| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION |
| FINAL AWARD ALLOWING COMPENSATION |
| (Modifying Award and Decision of Administrative Law Judge) |
| Injury No.: 98-066010 |
| Employee: | Harold L. Gregory |
| Employer: | Detroit Tool & Engineering |
| Insurer: | CNA Insurance Company |
| Date of Accident: | June 19, 1998 |
| Place and County of Accident: | Laclede 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. Pursuant to section 286.090 RSMo, subsequent to reviewing the evidence and considering the entire record, the Commission modifies the award and decision of the administrative law judge dated October 12, 2006. The award and decision of Administrative Law Judge David L. Zerrer, issued October 12, 2006, is attached and incorporated by this reference. |
| I. Preliminary Matters |
| At the hearing before the administrative law judge the parties stipulated to the following issues: (1) whether the accident caused the injuries and disabilities for which benefits are presently being claimed; (2) whether the employee has sustained injuries that will necessitate future medical care and treatment to cure and relieve employee from the effects of the injury; and (3) the nature and extent of permanent disability. |
| After the case was submitted to the administrative law judge the following benefits were awarded: permanent total disability benefits and future medical care and treatment deemed reasonable and necessary to cure and relieve employee from the effects of the injury sustained. |
| The employer/insurer filed a timely Application for Review with the Commission alleging that the competent and substantial evidence only supported an award of permanent partial disability, in lieu of permanent total disability; and the competent and substantial evidence did not support an award of future medical care and treatment in behalf of the employee. |
| II. Facts |
| Employee was born May 20, 1945; employee attended public school through the tenth grade and received a GED in 1982; and as of the date of the accident, June 19, 1998, employee was married to Crystal Gregory, with four children being born of this marriage all of whom were emancipated as of the date of the accident. |
| On June 19, 1998, employee sustained injury due to an accident arising out of and in the course of his employment with employer. The principal body parts injured were the lower extremities and sacral area. Employer provided temporary total disability benefits on account of the injury and also provided medical care and treatment in the form of physical therapy, medications, sacral/low back injections as well as a TENS unit. |
| Due to this accident occurring June 19, 1998, employee treated with multiple physicians. One of the treating physicians was Dr. Lennard, who initially saw employee October 8, 1999. On October 8, 1999, Dr. Lennard administered an L5-S1 facet and left-sided sacroiliac joint injections; Dr. Lennard was of the opinion that employee attained complete relief of pain for approximately eight days due to these injections; subsequently on examination of October 29, 1999, Dr. Lennard prescribed a TENS unit for employee’s residual pain which helped significantly; employee followed up with Dr. Lennard on November 22, 1999, undergoing a normal neurological examination |
with no signs or symptoms of any lumbar radiculopathy and Dr. Lennard noted employee was quite content with the prescribed TENS unit.
On November 29, 1999, Dr. Lennard issued a final report and rating concerning employee. Dr. Lennard noted that employee had undergone extensive treatment at this point and in the opinion of Dr. Lennard employee had reached maximum medical improvement. The diagnosis of Dr. Lennard was lumbosacral strain, and Dr. Lennard was of the opinion that the employee had sustained 8 % permanent partial disability of the body as a whole referable to the lumbar spine resultant of the accident occurring June 19, 1998. Dr. Lennard encouraged employee to continue a home exercise program and recommended continuation of the TENS unit. Dr. Lennard imposed the following restrictions: avoid prolonged bending, may perform occasional lifting of 40 pounds and occasional standing. After being released to return to work by Dr. Lennard employee did so, and remained employed with employer until 2003. Employee returned to work with the employer in the same capacity prior to the accident occurring June 19, 1998, with appropriate accommodations being furnished by the employer throughout his continued employment.
Employee returned to work post-accident and continued to work for employer for approximately four to five years performing his same job duties (Tr. 49-50). Employee admitted that upon returning to his employment he "aggravated" his sacral area on two additional occasions (Tr. 50). Employee further testified that after the accident occurring June 19, 1998, he was able to walk; after the first accident upon returning to work he was able to walk; and after the second accident to the sacral area upon returning to work his condition had reached a point where he was unable to walk and even at times needed the assistance of his wife (Tr. 50).
Subsequent to being released to return to work by Dr. Lennard on November 29, 1999, employee testified that while at work, he was lifting parts weighing approximately 50-60 pounds and injured his sacral area (Tr. 53-54); employee reported the injury to the employer and employer authorized medical care and treatment due to this injury (Tr. 53-54); and employee cannot recall the date of this lifting incident in which he re-injured his sacral area (Tr. 53-54).
Employee further testified that a second subsequent lifting incident occurred after "lifting too much" at work (Tr. 54); employee described it as another "aggravation" (Tr. 54); employee could not recall the date of this second subsequent lifting incident but he did recall that it was attributable to lifting shafts at work (Tr. 54); the injury was reported to the employer with medical treatment being provided and employee never returned to work after the incident of lifting shafts (Tr. 54-55).
When questioned on cross-examination, employee testified that the subsequent two "aggravations" resulted in similar or same symptoms as the symptomatology attributable to the accident occurring June 19, 1998; however, his prior deposition testimony was that the two subsequent lifting incidents at work resulted in a worsening of symptoms and were in fact re-injuries (Tr. 56-57).
Employee did not receive any medical care and treatment subsequent to Dr. Lennard's release of November 29, 1999, until he saw Dr. Mutchler in October and November of 2000. Employee also returned to Dr. Mutchler in August of 2001. The Commission notes a chronology of employee's medical treatment is set forth in the vocational evaluation and report prepared in his behalf by Phillip Eldred, a certified rehabilitation counselor.
Boyd D. Crockett, M.D., testified in behalf of the employee; Dr. Crockett is a board certified physiatrist, and Dr. Crockett evaluated employee on September 7, 2005; Dr. Crockett was of the opinion that due to the accident occurring June 19, 1998, employee was suffering from several sacroiliac problems (Tr. 94-95); that due to these problems he would need ongoing medications (Tr. 95-96); and that employee was permanently totally disabled on account of this injury (Tr. 96).
Dr. Crockett also assigned an impairment rating of 20\% permanent partial disability of the body as a whole referable to the sacroiliac problems, and imposed the following restrictions: no lifting, pushing, pulling greater than ten pounds; no prolonged bending, kneeling or stooping; and limited repetitive handling of objects (Tr. 97).
On cross-examination Dr. Crockett admitted that he was not aware of any possible subsequent lifting injuries and/or accidents that employee may have sustained while working for employer (Tr. 103); Dr. Crockett further admitted that he did not obtain a history from employee concerning any additional lifting injuries or flare-ups while
at work and Dr. Crockett admitted that such information regarding any additional injuries could be useful information in order to render his opinions (Tr. 104); Dr. Crockett admitted that his assessment of disability and impairment were necessarily inclusive of all his total conditions at the time he evaluated employee which was September 7, 2005 (Tr.104); and Dr. Crockett admitted that he did not have copies of the medical records of the treating physicians subsequent to the accident occurring June 19, 1998, other than the medical records of Dr. Lennard (Tr. 106-108).
Mr. Phillip Eldred, a certified vocational rehabilitation counselor, evaluated employee and authored a rehabilitation consultation and evaluation report which included his vocational opinion that employee was not presently employable in the open labor market and that employee was permanently totally disabled. Mr. Eldred had employee's history of his two subsequent aggravations and/or injuries at employer, and his testimony, similar to the medical opinion rendered by Dr. Crockett, included employee's total condition as of April 20, 2006, which necessarily included the two additional injuries and respective residuals subsequent to June 19, 1998.
Ms. Gayle Hope, a certified rehabilitation counselor, testified in behalf of the employer. Ms. Hope performed a vocational assessment of employee, Ms. Hope identified transferable skills for the employee and Ms. Hope designated 12 jobs which she was of the opinion employee possessed transferable skills to perform.
Employee returned to Dr. Lennard March 5, 2004, for an independent medical evaluation; Dr. Lennard had not seen employee since November 29, 1999; at the visit of March 5, 2004, employee indicated to Dr. Lennard that he had some flare-ups of his sacral pain on two specific occasions at work; it was Dr. Lennard's understanding that employee continued to work for employer through June 2, 2002; additional history given Dr. Lennard was that on one occasion, while at work, employee was lifting "big, old shafts from a pallet, and had pain in his back"; employee could not remember the date but employee did described it as an increase in his normal baseline back pain; Dr. Lennard received additional history that on another subsequent occasion employee experienced an additional flare-up of pain lifting tooling into a machine on a continual basis; employee was not aware of the exact date but did tell Dr. Lennard that both of these two events were exacerbations of his previous problem.
Dr. Lennard performed a physical examination of employee on March 5, 2004, and had the following findings: employee remained tender to the right side of his lumbar spine; he maintained good motion of the spine; and had a normal neurological exam; Dr. Lennard also reviewed additional medical data and found that employee's low back was normal and his nerve study for the lower extremity was normal; employee also had undergone a normal discogram.
On March 5, 2004, Dr. Lennard supplied the following additional medical opinions: Dr. Lennard was of the opinion that employee suffered a 20\% impairment to the body as a whole; and Dr. Lennard apportioned 10\% to degenerative changes in employee's lumbar spine and 10\% apportioned to the accident occurring June 19, 1998; after reviewing an additional FCE, Dr. Lennard imposed restrictions of not to lift more than ten pounds and to maintain his prior restrictions of bending and stooping. When Dr. Lennard was asked to render opinions concerning the two subsequent events at employer, Dr. Lennard testified that when