Department of Labor and Industrial Relations of Missouri
Jefferson City, Missouri
Dependents: N/A
Employer: Tracker Marine LLC
Additional Party: Second Injury Fund
Insurer: St. Paul Fire \& Marine Insurance Company
Hearing Date: May 9, 2007
Checked by: $\mathrm{RHH} / \mathrm{meb}$
FINDINGS OF FACT AND RULINGS OF LAW
- Are any benefits awarded herein? Yes
- Was the injury or occupational disease compensable under Chapter 287? Yes
- Was there an accident or incident of occupational disease under the Law? Yes
- Date of accident or onset of occupational disease: August 7, 2001
- State location where accident occurred or occupational disease was contracted: Greene County, Missouri
- Was above employee in employ of above employer at time of alleged accident or occupational disease?
Yes
- Did employer receive proper notice? Yes
- Did accident or occupational disease arise out of and in the course of the employment?
Yes
- Was claim for compensation filed within time required by Law? Yes
- Was employer insured by above insurer? Yes
| 11. | Describe work employee was doing and how accident occurred or occupational disease contracted: |
| While lifting a boat hull, claimant injured 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: back |
| 14. | Nature and extent of any permanent disability: 30 percent permanent partial disability to the body as a whole |
| 15. | Compensation paid to-date for temporary disability: $14,232.24 |
| 16. | Value necessary medical aid paid to date by employer/insurer? $89,979.33 |
| 17. | Value necessary medical aid not furnished by employer/insurer? |
| 18. | Employee’s average weekly wages: $375.71 |
| 19. | Weekly compensation rate: $250.34 |
| 20. | Method wages computation: Stipulation |
| 21. | COMPENSATION PAYABLE |
| 21. | Amount of compensation payable: |
| No amount is awarded for past medical care. |
| 45 3/7 weeks of temporary total disability |
| No amount is awarded for temporary partial disability benefits. |
| 120 weeks of permanent partial disability from Employer |
| 30,040.80 |
| 22. | Second Injury Fund liability: Yes |
| 25.7 weeks of permanent partial disability from Second Injury Fund |
| 6,433.74 |
| Total: |
| $47,847.13 |
| 23. | Future requirements awarded: None |
| Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. |
| 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: |
FINDINGS OF FACT and RULINGS OF LAW:
Employee: John R. Wheeler
Injury No: 01-094760
Before the
DIVISION OF WORKERS'
COMPENSATION
Department of Labor and
Industrial Relations of Missouri
Jefferson City, Missouri
Dependents: $\quad \mathrm{N} / \mathrm{A}$
Employer: Tracker Marine LLC
Additional Party Second Injury Fund
Insurer: St. Paul Fire \& Marine Insurance Company
Checked by: $\mathrm{RHH} / \mathrm{meb}$
The parties presented evidence at a hearing on May 9, 2007. The hearing was left open for 30 days following the hearing in order for the employer and insurer to provide additional evidence regarding the issue of temporary partial disability. Claimant appeared in person and through his attorney, Gary Matheny. Employer and insurer appeared through their attorneys, Robin Bullock and Lucas Smith. At the hearing the following issues were presented for determination: 1) The liability of employer and insurer for temporary total disability benefits, with employee requesting temporary total disability benefits from March 11, 2002, to January 5, 2003, and from January 6, 2003, to November 20, 2003. 2) The liability of employer and insurer
for temporary partial disability benefits from August 7, 2001, to March 9, 2002. 3) The liability of employer and insurer for past medical care in the amount of $\ 276.84 as a result of an emergency room visit to St. John's Hospital by claimant on February 12, 2003. 4) The nature and extent of claimant's permanent partial disability.
The parties agreed that claimant's average weekly wage was $\ 375.71, resulting in a workers' compensation rate for all purposes of $\ 250.34. Medical benefits were paid in the amount of $\ 89,979.33. Temporary total disability benefits were paid in the amount of $\ 14,232.24 at the agreed upon rate for $566 / 7$ weeks.
Claimant was an employee of Tracker Marine, working in Bolivar, Polk County, Missouri. His basic job was as a fabricator, manufacturing small parts. However, on August 7, 2001, while lifting a boat hull with another employee, he hurt his back. He testified that his back immediately hurt worse than when he had been shot by a shotgun. He felt an electric-like shock radiating down both legs to his feet and toes. Claimant was originally treated by Drs. Woodward and Mauldin, Physiatrists, of Springfield, Missouri. He received epidural steroid injections from Dr. Mauldin, and he was treated with physical therapy. An MRI scan of claimant's back on October 24, 2001, indicated that claimant had a bulging disc at L4-5. Ultimately, claimant was released by Dr. Mauldin on February 25, 2002, finding that claimant had reached maximum medical improvement and finding that claimant was able to work at the medium work demand level. Dr. Mauldin's assessment, in part, was based on a functional capacity evaluation performed on February 21, 2002. Dr. Mauldin rated claimant as having a 5 percent body as a whole permanent partial impairment. Claimant did not return to work because of his restrictions and was subsequently laid off by Tracker Marine. Claimant testified that he continued to have back problems. However, claimant also applied for unemployment compensation benefits which he received from March 16, 2002, through September 10, 2002.
On June 25, 2002, Dr. Timothy Graven examined claimant. He reviewed claimant's MRI and opined that claimant had degenerative disc disease, along with a chronic lumbosacral strain and lumbar radiculopathy. He recommended a discogram if EMG and nerve conduction studies were normal. Claimant later was examined by Dr. Jerome Levy for a rating report which Dr. Levy issued on October 3, 2002. Dr. Levy found claimant was at maximum medical improvement and rated claimant as having a disability of 25 percent of the body as a whole.
Claimant continued to have problems with his back and on his own went to Dr. Thomas Briggs, a board-certified neurosurgeon. Dr. Briggs reviewed the October 24, 2001, MRI and opined that claimant had a degenerative disc at L4-5, along with a central disc herniation, mild to moderate in size. Dr. Briggs believed that a discogram was appropriate. A discogram was performed and confirmed the annular tear at L4-5. As a result of the discogram, Dr. Briggs recommended surgery for a lumbar fusion when Dr. Briggs reexamined claimant on July 30, 2003. On November 20, 2003, Dr. Briggs performed a lumbar discectomy at L4-5 with posterior lumbar interbody fusion with peek cage insertion and posterior lateral fusion with instrumentation. Dr. Briggs continued to treat claimant following his surgery, ultimately referring claimant to Dr. Ted Lennard, a physiatrist. Dr. Lennard continued to treat claimant for several months, providing him with prescriptive medications and a rehabilitation program. Claimant underwent an additional functional capacity examination on December 16, 2004. Dr. Lennard then issued a report on December 21, 2004, indicating that claimant had reached maximum medical improvement. He imposed a permanent 25-pound lifting restriction with occasional bending. Dr. Lennard rated claimant as having a 20-percent permanent partial impairment to the body as a whole.
Claimant's attorney sent claimant for a rating examination to Dr. Theodore Sandow, a board-certified orthopedic surgeon, who found that claimant had a permanent partial disability of 30 percent to the body as a whole as a result of his injury and subsequent surgery. He further opined that claimant should avoid repetitive bending, stooping, twisting, or lifting over 20 pounds. Claimant later obtained the services of the
attorney who presented claimant's case at hearing, Gary Matheny. Mr. Matheny sent claimant to Shawn Berkin, a board-certified osteopathic physician, who rated claimant on February 28, 2006, finding that claimant sustained a permanent partial disability of $421 / 2$ percent to the body as a whole based upon his back injury at work. He found that claimant should avoid excessive squatting, kneeling, stooping, turning, twisting, lifting, and climbing. He further indicated that claimant had a 20-pound lifting restriction from floor to waist as a single event and a 10-pound lifting restriction from the waist to the level of the shoulder.
It is clear from claimant's testimony that he continues to have significant back pain and limitations in his ability to work. Claimant testified that he has constant muscular pain in his low back, that he cannot sleep at night, that he has difficulty walking across uneven ground, and that his back problems have aggravated a previous knee injury. He stated that he would use various mechanical devices or carts to assist him with moving objects rather than having to lift them. He avoids bending at the waist or lifting items that are too heavy. He also indicated that he would ask other people to assist in lifting. He also indicated that, upon lifting items that he believed were too heavy, he would put them back down and find another way to move them.
It is clear from the testimony of claimant's current supervisor at work for Poor Boy Tree Service, Rowdy Loyd Routon, that claimant's work involved significant physical labor. Mr. Routon stated that he has observed claimant performing strenuous lifting without any indication of pain or discomfort. He also indicated that he has