David Harmon v. Best Buy

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-050679

Employee: David Harmon

Employer: Best Buy

Insurer: Insurance Company of the State of Pennsylvania

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund (Dismissed)

Date of Accident: May 11, 2004

Place and County of Accident: St. Louis 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. 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, 2008. The award and decision of Administrative Law Judge Linda J. Wenman, issued July 23, 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 2nd day of September 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: May 11, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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 developed low back pain after moving a television.
12. Did accident or occupational disease cause death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 7.5 % BAW referable to the lumbar spine
15. Compensation paid to-date for temporary disability: $\ 2,862.93 representing $123 / 7$ th weeks.
16. Value necessary medical aid paid to date by employer/insurer? $\ 17,222.00

Employee: David Harmon Injury No.: 04-050679

1. Value necessary medical aid not furnished by employer/insurer? 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 % of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Ronald Caimi

A hearing for final award was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on June 30, 2008. The case was submitted on the day of hearing. Attorney Ronald Caimi represented David Harmon (Claimant). Best Buy (Employer) is insured by Insurance Company of the State of Pennsylvania, and represented by attorney Peggy Hecht. The Second Injury Fund was dismissed prior to the start of hearing.

Prior to the start of the hearing the parties identified the following issues for disposition in this case: liability of Employer for permanent total disability (PTD) or permanent partial disability (PPD) benefits; unpaid medical; and future medical care. Attorney Caimi acknowledged an unresolved attorney's lien attached to this case, and he will

Claimant offered Exhibits A-D, Employer offered Exhibits 1-7, and the exhibits were admitted into the record without objection. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

All evidence presented has been reviewed. Only testimony and evidence necessary to support this award will be reviewed and summarized.

1. Claimant is 52 years old, a high school graduate, and throughout his adult employment has worked on aircraft assembly, as an air conditioner assembler, in warehouse maintenance, as a chemical miller, and for Employer in its shipping/receiving department.
2. On May 11, 2004, Claimant was lifting a flat screen television when he developed low back pain. Employer initially authorized treatment for Claimant at Barnes Care, and conservative treatment was initiated. When Claimant did not respond to conservative care, an MRI was authorized that demonstrated possible disc protrusions at L2-3 and L3-4, a possible right lateral disc protrusion a L4-5, and a possible foraminal disc herniation at L5-S1. Claimant was referred to orthopedic surgeon, Dr. Raskas, for further treatment.
3. Dr. Raskas initially examined Claimant on June 30, 2004. Claimant's complaints included low back pain, with pain into his right hip, pain that traveled down the front and back of his right leg, and periodic left leg pain. After reviewing Claimant's MRI, Dr. Raskas questioned the existence of disc protrusions at L2-3, L3-4, and L5-S1, noting those protrusions were "barely" seen on an axial image only. Dr. Raskas agreed a protrusion was present at L4-5 that lateralized to the right. Dr. Raskas ordered an epidural steroid injection with a referral to Dr. Feinberg, physical therapy, oral steroids, and Vicodin that was to be used "sparingly." Claimant was taken off work.
4. Dr. Raskas re-examined Claimant on July 23, 2004, after Claimant had received his injection. Claimant reported 34 days of pain relief following the injection. Dr. Raskas ordered aquatic therapy.
5. Claimant received a second steroid injection during August 2004, which did not provide any relief. On August 13, 2004, Dr. Raskas placed Claimant on Vioxx and prescribed Percocet to be used "sparingly." Dr. Raskas released Claimant to work sedentary duty. Claimant did not attempt to return to work.
6. On August 31, 2004, a CT/myelogram was obtained of Claimant's low back. Claimant's myelogram was negative for nerve root compression. After reviewing the diagnostic films, Dr. Raskas reported he did not "see any evidence of any significant disk displacement or nerve root compression." Dr. Raskas was unable to correlate the initial MRI findings with the CT/myelogram findings, and noted the initial MRI was not of "high quality."
7. On September 8, 2004, a new MRI of Claimant's lumbar spine was obtained that demonstrated mild degenerative disc disease L2-S1, and a "tiny right sided focal protrusion at L5-S1, also seen in retrospect on the post-myelogram CT. Its clinical significance is uncertain given that there is no significant mass effect upon the thecal sac or exiting S1 nerve root sleeve." Clinical correlation was recommended.
8. On September 24, 2004, Employer referred Claimant to Dr. Doll, a physical medicine and rehabilitation specialist. Following examination, Dr. Doll diagnosed right low back pain, right sacroiliac joint pain, and right leg pain. Dr. Doll ordered additional physical therapy with a strict compliance home exercise program, encouraged Claimant to decrease his narcotic use, and administered a trigger point injection.
9. On October 7, 2004, Dr. Doll noted Claimant requested to be transported from the waiting room to the examining room by wheelchair due to low back pain. During examination Dr. Doll noted Claimant "demonstrated significant panting, moaning and shaking at times though not consistently." Dr. Doll further noted Claimant had significantly increased subjective complaints without any other incident or trauma, and this behavior was also present during

physical therapy. Dr. Doll recommended Claimant attend a work hardening program. Claimant was authorized to take the medications Skelaxin, Celebrex, Tramadol, and Vicodin.

1. Claimant was re-examined by Dr. Doll on October 21, 2004. Dr. Doll reviewed Claimant's work conditioning report and noted Claimant had been unable to lift an egg carton. During examination Dr. Doll noted Claimant walked with a very slow, guarded gait, and preferred to lie supine while his history was taken. Dr. Doll found Claimant's responses to specific questions were vague, and "considerable groaning and moaning took place throughout the examination." Dr. Doll noted Claimant continued to demonstrate significant inconsistencies between his subjective complaints and objective examination or radiographic findings. Dr. Doll further noted Claimant had obtained a prescription for Percocet from another physician, and was taking the Percocet in addition to his other prescribed medications. Dr. Doll concluded there was a significant possibility Claimant had a "non-organic basis for his current complaints." Further, Dr. Doll opined, that having attempted multiple conservative measures to treat Claimant's symptoms, and due to the lack of objective physical and diagnostic findings, Claimant was at maximum medical improvement (MMI), and could return to work without restrictions. Dr. Doll found Claimant had not sustained any permanent partial disability associated with the May 11, 2004 injury. Claimant did not attempt to return to work.
2. On November 9, 2004, Claimant sought treatment at his own expense with Dr. Kennedy, a neurosurgeon. After reviewing Claimant's CT/myelogram, Dr. Kennedy agreed the studies showed no evidence of nerve root compromise or bony abnormality. On December 2, 2004, Dr. Kennedy noted on physical examination Claimant's straight leg raising was negative, and his motor and sensory exams were normal. Dr. Kennedy found "at this point I do not see any clear cut abnormality to account for his symptoms." Dr. Kennedy ordered an EMG.
3. On December 22, 2004, following review of Claimant's EMG study, Dr. Kennedy noted the EMG did not demonstrate "any obvious evidence of nerve root impingement." Dr. Kennedy had no additional medical treatment to offer, and opined Claimant's "problems are primarily arising from muscle and ligamentous injury." Dr. Kennedy suggested continued treatment with Dr. Feinberg, and that Claimant attend aggressive rehabilitation.
4. Claimant returned to t