Randall Humphrey v. Verslues Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-070175

Employee: Randall Humphrey

Employer: Verslues Construction

Insurer: Silvey Companies

Date of Accident: May 16, 2000

Place and County of Accident: Jefferson City, Cole County, 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 2, 2006. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued November 2, 2006, 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 $\qquad 14^{\text {th }}$ day of May 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

Employee: Randall Humphrey

Injury No. 00-070175

Dependents:

Before the

Employer: Verslues Construction

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

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: May 17, 2001.
5. State location where accident occurred or occupational disease was contracted: Jefferson City, 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: (See award.)
12. Did accident or occupational disease cause death? No. Date of death? N/a.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease:
14. Nature and extent of any permanent disability: 30\% BAW
15. Compensation paid to-date for temporary disability: $\ 21,297.11.
16. Value necessary medical aid paid to date by employer/insurer? $\ 27,412.76.
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee's average weekly wages: $\ 664.17.
19. Weekly compensation rate: $\ 443.45 ppd, ptd/ $\ 303.01 ppd.
20. Method wages computation: By award.

1. Amount of compensation payable:

Unpaid medical expenses: prescription expense: underpayment of temporary total disability: 120 weeks of permanent partial disability from Employer $\ 182.98 1,762.28 36,361.20

Employee: Randall Humphrey

Injury No: 00-070175

Before the DIVISION OF WORKERS’ COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Dependents: Employer: Verslues Construction Additional Party Second Injury Fund (N/a - settled) Insurer: Silvey Companies

Checked by: HDF/cs

The above-referenced workers’ compensation claim was heard before the undersigned administrative law judge on September 6, 2006, and September 22, 2006.

The parties stipulated that on or about May 16, 2000, the claimant was in the employment of Verslues Construction; the claimant sustained a injury by accident; the accident arose out of and in the course of employment; the employer was operating under the provisions of the Missouri workers’ compensation law; the employer’s liability was insured by Silvey Companies; the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law; temporary total disability benefits have been paid to the claimant to date in the amount of $21,297.11, those payments representing 52 weeks of benefits, ending May 17, 2001, paid at 409.56; medical aid has been provided in the amount of 27,412.74.

The issues to be resolved by hearing include 1) the appropriate rate of compensation, 2) the nature and extent of permanent disability, 3) the liability of the employer/insurer for past temporary total disability benefits, noting that 52 weeks of compensation have been paid at the rate of $\ 409.56 per week and that the claimant is alleging that the appropriate rate of compensation is $\ 477.73 per week resulting in a $\ 3,544.84 underpayment of temporary total disability benefits, and 4) the liability of the employer/insurer for past and future medical treatment and bills .

The claimant, Randall Humphrey, injured his back on May 16, 2000, when, while working for Verslues Construction, he was left holding a 250- to 300-pound garage door frame when his fellow employee dropped the side of the garage door frame he was holding leaving Mr. Humphrey with the full weight of the door frame. Mr. Humphrey felt pain in his back and then dropped the garage door frame. Mr. Humphrey received initial medical treatment with Dr. Dudenhoeffer. Mr. Humphrey continued to work for Verslues Construction until May 23, 2000. On that date, Mr. Humphrey reported slipping on a roof to Dr. Dudenhoeffer, although Mr. Humphrey testified during the hearing that he suffered only an aggravation of his back pain.

Mr. Humphrey received medical attention from Dr. Lucio, who performed epidural steroid injections in Mr. Humphrey's low back, and Dr. Trecha, who performed a microdiscectomy in September of 2000. Dr. Trecha released Mr. Humphrey to return to work with restrictions in May of 2001.

Mr. Humphrey sought additional medical treatment with Dr. Dudenhoeffer and Dr. Bondurant. Prior to May of 2000, Mr. Humphrey had complaints of back pain, headaches and sustained an injury to the middle finger of his right hand.

Mr. Humphrey testified that he believed he was making $\ 716.88 per week on average during the thirteen weeks prior to May 16, 2000. Mr. Humphrey normally worked five days a week but could have missed some time due to rain. The wage statement reflects thirteen weeks of wages prior to May 26, 2000, twelve weeks of wages prior to May 19, 2000, and eleven weeks of wages prior to May 12, 2000. For this eleven weeks of wages prior to May 12, 2000, the average weekly wage is $\ 665.17. The wage statement reflects hours worked for each week. For the eleven weeks prior to May 12, 2000, the hours worked per week vary from a low of 27.5 to a high of 45.5 . Only hours worked per week are reflected, not days worked per week.

Dr. Raymond Cohen, D.O., testified by deposition taken on May 1, 2006, and July 31, 2006. Dr. Cohen is an osteopathic physician. He has been certified and re-certified by the American Society of Physician Specialties in the field of neurology.

Dr. Cohen authored several reports pertaining to Mr. Humphrey's condition. The November 15, 2001 report refers to Mr. Humphrey's permanent and total disability as the result of the combination of his back injury of May 16, 2000, with his 1997 back injury, a prior head injury and a prior injury to Mr. Humphrey's right hand. Dr. Cohen noted that Mr. Humphrey last worked on May 16, 2000, in his initial report, rather than the May 23, 2000 date which was his actual last day of work. Dr. Cohen went on to specifically state that Mr. Humphrey's pre-2000 injuries were a hindrance or obstacle to Mr. Humphrey's employment or re-employment. Mr. Humphrey's permanent disability as the result of his May 16, 2000 injury was assessed as fifty percent (50\%) for the lumbar spine injury and an additional twenty percent (20\%) for depression. Dr. Cohen's report of almost a year later, October 24, 2002, refers to Mr. Humphrey's cumulative trauma up through May 23, 2000, and sets forth disability in both of Mr. Humphrey's wrists and elbows. Dr. Cohen again concludes his 2002 report referring to Mr. Humphrey's permanent total disability resulting from the combination of pre-existing "conditions or disabilities" combined with primary work-related injuries. On January 30, 2003, and April 14, 2006, Dr. Cohen authored supplemental reports confirming his prior medical opinions.

Dr. Cohen confirmed these opinions again during his deposition testimony. However, Dr. Cohen also testified that the injuries sustained as the result of the May 16, 2000 accident alone rendered Mr. Humphrey permanently and totally disabled.

Dr. Cohen found Mr. Humphrey to be in need of Mobic and Ultram as the result of the May 16, 2000 injury. However, when asked about Mr. Humphrey's medications, Dr. Cohen did not know whether Mr. Humphrey was still taking Hydrocodone on November 15, 2001, or what Mr. Humphrey's dosing schedule was for the Ultram. Dr. Cohen also testified that treatment Mr. Humphrey received from Doctors Dudenhoeffer, Bondurant and Lucio for his low back was the result of the May 16, 2000 injury. When asked about Mr. Humphrey's depression, Dr. Cohen did not know the onset of Mr. Humphrey's depression or about any other potential stressors or causes of Mr. Humphrey's depression.

Mr. James England, vocational rehabilitation counselor, testified by deposition on July 11, 2006. Mr. England evaluated Mr. Humphrey on January 4, 2002. Mr. England opined that Mr. Humphrey was neither a

candidate for employment or vocational rehabilitation. Mr. England pinpointed the date of Dr. Trecha's release of Mr. Humphrey, May 14, 2001, with permanent restrictions, as the date of permanent and total disability. Mr. England opined that Mr. Humphrey could not return to his prior employment or "other kinds of work." Mr. England specifically related that it was the restrictions imposed by Dr. Trecha and Dr. Mirkin that prevented Mr. Humphrey from his return to work in construction.

During cross-examination, Mr. England admitted that it was possible that Mr. Humphrey is permanently and totally disabled from the combination of his pre-existing closed-head injury, right hand injury and low back injury combined with his injury of May of 2000. Mr. England also stated that while it appears that Mr. Humphrey's back is disabling him, it is not clear to Mr. England what role Mr. Humphrey's pre-existing back problems or either of two May of 2000 injuries played.

Dr. Randall Trecha, orthopedic surgeon with a special interest in adult reconstructive spine surgery, testified by deposition on April 14, 2006, that he initially evaluated Mr. Humphrey on July 24, 2000. Dr. Trecha's notes reflect Mr. Humphrey's account of an accident involving both "trying to get up on a roof" and "lifting a 230 pound load." Dr. Trecha stated that a June 2, 2000 MRI reflected degenerative changes present. Dr. Trecha also diagnosed