never went away. That's the best I can tell you. The pain just never went away.”

2005 Cervical Spine

On January 31, 2005, Claimant injured his neck while at work. Claimant was diagnosed with a mild strain injury and treated conservatively.

On February 24, 2005, Claimant reinjured his neck and also injured his right shoulder. Claimant was diagnosed with a cervical spine disc protrusion at C3–4 to the right, C4–5 centrally, and spondylosis at C5–6. Claimant received conservative treatment, namely physical therapy and injections, for his cervical spine and right shoulder girdle radicular symptoms. Claimant was also diagnosed with right shoulder impingement but received no specific

[435 S.W.3d 148]

treatment. Claimant reported to Dr. David Volarich (Volarich) on August 31, 2011 that he continued to experience ongoing difficulties from this injury.

In January 2012, Claimant sought treatment from Dr. Stephen Smith for his neck and upper back pain. An MRI revealed cervical spondylosis. Claimant received physical therapy, injections, and radio frequency ablation of the cervical facet joints after which he saw some improvement of his symptoms. Claimant testified he still experiences pain and has difficulty turning. Claimant stated these symptoms have persisted since 2005 and he is currently still receiving pain management for his neck.

2005 Lumbar Spine

In November 2005, Claimant sought treatment for his low back due to pain after lifting his grandson. Claimant stated he began experiencing problems bending and standing straight in 2005 and that these problems persist. Claimant received therapy and medication and continues to get pain management for his low back.

2005 and 2006 Bilateral Carpal Tunnel

In March 2005 and May 2006, Claimant developed pain, numbness and tingling in both hands. Claimant was eventually diagnosed with carpal tunnel syndrome and on March 18, 2009 and April 1, 2009, Rotman performed endoscopic carpal tunnel releases. Rotman released Claimant to work full duty on May 18, 2009, and found Claimant was at MMI on June 18, 2009. Rotman assessed a 5% PPD at each wrist. Claimant settled his claim with Employer for 17.5% PPD at the right and left wrists.

Claimant testified that in 2006 his hands became very stiff, were tingling and aching, and that it hurt to grip things. Claimant had been receiving hand therapy with Employer's in-house therapist, including at the time of his last injury in 2007. Claimant testified his symptoms have not gotten better since 2006 and are the same as when he was still working.

2007 Right Thumb—The Primary Injury

On November 7, 2007, Claimant began experiencing a “sticking” sensation in his right thumb. Claimant returned to Rotman for treatment and in July 2008, Rotman performed a right trigger thumb release and aspirated a ganglion cyst on Claimant's right wrist. The cyst recurred following surgery. On November 25, 2008, Rotman found Claimant was at MMI, provided a 5% PPD of the right thumb and no disability with regard to the wrist ganglion, and released Claimant from care. On April 28, 2010, Claimant settled his claim with Employer for 15% of the right thumb.

Claimant testified that his right thumb aches all the time and hurts when he pushes something with it. The symptoms are the same since the injury occurred in 2007.

Claimant's Work History

In 2002, Claimant began working as a material handler, a position that required repetitive lifting of approximately 2,000 to 4,000 pounds a day. Claimant stated the heavy lifting affected his shoulders, neck, back and hands.

In December 2004, after receiving treatment for his 2004 left shoulder and elbow injuries, Claimant was released to return to work at full duty. Claimant, however, could no longer perform the heavy lifting required of a material handler and returned to work as a cabinetmaker, which did not require constant heavy lifting. Claimant continued to have problems with his shoulders and hands in the new position because it required the use of hand tools and air guns and the pushing of

[435 S.W.3d 149]

cabinets. In 2006, Claimant began having problems with his wrists and thumbs.

As a cabinetmaker, Claimant had production requirements. Claimant testified it became increasingly difficult for him to perform his job, which slowed him down and made it harder for him to meet the production requirements. Claimant was reprimanded for the slowdowns. Eventually, Claimant was removed from the cabinetmaker position and sent to a non-production area as a bench sub, a downgrade resulting in a pay decrease of 50 cents an hour.

As a bench sub, Claimant continued to use air guns and hand tools but no longer had set production requirements. The pace of the new position was much slower, allowing Claimant to stop working and stand up or walk around when his hands or back began to hurt. Claimant testified he was working as a bench sub when he sustained the injury to his right hand in November 2007. Claimant stated his hands and wrist had been bothering him but the prolonged use of the air guns caused his right thumb to start sticking. After Rotman operated to treat the injury and released him back to work, Claimant returned to the bench sub position. Claimant stated upon his return...