Paul Frost v. Supervalue, Inc.

William F. Ringer, Chairman

1. Are any benefits awarded herein? No
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: April 15, 2002 (Alleged)
5. State location where accident occurred or occupational disease was contracted: St. Louis County, 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 employee alleged that he suffered injuries to his back and neck from the strenuous nature of his employment.
12. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Neck, low back (alleged)
2. Nature and extent of any permanent disability: None
3. Compensation paid to-date for temporary disability: None
4. Value necessary medical aid paid to date by employer/insurer? None

Employee: Paul Frost Injury No.: 02-110116

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 720.00
3. Weekly compensation rate: $\$ 480.00 / \ 329.42
4. Method wages computation: Employee testified he received $\ 14.40 per hour for fifty hours per week

1. Amount of compensation payable:

Settlement with employer and insurer approve prior to hearing

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

Said payments to begin 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: Cynthia M. Hennessey

Insurer: American Protection Insurance Company (Settled)

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a warehouseman, alleged that he suffered injuries to his back and neck from the strenuous nature of his employment. The issues for determination are (1) rate and (2) Liability of the Second Injury Fund. The evidence compels an award for the defense, because the claimant failed to prove that he suffered any permanent partial disability from the alleged accident.

At the hearing, the claimant testified in person and offered depositions of David G. Kennedy, M.D., David T. Volarich, D.O., Richard M. Anderson, M.D., and James M. England, voluminous medical records, a police report, and records of five prior workers' compensation settlements. The defense offered testimony of June M. Blaine, a vocational rehabilitation counselor and disability management specialist.

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-two year old warehouseman, a high school graduate with less than a full semester of courses at a community college worked for this employer for eight and one half years as a warehouseman until January 14, 2003. At the time of his injuries in 2002, the claimant earned $\ 14.40 and hour and worked an average of 50 hours for the several months before April 2002.

April 2002 Neck and Back Injuries

In 2002, the claimant developed neck and low back pain. At that time, his employer was relocating warehouses requiring an increase in the physical demands of the claimant's job for several weeks leading up to the move. He worked longer hours and lifted heavier items with increased frequency. On April 15, 2002, Dr. Nessing examined the claimant and took a medical history of a one month history of neck and low back pain and right arm pain and hand tingling and numbness. Dr. Nessing reported that the claimant does a lot of lifting and stocking of warehouse and that this aggravates his pain. Dr. Nessing sent him for x-rays, which revealed degenerative changes of the cervical spine with narrowing of the disc space at C5-6 as well as L4/5 and L5/S1. He diagnosed nerve compression at the right C5-6 level and lumbar facet syndrome. Dr. Nessing recommended twelve chiropractic treatments over four weeks. The claimant returned for treatment on April 19, April 22, and April 26. See Exhibit K.

On April 26, 2002, the claimant lifted a heavy box of copy paper and felt a pop in his low back and a crinkle up his spine into his neck resulting in immediate severe neck and low back pain. He saw Dr. Nessing on that date and worked a portion of the following day. Due to the significant pain, he mainly drove the forklift to avoid lifting. He remained in significant pain throughout the weekend. On Monday, April 29, 2002, while lifting a very light object, the claimant felt another pop in his spine, causing him to fall to his knees. He went to St. John's Emergency Room on that date and was diagnosed with acute myofascial lumbar and cervical strain. See Exhibit M. On April 30, 2002, the claimant underwent physical therapy. On May 30, 2002, an MRI revealed C5-6 osteophyte with significant right-sided foraminal narrowing with nerve root compression. See Exhibit N. BJC then recommended treatment be transferred to Dr. Kennedy, a neurosurgeon. See Exhibit O.

Dr. Kennedy examined the claimant on June 13, 2002, and ordered both lumbar and cervical myelograms revealing a disc herniation at C5-6 to the right and a lumbar protrusion at L5- S1 to the left. See Exhibit R. Dr. Kennedy recommended cervical surgery. On July 9, 2002, the claimant went to Missouri Baptist E.R. due to worsening of symptoms after again lifting a heavy object at work. He was diagnosed with exacerbation of the cervical disk. See Exhibit S. He returned to BJC on July 15, 2002, with tingling in both of his arms. The claimant continued to work his regular duties with extreme difficulty. On September 19, 2002, the claimant again saw Dr. Kennedy who ordered a repeat MRI. Dr. Kennedy discussed surgical intervention again with the claimant who agreed to proceed. The claimant continued to work his regular duties with difficulty until January 13, 2003, the last date worked. On January 14, 2003, Dr. Kennedy and Dr. Raskas performed a C5-6 partial vertebrectomy and microdiscetomy, allograft fusion with plating. Post operatively, the claimant continued to have pain and discomfort in his neck, arm and low back. Dr. Kennedy referred the claimant to Dr. Feinberg for pain management. See Exhibits P and T.

Dr. Feinberg diagnosed post cervical laminectomy syndrome with residual right arm pain associated with a myofascial pain syndrome and spondylosis without myelopathy and lumbar radiculopathy, degenerative disc disease of the lumbar spine. He treated him from May 20, 2003, through April 21, 2004, with narcotic pain medications, numerous steroid

injections, and physical therapy. Dr. Feinberg discharged him on April 21, 2004, noting that the claimant had not made any progress with the treatment modalities. He opined that the claimant was significantly depressed. See Exhibit V.

On May 5, 2004, Dr. Kennedy opined that the claimant was at maximum medical improvement from his work related injuries to his neck and low back. He testified that the restrictions outlined by Dr. Volarich were reasonable. See Dr. Kennedy, page 16 .

The claimant settled his April 15, 2002, workers' compensation claim with the employer on the basis of twenty percent permanent partial disability of the neck and ten percent permanent partial disability of the of the low back. See Exhibit C. The claimant settled his April 26, 2002, workers' compensation case with the employer for forty percent permanent partia