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City of Columbia v. Palmer

Court of Appeals of Missouri, Western District, Second Division

August 23, 2016


         Appeal from the Labor and Industrial Relations Commission

          Before: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge.

          Cynthia L. Martin, Judge.

         The City of Columbia ("City") appeals the decision of the Labor and Industrial Relations Commission ("Commission") awarding benefits because the City's employee, William Palmer ("Palmer"), was permanently and totally disabled due only to a workplace injury he suffered after being pinned between a trash truck and a pole while at work. Finding no error, we affirm.

         Factual and Procedural Background

         Palmer was employed by the City as a Refuse Collector I for 38 years, except for a short period of time during which he worked as a Refuse Collector II. As a Refuse Collector I, Palmer walked between residences or rode the trash truck to the next stop, picked up trash from residential curbsides, and threw the trash into the trash truck.

         On June 2, 2011, Palmer was riding on the back of a trash truck when the driver reversed and pinned him between the truck and a pole. A lever on the truck pierced and crushed Palmer's left shoulder ("Injury"). The parties stipulate that Palmer's Injury arose out of the course and scope of his employment.

         Dr. David Volgas ("Dr. Volgas") performed surgery on Palmer's left arm and debrided portions of the deltoid, bicep, and brachialis muscles. Dr. Volgas noted that Palmer lacerated his bicep and brachialis muscles, and that he did not expect them to return to function. Dr. Volgas prescribed physical therapy to preserve as much range of motion as possible. Palmer participated in most of the ordered therapy though other medical issues caused him to miss some scheduled sessions. Dr. Volgas released Palmer on August 10, 2011. He noted significant limitation in Palmer's range of motion and opined that Palmer could do a sedentary job, but only if he used his left arm directly in front of him. Dr. Volgas did not think Palmer could do repetitive work with his left arm, even in front of his body.

         At the City's request, Dr. Kevin Komes ("Dr. Komes") evaluated Palmer on August 17, 2011. Dr. Komes concluded that there was no evidence of nerve damage and that Palmer was at maximum medical improvement ("MMI"). He rated Palmer's disability at 70% permanent partial disability of the left shoulder. He also imposed the following work restrictions: no left arm use except in front of and within 40 centimeters of the body; no prolonged forceful grasping with the left hand; no lifting or carrying with the left arm; and no tasks above the waist.

         On May 9, 2012, Palmer filed a claim for workers' compensation benefits. During a hearing before an Administrative Law Judge ("ALJ"), Palmer testified and provided his medical and school records. Deposition testimony and narrative reports were also received in evidence from Dr. David Volarich ("Dr. Volarich"), Dr. Russell Cantrell ("Dr. Cantrell"), Dr. Michael Nogalski ("Dr. Nogalski"), Gary Weimholt ("Weimholt"), and James England ("England").

         Palmer testified that he did not return to work after his injury. He testified that he uses his left arm as little as possible, that he cannot raise his left arm all the way up, and that he has to lean in with his body to grab things rather than reach with his left arm. Palmer reported difficulty dressing, and that repetitive motion strains his left arm. Palmer has no pain in his left arm so long as he does not use the arm. Palmer is restricted to lifting 5-7 pounds with his left arm and is advised to not reach out to pick up objects. If he holds something with his left hand, he has to keep it close to his body.

         Palmer discussed prior injuries to his right shoulder and to both ankles, and an arthritic condition in his knees, all of which had been successfully treated. Palmer denied any permanent restrictions before his Injury, and testified that none of his prior injuries had effected how he performed his job. Palmer is 61 years old with a borderline IQ. Palmer has a 12th grade education but was in Special Education classes throughout the majority of his schooling. Palmer has always lived in his parents' home, and though he can drive, he has difficulty with directions in unfamiliar areas.

         Dr. Volarich evaluated Palmer on November 29, 2012, at Palmer's request. Dr. Volarich observed that Palmer had significant loss of range of motion, atrophy, weakness, and contractures in his left arm. Dr. Volvarich determined that Palmer had suffered a severe laceration and crush injury that required the removal of the entire biceps muscle, the brachial muscle, and 10% of the deltoid muscle. Dr. Volarich rated Palmer's disability at 80% permanent partial disability. Dr. Volarich recommended that Palmer only use his left arm for activities of daily living and that he avoid lifting, reaching, or carrying with his left arm. Dr. Volarich assigned a permanent partial disability rating to each of Palmer's preexisting conditions as follows: 20% of the right shoulder, 15% of each knee, 25% of the left ankle, and 15% of the right ankle. However, Dr. Volarich did not believe that Palmer required any restrictions for these injuries prior to the Injury in June 2011. Dr. Volarich thus opined that Palmer was permanently and totally disabled based on his June 2, 2011 left shoulder injury alone.

         Dr. Cantrell evaluated Palmer on April 29, 2013, at the City's request. At first, Dr. Cantrell found that Palmer was not at MMI, and ordered further diagnostic testing and an orthopedic evaluation. Ultimately, Dr. Cantrell found that Palmer had reached MMI, and opined that he had sustained a 30% permanent partial disability of the left shoulder. Dr. Cantrell recommended the following permanent restrictions: no lifting greater than 10 pounds with the left arm; no lifting greater than 25 pounds with both arms; and no work at the level of or above the shoulder. Dr. Cantrell found no reason to assign any restrictions to Palmer's previous medical conditions. Dr. Cantrell believed that Palmer could work at a sedentary to light demand level.

         Dr. Nogalski examined Palmer on December 2, 2013, at the City's request. Dr. Nogalski diagnosed Palmer with a complete transection of his coracobrachalis and the short head of his biceps, and damage to his pectoralis major and deltoid. He assigned 30% permanent partial disability to Palmer's left shoulder. Dr. Nogalski imposed the following permanent restrictions on Palmer: no reaching beyond 40 centimeters in front of the body; no lifting more than 5 pounds with the left arm; and no use of the left arm over chest level within 40 centimeter range. Dr. Nogalski did not identify any permanent restriction related to Palmer's prior medical conditions. Dr. Nogalski felt that Palmer was not totally disabled and that he could compete for jobs such as a delivery man or courier.

         Weimholt performed a vocational assessment of Palmer on December 6, 2013, at Palmer's request. He determined that Palmer has a total loss of access to the open, competitive labor market. Weimholt opined that Palmer's left shoulder restrictions, work history, limited reading and math skills, and lack of transferable job skills resulted in a total disability. He did not believe Palmer was a candidate for any type of retraining. Weimholt testified that Palmer's left shoulder injury alone ...

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