Scott Mertz v. Ameren UE

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-129583

Employee: Scott Mertz

Employer: Ameren UE

Insurer: Self-Insured

c/o CCMI

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

Date of Accident: December 22, 2003

Place and County of Accident: St. Louis

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 October 24, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued October 24, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 5^{\text {th }} \qquad$ day of March 2007.

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? No
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: December 22, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Claimant was pulling cable when he strained his low back.
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 and right leg
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 8,329.20
16. Value necessary medical aid paid to date by employer/insurer? $\ 9,197.20

Employee: Scott Mertz Injury No.: 03-129583 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 1154.00 19. Weekly compensation rate: $\$ 662.55 / \ 347.05 20. Method wages computation: Stipulation

1. Amount of compensation payable: None

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 $\mathrm{n} / \mathrm{a}$ of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Scott Mertz

Injury No.: 03-129583

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Employer: Ameren UE

Division of Workers'

Compensation

Department of Labor and Industrial

Relationships of Missouri

Jefferson City, Missouri

Industrial Party: Second Injury Fund

Insurer: Self c/o CCMI

Checked by: KMH

A hearing was held on the above matter July 20, 2006. Attorney Bob Keefe represented Scott Mertz (Claimant). Attorney Pat Patterson represented Ameren UE (Employer). Assistant Attorney General Tracey Cordia represented the Second Injury Fund (SIF).

The parties stipulated to the following:

1. Claimant sustained an injury by accident on December 22, 2003, while in the course and scope of his employment in St. Louis, Missouri.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation Law. Employer was self-insured and had notice of the injury. A claim for compensation was filed within the time

the electrical field. He testified he felt he could "possibly" work as an electrician.

1. Claimant has been working at RE/MAX. He trained through their school and earned his real estate license this year. He has not gotten any listings yet and has not made any money yet through RE/MAX. He believes he can handle working in real estate because he is able to make his own hours and work around his pain.
2. Claimant testified he needs to lie down at least three times a day for 30-45 minutes to relieve his back pain. If he does not, he cannot function. He continues to have back and right leg pain and takes six to eight Ibuprofens a day.
3. Prior to his 2003 work injury, Claimant injured his right elbow in 1998 and his low back in 2000. As a result of his right elbow injury, he underwent surgery, but he continues to have burning in his elbow when swinging a hammer or a wrench. He also has difficulty lifting, has pain and has a loss of grip strength. This injury settled in 2002 for 22 % of his right elbow.
4. Claimant's 2000 back injury was also work related. He underwent extensive conservative treatment and settled that case for 18.75 % of the low back on March 24, 2003. Claimant testified he continued to have problems with his low back after that case settled. His back continued to ache all the time, he could not jump fences which linemen do a lot, he had difficulty bending and climbing, and he had to be careful how he lifted. He occasionally missed work due to back pain. Due to his continuing back complaints, Claimant took Ibuprofen and treated on his own with a chiropractor from May 2001 until his last visit of December 18, 2003.
5. Claimant testified from 2000 through 2003 his complaints were in his back only and he had no radiation into his legs. He testified that before his 2003 injury, he had none of the catching in his back, none of the stabbing pain into his right lower back and hip and none of the pain into his right leg and ankle that he has now. He simply had a back ache and soreness before 2003 and he could still climb at work. He testified that now his right leg gives out on him daily and he falls sometimes.
6. Claimant had other health problems before 2003. He had been diagnosed with anxiety, allergies, and insomnia. He was and continues to take medications for all of these conditions.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

The Claimant has the burden of proving all the elements of his case including medical causation. Welker v. M.F.A. Central Cooperative, 380 S.W. 2d 481, 487 (Mo.App. 1964). He also has the burden of proving a causal connection between the accident and the injury. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195, 198 (Mo.App. E.D.1990).

I find Claimant has failed to establish his current back complaints are the result of his December 22, 2003 work injury.

Claimant had a serious back injury in 2000. He treated for several months and had two MRIs . Both of those MRIs were interpreted as showing Claimant had degenerative disc disease, a central bulge at L5-S1 with an annular tear or fissure at that level. Claimant had another MRI after his 2003 work injury. Dr. Reinsel, Dr. Coyle, and Dr. Katz agreed there was no significant change in the MRI findings from 2000 to 2003. There was no additional pathology following the 2003 work injury.

Claimant testified he had significant ongoing complaints in his low back following his 2000 injury and up until his 2003 injury. He had such significant pain that he treated almost twice a week with a chiropractor from May 2001 until December 18, 2003. Claimant advised Dr. Volarich the only reason he was able to continue working after his 2000 back injury was because he regularly saw his chiropractor.

Claimant was evaluated in 2002 by his own medical expert, Dr. Volarich. At that time, Claimant told Dr. Volarich he had low back pain 24 hours a day, 7 days a week which radiated into his right flank. He complained of pain radiating into his neck. He complained he could not sit more than 15 minutes without an increase in pain, he could not lift more than 50 pounds and driving caused pain in his back. He also complained he could not run, jump or play basketball and that his sleep was poor due to pain. Dr. Volarich imposed restrictions and assessed a PPD of 25 % of the spine due to an annular tear at the L5-S1 level and aggravation of his degenerative disk disease.

Dr. Volarich also evaluated Claimant in 2004, imposed restrictions and assessed Claimant's PPD. At that time, Claimant advised Dr. Volarich all of his current symptoms were present before his 2003 injury, but they worsened following

that injury. The restrictions Dr. Volarich imposed following the 2003 injury are substantially similar to those imposed in 2002. While Dr. Volarich also diagnosed a L5-S1 disc protrusion following the 2003 injury and not the 2000 injury, his diagnosis is based on the report of a radiologist who stated there was no significant change between the 2001 and the 2004 MRI.

Claimant also testified he had no leg problems from his 2000 injury. However, a review of the treating records following that injury shows otherwise. In March 2000, Dr. Mirkin found Claimant had right sided radiculopathy and recommended a series of epidural steroid injections (ESIs). Claimant saw Dr. Graham for the ESIs in March and April 2000. His reports indicate Claimant said in March 2000 his shooting pain into his right lower extremity had resolved after his injection, but he still had pain in his low back and leg. Claimant saw Dr. Albana in 2001 and completed a pain chart which showed he had complaints into his low back, right hip, right thigh and right knee. Claimant also completed a pain chart when he began treating with his chiropractor, Dr. Casey, in May 2001. That chart reveals Claimant had pain in his low back, right side, right hip, and right leg all the way to the ankle. Claimant advised Dr. Casey he had aching, burning, and numbness that radiated to his hip, leg and thigh. Claimant continued to see Dr. Casey continuously until December 18, 2003. At that time, Claimant had low back pain with spasm. This was just four days before his 2003 work injury.

The medical records establish Claimant continued to have significant pain in his back and legs following his 2000 injury and up until his 2003 injury. Claimant was released from treatment in April 2004 and advised Dr. Katz his back felt almost like it did before his 2003 injury. I find Claimant's current complaints are not medically and causally related to his 2003 injury.

Claimant alleges he is permanently and totally disabled as a result of his 2003 injury in combination with his prior injuries. Claimant has the burden of establishing the extent of his disability. Carter v. Frito-Lay, 913 S.W.2d 341, 345 (Mo.App., E.D. 1995). This burden is met through medical evidence proving the nature and extent of the permanent disability within a reasonable degree of medical certainty. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo.App. 1974).

The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Total disability means the "inability to return to any reasonable or normal employment." Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo. App. 1995)(citations omitted), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).

The medical evidence does not support Claimant's contention that he is totally disabled. Claimant's own expert, Dr. Volarich, testified Claimant could work with restrictions unless a vocational expert could not find employment for Claimant. In that case, Dr. Volarich would agree Claimant is permanently and totally disabled. In essence, Dr. Volarich defers to the vocational expert.

Claimant's vocational expert, Jim England, testified he found Claimant unable to compete in the open labor market based on Claimant's subjective complaints. When looking at the opinions of the medical experts alone, Mr. England did not feel these supported PTD and Claimant at least could perform unskilled service employment.

I do not find Claimant's testimony regarding his complaints credible for a number of reasons. Claimant testified he did not have any radicular complaints until after the 2003 injury. However, multiple medical records document Claimant's complaints into his right leg before the 2003 injury. The pain drawings Claimant himself completed before his examinations with Dr. Albana and Dr. Casey reveal complaints of pain, numbness, aching and burning into his right leg all the way to the ankle. Claimant testified at trial he did not tell Dr. Katz he had returned to his pre 2003 injury complaint level. However, in his deposition, he admitted he told Dr. Katz in April 2004 that his back was almost like it was before the 2003 injury.

In addition, the activities depicted in the surveillance video of March 27, 2004, clearly show Claimant's abilities. Just days before this video was taken, Claimant reported to his physical therapist that he could only lift very light weights and his movements were slow. He said it was painful to care for himself and he could stand no more than 15 minutes. The therapist opined Claimant perceived himself as crippled. On March 19, 2004, Claimant had advised Dr. Katz the therapy had made him worse and Dr. Katz kept Claimant off work. These complaints are inconsistent with Claimant's abilities as documented in the video just one week later.

Claimant's 2000 back injury settled for 18.75 % of his low back in May 2003. As noted above, Claimant continued to have significant complaints in his back and leg following this injury. He continued to treat with a chiropractor until days

before his 2003 injury. Claimant's expert did not substantially increase his recommended restrictions for Claimant following the 2003 injury.

Based on the evidence, I find Claimant is not permanently and totally disabled. I find Claimant returned to his pre-2003 injury baseline and has sustained no additional permanent disability as a result of his December 22, 2003, injury.

Based on the conclusions above, Claimant's 2003 case is denied. Since Claimant's underlying claim against Employer has been denied, his claim against the Second Injury Fund is dismissed.

$\qquad Made by: \qquad

\square$ KATHLEEN M. HART Administrative Law Judge Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

Scott Mertz

Injury No: 03-129583