Oscar Scott v. Nationwide Distribution & Warehousing, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-109377

Employee: Oscar Scott

Employer: Nationwide Distribution \& Warehousing, Inc.

Insurer: American Home Assurance Company

c/o AIG Domestic Claims, Inc.

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 23, 2009. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued June 23, 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 $27^{\text {th }}$ day of October 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Hearing Date: March 18, 2009

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: May 6, 2005.
5. State location where accident occurred or occupational disease was contracted: St. Louis City.
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 accident occurred or occupational disease contracted: Claimant jarred and injured his back while operating a forklift on an uneven surface.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Low back, body as a whole.
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 31,921.97
16. Value necessary medical aid paid to date by employer/insurer? $\ 111,662.39

Employee: Oscar Scott

Injury No.: 05-109377

1. Value necessary medical aid not furnished by employer/insurer? N/A.
2. Employee's average weekly wages: $\ 680.26
3. Weekly compensation rate: $\$ 453.51 / \ 354.05
4. Method wages computation: By agreement.

1. Amount of compensation payable:

Permanent total disability benefits of $\ 453.51 per week from Employer beginning 10/13/2006, for Claimant's lifetime

1. Second Injury Fund liability: No

TOTAL:

INDETERMINANT

1. Future requirements awarded: Medical treatment as specified in the Award.

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: James Hoffmann

Issued by DIVISION OF WORKERS' COMPENSATION

The matter of Oscar Scott ("Claimant") proceeded to Hearing to determine the benefits due under the Missouri Workers' Compensation Act ("Act") as a result of Claimant's May 6, 2005 work injury. Attorney James Hoffmann represented Claimant. Attorney John D. Dietrick represented Nationwide Distribution \& Warehousing, Inc. ("Employer") and American Home Assurance Company c/o AIG Domestic Claims, Inc. ("Insurer").

The parties agreed that on or about May 6, 2005, Claimant sustained an accidental injury arising out of and in the course of his employment that resulted in injury to Claimant's low back and body as a whole. Claimant earned an average weekly wage of $\ 680.26, which corresponds to compensation rates of $\ 453.51 for total disability benefits, and $\ 354.05 for permanent partial disability ("PPD") benefits. Employer paid temporary total disability ("TTD") benefits of \$31,921.97 from July 3, 2005 through October 12, 2006. Employer also paid medical benefits totaling $\ 111,662.39. Employment, venue, notice, timeliness of the claim and coverage of the Act are not at issue.

The parties agreed to administratively close Injury Number: 05-048271 which was a duplicate file set up by the Division of Workers' Compensation with regard to this injury.

The issues to be determined are the nature and extent of Claimant's permanent disability; and whether Employer is obligated to provide future medical treatment. Claimant is seeking to recover permanent total disability ("PTD") benefits.

Based on the substantial and competent evidence of record, including Claimant's testimony, the medical records and the expert opinions, I make the following findings of fact:

Claimant is a divorced, fifty-five year old man who attended two years of college, dropped out, and has since trained for and worked as a material handler, moving material with a forklift. Claimant began working for Employer in 1993, driving a forklift throughout Employer's three story, 4,000 square foot building. He established a good work history, often

forgoing lunch breaks and vacation, and had no prior workers' compensation claims or disabling conditions. In 2005, his title was warehouse manager.

On May 6, 2005, there was a gap between the truck Claimant was unloading and the dock, with the truck two to three inches higher than the dock. The forklift did not have soft tires or shock absorbers, so Claimant was jarred every trip into or out of the truck. After one such "bump," Claimant felt a jolt to his back and experienced immediate pain. Upon receiving notice of the injury, Employer instructed Claimant to seek medical care.

Dr. Goldstein, Claimant's family doctor, ordered an MRI, which was taken May 18, 2005, and revealed evidence of marked central spinal stenosis at the L3-4 and L4-5 levels. There was also an extruded disc fragment impinging on the thecal sac and left L4 nerve root. A second lumbar MRI from Missouri Baptist Medical Center on May 27, 2005 confirmed the initial findings. Upon learning of the diagnosis, Employer sent Claimant to Dr. Peter Mirkin, who took Claimant off work. Claimant had not returned to work since his injury.

The authorized care provided by Dr. Mirkin consisted of a myelogram, which revealed a large disc extrusion and severe stenosis and spondylolisthesis. Dr. Mirkin noted Claimant was suffering from profound weakness of the left foot dorsiflexor and quadriceps and offered surgery. On August 30, 2005, Dr. Mirkin performed an extensive decompression and stabilization procedure, which included a laminectomy, bilateral decompression of roots at L3-4, L5-S1; segmental instrumentation of Monarch system L3-4, L5-S1; interbody fusion with cage at L4-5 and L5-S1; and posteriolateral fusion at L3-4 and L5-S1. In December 2005, Dr. Mirkin noted, Claimant "is very likely going to have to find a very low level activity job. He can do sedentary work." Claimant remained off work.

On March 6, 2006, x-rays revealed Claimant developed a pseudoarthrosis in the upper part of his spine. Dr. Mirkin noted that the options were to either live with this or undergo surgery. Claimant elected to have it fixed, and on April 20, 2006, underwent a second surgery performed by Dr. Mirkin, who removed and replaced the significant hardware in and around Claimant's spine. Dr. Mirkin ordered a brace, which Claimant continues to use. Results were better this time as demonstrated by diagnostic tests and physical exam. On July 3, 2006, Dr. Mirkin's records note Claimant cannot return to his previous job, may need to find an extremely light type of work, and "cannot do anything physical due to type of fusion." A September 29, 2006 functional capacity evaluation revealed that the Employee could function in the medium work demand level. Claimant passed 11 out of 13 validity criteria. On October 4, 2006, Dr. Mirkin stated that x-rays showed that the fusion looked good and solid. Neurologically he was grossly intact. Dr. Mirkin placed Claimant at maximum medical improvement, and said it was safe for him to work in the medium duty capacity as noted in the functional capacity evaluation. An October 30, 2006 report from Dr. Mirkin states, "Certainly, he is at risk for having further problems in his back." Claimant requested a pain physician for continued pain complaints. Employer authorized Dr. John Graham.

The physical exam performed by Dr. Graham ${ }^{1}$ on November 13, 2006 was unremarkable, and psychological test showed significant elevations in the somatization and depression scales, indicating, according to Dr. Graham, an element of functional overlay may be present. He prescribed Ultram and Naprosyn, but as of November 27, 2006, from a pain

[^0]

[^0]: ${ }^{1}$ Dr. Graham testified by deposition, one of eight experts to do so in this case.

Oscar Scott - Injury No. 05-109377

management standpoint, Dr. Graham saw no indication for medications or further invasive treatment. He placed Claimant at maximum medical improvement and released Claimant from his care to work at a medium demand level within the restrictions Dr. Mirkin placed upon him.

Currently, Claimant has numerous problems he relates to his back injury. He has daily back pain, uses a cane, and wears a large brace with a hard plastic core and adjustable Velcro straps for a feeling of security. The pain increases with movement. Although the numbness has resolved, he still has weakness in the left leg and upper thigh. He only gets six hours sleep and he has crying spells with depression and frustration. He has difficulty dressing himself, and can no longer able to perform activities he once enjoyed, like fishing, softball and jogging. He takes Vicodin and Tramadol for pain, must lie down frequently every day, and has concentration problems. Claimant is capable of reading, writing, and basic math, and he has a valid driver's license. Claimant does not think he can work due to pain, the effects of pain medication, his need to lie down, his limited motion, and his depression. I find Claimant's testimony as a whole, including but not limited to his complaints and limitations, to be credible.

Dr. Peter Mirkin, the treating orthopedic surgeon, testified Claimant had several problems including degenerative disc disease, spondylolisthesis as well as a large disc protrusion compressing nerves at several levels. He thought Claimant reached maximum medical improvement as of Oct