Mike Sanders v. Lionmark Construction d/b/a Pace Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-095052

Employee: Mike Sanders

Employer: Lionmark Construction

d/b/a Pace Construction (Settled)

Insurer: Liberty Mutual 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 September 17, 2009. The award and decision of Administrative Law Judge Suzette Carlisle, issued September 17, 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 $25^{\text {th }}$ day of March 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Hearing Date: June 16, 2009

Checked by: SC:

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: September 15, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 injured his back while operating heavy equipment at work.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: Permanent Total Disability against the Second Injury Fund
15. Compensation paid to-date for temporary disability: $\ 72,104.11
16. Value necessary medical aid paid to date by employer/insurer? $\ 150,515.44

Employee: Mike Sanders

Injury No.:04-095052

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient for maximum rates for Permanent Partial Disability, Temporary Total Disability, and Permanent Total Disability
3. Weekly compensation rate: $\$ 675.90 / \ 354.05
4. Method wages computation: Stipulated

1. Amount of compensation payable:

120 weeks of permanent partial disability from Employer (Previously paid)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\$321.85) payable by SIF for 120 weeks

beginning February 1, 2007 and, thereafter, (beginning May 22, 2009)

the sum of $\ 675.90 for Claimant's lifetime

TOTAL:

1. Future requirements awarded: N/A

Said payments to begin 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: John Larsen

Michael Sanders (Claimant) ${ }^{1} requested a hearing for a final award pursuant to \S 287.450 RSMo (2000). { }^{2}$ A hearing was held at the Missouri Division of Workers' Compensation, St. Louis office on June 16, 2009. Attorney John Larsen represented Claimant. Assistant Attorney General Kristen Frazier represented the Second Injury Fund (SIF). Claimant seeks permanent total disability from the SIF. The hearing closed after presentation of all the evidence.

On October 30, 2008, Claimant settled with Lionmark Construction d/b/a Pace Construction (Employer) and Liberty Mutual Fire Insurance Company (Insurer) for 30\% PPD of the BAW referable to the low back. ${ }^{3}$

Claimant's Exhibits A-E and SIF's Exhibits I-VIII were admitted. Any notations contained in the records were present when admitted. Any objections contained in the depositions and not addressed in this award are overruled.

The parties stipulate that on or about September 15, 2004: The alleged accident occurred in St. Louis, County, Claimant was employed by Employer, Claimant and Employer operated under the Missouri Workers' Compensation Law; Employer's liability was fully insured; Employer received proper notice; a Claim for Compensation was timely filed; Claimant's average weekly wage was sufficient for a maximum rate of $\ 675.90 for Temporary Total Disability (TTD) and Permanent Total Disability (PTD) and $\ 354.05 for Permanent Partial Disability (PPD); Employer paid \$72,104.11 in TTD benefits for 110 2/7 weeks, from September 15, 2004, to February 1, 2007, and Employer paid medical benefits totaling \$150,515.44, and Claimant achieved maximum medical improvement (MMI) on February 1, 2007.

The parties identified the following issues for disposition: 1. Did Claimant sustain an accident? 2. If so, was the accident medically causally related to Claimant's work activities? 3. What is the nature and extent of Employer liability for PPD or PTD benefits? 4. What is the nature and extent of SIF liability for PPD or PTD benefits?

[^0]

[^0]: ${ }^{1}$ Division records reflect Claimant's first name as Mike, however, he testified his name is Michael.

${ }^{2}$ All statutory references are to the 2000 Revised Statutes of Missouri unless otherwise stated.

${ }^{3}$ All references to the Employer also include the Insurer.

All evidence was reviewed but only evidence supporting this award is considered to establish the following facts based on competent and substantial evidence:

1. Claimant is 47 -years-old and obtained a GED in 1979. He worked as an operating engineer for Local 513 from age 17 until he retired in April 2007. He ran heavy equipment, such as cranes and backhoes. He sat a lot, lifted heavy items, and assembled cranes with the help of a "bull gang" (apprentices). Claimant received work assignments through the union hall.
2. Claimant worked periodically for Employer during 2004. He operated a backhoe and picked up loose asphalt. To operate the backhoe, Claimant used a bucket to dig out asphalt or "ram it and pop it up." While operating the backhoe, Claimant bounced around the cab "like a ping pong ball."
3. On September 15, 2004, Claimant turned in his seat and placed the backhoe in reverse. He drove over a "lip" in the pavement, bounced about a foot high, and landed with his tailbone on the armrest. He felt immediate pain. He stretched out on the grass and reported the incident to his supervisor.
4. The next day, treatment began at BarnesCare. Doctors ordered x-rays, physical therapy, an injection, and took Claimant off work. In October 2004, Claimant was referred to Sandra Tate, M.D.
5. He returned to work with Alberici as a heavy equipment operator. He worked with the help of friends who accommodated his limitations, but he could not perform the work.
6. On December 21, 2004, David Kennedy, M.D., examined Claimant. April 6, 2005, Employer sent Claimant to Dr. Chabot. Dr. Chabot unsuccessfully provided injections and recommended surgery in June 2005.
7. Employer referred Claimant to Dr. Lange for a second opinion in August 2005. On September 23, 2005, Dr. Lange performed a redo laminectomy and discectomy at L5-S1, posterior fusion at L5-S1 with instrumentation at L4-5 and L5-S1, and bone graft harvest.
8. Initially, Claimant improved, but later, symptoms increased. Physical therapy did not help. On October 11, 2006, Dr. Coyle examined Claimant and recommended surgery, but did not believe it would be successful. Based on this, Claimant declined additional surgery.
9. After Claimant declined surgery, Dr. John Graham provided pain management. Current medications include Lyrica, Vicodin, Zanex and high blood pressure medicine. Claimant's primary physician prescribes pain medication which he takes on a daily basis. Medication causes him to be "flighty" and unable to concentrate. Claimant's sleeping problems started in the 1990's but he did not seek medical attention until after the 2004 work accident.

1. Complaints include constant low back pain, right leg throbbing, pain to toe, no feeling in the middle section of the back and right leg to the heel. Claimant's low back pain is worst and he feels like he is 75 -years-old. Minimum level of constant pain is 5-6/10. Maximum pain level is $10 / 10$. Symptoms vary each day. Claimant cuts the grass in shifts. Several times a month he is home for a few days because of pain. He sleeps for a couple of hours and is awake the remainder of the night. He naps during the day from 15 minutes to several hours as needed. Back pain increased after a sneezing episode, and his right leg numbness returned. Claimant would like to work but does not believe he can.

1. About1990, Claimant grabbed a 12 foot, 120-pound spinning drill steel and was twisted and pulled into a machine. He treated for problems with his neck, shoulder, arm and low back. Dr. Schoedinger treated Claimant's back pain. ${ }^{4}$ Claimant missed about six months work. Complaints included a stiff neck. He cannot hang high steel due to inability to look up for extended periods of time. His neck locks if it is in one position too long.
2. From 1991 to 1994, Claimant worked as a business agent assisting workers with settlement disputes. Claimant resigned when a new union president was hired. He returned to work as an operating engineer pumping sand, a less strenuous job, for fifteen months. Claimant received no treatment between 1994 and leading up to October 1996. Claimant settled for 17 % PPD of the low back and missed 35 and $3 / 7 weeks from work. { }^{5}$
3. On October 7, 1996, Claimant injured his low back and right leg when he jumped onto loose gravel, landing on his buttocks. MRI results show L5-S1 herniation on the right. Dr. Kennedy performed a microdiscectomy at L5-S1 on November 13, 1996, and released him to return to work with no restrictions in February 1997.
4. Claimant returned to work, and in May 1997 experienced "basic pain." He could not operate some equipment because it "beat you to death." He avoided quarry and rock jobs because of his low back. Also, looking up for long periods caused his neck to lock up. He continued to drive pilings (bridge work) because he received breaks and did not have to look up. He chose