(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 95-065526

Employee: Darrell Vansell

Employer: Central Bridge Company

Insurer: Travelers Aetna

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

Date of Accident: May 12, 1995

Place and County of Accident: Lafayette County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo Cum. Supp. 1998. 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 § 286.090 RSMo Cum. Supp. 1998, the Commission affirms the award and decision of the administrative law judge dated March 1, 1999.

The Commission further approves and affirms said 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.

The award and decision of Administrative Law Judge Robert J. Dierkes, issued March 1, 1999, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 14^th day of July, 1999.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Christopher S. Kelly, Chairman

Christian C.R. Wrigley, Member

Matthew W. O’Neill, Member

Attest:

Secretary

Employee: Darrell Vansell Injury No. 95-065526

Dependents: N/A

Employer: Central Bridge Company

Additional Party: Second Injury Fund

Insurer: Travelers Aetna

Hearing Date: January 25, 1999 Checked by: RJD/mp

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: May 12, 1995

5. State location where accident occurred or occupational disease was contracted: Lafayette County

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 was working on a bridge when he fell 25 - 30 feet, sustaining multiple injuries.

12. Did accident or occupational disease cause death? N/A Date of death? N/A

13. Part(s) of body injured by accident or occupational disease: multiple injuries; body as a whole

14. Nature and extent of any permanent disability: permanent total disability

15. Compensation paid to-date for temporary disability:

16. Value necessary medical aid paid to date by employer/insurer?

17. Value necessary medical aid not furnished by employer/insurer?

18. Employee's average weekly wages: $720.00

19. Weekly compensation rate: $476.28

20. Method wages computation: stipulation

21. Amount of compensation payable:

Unpaid medical expenses:

Employer and Insurer are ordered to provide such medical, surgical and other treatment as may be reasonably

required to cure and relieve Claimant from the effects of the injuries that he sustained in the May 12, 1995,

accident..

76 weeks of permanent total disability benefits from Employer beginning

August 12, 1997, though January 25, 1999 $36,197.28

Permanent total disability benefits beginning January 26, 1999,

at $476.28 per week and continuing during Claimant's lifetime

22. Second Injury Fund liability: No

Total: $36,197.28

23. Future requirements awarded: (See Above)

Said payments to begin immediatley 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:

Russell Still

Employee: Darrell Vansell Injury No: 95-065526

Employer: Central Bridge Company

Additional Party Second Injury Fund

Insurer: Travelers Aetna

Checked by: RJD/mp

The business of Central Bridge Company is building bridges. Claimant’s primary work for Employer consisted of concrete work, i.e., building the forms and pouring and finishing the concrete for the substructures and superstructures (decks) of bridges. Prior to the May 12, 1995 accident, Claimant had sustained a work-related accident in 1986 while working for Employer. There are no medical records in evidence regarding the 1986 accident. After recovering from that accident, Claimant returned to full duty for Employer.

On May 12, 1995, Claimant was working with a crew on the I-70 bridge over Sni-A-Bar Creek in Lafayette County near Odessa. The job consisted of widening the bridge and putting on a new deck. On May 12, 1995, Claimant was working on the deck of the bridge, constructing part of the forms required for pouring the new deck. While doing so, Claimant stepped on a board that was not properly anchored. The board gave way, and Claimant fell approximately 25’ to 30’, landing in 6" of water at the edge of the creek. Claimant recalled landing with his right leg tucked up underneath him and with his left leg straight out. Claimant was immediately aware that he had sustained a compound fracture of his right leg, as well as left foot and left wrist injuries.

Claimant was taken by helicopter to Independence Regional Health Center, and surgery was performed the same day by Dr. Harold West. The surgery consisted of a closed reduction and application of external fixator to the left radius (wrist), a closed reduction and casting of the left os calcis (heel), debridement with open reduction and closed intramedullary dynamic locking of the right tibia/fibula (lower leg between knee and ankle) with autologous homologous bone graft, and graft-on percutaneous pinning of the right talus (ankle).

On May 17, 1995, Claimant was transferred to Columbia Regional Hospital. After Claimant’s post-operative right leg infection was controlled, Dr. Randal Trecha performed surgery on May 26, 1995 to rebuild Claimant’s left heel. Claimant was released from Columbia Regional Hospital on June 1, 1995. On June 13, 1995, Claimant entered Boone Hospital Center where Dr. John J. Seaberg removed the external fixator on Claimant’s left wrist. Dr. Seaberg performed a second procedure whereby he debrided the dead and gangrenous skin on the right leg. It was Dr. Seaberg’s intention to take an abdominal muscle graft to cover the substantial leg wound, however, Claimant would not consent to this procedure. A split-thickness graft was taken from Claimant’s left thigh instead. On June 19, 1995, Dr. Seaberg noted that there was only a partial take of the skin graft.

Because of the unsuccessful graft, Dr. Seaberg referred Claimant to Dr. Charles Puckett for a second opinion. As Claimant still did not want to have his abdominal muscle used for the graft, Dr. Puckett suggested using a radial forearm flap, and Claimant agreed. Claimant was admitted to University Hospital in Columbia on June 29, 1995, and surgery was performed the same day. A 6 x 9 centimeter portion of the right radial forearm, including blood vessels, was harvested and grafted to the right lower leg. A full-thickness skin graft was harvested from the right groin and grafted to the right forearm donor site. A right ankle screw was also removed in the surgery. Claimant was discharged on July 5, 1995.

On August 29, 1995, Claimant was again admitted to University Hospital, and on August 30, 1995, Claimant underwent an additional operative procedure. Dr. Joel Jeffries, with the aid of Dr. Puckett, exposed the right tibia. A bone graft was taken from Claimant’s left hip, and packed into the right tibia defect. Claimant was discharged on August 31, 1995. Despite the bone grafting, the right tibia did not heal. As a result, Claimant walked with his right foot held in an abnormal externally rotated position. Therefore, on June 7, 1996, Claimant was admitted to University Hospital. On that date, Dr. Jeffrey Anglen performed surgery which consisted of removal of the tibial nail, reaming of the intramedullary canal and placement of a larger tibial nail to allow more stability. Dr. Anglen also corrected the rotational deformity of the right tibia, and harvested bone from Claimant’s right hip and placed it in the tibial defect to stimulate healing.

Claimant has not returned to work. Claimant has problems ambulating due to the left heel and ankle problems and the multiple problems with his right lower extremity. His right leg is particularly painful. Claimant can walk no more than a block at a time. His ankles swell when he attempts to walk. Elevating his feet in a recliner seems to help. Claimant can sit in a chair for no more than an hour. He has restriction of movement in his left wrist due to the injuries he sustained in the fall. He has trouble with the grip in his right hand, which he attributes to the grafting procedure. He cannot write due to this problem. He sleeps very little due to the pain in his legs. The lack of sleep causes drowsiness and concentration problems, which are exacerbated by use of pain medications.

Dr. Jeffrey Anglen testified by deposition. He testified that Claimant now has avascular necrosis of the right talus, which means that, due to the ankle fracture and inadequate blood supply, the ankle bone is dying. Dr. Anglen testified that Claimant has severe arthritis in the right ankle and hind foot. Claimant has no ankle motion in either ankle, and minimal or no subtalar joint motion. Dr. Anglen testified that Claimant essentially could do no standing or walking as those functions would normally be expected in the workplace. Dr. Anglen does not believe that Claimant can effectively sit for more than three hours, due to swelling and pain in the lower extremities. Dr. Anglen does not believe that Claimant could drive "as an occupation, not in the sense of delivering things and being behind the wheel and working a clutch and all that sort of stuff."

Dr. Anglen authored a letter to Insurer’s claim representative on December 15, 1997, responding to a request for a permanent partial impairment rating. Dr. Anglen testified that he based his impairment rating (45% of the right lower extremity, or 20% of the whole person), based on the AMA guidelines "and you get a certain number, but that doesn’t necessarily translate into employability".

The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App.S.D. 1982). The test for permanent total disability is whether, given the employee’s situation and condition, he or she is competent in the open labor market. Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363, 367 (Mo.App.E.D. 1992). Total disability means the "inability to return to any reasonable or normal employment". Brown v. Treasurer of State of Missouri, 795 S.W.2d 479, 483 (Mo.App.E.D. 1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The pivotal question is whether any employer in the usual course of business would reasonably be expected to employ the employee in that person’s present physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner, supra at 367. See also Thornton v. Haas Bakery, 858 S.W.2d 831, 834 (Mo.App.E.D. 1993).

It is clear that Claimant sustained multiple serious injuries in the May 12, 1995 accident, and that, despite multiple surgeries and rehabilitative efforts, his disabilities are substantial. Due to the multiple severe injuries to Claimant’s right lower extremity, the resultant avascular necrosis of the ankle and severe arthritis, Claimant has little ability to walk or stand with his right leg. Due to the left heel fracture, his left foot is not much use to him, either. Although Dr. Anglen testified that he was not aware of any impairment involving Claimant’s upper extremities (which is not surprising, as Dr. Anglen’s involvement with Claimant’s care came more than one year after the accident, and involved the lower extremities only), it is clear that the left wrist fracture and the removal of a significant portion of the right forearm for grafting purposes has compromised Claimant’s ability to use his upper extremities. The issue, then, is whether these multiple disabilities render Claimant incompetent in the open labor market.

In this regard, the testimony of James England and of Donna Kisslinger Abram, the two vocational experts, is instructive. Mr. England testified that Claimant’s inability to stand or walk in a vocational setting, his inability to sit for more than three hours without having to elevate his legs due to the lower extremity swelling, along with his lack of specialized skills, makes entry-level, unskilled, sedentary work the only option. Mr. England believes that Claimant’s age, lack of computer skills, limitations in use of his upper extremities, and the need to recline and elevate his legs, makes an eight-hour, five day a week job, even though it may be entry-level and sedentary, impossible. Mr. England testified that Claimant’s multiple problems raise too many "red flags" for potential employers.

Ms. Abram testified to her belief that Claimant could probably perform a certain limited number of unskilled sedentary positions, such as dispatcher, gate guard or certain clerical positions. However, Ms. Abram further testified that, considering all the physical restrictions testified to by Dr. Anglen to be true, it was quite unlikely that Claimant could perform any of these jobs on a full-time basis.

Thus, I find that Claimant is totally disabled as a result of the May 12, 1995 accident, and is entitled to permanent total disability benefits of $476.28 per week, beginning August 12, 1997 (temporary total disability benefits having been paid through August 11, 1997). As of January 25, 1999, the date of the hearing, 76 weeks of benefits had accrued; the amount of such accrued benefits through January 25, 1999 is $36,197.28. Employer and Insurer are ordered to pay Claimant the sum of $36, 197.28 for benefits accrued through January 25, 1999, and beginning January 26, 1999 to pay Claimant the sum of $476.28 per week during his lifetime.

Although the evidence revealed that Claimant sustained a work-related accident in 1986, there was absolutely no evidence of disability therefrom. The claim against the Second Injury Fund is denied.

Dr. Anglen testified that an arthrodesis (fusion) of Claimant’s right ankle may be advisable in the future, although Claimant is (understandably!) eager to avoid any more surgery.

Dr. Anglen also testified that Claimant had an ongoing prescription for Aleve and for special shoes. Based upon Dr. Anglen’s uncontroverted testimony, an award of future medical benefits is appropriate. See Polavarapu v. General Motors Corp., 897 S.W.2d 63, 65 (Mo.App.E.D. 1995).

Employer and Insurer are ordered to provide such medical, surgical and other treatment as may be reasonably required in the future to cure and relieve Claimant from the effects of the injuries he sustained in the May 12, 1995 accident, pursuant to the requirements of Section 287.140, RSMo.

In summary, Employer and Insurer are ordered to pay Claimant the sum of $36,197.28, for accrued permanent total disability benefits through January 25, 1999, and beginning January 26, 1999, the weekly sum of $476.28 during Claimant’s lifetime. Employer and Insurer are also ordered to provide future medical benefits, as set forth more fully hereinabove. The claim against the Second injury Fund is denied. Claimant’s attorney, Russell Still, is allowed 25% of all sums awarded hereunder (including future sums), as and for necessary attorney’s fees and the amount of such attorney’s fees shall constitute a lien thereon. Any past due compensation shall bear interest as provided by law.

Date: March 1, 1999 Made by: /s/ Robert J. Dierkes

ROBERT J. DIERKES

/s/ Jo Ann Karll