Robert Kasza v. Midwest Marble and Granite Corp.

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: October 16, 2002
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 suffered low back pain while assisting to lift a heavy marble slab onto a polishing machine.
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: 20% Permanent partial disability referable to the low back
15. Compensation paid to-date for temporary disability: $19,404.22
16. Value necessary medical aid paid to date by employer/insurer? 16,026.31

Employee: Robert Kasza Injury No.: 02-133434

1. Value necessary medical aid not furnished by employer/insurer? $3,584.00
2. Employee’s average weekly wages: 694.77
3. Weekly compensation rate: 463.18/$340.12
4. Method wages computation: By agreement

1. Amount of compensation payable:

Unpaid medical expenses: $3,584.00

26 3/7 weeks of temporary total disability (or temporary partial disability) $12,241.19

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant suffered low back pain while assisting to lift a heavy marble slab onto a polishing machine. The issues for determination are (1) Accident or occupational disease arising out of and in the course of employment, (2) Medical causation, (3) Liability for Past Medical Expenses, (4) Future medical care, (5) Temporary Disability, (6) Permanent disability, and (7) Liability of the Second Injury Fund. The evidence compels an award for the claimant for medical expenses, future medical care, temporary total disability benefits, and.

At the hearing, the claimant testified in person and offered depositions of Raymond F. Cohen, D.O., and Anthony Guarino, M.D., a wage statement, records from the Missouri Division of Workers’ Compensation, Medical bills from Barnes-Jewish West County Hospital, and medical records from BarnesCare, NYDIC Open MRI of America, and St. John’s Mercy Medical Center. The defense offered a deposition of John R. Wagner, M.D., and Employee/Claimant’s Response to Employer/Insurer’s Motion to Stack Orthopedists.

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 forty-nine year old claimant was born September 21, 1955, in Krakow, Poland, and finished high school there and had one year of trade school as a bricklayer. In Poland, he supervised bricklayers for four years. He fractured his left arm, had two different surgeries, and still has plates and pins in his left arm. He immigrated to the United States in 1978 and obtained his citizenship in 2001. From 1980 to 1983, he worked at a bakery and then worked for Midwest Marble \& Granite Corp. for one year and three months from 1984 to 1985. He worked for Marble Craft for five years from 1985 to 1989. At Marble Craft, he did plant payroll inventory and supervised. He can read blueprints. He then returned to Midwest Marble \& Granite Corp. and worked there from December 1989 to October 16, 2002, when he injured his low back.

On October 16, 2002, the claimant felt a sudden severe pain in his low back while cutting a large piece of three hundred fifty to four hundred pound granite for a hearth and trying to put a huge slab onto a machine. He testified that he felt his back was "broken" and reported the incident to his foreman. Five to seven days later, the pain went down his left leg to his knee. He went to BarnesCare and underwent about one month of physical therapy. See Exhibit C. The claimant reported that he tried to lift forty to sixty pounds as part of the therapy, but it made his back much worse. On October 30, 2002, plain films revealed mild degenerative spondylosis in the lumbar spine with facet sclerosis prominent at L5-S1 and marked irregularity of the lateral left iliac crest consistent with probable enthesopathy. See Exhibit C. On November 24, 2002, a lumbar spine MRI revealed osteoarthritic changes of the apophyseal joints at the L4-5 and L5-S1 levels disc protrusion at T12-L1, disc extrusion at L1-2, L2-3, and L3-4, and a disc bulge at L4-5. See Exhibit D. On November 27, 2002, BarnesCare discharged the claimant to an orthopedic specialist, Dr. Lange, who referred the claimant for injections and physical therapy. See Dr. Wagner deposition, Exhibit 1. The claimant's condition slowly improved, and Dr. Lange returned him to work. See Dr. Wagner deposition, Exhibit 1. The claimant returned to work, but within two weeks, he could not stand, sit, walk, or lift due to severe pain. See Dr. Wagner deposition, Exhibit 1. Dr. Lange obtained a second MRI, and opined that the claimant "was not a candidate for surgery and that he should live with it." He took medication at home and return to work." See Dr. Wagner deposition, Exhibit 1.

On July 10, 2003, Dr. Wagner examined the claimant and ordered a lumbar myelogram to determine whether the claimant was a surgical candidate. See Dr. Wagner deposition, Exhibit 1. The claimant elected against a myelogram and any surgery based on his own personal risk assessment. See Dr. Wagner deposition, Exhibit 1. Dr. Wagner gave him a tenpound lifting restriction and discharged him from care. See Dr. Wagner deposition, Exhibit 1. The claimant has not received any temporary disability benefits since he declined the disc surgery, and the defense offered no further treatment. See Dr. Wagner deposition, Exhibit 1.

When the defense offered no further treatment, the claimant went to Dr. Guarino on January 14, 2004. Dr. Guarino assessed the claimant's condition as sciatica and degenerative disc disease. He referred the claimant for additional physical therapy and administered three injections in his back on March 22, April 8, and April 15, 2004. See Dr. Guarino deposition, page 12. None of these injections "gave him sufficient relief to warrant continued pursuit of treatment in the area." See Dr. Guarino deposition, page 11 .

The claimant testified that he cannot work now due to back and leg pain. He cannot sleep well and has to shift positions every hour. He testified that he cannot work, sit, or sleep for long periods. He rated his current pain as seven to eight out of ten and said he can lift only five to ten pounds. He cannot work on his house, play tennis, swim, is unable now to carry out the trash, and has problems having marital relations with his wife due to back and left leg pain. He testified that he cannot do any job, even a light job. He has a backpack hot and cold that he bought from Walgreens. He testified that he can only drive, at the most, one hour when driving his automobile. He testified that if he reaches a point that he cannot walk, then he would consider surgery.

Dr. Cohen

Dr. Cohen examined the claimant on November 6, 2003, and opined that the October 31, 2002, MRI and lumbar spine films revealed age related degenerative changes. Dr. Cohen testified that the lumbar spine revealed multiple trigger points over the right lumbosacral area. He found that flexor and extension were reduced 40 %, with left and right side bending reduce