Kenneth Hufker v. Classic Woodworking, Inc.

Employee: Kenneth Hufker

Employer: Classic Woodworking, Inc.

Insurer: Zurich American Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

Date of Accident: October 27, 1998

Place and County of Accident: St. Louis, 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 February 8, 2008. The award and decision of Administrative Law Judge Kathleen M. Hart, issued February 8, 2008, 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 19th day of August 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Compensation paid to-date for temporary disability: $\ 900.00
2. Value necessary medical aid paid to date by employer/insurer? $\ 144,257.26

Employee: Kenneth Hufker Injury No.: 98-134295

1. Value necessary medical aid not furnished by employer/insurer? 14,340.50

- Employee's average weekly wages: $\ 861.55

1. Weekly compensation rate: $\$ 562.67 / \ 294.73
2. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 14,340.50

180 weeks of permanent partial disability from Employer $\ 53,051.40

1. Second Injury Fund liability: Open

Total: $\quad \ 67,391.90

1. Future requirements awarded: pursuant to award

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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

David Jerome

A hearing was held on the above captioned matter November 15, 2007. Kenneth Hufker (Claimant) was represented by attorney David Jerome. Classic Woodworking (Employer) was represented by attorney Chris Patt. The Second Injury Fund was left open. The parties requested the record remain open until December 6, 2007, for submission of Emergency Room records. No records were submitted, and the record was closed December 6, 2007.

The parties stipulated to the following:

- Claimant was injured by accident October 27, 1998, while in the course and scope of his employment for Employer. Employer and Claimant were operating under the provisions of the Missouri Workers’ Compensation law.

- Employer’s liability was fully insured by Zurich American Insurance Company. Employer had notice of the injury and a claim for compensation was timely filed.

- Claimant’s average weekly wage was 861.55 yielding TTD and PPD rates of 562.67 and 294.73. Claimant has received 900.00 in TTD and $144,257.26 in medical benefits.

The parties stipulated the issues to be resolved are as follows:

- Whether Claimant is entitled to future medical benefits.

- Whether the future medical care is medically and causally related to the work injury.

- Liability for past medical expenses of 12,623.00 and 1,717.50 as outlined in Exhibit N. Other medical bills in that exhibit are not in dispute.

- The nature and extent of Claimant’s permanent partial disability.

- Liability of Insurer after their coverage ended June 22, 1999.

Based upon the competent and substantial evidence, I find:

- Claimant is a 47 year-old male who has worked full-time for Employer since 1979. Employer

manufactures high end residential and commercial furniture.

- Claimant has been a foreman since before his work injury. His duties are divided evenly among supervisory work, shop work and sales calls. As a supervisor he handles the paperwork associated with running the business and ordering parts. His work in the shop involves lifting and moving furniture, spraying and staining products, and loading trucks. He works in the shop almost daily. He goes out on sales calls several times a week.

- On October 27, 1998, Claimant was in the loading area of the shop with two trainees. The three men were loading a cart of wall panels onto a lift gate to lift them up into a truck. The panels weighed about 1200 pounds. As the gate rose, the panels slid backwards and fell several feet crushing Claimant to the ground. The panels fell on Claimant's left arm and head, and pinned him to the ground.

- Claimant was rushed to St. Anthony's Emergency Room where he complained of pain in his head, neck, mid back, low back, left arm and wrist. Claimant was diagnosed with a fracture in his thoracic spine and a herniated disc in his cervical spine.

- Employer authorized treatment with Dr. Pruitt. He diagnosed a compression fracture of 15-20\% at the T5 level. After Claimant's hand complaints resolved, Dr. Pruitt referred Claimant to Dr. Albanna for treatment of his neck and back. He diagnosed a T5 fracture and a mild to moderate disc herniation at the C6-C7 level. Dr. Albanna ordered MRIs and prescribed a TENS unit and physical therapy. The therapy provided temporary relief.

- Due to Claimant's ongoing pain, Dr. Albanna prescribed pain management with Dr. Feinberg. The pain management seemed to help, so Dr. Albanna recommended Claimant continue pain management as a way to avoid neck surgery, which would likely be a complete fusion.

- Claimant began pain management with Dr. Feinberg in 1999. His treatment consisted of nerve blocks, trigger point injections, physical therapy, chiropractic care and medications directed to relieve Claimant's neck, thoracic spine, and low back pain. Claimant has continued this treatment with Dr. Feinberg and continues to take muscle relaxers and Tylenol. This treatment has helped control Claimant's pain levels and enabled him to continue working. With injections, his pain level is between a four and a six out of ten. Without them, his pain reaches a six to ten, and he increases the amount of Tylenol and muscle relaxers he takes.

- In May and June of 2000, Insurer transferred Claimant's treatment to Western Anesthesia Pain Management where he was treated with the same type of injections as provided by Dr. Feinberg. Claimant testified he did not obtain the same level of relief from this treatment, and Employer/Insurer authorized treatment to continue with Dr. Feinberg.

Claimant underwent a functional capacity evaluation in August 2001. This showed he could work at the medium physical demand level, but his job requires heavy physical demand level.

- Claimant testified he did not get the injections on a regular basis in 2001 or 2002. This lapse in treatment appears to be the result of an unrelated medical condition. During that time, he missed work and was not able to work in the shop as much as he usually did. His body became stiff and sore, and he had more frequent headaches.

- In 2006, Insurer suspended all treatment with Dr. Feinberg and sent Claimant to Dr. Wayne. Claimant's supervisor and Vice President, Laurie Mullen, wrote Insurer requesting they continue to authorize treatment with Dr. Feinberg. Insurer continues to deny further treatment with Dr. Feinberg.

- Dr. Wayne, employer's expert, examined Claimant in May 2006. He also diagnosed a T5 fracture and a C6-7 herniated disc. He found the majority of Claimant's ongoing problems were the result of his compression fracture. Dr. Wayne opined the fracture led to chronic, persistent pain in the thoracic distribution which set in motion a myofascial dysfunction in that region. He noted this dysfunction can be a very chronic condition which can require periodic interventional management. He recommended Claimant continue his exercise program and get trigger point injections every three to four months. He also noted it is common to go through cycles of flare-up and remission with myofascial dysfunction regardless of the activity of the patient.

- Claimant continued to see Dr. Wayne for injections. He encouraged Claimant to self treat so he would not be reliant on long-term, frequent injections. Claimant testified these injections did not last as long as the injections he received from Dr. Feinberg. Claimant testified Dr. Wayne recommended 1 - $11 / 2$ years more of injections and medications at the time of his May 2006 examination. None has been authorized. Claimant has requested additional treatment which has not been authorized.

- Since May 2006, Claimant has continued to treat with Dr. Feinberg through his group health insurance. He has outstanding medical bills from Dr. Feinberg and Frontenac Surgery Center for this treatment. Some of this treatment has been paid by his group carrier. Claimant last saw Dr. Feinberg for an injection in October 2007. He continues to receive regular injections and takes medications as prescribed by Dr. Feinberg. Without the injections, Claimant believes he would not be able to use the tools in the shop at work.

- Claimant testified Dr. Albanna and Dr. Kennedy told him the only other treatment option is very invasive and is a neck fusion. Dr. Kennedy also recommended Claimant continue with injections instead of surgery. Claimant wants to continue receiving injections instead of surgery.

- Claimant has had no injuries to his cervical