James Garth v. Dillon Companies, Inc.

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: September 15, 2002.
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone 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? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was taking product off a pallet and loading it onto a cart. He lifted product, weighing approximately 70 pounds; and when he turned, he injured his 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: Lower back.
14. Nature and extent of any permanent disability: 15 % permanent partial disability of the body as a whole.
15. Compensation paid to-date for temporary disability: $\ 693.98.
16. Value necessary medical aid paid to date by employer/insurer? $\ 8,650.28.
17. Value necessary medical aid not furnished by employer/insurer? None.
18. Employee's average weekly wages: $\ 441.60.
19. Weekly compensation rate: $\ 294.41.
20. Method wages computation: Stipulation.

1. Amount of compensation payable: 60 weeks of permanent partial disability benefits, $\mathbf{1 7 , 6 6 4 . 6 0}$
2. Second Injury Fund liability: (deferred)

1. Future requirements awarded: 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Marvin Tofle

Employee: James Garth

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Dillon Companies, Inc.

Additional Party: Second Injury Fund (deferred)

Insurer: Self-Insured

Checked by: RJD/tmh

The evidentiary hearing was held in this case on September 11, 2006, in Columbia. The hearing was held to determine the nature and extent of Claimant's permanent partial disability and Employer's liability for future medical care, if any.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;

1. That venue is proper in Boone County;
2. That the claim for compensation against Employer was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
3. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
4. That the rates of compensation are $\$ 294.41 / \ 294.41, based on an average weekly wage of $\ 441.60;
5. That Claimant sustained an accident arising out of and in the course of his employment with Dillon Companies, Inc., on or about September 15, 2002;
6. That the notice requirement of Section 287.420, RSMo, is not a bar to this action;
7. That Dillon Companies, Inc., was an authorized self-insured for Missouri Workers' Compensation purposed at all relevant times;
8. That Employer-Insurer has paid medical benefits in the amount of $\ 8,650.28;
9. That Employer-Insurer has paid TTD benefits in the amount of $\ 693.98; and
10. That Claimant's claim against the Second Injury Fund would be deferred to a later hearing.

The evidence consisted of the testimony of Claimant, James Garth; the testimony of Burns Forsyth, Dana Sleeper, and Wayne Brondel; medical records; a narrative medical report of Dr. David T. Volarich; the deposition testimony of Dr. Dennis L. Abernathie; correspondence; and four DVDs of surveillance camera footage.

I find from the evidence that Claimant, James Garth, was born on August 8, 1953, and has a high school education, as well as several years of college and technical school. I find that Claimant has worked for Employer from 1997 through the date of the hearing. Employer operates retail grocery stores. Claimant has worked for Employer at the Gerbes store at 1729 West Broadway, and for the last several years has worked as a night stocker. Three nights each week, Claimant unloads a truck containing five tons or more of grocery products. These products are in boxes on pallets, usually held together with shrink-wrap. Claimant removes these pallets of product from the truck with the use of a pallet jack, and places them in the "back room," basically a mini-warehouse in the back of the store adjacent to the dock. There are generally 18-20 pallets, of which four-six may contain produce or meat; Claimant takes the produce and meat pallets directly from the truck into a cooler or freezer. The remaining 12-16 pallets must be manually "broken down" by Claimant, manually sorted by Claimant, and manually placed by Claimant onto large carts ("six-wheelers") to be used by other stockers to stock shelves. Claimant does all of the above-described work by himself, with no help. After Claimant completes the above-described work, he then manually stocks two rows of shelves in the store. The work Claimant performs was described by Claimant's direct supervisor, Dana Sleeper ("Grocery Manager"), and by Store Manager Wayne Brondel as being the most physically demanding work in the store. Both Sleeper and Brondel described Claimant as an excellent employee who performs his job very well.

As stipulated, I find that Claimant sustained a work-related injury on September 15, 2002, while working for Employer. On that date, Claimant had finished unloading the truck, and was in the process of breaking down the pallets, sorting product and loading up the six-wheelers. Claimant had picked up a case of kitty litter weighing approximately 70 pounds, and turned to put it onto a six-wheeler; in this process, Claimant felt a sharp pain in his back. Claimant stopped working, filled out an injury report, clocked out and went home.

Claimant was seen on the following day by Urgent Care physicians at the University of Missouri and was diagnosed with lumbar strain. He eventually was placed in a physical therapy program.

Claimant was referred to Dr. Dennis Abernathie of Columbia Orthopaedic Group; he first saw Dr. Abernathie on October 15, 2002. Dr. Abernathie testified that Claimant's neurologic examination on that date was fairly normal, but that Claimant "seemed to take pain very well. I thought that he was a little more uncomfortable than what he was admitting to."

On October 22, 2002, an MRI was performed. The MRI, according to Dr. Abernathie's testimony "was interesting that he had left-sided complaints of pain; on the MRI he had degeneration more on the right side. There was bulging of the disks, particularly at L3-4 and L5-S1. There was a degree of spinal stenosis or narrowing of the spinal canal at both of these levels. There was disk degeneration at L4-5. There may have been (a) herniated disk on the left side at L4-5." Dr. Abernathie testified that he was concerned about the bulging or possibly herniated disk at L4-5 on the left as being a potential source of Claimant's pain; therefore, he had a radiologist give Claimant a cortisone shot into the area on October 29, 2002. Claimant reported to Dr. Abernathie that the shot did not affect his pain, and thus Dr. Abernathie believed that this disc anomaly was not the source of the pain. Therefore, Claimant was treated with a brace and anti-inflammatory medications. Dr. Abernathie kept Claimant on a 25-pound lifting restriction for over three months. Dr. Abernathie released Claimant to full-time work on March 4, 2003, without specific restrictions, and estimated Claimant's permanent partial disability at 3 % of the body as a whole.

Claimant has continued to work in the same position, with the same duties, since March 4, 2003. As noted above, Claimant's superiors consider him to be an excellent employee who performs excellent work. Exhibits 1, 2, 3, and 4, all in evidence, are DVD discs containing footage from a store surveillance camera showing Claimant at work. These show Claimant breaking down the pallets, sorting the grocery items and placing them on the six-wheelers. This footage was taken within the past year. Assuming that this footage is representative of Claimant's work, Claimant is an excellent employee, indeed.

Claimant was evaluated on November 16, 2004, by Dr. David Volarich at the request of his (Claimant's) attorney. Dr. Volarich noted Claimant's complaints as being pain in his low back that radiates down the left leg to the foot level, and a pins and needles sensation in the left leg. According to Dr. Volarich, Claimant stated that he can do his job, "but when he gets off from work, he pays for it." Claimant also complained to Dr. Volarich that after work, he develops stiffness in his back and a pins and needles sensation down the left leg. Dr. Volarich's report in this regard is consistent with Claimant's testimony at the hearing. Dr. Volarich noted that walking caused increase in Claimant's back soreness, as well as mild weakness in the left calf. Claimant could squat to about $3 / 4$ of normal before he stopped because of low back discomfort. Claimant complained of low back pain with all motions, most severely with flexion. Dr. Volarich found a minor loss of range of motion in right lateral flexion, and a significant loss of range of motion in left lateral flexion. Dr. Volarich's diagnosis was "lumbar syndrome secondary to disc protrusions at L4-5 and L5-S1 to the right with a disc bulge at L3-4 centrally causing mild spinal stenosis." Dr. Volarich opined that Claimant sustained a permanent partial disability of 25 % of the body as a whole. Regarding Claimant's need for future treatment, Dr. Volarich stated:

In order to maintain his current state, he will require ongoing care for his pain syndrome using modalities including but not limited to narcotics and non-narcotic medications (NSAIDs), muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for symptomatic relief of his complaints.

Dr. Volarich also stated: "He is advised to pursue an appropriate stretching, strengthening, and range of motion exercise program in addition to nonimpact aerobic conditioning, such as walking, biking, or swimming to tolerance on a daily basis."

Permanent partial disability. It is clear that Claimant's back was asymptomatic prior to September 15, 2002. The MRI taken approximately five weeks after the accident showed some degree of degenerative disc disease, certainly not an unexpected finding in a 49-year-old. My impression of Claimant at the hearing is that he is a stoic individual. My impression appears to be consistent with Dr. Abernathie's initial impression that Claimant "seemed to take pain very well. I thought that he was a little more uncomfortable than what he was admitting to." Claimant's work ethic, as demonstrated by the video, is certainly not inconsistent with Claimant's stoic manner. The fact that Claimant has not complained of back pain to his supervisors within the last 18 months may not be particularly good evidence that Claimant has no such pain, but may merely be consistent with Claimant's stoic nature. As noted above, Claimant expressed complaints to Dr. Volarich in November 2004, the same complaints he expressed in his testimony at the hearing. Dr. Abernathie noted on March 4, 2003, when he released Claimant: "I believe he still has some pain in his back. He said that he's able to do what he needs to at work while he's trying to not do as much lifting as he could do and when he comes home from work his back stiffens up at the midline." I also note that Dr. Abernathie wrote the above when Claimant was still on a 25-pound lifting restriction. It is certainly expected that now, without restrictions, when Claimant is handling five tons of stock three days a week, he will continue to be symptomatic. The fact that he is a very hard worker with a stoic nature does not mean that he has less of a disability than someone who whines and complains at every opportunity. I find that Claimant has sustained a permanent partial disability of $\mathbf{1 5 \%} of the body as a whole. This entitles Claimant to \mathbf{6 0} weeks of benefits at the stipulated rate of \ 294.41, totaling $\ 17,664.60.

Claimant's claim for future medical benefits. Dr. Volarich's recommendations in this regard are quoted above. One of his recommendations was use of medications. Claimant's testimony did not mention any use of over-the-counter medications for his symptoms. The other recommendation was more physical therapy. Claimant testified that he would like to have more physical therapy; on the other hand, Claimant has been released from Dr. Abernathie's treatment for over three-and-a-half years and has not sought physical therapy nor any other treatment during that time, even though he stated (under questioning from his own attorney) that he has had group health insurance through his employment during this time.

Dr. Abernathie testified that he believes that, although Claimant does suffer from a permanent disability, he has reached maximum medical improvement from the 9/15/02 injury. Dr. Abernathie stated that Claimant is more susceptible to

re-injury now than he was before 9/15/02, and that, if reinjured, Claimant would indeed require more treatment.

Again, Claimant's failure to avail himself of any treatment opportunities for the last three-and-a-half years may have more to do with his stoic nature than anything else. Nevertheless, in my opinion, Claimant's history since March 4, 2003, leads me to believe that Dr. Abernathie's analysis of Claimant's medical needs is more accurate than that of Dr. Volarich. I believe that Claimant is not in need of additional medical treatment unless and until he suffers a re-injury. He has reached maximum medical improvement from the 9/15/02 accident. The claim for additional medical treatment is denied.

Claimant's attorney, Marvin Tofle, is allowed 25\% of all sums awarded hereunder as and for necessary attorney's fees, and the amount of such fees shall constitute a lien thereon until paid.

Interest shall accrue as per applicable law.

The claim against the Second Injury Fund is deferred.

Date: $\qquad

Made by: \qquad$

ROBERT J. DIERKES

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation