Charles Argast v. The Young Group

I submit this concurring opinion to disclose the fact that I was previously employed as a partner in the law firm of Evans and Dixon. While I was a partner, the instant case was assigned to the law firm for defense purposes. I had no actual knowledge of this case as a partner with Evans and Dixon. However, recognizing that there may exist the appearance of impropriety because of my previous status with the law firm of Evans and Dixon, I had no involvement or participation in the decision in this case until a stalemate was reached between the other two members of the Commission. As a result, pursuant to the rule of necessity, I am compelled to participate in this case because there is no other mechanism in place to resolve the issues in the claim. Barker v. Secretary of State's Office, 752 S.W.2d 437 (Mo.App. W.D. 1988).

Having reviewed the evidence and considered the whole record, I join in and adopt the award and decision of the administrative law judge.

William F. Ringer, Chairman

AWARD

Employee: Charles Argast

Injury No.: 01-081106

Dependents: N/A

Before the

Division of Workers'

Employer: The Young Group (Settled)

Compensation

Department of Labor and Industrial

Additional Party: Second Injury Fund

Relations of Missouri

Jefferson City, Missouri

Insurer: Amerisure Companies (Settled)

Hearing Date: August 21, 2006

Checked by: JED:tr

FINDINGS OF FACT AND RULINGS OF LAW

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: May 21, 2001
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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:

Employee was drilling holes through 16-inch walls.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Neck
3. Nature and extent of any permanent disability: 45% PPD of the body referable to the cervicl spine (settled).

1. Compensation paid to-date for temporary disability: -0 -
2. Value necessary medical aid paid to date by employer/insurer? $\ 4,336.88

Employee: Charles Argast Injury No.: 01-081106

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Undetermined
3. Weekly compensation rate: $\$ 599.96 / \ 314.26
4. Method wages computation: Stipulation

1. Amount of compensation payable:

180 Weeks PPD from Employer

(Settled)

1. Second Injury Fund liability: No

TOTAL:

-0-

1. Future requirements awarded: N/A

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Charles Argast

Injury No.: 01-081106

Dependents: N/A

Before the

This case involves two separate Claims for Compensation each alleging cervical disc injury to Claimant with alleged accident dates of May 21, 2001 and November 27, 2001. These two cases may be referred to hereinafter as the first and second cases, respectively. The second case alleges permanent total disability against the Second Injury Fund (hereafter "SIF"). Employer and insurer previously settled their risk of liability regarding the allegations underlying the claimed injuries of May 21, 2001 and of November 27, 2001. Both parties are represented by counsel. Separate awards issue on each Claim.

1. occurrence of an accident;
2. whether injury arose out of an in the course of employment;
3. medical causation/attribution;

Both Cases 4. nature and extent of permanent disability; and 5. liability of the SIF.

1. Claimant commenced treatment in May 2001 for neck and arm symptoms with Dr. Einerston, his chiropractor but within the month, referral to Dr. Emmons occurred who immediately ordered an MRI which was positive for spondylitic changes from C-4 to C-7 without nerve root impingement.
2. Dr. Graven examined Claimant in June 2001, and interpreted an EMG/NCS as positive for C-6 disc radiculopathy.
3. Dr. Graven's office notes from the first examination include a history of "[no] injury."
4. Dr. Graven placed Claimant in epidural injection therapy throughout August 2001 with some symptom relief.
5. In October 2001, Dr. Graven referred Claimant to Dr. Scodary, a neurosurgeon for persistent severe symptoms. Claimant apparently did not consult Dr. Scodary.
6. After returning to work with symptoms, and some missed appointments in October, Claimant underwent a second series of epidural injections on December 10 and 17, 2001. No mention is made in Dr. Graven's treatment record of a new accident or new injury. [1]
7. On December 31, 2001, Claimant presented for the third injection whereupon, prior to injection, an episode of fantastic symptomotology ensued resulting in overnight admission, narcotic intravenous pain medication and inpatient pain management procedures per Dr. Piatkowski.
8. Dr. Terrence Piper dictated another report during the interim period dated January 2, 2002 that included

summary of a physical examination reflecting severe upper extremity symptoms relative to multiple cervical disc diagnoses. The note also included patient history of severe arm and leg symptoms surrounding the preparatory injection for the third epidural (second round). Claimant stated he "felt like his arms and legs were on fire." Dr. Piper dictated no diagnoses relative to leg symptoms or absence of sensation; no treatment records parallel this account of leg symptoms.

1. Six weeks later, Claimant underwent a cervical laminectomy and fusion (C3-C7) surgeries, separately, on January 9 and 21, 2002.

1. Regarding degree of permanent disability, Claimant was articulate, ambulated freely into the court room and is under no treatment plan. His upper extremity deficits are evident from the treatment record. His lower extremity complaints are unaccompanied by medical diagnoses or treatment. Employer's expert did not dispute Claimant's inability to return to the same employment. Claimant's high school performance was significantly above average and his industrial skill set is commensurate with his annual prior income of $\ 75,000 to $\ 100,000.
2. The treating physicians did not testify.
3. Claimant testified that while working on the alleged accident date of November 27, 2001, he was installing ten-foot lengths of two-inch stainless steel piping when he felt a shock. Claimant finished the job.
4. Claimant filed a Claim for the May 21, 2001 accident and cervical disc injury which was treated as described. Claimant filed a second Claim for cervical disc injury and alleged November 27, 2001 as an accident date.

1. In 1980, while at work Claimant sustained a crush injury to his left index and long fingers necessitating surgery. (Ex. B, pp. 92-96). Claimant stated that he lacked strength in his left hand for about one year after the accident but did not have any problems thereafter.
2. In May, 1999, Claimant fell asleep while traveling on a plane with his neck twisted and developed left sided neck pain radiating into his shoulder and elbow. Dr. Perez diagnosed "torticollis." An x-ray of the cervical spine revealed multilevel degenerative change. (Ex. B, pp. 89-91).

1. Claimant's expert, Dr. Musich testified that the "work trauma of May, 2001 and November, 2001" cause Claimant's cervical pathology and symptomatology.
2. Dr. Musich found the work injury of May 2001 caused forty-five percent PPD and the work trauma of November 2001 caused thirty-five percent PPD.
3. Dr. Musich found Claimant permanently and totally disabled "due to the combination of all of his disabilities."
4. Claimant vocational expert, Mr. Israel saw Claimant once in 2003 and stated he relied on the conclusion of "physicians" and quoted Dr. Graven regarding Claimant's current status as permanently disabled.
5. Mr. Israel quoted Claimant' non-treating expert regarding causation and combination between the two claims for permanent total disability,
6. Claimant "read and interpreted blueprints, sketches and product specifications to determine sequence and methods of fabricating, assembling and installing sheet metal products." Mr. Israel identified inspector and tester, supervisor of assembly department, unit assembler and metal hanger as positions for which Claimant "has acquired significant knowledge or skills transferable to other types of related work[.]" Further, "[h]e had shown good capacity to learn or adapt to work that he has been previously unaccustomed to performing."

1. Mr. Israel stated alternative employments "generally do not afford the degree of latitude and work site accommodations that [Claimant's] physical disabilities would now necessitate." Mr. Israel offered no specific history for Claimant's re-employment efforts.
2. Mr. Israel, found Claimant unemployable on the open labor market. Mr. Israel r