James Matthews v. City of St. Ann

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-106127

Employee: James Matthews

Employer: City of St. Ann (Settled)

Insurer: Self-Insured (Settled)

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

Date of Accident: September 27, 2002

Place and County of Accident: County 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 November 19, 2004. The award and decision of Administrative Law Judge Edwin J. Kohner, issued November 19, 2004, is attached and incorporated by this reference.

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 $\qquad 29 ^{\text {th }} \qquad$ day of March 2006.

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? 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: September 27, 2002
5. State location where accident occurred or occupational disease was contracted: County of St. Louis, 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: The employee, a municipal building inspector, suffered a cervical and lumbar strain and contusion to his head when he fell after his stool broke.
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: Head, neck, and low back
14. Nature and extent of any permanent disability: 10% of the body as a whole referable to the neck and low back
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? $2,091.96

Employee: James Matthews Injury No.: 02-106127:

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: 788.46
3. Weekly compensation rate: 525.60/$340.12
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: Yes

1. Future requirements awarded: As above.

Said payments to begin as of December 5, 2002, 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

This workers' compensation case raises several issues arising out of a work related injury in which the claimant, a municipal building inspector, suffered a cervical and lumbar strain and contusion to his head when he fell after his stool broke. The issues for determination are (1) Permanent disability and (2) Second Injury Fund liability. The evidence compels an award for the claimant for permanent total disability benefits from the Second Injury Fund.

At the hearing, the claimant testified in person and offered depositions of James M. England, Jr., and Raymond F. Cohen, D.O., a workers compensation settlement with the employer in this case, and various medical records. The defense offered depositions of Bernard C. Randolph, M.D., and Raymond F. Cohen, D.O.

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 sixty-eight year old claimant is a high school graduate, and was in the service from 1954 to 1957. He was a police officer until he injured his right wrist. He was forced to leave the police department, because he was unable rotate his wrist and unable to fire a weapon. In 1987, he began employment with this employer as a municipal building inspector. On September 27, 2002, while working as a housing inspector for this employer, the claimant suffered an injury at work when a stool broke. He fell forward, struck his head, and landed on his buttocks. The next day, he sought care at Concentra for his neck, shoulder, and low back. His left hand also began shaking considerably the day after his fall. The claimant worked, regular duty full-time as a building inspector after his fall in September 2002 until May 2003. At that time, his employer offered a retirement package

of health insurance for both him and his wife until he reached the age of seventy, which the claimant accepted. Because of his financial situation, the claimant's daughter got him a job at the auto dealership where she worked in a position created for him to accommodate his disabilities. His duties there were to watch cameras and notify the police if anyone attempted to steal any cars. This job was created for the clamant. He was unable to keep that job because of pain and he could not get comfortable.

After the fall on September 27, 2002, the claimant felt pain into his right shoulder. The next day, he sought treatment at Concentra for his neck, shoulder, and low back. His left hand was visibly shaking, and he testified that it never shook that badly before the accident. The claimant's neck condition got worse after the accident. He consulted Dr. Raskas and Dr. Guarino. He had injections in his neck, and does not recall ever having treatment for his neck before. He never received injections in his low back before the accident. His back now hurts almost everyday, however, and he has numbness into his buttocks.

The claimant testified that since the September 2002 injury, his headaches begin in the back of the neck and move to the front. He also testified that the pain is at a level of a 7-8, approximately twenty to twenty-five times per month, and that the pain is constant. When the pain in his neck flares up, it is at a higher pain scale than 7-8.

During the claimant's initial physical therapy on February 27, 2003, the claimant reported pain on the right side of his neck and behind his right ear, a catch on the right side of his low back, difficulty sleeping, and increased pain with movement. See Exhibit C10.

On February 3, 2003, Dr. Raskas examined the claimant and took a medical history that the back pain was down to an "occasional catch, which is not really much of a problem," but that the pain in the posterior neck area was most bothersome. See Exhibit C11. The neck pain radiated up to the back of his head. See Exhibit C10. The claimant felt that his handwriting and hand coordination got worse after the February 2002 event. See Exhibit C11. The only thing that he reported that relieved the pain was alcohol. See Exhibit C11.

On February 27, 2003, Dr. Guarino examined the claimant and took a history that he was in a "regular state of health with minimal to no neck pain until 9/27/02." See Exhibit C14. He informed Dr. Guarino, "his problems began at that time." See Exhibit C14. At this point, the claimant had been through six to eight weeks of physical therapy, which did not help. See Exhibit C14. The claimant also reported that the pain in his neck radiated into his shoulder and blade on the right. See Exhibit C14. His pain at this point was eight out of ten at best and nine out of ten at worst. See Exhibit C14. He reported that irritability and light sensitivity are associated with his pain. See Exhibit C14. He reported poor sleep secondary to pain. See Exhibit C10. A facet injection at C2-3 resulted in a partial reduction of pain. See Exhibit C14.

Beginning about one month after the 2002 accident, the claimant suffered from tremors and underwent an MRI to determine the cause of his tremors, but the MRI showed no significant abnormality. See Exhibits C10, C13. On February 16, 2003, the claimant reported to Dr. Schultz that he suffered from mini-strokes, but these "had no effect on him." See Exhibit C13. Dr. Schultz also noted that the claimant's memory was clear. See Exhibit C13. After this examination, Dr. Schultz determined that the claimant's tremor was likely due to Amiodarone. See Exhibit C13. The claimant began taking Amiodarone in November 2002, after the 2002 accident. See Exhibit C13.

Neck and Low Back

The claimant testified that while serving in Korea, he went to a military hospital with headaches after a truck accident, and still has headaches. He also testified that in the mid-1970's, he was ill, went to a hospital, and received a lumbar puncture to test for meningitis. He testified that his lower back had been in pain since then, and

that he received chiropractic treatment. Any medical records about these alleged events would seem to be unavailable, because the alleged occurrences were many years ago. However, the claimant did not report this history of headaches or low back pain to Dr. Cohen, Dr. Randolph, or Mr. England, his vocational expert. Dr. Cohen did not rate any preexisting permanent partial disability relative to a history of headaches or low back pain. Instead, he testified that the claimant had preexisting asymptomatic degenerative joint disease at the neck and low back. See Dr. Cohen deposition, page 13. Dr. Cohen testified that the claimant had no prior history of any problems in his spine before the primary work injury. See Dr. Cohen supplemental deposition, page 4. Dr. Cohen rated the claimant's permanent partial disability referable to his degenerative disc disease at two percent of the cervical spine and two percent of the lumbar spine. See Dr. Cohen deposition, page 13. Dr. Randolph rated the claimant's preexisting degenerative disease and arthritis at three percent of the cervical spine and three percent of the lumbar spine. See Dr. Randolph deposition