Chris Idol v. Zimmer Companies, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-018643

Employee: Chris Idol

Employer: Zimmer Companies, Inc. (Settled)

Insurer: Travelers Indemnity Company of America (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: February 22, 2000

Place and County of Accident: Jackson County, Missouri

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 April 19, 2007. The award and decision of Administrative Law Judge Mark S. Siedlik, issued April 19, 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 $2^{\text {nd }}$ day of November 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: February 22, 2000.
5. State location where accident occurred or occupational disease was contracted: Jackson 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 occurred or occupational disease contracted: Claimant slipped and fell from a ladder, injuring his neck and 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: 27.5 percent whole body.
15. Compensation paid to-date for temporary disability: $\ 4,381.39.
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,654.18.
17. Value necessary medical aid not furnished by employer/insurer? N/A.
18. Employee's average weekly wages: Unknown.
19. Weekly compensation rate: $\$ 358.95 / \ 303.01.
20. Method wages computation: By agreement

1. Amount of compensation payable: unpaid medical expenses weeks for temporary total disability (temporary partial disability) weeks for permanent partial disability from employer weeks of disfigurement permanent total disability benefits from employer
2. Second Injury Fund liability: $\ 8,181.27 (27 weeks)

1. Future requirements awarded: N/A

Said payments to begin as of the date of the award.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Mr. Michael Matteuzzi.

Employee: Chris Idol

Injury No. 00-018643

Dependents: N/A

Employer: Zimmer Companies, Inc.

Insurer: Travelers Indemnity Company of America

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: November 11, 2006

Checked by: MSS/lh

This case comes on for hearing on November 13, 2006, before Administrative Law Judge Siedlik in Kansas City, Missouri. Jurisdiction is appropriate in Kansas City pursuant to $\S 287.110$. The Claimant, Chris Idol, appeared in person with his counsel Mike Matteuzzi. The Second Injury Fund appeared through their counsel, Ms. Maurine Shine. The issue to be resolved is the liability of the Second Injury Fund for three separate dates of injury.

The parties stipulated that the Claimant is bringing three separate claims of injury: First date of injury is February 22, 2000; the second of November 9, 2001; and the third on or about April 1, 2003, and at the time of those injuries, the Claimant was covered under the Missouri workers' compensation law. All injuries occurred in Jackson County, Missouri. The Claimant has offered and exhibits were admitted into evidence comprising Claimant's A through K. The Second Injury Fund offered Second Injury Fund Exhibit 1, the deposition of Chris Idol, which initially at trial was not admitted into evidence and after further review is now considered as part of the evidence in this trial.

I show the disputed issues to be resolved in each of these cases as the compensation rate as well as the liability of the Second Injury Fund.

At the time of trial, the Claimant is a 55-year-old male who lives with his wife in Grandview, Missouri. The Claimant was a high school graduate in 1970 with no further education or training beyond high school. After graduating from high school, the Claimant held jobs in maintenance, home repair and auto supply and machine shops. The Claimant was self-employed for approximately 20 years at Idol Maintenance Company performing painting, electrical, carpentry work, lawn and grounds maintenance work, which at times was full-time and at times part-time employment with other employers.

In 1999, the Claimant went to work for Zimmer Property Management Company performing maintenance work, which included electrical, plumbing, heating, cooling, and carpentry work, as well as snow removal. On February 22, 2000, the Claimant was injured when while working up in the ceiling trying to pass telephone wires across the top of a hallway into an adjacent room, the Claimant was standing on top of file cabinets and slipped and fell from where he was standing. The Claimant initially fell backwards hitting his lower back directly on the edge of a file cabinet and then fell forward face first striking his face and head directly on a concrete floor after approximately a 5 -foot drop. The Claimant reported the injury but continued working. The Claimant was initially seen at Occupational Medicine Associates on March 2, 2000, where he was diagnosed with a cervical strain and lumbosacral strain and underwent physical therapy, which increased his pain to the point as of March 15, 2000, he could no longer go to work. On March 17, 2000, the Claimant had x-rays taken at Occupational Medicine Associates which revealed an intact fusion with no bony injury which could be identified to his preexisting cervical fusion. Due to the Claimant's continued pain, the Claimant saw Dr. Prohaska, his personal physician, who ordered an MRI scan on March 20, 2000, which revealed the central disk herniation at C5-C6 with mild stenosis. There was moderate neural foraminal right-sided stenosis at C6-7 from a large osteophyte. Claimant's fusion of his neck from a prior unrelated-to-work injury remained solid. At C7-T1 there was significant central bulging with moderate severity bilateral neural foraminal stenosis at C7-T1. Due to significant pain, Dr. Prohaska hospitalized the Claimant from March 21 through March 25 during which time a morphine pump was administered for pain relief.

The Claimant was subsequently seen by Dr. Clough who ordered a CT myelogram of the cervical and lumbar spine, which revealed a left-sided C5-C6 disk herniation, and a possible disk herniation at C6-7 on the right. There were also central disk bulges in the lumbar region at L2-3, 3-4 and L4-5. Upon release from the hospital, the Claimant was referred to Dr. Zarr, who treated the Claimant with cervical steroid injections administered by Dr. Morgan at St. Joseph's Health Center. The Claimant was prescribed work hardening, which the Claimant attended at HealthSouth starting in May 2000. Due to increased pain, the Claimant began drinking heavily, became depressed and suicidal and was admitted to Menorah Psychiatric where electroconvulsive therapy was administered for his profound depression. Two months later, the Claimant was admitted to Research Psychiatric for suicidal gestures. After the psychiatric hospitalizations, the Claimant returned to Dr. Zarr on July 20, 2000. The Claimant had work hardening and received some relief from the cervical epidural steroid injections. Dr. Zarr released him from care on September 5, 2000. The Claimant returned to work on September 6, 2000, but was sent home and the next day terminated. The Claimant then went to work for Life Care Center of Grandview on September 12, 2000, performing maintenance work. At that point, the Claimant's problems were progressing. The Claimant was having neurological deficits involving his right upper extremity, which caused him difficulty performing his work. An EMG, a nerve conduction velocity study was performed by Dr. Allen, which revealed an inactive C6-7 radiculopathy with progressive dysfunction and a C7-C8 dermatomes. An MRI scan of the brachial plexus was negative for any mass. The MRI scan of the cervical spine revealed disk osteophyte complex in the lateral recess of C7. There were moderate changes at C5-6 as well as C7-T1 with broad based disk osteophyte complexes and borderline stenosis involving the neural foramen at these levels. In April 2001 the Claimant was terminated from Life Care, and took a position with the Greens At Creekside, as a maintenance engineer in the assisted living apartments and nursing home. The Claimant continued to be symptomatic and saw Dr. Hylton on August 9, 2001 and September 6, 2001. After reviewing the Claimant's medical history and information, Dr. Hylton expressed an opinion that there was C8 and some degree of C7 central dysfunction. Dr. Hylton offered the Claimant a decompression of the lateral recess and foraminotomy on the right side at C6-7 and C7-T1. A repeat electrodiagnostic study was performed by Dr. Allen which revealed some regenerative changes in C8 and T1 innervated muscles. There was still denervation persisting at C7. At that point the Claimant's deficits seemed to be stabilizing instead of progressing. When the Claimant saw Dr. Hylton on February 21, 2002, Dr. Hylton felt that the Claimant was best treated nonoperatively at that point and indicated he was at maximum medical improvement. In the mean time, the Claimant was having increasing problems with his low back. There was no new specific injury, but he was relating the low back problems to the February 2, 2000 injury. The employer and insurer refused to authorize treatment to the low back and the Claimant sought treatment on his own which included three lumbar steroid injections. Claimant saw Dr. Zarr on July 9, 2002, and told Dr. Zarr about his lumbar problems and at that point Dr. Zarr assigned 10 percent permanent partial disability to the whole body for the cervical injury and was silent as to any disability to the low back.

On November 19, 2001, the Claimant had a work injury while trying to move an air conditioner through a door frame, when he struck his left elbow and metal door frame, resulting in a fracture. This fracture was treated in a closed fashion. Due to the ongoing problems with intermittent olecranon bursal swelli