Kirk Wilson v. Allied/Midwest Waste Bridgeton

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 January 16, 2009.

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 Chief Administrative Law Judge Kathleen M. Hart, issued January 16, 2009, is attached and incorporated by this reference.

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:

Employee: Kirk Wilson

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Allied/Midwest Waste Bridgeton

Additional Party: Second Injury Fund (open)

Insurer: American Home Assurance c/o AIG Domestic Claims

Hearing Date: October 29, 2008

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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 6, 2007
5. State location where accident occurred or occupational disease contracted: St. Louis
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

- 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: Claimant was moving a heavy steel trash container when he injured his low back.
3. Did accident or occupational disease cause death? No Date of death? n/a
4. Parts of body injured by accident or occupational disease: Low Back, Body as a Whole
5. Compensation paid to-date for temporary disability: None
6. Value necessary medical aid paid to date by employer/insurer? Unknown
7. Value necessary medical aid not furnished by employer/insurer? $\ 11,533.55

A hearing was held on the above captioned matter October 29, 2008. Kirk Wilson (Claimant) was represented by attorney Ann Dalton. Allied/Midwest Waste (Employer) was represented by attorney Kevin Leahy. The Second Injury Fund was left open.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The parties stipulated Employer and Claimant were operating under the provisions of the Missouri Workers’ Compensation law and Employer’s liability was fully insured by American Home Assurance c/o AIG Domestic Claims on the alleged date of injury.

The parties stipulated the issues to be resolved are as follows:

- Whether Claimant sustained an injury by accident arising out of and in the course of his employment.

- Whether Claimant provided proper notice of the injury to Employer.

- Whether Claimant’s back condition and complaints are medically and causally related to the alleged work injury.

- Whether Employer is liable for past medical expenses.

- Whether Employer is liable for future medical care.

- Whether Employer is liable for TTD benefits.

- Whether Claimant is entitled to the maximum rates of TTD and PPD.

- Whether the hearing was properly held over Employer Attorney’s objection.

Based on the competent and substantial evidence, I find:

- Claimant is a 41 year-old male who was employed by Employer as a driver since 1997. His duties included hauling and picking up trash, yard waste, and recyclables.

- On August 6, 2007, Claimant was pushing a heavy, ten yard long, steel container weighing over 100 pounds when he felt pain in his low back and into his left lower extremity. As per company policy, Claimant reported the incident to his supervisor, Jason Belt, that same day. Claimant continued working in pain the rest of the week. Because the pain persisted, on August 9, 2007 he called his family physician, Dr. Schmidt-Turner. She prescribed pain medications.

- Despite the pain medications, Claimant continued to experience severe back pain. On August 11, 2007, after moving his lawn mover, Claimant became incapacitated for the weekend. He was able to return to work Monday, August 13, 2007.

- Due to his ongoing severe back pain, Dr. Schmidt-Turner recommended an MRI. This was performed August 21, 2007, and showed a moderately large disc herniation at L5-S1 centrally and to the left of the midline with nerve root compression on the left side. There was also degenerative disc disease at L5-S1. Based upon the MRI findings, Dr. Schmidt-Turner referred Claimant to Dr. Hoffman, a neurosurgeon.

- Prior to seeing Dr. Hoffman, Claimant met with his supervisor, Jason Belt, to update Employer on his medical condition and seek authorization for treatment. Mr. Belt told Claimant Employer would authorize treatment if Claimant completed a report of injury indicating his injury occurred September 14, 2007, not August 6, 2007. This new injury date was chosen by Employer and is discussed in the Barnes Care note of September 25, 2007. (Exhibit A)

- Employer referred Claimant to Barnes Care September 18, 2007. The records from that date indicate a history of low back pain with left posterior thigh/calf pain that began while pushing a dumpster over a rocky area. This history is consistent with the history contained in all the other medical records. The Barnes Care doctor prescribed a muscle relaxer, discussed an MRI, and returned Claimant to work on light duty. Employer did not

have light duty available after September 20, 2007.

- On or about September 19, 2007, Employer filed a Report of Injury with the Division indicating Claimant was injured September 14, 2007, when he was pushing a container and felt a sharp pain in his low back.

- After reviewing the August MRI, the doctor at Barnes Care recommended Claimant see a back specialist. Before Claimant could get to a specialist, Employer sent Claimant a denial letter explaining benefits were denied due to the alleged late reporting of the incident.

- Claimant testified following receipt of the denial letter he returned to Dr. Schmidt-Turner. She referred Claimant to Dr. Khader who initially ordered physical therapy. This did not relieve Claimant's symptoms. Dr. Khader then performed a series of injections in late 2007. These injections did not relieve Claimant's symptoms. Dr. Khader referred Claimant to Dr. Shitut.

- Claimant testified he saw Dr. Shitut who recommended surgery. In an effort to avoid surgery, Claimant had several more injections in the spring of 2008. Claimant had little relief from these injections, and Dr. Stynowick referred Claimant to Dr. Hoffman. Dr. Hoffman also recommended surgery. Dr. Stynowick agreed Claimant would need surgery since the injections provided little relief.

- Since his last injection in April 2008, Claimant has been unable to obtain any further medical treatment on his own because he has no health insurance. He has received no TTD benefits.

- On August 4, 2008, Claimant was examined by Dr. Fallon Maylack, and orthopedist, at the request of Claimant's attorney. Dr. Maylack noted Claimant was injured August 6, 2007, when he pushed a yard waste container and experienced a sharp, sudden pain in his back and down his left leg. Dr. Maylack examined Claimant and reviewed his treatment records. He opined the August 6, 2007 work injury was the prevailing factor in the development of the herniated disc at L5-S1. Dr. Maylack concurred with Claimant's course of treatment and opined Claimant would require surgery to repair the disc herniation. He also opined Claimant remained temporarily disabled from his occupation as a driver for Employer.

- A claim for compensation was timely filed on October 23, 2007. The Division of Workers' Compensation acknowledged the claim and properly sent a copy to Employer and Insurer on or about November 5, 2007. (Claimant's Exhibit D)

- Claimant's attorney sent a certified request for statements pursuant to Section 287.215 (RSMo 2005) on February 11, 2008. The certification of delivery was signed by an agent of Employer/Insurer on February 14, 2008. (Claimant's Exhibit E)

- On July 18, 2008, Claimant’s attorney notified Ms. Sara Hangge of AIG Claim Services that her attorney had not entered an appearance and that Claimant’s attorney planned to file a hardship motion at the Division of Workers’ Compensation. Claimant’s attorney also demanded medical treatment and unpaid TTD benefits. (Exhibit E)

- Claimant’s attorney filed a motion for hardship setting, and a hardship mediation was scheduled for September 30, 2008. Claimant’s attorney notified Ms. Hangge of the mediation via facsimile on September 29, 2008. (Exhibit E)

- On September 30, 2008, the ALJ approved Claimant’s request for hardship hearing. Claimant’s attorney provided Ms. Hangge and Employer each a copy of the approved request the s