Pace v. City of St. Joseph

• Decision Date: 22 May 2012
• Docket Number: Nos. WD 74234 to WD 74237.,s. WD 74234 to WD 74237.
• Citation: 367 S.W.3d 137
• Parties: Gary PACE, Respondent, v. CITY OF ST. JOSEPH, Appellant, Treasurer of the State of Missouri—Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

367 S.W.3d 137

Gary PACE, Respondent,
v.
CITY OF ST. JOSEPH, Appellant,
Treasurer of the State of Missouri—Custodian of the Second Injury Fund, Respondent.

Nos. WD 74234 to WD 74237.

Missouri Court of Appeals,
Western District.

May 22, 2012.

[367 S.W.3d 140]

Bart Eisfelder, Kansas City, MO, for Appellant.

Benjamin Creedy, St. Joseph, MO, for Respondent, Pace.

Maureen Shine, Kansas City, MO, for Respondent, Treasurer of the State of MO.

Before JAMES EDWARD WELSH, P.J., CYNTHIA L. MARTIN, J., and GLEN DIETRICH, Sp. J.

JAMES EDWARD WELSH, Presiding Judge.

The City of St. Joseph appeals from the Labor and Industrial Relations Commission's determination that Gary Pace was entitled to permanent and total disability benefits for a knee injury he sustained at work on December 9, 2002. The City asserts that the Commission erroneously applied the law regarding the substantial factor test when it found that Pace's employment with the City on December 9, 2002, which resulted in Pace's injuring his right knee, was a substantial factor in causing Pace's injuries to his back, hip, and left upper extremity in 2004. Moreover, the City contends that the Commission's determination that Pace was permanently and totally disabled due to the December 9, 2002 right knee injury alone was not supported by competent and substantial evidence. Further, the City contends that competent and substantial evidence did not support the Commission's determination that Pace's back pain, bilateral carpal tunnel syndrome, complex regional pain syndrome, and chronic reactive depression were a result of the December 9, 2002 knee injury. We affirm.

Pace was employed by the City of St. Joseph as a dangerous buildings inspector. On December 9, 2002, he was inspecting a motel in St. Joseph. As he stood in the middle of a room taking photographs, his right foot became lodged in the floor. Pace's body twisted, and he lost his balance and injured his right knee.

Dr. Bruce Smith diagnosed Pace with a meniscus tear in his right knee and performed arthroscopic surgery on January 10, 2003. Following the surgery, Pace developed a blood clot in his right leg, which required additional hospitalization and treatment. Pace was diagnosed as having deep vein thrombosis in his right leg secondary to arthroscopic surgery and immobility.

After the surgery, Pace still experienced pain underneath his right knee cap and deep inside the knee. Pace said that his knee hurt in the area where the blood clot was (three or so inches below the knee), that his right shin bone hurt, that the skin on top of his right leg was sensitive, that his right ankle felt like a hot wire burning him, that he had pain in the middle of his right calf muscle, and that he had pain in his right instep up to the toes.¹ Pace filed

[367 S.W.3d 141]

a claim for workers' compensation for the December 9, 2002 incident. His claim listed these body parts as injured during the incident: “Right leg and knee; cardio-pulmonary system (deep vein thrombosis); nervous system; development of.”

Pace was off work from December 10, 2002, to April 7, 2003. Upon returning to work, he was initially put on light duty, and he eventually resumed unrestricted, full duty work. Even after returning to work, Pace had significant pain in his knee. According to Pace, it was painful to go up and down steps and to walk on uneven terrain. Standing or walking aggravated the pain in his knee, and the longer he was “up and around” on his knee, the worse the pain got. Anytime Pace put weight on his right leg, his knee would hurt.

The pain was so great at times that Pace would have to go sit in his truck and elevate his leg, or he would simply go home. Every day on his lunch breaks, he would go home, take pain pills, and lie down in bed for 45 minutes with his leg propped on a pillow. Sometimes, Pace did not go back to work after lunch because the pain was so bad. Eventually, the pain got so bad that many times Pace would do building inspections from his truck and take photographs from his truck to avoid having to walk into the buildings. Because of the pain, Pace would have to take off work “a lot of times.” Pace used sick leave, vacation leave, and comp time when he took off work, but eventually it got to the point where he would have to take time off without pay.

After work each day, Pace's knee was very swollen, and the pain in his knee would be much worse. Pace would go home, ice and elevate his knee, and take more pain medication. Pace's activities at home were limited to “puttering around the house” for ten to twenty minutes, and then he would have to go sit down in a recliner. Most days, Pace would just get in bed as “quickly as possible” so that he could elevate his leg. According to Pace, the knee pain kept him up at night, and he would usually get only two hours of sleep per night because he was waking up four to eight times a night. Pace eventually began taking sleep medication to help him sleep. He now wakes up on average two to three times a night.

Dr. Smith prescribed a cane for Pace to use while walking. Pace used the cane when he went back to full duty work because his right knee was unstable. According to Pace, the pain in his right leg severely limited his ability to walk, and the pain was so strong and sharp that it caused his right leg to give out at times and would result in his falling. Pace could not walk more than a block or two without the pain reaching intolerable levels. The tendency of his right leg to give out has been present ever since the December 9, 2002 accident.

After the December 9, 2002 accident, Pace experienced several falls. On April 26, 2004, while working at his office, Pace tripped over some electrical cords that were on the floor. While falling, he put his right leg out, putting weight on it, and fell into an employee's lap. The pain in Pace's right leg was “very, very painful,” and he missed three days of work because of the pain. Pace did not file a workers' compensation claim for this incident.

On November 2, 2004, Pace was working in his office and was walking to the restroom when he experienced a sharp pain under his right kneecap, which caused his knee to give out and caused him to fall. As he fell, Pace tried to catch himself, but he ended up twisting and spinning which caused severe pain in his right knee. According to Pace, after the fall, his lower back hurt, and the pain in his knee kept increasing. Pace filed a workers' compensation

[367 S.W.3d 142]

claim for this incident. His claim listed these body parts as injured during the incident: “Back; right leg; right knee; nervous system; left hamstring; brain-mental/emotional; hands; body as a whole.”

On December 10, 2004, Pace's right knee gave out as he was walking down stairs while at work. He felt a stabbing pain in his right leg as he was walking down the stairs, and his leg gave out causing him to fall. Pace landed on his left hip and his left elbow, which jerked his left arm up. He then bounced down the rest of the stairs. After the fall, Pace's lower back, left hip, left elbow, left bicep, and left shoulder were hurting. According to Pace, he was hurting so bad after the fall that he laid on the floor for 20 to 30 minutes before he was finally able to stand up on his own with his cane. Pace filed a claim for workers' compensation for this incident. His claim listed these body parts as injured during the incident: “Back; right leg; right knee; left shoulder; left hip; left hamstring; brain-mental/emotional; hands; body as a whole.”

Because of the left shoulder injury, Pace cannot lift with his left arm, and his range of motion is limited. Pace said that the left shoulder is still very painful. According to Pace, the lower back pain starts in the center of his spine and radiates out to the right. Any activity makes the pain spread out further in his back. The back pain affects his activities, and, if he moves wrong or bends more than two times, the pain starts up. When Pace has these flare ups, he has to sit down in the recliner, prop his legs up, take pain medication, and wait until the pain subsides.

On December 17, 2004, Pace was working when a large dog jumped up on his back and caused him to stumble and to fall forward. Pace caught himself on his cane and landed on one or both knees. After this fall, Pace just got back up and went back to work. According to Pace, after this incident, he hurt a little bit but “not real bad.” Pace filed a claim for workers' compensation for this incident. His claim listed these body parts as injured during the incident: “Back; right leg; right knee; nervous system; brain-mental/emotional; hands; body as a whole.”

On December 21, 2004, Pace was getting into his work truck, and, when he grabbed the steering wheel, he felt his left shoulder pop. Pace had increased pain in his left shoulder, but, after an hour or two, the pain started easing up. Pace still has pain in his left shoulder after this incident. Pace did not file a claim for workers' compensation for this incident.

The City of St. Joseph terminated Pace's employment on February 5, 2005, citing poor work performance.

Before the December 9, 2002 accident, Pace engaged in a lot of hobbies such as golf, racquetball, tennis, pool, roller skating, scuba diving, hiking, fishing, biking, automobile repairs, and practicing karate with his son. According to Pace, he no longer participates in these activities. Pace is able to wash dishes and dust at home, but these activities aggravate his pain. He has tried vacuuming on three or four occasions, but vacuuming is very hard on his back and right leg. When he grocery shops, Pace rides in an electric cart and has to put the grocery bags in a two-wheeled cart to get the groceries from the car to the house. Since the work accidents, he spends most of his days sitting in a recliner reading books and watching television. He no longer drives and depends on his wife to take him places.

Pace experiences...