| FINAL AWARD DENYING COMPENSATION (Affirming Award and Decision of Administrative Law Judge by Separate Opinion) |
| Injury No.: 01-112723 |
| Employee: | Steve Crump |
| Employer: | PrintPack Georgia, Inc. (Settled) |
| Insurer: | Travelers (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 § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard oral argument and considered the entire record. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 4, 2009, by issuing a separate opinion denying compensation in the above-captioned case. |
| The administrative law judge concluded that employee’s 1995 and 2001 injuries did not combine to create Second Injury Fund liability. Thus, the administrative law judge denied employee’s claim that he be awarded future medical treatment and costs and fees. We agree with the administrative law judge’s conclusion that there is no Second Injury Fund liability, however, we disagree with the administrative law judge’s reasoning in arriving at said conclusion. |
| I. Issue | Is there Second Injury Fund liability? |
| II. Findings of Fact | Employee began working for employer in 1990 as a helper and was promoted to pressman by 2000. Employee’s job was to operate the flexographic printing press. The press had a part known as a “doctor blade,” whose function was to wipe ink off of the press that put the ink on the paper. The blade weighs 40-45 pounds when clean and up to 100 pounds when compressed with ink. |
| Employee had no medical restrictions or limitations prior to his 1995 injury. In 1995, employee was injured while working for employer as a helper on a printing press. On the date of his injury, employee put a roll of paper onto the press. The press malfunctioned and the roll came off the press. Employee tried to grab the roll and stiffened up. Employee reported his injury, and saw Dr. Elcock and Dr. Schaefer for treatment. He was then referred to Dr. Robson, a spine surgeon. Dr. Robson performed a microdiscectomy laminotomy at the L5-S1 level on January 6, 1998. |
| Employee returned to work full duty without medical restrictions. He testified that he “felt fine” for about four years. Employee had no complaints in his back and he |
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continued to play softball, golf, and basketball. He ran and frequently walked for exercise.
Employee testified that on September 2, 2001, he injured his back again at work while lifting the doctor blade. He stated that everything was fine up until the 2001 event. Employee saw Dr. Robson on September 13, 2001, and stated that he had been doing well up "until about a month ago" and could not recall a specific injury. There was no mention during this visit that employee injured himself lifting a doctor blade.
Dr. Robson recommended another microdiscectomy and noted there was a possibility that employee might need a lumbar fusion. Dr. Robson performed a L5-S1 microdiscectomy on October 1, 2001.
On October 9, 2001, employee filed a workers' compensation claim for this alleged September 2, 2001, accident. The filed claim listed that the injury occurred due to "constant repetitive pushing, pulling and lifting using repetitive motion causing disability and progressive pain and injury." Employee amended this claim twice alleging the same mechanism of injury.
Following the October 1, 2001, surgery, employee continued in Dr. Robson's care. Dr. Robson returned employee to work light-duty, with restrictions of lifting 30 pounds occasionally and 25 pounds repetitively.
Dr. Robson saw employee on December 18, 2001, and wrote a letter to employee following their meeting. This letter reaffirmed what employee had told Dr. Robson on September 13, 2001, that employee had been doing well up until about a month prior to September 2001 and that he could recall no specific event leading up to his increase in symptoms.
In February 2002, employee had a repeat MRI which did not show recurrence of the herniation. Dr. Robson talked to employee about living with his continued symptoms or undergoing a fusion. Employee chose not to have surgery and was released from treatment.
Employee saw Dr. Morrow on June 5, 2002, for an independent medical evaluation. Employee related to Dr. Morrow that he was injured on September 2, 2001, while working on the press and removing the doctor blade. Dr. Morrow rated employee as having a 30\% permanent partial disability of the body as a whole due to the 2001 injury, and 20 % permanent partial disability of the body as a whole due to the 1995 injury.
Dr. Morrow recommended employee avoid repetitive work, prolonged standing and walking, or lifting weights in excess of 25 pounds occasionally, and 20 pounds repetitively.
On September 3, 2002, employee saw Dr. Robson concerning his ongoing low back and right leg radiating pain and occasional leg cramping. Dr. Robson changed his medications and scheduled an epidural steroid injection. Dr. Robson counseled
employee on work tasks, including how to change the doctor blade without exacerbating his symptoms. Dr. Robson also offered to write a restriction requiring that employer accommodate employee as to that task.
Employee testified that on September 16, 2002, he was injured at work lifting a doctor blade. Employee saw Dr. Robson on October 3, 2002. Employee reported to Dr. Robson that he had made no improvement since taking Neurontin the month before and having had the epidural. Dr. Robson concluded that employee suffered from postlaminectomy instability and disc space collapse at L5-S1 level. During this visit, employee made no mention of being injured at work 17 days earlier while again lifting a doctor blade despite Dr. Robson's counseling on this subject on September 3, 2002.
Employee filed a workers' compensation claim for this alleged September 16, 2002, injury on October 24, 2002. The claim for compensation alleged an injury due to "doing constant pushing, pulling, and lifting using repetitive motion causing disability and progressive pain and injury to his back, legs, and body as a whole." The claim made no mention of lifting a doctor blade, causing a specific injury. The claim was later amended to allege the same mechanism of injury.
On November 18, 2002, employee saw Dr. Lange for an independent medical evaluation on behalf of employer's insurer. Dr. Lange noted that employee had given conflicting information as to whether or not he had been injured while lifting a doctor blade, or whether repetitive activities caused his increase in symptoms in September 2002. As a result, Dr. Lange noted that there were causation issues. Dr. Lange stated that if repetitive activities caused employee's herniation, his work would not be the substantial cause.
Employee had ongoing complaints and Dr. Robson performed surgery on him again on November 20, 2002. Dr. Robson performed a laminectomy and fusion with a bone graft and a Ray cage at L5-S1. Employee continued to have significant pain and numbness after the surgery. Dr. Robson released employee back to work in March, 2003 with restrictions, but his employer would not take him back.
Employee saw Dr. Cohen for an independent medical evaluation on August 26, 2003. Employee told Dr. Cohen that his back had never healed from the 2001 injury leading up to the 2002 injury. Dr. Cohen rated employee's three injuries at 75 % permanent partial disability of the body as a whole. Dr. Cohen conceded during his deposition that part of his rating was not based on medical reasons, but on the fact that he had seen a settlement stipulation for the 1995 injury and used the percentage of disability in the stipulation as part of his rating.
Employee continued to have pain complaints and treated with Dr. Marquis, a pain specialist. Dr. Marquis attempted various treatments on employee to relieve his pain, but with little success.
Employee saw Tim Lalk, for a vocational evaluation on January 6, 2005. Mr. Lalk had his deposition taken on February 22, 2005. Mr. Lalk's opinion was that based upon Dr. Robson's restrictions employee was employable in the light or sedentary level. Mr. Lalk opined that employee was unemployable if Dr. Cohen's restrictions were followed. Employee related to Mr. Lalk that he had a decrease in overall functioning following the 2001 injury.
Employee saw Dr. Lange for another independent medical evaluation on October 11, 2005. Dr. Lange stated that from reading the medical records it was obvious that there were significant questions related to causation for both the alleged 2001 and 2002 injuries. Dr. Lange observed that Dr. Robson counseled employee on how to perform work activities, including changing a doctor blade, so as to avoid injury. Dr. Lange noted that employee was alleging that he was injured by this very activity. Dr. Lange characterized this as a "self-fulfilling prophecy." Dr. Lange further noted that employee's medical records show that he had a significant amount of complaints following his 2001 injury up until the time of his alleged 2002 injury.
Dr. Marquis saw employee for an independent medical evaluation on October 24, 2005. Dr. Marquis was deposed on June 12, 2008. He opined that employee was permanently and totally disabled due to a combination of all three work accidents.
Employee settled his 1995 workers' compensation claim with employer in February 2000 for 22.5 % permanent partial disability of his body as a whole rated at the lower back.
Employee settled both his 2001 and 2002 claims with employer in September 2007 for 22.5 % permanent partial disability of the body as a whole rated at the lower back and 22 % permanent partial disability of the body as a whole rated at the back, respectively. The Second Injury Fund was not a party to either settlement.