Stephen Petelik v. Motor Control Specialists

(Affirming Award and Decision of Administrative Law Judge)

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. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge 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 the award and decision of the administrative law judge dated December 23, 2008. The award and decision of Administrative Law Judge Linda Wenman, issued December 23, 2008, is attached and incorporated by this reference.

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 2nd day of June 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

FINDINGS OF FACT AND BULINGS OF LAW

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: August 19, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO

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 employer was doing and how accident occurred or occupational disease contracted. While

lifting a control panel, Employer fell, landing on his back and side, and the control panel landed on his left arm.

1. Did accident or occupational disease cause death? No
2. Part(s) of body injured by accident or occupational disease: Left arm and low back.

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

1. Compensation paid to date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? $\ 588.70

Employee: Stephen Petelik Injury No.: 03-142058

1. Value necessary medical aid not furnished by employer/insurer? $\ 136,170.82

- Employee's average weekly wages: $\ 582.88

1. Weekly compensation rate: $\$ 388.78 / \ 347.05
2. Method wages computation: Stipulated

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: $\quad \$ 272,341.64^{*}

238.4706 weeks of temporary total disability (or temporary partial disability) \quad \$ 185,503.60^{* *}$

Permanent total disability benefits from Employer beginning April 16, 2008, for Claimant's lifetime TO BE DETERMINED

1. Second Injury Fund liability: No

Total: $\quad \$ 457,845.24^{* * *}$

1. Future requirements awarded: Pursuant to award

*Amount doubled from $\ 136,170.82

**Amount doubled from $\ 92,751.80

*** Payable now, in addition to ongoing PTD benefits starting April 16, 2008

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 payments in favor of the following attorney for necessary legal services rendered to the claimant: Ellen Morgan

On May 18, 2005, a Temporary Award was issued by the Honorable Margaret D. Landolt, directing Motor Control Specialists (Employer) to provide the following: medical treatment referable to Stephen Petelik's (Claimant) low back; past and ongoing temporary total disability payments; and payment of past medical expenses incurred by Claimant related to treatment sought for his low back. Employer appealed Judge Landolt's ruling to the Labor \& Industrial Relations Commission (LIRC). On July 26, 2005, the LIRC dismissed Employer's Application for Review finding no jurisdictional grounds for review. Employer next appealed the LIRC's dismissal to the Missouri Court of Appeals, Eastern District (Court of Appeals). On April 25, 2006, the Court of Appeals dismissed Employer's appeal finding no jurisdictional grounds for review. As of the date of final hearing, Employer has not complied with any order as set forth in Judge Landolt's Temporary Award.

The undersigned Judge has reviewed the Temporary Award of May 18, 2005, along with the transcript and evidence presented at the hardship hearing. Following this review and the testimony and evidence presented at the hearing for final award, the findings of fact and rulings of law found in Judge Landolt's award are adopted in this final award, attached to the final award, incorporated by this reference, and will not be repeated. Any additional findings of fact and conclusions of law found necessary to supplement or to comport to the new evidence presented at this trial will be included in this award.

A hearing for final award was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on September 24-25, 2008, and continued to September 30, 2008. The parties were provided an opportunity to file a posttrial brief, and the briefs were due by October 21, 2008. Post-trial briefs were received on behalf of Claimant and the Second Injury Fund. No post-trial brief was submitted by Employer. Attorney Ellen Morgan represented Claimant. Employer is insured by Ohio Casualty Insurance Company, and represented by attorney Kevin Leahy. Assistant Attorney General Carol Barnard represented the Second Injury Fund (SIF).

Prior to the start of the hearing, the parties identified the following issues for disposition in this case: accident as relates to Claimant's alleged low back injury; medical causation as relates to Claimant's alleged low back injury; notice as relates to Claimant's low back injury; liability for past medical expenses; liability of Employer and SIF for permanent total disability (PTD) or permanent partial disability (PPD) benefits; future medical care; liability of Employer for past temporary total disability (TTD) benefits; attorney's fees and costs under $\S 287.560$ RSMs.; doubling of Temporary Award; timeliness of Employer's answer; and Employer's request for issuance of an additional Temporary Award if Claimant is not found to be at maximum medical improvement (MMI).

Claimant offered Exhibits A-S, U-VV, and WW-ZZ. Employer offered Exhibits 1-2, and 4-5. The exhibits were admitted into the record. Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

All evidence presented has been reviewed. Only testimony and evidence necessary to support this award will be reviewed and summarized.

1. Claimant is forty-one years old, a high school graduate, and attended a community college course to obtain a commercial driving license. Prior to his employment with Employer, Claimant worked in a furniture store, briefly as a truck driver, in construction, as a landscaper, in a pizza parlor, and as a maintenance man.
2. In 1996, Claimant was a passenger in a motor vehicle involved in a roll-over accident. As a result of the accident, Claimant had glass fragments in his scalp and left leg, but no other injuries. All occupants of the vehicle were treated and released from the hospital.
3. On August 19, 2003, Claimant sustained a work related injury as outlined in Judge Landolt's Temporary Award.
4. On September 24, 2003, Claimant's initial MRI of his lumbar spine demonstrated a large posterior central herniated disc with moderate diffuse annular bulge at L5-S1, with marked compression of the left anterior thecal sac and origin of the S1 nerve root along with encroachment of the inferior left and right L5-S1 foramen. The MRI also displayed a moderate diffuse bulge with flattening of the anterior thecal sac at L4-5 with the suggestion of a focal annular tear.
5. Following issuance of the Temporary Award and Employer's continued denial of medical care, Claimant maintained medical treatment with Drs. Livingstone, Graven, and Vellinga utilizing his own and then wife's medical insurance. On July 14, 2005, following a positive discogram, a repeat MRI of Claimant's lumbar spine was obtained. The MRI demonstrated mild posterior bulges and stenosis at L4-5, and a significant central disc protrusion at L5-S1 that significantly narrowed the L5-S1 foramen bilaterally. Surgery was recommended.
6. On October 3, 2005, Claimant underwent an L4-5 and L5-S1 decompression laminectomy, posterior fusion with hardware, cages and bone grafts performed by Dr. Graven. Claimant attended post-operative physical therapy, experienced less radicular pain, but continued to complain of low back pain. By February 21, 2006, post-operative x-rays were interpreted by Dr. Graven as demonstrating a significantly solid fusion and intact hardware.
7. On April 27, 2006, Dr. Graven noted Claimant continued to require four Percocet pills per day, and opined "I am doubtful that he will have real significant improvement after this." On August 17, 2006, Dr. Graven discussed additional treatment options with Claimant including insertion of a spinal cord stimulator, repeat discogram, and further surgery. Claimant remained on Percocet. On December 12, 2006, Dr. Graven noted Claimant still had low back and right leg pain, was considering the spinal cord stimulator, however, "light [life] changes prohibit him from having surgery at this time." Dr. Graven also opined Claimant was unable to work. On April 6, 2007, Dr. Graven referred Claimant to Dr. Vellinga for further pain management.
8. On April 25, 2007, Dr. Vellinga suggested a repeat MRI of Claimant's lumbar spine be obtained. The MRI was performed on July 17, 2007, and demonstrated anterior/posterior spinal fusions L4-S1, and edema of the L4, L5, and S1 vertebral bodies. Dr. Vellinga continued to provide pain management treatment utilizing a regimen of Percocet and Duragesic patches, and a muscle relaxant as needed.
9. On April 27, 2008, in response to a disability inquiry, Dr. Graven indicated Claimant had reached MMI, his level of activity was relatively sedentary, and Claimant was unable to do any repetitive bending, stooping, squatting, or any manual labor. Dr. Graven confirmed Claimant remained under the care of Dr. Vellinga and required daily narcotic analgesics. Dr. Graven opined "if