Joseph Harper v. RV Evans Company Distributors

Employee: Joseph Harper

Injury No. 03-108382

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: $\quad----$

Employer: RV Evans Company Distributors

Additional Party: State Treasurer, as custodian of the Second Injury Fund (Open)

Insurer: Cincinnati Insurance Company

Hearing Date: February 10, 2006; finally submitted 2/27/06 Checked by: KD/bb

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: $6 / 6 / 03$
5. State location where accident occurred or occupational disease contracted: St. Charles 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 happened or occupational disease contracted: Employee injured low back while stepping down from a truck while carrying a box of nails
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: low back
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? \$3,055.00

Employee: Joseph Harper

Injury No. 03-108382

1. Employee's average weekly wages: N/A
2. Weekly compensation rate: N/A
3. Method wages computation: N/A

1. Amount of compensation payable:

Unpaidmedicalexpenses; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Employee: Joseph Harper

Injury No: 03-108382

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: RV Evans Company Distributors

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: Cincinnati Insurance Company

Checked by: KD/bb

The claimant, Mr. Joseph Harper, and the employer and its insurer, RV Evans Company Distributors and Cincinnati Insurance Company, appeared at hearing by and through their counsel and entered in to certain stipulations and agreements as to the issues and evidence to be presented in this claim for compensation. The claimant seeks a temporary or partial award in the matter. Claimant requests that the issue as to the liability of the Second Injury Fund remain open. The parties identified at hearing the following issues to be resolved:

Injury by accident arising out of and in the course of employment;

Notice;

Medical causation;

Liability for certain past medical expenses;

Future medical care;

Rate of compensation; and

Temporary total disability.

Mr. Harper appeared at hearing and testified on his own behalf. Mr. Harper further jointly submitted with the employer and insurer the deposition testimony of Dr. David Lange. The employer and insurer elicited the testimony of Ms. Sheila Ross. Both the employee and the employer and its insurer elicited the testimony of Mr. Eric Frahm. The employer and insurer further elicited the deposition testimony of Ms. Vickie Watkinson, as the records custodian from St. Joseph Urgent Care.

The following exhibits were offered into evidence by the employer and insurer, and were received into evidence without objection from the employee:

1. Surveillance videotape of $11 / 18 / 05
2. Surveillance videotape of 11 / 18 / 05$
3. Deposition of Vickie Watkinson taken on 2/08/06

The following joint exhibit was received in evidence:

I. Deposition of Dr. David Lange taken on 1/05/05

The claimant offered the following exhibits in evidence:

A1. Certified medical records of Tesson Heights Orthopaedics (Dr. T. Lee)

B1. Medical records of John D. Graham, M.D.

C1. Medical records of David R. Lange, M.D.

D1. Curriculum Vitae, billing statements and medical reports of Barry I. Feinberg, M.D.

E1. Curriculum Vitae and Medical report of David G. Kennedy, M.D., dated 11/15/05

A. St. Charles Sports and Physical Therapy records with billing statement

B. Examination reports of SSM Health Care and Concentra Medical Centers

C. Letter of Robert J. Gresick, Jr. M.D., dated 12/30/05

D. Report of Injury dated $1 / 12 / 04$

E. Billing statement of Ernst Radiology Clinic, Inc. dated 12/20/05

F. Subrogation letter from Ingenix dated 12/18/03

Claimant's Exhibits E1, B, C, D, and F are in evidence without objection from the employer and insurer. The employer made a foundation objection as to the reasonableness of the fees and charges as documented in exhibits A1 though D1. To the extent the involved medical billings relate to corresponding medical records also put in evidence, and to the extent the employee testified that the involved treatment was for the alleged work injury at issue, the objection of the employer and insurer as to Exhibits A1 though D1 must be overruled, see Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo.banc 1989). Exhibits A1 through D1 are in evidence.

Employer and Insurer made objection to Claimant's Exhibits A and E based on foundation and lack of certification of the record. Those objections are sustained. Claimant's Exhibits A and E are not in evidence.

RV Evans Company Distributors (hereinafter referred to as "employer") hired the claimant, Mr. Joseph Harper, in the latter months of 2000. Mr. Harper was a delivery driver, and would bring boxed nails to construction sites. Claimant would carry boxes of nails weighing anywhere from 35 to 50 pounds each, and would deliver as many as 6 pallets of nails a day, 100 boxes of nails to a pallet. Mr. Harper testified that on either June $4^{\text {th }} or 6^{\text {th }}$ of 2003 , while in the process of stepping down out of his truck carrying a fifty pound box of nails at his side, he suffered a "pop" in his back. Mr. Harper recalls that he continued to work that day, and that he did not seek medical attention that evening, but believes that he advised Eric Frahm, his supervisor, that same day as to his back complaints. Mr. Harper alleges that his employer made a phone call to another office in Decatur, Illinois, and that as a consequence of that phone call claimant was advised

that the employer did not have a "company doctor" in the St. Louis area, and that claimant should go to his own physician until such time as the injury was determined to be work related.

Mr. Harper acknowledges that after the event described in June of 2003, he first sought medical attention from Dr. Thomas Lee on 6/30/03. Claimant acknowledged at hearing that he had seen Dr. Lee on a prior occasion, in September of 2002, for evaluation of back complaints after jumping out of his truck in early July of 2002. The testimony of Mr. Harper, to the extent that he was treated very briefly in September of 2002 for a back strain that resolved without further complaint, is consistent with the records of Dr. Lee. Those records fail to document any follow up evaluations by Dr. Lee after the injury was diagnosed on 9/04/02 as a lumbosacral sprain, until such time as Dr. Lee met with Mr. Harper again on 6/30/03 (See Claimant's Exhibit A1).

The records of Dr. Lee indicate that in June of 2003 Mr. Harper was complaining of "back pain symptoms corresponding to the right L5 radiculopathy". MRI was ordered to rule out possible right L4-5 herniation. MRI from

South County Open MRI was interpreted as showing degenerative discs at certain levels, with right facet hypertrophy and disc protrusion. The interpreter of the MRI noted "the protrusion does significantly affect the canal, S1, and possibly the L5 right roots".

Dr. Lee prescribed physical therapy and epidural steroid injections for "persistent symptoms related to right leg radiculopathy". The records of Dr. Graham document a history of having provided claimant with epidural steroid injection to the low back on 7/8/03 and again on 7/16/03 (See Claimant's Exhibit B-1).

While it is true that the treatment records of Dr. Lee for June and July of 2003 fail to document any history as to contemporaneous work injury, the hand written notes of Dr. Graham dated 7/8/03 (Exhibit B1) provide, in part, as follows with respect to complaints as to the right lower extremity: "Started in (sp?) 7/03, without event. Was working delivering nails."

Claimant continued to have complaints, and continued treating with Dr. Lee for back and right lower extremity symptoms. Claimant had ongoing physical therapy and was prescribed pain medication; on 11/17/03 Dr. Lee noted that claimant was having no improvement with physical therapy, and chose to order a lumbar myelogram. On 11/26/03, the date the myelogram was performed, Mr. Harper also had an examination performed by Dr. Barry I Feinberg. Dr. Feinberg performed his evaluation without the benefit of the CT myelogram, and concluded that the claimant would benefit from physical therapy for an apparent right L5 radiculopathy.

On 12/1/03 Dr. Lee met with the claimant after having the CT myelogram results, and interpreted the myelogram and post myelogram CT taken on 11/26/03 as showing an L5 herniation that would account for the claimant's complaints. Dr. Lee then discussed a surgical option with Mr. Harper, and as to possible fusion.

Claimant testified that after his injury in June of 2003 he continued to perform his delivery job, bu