Scott Davis v. St. John's Regional Health Systems, Inc.

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: January 28, 2000
5. State location where accident occurred or occupational disease was contracted: Springfield, Greene 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? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured back lifting patients
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: Back; body as a whole
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $26,291.95
16. Value necessary medical aid paid to date by employer/insurer? $47,990.61
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee’s average weekly wages: 324.69
19. Weekly compensation rate: 216.52
20. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: $285.91

-0- weeks of temporary total disability (or temporary partial disability)

-0 -weeks of permanent partial disability from Employer

-0 -weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning May 26, 2002, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential () payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

TOTAL: \$285.91 PLUS \$216.52 FROM MAY 26, 2002

1. Future requirements awarded: As set out in award

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: Larry J. Pitts

Employee: Scott Davis

Injury No: 00-011162

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: St. John's Regional Health Systems, Inc.

Additional Party Treasurer of the State of Missouri

Insurer: Self-insured

Checked by: DLZ

On the $11^{\text {th }}$ day of August, 2004, the parties appeared before the undersigned Associate Administrative Law Judge

for final hearing. The Claimant appeared in person and by his attorney, Larry J. Pitts. The Employer appeared by its attorney, Jacinda Thudium. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Cara Harris.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the $28^{\text {th }}$ day of January, 2000, St. John's Regional Health Systems, Inc., was an employer operating subject to the Missouri Workers' Compensation Law; the Employer's liability was fully self-insured; on the alleged injury date of January 28, 2000, Scott Davis was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about January 28, 2000, Claimant sustained an accident/occupational disease which arose out of the course of and scope of employment; the employment occurred in Greene County, Missouri, and the parties agree that Greene County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of his injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident/occupational disease, Claimant's average weekly wage was $\ 324.69, sufficient to allow a compensation rate of $\ 216.52, for temporary total disability, permanent partial disability, and permanent total disability; temporary total disability benefits have been paid prior to the date of this hearing in the amount of $\ 26,291.95; the parties further agree that Claimant received temporary total disability benefits from February 4, 2000, through May 26, 2002, the Employer has paid medical benefits in the amount of $\ 47,990.61; the Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award;

Whether the Employer is obligated to pay for past medical expenses.

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries.

The nature and extent of any permanent disabilities.

The liability of the Second Injury Fund for permanent total disability/enhanced permanent partial disability.

A legal file was established consisting of the following documents, to wit: Report of Injury, Claim for Compensation, Answer of Employer to Claim for Compensation, and Answer of the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund.

Tina Davis, spouse of Claimant, testified on behalf of Claimant. Mrs. Davis testified that she is a registered nurse by occupation and that she has been married to Claimant for five years and that they have two children, ages 7 years and 2 years. Mrs. Davis testified that prior to January 28, 2000, Claimant could do anything he wanted, including mowing the lawn, planting around the house, maintenance on the house, playing with the children. Claimant rode an ATV from time to time and loved "messing with the cows." She further testified that prior to January 28, 2000, she and Claimant divided the household chores and that Claimant took care of the outside of the property and she did the cooking and most of the housekeeping, although Claimant would sometimes help with vacuuming and other household chores. Mrs. Davis testified that Claimant exhibited no indications of any mental problems prior to January 28, 2000.

Mrs. Davis testified that since January 28, 2000, she has had to hire yard work done and that there are no flowerbeds around the house because Claimant can no longer do that type of activity. She further testified that she now requires a housekeeper from time to time to keep up housework because Claimant cannot help. Mrs. Davis testified that when Claimant does try to help her around the house, he pays for it for the next couple of days due to the pain Claimant experiences from the activity. Mrs. Davis further testified that Claimant becomes angry and mean because of his pain and that she thinks of

herself as a single parent sometimes.

Claimant testified on his own behalf. Scott Davis testified that his birthday is February 11, 1971. He is married to Tina Davis, and they have two children, ages 7 years and 2 years. Claimant graduated from Miller High School and attended Drury University nursing program for two years. Claimant also has 3 months of training at Crowder College in over-theroad truck driving. Claimant testified that he is 6 feet 1 inch in height, although he was 6 feet 4 inches tall prior to his January 28, 2000, injury. Claimant testified that his current body weight is 489 pounds and that prior to January 28, 2000, his body weight was between 350-360 pounds. Claimant testified that as an adult, he has weighed as low as 300 pounds and he has weighed as much as 550 pounds. Claimant attributes his weight gain since January 28, 2000, to his inability to exercise or do normal exertional activities. Claimant is right-hand dominant.

Claimant testified as to his work history, which consisted of several different types of occupations. Claimant began working for St. John's Regional Health Systems, Inc., Employer herein, in 1989 in the food service department delivering food to the floors of the hospital. During his first tenure of employment with Employer, Claimant suffered an injury to his left ankle, which resulted in surgery, from which, Claimant states he had a good recovery. Claimant testified that his ankle injury did not interfere with his ability to work.

Claimant was next employed at the Little Tykes Toy Company from 1992 through 1994 as a powder hand helper where Claimant's job task involved filling large buckets with powder for the plastic molds. Claimant testified that his job was very physically demanding and that he was on his feet all day. Claimant had no problem with his ankle and did not suffer any work-related injuries at this employment.

Claimant next was employed at Accurate Plastics through Penmac Employment Service from 1994 to1995. Claimant's job task at this employment required him to repeatedly lift 50-pound bags of plastic into a hopper. Claimant had no problem with his ankle at this job and suffered no work-related injuries.

Claimant was next employed at American Dehydrated Foods during 1995 and 1996. Claimant's job task involved packing 50-pound bags of dog food supplement product, stacking 40 bags on a palette, and moving the palette to a warehouse area. Claimant consistently lifted as much as 100 pounds at this job. Claimant had no problem with his ankle at this job and suffered no work-related injuries.

Claimant's next employment was Daniels Truck Company as an over-the-road driver. Claimant worked at this employment for about six months. Claimant drove from Missouri to California delivering produce and wine barrels. Claimant testified that he sometimes had assistance in unloading his truck and sometimes unloaded the truck by himself. Wine barrels weighed about 75 pounds each. Claimant had no problem with his left ankle at this job and suffered no workrelated injuries.

Claimant was next employed by Meeks Lumber as a delivery truck driver. Claimant's job involved helping to load and unload the delivery truck with lumber. Claimant testified that he occasionally lifted up to 200 pounds in this job and unloaded bundles of shingles weighing about 90 pounds each. Claimant testified that he had no problem with his left ankle at this job and suffered no work-related injuries,

In 1996 Claimant was employed by Springfield Health Care as a certified nurse aide. Claimant's job task was to assist residents of the facility in daily living, involving being on his feet all day and lifting residents from 150 to 200 pounds on a regular basis and sometimes as much as 300 pounds. Claimant testified that he had no problem with his left ankle at this job and suffered no work-related injuries.

In the fall of 1997, Claimant was re-employed by Employer herein as a certified nurse aide and emergency room technician. Claimant testified that he worked in post-surgery for about nine and one-half months where his job task involved walking surgery patients and occasionally lifting patients who weighed between 200 and 300 pounds. Claimant was

transferred to pediatrics for about four months where he performed general duties and did very little lifting. Next, Claimant was assigned to respiratory for a period of about six months. His job task involved more lifting of patients and also restraining some patients from time to time. Claimant was on his feet all day and occasionally lifted patients who weighed between 200 and 300 pounds occasionally. Next, Claimant was reassigned to the emergency room as a technician where he worked until January 29, 2000. Claimant's job task involved dealing with people with serious injuries, cleaning up emergency rooms after treatment, removing dead bodies, and transporting patients to the hospital floor. Claimant testified that he was on his feet all the time, that there was stress and tension in this area of the hospital and that he lifted as much as 350-400 pounds without assistance.

Claimant testified that he injured his ankle in a work-related accident at St. John's in 1990. Claimant received treatment and was assigned a 30 % body as a whole disability. Claimant was diagnosed with sleep apnea in late 1998 or early 1999. Claimant testified that he had surgery to correct the condition that required the use of a CPAP machine and that after treatment, he no longer used a CPAP machine to aid in his sleep.

Claimant testified that in 1999 he suffered a back strain while employed by Employer herein when he was working in the respiratory department. Claimant testified that he was treated in the emergency room, removed from work status for seven days, and returned to work without any further treatment. Claimant further testified that he had no further problem with his back after this incident until January 28, 2000.

Claimant testified that on January 28, 2000, while working in the triage room of the emergency department of the Employer, he felt so much pain in his back that he could not continue working. After Claimant finished his shift on January 28, 2000, he clocked out of work and submitted himself to the emergency room. Claimant reported that he had pain in his legs to the extent that they felt as though they were on fire or that someone had poured hot water down his legs. Claimant was referred to Dr. Christopher Billings for treatment. Dr. Billings ordered an MRI, which showed a herniated disc at L4-5. Thereafter, Claimant was referred to several physicians, including Dr. Gabriel, Dr. Esther, Dr. Lampert, and Dr. Pak. Dr. Esther administered steroid injections, which Claimant states did not relieve his symptoms. Dr. Pak prescribed physical therapy and a work hardening program, but neither was successful in relieving Claimant's pain complaints.

Claimant was referred to Dr. Rahman who recommended and performed surgery on Claimant's back. It was following the surgery, when Claimant was sent to physical therapy and work hardening, that the pain symptoms recurred and Dr. Rahman diagnosed a recurrent herniation and disc bulge in Claimant's back.

Claimant, during July 2001, began to have mood swings, loss of control of temper, and suicidal ideations. Claimant was admitted to Marion Center for inpatient treatment on several occasions. Claimant was treated with electronic shock treatments and counseling as well as medication therapy.

Claimant testified that his current physical condition is that he is in constant pain in the area of his lumbar spine. In addition, Claimant's right side is always in pain; and if he walks, his left side becomes painful as well. Claimant testified that he requires assistance in putting on and removing his shoes, that he feels a constant urge to urinate, that his bowel movements are irregular, and that his sexual function is dysfunctional. Claimant further testified that he takes Prevacid for his stomach, Lexipril for nerves and depression, Hydroxyz HCL, and Celexa. Claimant stated that he currently takes no prescription medication for pain. Claimant testified that he formerly has taken Oxycotin, Demerol, Darvecet, Hydrocodone, and Percacet for pain, but these medications caused mood swings and made Claimant suicidal and were, therefore, withdrawn.

Claimant further testified that he suffers psychological problems from his sexual dysfunction, that he is forgetful, especially his short term memory, and that he cannot sleep at night because of the pain he experiences in his back and lower extremities. Claimant testified that he started using a CPAP machine again at night but that he cannot find any comfortable

position to sleep.

Claimant testified that his social activities are limited, that he tries to attend school activities, that he doesn't go to church because it is too difficult, and that he doesn't visit in people's homes much because his body will not fit in normal chairs. Claimant further testified that he is somewhat interested in woodworking as a hobby but that he cannot do the work because of the pain. Claimant also testified that prior to January 28, 2000, he rode a four-wheeler, fished, hunted and did yard work but that he cannot do any of these activities now.

Claimant testified that he has minimal participation in child care activities in the home, that he takes the children to school, helps them dress in the mornings, but that he cannot baby-sit the children because he cannot perform the physical tasks necessary to keep a child. Claimant further testified that prior to January 28, 2000, he did the outside work at their home, he shared in the inside chores, and shared in the transportation of the children. Since January 28, 2000, Claimant's spouse does most of the child transportation, almost all the housework, and keeps Claimant's medication schedule organized and current.

Claimant testified that he has not worked since January 28, 2000, and that he has not attempted to find work. Claimant testified that he does not believe he can perform the job tasks from his prior occupations and is not able to work because of the pain in the back and lower extremities.

Claimant testified that he believes he will need future medical care in the form of psychological counseling as recommended by Dr. Dobard. Claimant also believes he needs modification to his home, including a large commode, a whirlpool bathtub, and a handicapped shower. Claimant testified that he needs a personal scooter to assist in his mobility and that he needs hand controls installed on his vehicle because of the numbness in his legs. Claimant also testified that he would need to continue pain medications.

Claimant identified Exhibits I, J, and K, which purport to be bills for medical treatment and medications, which Claimant states are necessary for this injury and have not been reimbursed by Claimant.

On cross-examination, Claimant admitted that Dr. Rahman recommended additional surgery but that the second surgery was cancelled three different times before Dr. Rahman declined to perform the second surgery because Claimant was not a good candidate due to his weight. Claimant further admitted that he had tried various diets with some temporary success but that he did not believe a diet would help him. Claimant admitted that Dr. Wilson's medical records indicate that Claimant weighed 386 pounds in December 1999. Claimant further admitted that he drives the children to school and to day care and that he is able to drive to pool therapy. Claimant admits that he lifts his 2-year-old child into the car seat and that the child weighs about 30 pounds. Claimant also admitted that he was able to travel to Colorado after his injury of January 28, 2000. Claimant also admitted that he currently weighs about 489 pounds and that he has not asked for a second surgery since Dr. Rahman determined not to go ahead with the scheduled surgery. Further, Claimant admitted that he might not agree to have a second surgery if it is offered to him again because he feels that his weight is such a major problem.

Under cross-examination, by the Second Injury Fund, Claimant admitted that there was no one specific incident that occurred on January 28, 2000, to cause his injury. Claimant admitted telling his supervisor, "I can't go on-I need treatment."

Claimant admitted that he had a good recovery from his ankle injury in 1990 and that he had no knee or back injury in 1990. Claimant admitted that he was accustomed to doing heavy work prior to January 28, 2000, and that he was considered the person to call if someone needed help in lifting heavy people or if help was needed with combative patients. Claimant further admitted that prior to January 28, 2000, he had no psychological treatment. Claimant admitted that all of his current complaints stem from his injury of January 28, 2000, at the Employer's hospital.

On re-direct examination, Claimant testified that he has been overweight all his life and that his weight never caused

him a problem in doing his various jobs. Claimant testified that his size and weight allowed him to do his jobs better than a person of normal stature.

Claimant admitted into evidence several written exhibits which purport to set out various medical expenses incurred by Claimant which have not been reimbursed by Employer, namely Exhibits I, J, and K. Exhibit I sets out bills for medication prescribed by treating physicians in connection with this injury, including Celexa, Haloperidol, and Prevacid. Claimant's testimony and the written medical records support the fact that these medications were prescribed during the period of time he was being treated for symptoms continuing in his back and lower extremities. After a review of the evidence, I find that the medical expenditures set out on Exhibit I were necessary and reasonable in order to cure and relieve the effects of Claimant's injuries. Claimant's unreimbursed medical expenses for medication listed in Exhibit I are $\ 125.90. Employer is hereby ordered to reimburse Claimant in the sum of $\ 125.90 as and for unreimbursed medical expenses.

Claimant admitted into evidence Exhibit J, which purports to be billings for supplies for a CPAP machine used to assist Claimant's breathing during periods of sleep. Exhibit J contains documents that show treating physician, Dr. Faulkner, in May 2003, more than three years after Claimant's injury date, referred Claimant for this treatment. The billings set out in the exhibit are for supplies in the amount of $\ 57.45. After a review of all the evidence presented at the hearing, I find that Claimant has failed to sustain his burden of proof that the expenses set out in Exhibit J are reasonable and necessary in order to cure and relieve the effects of Claimant's injury. Claimant admitted to a past history of use of this type of equipment, and Claimant did not use this type of equipment after 1998 until June 2003. I find this issue in favor of the Employer as to the expenses set out in Exhibit J.

Claimant admitted Exhibit K, which purports to be expenses for medical treatment from various physicians, including Dr. Faulkner, Dr. Dobard, and Dr. Slater. The medical records admitted into evidence, as well as Claimant's testimony, support the treatment services provided by Dr. Faulkner and Dr. Dobard for treatment necessary to cure and relieve Claimant of the effects of his injuries. The exhibit indicates that services provided by Dr. Slater were for sleep disorder and were provided only during June 2003 and October 2003. After a review of the evidence adduced at the hearing, I find that the medical treatment provided by Drs. Faulkner and Dobard and the charges therefore were both reasonable and necessary in order to cure and relieve Claimant of the effects of his injuries. I find that the Claimant has failed to sustain his burden to prove that the services provided by Dr. Slater were reasonable and necessary in order to cure Claimant of the effects of his injuries. Employer is hereby order to pay to Claimant as reimbursement of medical expenses the sum of $\ 160.00 as and for medical expenses, which should have been paid by the Employer.

Claimant's Exhibit D sets out the report of Dr. Brent Koprivica. Dr. Koprivica opined that Claimant would need ongoing treatment, including psychological counseling, chronic pain management, and the possibility of assistive devices for pain management and movement logistics.

Employer's Exhibit 1 sets out the report of Dr. Lennard, which also suggests that Claimant will need ongoing treatment modalities, including pool therapy, medications, and weight loss.

Claimant also testified that, in his opinion, he needs a whirlpool tub for therapy and a scooter to assist him in movements from one place to another. Dr. Koprivica's report attached copies of prescriptions for a whirlpool and a motorized scooter, both issued by Dr. Faulkner.

After a review of all the evidence presented at the hearing, I find that Claimant has sustained his burden of proof that Claimant will require future medical care in order to cure and relieve the Claimant of the effects of his injuries. Employer is hereby ordered to provide Claimant with such medical treatment as an authorized treating physician shall recommend from time to time, including but not limited to, medication, medical procedures, assistive devices, and modifications to Claimant's home residence, if necessary. The recommendations of Claimant's treating physicians are substantial evidence that Claimant will require ongoing treatment of various types in the future. I find this issue in favor of Claimant.

Claimant presented evidence that he has not worked since his injury in January 2000. The medical experts who have offered opinions agree that Claimant has ongoing symptoms in his back and lower extremities after his surgery. Claimant and his treating physician agree that Claimant is not a candidate for additional surgery. All physicians who examined or treated Claimant opined that Claimant is morbidly obese. Claimant alleges that he is permanently totally disabled. Claimant's position is supported by Dr. Koprivica who opines that Claimant is unable to work and is permanently and totally disabled. Dr. Lennard opines that Claimant has a 30\% permanent disability to his body as a whole, and Dr. Lennard acknowledges that a substantial part of Claimant's disability is from the residual effects of the surgical procedure and the current symptoms. There is no medical opinion that Claimant's morbid obesity is the cause of his symptoms or his disability. No physician who has offered an opinion on Claimant's disability mentions Claimant's obesity as the cause for the disability. Indeed, Claimant testified that he was able to perform his job task prior to January 2000; and in fact, Claimant testified that part of his job duties was to be the "go to" person for heavy lifting or to assist with combative patients. Employer used Claimant's size as an asset in the workplace. The case of Leven v. Greene County, 63 S.W.3d 278 and 94 S.W. 3d 475, had some similar facts to this claim in that the Claimant did very heavy work that other employees were not physically able to perform. The Court in the "second" Leven case 94 S.W 3d 475, found that Claimant was permanently totally disabled, not because of the combination of his primary injury and his obesity, but from his primary injury alone.

Claimant in this claim was performing his job task with no complaints prior to his injury of January 2000. Claimant performed job tasks that other employees were not able to perform. The physicians have diagnosed Claimant with failed back syndrome following his surgery on the low back. I find that Claimant's symptoms and complaints grow out of his failed back syndrome condition, not his obesity. After a review of all the evidence presented at the hearing, both oral and written, and based on the record as a whole, I find that Claimant is permanently totally disabled as a result of his injury sustained on or about January 28, 2000. I further find that Claimant reached maximum medical improvement on May 26, 2002. Employer is ordered to pay to Claimant the sum of $\ 216.52 per week beginning on and after May 26, 2002, and continuing for Claimant's lifetime. I find this issue in favor of Claimant and against the Employer.

Based on the findings and rulings set out in the previous paragraphs finding the Claimant permanently totally disabled as a result of the injury of January 28, 2000, I find the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, is not liable to the Claimant for benefits for permanent total disability or enhanced permanent partial disability. I find this issue in favor of the Second Injury Fund and against the Claimant.

Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of this award. Claimant's attorney is hereby awarded an attorney fee of 25 % of the amount of this award. Claimant's attorney is further hereby awarded a lien on the proceeds of this award unless and until the attorney fee shall be paid in full.

A true copy: Attest:

Director

Division of Workers' Compensation

Made by: $\qquad$

David L. Zerrer

Associate Administrative Law Judge

Division of Workers' Compensation