Michael Webb v. United Parcel Service

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 97-406714

Employee: Michael Webb

Dependents: Valerie Webb, spouse; Amy Webb, Tracy Webb and Derek Webb, dependent children

Employer: United Parcel Service (Settled)

Insurer: Liberty Mutual Fire Insurance Company (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 $4^{\text {th }}$ day of February 2010 .

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: March 14, 1997
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 employee slipped and fell on ice while attaching a trailer.
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: abdominal area
14. Nature and extent of any permanent disability: 60 % permanent partial disability to the abdominal area
15. Compensation paid to-date for temporary disability: $\ 2,854.82
16. Value necessary medical aid paid to date by employer/insurer: $\ 5,846.67

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael Webb

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 612.96
3. Weekly compensation rate: $\$ 408.64 / \ 268.72
4. Method wages computation: By agreement

1. Amount of compensation payable:

Prior Settlement

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\139.92) payable by SIF for 240 weeks beginning

August 9, 2000, and, thereafter, \ 408.64 for Claimant's lifetime

TOTAL:

Indeterminate

1. Future requirements awarded: As above

Said payments to begin August 9, 2000, 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: Michael Webb

Injury No.: 97-406714

Dependents: Valerie Webb, Amy Webb, Tracy Webb, \& Derek Webb

Employer: United Parcel Service (Settled)

Additional Party: Second Injury Fund

Insurer: Liberty Mutual Fire Insurance Company (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/ch

This workers' compensation cases raises several issues arising out of work related injuries in which the claimant injured his abdominal area on March 14, 1997, when he slipped on ice, as well as work related injuries in which the claimant injured his abdominal area on March 23, 1998 when he slipped while pulling a pallet jack. The issues for determination are (1) accident arising out of and in the course of employment, (2) Causation, (3) permanent disability, (4) liability of the Second Injury Fund, (5) dependency.

At the hearing the claimant testified in person and offered depositions of Raymond Cohen, D.O., Wayne Stillings, M.D., and Samuel Bernstein, Ph.D., as well as voluminous medical records. The Second Injury Fund offered depositions of Patrick Hogan, M.D., and Christine Kelly.

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 accidents occurred in Missouri.

This forty-six year old claimant, a driver for United Parcel Service, has a tenth grade education with no GED and no other training, other than on-the-job training in truck driving. He has not served in the U.S. military. Most of his past employment has involved the operation of heavy trucks.

March 14, 1997 Occurrence

The claimant injured his abdominal area on March 14, 1997, when he slipped and fell on ice while he was hooking a trailer to his tractor. The device he was operating then ran into his back and head. While on the ground, he felt pain and a lump in his abdomen. After a few days he received medical care from Dr. Meadows on several occasions and received medication, before consulting a surgeon, Dr. Altepeter, who performed a surgical hernia repair procedure. The claimant was off work for seven weeks after the injury but did not do well after the surgery. He testified that he might even have been worse. However, he returned to work on a regular

duty status. In returning to work, he had difficulty performing his job but his co-workers helped him with heavier work such as hooking trailers to his truck. However, he was able to drive.

Because of claimant's ongoing pain he returned to Dr. Meadows and Dr. Altepeter. An abdominal CT scan of his abdomen was performed but then no additional care was provided. He went to Dr. Mantese for a second opinion. All of these doctors told him that he simply needed to give it more time. His complaints, however, did not change.

March 23, 1998 Occurrence

On March 23, 1998, the claimant was pulling a pallet of paper with a pallet jack when he slipped and fell. He felt an increase in pain at that time. He returned to Dr. Meadows, who referred him to Dr. Bennett. Dr. Bennett examined the claimant, referred him to a pain physician, Dr. Tate. Dr. Tate performed several nerve blocks upon him and provided pain medication. The blocks helped him for short periods, such as an hour, but his symptoms returned. Dr. Mackinnon evaluated him and scheduled a surgical procedure, which was performed together with Dr. Thompson. During the surgery a nerve in his abdominal area was removed. He thereafter developed an infection and was hospitalized for two weeks. He did not feel he received any relief from this surgery. Dr. Mackinnon then referred him to Dr. Sicard who he saw on one occasion for a surgical consultation. He was then referred to Dr. Soper, who he described as a hernia specialist. Dr. Soper performed a CT scan of his abdomen and then recommended a surgical procedure. This was done to repair another hernia. After this surgery he described himself as being weak and still very much in pain.

February 1, 1999 Occurrence

After Dr. Soper's surgery to repair the hernia, the claimant began receiving physical therapy at HealthSouth. During this treatment he was working on a treadmill and became dizzy and light-headed. He attributed this to the medication he had been taking for his symptoms. He stepped off the treadmill and tried to sit down on a bench. However, he missed the bench and fell against a pole, striking his left side. He then fell to the ground, landing on his buttocks and his back. After this he went to Dr. Hogan and received medication, which he described as not being helpful. He testified that the medication caused him to see things, such as bugs. When Dr. Hogan had nothing further to offer him, he consulted Dr. Gornet for neck pain. He testified that his neck pain began following the 1997 injury and that continues to this date. Dr. Gornet performed a fusion on his neck and, thereafter, gave him medications and physical therapy. Dr. Gornet also referred him to Dr. Miller for left shoulder pain. Dr. Miller performed a surgical procedure on his left shoulder and installed a pain pump that was later removed. Since then his treatment has been through his family physician, Dr. Joftus. He has also received psychological care.

Dr. Cohen diagnosed the claimant with several medical conditions which he attributed to the accidents with employer. First, he diagnosed: status-post inguinal hernia repair and subsequent severe ilioinguinal and iliohypogastric neuralgia requiring two subsequent surgeries. See Dr. Cohen deposition, page 11. He testified that this diagnosis was caused by the accident of $3 / 14 / 97, and then significantly aggravated by the accident of 3 / 23 / 98$. Second, he diagnosed:

status-post cervical surgery for cervical radiculopathy and status-post left shoulder surgery, along with severe depression. He opined that the physical therapy accident in February 1999 caused these conditions. Dr. Cohen rated the disability as 45 % of the body referable to the accident of 3 / 14 / 97 ; 20 % of the body referable to the accident of $3 / 23 / 98$; and 35 % of the body plus 45 % of the left shoulder due to the accident in February of 1999. See Dr. Cohen deposition, pages 12-13. He also opined that the claimant is permanently and totally disabled due to the combination of these disabilities. He did not find that claimant had any pre-existing disability before the 1997 accident. Dr. Cohen opined that the claimant's left arm and neck condition resulted from a herniated disc in the cervical spine. See Dr. Cohen deposition, pages 44-45.

Dr. Stillings diagnosed the claimant with a number of pre-existing psychiatric problems: dysfunctional family of origin ( 5 % disability); parent-child relational problem, emotionally abusive mother, emotionally and physically abusive father, lack of love and nurturance ( 5 % disability); dysthymia, early onset ( 10 % disability); partner relational problem, abuse of first wife and chronic marital discord ( 5 % disability); alcohol abuse and dependence ( 5 % disability); pain disorder associated with both psychological factors and a general medical condition referencing the three work injuries in 1997, 1998, and 1999. See Dr. Stillings deposition, pages 8-12. He also found a personality disorder, which he termed: personality disorder not otherwise specified, with depressive, dependent, antisocial, and avoidant personality traits ( 5 % disability). He concluded that claimant has a Global Assessment of Functioning of 45 . He testified that these pre-existing co