William Kuehn v. Mississippi Lime Company

Additional Party: Second Injury Fund Insurer: Federal Insurance Company Hearing Date: September 12, 2006 Checked by: GR/kh

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? March 22, 2004
5. State location where accident occurred or occupational disease contracted: Ste. Genevieve 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: The employee was hooking cables to a crane and injured his back and body as a whole.
12. Did accident or occupational disease cause death? No
13. Parts 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 total disability: N/A
16. Value necessary medical aid paid to date by employer-insurer: N/A
17. Value necessary medical aid not furnished by employer-insurer: N/A
18. Employee's average weekly wage: $\ 772.40
19. Weekly compensation rate: $\ 514.93 per week for temporary total and permanent total disability. $\ 347.05 per week for permanent partial disability.
20. Method wages computation: By agreement.
21. Amount of compensation payable: See Award
22. Second Injury Fund liability: Second Injury Fund liable for permanent total disability. See Award
23. Future requirements awarded. See Award

Said payments shall be payable as provided in the statement of the findings of fact and rulings of law, and shall be subject to

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: Thomas J. Gregory

On September 12, 2006, William G. Kuehn, the employee, appeared in person and by his attorney, Thomas G. Gregory, for a hearing for a final award. The employee had previously settled his case against the employer-insurer. The Second Injury Fund was represented by Assistant Attorney General Gregory N. Johnson. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was acting under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Federal Insurance Company.
2. On or about the date of the alleged accident or occupational disease, the employee was an employee of Mississippi Lime Company and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employee's average weekly wage is $\ 772.40. His rate for temporary total and permanent total disability is $\ 514.93 per week. His rate for permanent partial disability is $\ 347.05 per week.

1. Whether on or about March 22, 2004 the employee sustained an accident or occupational arising out of and in the course of his employment?
2. Whether the employer had notice of the employee's accident?
3. Whether the employee's injury was medically causally related to his accident or occupational disease?
4. Liability of the Second Injury Fund?

The following exhibits were offered and admitted into evidence without objection:

A. Records re pre-existing work related back injuries.

B. Records of prior workers' compensation claims in case numbers 88-032442, 89-191162 and 94-025793.

C. Medical records from Ste. Genevieve County Memorial Hospital.

D. Medical records from Mississippi Valley Orthopedics.

E. Medical records from Ste. Genevieve Family Health Center, Susan O’Donnell, M.D.

F. Medical records of Kevin T. Enger, M.D.

G. Medical records from Plaza Chiropractic\& Accupuncture, P.C.

H. Medical records of David G. Kennedy, M.D.

I. Deposition of David T. Volarich, D.O.

J. Deposition of James England, Jr.

Second Injury Fund Exhibits

None

The employee was the only witness to testify at the hearing. He had worked at various jobs for Mississippi Lime Company continuously since 1981. He testified that he had an accident on March 22, 2004 and last worked for Mississippi Lime on May 17, 2004. Records provided by Mississippi Lime Company confirm that the employee last worked on May 7, 2004, however he was on vacation and paid through May 14, 2004. The accident on March 22, 2004 resulted in a back fusion surgery.

Before March 22, 2004, the employee had a lot of accidents while working for Mississippi Lime and had disabilities/problems that resulted from those accidents. The employee had a history of back injuries with at least seven

separate reported instances of back injuries prior to 2004. None of the back injuries prior to March 22, 2004 resulted in surgical intervention. The employee never filed a workers' compensation claim or received a workers' compensation settlement in any of the back incidents. Prior to March 2004, the employee had not received any medical treatment for his back since May 2003.

In addition, the employee had four accidents involving his right knee that resulted in four surgeries. The employee received workers' compensation settlements in each of these knee cases.

The employee also had documented problems and treatment to his right shoulder. None of these problems resulted in surgery. Again, no workers' compensation claims were made and the employee received no workers' compensation benefits for his right shoulder problems. In short, the employee has had a history of back problems, none of which resulted in surgery, a history of right knee problems that resulted in surgery, and a history of right shoulder problems that did not result in surgery while he worked for Mississippi Lime. These incidents resulted in various physical problems over the years. In addition to the accidents that the employee had over the years, the employee also had some other health or medical problems. However, the employee was never placed on any permanent restrictions prior to his fusion surgery and was always able to meet the responsibilities of his job. The employee did indicate that there were times when other co-workers helped him out by doing the harder parts of the job or that he took vacation time to help him cope with the problems.

The employee testified that he never filed a claim for any of his prior back injuries. He indicated that he felt he was fortunate to have a job and just wanted to keep working. He also testified that the climate at Mississippi Lime was that they did not like workers' compensation claims. Mississippi Lime gave perks to employees such as free boots when there were no accidents or claims filed. If someone turned in a claim, everyone would lose their free boots or perks. Therefore there was pressure among the workers not to turn in injuries so the perks would not be lost. The employee testified that the way he handled his injuries was to pursue his medical care through the general health policy that Mississippi Lime provided, get his treatment and return to work. His testimony indicated that was the way that Mississippi Lime wanted injuries to be handled. There are no issues in this case concerning the payment of medical bills for the employee's medical care regarding his backapparently those were processed through the group health plan. As no other witness testified and as no other evidence was presented on this topic, the testimony of the employee about how he dealt with work injuries or the atmosphere about how injuries were handled at Mississippi Lime was uncontroverted.

The employee described how he was injured on March 22, 2004. He indicated that he was assisting the replacement of a lime screen in a building about one hundred feet tall. In order to accomplish this task, a rental crane was utilized to move the screen that weighed about four tons. The employee was responsible to hook loading chokers/cables attaching the screen to the hook on the crane. The employee testified that he had a choker in each hand and was reaching overhead to attach the cables to the crane. He indicated that a choker weighs maybe twelve pounds. The employee further indicated that as he attempted to attach the chokers to the crane, he felt a sharp pain in his back and he went to his knees. The employee testified that the pain was so sharp, "that is was like he was hit in the testicles with a sledgehammer". He said the immediate sharpest pain was in his testicles, but that he also had immediate pain in his back and legs. He said this event took place about 11 A.M.

The employee testified that his supervisor that day was Donnie Basler. He testified that he reported the incident to Donnie Basler that day. The employee further indicated that during the lunch break he told two buddies that he blew out his back and that something was wrong. The employee testified that Mr. Basler asked him if he wanted to fill out a form. The employee testified that he told him no, and said, "I am going to get it fixed and I will be back". The employee finished his shift that day. The employee further testified that he told David Roth-the supervisor of the plant about his upcoming surgery. None of this testimony was disputed.

The employee testified that after a few days the testicle pain tapered off some, but he still had pain in his back and legs. He also testified that the pain was a lot more intense than anything he had experienced in the past. As a result of these problems the employee went and sought medical care. He testified that he knew that something was wrong and he had to go get it fixed and then return to work. He testified that in the past he always went through sick pay and saw his family doctor-the company preferred it that way.

Dr. Susan O’Donnell was the first physician to see the employee. The employee testified that he went to see Dr. O’Donnell on March 24, 2004. Her medical report reads: "Patient is a 45 year old gentleman who tends to have lot of back problems. He has been really having them for 20 years. He told me that he has put his back out 4 times in the last 2 or 3 weeks. Pain goes down his right leg and mostly down the front of it. It is quite severe. There are times when she feels that he drags his leg but not right now and sometimes the pain even radiates into his scrotum. He denies scrotal pain in between for the most part". Dr. O’Donnell determined that an MRI should be performed, put the employee on Flexeril and Darvocet and scheduled him to see Dr. Enger because of the scrotal pain.

Dr. Kevin T. Enger/Urologic Surgeon saw the employee on March 29, 2004. His record reads "The patient presents with a complaint of progressive back pain for the past 19 years. He states that his back keeps going out on him, 3 times last week. He indicates that he is worried that this is affecting his urination. He states that he has post void dribbling andf pain in the testicles. He also complains of worsening of his erections. He has no spontaneous erections, and with stimulation they are soft. He complains of a weak stream, occasional nocturia, frequency, incomplete bladder emptying and slightly amount of

straining to void. He states that his symptoms worsen when his back flares up". Dr. Enger assessed Benign Prostatic Hypertrophy, Adenoma w/o urinary obstruction and Impotence. Dr. Enger wanted to do more testing and put the employee on Viagra.

Dr. O'Donnell got back the results of her MRI testing. She read the MRI as showing defuse disc bulges at the L4-5 and L5S1 levels and referred the employee to Dr. Kennedy.

Dr. David G. Kennedy first saw the employee on April 6, 2004. His report reads "This is a 45-year old gentleman who had onset of pain in the lower lumbar area about two weeks ago with intermittent pain in both legs. He states that he has had back pain many years with intermittent flare ups that usually resolve with rest but this is the first time he has had bilateral leg pain with intermittent radiation into both inguinal area. This seems to be a much more painful episode that he has experienced previously".

Dr. Kennedy reviewed the MRI taken on March 26, 2004, and reported "Review of MRI from 3/6/04 demonstrates spondylolithesis at L5-S1. I suspect this clearly is the source of his symptoms". As a result of his examination of the employee and review of testing, Dr. Kennedy performed back fusion surgery on May 17, 2004.

On April 28, 2004, the employee filled out a Short Term Disability Claim with the Sun Life Assurance Company of Canada. Apparently Mississippi Lime, the employee and Dr. Kennedy filled out different parts of the application. Mississippi Lime reported that the employee last worked May 7, 2004 and that the condition was not due to an injury or sickness arising out of the employee's job. It further indicated that a workers' compensation claim had not been filed. The employee filled out his portion of the form and in answer to the question "Date of Accident or Date You First Noticed Symptoms of Your Illness", answered "Symptom's of back pain for several years". The employee gave the same answer to the question "Describe in detail how, when and where the accident occurred or describe the nature of your illness and its first symptoms". The employee indicated that at that time he did not intend to file a workers' compensation claim. In Dr. Kennedy's portion of the application, he indicated that the symptoms appeared approximately 3/23/04, that the employee has had back pain intermittently, and that the employee's condition is not due to an injury or sickness arising out of the patient's employment.

In discussing Dr. O'Donnell's and Dr. Enger's records, the employee agreed that their records say nothing about the crane incident. He indicated that he did not intend on pursuing a workers' compensation claim as the company discouraged it. He indicated that he intended to handle this problem as he had handled other work accidents in the past-go get it fixed and then return to work. He said he told the company about hurting his back with the chokers, but does not remember if he told Dr. Enger. He testified that it was an embarrassment to be pointed out by the company as having filed a workers' compensation claim-he indicated this has happened to him in the past. As to the disability application, the employee testified that he did not intend to file a workers' compensation claim; he agreed that the box was checked no, he does not know why Dr. Kennedy filled out the form as he did. He further indicated that the application needed to go through and that he needed to say it was not work related to get the application to go through.

The employee testified that since his back surgery, he feels like his pain is worse. He testified that after they put plates and screws in, the back pain never leaves and never quits. He indicated that the pain runs from his back into his tailbone and on the right side into his buttock and foot. The employee testified that he takes Hydrocodone three times a day, and sees Dr. Kennedy every three months.

In his letters and various medical records, Dr. Kennedy made several statements about the employee's condition. On September 20, 2005 Dr. Kennedy reported, "I think he significantly disabled and is not able to work in any gainful capacity and will likely need long term pain medication". On November 29, 2005, he reported, "the patient continues to have a chronic pain problem. He is taking a mild to moderate amount of pain medication and will likely need to continue this on a long term basis". On January 12, 2006, Dr. Kennedy wrote, "Please be advised that my patient, Mr. William Kuehn, underwent a lumbar decompression and fusion and because of his ongoing pain is permanently and totally disabled".

Dr. David T. Volarich saw the employee on October 18, 2005 and prepared a report regarding his findings. He testified by deposition on March 29, 2006. Dr. Volarich opined that the employee is permanently and totally disabled as a result of the accident of March 22, 2004 in combination with his preexisting injuries. Dr. Volarich testified that the work accident is the substantial as well as the prevailing factor causing the aggravation of the employee's lumbar spondylolisthesis as well as causing aggravation of degenerative disc disease in the lumbar spine that caused surgery. He further opined that the employee suffers from a failed back syndrome and that he is unable to engage in any substantial gainful activity nor could he be expected to perform in an ongoing work capacity in the future. Dr. Volarich made an extensive list of restrictions of the employee's activities. He rated the employee as having a 25 % preexisting permanent partial disability to his back due to degenerative joint disease, a 50 % permanent partial disability to his back as a result of the accident, a 50 % permanent partial disability of the right knee and a 25 % permanent partial disability of the right upper extremity. He testified that the injuries combine to create a greater disability.

James England, Jr. testified by deposition on March 16, 2006. Prior to the deposition he reviewed medical records and met with the employee. Mr. England opined that the employee is not employable in the open labor market and it is likely he will remain totally disabled. He further opined that the employee's permanent total disability is caused by a combination of his pre-existing disabilities and the March 22, 2004 injury.

The employee was the only witness who provided direct testimony about the events and circumstances surrounding the accident of March 22, 2004, and how the case was processed. His testimony remains unchallenged and was not refuted. Even considering the evidentiary problems raised by the Second Injury Fund, overall the Court found the testimony of the employee to be credible, consistent and convincing. The Court does not make this statement lightly, as the Court has denied cases based on the inconsistencies found between the testimony of the employee and other evidence presented in the case. The Court carefully weighed the inconsistencies in the case pointed out by the Second Injury Fund against the totality of evidence.

The Second Injury Fund mainly concentrated on several pieces of evidence in order to try to impeach the credibility of the employee or challenge their liability. 1) The medical record of Dr. O’Donnell does not contain any specific mention of a crane incident on March 22, 2004, therefore the employee lied and the accident did not take place. 2) The medical record of Dr. Enger does not contain any mention of a crane incident on March 22, 2004, therefore the employee lied and the accident did not take place. 3) When the Sun Life disability application was completed, Mississippi Lime, the employee nor Dr. Kennedy specifically reported that there was a work related accident on March 22, 2004, therefore the accident did not happen, the employee lied and the employee is not entitled to any workers' compensation benefits. 4) If the employee is permanently and totally disabled, it is from the March 22, 2004 accident alone and not due to a combination of preexisting disabilities and the disabilities caused by the March 22, 2004 accident.

On its face, there is certainly an argument that supports a position that the employee is not credible. However, when you examine the totality of the circumstances surrounding this case, and look at the history of how the employee's past accidents have been handled, and when you consider that there is no contradictory evidence to that offered by the employee, there are plausible and credible explanations that deflate the theory that there was no crane accident on March 22, 2004 and that the employee is not credible and therefore should not be believed.

The employee testified about a climate that existed at Mississippi Lime and its employees concerning workers' compensation injuries. That climate was that workers' compensation claims should not be reported or pursued. While this is certainly not the way the system is supposed to operate, no one from Mississippi Lime or any Mississippi Lime employee testified to the contrary.

Partly due to this environment, the employee testified that in the past he had processed his work related injuries through the group health insurance provided by Mississippi Lime. He testified that he went and got medical care and then returned to work. The employee had at least seven back-related accidents/incidents prior to 2004. None of these resulted in surgeries. The employee testified that he did not file a workers' compensation claim on any of these matters, got medical care thorough his group health policy provided by Mississippi Lime and returned to work. There is no evidence to the contrary. The same pattern exists as to the employee's injuries to his right shoulder. In the past the employee had four accidents to his right knee and collected workers' compensation benefits on each one. The difference here is that in each instance the employee had surgery.

The employee testified that when he had the accident on March 22, 2004, he intended to get medical care and then return to work. He testified that he told Danny Basler "I am going to get it fixed and I will be back". The employee declined to fill out an accident report. Neither Mr. Basler, nor anyone from Mississippi Lime testified to dispute this evidence.

The employee's attitude was that he was going to get his problem fixed. He indicated that Dr. Kennedy initially told him that he would be back to work in five or six months. After he got the problem fixed, he was going to return to work. Under this analysis, the employee approached this claim in the same manner as he approached many incidents in the past. The employee admitted that he did not say his accident was work related on the Sun Life application. He agrees that the records of Dr. O’Donnell and Dr. Enger do not contain any mention of the crane incident but thinks he may have told them about the incident. Dr. O’Donnell's record is about March 24, 2004. Dr. Enger's record is dated March 29, 2004. The Sun Life application is dated April 28. 2004. All of the supposed damning records were created prior to the employee's surgery, prior to him becoming aware that he would be the subject of a failed back surgery. Dr. Kennedy's initial potion of the disability application indicates that the accident happened about March 23, 2004. The Court does not believe that at that time the employee was in a sinister plot to get benefits that he was not entitled to. He was operating as he had done in the past. He was operating with the climate that he said existed at Mississippi Lime.

The employee testified that on the day of the accident he advised Danny Basler and co-workers about the accident. He also testified that he told the plant supervisor of his upcoming surgery. Mississippi Lime had notice of the accident as of March 22, 2004.

The Court finds that the employee gave notice to Mississippi Lime of his accident on March 22, 2004. The Court also finds that the employee has met his burden of proof of the issue of accident. The Court finds that the greater weight of the evidence supports the position of the employee that he sustained an accident and was treating it as he had treated work

related accidents in the past. The testimony of the employee was not disputed or contradicted. When all of the evidence is weighed and dissected, the Court found the testimony of the employee to be supported by the evidence and credible. The Court finds that on March 22, 2004 the employee sustained an accident that arose out of and in the course of his employment.

It is important to note that the burden of proof is on the employee to prove all material elements of his claim. Marcus v. Steel Contractors, Inc., 434 S.W. 2d 475 (Mo. 1968). The employee has the burden of proving both that there was an accident and that there is a medical causal relationship between the accident, the injuries, and the medical treatment for which he is seeking compensation. Dolan v. Bandera's Café and Bar, 800 S.W. 2d 263 (Mo. App. 1990). In order to prove a medical causation relationship between the alleged accident and medical condition, the employee in cases such as this involving any significant medical complexity must offer competent medical testimony to satisfy his burden of proof. Brundige v. Boehringer Ingelheim, 812 S.W. 2d 200 (Mo. App. 1991).

In order for an employee to present a compensable workers' compensation claim, he must present credible medical evidence that satisfies these established principles. Without this evidence, there cannot be a finding that the employee has met his burden of proof on the issue of medical causation.

The medical evidence in this case is uniform and consistent. Dr. Kennedy says the employee is permanently and totally disabled. Both Dr. Volarich and Mr. England say that the employee is permanently and totally disabled due to a combination of his preexisting injuries and the accident of March 22, 2004. Dr. Volarich testified that the need for surgery was medically causally related to the accident of March 22, 2004. As there is no credible evidence to the contrary, the Court finds that these opinions are credible.

Prior to this trial the employee settled his case with the employer-insurer. A stipulation was signed on September 12, 2004 wherein the employer-insurer settled the case for $\ 24,987.60. The case was settled for eighteen percent of the body as a whole at a permanent partial disability rate of $\ 347.05 per week. The issue that was left and the issue that was the focus of this trial was what if any liability did the Second Injury Fund bear? The Second Injury Fund attacked the credibility of the employee arguing an accident never took place. Due to the unique circumstances of this case, the Court found that the employee met his burden of proof in showing that he did have an accident on March 22, 2004 that arose out of and in the course of his employment and that his need for medical care was related to that accident. The Court also found that the employee gave notice of the accident to his employer. The credible medical testimony was clear that employee was permanently and totally disabled as a result of a combination of his pre-existing disabilities and the disabilities caused by the work related accident of March 22, 2004. The employee described the disabilities that he goes through on a daily basis. The medical evidence supports that position. The employee is taking Hydrocodone at least three times a day. There is no evidence that the employee does not have the pain problems and the disabilities that he testified about. In addition to his daily problems, the medical evidence supports that fact that the employee will need future care, at least to the extent of pain management.

Based on a consideration of all of the medical evidence, the testimony of the employee and the settlement that was entered into between Mississippi Lime and the employee, the Court finds that the accident of Mach 22, 2004 caused an eighteen percent permanent partial disability to the body as a whole. On September 20, 2005, Dr. Kennedy examined the employee and reported that the employee was significantly disabled and will need long-term pain medication. Prior to that time, the records indicate that the employee was still in the healing process or was in need of additional medical care. Based on the opinion of Dr. Kennedy, the Court finds that the employee reached maximum medical improvement as of September 20, 2005 .

The Court after considering of all of the evidence further finds that the Second Injury Fund is liable for the permanent total disability of the employee due to the disabilities resulting from the employee's accident on March 22, 2004 and his preexisting disabilities. The Court finds that these disabilities combine to create a greater disability than each of them taken separately. The Court finds that no employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition and reasonably expect the employee to perform the work for which he has been hired. In addition the Court finds that pre-existing injuries that the employee had to his back, right knee and right shoulder, all constituted a hindrance or obstacle to his employment or obtaining reemployment.

The employee had his surgery on May 17, 2004. The employee reached maximum medical improvement on September 20, 2005. The employer-insurer paid the employee for 72 weeks of permanent partial disability benefits.

The Second Injury Fund is responsible for the difference between the permanent partial disability rate that was paid by the employer-insurer and the permanent total disability rate. $(\$ 514.93-\$ 347.05=\$ 167.88 . \$ 167.88 \times 72=\ 12,087.36). In addition, the Court orders that the Second Injury Fund pay to the employee $\ 514.93 per week beginning on January 24, 2007 ( 72 weeks after September 20, 2005) and continue said payments as provided by law. The Second Injury Fund is ordered to make one lump sum payment of its liability up to the date of this award and pay any further liability pursuant to Chapter 287 RSMo.

Thomas J. Gregory, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Employee: William Kuehn

Injury No.: 04-143010

Date: $\qquad$ Made by:

Gary L. Robbins

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest: