Joe Rigdon v. Tower Rock Stone Company

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 August 23, 2005, and awards no compensation in the above-captioned case.

The award and decision of Associate Administrative Law Judge Gary L. Robbins, issued August 23, 2005, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 15th day of April 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

- Did accident or occupational disease arise out of and in the course of the employment? No

- Was claim for compensation filed within time required by Law? Yes

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: Employee alleged that on April 9, 2004 he was driving a front-end loader on an uneven surface. He alleged that on multiple occasions the frond-end loader hit uneven ground jarring and jolting his neck and body as a whole causing injury.

- Did accident or occupational disease cause death? No

- Parts of body injured by accident or occupational disease: Employee alleges neck back and body as a whole.

- Compensation paid-to date for temporary total disability: None

- Value necessary medical aid paid to date by employer-insurer? None

- Value necessary medical aid not furnished by employer-insurer? \51,169.67

- Employee's average weekly wage: \ 800.00 per week.

- Weekly compensation rate: $\ 533.33 per week.

- Method wages computation: By agreement.

- Amount of compensation payable: None

No benefits or interest are payable in this case as the Court ruled that the employee did not prove that he sustained an accident arising out of and in the course of his employment.

On July 20, 2005, the employee Joe Rigdon appeared in person and by his attorney, Nile D. Griffiths, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Rhonda J. Kattelman. Six cases were originally set for trial, however the parties agreed that the only case to be tried was 04-059259. The Court took judicial notice of all records contained within the files of the Division of Workers' Compensation. The employee initiated this trial as a temporary proceeding as he was seeking additional medical care. However, the Court determined that the employee had not met his burden of proof under Chapter 287 proving accident; therefore the Court prepared its decision as a Final Award. 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 a summary of the evidence and the findings of fact and rulings of law, are set forth below as follows:

1. Tower Rock Stone Company was operating under and subject to the provisions of the Missouri Workers’ Compensation Act, and liability was fully insured by St. Paul Fire \& Marine Insurance Company.
2. On or about the day of the alleged accident or occupational disease the employee was an employee of Tower Rock Stone Company and was working under the Workers’ Compensation Act.
3. The employer had notice of the employee's accident.
4. The employee's claim was filed within the time allowed by law.
5. The parties agreed that the employee's average weekly wage was $\ 800.00 per week. The employee's rate for temporary total disability is $\ 533.33 per week.

1. Whether on or about April 9, 2004, the employee sustained an accident or occupational disease arising out of and in the course of his employment?
2. Whether the employee's injury was medically causally related to an accident or occupational disease?
3. Whether the employer-insurer is liable for previously incurred medical bills totaling $\ 51,169.67, including disputes as to authorization, reasonableness, necessity and causal relationship; and whether the employer-insurer is liable for mileage and future medical care for the employee's back?
4. Whether the employer-insurer is liable for past temporary total disability payments totaling $\ 27,733.16 for the period beginning May 7, 2004 and ending May 7, 2005?

1. Reports of Dr. Michael Chabot dated November 4, 2002
2. Reports of Dr. Michael Chabot dated September 29, 2004
3. Records of Dr. Paul Juergens

A. Deposition of Dr. Kee Park

B. Records of the Auburn Surgical Center

C. Records of Dr. Craig Davis

Joe Rigdon is thirty-seven years old and lives in Ava, Illinois with his wife. He began employment with Tower Rock Stone Company, a rock quarry, in 1990 and was working for them on April 9, 2004. As part of his employment he operated a front-end loader. He had been in that position for eight to nine years and was fulfilling those duties on April 9, 2004.

The employee testified at trial that on April 9, 2004, he was working in Zone 3 on a rough surface and took a jolt that caused pain in his neck, back and body as a whole. The employee testified that he was loading "shot rock" (rock that has been blasted out) with the front-end loader when the bucket hit a rough spot or material causing the front-end loader to jolt as it was brought to a complete stop. The employee testified that it was this event that caused his injury and subsequent problems. He testified that similar injuries have happened in the past from 1999 to 2000 and that he has pending cases on those matters. The employee testified that he felt pain in his neck, shoulders and lower back. He testified that he finished his shift and did not report any injury that day. Mr. Rigdon indicated that he first reported this event to his employer sometime in May or June 2004, after he had obtained medical care from Dr. Paul Juergens and Scott Petersen at Southern Illinois Pain Management. The employer did not offer any benefits at the time that the employee reported the injury or at any time thereafter.

Records reveal that the employee was treated in the office of Dr. Paul Juergens on April 22, 2004. This facility has treated the employee at least from 2000 to 2002 for neck and back complaints. Scott Petersen is a physician's assistant that works in the office and was the first medical provider to see the employee after April 9, 2004. Mr. Petersen prepared a report dated April 22, 2004, that included a medical history that was taken at the time he first saw the employee. That report indicates that the employee reported:

1. Patient complains of increased neck and shoulder pain for the past twelve days.
2. "The patient also notes episodic numbness and tingling in his fingers-this was present prior to twelve days ago and has been present for quite some time."
3. "He does not note any new injuries," emphasis added.
4. "He states this is the same pain that he had previously," emphasis added.
5. "He cannot identify any reasons that it may be increasing at this time," emphasis added.

As a result of this examination, a cervical and thoracic MRI was performed on April 23, 2004. The cervical MRI was read as reporting a small central disc bulge at C6-7, with compression of the epidural sac and the spinal cord. The thoracic MRI was read as normal. The employee received epidural injections and pain medications while being treated at this facility and was told that he needed to find a primary care physician.

The April 27, 2004, records of Southern Illinois Pain Management report that the employee called and told them that he had an appointment to see Dr. Craig Davis on May 7, 2004. That report further indicates that the employee requested that their office state that he had a work- related injury. The employee was advised that the information that he provided could be documented, however a statement could not be made that his injury and/or pain is a direct cause from his job. The May 11, 2004 records of Southern Illinois Pain Management report a telephone call from Amy who is with Dr. Davis's office. She stated the employee had gone to Dr. Davis's office and wanted them to fill out a disability form that helped the employee pay for his house payment. Amy indicated that they declined this request as they had only seen the employee on two occasions after a two-year absence.

Prior to April 22, 2004, Dr. Juergens' office had treated the employee for neck, shoulder and back pain. During that period he underwent MRI's of both the neck and the back, epidural steroid injections in his neck and back, and received medication for pain control. His general diagnosis was cervical spondylosis and a herniated disc at L5-S1 and protrusion at L4-5. In an office note dated April 3, 2001, the employee presented for treatment for neck and back pain but denied any specific injury or incident that caused the pain; and denied any previous injuries.

A report of Dr. Gupta dated April 24, 2002, reports that the employee has not been seen for several months but came

in as he found out there had been communications with his lawyer. At that time he reported both lumbar and cervical pain. The pain was reported as "burning" during work last week. In a report dated March 20, 2001, the employee was reported as appearing delusional with auditory hallucinations.

Dr. Craig Davis treated the employee beginning May 7, 2004. A health history taken that day does not report a workrelated injury. The employee's chief complaint was that his hands and feet go numb. The employee complained of neck and back pain for the last four years. In a report to Pekin Insurance Company, Dr. Davis indicated that the problem possibly could be related to a work-related injury, "but cannot say with certainty a particular incident caused his problem or this was chronic deterioration due to prolonged use." Dr. Davis reported that the employee had neck and shoulder pain as far back as 1997.

Dr. Michael Chabot first evaluated the employee on November 4, 2002. At that time the employee reported that he sustained an injury to his neck and back region, but the majority of his problems sta