Mark Harvath v. United Parcel Service

The above-entitled workers’ compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated August 25, 2008.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued August 25, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 2nd day of February 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Employee: Mark Harvath

Injury No.: 07-098439

Dependents: N/A

Employer: United Parcel Service

Additional Party: N/A

Insurer: LM Insurance Corporation

Hearing Date: June 3, 2008

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MD:cw

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: October 15, 2007
5. State location where accident occurred or occupational disease contracted: St. Louis, 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

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

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident happened or occupational disease contracted: Driving truck when jerked wheel and twisted injuring neck.
3. Did accident or occupational disease cause death? Date of death?
4. Parts of body injured by accident or occupational disease: Neck and left upper extremity
5. Compensation paid to-date for temporary disability: N/A
6. Value necessary medical aid paid to date by employer/insurer? $\ 0
7. Value necessary medical aid not furnished by employer/insurer? $\ 3,962.00

1. Amount of compensation payable:

- Second Injury Fund liability: Open

(Use of an asterisk denotes a continual future benefits)

1. Future requirements awarded: See award

Each of said payments to begin and be subject to modification and review as provided by law. This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% which is awarded above as costs of recovery of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Gary Wolfe

The issues presented for resolution at trial are accident, course and scope of employment and medical causation. Claimant also requests past and future medical benefits and temporary total disability benefits during any such future periods of medical care when he is unable to work.

1. Claimant was 52 -years old at the time of trial with a high school education and two years of junior college. Mr. Harvath has been working as a package car driver for United Parcel Service (UPS) for more than thirty (30) years. The claimant's job duties require him to lift, move and deliver approximately 120 to 140 packages per day to a primarily residential area. The claimant must drive and operate the UPS package truck in delivering the packages to various locations.
2. At the time of accident, the package car truck driven by the claimant was approximately twenty-five (25) years of age and had nearly one (1) million miles driven on it. The suspension of the truck reflected the age and use of the truck and the low back seat was fixed with no separate suspension. The ride was described by the claimant as "brutal". The seatbelt restraint was a lap belt only.
3. On October 15, 2007, claimant was driving approximately fifty (50) miles per hour on Babler Access Road or Highway 109 when due to inattention, he hit a series of rough pavement, depressions, grates and/or a low road shoulder which caused him to nearly loose control of his truck. As he tried to jerk the truck back into the middle of his lane, Claimant over corrected and jerked back the other way. During this incident, Claimant was suddenly and violently thrown to the left while restrained only by a lap belt. The claimant alleges this accident was sudden and unexpected and while he was not thrown out of his truck, he was violently thrown to the left in a manner that had never occurred to him before.
4. There were two specific portions of the roadway that were deteriorated and which he drove over during the incident. The first patch was adjacent to 850 Babler Access Road and the second near 813 Babler Access Road. Claimant alleges the first incident at 850 Babler Access Road was sudden and violent and resulted in him feeling immediate pain in his neck and the second incident at 813 Babler Access Road unnerved him so as to cause him to pull off the road and compose himself. Claimant reported the injury to his supervisor from the field within an

hour of its occurrence, but completed his route that day before seeking medical treatment.

1. The claimant had a pre-existing injury to his neck which resulted in a January 5, 1995 cervical fusion surgery. The claimant was released at full duty from that injury and surgery on approximately October 23, 1995, and had few, if any, continuing neck and left arm problems. The claimant testified at trial he did not recall ever seeking medical treatment or missing work due to his 1995 neck injury and surgery after his release from treatment by his physician at the time on October 23, 1995, until the occurrence of the October 15, 2007 injury on Babler Access Road.
2. After completing his work on the day of the accident, the claimant went to the emergency room at St. Joseph Health Center. The claimant reported a neck injury with shooting pains after hitting a pothole while driving his UPS truck. The claimant was also evaluated by the employer/insurer chosen physician, Dr. Cynthia Byler, on October 16, 2007. The claimant gave a history of hitting a dip in the road or grate and being violently banged around in his vehicle. Dr. Byler ordered a cervical MRI which showed a diffuse cord compression and foraminal narrowing at C3-4, C4-5 and C5-6. Dr. Byler prescribed physical therapy which began on October 18, 2007. On October 24, 2007, the claimant began to experience numbness on the back of his left hand and Dr. Byler decided to refer him to an orthopedic specialist, Dr. Keith Wilkey.
3. The claimant was initially seen by Dr. Wilkey on October 25, 2007. The claimant gave a history of driving his delivery truck over the road and being thrown up in the air sustaining a twisting injury to his neck. The neck pain started immediately and then a week or so later he developed left arm radicular symptoms. The claimant advised Dr. Wilkey of his prior cervical fusion, but stated he had no continuing problems in the intervening years. After an examination of the claimant and review of diagnostic testing, Dr. Wilkey recommended a cervical epidural injection, diagnosed an acute C6 radiculopathy and recommended a power steering truck for the claimant. An epidural injection was administered to the Claimant on November 20, 2007 by Dr. Wilkey.
4. On November 28, 2007, in order to more fully diagnose the claimant's cervical radiculopathy, Dr. Byler referred the claimant to Dr. Daniel Phillips for a nerve conduction and EMG report. Dr. Phillips diagnosed a C4-5 and C5-6 radiculopathy with the C5-6 level appearing more active. Dr. Wilkey then saw the claimant again on December 11, 2007, on a follow-up visit. Dr. Wilkey noted the findings of the EMG report and claimant's slow response to conservative care. Dr. Wilkey provided his written opinion that his findings and diagnosis were directly and causally related to the work injury that was sustained while working at UPS and he recommended cervical decompression at C4-5 and C5-6. The claimant was advised at this medical appointment that his cervical fusion surgery would be scheduled shortly after the first of year, in early January of 2008.
5. On January 8, 2008, Christina Gerritsen, insurance adjuster for Gallagher Bassett Services, the third-party administrator for the employer in this case, sent correspondence including a photo of a street to Dr. Wilkey after receiving a request for surgical authorization for the Claimant. Adjuster Gerritsen posed numerous facts in this correspondence to Dr. Wilkey, not questioning the need for surgical intervention, only questioning whether the work accident was the prevailing cause of the need for the medical treatment. After reviewing this correspondence from the insurance adjuster questioning the causation of the work accident, Dr. Wilkey reversed his December 11, 2007 medical causation opinion and determined the work accident was not the prevailing cause of the Claimant's need for surgery. Once Dr. Wilkey reversed his medical causation opinion, the Claimant was denied additional medical treatment and medical bills of Open MRI and Advanced Training and Rehab were refused for payment by adjuster Gerritsen.

1. Claimant was examined and evaluated by neurosurgeon, Dr. David Kennedy, on February 28, 2008. After reviewing relevant medical records and films, after taking various histories from the claimant, after performing a physical examination on the claimant, and based on his background as a board certified neurosurgeon, Dr. Kennedy was of the opinion the October 15, 2007 work accident was the prevailing cause of the claimant's neck injury. Dr. Kennedy agreed with Dr. Wilkey that the claimant required surgical intervention to correct the C4-5 and C5-6 radiculopathies in his cervical spine.
2. Dr. Kennedy opined the prevailing factor or cause of the claimant's neck injury and need for surgery was the October