Roy Smith v. Donco Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-107552

Employee: Roy L. Smith

Employer: Donco Construction

Insurer: Ohio Casualty Insurance Company

Date of Accident: Alleged August 12, 1999

Place and County of Accident: Alleged Greene County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the associate administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the associate administrative law judge dated July 26, 2004, and awards no compensation in the above-captioned case.

The award and decision of Associate Administrative Law Judge L. Timothy Wilson, issued July 26, 2004, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 16^{\text {th }} \qquad$ day of February 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

VACANT

Member

John J. Hickey, Member

Attest:

Secretary

Employee: Roy L. Smith

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Donco Construction

Injury No. 99-107552

Before the DIVISION OF WORKERS'

1. Future requirements awarded: none

Employee: Roy L. Smith

Injury No: 99-107552

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Donco Construction

Additional Party N/A

Insurer: Ohio Casualty Insurance Company

Checked by: LTW/mp

The above-referenced workers' compensation claim was heard before the undersigned Associate Administrative Law Judge on January 28, 2004. The parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about March 2, 2004.

The employee appeared personally and through his attorney, William W. Francis, Jr., Esq. The employer and insurer appeared by its attorney, Patrick J. Platter, Esq. The Missouri Division of Medical Services appeared by its representative, Lois Sandbothe, and its attorney Barbara Bean, Esq.

Also, in this case several health care providers have filed medical fee dispute applications entitled Notice of Services Provided \& Request for Direct Payment. The applications were filed by individuals who are not licensed to practice law in Missouri. These health care providers include Springfield Physical Medicine (MFD No. 99-01024), Litton \& Giddings Radiological Associates (MFD No. 99-00928), and Ozark Magnetic Imaging (MFD No. 99-01018). The health care providers Springfield Physical Medicine and Litton \& Giddings Radiological Associates did not appear at the hearing; and Ozark Magnetic Imaging appeared by its attorney, Jason Shaffer, Esq., subsequent to the parties' stipulation and admission of evidence.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) At all times relevant to this case, Donco Construction was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Ohio Casualty Insurance Company.

(2) On the alleged injury date of August 12, 1999, Roy L. Smith was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged accident or incident of occupational disease occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(4) The employee notified the employer of his alleged injury as required by Section, 287.420, RSMo.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) At the time of the alleged accident or incident of occupational disease, the employee's average weekly wage was $\ 523.68, which is sufficient to allow a compensation rate of $\ 349.14 for temporary and permanent total disability compensation and a compensation rate of $\ 303.01 for permanent partial disability compensation.

The sole issues to be resolved by hearing include:

(1) Whether the employee sustained an accident or incident of occupational disease, and whether the accident or incident of occupational disease arose out of and in the course of his employment with Donco Construction?

(2) Whether the alleged accident or incident of occupational disease caused the conditions for which the employee seeks benefits?

(3) Whether the employer and insurer are obligated to pay for certain past medical care and expenses?

(4) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee of the effects of the injuries?

(5) Whether the employee is entitled to temporary disability benefits?

(6) Whether the employee sustained any permanent disability as a consequence of the alleged accident or incident of occupational disease and, if so, the nature and extent of the disability?

(7) Whether the Missouri Division of Medical Services, as an additional party, is entitled to payment in the amount of $\ 2,662.21 for medical services previously provided and pursuant to the filing of a medical services lien, pursuant to Section 287.266, RSMo?

The parties elected to present their evidence through the admission of exhibits, without the benefit or necessity of any individual testifying at the evidentiary hearing. The employee offered for admission the following exhibits:

Exhibit A Deposition of Andrew I. Myers, M.D.

Exhibit B Medical Records from General Medical Center

Exhibit C Medical Records from Springfield Neurosurgical Clinic, Inc.

Exhibit D ..... Medical Records from Mtn. Grove Medical \& Lazer Center

Exhibit E Medical Records from Ozark Magnetic Imaging Exhibit F .... Medical Records from Springfield Physical Medicine Exhibit G ...... Medical Records from Heartland Physical Therapy Exhibit H ...... Medical Records from Ferrell - Duncan Clinic, Inc. Exhibit I Medical Records from Cox Medical Center Exhibit J Medical Bills \& Medical Expense Summary Exhibit K $\qquad Temporary Total Disability Summary Sheet Exhibit L \qquad$ Medical Report from Douglas E. Goodman, M.D.

The exhibits were received and admitted into evidence.

The employer and insurer offered for admission the following exhibit:

Exhibit 1 Deposition of Wolfe B. Gerecht, M.D., with Deposition Exhibits 1, $2,3, \& 4$

The exhibit was received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation which were made part of a single exhibit identified as the Legal File. The undersigned took official notice of the documents contained in the Legal File which include: Notice of Hearing; Noticed of Services Provided \& Request for Direct Payment filed by Springfield Physical Medicine (MFD No. 99-01024); Notice of Services Provided \& Request for Direct Payment filed by Litton \& Giddings Radiological Associates (MFD No. 99-00928); Notice of Services Provided \& Request for Direct Payment filed by Ozark Magnetic Imaging (MFD No. 99-01018); Medical Services Lien filed by Missouri Division of Medical Services; Entry of Appearances for Attorneys Patrick J. Platter, Esq., and William W. Francis, Jr., Esq.; Notice of Lien filed by Missouri Division of Child Support Enforcement; Answer of Employer and Insurer to Claim for Compensation; Claim for Compensation; Report of Injury; and Correspondence and Stipulations by Employer and Insurer dated February 3, 2004.

The exhibits admitted into evidence are summarized as follows:

The Form 1 Report of Injury indicates that Roy Smith suffered a strain in his lower back when he was drilling holes in concrete using a hammer drill and while positioned upon his knees.

The Claim for Compensation states, "employee sustained injury to his back and body as a whole".

The chart note of General Medical Center of August 13, 1999, statesunder the history: "Patient states on 8/12/99 about 3:30 p.m. while at work he was drilling holes and states his back started hurting. States pain began to get worse later in the night."

The first note of Smith's personal physician, Dr. Doyle Hill, states that Smith was "hurt at work" on Friday, August $13^{\text {th }}$. He suffered from lower back pain and sought a company physician at Cox North, Dr. Atkinson. Smith, during that visit, reported that he had gotten to the point where he was not working at all and wanted an osteopathic manipulative therapy (OMT) and pain medication.

The history and physical report concerning Smith prepared by Dr. Mark Bower reflects that the patient was well until August $12^{\text {th }}, 1999$. He was drilling holes in concrete when he stood up and felt a sharp pain in his low back. He was treated conservatively, first by Dr. Atkinson, then began having fevers three or four days later. Smith reported to Dr. Bower that a urine test showed an infection.

This case centers upon two closely related medical conditions. Those are discitis and intervertebral osteomyelitis. Dr. Wolfe Gerecht described these conditions during his deposition testimony. Discitis is an infection of the intervertebral disc itself. The infection may spread past the disc and surrounding area to be osteomyelitis, which is an infection of the osteovertebral bodies on either side of the disc.

There can be several causes. The most common type is the type without explanation ("de novo"). It is usually associated with the organism Staph aur