Jeff Botkins v. Diemakers/Intermet

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs of the parties, heard oral argument and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission modifies the award and decision of the administrative law judge dated December 28, 2007.

The issues stipulated at trial were whether employee's right shoulder and low back complaints were medically causally connected to the work-related accident on June 4, 1998; liability for past medical expenses; nature and extent of permanent disability; and second injury fund liability.

The administrative law judge determined and concluded that employee met his burden of proof with respect to his right shoulder and low back complaints pertaining to the June 4, 1998 work-related accident.

The administrative law judge included employee's 2000 claim for injury (Injury Number 00-129558), along with employee's 1998 injury claim. The parties stipulated in the 2000 injury claim that employee sustained an injury by occupational disease on the alleged date of injury, September 22, 2000, while under the employ of employer. The administrative law judge found that employee's bilateral carpal tunnel was a continuation of his June 4, 1998, accident.

A timely Application for Review with the Commission was submitted alleging that the administrative law judge erred in his determination that employee was permanently and totally disabled as a result of a combination of his workrelated injuries and conditions that have arisen following the work-related injuries.

Employee argues that: (1) if the injuries under Injury No. 00-129558 were merely a continuation of the complaints of symptoms arising from the June 4, 1998 accident, then the failure to find employee permanently and totally disabled as a result of his work-related injuries is contrary to the evidence; and (2) if the injuries under Injury No. 00-129558 are not a continuation of the June 4, 1998 accident, then failure to find employee permanently and totally disabled as a result of the combination of prior injuries and work-related injuries is against the weight of the evidence.

The Commission affirms the determination of the administrative law judge that employee sustained a 25\%

permanent partial disability of the right shoulder and 40 % permanent partial disability to the body as a whole referable to the back.

For the reasons set forth in this award and decision, the Commission reverses the administrative law judge's award finding employee's wrist injuries were a continuation of his June 4, 1998 accident.

Employee began working for employer in 1978 as a die caster. In 1987 employee injured his hip when he slipped on oil and fell while at work. The bruised portion of his hip developed into a fatty tumor which was removed surgically in June 1987. Employee settled the claim for his hip injury for 5\% of the body as a whole. Employee returned to work full-time after his injury. Employee underwent bilateral carpal tunnel releases performed by Dr. Goldberg in 1993. Employee settled his claim for 10 % of each hand at the wrist.

On June 4, 1998, employee tripped and fell on his back and right shoulder. Employee was on light duty for one week and then returned to regular duty. The Report of Injury listed the nature of injury as "pain in the middle of back around shoulder blade and left side." On June 23, 1998, employee felt a pop in his back while lifting parts at work. The Report of Injury listed the nature of the injury as "low back pain."

Employee initially underwent physical therapy to alleviate lower back pain. Employee saw Dr. Hertel for an evaluation on October 28, 1998. An MRI of the lumbar spine revealed degenerative disc disease of L3-4 and L4-5, with mild disc bulging and spondylosis at L4-5. On a December 29, 1998 office visit, employee indicated that his right shoulder pain extended into his forearm and complained of pain in his right wrist. Employee believed that it may be a recurrence of his carpal tunnel syndrome. A lumbar myelogram and post myelogram CT scan revealed mild posterior disc bulging at L3-4 and L4-5. Employee underwent physical therapy through March of 1999. Employee received facet injections for his shoulder and back pain from March to July of 1999. In July 1999, Dr. Hertel opined that employee had facet syndrome. On July 27, 1999, Dr. Hertel placed permanent restrictions on employee including no lifting greater than 20 pounds on a repetitive basis and occasional bending and stooping. On August 20, 1999, Dr. Hertel released employee to work without restrictions. Dr. Hertel opined that employee suffered from a 2 % permanent partial disability of the back.

Employee was evaluated by Dr. Jolly on May 16, 2000. An MRI revealed a small complete tear of the rotator cuff. On September 15, 2000, employee was seen by Dr. Cunningham for complaints of constant pain in his low back and right shoulder. Dr. Cunningham diagnosed employee with degenerative disc disease at L3-4 and L4-5 with mild central disc bulging; small complete tear of the rotator cuff of the right shoulder; and suspected bilateral carpal tunnel syndrome. On October 11, 2000, Dr. Cunningham recommended that employee undergo surgery for the rotator cuff tear in his right shoulder and to address his bilateral carpal tunnel syndrome. He also recommended epidural steroid injections for employee's back pain. Dr. Cunningham opined that employee's right rotator cuff tear was attributed the June 4, 1998 injury.

On October 17, 2000, employee was evaluated by Dr. Bieniek for bilateral hand numbness. Dr. Bieniek recommended employee continue to use night splints on his wrists and administered injections to both wrists in October 2000. In November, employee was diagnosed with recurrent carpal tunnel syndrome. Dr. Bieniek performed a carpal tunnel release on employee's left wrist on December 18, 2000 and on his right wrist on December 27, 2000. Employee was released by Dr. Bieniek on February 6, 2001.

On February 1, 2001, Dr. Peter Mirkin performed an independent medical examination (IME) at the request of employer/insurer. Dr. Mirkin rated employee as having a 4\% permanent partial disability secondary to the work incidents in June 1998; half of this due to each incident. Dr. Mirkin found employee to suffer a 4\% permanent partial disability of the shoulder as a result of the June 4, 1998 incident; and a preexisting 5\% permanent partial disability regarding his spine.

An MRI on March 27, 2001 of employee's lumbar spine revealed a central disc herniation at L4-5. Employee was

re-examined by Dr. Bieniek on April 11, 2001 for right shoulder and low back pain. Dr. Bieniek recommended shoulder surgery. On May 2, 2001, Dr. Bieniek performed an arthroscopy, arthroscopic acromioplasty and bursectomey, and mini rotator cuff repair on employee's right shoulder. Employee underwent physical therapy from May until August 2001.

Employee underwent discograms in June 2001, which were abnormal. Employee did not return to work after June 20, 2001. On September 4, 2001, Dr. Burton performed a posterior lumbar fusion at L3-4 and L4-5 and placement of pedicle screws.

Employee returned to Dr. Bieniek on August 24, 2001 for left arm pain and numbness. On October 26, 2001, employee returned to Dr. Bieniek with complaints of chronic numbness in his left thumb and index finger with intermittent numbness in his right hand. On January 22, 2002, employee continued to complain of numbness in both hands.

At the request of employer on July 11, 2002, Dr. Coin performed an IME on employee to address bilateral upper extremity complaints. On November 22, 2002, employee underwent a third carpal tunnel release on the left. Employee had physical therapy from December to January 2003. Employee complained that his pain was worse after the surgery, and Dr. Coin recommended pain management.

On March 24, 2003, Dr. Jolly performed surgery on employee's back to remove the hardware, place a bone stimulator, and augment the fusion. The bone stimulator was later removed on June 25, 2004. Dr. Jolly recommended employee avoid repetitive activity with his hands, change positions often, and not lift more than very limited amounts of weight.

Employee saw Dr. Stephen Schmidt on April 24, 2003 for a pain management evaluation. Employee was placed on pain medication for neuralgia/neuritis involving the median nerve. Dr. Schmidt opined that employee would need these medications on an ongoing basis.

On November 11, 2003, Dr. Coin opined that employee had reached maximum medical improvement (MMI) for injuries to his bilateral upper extremities. Dr. Coin found employee to have a 15\% permanent partial disability at the level of the left wrist and 12 % permanent partial disability at the level of the right wrist. Dr. Coin released employee without restrictions with respect to his wrists.

On August 4, 2005, employee was examined by Dr. Shekhani. Dr. Shekhani opined that employee had a 30\% permanent partial disability of the upper left extremity at the wrist; 25 % permanent partial disability of the right upper extremity at the wrist; 50 % permanent partial disability of the right upper extremity at the shoulder; 50 % permanent partial disability of the body as a whole secondary to the back surgeries; and an additional 10\% permanent partial disability of the body as a whole referable to obesity. Dr. Shekhani opined that due to preexisting disabilities, employee suffered a 15 % permanent partial disability of the left upper extremity at the wrist and 12 % permanent partial disability of the right upper extremity at the wrist, both due to the 1994 carpal tunnel releases. Dr. Shekhani stated that employee's carpal tunnel syndrome could have been caused by the 1998 fall, the repetitive nature of employee's job, or the combination of both.

Dr. Shekhani found employee to be permanently and totally disabled due to the combination of employee's workrelated injuries. Dr. Shekhani made reference to employee's bilateral carpal tunnel releases, shoulder surgery, and two back surgeries; and opined that it was a combination of all things that made it difficult for employee to work. Dr. Shekhani opined that employee was not able to engage in any substantial gainful activity nor would he expect employee to be able to perform full-time work on an ongoing basis. Dr. Shekhani recommended to avoid repetitive lifting, uneven surfaces, prolonged walking or standing; to take appropriate pain medication; and limit the amount of weight he lifted. Dr. Shekhani believed employee would need continued medical care for his work-related conditions including doctor's visits, physical therapy, and oral medication.

Mr. England, vocational expert, examined employee on January 26, 2006. Mr. England opined the combination of employee's upper extremity problems along with his back problems would negate his ability to sustain any type of

work activity, on a consistent, day to day basis.

On December 29, 2006, Dr. Mirkin performed another IME at the request of employer. Dr. Mirkin was not requested to evaluate employee's complaints referable to his hands or wrists. Dr. Mirkin opined that employee suffered a 6\% permanent partial disability of his right upper extremity at the shoulder; 30\% permanent partial disability secondary to his back surgeries.

We reverse the administrative law judge's finding that employee's September 22, 2000 claim, with respect to his bilater