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Greer v. Sysco Food Services

Court of Appeals of Missouri, Eastern District, Third Division

November 18, 2014

CARL GREER, Appellant,
v.
SYSCO FOOD SERVICES, Respondent/Cross Appellant, and TREASURER OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent.

Appeal from the Labor and Industrial Relations Commission

KURT S. ODENWALD, PRESIDING JUDGE

Introduction

Carl Greer ("Claimant") appeals from the final award of the Labor and Industrial Relations Commission ("Commission") allowing Claimant compensation for past medical expenses, future medical care benefits, permanent partial disability ("PPD") benefits, and temporary total disability ("TTD") benefits from SYSCO Food Services ("Employer"), but denying Claimant permanent total disability ("PTD") benefits. Claimant asserts the Commission erred in failing to award him PTD benefits because the evidence established he is unemployable in the open labor market. Employer cross-appeals from the award, arguing that the Commission erred in awarding Claimant past medical expenses, future medical care benefits, and TTD benefits, and in failing to reduce Claimant's benefits by 25-50% due to Claimant's violation of Employer's reasonable safety rule. Because the Commission misapplied the law when awarding Greer TTD benefits, we reverse that portion of the Commission's award. Because the record contains sufficient competent evidence to support the Commission's award in all other respects, we affirm the remainder of the award.

Factual History

Claimant was injured while working for Employer as a forklift operator. The accident occurred on February 23, 2006, when Claimant was trying to scan a pallet while standing on a forklift in Employer's warehouse. As Claimant leaned forward to scan the pallet, his left leg extended outside the running lines of the forklift. At that point, a co-employee was driving another forklift, which grabbed Claimant's left foot and crushed it between the two forklifts. Claimant was taken by ambulance to the hospital where he was placed in a cast.

Five days after the accident, Claimant saw Dr. Blair who diagnosed a crush injury to Claimant's left ankle. Dr. Blair ordered two MRIs; the first revealed moderate to severe posterior tibial tendonitis and some scar tissue, and the second was essentially normal. Claimant's condition improved over the next few months. On August 17, 2006, Claimant participated in a functional capacity evaluation, which showed he could work at the heavy demand level. Claimant then returned to work for several months. On October 24, 2006, Claimant underwent another functional capacity evaluation, which showed he could work at the medium demand level.

On February 5, 2007, Dr. Blair noted some tenderness over Claimant's tarsal tunnel and sent him for an EMG and nerve conduction test to rule out tarsal tunnel syndrome. Claimant could not complete the nerve conduction test. Dr. Blair opined that the EMG appeared normal, and he released Claimant to full duty on March 19, 2007. Claimant last saw Dr. Blair on April 23, 2007, at which point Dr. Blair released Claimant at maximum medical improvement and opined that Claimant suffered a 5% permanent partial disability of his left ankle associated with pain and somewhat limited range of motion.

Claimant voluntarily resigned from his job with Employer on November 7, 2007, due to pain in his left foot and ankle. When Claimant continued to experience pain he sought treatment on his own from pain management specialist Dr. John Graham. On November 28, 2007, Dr. Graham examined Claimant and administered a psychological test. The results of the test led Dr. Graham to conclude that Claimant has a strong likelihood of functional overlay. Dr. Graham explained that patients with functional overlay often have subjective complaints that are disproportionate to objective findings and that are resistant to treatment. Dr. Graham concluded that he had no treatment to offer Claimant from a pain management standpoint and did not recommend surgery or any other invasive treatment.

On December 4, 2009, Claimant consulted with Dr. Jeffrey Johnson, an orthopedic surgeon, about the pain in his left foot and ankle. Dr. Johnson diagnosed Claimant with a fixed deformity in his left foot, which caused his foot to turn inward, and opined that Claimant could have tarsal tunnel syndrome and an intraneural tibial injury. On June 22, 2010, Dr. Johnson and Dr. Mackinnon, a plastic surgeon, performed a tarsal tunnel release, tendon lengthening, removal of cutaneous neuromas, and internal neurolysis for the purpose of reducing Claimant's pain and correcting his deformity. Dr. Johnson last examined Claimant on December 12, 2011, and reported that although Claimant's pain was somewhat improved, his foot had contracted to an inward position.

Dr. Berkin, a family practitioner, examined Claimant on August 8, 2007, January 22, 2009, and April 30, 2011. Dr. Berkin also reviewed Claimant's medical records and obtained a medical history from Claimant. Dr. Berkin diagnosed Claimant with tarsal tunnel syndrome and placed restrictions on Claimant to avoid excessive squatting, kneeling, stooping, turning, lifting, climbing, and standing on his feet longer than twenty to thirty minutes at a time. Dr. Berkin later testified that his restrictions were based on a combination of Claimant's 2006 foot injury and prior neck, back, shoulder, and toe injuries. Dr. Berkin opined that Claimant is permanently and totally disabled due to all of these injuries. Dr. Berkin further opined that Claimant did not have a good result from his surgery with Drs. Johnson and Mackinnon, Claimant's functioning was not improved by the surgery, and Claimant's condition worsened after the surgery.

Claimant testified that he suffers pain in his left foot on a daily basis, and that he cannot stand or sit for long periods of time because of the pain. Claimant further testified that any activity involving his left foot causes his foot to swell, and that he does not think he can work a physical forty-hour week job because of his foot. Prior to the 2006 foot injury, Claimant sustained several injuries to his neck, back, and shoulder that were a hindrance and obstacle to performing hi s j ob.

Procedural History

Claimant filed a claim for workers' compensation benefits against Employer and the Second Injury Fund ("Fund") on December 4, 2006, and an amended claim on March 4, 2013. The matter was heard before an ALJ on May 7, 2013. After the hearing the ALJ rendered the following findings and conclusions relevant to this appeal: (1) Claimant is entitled to $49, 475.14 in past medical expenses; (2) Claimant is entitled to future medical care furnished by Employer; (3) Claimant is not entitled to any additional TTD benefits; (4) Claimant sustained a 27.5% permanent partial disability of his left foot as a result of the 2006 work accident; (5) the Fund is liable for 40.6275 weeks of PPD benefits; and (6) Employer is entitled to a 25% reduction in all benefits awarded to Claimant from Employer pursuant to Section 287.120.5[1] because Claimant's injury was caused by his failure to obey Employer's reasonable safety rule.

Both Claimant and Employer applied to the Commission for review of the ALJ's award. The Commission modified the award on the issues of TTD benefits, past medical expenses, [2] and the reduction of benefits under Section 287.120.5. The Commission determined that Claimant was entitled to additional TTD benefits from the date of his surgery on June 22, 2010, to the date Dr. Johnson released him on February 4, 2011. The Commission also found that Employer was not entitled to a reduction in Claimant's benefits for violation of its safety rule because Claimant had no actual knowledge of the rule at the time of the accident. The Commission affirmed the ...


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