William Kriegel v. Southwestern Bell Telephone Company

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 21, 2002
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? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee, a telephone cable-splicing technician, suffered a low back injury when he fell down a manhole. 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: Permanent total disability 15. Compensation paid to-date for temporary disability: $\ 68,987.98 (May 22, 2002, through January 8, 2004) 16. Value necessary medical aid paid to date by employer/insurer? \$66,913.02

Employee: William Kriegel Injury No.: 02-056052 17. Value necessary medical aid not furnished by employer/insurer? None to date 18. Employee’s average weekly wages: $\ 975.00 19. Weekly compensation rate: $\$ 628.90 / \ 329.42 20. Method wages computation: By agreement

1. Amount of compensation payable:

Permanent total disability benefits from Employer beginning December 24, 2003, for Claimant’s lifetime with credit for temporary total disability benefits paid thereafter. Unknown

1. Second Injury Fund liability: No

TOTAL: Unknown

1. Future requirements awarded: Pain management for the claimant's chronic low back and left leg pain by a medical provider selected by the selfinsured employer

Said payments to begin December 24, 2003, 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: Elizabeth J. Inuarte

This workers' compensation case raises several issues arising out of a work related injury in which the claimant, a telephone cable-splicing technician, suffered a low back injury when he fell down a manhole. The issues for determination are (1) Future medical care, (2) Permanent disability, and (3) Second Injury Fund liability. The evidence compels an award for the claimant for future medical care and permanent total disability benefits.

At the hearing, the claimant testified in person and offered a deposition of Thomas F. Musich, M.D., and James M. England, Jr., a medical report from Bruce Schlafly, M.D., a prior workers compensation settlement, and voluminous medical records. The defense offered depositions of Wayne A. Stillings, M.D., David Kennedy, M.D., and James E. Israel.

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-eight year old claimant completed twelve years of education with some college courses. The claimant's work history primarily involved heavy labor and demolition work. From 1997 until the date of accident, the claimant worked as a cable-splicing technician for this Employer, where he lifted up to 150 pounds, climbed telephone poles, and descended manholes.

On May 21, 2002, the claimant sustained traumatic injury to his low back after losing his footing while descending a ladder inside a manhole. The ladder inside the manhole was three feet below the surface of the road. The claimant wore rubber boots, which slipped once he stepped on the top rung of the ladder. The claimant fell several feet, becoming tangled in the rungs of the ladder, injuring his low back and scraping his elbows and knees.

On June 3, 2002, an MRI revealed a degenerative disc with central protrusion at L4-5 and a degenerative

disc with right-sided protrusion at L5-S1. See Exhibit H. The claimant underwent physical therapy from June 21 through September 6, 2002. See Exhibit J. Dr. Place administered selective nerve root blocks during this period but released the claimant in September with light duty restrictions. See Exhibit I.

Dr. Kennedy examined the claimant on November 6, 2002, and noted radicular symptoms. See Exhibit E. Dr. Kennedy ordered a CT/myelogram on November 11, 2002, which demonstrated a degenerative disc at L4-5 with a central herniation causing effacement of the L5 nerve root on the right. See Exhibit E. On March 28, 2003, Dr. Kennedy and Dr. Robson performed a L4-5 laminectomy, discectomy, and fusion at L4-5. See Exhibit E. The fusion included cage, plate and pedicle screw fixation with left iliac crest bone graft harvest. Postoperative diagnosis was herniated nucleus pulposus at L45 with segmental instability. See Exhibit E.

The claimant underwent additional physical therapy in July and August 2003. See Exhibit E. On August 26, 2003, the claimant's last physical therapy session, the therapist noted slight changes in range of motion. See Exhibit E. The claimant's pain level was overall unchanged; Sitting and standing tolerances were very limited, and the therapist noted, "He wakes multiple times at night" and has "difficulty getting to sleep." See Exhibit E. The claimant also complained of "inner bone pain" in his left leg with rest. See Exhibit E.

On September 24, 2003, Dr. Kennedy noted several episodes of bowel incontinence over the last few months. See Exhibit E. He referred the claimant for a second CT/myelogram on November 3, 2003, revealing:

1. Expected changes from laminotomy and posterior fusion and instrumentation at L4-5.
2. Complete posterior bony fusion is demonstrated especially on the right side.
3. Relatively weak evidence for complete bony fusion posteriorly on the left and interbody.
4. Mild to moderate spinal narrowing at L3-4 just above the fusion. See Exhibits E, F.

Dr. Kennedy found the claimant to be at maximum medical improvement on December 23, 2003. See Exhibit E. Dr. Kennedy noted a fifty percent loss in range of motion in the lumbar spine with sensory loss in the left foot. See Exhibit E. Dr. Kennedy gave permanent restrictions of no lifting more than twenty pounds, and no more than occasional bending twisting and stooping. See Exhibit E.

Dr. Musich first evaluated the claimant on October 9, 2003, and observed constant low back pain radiating into the left buttock and leg with a pain level of six to ten out of a possible ten. The claimant reported pain aggravated by sitting, walking or lying or with any prolonged positioning. At that time, the claimant was taking one or two Hydrocodone tablets a day along with several Tylenol tablets daily. Dr. Musich rated the claimant at seventy percent permanent partial disability referable to the low back resulting from the May 21, 2002, injury. See Dr. Musich deposition, page 15. Dr. Musich opined that the claimant was incapable of returning to his former job as cable splicer and recommended permanent restrictions of no climbing, crawling, squatting, kneeling, and no lifting more than twenty pounds. See Dr. Musich deposition, page 15. Dr. Musich did not find significant permanent partial disability before the claimant's May 21, 2002, work injury, and he recommended vocational rehabilitation. See Dr. Musich deposition, pages 15, 16.

Dr. Musich evaluated the claimant almost six months later, on March 30, 2004. See Dr. Musich deposition, page 16. By this time, the claimant had undergone a repeat CT/myelogram, revealing an incomplete fusion on the left, and Dr. Kennedy had released the claimant with permanent restrictions. Dr. Musich reviewed the final records from Dr. Kennedy along with records concerning the 1996 low back injury for which the claimant received twelve percent permanent partial disability. Dr. Musich observed that the claimant continuously walked about his examination room with antalgic gait, trying to get more comfortable due to complaints of severe low back pain and burning radiculopathy into the left leg. See Dr. Musich deposition, page 20. At that time, the claimant complained of constant left low back, gluteal and left leg pain at a level of eight to ten out of a possible ten. See Dr. Musich deposition, page 22. Dr. Musich recorded complaints of "any prolonged sitting over ten minutes, extended periods of walking greater than 15 minutes and any heavy lifting over 20 pounds and any climbing, or walking on uneven surfaces produce severe