David Kindel v. St. John's Regional Medical Center

(Modifying Award and Decision of Administrative Law Judge)

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, as modified herein, 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 February 21, 2006, except to the extent modified herein.

The administrative law judge awarded future medical treatment as indicated in the life-care plan by Dr. Terry Winkler. We do not so limit the award. Employee is awarded future medical care as needed to cure and relieve him of the effects of the injury pursuant to the provisions of the Workers' Compensation Act.

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.

The award and decision of Administrative Law Judge Karen Wells Fisher, issued February 21, 2006, is attached and incorporated by this reference, except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $\underline{29^{\text {th }}}$ day of September 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Employee: David Kindel

$\begin{array}{ll}\text { Dependents: } & \text { N/A } \\ \text { Employer: } & \text { St. John's Regional Medical Center }\end{array}

\begin{array}{ll}\text { Additional Party: } & \text { Second Injury Fund } \\ \text { Insurer: } & \text { Preferred Physician Insurance }\end{array}$

Injury No. 99-140949

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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 14, 1999
5. State location where accident occurred or occupational disease was contracted: JOPLIN, MO
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: LIFTING AND CARRYING 50-70 POUND BOXES
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: BACK AND BODY AS A WHOLE
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: NONE
16. Value necessary medical aid paid to date by employer/insurer? $\ 89,522.36
17. Value necessary medical aid not furnished by employer/insurer? $\ 6,501.52
18. Employee's average weekly wages:
19. Weekly compensation rate: $\$ 578.48 / \$ 303.01 / \ 578.48
20. Method wages computation: AGREED

1. Amount of compensation payable:

Unpaid medical expenses: $\ 6,501.52

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

1. Second Injury Fund liability: NONE

TOTAL:

1. Future requirements awarded: PERMANENT TOTAL DISABILITY

Said payments to begin September 15, 1999 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:

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

The above-referenced workers' compensation claim was heard before the undersigned Associate Administrative Law Judge on August 18, 2005. The employee appeared personally and through his attorney, Matthew Webster. The employer and insurer appeared through their attorney, John Dolence. The custodian of the Second Injury Fund appeared through its attorney, Karen Johnson, Assistant Attorney General.

The parties have stipulated that the compensation rate in this case is $\ 578.48 per week for temporary total disability benefits, $\ 303.01 for permanent partial disability benefits, and $\ 578.48 per week for permanent total disability benefits. The parties further agreed that no temporary total disability had been paid to the date of the hearing and that the employer has provided medical treatment to the employee having paid $\ 89,522.36 in medical expenses. The parties agreed that the following issues are to be determined as a result of the hearing.

1. Whether the events of September 14, 1999, and September 15, 1999, caused the injuries and disabilities for which benefits are now being claimed.
2. Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\ 6,501.52.
3. 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.
4. Whether the claimant sustained any permanent disability as a consequence of the alleged accident and, if so, the nature and extent of the disability.
5. Whether the Second Injury Fund is liable for payment of permanent total disability compensation or enhancement of permanent partial disability compensation.

The claimant testified at the hearing in support of his claim. The deposition testimony of Dr. Behm, Dr. Winegarner, Dr. Mace, Dr. Lennard, Dr. Pinkerton, Dr. Hopkins, Dr. Koprivica, Dr. Halfaker, and Mr. Eldred were also offered. The testimony in pertinent part is as follows.

Mr. Kindel testified that he was born January 18, 1953, and was 52 years old on the date of the hearing. He testified that he had graduated high school and had earned a B.S. in nursing and a Masters in Business Management. He testified that he rode bulls bareback for a few years while touring in a rodeo. He also served in the military from 1971 to 1979. During this time he served in the Army in combat arms and as a light and heavy weapons specialist. He did a second stint in the army and worked as an oral specialist. He testified that he served later in the Air Force. He went to flight nursing school and was in charge of the emergency room and critical care at the base. He left the Air Force in 1987.

He worked as a Director of Nursing at Sisters of Mercy Hospital in Independence, Kansas and was then recruited to Liberal, Kansas at Southwest Medical Center and was ultimately promoted to president and CEO. He testified he was then recruited to St. John's Hospital in Joplin as a Sr. Vice President and CEO.

Mr. Kindel testified that he did have injuries prior to September of 1999. He testified that as a result of bull riding he had suffered a broken nose and sinuses, he had several dislocations, broken ribs, a fractured foot, ankle and legs, and a broken neck. He testified that he stopped riding after the broken neck. He indicated these injuries left no ongoing symptoms or required ongoing treatment.

He testified that while in the military he had to maintain a certain level of physical fitness. He hurt himself while lifting weights in 1986. This involved a ruptured disc in his neck and he initially had trouble moving his right side. A decompression and fusion was performed and Mr. Kindel testified that he recovered full mobility although he had a dead spot in his right forearm and did experience a slight loss of grip strength.

After he got out of the Air Force and was working at Southwest Medical Center in the emergency room, he, in September of 1992, experienced a bulging disc at L3-4. In 1994 he had surgery through Kansas workers' compensation. He testified that he was released from further care from this injury with a 50-pound weight restriction. He testified that he did experience some problems with overuse, but otherwise he had no problems as a result of that injury.

In 1997 Mr. Kindel did have surgery to his knee. He had a bucket-handle tear of the medial meniscus, this was also covered by workers' compensation in Kansas. Subsequent to that surgery he testified that he had no problems with the left knee. In September of 1999 Mr. Kindel testified he did not have radicular pain and no severe pain in his low back. He also testified he had sought no treatmentor medication for his back prior to September of 1999. He hunted deer, pheasant, and turkey. He raised and trained quarter horses. He fished, rode ATVs, played basketball, and had no problem performing these activities.

Mr. Kindel testified that on September 14, 1999, he was employed by St. John's hospital in Joplin. The hospital had an employee picnic scheduled on a Saturday. On Friday Mr. Kindel testified that he went to the kitchen to help get ready for the picnic. He moved boxes of ground beef weighing 50 to 75 pounds and made hamburger patties. On Saturday he lifted the boxes of patties onto a trailer and also lifted bags of charcoal. He also cooked hamburgers from 10:00 a.m. to 4:00 p.m. on that day. On Friday the floor in the kitchen where he was moving the boxes of meat was very slick. He testified that he did not fall, but had tensed his body to carry the boxes of meat in order not to slip. He did note that his back was sore on Friday and he still noticed the soreness on Saturday morning. He testified that he was very sore on Sunday, and Monday he started experiencing pain down into his leg. He did report it to his employer and noted that the back continued to get worse.

He indicated that he first saw Dr. Behm in October of 1999. She recommendedtreatment with heating pads and over-the-counter medications. When he saw Dr. Behm, he indicated that his low back was really hurting, and hurting into his leg, and that his arms and neck were very sore. He testified that he was starting to experience bowel and bladder problems and erectile dysfunction. He testified that an MRI was performed and his understanding was that there was a bulge hitting the L5 nerve root and there was an L3-4 bulge. He continued treating with Dr. Behm.

He saw Dr. Winegarner November 12, 1999, and indicated low back pain and leg pain in both legs, the right greater than the left. He

indicated bladder problems, leg fatigue, an inability to control flatulence, fecal staining, and that he was walking stooped.

Mr. Kindel testified that initially he had pain in the right leg only, but within a week or 10 days the left leg started to hurt also. He testified that these problems still persist. He has been on medication for physical pain since he first saw Dr. Behm. He is now also on medication for psychological symptoms. He wa