Michael Edwards v. Midwest Block and Brick, Inc.

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. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated November 25, 2008.

The Commission affirms all findings and conclusions of the administrative law judge, but for the administrative law judge's finding as to when employer was to begin paying permanent total disability benefits to employee. The Commission modifies the award, by finding employee reached maximum medical improvement on December 21, 2004; and accordingly that employee's permanent total disability benefits from employer would begin on December 22, 2004, for employee's lifetime.

The administrative law judge found employer was liable for permanent total disability benefits at the rate of $\ 570.27, beginning December 27, 2004, for employee's lifetime. The administrative law judge failed to make a finding as to when employee reached maximum medical improvement with respect to the December 24, 2002, injury.

Employee saw Dr. Robson on December 21, 2004, at which time he found employee to have reached maximum medical improvement from his December 24, 2002 injury, and that no further medical or surgical treatment would significantly alter his status.

We find that the evidence establishes employee reached maximum medical improvement on December 21, 2004, with respect to his December 24, 2002 injury. Therefore, employee's permanent total disability benefits against employer would begin on December 22, 2004.

Based on the foregoing, we modify the November 25, 2008 award to find that employee is entitled to receive

permanent total disability benefits from employer in the weekly amount of $\ 570.27, beginning December 22, 2004, for employee's lifetime.

As stated above, all remaining findings of fact and conclusions of law are affirmed.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued November 25, 2008, is attached and incorporated by this reference, to the extent it is not inconsistent with this Final Award.

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 7th day of April 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Michael Edwards

Injury No.: 02-144139

Dependents: Barbara Edwards, Daniel Edwards, Christina Edwards Before the

Enployer: Midwest Block and Brick, Inc.

Additional Party: Second Injury Fund

Insumer: General Casualty Company of Wisconsin

Hearing Date: September 25, 2008

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: December 24, 2002

- State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. 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 occurred or occupational disease contracted: The claimant suffered a severe low back injury while lifting heavy materials.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Low back

- Nature and extent of any permanent disability: Permanent Total Disability

1. Compensation paid to-date for temporary disability: $\ 51,163.08
2. Value necessary medical aid paid to date by employer/insurer: 139,042.11

Employee: Michael Edwards

Injury No.: 02-144139

1. Value necessary medical aid not furnished by employer/insurer? None to date

- Employee's average weekly wages: $\ 855.41

1. Weekly compensation rate: $\$ 570.27 / \ 340.12
2. Method wages computation: By agreement

1. Amount of compensation payable:

172 weeks of permanent partial disability from Employer \58,500.64

Permanent total disability benefits from Employer at the rate of \ 570.27 beginning December 27, 2004, for Claimant's lifetime

1. Second Injury Fund liability: No

None

Total: Not determined

1. Future requirements awarded: See additional Findings of Facts and Rulings of Law

Said payments to begin as of December 27, 2004, 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: Dean L. Christianson, Esq.

- This workers' compensation case raises several issues arising out of a work related injury in which the claimant injured his back, legs and left knee on December 24, 2002, while lifting heavy materials at work. The issues for determination are (1) future medical care, (2) permanent disability, (3) liability of the Second Injury Fund, and (4) dependency.

- At the hearing the claimant testified in person and offered depositions of Mark A. Lichtenfeld, M.D., Raymond Cohen, D.O., and Timothy G. Lalk, records from the Division of Workers' Compensation, and

voluminous medical records. The defense offered records of Dr. Robson and Dr. Nogalski.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 1994, because the accidents occurred in Missouri.

This fifty-six year old claimant, a yardman for a brick and block company, has a high school education with no post high school education outside of on-the-job training and a short management course in the 1970's. He has not served in the U.S. military. Most of his past employment has involved the operation of heavy trucks and machinery.

November 1, 2000 Injury

On November 1, 2000, the claimant injured his left knee, hip and back when he slipped on some loose material on the ground, twisting his left knee and hip. He felt immediate sharp pain. The accident occurred at the end of the day so he went home, but he later went to Unity Corporate Health for treatment. He received a brace and a referral to Dr. Nogalski, an orthopedist. Dr. Nogalski ordered physical therapy but did not perform any surgical procedures. After this treatment claimant felt somewhat better, though he felt he still had some knee weakness along with pain and swelling. His hip was also tender at times, and he had some pain in his lower back.

December 24, 2002 Injury

On December 24, 2002, the claimant injured his back and legs lifting heavy materials, and he felt a pop in his back. He took it easy the rest of the day and his work ended shortly after the accident. He tried to rest for a period of days, but when he did not improve he went to the emergency room at St. Joseph's Hospital West. He received a pain shot and an MRI scan. He followed up with his family physician, Dr. Sommers, but then received a referral to Dr. Robson. Dr. Robson gave him physical therapy and ordered a myelogram and CT scan. He also referred the claimant to Dr. Hurford who performed one injection into his back. This provided no relief, so the claimant returned to Dr. Robson and underwent a fusion with hardware and screws. He testified that the surgery helped him a bit, though not a great deal. He testified that bone was taken from his left hip for the surgery and that he continues to have tenderness in his hip to this day. After the surgery, he received physical therapy and aquatic therapy.

On April 21, 2004, the claimant felt a pop, immediate knee pain, and swelling in his left knee while performing stair steps during physical therapy for the 2002 injury. He went to Dr. Nogalski who ordered x-rays, physical therapy, and an arthrogram. Otherwise, the claimant was released without further care. Since then, the claimant has consulted his family physicians, Dr. Stacheki and Dr. Anzalone, for his knee pain.

During the course of treatment for his April 21, 2004, knee injury, he also continued seeing Dr. Robson for his back. Dr. Robson performed a second surgical procedure installing additional metal into his back. Grafting was taken from his right hip on this occasion, and he continues to have tenderness in the right hip. Dr. Robson eventually discharged him, and the claimant has followed up with his family physician, Dr. Anzalone, for pain medication monthly.

Dr. Lichtenfeld

Dr. Lichtenfeld diagnosed the claimant with several medical conditions. With regard to the 2000 accident, he diagnosed left knee strain with a chronic left hip strain. See Dr. Lichtenfeld, page 25. He attributed disability to these conditions at 10 % of the knee and 10 % at the hip. He also opined that the claimant had pre-

existing permanent partial disabilities, which he indicated was as follows: 30 % left knee; 45 % right knee; 15 % loading factor on the knees; 50 % left long finger; 35 % left ring finger; 25 % left hand. See Dr. Lichtenfeld, pages 26-27.

With regard to the 2002 and 2004 occurrences, Dr. Lichtenfeld found that the claimant has atrophy in his right calf due to his injury. See Dr. Lichtenfeld deposition, page 24. He diagnosed: posterior disc bulge at L2-3; right lateralized disc bulge at L4-5 causing bilateral neural foraminal narrowing; partial nerve root cutoff of the right L4 and S1 nerve roots as noted on the June 13, 2003, lumbar myelogram; right lateralized bulging disc causing right L4 neural foraminal encroachment; status-post L4-5 laminectomy and discectomy; status-post harvesting of left iliac crest bone graft; status-post insertion of bilateral cages; status-post posterior lumbar interbody fusion with bone graft and hardware; status-post medial facetectomy; right L4 and L5 radiculopathy; pseudoarthrosis at L4-5 with no interbody or posterolateral fusion; status-post hardware removal and fusion exploration; status-post harvesting of right iliac crest bone graft; status-post laminotomy and exploration of left L5 nerve root; status-post revision of spinal fusion with right iliac crest bone graft and hardware; incitation, exacerbation and acceleration of preexisting degenerative changes in the left knee; chronic left knee strain; chondromalacia of the left knee. Se