Cory Washington v. Commercial Letter, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-125407

Employee: Cory Washington

Employer: Commercial Letter, Inc.

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: Alleged April 1, 2003

Place and County of Accident: Alleged City of St. Louis, 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 dated April 11, 2005, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued April 11, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $22^{\text {nd }}$ day of September 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: April 1, 2003 (alleged)
5. State location where accident occurred or occupational disease was contracted: City of St. Louis, Missouri (alleged)
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? No
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 testified that he experienced low back pain after lifting thirty boxes, each weighing forty pounds.
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: None
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

Employee: Cory Washington Injury No.: 03-125407 17. Value necessary medical aid not furnished by employer/insurer? $\ 21,818.78 18. Employee's average weekly wages: $\ 388.59 19. Weekly compensation rate: $\ 259.06 20. Method wages computation: By agreement

1. Amount of compensation payable:

None 22. Second Injury Fund liability: Open

Said payments to begin immediately 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: Ronald A. Caimi, Esq.

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant developed a herniated disc in his lower back. The issues for determination are (1) Accident or occupational disease arising out of and in the course of employment, (2) Notice, (3) Medical causation, (4) Liability for Past Medical Expenses, (5) Temporary Disability, and (6) Permanent disability. The Second Injury Fund claim remains open pursuant to an agreement among the attorneys. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered a deposition of Shawn L. Berkin, D.O., medical records from Back Pain Institute of St. Louis, and various medical bills. The defense offered depositions of the claimant and David R. Lange, M.D., and medical records from Jonathon A. Gold, M.D., Christian Hospital, Internal Medicine and Rheumatology, and John R. Wagner, M.D., the claimant's personnel records, the employer's minor injury log, and records from the Division of Workers' Compensation.

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 was alleged to have occurred in Missouri.

This thirty-one year old claimant, a warehouse worker, worked for this employer from August 1993 to December 5, 2003, full time in the warehouse lifting flour, sugar, and paper towels among other things. While working for this employer, the claimant testified that he experienced low back pain after lifting thirty boxes, each weighing forty pounds.

The claimant testified that on April 1, 2003, he felt a shooting pain in his low back and down his left leg while lifting forty pound boxes and putting them on a skid. He testified that he felt the pain after lifting the thirtieth

box. The claimant testified that he told his supervisor, Matt Domescik, and perhaps Jason Hess, the assistant supervisor, that he had lifted boxes and felt pain down his leg and back at the end of his shift. He testified that Matt Domescik told him to go to a doctor and get it checked.

The claimant testified that he worked the next day and his back was fine until he started lifting again, when the pain returned, mainly in his back. He did not complete an injury report that day. He continued to work the next two weeks without seeking treatment, and the pain continued to worsen. The claimant testified that he told Matt Domescik about the back pain on four or five occasions. The only discussion regarding treatment was that Matt Domescik told him to see a doctor.

The claimant consulted Dr. Cabral on April 30 and July 1, 2003, but the claimant did not offer the medical records. See Exhibit G. The claimant was off work for medical treatment from June 30 to July 1, 2003. See Exhibit 8. Dr. Cabral ordered an MRI revealing "prominent protrusion L4-L5 disc centrally and slightly more to the right of ht midline" and a milder bulge at L50S1 and slight bulges at L2-L3, and L30L4." See Exhibit 2.

On September 2, 2003, he consulted Dr. Gold with a medical history that in April, he began having pain in his left testicle and down his left leg, and "At work, it is difficult for him to straighten up." See Exhibit 2. Before April 2003, he had occasional throbbing in his low back but nothing of any consequence. See Exhibit 2. On September 10, 2003, a lumbosacral myelogram with a post myelogram CT revealed congenital spinal stenosis due to short pedicle spinal stenosis, a central disc herniation at L4-L5 with further compromise of the spinal canal, and the possibility of a small disc herniation on the left side at L5-S1. See Exhibit 2.

From October 1 to November 25, 2003, the claimant received medical care from the Back Pain Institute and gave an initial history of low back pain with radiating pain to the left hip and leg and testicular pain with paresthesia. The claimant reported that his pain increased with activity level and that he had morning stiffness and soreness. He reported the onset in 1994 with a recurrence in April 2003, but the claimant specifically denied any fall or accident and he denied any prior treatment. The claimant testified that he got little benefit from the treatment.

On December 4, 2003, Dr. Gold performed a decompressive laminectomy at L4-5 and S-1 and diskectomy, central disc at L4-5 and S-1. See Exhibit 2. His final diagnosis was ruptured disc L4-5 and L5-S1. See Exhibit 2. On December 5, 2003, this employer terminated the claimant's employment after the claimant's low back surgery, because the claimant could no longer perform his duties. On follow-up January 6, 2004, Dr. Gold found that the claimant was doing really well with no leg problems. See Exhibit 2. He was walking 45 minutes a day and having no pain. See Exhibit 2. The last visit was February 10, 2004, and he was to have a little more therapy and return to work in two weeks. See Exhibit 2. Dr. Gold gave him no restrictions.

The claimant is now employed as a school bus driver and testified that his back does not hurt while driving the school bus and is fine unless he is lifting or driving for a long time. His back may be stiff in the morning three to four times a week, and he will take Tylenol. His left leg has not bothered him since he stopped doing the lifting for this employer. He has not lost time from driving the bus due to his back.

Matt Domescik, the employer's manager of shipping and warehouse, supervised the claimant for six years and described the claimant as a good, respectful worker. As a supervisor, he keeps an injury logbook, reporting any work injury, however minor. For a serious injury, such as a back injury, he would also notify the safety coordinator. He only had two entries for the claimant in the logbook: a cut to the hand on February 12, 2002, and a cut on the top of his hand on March 25, 2002. There was no entry for any time in April 2003.

The claimant's personnel file revealed that the claimant missed March 17, 2003, for a family matter and June 30 to July 2, 2003 due to his back. The claimant was also off work from September 3, 2003, for his back surgery. A September 2, 2003, note from Dr. Cabral indicated he needed to be off work due to a herniated disk. Matt Domescik testified that that was his first notice that the claimant had a back injury. Matt Domescik questioned the claimant about the cause of his back injury and the claimant reported that it was "hereditary." Matt Domescik testified that if the claimant had reported the accident in April 2003, Matt Domescik would have sent him for

treatment, and he would have been able to give him lighter duties or get him help for heavier lifts.

On July 7, 1997, the claimant had low back and groin pain after lifting a box one week earlier. See Exhibit 4. He had tenderness at L5-S1 bilaterally, there was pain to palpation of the left groin, there was left groin pain on external rotation of the hip, he had low back pain with straight leg raising, and the diagnosis was that a herniated disk needed to be ruled out. See Exhibit 4. On July 24, 1997, Dr. Wagner examined the claimant for low back pain radiating to the left groin on June 30, 1997. See Exhibit 6. The symptoms were worse with sitting or standing for a period of time. See Exhibit 6. The claimant reported that a physician told him that he had a herniated disk. See Exhibit 6. On July 7, 1998, the claimant made an emergency room visit for low back pain after spinning while playing basketball. On August 8, 1998, a lumbar spine CT revealed a diffusely prominent annulus at L4-5.

Dr. Berkin examined the claimant on February 18, 2004, and took a medical history of lifting a forty-pound box when he felt a burning