James Hillis v. City of Cape Girardeau

Additional Party: Second Injury Fund

Insurer: Self-insured c/o Corporate Claims

Hearing Date: March 26, 2007

Checked by: JK/kh

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease? October 1, 2002 and January 28, 2003
5. State location where accident occurred or occupational disease contracted: Cape Girardeau 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? Undetermined
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured by above insurer? Self -insured
11. Describe work employee was doing and how accident happened or occupational disease contracted: For the October 1, 2002 claim under injury number 02-158218, the employee alleged that he injured his low back while lifting a generator. For the January 28, 2003 claim under injury number 03-009854, the employee alleged that he suffered a re-herniated disc at the L5-S1 level while bending over and picking up trash.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Alleged injuries to low back
14. Nature and extent of any permanent disability: Undetermined (primary claims against employer settled by compromise settlement agreement)
15. Compensation paid to date for temporary total disability: Undetermined
16. Value necessary medical aid paid to date by employer-insurer: Undetermined
17. Value necessary medical aid not furnished by employer-insurer: N/A
18. Employee's average weekly wage: $\ 510.69
19. Weekly compensation rate: $\ 340.12 per week for temporary total disability, permanent total disability and permanent partial disability.
20. Method wages computation: By agreement
21. Amount of compensation payable: The employee's claims against the employer were settled prior to the date of the hearing.
22. Second Injury Fund liability: None. Both Second Injury Fund claims are denied.

On March 26, 2007, the employee, James Hillis, appeared in person and by his attorney, Mr. Ed Gilkerson, for a hearing on his claims against the Second Injury Fund under injury number 02-158218 and injury number 03-009854. The employee's claims against the employer-insurer were settled prior to the date of the hearing. The Second Injury Fund was represented at the hearing by Assistant Attorney General Matt Edwards and Assistant Attorney General Frank Rodman. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. On or about October 1, 2002, the City of Cape Girardeau was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and it was duly qualified as a self-insured employer in care of Corporate Claims.
2. On or about October 1, 2002, James Hillis was an employee of the City of Girardeau, and was working under the provisions of the Missouri Workers' Compensation Act.
3. The employee's claim for compensation against the Second Injury Fund was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 510.69 per week and his rate of compensation is $\ 340.12 per week.
5. No medical aid was furnished by the employer-insurer.
6. No temporary total disability benefits were paid by the employer-insurer.

1. On or about January 28, 2003, the City of Cape Girardeau was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and it was duly qualified as a self-insured employer in care of Corporate Claims.
2. On or about January 28, 2003, James Hillis was an employee of the City of Cape Girardeau, and was working under the provisions of the Missouri Workers' Compensation Act.
3. The employer had notice of the employee's alleged accident.
4. The employee's claim for compensation against the Second Injury Fund was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 510.69 per week and his rate of compensation is $\ 340.12 per week.
6. The employer paid medical benefits totaling $\ 61,575.18.
7. The employer paid temporary total disability benefits in the amount of $\ 13,789.32.

1. Accident
2. Notice
3. Medical Causation
4. Liability of the Second Injury Fund

1. Accident
2. Medical Causation
3. Liability of the Second Injury Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Deposition of Dr. David T. Volarich

B. Deposition of Mr. James M. England Jr.

C. Medical records of Dr. Dennis Mollman of Neurosurgery and Neurology, LLC

D. Medical records of Dr. James Compton

E. Compromise Settlement Agreement under injury number 03-009854

F. Compromise Settlement Agreement and attached letter from the Department of Health and Human Services under injury number 02-158218.

Second Injury Fund Exhibits:

None offered

Based on the employee's testimony, the medical records and the other evidence admitted, I find as follows:

- At the time of the hearing James Hillis ("employee") was 59-years-old. The employee obtained his GED after leaving school at the end of the tenth grade. The employee had additional vocational training while employed by the City of Cape Girardeau in automotive, welding and small engines. The employee's work history included two years in the U. S. Army, operating heavy equipment at several landfills, and twenty-nine years of employment with the City of Cape Girardeau working at the landfill and in other departments in the public works area.

- On or about October 1, 2002 the employee and another co-worker were unloading a generator that weighed 75-100 pounds. The employee did not have any symptoms after lifting the generator, but three or four days later he developed pain in his right leg.

- The employee sought treatment for his leg pain from Dr. James Compton. Dr. Compton's October 4, 2002 records indicate the employee was complaining of pain behind his right knee. Dr. Compton notes that that the employee "denies any back pain, hip pain, no recent trauma or injuries" (Employee's exhibit D).

- Dr. Compton initially thought the employee might have a popliteal cyst, and ordered an ultrasound of his knee. The ultrasound was negative, and when the employee's leg pain increased, Dr. Compton ordered an MRI of the employee's low back. The MRI revealed the employee had a right postural lateral disc extrusion at the L5-S1 level that was displacing the S1 nerve root (Employee's exhibit D).

- After reviewing the MRI, Dr. Compton referred the employee to Dr. Dennis Mollman at Neurosurgery and Neurology, LLC in St. Louis. Dr. Mollman's initial record of November 13, 2002 indicates the employee was complaining of right leg pain, and Dr. Mollman stated "no specific onset of the pain is noted in terms of activities". Neither Dr. Compton's nor Dr. Mollman's records make any reference to the employee's L5-S1 herniated disc being related to the employee lifting a generator at work.

- Based on his review of the MRI, Dr. Mollman admitted the employee to St. Luke's Hospital and performed a L5-S1 microdiscectomy on November 13, 2002. The operative record indicates several large disc fragments were removed. Dr. Mollman's narrative indicates that even after he had removed all of the disc material from the disc space that could be removed, "re-inspection of the nerve root showed one more fragment which was dissected and removed with a blunt hook" (Employee's exhibit C).

- After the November 13, 2002 surgery, the employee was examined at Dr. Mollman's office on January 23, 2003 by Nurse Sherry Elze. Although the employee had significant improvement from his "pre-op status", the employee was still complaining of "intermittent low back ache as well as an occasional right lower extremity discomfort that is intermittent in nature and seems to be worse when turning or getting up from a sitting position that usually lasts thirty minutes and occurs daily" (Employee's exhibit C).

- At the time of this visit, the employee was released to return to work on Monday, January 27, 2003 on a light duty basis. The release indicated the employee should do no repetitive bending greater than ten times a day, and no lifting more than 35 pounds (Employee's exhibit C). On his second day of light duty on January 28, 2003, the employee was assigned to a job that required him to pick up trash and put it in a barrel. Although the employee was offered a stick with a nail on the end so he could avoid bending, the employee said the grass was tall and the ground was frozen, so the stick would not work. Rather than contacting his foreman, the employee decided to pick up the trash by bending over and using his hands. After performing this job for two or three hours, the employee was told by another supervisor to stop because of his restrictions. Although the employee continued working that day, the task of bending over and picking up the trash caused the employee's back to ache, and later that night the employee began experiencing back pain and pain in his right leg.

- The employee reported the increase in his symptoms to his employer, and Dr. Mollman subsequently ordered an MRI that was performed in February 10, 2003 at Southeast Missouri Hospital. The MRI showed the prior microdiscectomy at the L5-S1 level and a "small residual disc bulge just to the right of midline, but this is not sufficiently large to exert pressure upon the S1 nerve root" (February 10, 2003 MRI report, Employee's exhibit C; emphasis added).

- After reviewing this MRI, Dr. Mollman scheduled the employee for surgery on February 14, 2003. Dr. Mollman's diagnosis was "recurrent herniated nucleus pulposus, L5-S1, right." Dr. Mollman's operative record indicates he removed scar tissue from the S1 nerve root sleeve, and removed an additional fragment of disc material that