Nathan Hempel v. Lincoln County Electric, Inc.

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: January 3, 2007
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, an electrician, struck his head on an overhead steel beam while installing conduit and suffered a closed head injury.
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: Head and neck.
14. Nature and extent of any permanent disability: 15 % of the body as a whole
15. Compensation paid to-date for temporary disability: $\ 17,869.02
16. Value necessary medical aid paid to date by employer/insurer: $\ 4,831.47

1. Value necessary medical aid not furnished by employer/insurer? See Additional Findings of Facts and Rulings of Law
2. Employee's average weekly wages: $\ 1,078.31
3. Weekly compensation rate: $\$ 718.87 / \ 376.55
4. Method wages computation: By agreement

1. Amount of compensation payable:

Unpaid medical expenses: $\ 4,898.72

$174 / 7 weeks of temporary total disability (or temporary partial disability) \ 12,631.57

60 weeks of permanent partial disability from Employer $\ 22,593.00

1. Second Injury Fund liability: Open

TOTAL: $\ 40,123.29

1. Future requirements awarded: See Additional Findings of Facts and Rulings of Law

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: Dean L. Christianson, Esq.

Employee: Nathan Hempel

Injury No.: 07-025425

Dependents: N/A

Employer: Lincoln County Electric, Inc.

Additional Party: Second Injury Fund (Open)

Insurer: American Family Mutual Insurance Company

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri<br>Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of a work related injury in which the claimant, an electrician, struck his head on an overhead steel beam while installing conduit and suffered a closed head injury. The issues for determination are (1) Medical causation, (2) Liability for past medical expenses, (3) Future medical care, (4) Temporary disability, and (5) Permanent disability. The Second Injury Fund claim remains open pursuant to an agreement among the parties. The evidence compels an award for the claimant for medical expenses, temporary total disability benefits, and permanent partial disability.

At the hearing, the claimant testified in person and offered depositions of David T. Volarich, D.O., Chatauqua Seymour, and Kathy Smart, and voluminous medical bills and records. The defense offered depositions of David M. Peeples, M.D., and Debra D. Lockrem and records from the defense claims representative. Exhibit AA was received in evidence with extensive pen and ink markings on the exhibit. The markings are not those of the writer, but were on the exhibit when offered and received in evidence without objection.

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 occurred in Missouri.

This thirty-two year old claimant, an electrician, suffered a closed head injury while bending conduit and running circuits at a gas station at about 3:00 p.m. on January 3, 2007. At the time of the accident, the claimant was walking on top of a large cooler, ten feet off the ground and did not see one of the steel beams above him. He hit the beam with his head and testified that he was immediately dazed. He sat down but was able to work an additional two hours of overtime. He went home, went to bed, and did not awake until the next evening at 8:30 p.m.

The claimant's employer observed the accident but offered no direction to the claimant for a medical provider. Dr. Katyal, a family practice physician, examined the claimant on January 9, 2007, and diagnosed a head injury, headache, concussion, blurred vision, dizzy spells, asthma, and allergic sinusitis. See Exhibits C, Q. Dr. Katyal reported that the claimant needed to be on his previous prescriptions for depression, bipolar disorder, which the claimant testified

include Depakote, Wellbutrin, and Adderall. See Exhibits C, Q. Dr. Katyal reported that claimant was down to 1-2 cigarettes per day, and 2 "joints" per week, and had decreased his beer consumption. See Exhibits C, Q. Dr. Katyal also noted a foot injury from the previous week, and a prior right elbow injury, stumbling, and neck pain. See Exhibits C, Q. He advised the claimant not to drive. See Exhibits C, Q. Also on January 9, 2007, a right forearm X-ray and a CT scan of his head were normal. See Exhibits C, Q. On January 16, 2007, the claimant followed up with Dr. Katyal who reported dizzy spells, blurred vision, headaches, and neck pain. See Exhibits C, Q.

On February 7, 2007, Dr. Casino, another family practice physician, who took over for Dr. Katyal while she was out for maternity leave, examined the claimant, and reported that the claimant's intermittent headaches persisted. Dr. Casino reported that Dr. Katyal had excused the claimant from work until February 7, 2007, and Dr. Casino released the claimant to work with the restrictions of no work involving hot electrical panels or hauling loads until the claimant could be cleared by a neurologist. See Exhibits C, Q.

Dr. Myers, a neurologist, examined the claimant on February 19, 2007, and prepared a March 14, 2007, report. Dr. Myers reported that the claimant had significant neck pain and daily headaches. See Exhibits C, Q. Dr. Myers diagnosed a cervical strain, and ordered an MRI of the cervical spine, physical therapy to the neck, and a prescription for Pamelor. See Exhibits C, Q. Dr. Katyal excused the claimant from work from March 22, 2007, until April 22, 2007. See Exhibits C, Q.

On April 23, 2007, Dr. Peeples, another neurologist, examined the claimant and diagnosed a Grade I concussion, and reported that the claimant had no symptoms of postconcussive etiology. See Dr. Peeples deposition, 4/22/2009, pages 7, 15. Dr. Peeples physical examination was normal. See Dr. Peeples deposition, 4/22/2009, page 11. He reviewed the CT of the head, and noted it was normal. See Dr. Peeples deposition, 4/22/2009, page 16.

Dr. Peeples found that the claimant's range of movement in the cervical spine on volition was somewhat reduced in all planes. See Dr. Peeples deposition, 4/22/2009, page 11. However, Dr. Peeples testified that he could not find a reason for the pain on physical examination and that a doctor can feel what is the "reason for pain, including reproducible areas of tenderness to the touch, either over the spine or over the muscles, which the claimant did not have." He testified that the claimant voluntarily exhibited reduced range of movement in his neck, which in an isolated fashion means nothing without objective findings to account for why that would be. See Dr. Peeples deposition, 4/22/2009, page 15. Dr. Peeples testified that the MRI reported diffuse degenerative type changes with disc bulging and disc spur complex, which Dr. Peeples opined, "is a chronic type of condition, which would have been present before his injury." See Dr. Peeples deposition, 4/22/2009, page 18.

Dr. Peeples opined that the claimant did not have symptoms of a post-concussive etiology. He also opined the claimant sustained a cervical strain. See Dr. Peeples deposition, 4/22/2009, page 17. He also opined there was a possibility the claimant had a thoracolumbar strain by the claimant's history, because the claimant complained of initial symptoms including mid and low back pain. However, Dr. Peeples found no evidence that the claimant reported any types of symptoms relating to his low back to any of the three physicians he saw shortly after the accident. See Dr. Peeples deposition, 4/22/2009, page 17. Dr. Peeples testified that if someone

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Nathan Hempel

Injury No.: 07-025425

has an accident resulting in low back pain of the type the claimant is complaining of, then these symptoms should have been present immediately. See Dr. Peeples deposition, 4/22/2009, page 18.

Dr. Peeples released the claimant to work light duty with no climbing, no lifting greater than 50 pounds, or activities that require persistent awkward positions of postural instability. Dr. Peeples recommended physical therapy and an MRI of the cervical spine, similar to Dr. Myers’ recommendation. See Dr. Peeples deposition, 4/22/2009, page 19. At no time did he recommend treatment with a pain management specialist, and testified that based on his evaluation, such treatment was not warranted. See Dr. Peeples deposition, 4/22/2009, page 22.

On April 30, 2007, Debra Lockrem, the defense insurance adjustor, contacted Dr. Myers and advised him of Dr. Peeples’ assessment. She reported what Dr. Peeples had recommended, and advised Dr. Myers that the claimant wished to continue to treat with Dr. Myers.