Mark Lewis v. F.E. Moran

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-096736

Employee: Mark L. Lewis

Employer: F.E. Moran

Insurer: Zurich North American

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

Date of Accident: August 8, 2001

Place and County of Accident: Franklin County, 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 September 23, 2004. The award and decision of Administrative Law Judge Kevin Dinwiddie, as issued September 23, 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 $16^{\text {th }}$ day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

N O T S ITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

Employee: Mark L. Lewis

Injury No. 01-096736

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: 8/8/01
5. State location where accident occurred or occupational disease was contracted: Franklin County, MO
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: Employee injured while lifting a heavy pipe.
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 and total disability due to the work injury.
15. Compensation paid to-date for temporary disability: $\ 58,128.32
16. Value necessary medical aid paid to date by employer/insurer? $\ 202,924.22
17. Value necessary medical aid not furnished by employer/insurer? n/a
18. Employee's average weekly wages: $\ 1,151.20
19. Weekly compensation rate: $\$ 628.90 / \ 329.42
20. Method wages computation: By agreement of the parties

1. Amount of compensation payable:

Unpaid medical expenses: n/a 92-3/7 weeks of temporary total disability (or temporary partial disability) at $\ 628.90 per week [previously paid] $\ 58,128.32

Permanent total disability benefits from Employer beginning on 5/14/03 through 7/16/04, the date of hearing, and thereafter for so long as the condition of permanent total disability continues to subsist

1. Second Injury Fund liability: No

Claim as against the Second Injury Fund is denied. See Award.

TOTAL: UNDETERMINED

1. Future requirements awarded: $\mathrm{n} / \mathrm{a}$

Said payments to begin as of date of Award 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:

D. Andrew Weigley

Employee: Mark L. Lewis

Injury No: 01-09636

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: F. E. Moran

Add. Party: State Treasurer, as Custodian of the Second Injury Fund

Insurer: Zurich North America

Checked by: KD:df

The claimant, Mr. Mark L. Lewis; the employer and its insurer, F.E. Moran and Zurich North America; and the State Treasurer, as Custodian of the Second Injury Fund, appeared at hearing by and through their counsel and entered into certain stipulations and agreements as to the issues and evidence to be presented in this claim for compensation. The parties agreed that on or about the $8^{\text {th }}$ day of August 2001, the claimant suffered an injury by accident arising out of and in the course of employment. The parties further agree that the two issues to be resolved at hearing are as to the nature and extent of permanent disability, and as to the liability of the Second Injury Fund for the combination of disabilities.

Mr. Lewis appeared at hearing and testified on his own behalf. The claimant further submitted the deposition testimony of Thomas F. Musich, M.D., and of Mr. James M. England, Jr. The employer and insurer submitted the deposition testimony of Barry L. Samson, M.D., and of Ms. Karen Kane.

The hearsay objection made by the Second Injury Fund as to the offer of the various settlement stipulations as contained in Claimant's Exhibit K is sustained as to the Second Injury Fund. Claimant's Exhibit K is otherwise received in evidence without other objection. The following exhibits are in evidence:

A. Deposition of Thomas F. Musich, M.D., taken on 12/9/03

B. Deposition of Mr. James M. England, Jr., taken on 2/05/04

C. Certified medical records of Lincoln County Medical Center

D. Medical records of Tri-County Occupational Health Services (Dr. Pearson)

E. Medical records of Dr. Robert C. Heim , Jr.

F. Certified medical records of Physicians' Pain Clinic (Dr. J. Al Vellinga)

G. Certified medical records of Faisal Albanna, M.D.

H. Certified medical records of St. Anthony's Medical Center

I. Certified medical records of Professional Rehabilitation Services

J. Certified medical records of Premier Care Orthopedics

K. Certified records of the Division of Workers' Compensation

1. Deposition of Barry L. Samson. M.D., taken on May 12, 2004
2. Deposition of Karen Kane Thaler, taken on July 15, 2004

The claimant, 44 years old as of the date of hearing in this matter, was last employed as a sprinkler fitter, performing the installation of fire suppression systems on behalf of the named employer, F.E. Moran. The work involved the lifting of piping for overhead installation, with the assistance of lifts and ladders. Mr. Lewis would assist to carry the pipe from the truck to the installation site. The weight of the pipe would vary according to its size, and the claimant would be obliged to lift, with the assistance of another, pipe weighing as much as 200 to 300 pounds.

On 8/8/01 Mr. Lewis was injured while working on a "retrofit" job involving sprinkler systems in place at the Labadie Power Plant. Claimant attempted to lift one of the heavier pipes with the assistance of his work partner, and was obliged to drop the pipe with the onset of lower back and leg pain after having lifted the pipe just a few inches off of the ground.

Mr. Lewis sought immediate medical attention that same day at Lincoln County Memorial Hospital. Medical records (Claimant's Exhibit C) indicate that on 8/8/01 and again on 9/01/01 the claimant treated for back and lower extremity pain.

On 8/9/01 Mr. Lewis began treating with Dr. Ronald L. Pearson (See Claimant's Exhibit D). Dr. Pearson initially prescribed bed rest, the use of heat and cold packs, and medication for complaints of acute low back pain. On 8/13/01 the claimant returned for a follow up, and was prescribed physical therapy three times a week for the next two weeks. Claimant attended eight physical therapy sessions at Professional Rehabilitation Services through early September of 2001, but had no relief of his pain complaints. On 8/21/01 Claimant had a follow up with Dr. Pearson, who ordered an MRI to rule out possible disc herniation. An MRI performed at Open MRI of St. Charles County on 8/22/01 revealed a bulging disc at L3-4, and a moderate size posterior herniation of the disk at L4-5.

Claimant was then referred to Dr. Vellinga, a pain management specialist, who on 9/13/01 performed the first of what was scheduled to be as many as three epidural steroid injections to the low back. The records of Dr. Vellinga suggest that the first injection had less than the desired result, and after a CT and consultation with the claimant on 9/19/01, claimant chose to see a neurosurgeon before considering further injection therapy (See Claimant's Exhibit F).

Mr. Lewis had an initial consultation with Dr. Robert C. Heim on 9/21/01 (Claimant's Exhibit E). Dr. Heim took a history from the claimant; reviewed an MRI and CT; performed a physical examination of Mr. Lewis; and determined that the claimant presented with a pre-existing and severe spinal stenosis at L4-5, made symptomatic by a work related accident. Dr. Heim discounted further epidural steroid as being of any potential benefit, and discussed with Mr. Lewis the possibility of having a decompressive laminectomy sat L4-5.

On 9/27/01, at St. Luke's Hospital, Dr. Heim performed decompressive laminectomies and foraminotomies at L4 and L5. A discharge summary by Dr. Heim dated 9/28/01 suggests that claimant was released from the hospital on that date with "total resolution of his lower extremity pain and paresthesias".

Claimant testified at hearing that after his first back surgery, he suffered from headaches and from swelling at the incision site on his back. An operative note dated 10/11/01 indicates that on that date Dr. Heim performed a second surgery to repair a lumbar cerebrospinal fluid leak. Follow up records indicate that the claimant had a resolution of his headaches and was discharged from the hospital on 10/13/01, and was to follow up with postoperative care.

An office note dated 11/02 01 indicates that the claimant met with Dr. Heim and complained of the onset of radicular pain

and paresthesias in his right lower extremity. On 11/05/01 a lumbar myelogram and post-myelogram CT scan revealed the presence of a recurrent cerebrospinal fluid leak. Claimant elected to seek care elsewhere, and was subsequently referred to Dr. Faisal Albanna.

On 11/8/01 Dr. Albanna performed an initial evaluation of Mr. Lewis, and his findings included a recurrence of right lower extremity sciatic type pain with paresthesias; headache; and a "fluent palpable fluid collection at the lower end of the incision". Dr. Albanna then scheduled the claimant for surgery for repair of the spinal fluid leakage, with further discectomy and possible lumbar interbody fusion if deemed necessary. On 11/9/01 Dr. Albanna performed the third back surgery had by Mr. Lewis, and the following excerpt from the operative note (See Claimant's Exhibit G) is illustrative of what Dr. Albanna found:

There was a considerable amount of spinal