Jason Rector v. Gary's Heating & Cooling

Employee: Jason Rector

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Gary's Heating \& Cooling

Additional Party:

Insurer: Federated Mutual Insurance

Hearing Date: May 23, 2008

Checked by: HDF:1w

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: September 24, 2004
5. State location where accident occurred or occupational disease was contracted: Camden County
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: See award.
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

- Nature and extent of any permanent disability: 65 % of body

1. Compensation paid to-date for temporary disability: $\ 22920.15
2. Value necessary medical aid paid to date by employer/insurer? $\ 37,920.99
3. Value necessary medical aid not furnished by employer/insurer? $\ 3926.64
4. Employee's average weekly wages: $\ 577.50
5. Weekly compensation rate: $\$ 385.00 / \ 354.05

- Method wages computation: By Agreement

- Amount of compensation payable: 65 % of body $=260 weeks

260 weeks \times \$ 354.05=\ 92,053.00

TOTAL: $\quad \ 92,053.00

1. Second Injury Fund liability: None
2. Future Requirements Awarded: Future medical benefits awarded.

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 permanent disability hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Timothy McDuffey.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on May 23, 2008. Memoranda were submitted by June 16, 2008.

The parties stipulated that on or about September 24, 2004, the claimant, Jason Rector, was in the employment of Gary's Heating and Cooling. The claimant sustained an injury by accident which arose out of and in the course of his employment. The employer was operating under the provisions of Missouri's workers' compensation law and liability for workers' compensation was insured by Federated Mutual Insurance Company. The employer had notice of the injury and a claim for compensation was timely filed. The claimants' average weekly wage was $\ 577.50 per week; the applicable compensation rate is $\ 385.00 per week for permanent and temporary total disability benefits and $\ 354.05 per week for permanent partial disability benefits. Temporary disability benefits have been paid to date in the amount of $\ 22,920.15. Medical aid has been provided in the amount of $\ 37,920.99.

The issues to be resolved by hearing include 1) the applicability of a credit to the employer/insurer for 21 days of temporary total disability benefits paid for the period of May 25, 2006 through June 14, 2006, a period of 21 days, in the amount of $\ 1155.00,2 ) the liability of the employer/insurer for unpaid medical bills in the amount of $\ 3926.64,3 ) the nature and extent of permanent disability, 4) the liability of the employer/insurer for future medical treatment, and 5) the liability of the Second Injury Fund.

The claimant, Jason Rector, was 41 years old as of the date of the hearing. Mr. Rector graduated from a small high school in Camdenton, Missouri, in 1985, and began working thereafter in a variety of jobs, including sales, painting, dry walling and factory work. In 1996, Mr. Rector began his work with Gary's Heating and Cooling where he learned to install heat pumps, furnaces, return air drops, filtration systems, registers, grills, and air conditioners. Mr. Rector was a working supervisor at the time of the 2004 accident, spending 95 % of his time working. Mr. Rector would typically handle furnaces weighing between 250 and 383 pounds, carry a toolbox weighing 50 pounds, wear a tool belt weighing 15 to 20 pounds and handle ductwork weighing 25 to 40 pounds.

Prior to September 24, 2004, Mr. Rector testified, he had back complaints for which he saw Dr. Jones. Mr. Rector said that he had been seeing Dr. Jones since prior to 1996 for back pain and received from Dr. Jones instructions in proper lifting techniques, muscle relaxants and pain pills. According to Mr. Rector, his back pain prior to September of 2004 did not affect his ability to work or his ability to engage in outdoor activities. Prior to September 24, 2004, Mr. Rector enjoyed an active life style which included running, golfing, playing paintball, riding a jet ski; these are all activities that he can no longer enjoy as the result of the back pain he attributes to his September 24, 2004 accident.

On September 24, 2004, Mr. Rector was on a ladder 14 feet off of a concrete floor when the ladder slipped, causing Mr. Rector to fall with the ladder, his upper body hitting the concrete floor while his feet stayed on the ladder. Mr. Rector had immediate swelling in his hand and a knot on his elbow. Mr. Rector was seen at the hospital and referred to Dr. Jones. Mr. Rector had pain in his neck and back for which Dr. Jones

prescribed physical therapy. Mr. Rector began taking pain medications daily in order to be able to work. Dr. Jones' records include bills resulting from treatment of the back in the amount of $\ 998.00 for the period of May 2, 2007, through January 4, 2008.

Mr. Rector described returning to work as a supervisor only after September 24, 2004, no longer carrying air conditioning or heat pump units. Mr. Rector described taking increasingly large amounts of pain medications and muscle relaxants. Between Thanksgiving in 2004 and January of 2005, Mr. Rector had three epidural steroid injections which failed to offer much relief of his back pain. Mr. Rector worked for five months after his September 2004 accident, although the manner in which he worked was altered.

In February of 2005, after drilling a hole in a wall for two days, Mr. Rector's hands became swollen up to his elbows. Mr. Rector last worked for Gary's Heating and Cooling on February 17, 2005. On February 18, 2005, Mr. Rector went to the hospital; apparently herniated discs in the neck and low back were diagnosed. Dr. Jones referred Mr. Rector to Dr. Parker in Columbia, Missouri, for treatment of his herniated discs. Dr. Parker offered only an extensive fusion of Mr. Rector's back which Dr. Parker did not recommend. Dr. Parker referred Mr. Rector to Dr. Jones for his prescription medication although Dr. Parker did prescribe medication for Mr. Rector in Dr. Jones' absence.

For his symptoms in his hands, Mr. Rector was referred by Dr. Parker to Dr. Havey who performed bilateral carpal tunnel release surgeries in August of 2005. The carpal tunnel release surgeries were successful in relieving pain in the thumb, index and middle fingers of both of Mr. Rector's hands, although the last two fingers of each hand are still symptomatic.

Mr. Rector testified that he feels the condition of his neck and back is deteriorating; his pain is at a level six or seven out of ten with pain medications; most of his time, including sleeping, is spent in a recliner and standing is painful.

Mr. Rector received temporary total disability benefits through June 14, 2006, and testified that he has not been returned to work.

On August 22, 2006, the workers' compensation carrier sent Mr. Rector to Dr. Lennard for his continuing low back complaints; Dr. Lennard referred Mr. Rector to Dr. Workman. Both Dr. Workman and Dr. Lennard felt that Mr. Rector was not at maximum medical improvement if further treatment such as nucleoplasty for the low back is an option for him. No viable surgical alternatives have been offered to Mr. Rector for either his neck or low back.

Dr. David Volarich, D.O., testified that he examined Mr. Rector on July 12, 2007. Regarding the September 24, 2004 injury, Dr. Volarich found 1) lumbar syndrome secondary to disc protrusions at L3-4 and L4-5 central and to the right as well as aggravation of degenerative disc disease, with an attendant permanent disability of 22.5 percent of the body, 2) thoracic syndrome, secondary to disc protrusion at T8-9, with an attendant permanent disability of 15 percent\% of the body, 3) severe myofascial and chronic regional pain syndrome, with an attendant permanent disability of 25 percent of the body, 4) disc bulging at C5-6 and C6-7 as well as aggravation of degenerative cervical disc disease, with an attendant permanent disability of 20 percent of the body.

With regard to preexisting disability, Dr. Volarich opined to a 12.5 percent permanent partial disability of the body referable to the lumbosacral spine. Dr. Volarich seemed to base his opinion on Mr. Rector's requirement of "medical therapy including narcotics on an intermittent basis leading up to 9/24/04."

Dr. Volarich opined that Mr. Rector is in need of ongoing care at a pain clinic and that continued narcotics to control his pain syndrome are appropriate. Dr. Volarich went on to recommend epidural steroid injections, foraminal nerve root blocks, TENS units and similar treatments to control Mr. Rector's severe pain.

While Dr. Volarich had concerns about what he thought was Mr. Rector's depression, Dr. Volarich stated that he would defer analysis as to the cause of Mr. Rector's depression to a psychiatric assessment.

With regard to Mr. Rector's restrictions referable to the spine, Dr. Volarich stated that Mr. Rector would need to lie down during the day, that Mr. Rector is unable to stand for an eight-hour shift or work upright for an eight-hour shift.

With regard to a return to work, Dr. Volarich stated that if vocational assessment could not identify a suitable job, then Mr. Rector is permanently and totally disabled as a result of the work-related injuries of September 24, 2004, and leading up to February 18, 2005, in combination with each other and in combination with his

preexisting lumbar syndrome present prior to lumbar September 24, 2004.

Dr. Volarich acknowledged that a functional capacity exam in which Mr. Rector participated in October of 2005 indicated that Mr. Rector was capable of work in the heavy physical demand category; however, Dr. Volarich opined that this three hour and fifty-four minute examination did not correctly reflect Mr. Rector's ability to work on a daily basis.

Dr. Volarich stated that Mr. Rector was taking Loracet and Percocet prior to September of 2004, and that Mr. Rector's lumbar and cervical pain diagnosed by Dr. Parker were not sufficient to restrict or prevent Mr. Rector from working.

Dr. Jeffrey Parker, M.D., orthopedic spine surgeon, testified by deposition that he initially saw Mr. Rector on March 17, 2005, for complaints associated with a back injury sustained on September 24, 2004. Dr. Parker stated that x-rays showed Mr. Rector to have a congenital fusion at C3-4, preexisting degenerative disc disease at C2-3,