Robert Overstreet v. Krey Distributing Co.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-159431

Employee: Robert Overstreet

Employer: Krey Distributing Co.

Insurer: National Union Fire Insurance Co. c/o AIG

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 May 4, 2010. The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued May 4, 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 $\qquad 29 ^{\text {th }} \qquad$ day of October 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: December 21, 1998
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: Claimant was loading cases of beverages when he felt a pop in his back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Body as a whole referrable to the lumbar spine.
14. Nature and extent of any permanent disability: 35 % of the body as a whole
15. Compensation paid to-date for temporary disability: $\ 20,658.01
16. Value necessary medical aid paid to date by employer/insurer? $\ 50,048.95

Employee: Robert Overstreet Injury No. 98-159431

1. Value necessary medical aid not furnished by employer/insurer? $\ 1,825.87
2. Employee's average weekly wages: $\ 942.95
3. Weekly compensation rate: $\$ 294.73 / PPD \$ 562.67 /$ TTD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 682.77

3 weeks of temporary total disability $\ 1,688.01

140 weeks of permanent partial disability from Employer $\ 41,262.20

1. Second Injury Fund liability: Yes

29.53 weeks of permanent partial disability from Second Injury Fund $\ 8,703.38

TOTAL: $\ 52,336.36

Said payments to begin as of the date of this award 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:

Radford Raines

Injury No: 98-159431

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: GCG/ch

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on January 26, 2010 at the Division of Workers' Compensation in St. Charles, Missouri. Robert Overstreet (Claimant) was present, and represented by Radford Raines. Peter Maher represented Krey Distributing (Employer) and National Union Fire Insurance Co. of Pittsburgh, c/o AIG Domestic Claims, Inc. (Insurer). Assistant Attorney General Caroline Bean represented the Second Injury Fund. The parties submitted post-trial briefs.

The parties entered into the following Stipulations:

1. Claimant was an employee of Employer, had an average weekly wage of $\ 942.95 that qualified Claimant for permanent partial disability (PPD) benefits at the rate of $\ 294.73 per week and temporary total disability (TTD) benefits at the rate of $\ 562.67.
2. Claimant filed his claim in a timely manner and Employer had received proper notice of Injury.
3. Employer has paid to date $\ 50,048.95 in medical expenses for care and treatment provided to Claimant.
4. Employer has paid to date $\ 20,658.01 in temporary total disability (TTD) benefits to Claimant in connection with this claim.
5. Venue is proper in St. Charles County.

The following issues were presented for resolution:

1. Accident.
2. Employer/Insurer liability for past medical expenses in the amount of $\ 1,825.87.

1. Employer/Insurer liability for additional TTD benefits.
2. Nature and extent of Claimant's disability.
3. Liability of the Second Injury Fund (SIF).

Only evidence necessary to support this award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. Certain exhibits offered into evidence may contain handwritten markings, underlining and/or highlighting on portions of the documents. Any such markings on the exhibits were present at the time they were offered by the parties. Further, any such notes, markings and/or highlights had no impact on any ruling in this case.

The parties offered the following exhibits into evidence:

Claimant offered Exhibits A through H into evidence. Objections were made regarding Exhibits C and H . The objections were sustained, and Exhibits C and H were not received into evidence. Claimant's Exhibits A, B, D, E, F, and G were received into evidence.

Employer/Insurer offered Exhibits 1 and 2 into evidence. An objection to Exhibit 1 was made by Claimant. The objection was sustained in part. Page one of the three page exhibit was received into evidence over the objection, as it was properly certified. The second and third pages were not received into evidence as the objection was sustained as to those pages.

SIF offered Exhibits I and II, which were received into evidence without objection.

Claimant testified on his own behalf at the hearing. Claimant is currently 71 years old. The injury occurred on December 21, 1998. Claimant worked for approximately 30 years as a delivery driver for Employer, and its predecessor MRS Beverages. Claimant testified that the delivery drivers were required to load and unload the trucks. Loading the delivery truck required lifting cases of beer and kegs of beer.

Claimant testified on December 21, 1998 he was injured while loading his truck. He indicated he was holding one or two cases of 16 ounce cans of beer and leaning over to place them when he felt a pop in his back and he felt pain across his lower back and down into his left leg. He finished loading the truck and went to make his first delivery hoping the pain would subside. After he made the first delivery, the pain had increased so he returned to the warehouse and informed Kevin Porter, a supervisor, of the injury. Mr. Porter immediately took Claimant to get medical attention. Claimant received medical treatment at the direction of Employer/Insurer consistent with the records in evidence and which will be summarized in more detail below.

Claimant testified he received an electrical muscle stimulator at the direction of Dr. Bukal Dave for pain management and Insurer refused to pay for it, and although he sent it back he was

billed for it. His testimony was that he was billed $\ 1,143.10 for the muscle stimulator, but that he has not made any payments, and does not know if the provider, RS Medical, is actively seeking payment. Claimant also testified that he paid $\ 682.77 to Walgreens Pharmacy for Neurontin he was taking for pain relief from December 24, 1999 through February 22, 2000.

Claimant testified he previously had bilateral carpal tunnel syndrome. The conditions were work related, and he had surgery on both hands. The settlements for these claims are evidenced by Exhibit G. The right wrist settled for 17.5 % PPD and the left wrist settled for 15 % PPD. Claimant testifies that after treatment for carpal tunnel, he returned to the same job with no restrictions.

Claimant indicated his current complaints are continuing pain in his back and left leg, numbness in his left leg and foot, and trouble sleeping due to pain. Claimant takes Neurontin and over the counter medications for pain.

Claimant testified on December 3, 1998 he was arrested for DWI. He testified this was approximately 18 days before the work injury. There was a criminal component and a civil license revocation component to the legal proceedings, but that he doesn't remember exactly when he went to court or the outcome of each court appearance.

Claimant testified about his activities during both direct and cross examination. He still owns two parcels of land in Warren County; one is 40 acres and the other 160 acres. Claimant ran a farm on the land, even for a few years after the injury, although he testified he had help. He now just mows the grass there on a riding mower. He is active as a board member of the Gateway Gun Club and has the title of General Manager. He works as an official at trap shooting events, and travels to the Ozarks in this capacity. He also competes in some trap shooting events. Regarding the activity required to be an official, Claimant testified, " They're from 8 in the morning until 5. But you're moving around. You're not in one spot. Take a break, do whatever. No walking. I use a golf cart." Claimant holds a valid real estate broker's license.

Ultimately Claimant was directed to care with Dr. David Raskas. Dr. Raskas reviewed an MRI and ordered a CT myelogram. After reviewing the diagnostic studies Dr. Raskas diagnosed a herniated disc impinging upon the S1 nerve root. Dr. Raskas performed a microdiscectomy at L5-S1. After the surgery, Claimant continued to have leg pain complaints, and some headaches, so another MRI and CT myelogram was ordered. The new studies revealed that there was a spinal fluid leak. Dr. Raskas then performed another surgery on Claimant to repair the spinal fluid leak.

Dr. Raskas imposed the following permanent restrictions: No lifting, pushing, pulling over 30 pounds, no climbing ladders, no repetitive bending, stooping, twisting at the waist, need to change positions from sit to stand, stand to walk, every 30 minutes. He also didn't think Claimant could drive a truck around all day. Dr. Raskas referred Claimant to Dr. Guarino for pain management. Dr. Raskas opined that Claimant was at maximum medical improvement (MMI) from an orthopedic surgical standpoint as of September 13, 1999. On September 13, 1999 Dr. Raskas wrote a letter in which he opined Claimant wo