Kelvin Venerable v. Kansas City Star

1. Are any benefits awarded herein? No.
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: 8/18/01
5. State location where accident occurred or occupational disease was contracted: Overland Park, Kansas.
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, St. Paul/Travelers Insurance Company
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was loading heavy boxes onto his truck when he felt pain in his neck and left shoulder.
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: Body as a whole. 14. Nature and extent of any permanent disability: None. 15. Compensation paid to-date for temporary disability: $\ 55,944.96 16. Value necessary medical aid paid to date by employer/insurer? $\ 102,839.65

1. Value necessary medical aid not furnished by employer/insurer? $\ 0
2. Employee's average weekly wages: $\ 685.40
3. Weekly compensation rate: $\ 329.40
4. Method wages computation: Comparable employee - Mo. Rev. Stat. §287.250.1(5)
5. Amount of compensation payable:

Medical Already Incurred ........................................... $\ 102,839.65

Less credit for expenses already paid ............................(\$102,839.65)

Total Medical Owing ............................................................................ $\ 0

Temporary Disability Incurred ........................................... $\ 55,944.96

Less credit for benefits already paid .............................. (\$55,944.96)

Total TTD Owing .................................................................................... $\ 0

Total Award: $\ 0

1. Second Injury Fund liability: N/A ............................................................................................ None 0 weeks of permanent partial disability from Second Injury Fund ........................................ None Uninsured medical/death benefits: ............................................................................................ None Permanent total disability benefits from Second Injury Fund: ................................................ None -- weekly differential ( --) payable by SIF for -- weeks beginning .......................... None -- and, thereafter, for Claimant's lifetime. ............................................................................ None

Total: $\mathbf{0 . 0 0}$

1. Future requirements awarded: None

Employee: Kelvin Venerable Injury No: 01-095571

Dependents: N/A

Employer: The Kansas City Star

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Insurer: St. Paul Travelers Insurance Company

Hearing Date: July 2, 2008

On July 2, 2008, the Employee and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The Employee, Kelvin Venerable, appeared in person and with counsel, James Roswold. The Employer had previously settled with the Claimant. The Second Injury Fund appeared through Assistant Attorney General, Maureen Shine. This is an alleged permanent total disability case. The primary issue the parties requested the Division to determine was whether or not Mr. Venerable is permanently and totally disabled as a result of the alleged injury, and whether the Second Injury Fund has any liability. For the reasons outlined below, I find that Kelvin Venerable is permanently and totally disabled from the 8/18/01 last accident in isolation and, therefore, I find that there is no permanent total disability liability assessed against the Second Injury Fund. No benefits are awarded to Clamant.

The parties stipulated that:

- On or about August 18, 2001 ("the injury date"), the Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Law with its liability fully insured by Travelers/St. Paul Insurance Company;

- Mr. Kelvin Venerable was its employee operating under and working subject to the Missouri Workers' Compensation Law; at the time of injury, he was working in Overland Park, Kansas;

- Mr. Venerable filed his claim within the time allowed by law and gave proper notice to the Employer in a timely manner;

- Employee's compensation rate is $\$ 456.96 / \ 329.40;

- Past temporary total disability benefits of $\ 55,944.96 representing 122-5/7ths weeks have been paid by the Employer;

- Medical benefits have been provided by Employer totaling $\ 102,839.65.

The parties requested the Division to determine:

- The nature and extent of disability;

- whether Kelvin Venerable is permanently and totally disabled; and

- whether Kelvin Venerable is permanently and totally disabled by either the August 18, 2001 injury in isolation or the combined effects of pre-existing disabilities with the August 18, 2001 injury.

CLAIMANT'S EXHIBITS: Exhibits A through W were admitted into evidence.

JOINT EXHIBIT: Deposition of Claimant, Kelvin Venerable, was admitted into evidence.

SECOND INJURY FUND EXHIBITS: Deposition of vocational expert, Mary Titterington, was admitted into evidence.

Based on the above exhibits and the testimony of Kelvin Venerable, I make the following findings.

Kelvin Venerable is a 50-year-old married man who resides with his wife at 2229 N, 63rd Street, Kansas City, Kansas. He is a high school graduate, having graduated from Bonner Springs High School in 1976. Since 1980, Mr. Venerable has worked essentially as a dump truck driver and delivery person/driver. From 1980 to 1981, he drove a dump truck for his father hauling sand and rock at Venerable Trucking. In 1981, he purchased his own truck and performed the same work as an owner/operator dump truck driver until 1997, still with Venerable Trucking. From 1997 to 2000, Mr. Venerable worked for McGinnis Trucking, a subcontractor for the Kansas City Star, as a truck driver, loading, hauling and delivering newspapers for the Star. Thereafter, from 2000 to 2001, he performed the same work for the Kansas City Star directly.

Prior to that time, Mr. Venerable worked as a machine operator for Sewell Plastics where he sustained a crush/partial amputation injury to his left hand for which he underwent surgery and approximately one-and-one-half to two years of treatment. He filed a workers' compensation claim for that injury in Kansas which he eventually settled for 30 % to the body as a whole. Thereafter, Claimant went to work for his father as set out above. He was able to perform his work as a dump truck driver and later delivery driver with no significant problems.

On August 18, 2001, Claimant injured his neck and left shoulder when, during the course of his employment for the Kansas City Star, he was loading heavy boxes onto his truck when he felt pain in his neck and left shoulder. He reported his injury and was sent to Occupational Health Services where he was seen by Dr. J. Ralph Payne. X-rays were taken and medicines were prescribed. An MRI of his cervical spine showed multilevel degenerative disc disease with stenosis superimposed upon disc herniations at C3-4 and C4-5. He was referred to Jonathan Chilton, M.D. Epidural steroid injections were administered. The Claimant underwent CT myelography and then was operated at Research Medical Center on November 15, 2001 for anterior cervical discectomy and fusion C5 to C7. He was given work restrictions by Dr. Chilton with avoidance of lifting, pushing, and pulling greater than 25 pounds. Due to these restrictions, Claimant was not accommodated by the Employer, who did not take him back to work.

Mr. Venerable continued to have difficulty from his neck to his left shoulder and intermittently descending down the arm toward the hand. He had intermittent difficulties of the right upper extremity with numbness and tingling. He was worsened by looking upward or rotating his head to the left as well as by any lifting and was continued on narcotic medication. Due to these problems, Dr. Chilton ordered another MRI which revealed severe chronic degenerative changes at C4-5 and C7-T1. He was judged to be at maximum medical improvement by Dr. Chilton on 5/31/02. A second opinion was obtained from C. Edward Wilson, M.D., who advised epidural steroid injections. Several were given without significant improvement. Thereafter, Claimant was seen by Glenn Amundson, M.D. An EMG was performed by Dr. Nalamachu which

showed evidence of chronic C5-6 radiculopathy on the left and evidence of disuse atrophy in the left first dorsal interosseous muscle. CT myelography was performed with finding of advanced osteophytic bar formation at C4-5 and C3-4. Therefore, on 3/3/03, Dr. Amundson performed an anterior cervical discectomy and fusion from C3 to C5. The patient had temporary relief, and was judged to be at maximum medical improvement on 1/11/04. He was given restrictions to be at sedentary physical activities or less and was asked to continue on Oxycontin and Percocet.

Claimant continued to have pain in his neck with worsening with all activities. In addition, he had tingling radiating to all fingers. He discontinued prescription medicine by going through a drug rehabilitation program to be free of narcotics. Due to the continuing pain, Dr. Amundson ordered additional diagnostic tests to include MRI, CT myelography and EMG for his cervical spine. For continuing upper extremity complaints, he underwent MRI studies of his thoracic spine and left shoulder. He was then transferred to the care of William O. Reed, Jr., M.D. Subacromial steroid injections were