Dwight Watson v. Ameristar Hotels and Resorts

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 May 3, 2007. The award and decision of Administrative Law Judge Margaret D. Landolt, issued May 3, 2007, 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 $5^{\text {th }}$ day of October 2007. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

AWARD

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: October 16, 2000
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 lifting chafing pans when he felt pain in 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: Low back
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 84,489.66
16. Value necessary medical aid paid to date by employer/insurer? $\ 188,191.58

Employee: Dwight Watson Injury No.: 00-176994 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: Unknown 19. Weekly compensation rate: $\$ 364.72 / \ 314.26 20. Method wages computation: Stipulation

1. Amount of compensation payable:

Permanent total disability benefits from Employer beginning July 13, 2005, and thereafter for Claimant's lifetime

A hearing was held on February 15, 2007, at the Division of Workers’ Compensation in the City of St. Louis. Dwight Watson (Claimant) was represented by Ms. Linda Powers. Ameristar Hotels and Resorts (Employer) and its Insurer, American Protection Insurance Company, were represented by Mr. Martin Klug. The Second Injury Fund was represented by Assistant Attorney General Eileen Krispin. Ms. Powers requested a fee of 25% of Claimant’s award.

The parties stipulated that on or about October 16, 2000, Claimant sustained an accident arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis; Employer received proper notice of the injury; and the claim was timely filed. The parties further stipulated the applicable rates of compensation are 364.72 for total disability benefits and 314.26 for permanent partial

disability benefits. Employer has paid $\ 84,489.66 in TTD benefits through the date of hearing for a period of 231 $5 / 7$ weeks of compensation and has continued to pay TTD benefits. Employer also paid medical benefits of $\ 188,191.58.

The issues for resolution by hearing are medical causation; liability of Employer for future medical treatment; what is the nature and extent of permanent disability sustained by Claimant; and what is the liability of the Second Injury Fund.

Claimant is a 48 year old man who is not currently married. He has six children, two of whom are dependent upon him for support, his eleven year old son and a four year old girl who he is in the process of adopting. Claimant completed the 10th grade and started on the $11^{\text {th }}$, but never received his GED. Claimant had learning difficulties, and has always had trouble with math, English, and writing.

For twenty years, Claimant worked for Employer as a banquet set-up waiter. His job involved moving tables and chairs, setting up catering jobs, and waiting tables. The job involved heavy lifting and was very physical. Claimant has had no other jobs outside of the banquet/catering industry. Prior to October 2000, Claimant never experienced problems or injuries with his back, or sought medical treatment for his back. He worked overtime as needed and he sometimes worked 12 -hour days.

On October 16, 2000, while lifting chafing pans, Claimant felt a pull with numbness and tingling down his left leg. He finished his shift. He continued to work through October and November, although he was having trouble with his back and left leg. On December 1, 2000, he was setting up a dance floor, and he felt a hard pull on his left side. This pain was in the same place as before, but was more intense. Claimant continued to work after that incident.

In December, Claimant saw Dr. Simpson, his personal physician. Dr. Simpson ordered an MRI which was performed on February 6, 2001, and revealed a large disc protrusion at L4-5 causing severe spinal canal stenosis and a broad disc herniation at L3-4 causing moderate spinal canal stenosis. There was also a disc bulge at L2-3. He also saw a chiropractor who referred him to a neurosurgeon. Employer then sent him to Dr. Covert, and he was eventually referred to Dr. Paul Young. Dr. Young performed an L5-S1 microdiscectomy on June 12, 2001. The postoperative diagnosis was noncontained extrusion of L5-S1, left. Following his surgery, Claimant underwent physical therapy.

Claimant testified his back got worse after his first surgery. Dr. Young recommended a second surgery which was performed on October 19, 2001. Claimant underwent a repeat lumbar microdiscectomy L5-S1, left. The postoperative diagnosis was recurrent disc herniation, L5-S1, left. Claimant had additional physical therapy following his second surgery.

Claimant returned to work after his second surgery for a short time, but had to be taken off work again when his symptoms increased. Dr. Young referred Claimant to Dr. Cantrell who ordered a Functional Capacity Examination. Claimant's FCE revealed Claimant was unable to function in the work demand level of a banquet server due primarily to his inability to carry a 30-pound food tray for greater than 105 feet. It was noted Claimant exerted acceptable effort. He had consistent subjective pain complaints, and exhibited physiological responses to pain with an increase of heart rate, sweating, and facial grimacing. Waddell signs were negative. Following his FCE, Claimant experienced an increase in symptoms which required him to go to the emergency room for treatment.

Because he was still in pain, Claimant was eventually referred to Dr. Scodari on July 1, 2002. After reviewing an MRI, Dr. Scodari felt Claimant had a large herniated disc at L5-S1 associated with significant scarring and degenerative disc disease. He recommended a posterior decompression, discectomy and possible fusion.

Before attempting a third surgery, Claimant attempted conservative treatment through Dr. Graham, a pain management specialist, who evaluated Claimant on July 24, 2002. He felt he had little to offer Claimant in the way of treatment and referred Claimant to Dr. Kennedy. On January 28, 2003, Dr. Kennedy performed Claimant's third

surgery, a lumbar laminectomy L4-5, and posterior spinal fusion with left iliac crest bone graft and Steffe instrumentation at L4-5. The postoperative diagnoses were recurrent herniated disc L4-5, transitional left; and transection of S1 nerve root L5, transitional. Following his third surgery, Claimant went to another rehabilitation program. Eventually, Claimant returned to work after his third surgery, but was unable to do his job and had more pain management.

Following Claimant's return to work, his symptoms increased. On January 13, 2004, Dr. Kennedy stated that in terms of the work injury, Claimant was at maximum medical improvement. He imposed permanent lifting restrictions of no lifting over ten pounds, and no bending, twisting or stooping. He stated Claimant would likely require ongoing treatment to include medicine in the future. Following a myelogram, Dr. Kennedy performed a fourth surgery on November 9, 2004. Claimant underwent a removal of instrumentation, exploration of fusion mass L4-5; right iliac bone graft harvest with Helios aspiration, decompressive laminectomy L3-4; and pedicle screw fixation and fusion L2-L4. The postoperative diagnoses were juxtafusional stenosis L2-4; and status post L4-5 fusion. Following his fourth surgery, Claimant was referred to Dr. Rachel Feinberg for pain management.

Dr. Feinberg treated Claimant extensively with injections, medications and exercise. Claimant felt somewhat better. On July 13, 2005, Dr. Kennedy found Claimant to be at MMI. He stated he felt it was unlikely Claimant would be able to return to work in a gainful capacity because of the ongoing pain he has, his difficulty with sitting or standing for more than a few minutes at a time without alternating positions, and a need for ongoing pain medications. Dr. Feinberg, on September 26, 2005, opined Claimant was completely and totally disabled and would need future ongoing narcotic medication and medication management. Claimant last saw Dr. Feinberg two month