John Eagan v. Missouri Terrazo Company

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-134152

Employee: John Eagan

Employer: Missouri Terrazo Company

Insurer: One Beacon Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: August 27, 2000

Place and County of Accident: St. Louis City, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (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 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 administrative law judge (ALJ) dated October 26, 2004. The award and decision of Administrative Law Judge Edwin J. Kohner, as issued October 26, 2004, is attached and incorporated by this reference.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching his conclusions as to disability and causation. Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522 (Mo. App. E.D. 2002); Sullivan v. Masters Jackson Paving Co., 35 S.W. 3d 879 (Mo. App. S.D. 2001); Landman v. Ice Cream Specialties, Inc, 107 S.W.3d 204 (Mo. banc 2003).

The Commission further approves and affirms the 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.

Given at Jefferson City, State of Missouri, this $13^{\text {th }}$ day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

AWARD

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: August 27, 2000
5. State location where accident occurred or occupational disease was contracted: City of St. Louis, Missouri
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: The claimant, a terrazzo finisher, suffered low back pain while moving large pieces of broken terrazzo.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low Back
14. Nature and extent of any permanent disability:
15. Compensation paid to-date for temporary disability: 54,074.20
16. Value necessary medical aid paid to date by employer/insurer? \$149,011.27

Employee: John Eagan

Injury No.: 00-134152

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1088.32
3. Weekly compensation rate: $\$ 599.96 / \ 314.26
4. Method wages computation: By agreement

1. Amount of compensation payable:

42-6/7weeks of temporary total disability (or temporary partial disability) $\ 25,712.57

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a terrazzo finisher, suffered low back pain while moving large pieces of broken terrazzo. The issues for determination are (1) Temporary disability, (2) Permanent disability, and (3) Second Injury Fund liability. The evidence compels an award for the claimant for temporary and permanent total disability benefits.

At the hearing, the claimant testified in person and offered depositions of Thomas Musich, M.D., and James M. England, Jr., voluminous medical records, and a workers' compensation settlement agreement from a prior case. The defense offered depositions of Michael Chabot, D.O., and Donna Abram, a videotape for surveillance, and an investigative report.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri.

This forty-nine-year-old terrazzo finisher, a high school graduate, learned the terrazzo trade from his father in law after high school. The claimant's work for the some twenty-five years before his August 27, 2000, accident at work was extremely heavy in nature. In 1991, the claimant suffered a low back injury at work. The details of this injury are discussed

later.

On August 27, 2000, the claimant was removing two heavy terrazzo platforms, which had deteriorated, to transport the same to a loading area and to remove the defective terrazzo from the platforms to allow for the pouring of new terrazzo in these platforms. While using a cart to move heavy terrazzo platforms, the cart became hung up on a defect in the pavement, causing the claimant to wrench his low back. The claimant experienced immediate pain in his low back, which soon began to migrate down his buttock and into the posterior aspect of his right leg.

On September 8, 2000, the claimant went to BarnesCare and received a diagnosis of right lumbosacral strain, with lumbosacral radiculopathy and possible herniated nucleus pulposus. After conservative measures failed to provide any significant improvement, the claimant went to Dr. Samson who hospitalized the claimant on November 9, 2000, for severe back and right leg pain. Dr. Samson initially diagnosed right sciatica and suspected a herniated disc at L4-L5. A myelogram and post-myelogram CT on November 10, 2000, demonstrated a far right lateral disc extrusion at L5-6 that impinged on the right L-5 nerve root sleeve. These diagnostic films also demonstrated overall spinal canal stenosis. A series of nerve root blocks in November 2000 preceded a quick return of low back pain and right sciatica.

On January 30, 2001, Dr. Samson and Dr. Raskas performed an L5-6 posterior lumbar interbody fusion accompanied by the insertion of a metal cage, posterior lateral fusion, pedicle screw fixation, and iliac crest bone graft. The post-operative diagnosis was lateral disc displacement at L5-6 accompanied by spinal stenosis and degenerative disc disease.

In February 2001, testing revealed deep vein thrombosis of the left lower extremity as a result of the January 2001 surgery. The claimant received Coumadin for nine months and now takes a daily aspirin. Despite the surgery, the claimant continued to experience constant pain. The claimant was released from care on November 7, 2001, and the defense ceased paying temporary total disability benefits. The claimant was unable to return to work. In April 2002, Dr. Raskas ordered a repeat myelogram and post-myelogram CAT scan, revealing that posterior bone fusion had not occurred on the right and equivocal evidence of some posterior bone fusion on the left side of the fusion site. Mild to moderate dural stenosis at L3-4 and L4-5 associated with disc bulges was also noted. For second opinions, Dr. Sedgwick and Dr. Chabot opined that additional and more extensive fusion surgery would benefit the claimant. In November 2002, nerve conduction studies demonstrated electrodiagnostic findings compatible with a right L-4 and L-5 neuritis. In December 2002, epidural steroid injections did not provide any significant improvement.

On January 22, 2003, Dr. Chabot surgically removed the previously installed posterior spinal instrumentation consisting of pedicle screws and rods. Dr. Chabot explored the fusion mass at L5-6, performed a decompressive lumbar laminectomy at L3-L4 and at L4-L5, performed a posterior inter-transverse fusion at L3-L4 and L4-L5 along with a posterior spinal instrumentation using pedicle screws and rods between L-3 and L-5 bilaterally. Again, bone was taken from the claimant's hip to accomplish this extensive fusion. On April 27, 2003, Dr. Chabot released the claimant from his care. However, the claimant has not worked since his on-the-job accident of August 27, 2000.

On April 26, 2003, a functional capacity evaluation revealed that the claimant was in a great deal of pain as he attempted to perform the functional capacity evaluation tasks. Dr. Chabot testified that any movement the claimant had in his lumbar spine immediately before the functional capacity evaluation tasks was reduced. See Dr. Chabot deposition, pages 14-18. Immediately before the functional capacity evaluation, the administrator observed that the claimant enjoyed five degrees of lumbar extension as opposed to the normal of twenty-five degrees. When extension was tested after the FCE tasks, the claimant had zero degrees of extension. Likewise, the claimant who had enjoyed twenty percent of the anticipated normal as concerns left lateral flexion and right lateral flexion was reduced to zero degrees of lateral flexion in either direction after the functional capacity evaluation testing. In short, the performance of tasks produces an increase in the claimant's pain and a dramatic decrease in what little lumbar mobility the claimant has after his major back surgeries.

At the hearing, the claimant testified that his pain was constant and was of the same degree and character as it had been prior to the first fusion surgery by Dr. Samson and Dr. Raskas and the second fusion surgery by Dr. Chabot. The claimant testified that the pain at the time of the hearing was no different than the pain from November 7, 2001 to September 14, 2002, nor any different than the pain he has been experiencing since the time that Dr. Chabot released him from his care on April 27, 2003.

The claimant testified that he is unable to sleep more than an hour or so at a time at nighttime because of his back pain and consequently, does not enjoy more than three hours of sleep each night. The claimant testified that he makes up his sleep deficit during the daylight hours. His incessant pain becomes unendurable if he maintains a position too long. Therefore, the claimant must change his position from recumbent to standing to sitting, all throughout the day. The claimant finds that lying on the floor in a fetal position produces for a while some degree of respite from his pain