Andrew Meyers v. Wildcat Materials, Inc.

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. We have reviewed the evidence, read the briefs of the parties, heard oral argument and considered the entire record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated March 19, 2007.

The Commission affirms all findings and conclusions of law made by the administrative law judge, but for the determination concerning the issue of future medical care and treatment. The administrative law judge concluded that the employee failed to meet his burden of proof with regard to the need for future medical treatment. The administrative law judge found that the employee was not entitled to future medical treatment because the evidence was too speculative to justify an award of future medical.

The Commission disagrees with that determination as employee has demonstrated a need for future medical care associated with his January 2, 2004 work injury. Therefore, we award employee future medical care and treatment to cure and relieve employee from the effects of his back injury.

The need for future medical care need not be established as a certainty, but it must be established as being reasonably probable through competent, medical testimony. Bowers v. Highland Dairy Company, 132 S.W.3d 260 (Mo. App. 2004).

In summary fashion, employee testified that he continued to suffer from stiffness and pain in his back and was unable to sit for long periods of time. Employee testified that he understood that his condition could get worse which would require additional surgery in the future. The principal medical opinion concerning the issue of future medical care and treatment was rendered by Dr. Crabtree.

The administrative law judge focuses on Dr. Crabtree's deposition testimony where he states that it is "possible" that employee would need additional surgery. However, Dr. Crabtree also testified that if employee had further problems then he would "most likely" need some type of fusion. Dr. Crabtree stated in his May 27, 2004, office note that employee would "no doubt require further surgery in the future." At that time, Dr. Crabtree noted that employee would "most likely require a multilevel fusion." Therefore, the record demonstrates that Dr. Crabtree provides a definitive opinion as to employee's need for future medical treatment. When evaluating all of Dr. Crabtree's assessments, we find that there is a reasonable probability of a need for future medical treatment regarding employee's back.

The Commission concludes that the competent and substantial evidence supports a finding that employee is entitled to receive future medical care and treatment reasonable and necessary to cure and relieve him from the effects of his back injury, and this benefit is awarded. As stated above, all remaining findings of fact and

conclusions of law are affirmed.

The award and decision of Chief Administrative Law Judge Victorine R. Mahon issued March 19, 2007, as modified, 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 $\qquad 11th \qquad$ day of September 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Andrew Meyers

Injury No. 04-141584

Dependents: N/A

Before the

Employer: Wildcat Materials, Inc.

DIVISION OF WORKERS' COMPENSATION

Additional Party: Treasurer of Missouri, as custodian of Department of Labor and Industrial

the Second Injury Fund

Relations of Missouri

Injurer: Zurich American Insurance Co.

Hearing Date: February 5, 2007

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: On or about January 2, 2004.
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri.

A final hearing was conducted in this case on February 5, 2007 before Chief Administrative Law Judge Victorine Mahon. Attorney William W. Francis, Jr., represented Andrew Meyers, the employee and claimant (Claimant). Kevin M. Johnson represented Wildcat Materials, Inc., and its insurer Zurich American Insurance Co. (Employer). The Treasurer of the State of Missouri, as custodian of the Second Injury Fund, was represented by Assistant Attorney General Susan Colburn.

The parties stipulated that Andrew Meyers was a covered employee of Wildcat Materials, Inc., which was fully insured. The parties agreed to venue in Springfield, Greene County, Missouri. They also agreed that Claimant's average weekly wage was $\ 717.59 which yields a Temporary Total Disability rate of $\ 478.35 and a Permanent Partial Disability of $\ 347.05. The Employer has paid no medical or Temporary Total Disability benefits. Claimant seeks $\ 34,204.51 in past medical benefits and $\ 8,268.63 in Temporary Total Disability from January 4, 2004 to May 4, 2004.

1. Whether Claimant sustained a compensable injury or occupational disease;
2. Whether Claimant provided employer with notice as required under Missouri law;
3. Whether Claimant is entitled to past Temporary Total Disability;
4. Whether Employer is liable for past medical expenses;
5. Whether Claimant is entitled to future medical care;
6. The nature and extent of Permanent Partial Disability;
7. The liability of the Second Injury Fund.

The following exhibits were admitted on behalf of Claimant: A. Deposition of Dr. Shane Bennoch B. Supplemental Report of Dr. Bennoch C. Records - Cox Medical Center D. Records - Cox Occupational Medicine E. Records - Cox Sports Medicine F. Records - Ferrell-Duncan Clinic

G. Records - Southwest Physical Medicine

H. Records - Springfield Neurological and Spine

I. Deposition of Dr. Crabtree

J. Medical Expenses

L. Temporary Total Disability Chart

Exhibits admitted on behalf of Employer:

1. Disability Claim Form

The Administrative Law Judge also takes notice of the Division's records.

Andrew Meyers - Claimant

Steve Breesawitz - Employer's Managerial Supervisor

Claimant is a 28-year-old man, who began working as a driver and stocker for Employer Wildcat, Inc., in April 2001. At the time of his employment he weighed more than 300 pounds. His job duties included loading, delivering, and unloading sheet rock and other building materials such as metal studs, ceiling tile, and fiberglass insulation. It was labor intensive work, frequently lifting loads of 100 pounds or more with a helper or alone, twisting, and bending. When Claimant was not lifting and moving materials, he was driving or riding in a truck. He normally worked five days per week, but could incur up to 20 hours of overtime.

Claimant sustained a number of injuries while working for the Employer for which he was provided treatment. Claimant experienced problems with his knee at work on June 4, 2001, April 19, 2002, and December 3, 2003. Claimant states that, although he was released to full duty on each occasion, he has swelling and weakness in his knee.

On August 27, 2003, Claimant sought treatment at St. John's Regional Health Center for his back. The medical record indicates that Claimant had no recent trauma but "he does a lot of pulling and lifting with his work." (Ex. F). At the time Claimant was working for Employer. An MRI performed on August 29, 2003, revealed congenital central canal stenosis and prominent extruded disc fragment at the L2-3, 3-4 and 4-5 levels, and mild to moderate disc bulge at T11-12, and a mild L5-S1 disc bulge with mild left subatricular stenosis (Ex. F). There is no evidence that Claimant had any pain in his back or numbness in his leg prior to August 2003. The medical records fail to indicate that Claimant obtained any follow-up care after his August 2003 episode.

Five months later, however, on January 4, 2004, Claimant began experiencing a charley horse pain in his left leg. He went to the emergency room at Cox Medical Center for treatment. The emergency room physicians ordered an MRI, directed Claimant to be off work, and referred Claimant to Dr. Mark Crabtree, a neurosurgeon. The following day, Claimant provided his supervisor and operations manager, Steven Breesawitz, a note to remain

off work and advised him of his appointment with Dr. Crabtree.

On January 6, 2004, Claimant saw Dr. Crabtree who ordered a myelogram and directed Claimant to remain off work. Claimant then went to Employer and obtaine