Larry Daly v. Powell Distributing, Incorporated

Employee: Larry Daly

Injury No. 99-138008

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Powell Distributing, Incorporated

Additional Party: None

Insurer: Continental Western Insurance Company

Hearing Date: October 7, 2008

Checked by: $\mathrm{HTH} / \mathrm{scb}$

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: September 12, 1999.
5. State location where accident occurred or occupational disease was contracted: Boone County, Missouri.
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.
11. Describe work employee was doing and how the occupational disease contracted: Lifting and stacking cases of soda for a number of years.
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: Cervical spine.

- Nature and extent of any permanent disability: N/A.

1. Compensation paid to-date for temporary disability: $\ 26,659.00.
2. Value necessary medical aid paid to date by employer/insurer? $\ 50,737.34.
3. Value necessary medical aid not furnished by employer/insurer? N/A.
4. Employee's average weekly wages: $\ 754.00.
5. Weekly compensation rate: $\ 503.00.
6. Permanent partial disability: $\ 303.01
7. Method wages computation: By agreement.

1. Amount of compensation payable: $\ 48,481.60

(400 weeks x $.40=160 weeks; 160 weeks x \$ 303.01=\ 48,481.60 )

1. Second Injury Fund liability: N/A.
2. Future Requirements Awarded: None.

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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Rick Montgomery.

Employee: Larry Daly Injury No: 99-138008

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

The parties appeared before the undersigned administrative law judge on October 7, 2008. The Division has jurisdiction to hear this case pursuant to §287.110 RSMo 2000. The parties provided briefs on the relevant issues on approximately October 20, 2008.

1. The employee and the employer were operating under the provisions of the Missouri Workers’ Compensation Law on or about September 12, 1999;
2. The employer’s liability was insured by Continental Western Insurance Company;
3. The employer had notice of the alleged accident and a claim for compensation was timely filed;
4. The employee’s average weekly wage was $\ 754.00;
5. The rate of compensation for temporary total disability (TTD) was $\ 503 and $\ 303.01 for permanent partial disability (PPD); and
6. The employer has paid $\ 26,659.00 in TTD, and has paid medical benefits in the amount of $\ 50,737.34.

The only issue before me is the nature and extent of the 1999 injury in the 99-13808 case.

This workers' compensation claim was heard on October 7, 2008, in Columbia, Missouri. The employee, employer/insurer, and the Second Injury Fund appeared .

Larry Daly (Claimant) is a 53-year-old male who was employed by Powell Distributing, Incorporated (Powell). Claimant was employed with Powell from 1995 to May 2000.

Claimant's work with Powell included "warehouse work." This included stacking and loading cases of soda on displays and onto trucks. Later he was promoted to a route salesman, in which he unloaded cases of soda at numerous stops on his truck route. He provided small and large stores with their daily supply of soda and other stock. He also assisted the stores in arranging the cases of soda into customer-appealing displays.

Mr. Daly described back pain which, while intermittent initially, became constant in the summer of 1999. On September 12, 1999, Mr. Daly sought medical treatment after waking up in pain at about 4:30 a.m. Although he had worked the week before, he had not worked the day before because he had taken his wife shopping for her birthday. In September 1999, Mr. Daly had had stiffness and soreness in his back as well as some right hip pain. The next morning, Mr. Daly went to the Boone County Hospital emergency room and was then referred to his physician, Dr. Mack. Dr. Mack saw Mr. Daly on September 13, 1999, and recommended that Mr. Daly not work that week. Dr. Mack referred Mr. Daly to Dr. Trecha.

Dr. Trecha set up Mr. Daly with exercises, physical therapy, and a Med-Ex program designed to build strength, none of which afforded Mr. Daly relief. Dr. Trecha recommended surgery that Mr. Daly did not feel he could afford.

When Mr. Daly returned to work at Powell Distributing, Inc., his condition worsened and he eventually had surgery on May 18, 2000. Mr. Daly participated in a physical therapy program after his surgery, but quit after he could no longer afford to participate. Mr. Daly never returned to work at Powell Distributing, Inc.

Dr. Randall Trecha, a specialist in orthopedic surgery concentrating on adult reconstructive spine surgery, testified by deposition that he initially saw Mr. Daly on September 29, 1999. Dr. Trecha diagnosed degenerative disk disease and lumbar strain and recommended a conservative course of therapy, including low-impact exercise and antiinflammatory medication.

Mr. Daly underwent surgery by Dr. Trecha on May 18, 2000. Mr. Daly was restricted from work by Dr. Trecha from May 15, 2000, through the date of surgery and since. Dr. Trecha never released Mr. Daly to return to work. Dr. Trecha described the surgery as a total decompression laminectomy at L4 and L5, a partial decompression laminectomy at L3, and a transverse fusion at L4-L5 and L5-S1, placement of pedicle screw instrumentation at L4-L5 and S1 bilaterally, and harvest of local bone graft.

Dr. Trecha recommended a four- to eight-week course of work hardening for Mr. Daly before he would declare him to be at maximum medical improvement.

Dr. Trecha opined that Mr. Daly's work with Powell Distributing, Inc., which required repetitive lifting of 300 to 400 cases of soda weighing approximately 20 pounds each, was a substantial factor in causing Mr. Daly's symptoms and his need for medical care. Dr. Trecha further opined that Mr. Daly's underlying degenerative spondylosis was accelerated by

Mr. Daly's work-related duties.

Claimant has worked as a delivery person for a relative's cookie store and now does part-time courier duty with a local bank. He works in the morning and his supervisor allows him to do whatever physical labor he feels that he can do.

In deposition, Dr. R. Cohen testified that he personally took a history of Claimant and reviewed his medical records. (Cl. Exh. A, pp8-9). He noted that Claimant had a 50\% permanent disability in his lumbar spine. (Id. at 21).

In deposition, Dr. R. Hein reviewed medical records and viewed a short videotape of Claimant. He noted that he would be surprised that the lumbar injury was caused by the lifting of heavy cases of sodas or other requirements of his employment. (Emp./Ins. Exh. 6, pp15-17).

Claimant bears the burden of proof to demonstrate that his injury was caused by his occupational activities. The Eastern District Court of Appeal noted:

Claimant has the burden of proving all the essential elements of the claim and must establish a causal connection between the accident and injury. Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo.App. E.D. 1996) citing: Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo.App. E.D. 1990), overruled on other grounds; Hampton v. Big Boy Steel Erection, 121 S.W.3d (Mo. Banc 2003).

Since Claimant's surgery he has been unable to resume his prior work as a route truck driver. He has been able to perform delivery services for a cookie shop owned by a relative and is now a courier at a local bank. At the

bank he works half days and does what he "c