Wendy Fry v. Tates Facility Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-093114

Employee: Wendy L. Fry

Employer: Tates Facility Services, Inc.

Insurer: Grinnell Mutual Reinsurance Co.

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 July 29, 2009. The award and decision of Administrative Law Judge Edwin J. Kohner, issued July 29, 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 $18^{\text {th }}$ day of December 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest: John J. Hickey, Member

Secretary

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: October 2, 2006
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 accident occurred or occupational disease contracted: The claimant, a custodian, suffered a low back injury while emptying a trash barrel.
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: Low back
14. Nature and extent of any permanent disability: 25 % permanent partial disability to the low back
15. Compensation paid to-date for temporary disability: $\ 4,127.88
16. Value necessary medical aid paid to date by employer/insurer: $\ 15,257.18

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: Bradley W. Cundiff, Esq.

Employee: Wendy L. Fry

Injury No.: 06-093114

Dependents: N/A

Employer: Tates Facility Services, Inc.

Additional Party: N/A

Insurer: Grinnell Mutual Reinsurance Co.

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/ch

This workers' compensation case raises several issues arising out of a work related injury in which the claimant, a custodian, suffered a low back injury while emptying a trash barrel. The issues for determination are (1) Liability for Past Medical Expenses, (2) Future medical care, (3) Temporary Disability, and (4) Permanent disability. The evidence compels an award for the claimant for medical expenses, future medical care, and temporary total disability and permanent partial disability benefits.

At the hearing, the claimant testified in person and offered depositions of Raymond F. Cohen, D.O., and Timothy G. Graven, D.O., medical records and bills from St. Joseph Hospital West, SSM Rehab, Open MRI, St. Peters Bone and Joint Surgery, St. Peters Ambulatory Surgery, Dr. David B. Robson, M.D., Professional Imaging, Metro West Anesthesia Group, Inc., Radiologic Imaging Consultants, Stewart's Rexall Drug. The defense offered a deposition of David B. Robson, M.D.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri.

On October 2, 2006, this 44 year old claimant, a custodian, injured her low back while emptying a trash barrel into a dumpster in which she had to reach over her head to dump the trash. She developed immediate low back pain below the beltline, and sat down to see if the pain would subside. When it didn't, she called her employer on his cell phone but received no response. She continued working by doing simple tasks like dusting and wiping out sinks but noticed that any movement hurt her back. She called her employer again and reported that she injured herself and was unable to finish her shift. Her employer directed her to obtain medical care.

The claimant reported to St. Joseph Hospital West on the night of the injury with complaints of a left lower back injury and pain radiating down her left side. She received a Morphine injection and prescription pain medication, and was told to follow up with her primary care physician, Dr. Smith. Shortly after the accident, she began feeling a tingling-like sensation

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that went down her left leg and ankle, accompanied by an aching sensation in the same area. Dr. Smith referred her to physical therapy at SSM Rehab, where she completed eight sessions. The claimant testified that the physical therapy did not help her. On October 24, 2006, she went to Dr. Graven, an orthopedic surgeon, and complained of low back pain, numbness and tingling into her left heel, and weakness in the left leg. Dr. Graven prescribed a Medrol Dosepak, Percocet, Lodine and more physical therapy. On November 9, 2006, Dr. Graven sent claimant back to work with limited duty and restrictions of no bending, stooping or squatting more than five to ten times per hour, and no lifting more than ten pounds. Claimant worked two hours a day for Tate Facility Services performing dusting. She continued to work two-hour days through November 28, 2006, when her employment was terminated.

In December 2006, after two rounds of physical therapy with little or no relief, Dr. Graven referred the claimant to Dr. Coleman for a series of three epidural steroid injections on December 19, 2006, January 5, 2007, and February 2, 2007. The claimant testified that these injections resulted in only transient benefits. On February 15, 2007, she reported back to Dr. Graven who opined that she was clinically depressed and gave her a prescription for Oxycontin and Prozac. Dr. Graven made a request for a discography and told her to discontinue working.

The discography was not approved by the defense. Dr. Robson examined the claimant on March 8, 2007, and March 15, 2007, and he ordered a CT exam which came back normal. At the time of this visit, she still complained of low back pain. At this time, Dr. Robson recommended against any further treatment, including the discogram, and released claimant to maximum medical improvement. Dr. Robson opined that the claimant sustained a 3\% permanent partial disability to the lumbar spine from a low back strain.

On April 30, 2007, Dr. Cohen examined the claimant and the claimant complained of difficulty bending, lifting, twisting, squatting, and stooping. The claimant told Dr. Cohen that she could do these activities, but only to a minimal degree due to severe low back pain. She complained of radiating pain down into the left buttock and left thigh, and occasionally into the left foot. She had difficulty traveling in a vehicle for long distances, and reported that she had not driven in six months. She reported that she was unable to clean her home, climb stairs, do yard work, or play with her children.

Dr. Cohen found that she had a loss of the lumbar lordotic curve and tenderness to palpation over the sacroiliac area. A pelvic rock test was performed, which was markedly positive on the left. His report states that she was having difficulty sitting on the exam table, and frequently had to change positions. He concluded that she should have a discogram to decide whether she was a surgical candidate. He recommended that she continue with the Oxycontin, and asked her to suggest to Dr. Graven to add Zanaflex as a muscle relaxant. He rated her permanent partial disability at 25 % of the lumbar spine.

The claimant returned to Dr. Graven, and had a discogram which was normal at the L3-4 and L4-5 levels but produced pain at L5-S1. The claimant testified that she felt excruciating pain when the doctor placed the needle at the L5-S1, so much so that she rose up from the table and had to be held down. On May 24, 2007, Dr. Graven and claimant discussed treatment options consisting of a plasma disc replacement, fusion, or total disc replacement. On July 9, 2007, Dr. Graven performed a plasma disc replacement.

The claimant testified that prior to surgery her pain level was between seven and seven and a half, and after surgery it was between three and three and a half. The claimant testified that she continues to have constant back pain, and her symptoms have not improved over time. She is currently not working, and believes that she could not work. She has difficulty walking long distances, sitting for more than half an hour, standing for more than an hour. She cannot vacuum, do laundry, sweep, or mop. She does try to dust and fold clothes. She continues to take Tramadol, which is prescribed by Dr. Graven.

Dr. Graven testified that the cost of the surgical procedure for the plasma disc decompression was high, and that the reasonable and customary charge for surgery should be half of what was billed.

The statutory duty for the employer is to provide such medical, surgical, chiropractic, and hospital treatment ... as may be reasonably required after the injury. Section 287.140.1, RSMo 1994.

The intent of the statute is obvious. An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. It is only when the employer fails to do so that the employee is free to pick his own provider and assess those against his employer. However, the employer is held liable for medical treatment procured by the employee only when the employer has notice that