William Bea v. Irvinbilt Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-161842

Employee: William Bea

Employer: Irvinbilt Company

Insurer: Transcontinental Insurance Company

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

Date of Accident: November 26, 2001

Place and County of Accident: Boonville, 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 July 23, 2007. The award and decision of Administrative Law Judge Ronald F. Harris, issued July 23, 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 $16^{\text {th }}$ day of January 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Billy Bea

Injury No. 01-161842

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

Before the

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: November 26, 2001.
5. State location where accident occurred or occupational disease was contracted: Boonville, 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:

Employee was reaching to pick up some 2x4’s to hand down to a co-worker and felt immediate pain in his lower 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: BAW/Back. 14. Nature and extent of any permanent disability: See award. 15. Compensation paid to-date for temporary disability: $\ 61,048.85. 16. Value necessary medical aid paid to date by employer/insurer? $\ 79,108.08. 17. Value necessary medical aid not furnished by employer/insurer? See award. 18. Employee's average weekly wages: $\ 317.72614 .00. 19. Weekly compensation rate: $\$ 211.82409 .33 / \ 329.42. 20. Method wages computation: By agreement.

1. Amount of compensation payable: TTD $\ 18,653.58 (5-14-04 through 3-29-05) - $\underline{9,882.60} (Advance to Employee) 8,770.98 ( Net) MEDICAL \pm 68,881.35

TOTAL: \mathbf{\$ 7 7 , 6 5 2 . 3 3}$ 22. Second Injury Fund liability: None.

Employee: Billy Bea

"Fund"). Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

The parties stipulated to the following:

1. Employee filed a timely Claim for Compensation and both the Employer/Insurer and the SIF filed timely answers.
2. On November 26, 2001, both the employee and the employer were operating under the provisions of the Workers' Compensation Act.
3. Employer was insured for workers' compensation.
4. Employee sustained an injury by way of an accident arising out of and in the course of employment.
5. Employee's average weekly wage was $\ 614.00 equating to a rate of $\ 409.33 for both temporary total disability (TTD) and permanent total disability (PTD) and a rate of $\ 329.42 for permanent partial disability (PPD).
6. Employer/Insurer has paid TTD benefits in the amount of $\ 61,048.85 representing a time period of November 27, 2001 through May 13, 2004.
7. Employer/Insurer has provided medical aid in the amount of $\ 79,108.08.
8. Employer/Insurer has paid employee an advance in the amount of $\ 9,882.60 to be credited against future benefits.

The following were identified as disputed issues to be resolved:

1. Is Employee entitled to TTD benefits from May 14, 2004, through March 29, 2005?
2. Liability for medical expenses pertaining to a second back surgery;
3. Nature and extent of disability PTD v. PPD; and
4. Second Injury Fund liability

Employee's Exhibits A, B, C, and D were admitted into evidence. Employer/Insurer Exhibits 1 and 3 were admitted without objection. Employee objected to Employer/Insurer Exhibit 2, not on the basis that it did not meet the complete medical report requirement of 287.210 , but rather on content arguing that the doctor allegedly did not apply the appropriate statutory standard when giving his opinion on whether the second back surgery was the result of the work related injury. Employee's objection goes to the weight to be given the evidence rather than to its admissibility, therefore the objection is overruled.

Certain exhibits offered into evidence contained handwritten markings, underlining and/or highlighting on portions of the documents. Any extraneous markings on the exhibits were present when offered into evidence and were not made by the undersigned. Further, any such notes, markings and or/highlights were ignored by the undersigned in arriving at a decision.

Employee's attorney requests a 25 % fee on any benefits awarded. Any objections not specifically addressed are overruled.

Only testimony necessary to support this award will be reviewed and summarized.

On November 26, 2001, Employee was working on a construction project at a water treatment plant in Boonville, Missouri. Just prior to the Thanksgiving holiday, the employer had poured concrete and on November 26 the employee and some co-workers were taking apart the wooden forms which had been holding the concrete while it set up or hardened. Employee was on top of a wall, approximately 17 feet in the air, when he reached over and out to pick up some $2 \times 4$ 's to hand down to a co-worker. He felt an immediate onset of pain in his lower back and called over a co-worker to assist him in getting down off the wall. The incident was reported to the supervisor and he was taken to the Boone County Hospital emergency room.

Employee presented to the emergency room with complaints of pain in his left lower back, with pain radiating down into his left leg. He was referred to Dr. Tate who treated him from November 30, 2001, to January 16, 2002. Dr. Tate recommended physical therapy, ordered an MRI on December 28, 2001, and an epidural steroid injection on January 11, 2002. Due to continuing back pain with radiation, Dr. Tate then referred employee to Dr. Blake Rodgers for an orthopedic consultation. Following review of x-rays and the MRI, Dr. Rodgers concluded the findings on the MRI were more impressive than the report indicated. He noted the disk herniation was bigger, central, and that it did contact the neural elements, even though the radiologist did not think so. The doctor recommended surgery and discussed the procedures for a diskectomy and an in situ fusion. He also explained to the employee that a certain percentage of people did not improve following surgery and might require further surgery in the future, perhaps in the form of a revision to an instrumented fusion (Employer/Insurer Exhibit 2, tab 3 report dated 2-16-02). In a letter to the insurance company dated October 24, 2003, in response to a request for a disability rating, Dr. Rodgers noted that the in situ fusion was an attempt to avoid any type of large instrumented fusion.

On February 22, 2002, Dr. Rodgers performed an L5-S1 diskectomy with in situ fusion using left iliac crest marrow

harvest (Employee's Exhibit A, St. Mary's Health Center Records). The leg pain seemed to improve following the surgery, but no improvement was noted with respect to either the back pain or the right foot numbness. Employee attended follow-up visits with Dr. Rodgers on March 7, April 9, May 30, and August 27, 2002. Dr. Rodgers noted employee really was not doing much better and that the doctor "was not quite sure what to make of that," noting at the final visit on August 27, 2002, employee clearly was still having significant limitations. At that visit, employee also complained of shoulder pain, which the doctor suggested should be discussed with the insurance company. Even though there had been little improvement following the back surgery, Dr. Rodgers released the employee at MMI as of August 27, 2002.

Employee then was referred to Dr. Garth Russell for shoulder complaints that had developed since the injury. Dr. Russell opined that the left shoulder problems were secondary to the use of a cane following the injury and back surgery. Employee was then referred to Dr. Snyder who, following injections and physical therapy, performed a closed manipulation and arthroscopy of the left shoulder on March 4, 2003. After little improvement, Dr. Snyder again performed a closed manipulation with a cortisone injection on October 3, 2003. Again little improvement was noted and Dr. Snyder referred the employee to Dr. Spezia for a second opinion.

Dr. Spezia saw employee on February 25, 2004, and recommended additional surgery to the shoulder. Employer/insurer authorized the surgery and on March 25, 2004, Dr. Spezia performed a manipulation with arthroscopy and debridement. Following another course of physical therapy, the doctor released employee at MMI for the left shoulder on May 12, 2004, at which time treatment and benefits ceased.

Employee continued to experience ongoing problems with back pain and right foot numbness following his release from treatment for the back in August 2002 and returned to see Dr. Rodgers on August 17, 2004. Dr. Rodgers recommended additional surgery to the back and on September 29, 2004, performed a revision surgery, this time fusing L4-S1 with cages and rods. Dr. Rodgers assessed a 10 % permanent partial disability to the body as a whole following the first back surgery. On September 1, 2005, the doctor increased that to 12 % permanent partial disability to the body as a whole and imposed permanent restrictions of not lifting more than 10 pounds, frequent sitting and no significant bending or lifting. However, the doctor indicated that he could not with a reasonable degree of medical certainty say that the second back surgery was directly related to the November 2001 injury. Employee continues to follow up annually with Dr. Rodger