Danny Coleman v. Drake Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-053449

Employee: Danny Coleman

Employer: Drake Corporation

Insurer: Virginia Surety Company, Inc. c/o Cambridge Integrated Services

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 April 20, 2009. The award and decision of Administrative Law Judge Maureen T. Tilley, issued April 20, 2009, 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 24th day of June 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Danny Coleman

Injury No. 03-053449

Additional Party: N/A

Insurer: Virginia Surety Company Inc. c/o Cambridge Integrated Services

Hearing Date: February 4, 2009

Checked by: MT/kh

- Are any benefits awarded herein? Yes

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

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

- Date of accident or onset of occupational disease? June 6, 2003

- State location where accident occurred or occupational disease contracted: Jefferson County, MO

- Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

- 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

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: The employee testified that on June 6, 2003 he was carrying a saw blade weighing between 80 to 100 pounds when his foot slipped and he jerked backwards. The employee had symptoms of low back pain and head and neck pain.

- Did accident or occupational disease cause death? No

- Parts of body injured by accident or occupational disease: Cervical spine and lumbar spine

- Nature and extent of any permanent disability: See findings

- Compensation paid to date for temporary total disability: $\ 7,132.00

- Value necessary medical aid paid to date by employer-insurer: $\ 9,718.06

- Value necessary medical aid not furnished by employer-insurer: None

- Employee's average weekly wage: $\ 539.03

- Weekly compensation rate:

Temporary total disability rate and permanent total disability rate: $\ 359.35

Permanent partial disability rate: $\ 340.12

- Method wages computation: By agreement

- Amount of compensation payable: See Findings

- Second Injury Fund liability: N/A

- Future requirements awarded: None

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: Robert Miller

On February 4, 2009, the employee, Danny Coleman, appeared in person and by his attorney, Robert Miller, for a hearing for a final award. The employer was represented at the hearing by its attorney, Drake Corporation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

- Covered employer: Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act.

- Covered employee: On or about the date of the alleged accident the employee was an employee of Drake Corporation and was working under the Workers' Compensation Act.

- On or about June 6, 2003, the employee sustained an accident arising out of and in the course of his employment.

- Notice: Employer had notice of employee's accident.

- Statute of limitations: Employee's claim was filed within the time allowed by law.

- Average weekly wage and rate:

Average weekly wage: $\ 539.03

Temporary total disability rate and permanent partial disability rate: $\ 359.35

Permanent partial disability rate: $\ 340.12

- Temporary disability paid by employer-insurer: \$7,132.00

- There is not a claim for past or future medical aid or mileage.

- Medical aid furnished by employer-insurer: \$9,718.06 (This amount was stipulated to by both parties after the hearing).

- Medical causation: Whether the employee's injury was medically causally related to accident or occupational disease.

- Permanent total disability

The following exhibits were offered and admitted into evidence:

- Dr. Yusuf Chaudhry records

- Jefferson Memorial Hospital MRI cervical spine

- Unity Corporate Health records

- St. Anthony's Medical Center records

- PRORehab physical therapy evaluation

- Dr. Alexander Beyzer and Dr. Faisal Albanna records

- Metro Imaging MRI of the lumbar spine

- Dr. Lang report

- Dr. Tate report

- The Work Center functional capacity evaluation

- Dr. Franz Wippold II records

- St. Louis Neurological Institute notes

- Vista Imaging of Jefferson County records

- Dr. Franz Wippold II records

- Dr. Barry Feinberg report

- Dr. Barry Burchett report

- Dr. Simpelo disability evaluation

- Dr. Seth Paskon records

- Dr. Robert Swarm pain management evaluation

- Dr. David Robson report

- Dr. David Robson report

- Dr. Davis Robson curriculum vitae

Employer-Insurer's Exhibits:

- Report of Dr. Russell Cantrell

- Lumbar MRI from Metro Imaging

- Report of Dr. Sandra TATE

- Report from Dr. Simon Horenstein dated 9/4/07

- Report from Dr. Simon Horenstein dated 11/27/07

- The employee testified that on June 6, 2003 he was carrying a saw blade weighing between 80 to 100 pounds when his foot slipped and he jerked backwards. The employee stated that at that time he had symptoms of low back pain and head and neck pain.

- The employee saw his personal physician on June 10, 2003 who sent him for an MRI of his cervical

spine. The employee testified he has low back pain, pain in both legs, neck pain, shoulder and arm pain and headaches as a result of the incident on June 6, 2003. Prior to June 6, 2003 the employee worked 16 years for Drake Corporation.

- The employee testified that he now has pain symptoms to all parts of his body from head to toe. His pain in his mid back, shoulders, arms and his neck limit his daily activity. The pain limits his ability to drive, sit, walk and stand. He last worked on June 6, 2003. He has a social security disability hearing on February 24, 2009. He and his wife live on her Supplemental Security Income benefit.

- The employee testified that he can only walk 50 to 100 feet and he can only sleep two to three hours a night. He has a GED, has worked only as a laborer and completed the 10th grade. The employee testified that he is in too much pain to work at any job. His low back pain is a 10+ on a scale of 1 to 10 and his leg pain is a 9 to 10 on that scale. He takes Tylenol for his headaches and morphine prescribed by Dr. Chaudhry for his pain. He also has congestive heart failure, hypertension and elevated cholesterol.

- The employee has taken morphine since 2005.

- The employee now sits in his wheelchair much of the time. He also uses a walker and a cane.

- In 1995 to 2002 the employee had a business chopping wood. He could not cut wood in the fall of 2003. The employee does some chores around his house, such as laundry in his wheelchair using a floor grabber. He also cooks sandwiches and soup, makes cereal and gets cans from the pantry. His wife and two daughters do the dishes and clean up. He does no recreational activity except play his acoustic guitar. He does a home exercise program in bed by raising his hands and left leg and bending his back. The employee has not been able to lift his right leg since June 6, 2003.

- The employee's wife, Rosemary Coleman testified that she and the employee were married in 1984 and that the employee supported his family until June of 2003.

- She and the employee sleep in the same room on separate hospital beds. The employee watches television and sleeps two to three hours a night.

- The employee first sought medical treatment at Unity Corporate Health on June 12, 2003. His initial complaints were of low back pain radiating into the right leg and heel. The employee gave a history of a fall six days prior with no history of back pain prior to the accident. The employee was diagnosed with an acute low back strain/sprain. Due to the severity of his complaints, the employee was referred to Dr. Beyzer for a neurosurgical consult.

- The employee was ordered to undergo a lumbar x-ray. The lumbar spine was viewed from five different angles. No fracture, dislocation, or bone destruction was found. The alignment of the vertebrae was found to be good. The x-ray was determined to be essentially normal.

- On June 12, 2003, the employee was referred by Dr. Yusuf Chaudhry to Jefferson Memorial Hospital for a cervical MRI.

- The MRI technician was given a history of nick stiffness for "1.5 years". The MRI showed discosteophyte complexes at all levels from C3-4 through C6-7. Mild mass effect was seen at all

above levels with no significant cord deformity or canal stenosis. Osteophyte complexes and degenerative changes led to mild foraminal narrowing on the left at C3-4 and the right at C4-5.

- On June 23, 2003, the employee was evaluated for physical therapy by Pro Rehab.

- The employee described the weight of the saw blade that he was carrying at the time of his injury as being between 50-60 ponds. The employee described to the physical therapist constant pain over his "tailbone, pelvis, and 'last disk of my back".

- The employee reported pain of 9-9.5/10 in his back since the incident. On the Oswestry Low Back Pain Disability Questionnaire, the employee scored 70\%, indicating crippled perceived disability. The employee demonstrated a positive result in 3/5 Waddell categories, indicating a possible non-organic cause of his complaints. On the Inappropriate Symptoms Questionnaire, the employee scored 4/5.

- A June 27, 2003, note from Pro Rehab states that the employee's complaints had greatly decreased since his initial evaluation. The employee reported pain of only $2 / 10$ and scored a 9 % on the Oswestry test.

- The employee was evaluated by Dr. Alexander Beyzer on June 30, 2003. The employee complained of neck and back pain dating back to the work injury.

- The employee stated that he had a pain of $7 / 10$ in both his neck and back. The employee told Dr. Beyzer that his physical therapy had not helped. Due to the employee's continued complaints of pain, Dr. Beyzer ordered an MRI of the lumbar spine and an EMG of both lower extremities.

- Dr. Beyzer reviewed the MRI's of both the lumbar and cervical spines. He found the cervical MRI to be unremarkable. The lumbar MRI showed central disc bulging at L5-S1 with degeneration at that same level. Dr. Beyzer diagnosed cervicalgia, lumbago, degenerative disc, and myofascial pain.

- The employee was given a trigger point injection into the bilateral lumbosacral areas. The employee then received an epidural steroid injection from