Troy Hudson v. Steel Constructors, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-139020

Employee: Troy L. Hudson

Employer: Steel Constructors, Inc.

Insurer: Continental Casualty Company

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 March 17, 2010. The award and decision of Chief Administrative Law Judge Paula McKeon, issued March 17, 2010, 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 $29^{\text {th }}$ day of July 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Troy L. Hudson

Injury Nos. 04-130020

04-139022

Dependents: N/A

Employer: Steel Constructors, Inc.

Insurer: Continental Casualty Company

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

Hearing Date: January 26, 2010

Checked by: PAM/pd

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: May, 21, 2004 and December 29, 2004
5. State location where accident occurred or occupational disease was contracted: 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: On May 21, 2004, Hudson was standing on a trailer, unloading steel, and fell to the ground injuring his head, neck and shoulders. On December 29, 2004, Hudson was bending rebar with a hickey bar when he injured his low back.
12. Did accident or occupational disease cause death? No. Date of death? N/A

Employee: Troy L. Hudson

Injury No. 04-139020

Injury No. 04-139022

Dependents: N/A

Employer: Steel Constructors, Inc.

Insurer: Continental Casualty Company

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

Hearing Date: January 26, 2010

Checked by: PAM/pd

On January 26, 2010, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The Claimant, Troy L. Hudson, appears in person and with Counsel Richard Scaletty. The Employer, Steel Constructors, Inc., and its insurer, Continental Casualty Company, appeared through Counsel James Hess. The Second Injury Fund appeared through Assistant Attorney General Richard Wiles.

The parties stipulated to the following:

1) that on May 21, 2004 and on December 29, 2004, Steel Constructors, Inc., was an employer operating under the provisions of the Missouri Workers' Compensation Law and that its liability was fully insured by Continental Casualty Company;

2) that on May 21, 2004 and on December 29, 2004, Troy L. Hudson was an employee of Steel Constructors, Inc., working under the provisions of the Missouri Workers' Compensation Law;

3) that on May 21, 2004, Hudson sustained an injury by accident arising out of and in the scope of his employment;

4) that on December 29, 2004, Hudson sustained another injury by accident arising out of and in the course and scope of his employment;

5) that Hudson gave timely notice of both of the above-referenced injuries to the Employer;

6) that Hudson filed a timely claim for compensation for both the above-referenced injuries;

7) that at the time of the injury of May 21, 2004, Hudson had an average weekly wage of $\ 582.37 resulting in a weekly compensation rate for temporary total disability/permanent partial disability in the amount of $\$ 388.26 / \ 347.05;

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Troy L. Hudson

Injury Nos. 04-139020 and 04-139022

8) that at the time of the injury of December 29, 2004, Hudson had a weekly wage of $\ 561.28 resulting in a compensation rate of temporary total disability/permanent partial disability in the amount of $\$ 374.21 / \ 354.05;

9) that for the May 21, 2004 injury, Hudson has been paid temporary total disability benefits of 78 weeks at a rate of $\ 366.96 for a total of $\ 28,409;

10) that Hudson was underpaid temporary total disability benefits for the May 21, 2004 injury in the amount of $\ 19.30 for 78 weeks and is therefore entitled to additional temporary total disability benefits of $\ 1,505.49;

11) that as a result of the December 29, 2004 injury, Hudson was paid a total of 133 weeks of temporary total disability benefits at a rate of $\ 368 per week for a total amount of $\ 49,071.68;

12) that Hudson was underpaid 133 weeks of temporary total disability benefits in the amount of $\ 5.25 and is therefore entitled to additional temporary total disability benefits in the amount of $\ 692.25 referable to the December 29, 2004 injury;

13) that the last day Hudson received any temporary total disability benefits was January 7, 2009;

14) that the Employer and its Insurer have provided medical care in the amount of $\ 68,689.35 for the injury of May 21, 2004 and $\ 189,144.69 for the injury of December 29; 2004;

15) that future medical care for Hudson relating to both injuries shall remain open and is to be provided by the Employer.

The parties request the Division to determine:

1) the nature and extent of disability from the injury of May 21, 2004;

2) the nature and extent of disability for the injury of December 29, 2009;

3) whether Hudson is permanently and totally disabled and, if so, whether the permanent total disability arises from the injury of May 21, 2004 or from the second injury of December 29, 2004 or from a combination of disability;

4) whether Hudson is entitled to reimbursement for out-of-pocket medical expenses incurred while being treated at MCI Hospital, Liberty Hospital and ongoing medications for pain management;

5) whether Hudson should have the right to control his future and ongoing medical care and treatment;

6) whether the Second Injury Fund is liable to Hudson for permanent total disability benefits.

Hudson's evidence consisted of his testimony, the testimony of his wife and testimony from several lay witnesses; deposition testimony from James Stuckmeyer, M.D.; Steven Simon, M.D.; Mary Titterington, vocational expert; and Dawn Uhter, Hudson's nurse case manager employed by the insurer; the medical records; medical bills; medical reports; various

Employee: Troy L. Hudson

Injury No. 04-139020 and 04-139022

photographs; a rebar sample and Hudson's attorney's case expenses. The Employer's evidence consisted of the deposition of Alexander Bailey, M.D., the deposition of Troy Hudson, and various attorney letters generated in the course of this matter. The Second Injury Fund offered no evidence at the hearing.

There was no dispute that on May 21, 2004, Troy Hudson, while employed as an ironworker, sustained an injury when he fell off a truck while unloading steel bars, injuring his head, shoulders and upper back. Hudson was taken by his Employer to the Hickman Mills Clinic for immediate medical attention. Hudson testified that the clinic told him he needed additional treatment and should go to the emergency room. Hudson went to Medical Center of Independence where he received medical treatment and seeks reimbursement in the amount of $\ 1,843 for this treatment. Hudson stayed home for a few days before returning to work. Hudson also testified that he missed between 30 and 40 days of work between May 21, 2004 and December 29, 2004, the date of his second injury, due to severe pain. When at work, Hudson sought assistance from co-workers. Hudson carried less weight, shifted carrying loads to his other shoulder, and spent more time reading blueprints and supervising other employees compared to doing heavy work before his May 21, 2004 injury. After May 21, 2004, Hudson was no longer able to enjoy many outside activities including hunting, fly-fishing, playing softball and horseback riding. The medical evidence reveals that Hudson suffered an injury to his cervical spine and shoulder which ultimately required a surgical fusion at levels C5-C6 and C6-C7 on November 27, 2007. However, the surgical intervention for the cervical spine injury did not occur until after Hudson had received extensive medical care and treatment for his second injury of December 29, 2004.

There is no dispute that on December 29, 2004 Hudson sustained an injury to his low back and lumbar spine arising out of and in the course and scope of his employment with the Employer. At the time of that injury, Hudson was using a hickey bar to bend rebar when he felt something pop in his back and felt immediate pain in his low back shooting down his legs. Hudson was diagnosed with a herniated disc at L5-S1. After initially being treated conservatively, Hudson had a microdiscectomy performed by Chris Wilson, M.D., in June of 2005. The medical records reveal that Hudson had little relief from the first surgery despite follow-up epidural injections and physical therapy.

It was during this time following the first low back surgery that Hudson began to see Dr. Simon for pain management. Both Hudson and his wife testified that Dr. Wilson referred Hudson to Dr. Simon. Dr. Simon's records and deposition revealed that as a result of his injuries Hudson suffered significant physical changes including a Z-posture, tightness in his hamstrings, hypersensitivity in various areas of his low back with radiation of pain into the legs and cervical radiculopathy. In an attempt to control Hudson's pain, Dr. Simon prescribed various pain medicines including a duragesic patch (Fentanyl), Oxycodone and Valium. As of the date of the hearing, Hudson continues to be treated by Dr. Simon.

Hudson seeks reimbursement in the amount of $\ 3,906.57 for medication expense from Carondelet Pharmacy prescribed by Dr. Simon. The Employer asserts that Dr. Simon was never an authorized treating physician and therefore it has no liability for the cost of the medicines prescribed by Dr. Simon.

Hudson's care for the low back injury was transferred to Alexander Bailey, M.D. Dr. Bailey performed a fusion of the lumbar spine with pedicle screws at levels of L5-S1. Based on Hudson's continued complaints regarding the neck, shoulders, arms and mid-back, Dr. Bailey was asked to work up the cervical spine and shoulders and address whether additional treatment is necessary. MRI findings confirmed herniations at C5-6 and C6-7. On November 27, 2007, Dr. Bailey performed cervical fusions at C5-6 and C6-7. Post-operatively, Hudson had additional trigger point injections by Dr. Snowcroft in March and April for attempted pain relief.

From April 28, 2008 until January 7, 2009, Hudson was treated by Dr. James Zarr in an attempt to reduce his pain medicines. Although Hudson was weaned from the duragesic patches (Fentanyl), Dr. Zarr continued him on Roxicodone and Valium. Hudson testified that he was given a three-month supply of medication from Dr. Zarr and "cut loose." Hudson continues to treat with Dr. Simon's group for ongoing pain management.

On April 9, 2009, Hudson was hospitalized when trying to wean himself from his pain medicines while quitting smoking. Hudson seeks reimbursement of $\ 5,782 for this expense. The Employer denies that this expense was related to the injuries.

Troi Hudson, wife, testified that her husband is totally changed. Before the May 21, 2004 injury, he was an avid sportsman and enjoyed hunting, camping, fly-fishing and horseback riding. However, after the May 21, 2004 injury, he stopped doing those activities. She observed that although Hudson would go to work, he would collapse in a recliner after work. She would rub his back to help with pain.

After the December 29, 2004 injury, Hudson lost 60 pounds of weight, has a bent-over posture, has slow body movements, cannot lift weight like before, is fatigued and has no energy. Hudson no longer gardens, volunteers as a fireman, participates in rodeos, is not able to work and rarely socializes with friends and family. He spends most of his time in a recliner at home. He is not able to maintain their home and property as before. His sexual life is nonexistent. He uses prescription medicines to relieve his pain.

The Employee's brother testified that Hudson falls from time to time. Hudson, who used to play softball, has not played since the May 21, 2004 injury because he can't swing a bat. He is no longer able to assist his brother with his plumbing business.

Anthony Ellis, a co-worker of the Employee, explained how he observed the bruising in Hudson's chest and shoulder after the May 21, 2004 injury. He explained that Hudson lifted less weight when carrying iron and shifted carrying the iron to the right shoulder. He testified the other workers at the job site accommodated Hudson because he could not do the same level of heavy work as before due to his pain.

Hudson has not worked since his injury of December 29, 2004.

Dr. James Stuckmeyer testified that injuries and medical procedures for Hudson were extremely painful and that the pain management from Dr. Simon was reasonably necessary and appropriate to help cure and relieve Hudson from the effects of his work-related injuries. Dr. Stuckmeyer believes that Hudson's condition will be of a chronic and permanent nature requiring ongoing pain management and potentially additional medical treatment. Dr. Stuckmeyer assesses a 30 percent disability to the cervical spine as a result of the May 21, 2004 accident. Dr. Stuckmeyer assesses a 40 percent disability to the lumbar spine as a result of the December 29, 2004 accident. Dr. Stuckmeyer explains that Hudson should be restricted to no prolonged standing greater than tolerated, no prolonged sitting greater than tolerated, that he should be allowed to change positions frequently, that he should lift no more than 10 to 15 pounds on an occasionally basis and no repetitive lifting, bending, stooping or squatting. Dr. Stuckmeyer further recommends no repetitive pushing, pulling, lifting or reaching with a maximum below shoulder height of 10 to 15 pounds and no lifting above shoulder height of 5 to 10 pounds on an occasional basis. In addition, Dr. Stuckmeyer further believes that because of the complexity of Hudson's medical problems and the narcotic utilization, he should be allowed periods of recumbency if needed to relieve his back and neck symptoms.

Dr. Stuckmeyer explains that there is some overlap in the restrictions between the two injuries. However, Dr. Stuckmeyer believes that the restrictions relating to the first injury would be a hindrance and obstacle to employment, specifically, lifting above shoulder level.

In Dr. Stuckmeyer's opinion, Mr. Hudson is permanently and totally disabled as a result of both the May 21, 2004 and December 29, 2004 accidents.

Dr. Steven Simon testified that there is overlapping pain from both injuries. Dr. Simon explains that the disabling effects of these injuries include Hudson not being able to stand and walk in a normal fashion due to his postural changes, a decrease in his overall balance, difficulty with use of his arms to pick up and grasp, and pain radiating down between his shoulders. Dr. Simon also believes that due to the combination of his disabling effect from both injuries Hudson is unable to work. Dr. Simon testified that in his opinion it is the combination of the cervical spine injury and the lumbar spine injury which renders Hudson unable to work today.

Mary Titterington, vocational expert, testified that Dr. Stuckmeyer's restrictions take Hudson out of the full range of sedentary work. Titterington believes that Hudson is unemployable and not able to compete in the open labor market. Titterington believes that a reasonable employer would not hire Hudson based upon his restrictions and limitations and the chronic pain medicines as related to both injuries.

Dawn Uhter, Hudson's nurse case manager, testified she was aware that Hudson was on narcotic pain medications. She maintains that her records do not reflect Dr. Simon as an authorized doctor for Hudson. Uhter learned that Dr. Simon was providing pain management on April 21, 2008 in a phone conversation with Hudson's wife.

Dr. Alexander Bailey testified that Hudson's severe chronic low back and leg pain affects his functioning, ability to work, ability to sleep and activities of daily living. Dr. Bailey restricts

Hudson to permanent light duty status as a combination of both injuries. He believes 50 percent of the restrictions are due to cervical injury and 50 percent to the lumbar injury. He rates 15 percent disability for the cervical injury and 10 percent for the lumbar spine. Dr. Bailey believes Hudson will require future medical care, specifically, pain management.

It is clear that Hudson suffered two injuries to his spine, one in the cervical area with radiculopathy to his upper extremities, shoulders and neck and the second injury to his lumbar spine with radiculopathy extending to his lower extremities. After Hudson suffered his first injury of May 21, 2004, there is substantial evidence that he missed time from work, suffered extreme ongoing pain, reduced his work activities, was able to lift less, suffered a change in posture, and carried less weight on his opposite shoulder. There is substantial evidence that the injury of May 21, 2004 reached the level of significance that was clearly a hindrance and obstacle to his employment. However, Hudson continued working until he had a second injury of December 29, 2004.

After hearing testimony and reviewing the evidence in this case, I find that Hudson suffered an injury on May 21, 2004 which resulted in a 30 percent permanent partial disability to the body as a whole referable to the upper spine, neck, shoulders and upper extremities. I find that on December 29, 2004 Hudson sustained an injury to his lower back and lower extremities causing permanent partial disability of an additional 40 percent to the body as a whole. This is based on Dr. Stuckmeyer's assessment of permanent partial disability, which accurately encompasses the complexity and seriousness of Hudson's injuries.

Hudson is awarded compensation for the May 21, 2004 injury of 30 percent to the body as a whole, which is 120 weeks of compensation at the stipulated rate of $\ 347.05, for a total of $\ 41,646.

Hudson is awarded compensation for the December 29, 2004 injury of 40 percent to the body as a whole referencing the lumbar spine and lower extremities, which is 160 weeks of compensation at the stipulated rate of $\ 354.05, for a total of $\ 56,648.

Hudson claims he is permanently and totally disabled.

"The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. The pivotal questions is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired."

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. 1955) (citations omitted).

Drs. Simon and Stuckmeyer as well as vocational expert Titterington find Hudson permanently and totally disabled and unable to compete on the open labor market. I find Hudson to be permanently and totally disabled.

I do not find Hudson to be permanently and totally disabled as a result of the last accident alone and in isolation. The medical testimony, including Dr. Stuckmeyer, Dr. Simon and Dr. Bailey, demonstrates that Hudson's restrictions and chronic pain are the result of the combination of the cervical spine and lumbar spine. Although there are some restrictions specific to each injury, due to the nature of these spinal injuries, there is overlapping of some restrictions and treatments such as the need for recumbency and ongoing pain management. Therefore, I find that it is the disabling effects of both injuries which combine to render Hudson permanently and totally disabled.

In order to establish Second Injury Fund liability for permanent total disability benefits, Hudson must prove the following: (1) that he has a permanent disability resulting in a compensable work-related injury; (2) that he has a permanent disability predating the compensable work-related injury which is of such seriousness as to constitute a hindrance or obstacle to employment or to obtain re-employment if the employee becomes unemployable Section 287.220.1 RSMo (2000), Garribay v. Treasurer, 930 S.W.2d 57 (Mo. App. 1956), Rose v. Treasurer, 899 S.W.2d 563 (Mo. App. 1995); and (3) that the combined effect of the disability resulting from the work-related injury and the disability that is attributable to all conditions existing at the time of the last injury result in permanent total disability (Boring v. Treasurer, 947 S.W.2d 483 (Mo. App. 1997), Reiner v. Treasurer, 832 S.W.2d 152 (Mo. App. 1994).

Hudson has met the first test for establishing Second Injury Fund liability. However, Hudson must also prove the preexisting disability which he suffered was a hindrance or obstacle to employment.

I find that Hudson did have physical injuries which constituted a hindrance or obstacle to employment. Based on Dr. Stuckmeyer's and Dr. Simon's testimony in addition to lay testimony, I find that Hudson had an actual and measurable preexisting disability which created a hindrance or obstacle to his employment or re-employment. The evidence clearly establishes that the chronic pain and physical changes began with the first injury of May 21, 2004 but increased after the second injury to the lumbar spine of December 29, 2004. I find Hudson to be permanently and totally disabled as a result of the combined effects of his May 21, 2004 cervical injury and his December 29, 2004 lumbar injury.

Based on the evidence, I find the Second Injury Fund liable to Hudson for permanent total disability benefits. The Second Injury Fund is liable in the amount of $\ 20.16 ( $\ 374.21 minus $\ 354.05 ), the difference between Hudson's permanent total disability rate and permanent partial disability rate, for 160 weeks ( 40 percent of 400 weeks) beginning January 8, 2009. Thereafter, the Second Injury Fund is liable to Employee for weekly permanent total disability benefits in the amount of $\ 374.21 for his lifetime, or until modified by law.

It is clear that Hudson was referred to the Medical Center of Independence for emergency treatment after the injury of May 21, 2004. Hudson submitted into evidence the medical bills from MCI Hospital and seeks reimbursement of $\ 1,843. Hudson and his wife testified they paid the bill. The Employer offered no evidence to rebut Hudson's allegations that the bill was unpaid. Dr. Stuckmeyer testified that he reviewed all of the records including the MCI records and that the treatment rendered was reasonable and necessary to help cure and relieve Hudson from the effects of his injuries. Therefore, I find that Hudson is entitled to reimbursement for the Medical Center of Independence bill for $\ 1,843.

Hudson also seeks reimbursement for the medical expenses associated with his stay at Liberty Hospital in April of 2009 which amounts to $\ 5,782. The billing records from Liberty Hospital were received into evidence. There was substantial testimony from Hudson and his spouse concerning the need for the visit to Liberty Hospital. Dr. Simon reviewed the medical records from Liberty Hospital and opined that the services rendered were reasonable to treat Hudson for the withdrawal symptoms from his narcotic medications. Therefore, I find that Hudson should be reimbursed for the expenses of the Liberty Hospital by the Employer in the amount of $\ 5,782.

Hudson also asserts that he should be reimbursed for the prescriptions prescribed by Dr. Steven Simon which were filled at the Carondelet Pharmacy. The billing records from Carondelet Pharmacy from September 23, 2005 through August 12, 2009 were received into evidence. The Employer disputes that Dr. Simon was an authorized physician and therefore it is not responsible for this expense. Hudson and his wife both testified that Dr. Wilson made the referral to Dr. Simon for pain management. There is no evidence of a written referral by Dr. Wilson. I find Dr. Simon's care and treatment was not authorized and therefore not subject to reimbursement by the Employer/Insurer.

The parties stipulated that the future medical care and treatment for Hudson shall remain open. However, Hudson requests that he be allowed to be in charge of his own medical care so that he may select his own doctors. Despite the evidence that was adduced in this case, Hudson, when specifically asked, stated that he did not care if the Employer referred him back to Dr. Zarr for additional treatment. Therefore, I find that the Employer shall provide future medical care and treatment for Hudson and that the Employer shall be entitled to direct and control that treatment.

An attorney's lien of 25 percent of all compensation awarded herein is allowed Richard Scaletty, Hudson's attorney, for necessary legal services rendered.

Date: $\qquad

Made by: \qquad$

Paula McKeon

Chief Administrative Law Judge

Division of Workers' Compensation

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy L. Hudson

Injury No. 04-139020 and 04-139022

This award is dated attested to and transmitted to the parties this $\qquad day of \qquad$ , 2010 by:

Naomi Pearson

Division of Workers' Compensation