Employee: David Taube
Injury No: 05-134229
Dependents: N/A
Employer: North Missouri Construction (Settled)
Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund
Insurer: (Settled)
Hearing Date: May 20, 2010
Briefs Filed: June 10, 2010
Checked By: RSM/cy
The above Claim was heard on May 20, 2010. Mr. David Taube (hereinafter Claimant) and the Second injury Fund stipulated to all issues in the case except for the nature and extent, which includes the sub-issue of the nature and extent of permanent disability resulting from the October 21, 2005 accident.
Claimant's evidence consisted of:
His testimony; and Exhibits A through JJ which consist of: the claim, and amended claim for compensation; the answers and receipts of claims for compensation; the stipulation for compromise settlement with the Employer/Insurer; the reports and depositions of Dr. Koprivica; the report and deposition of Dr. Caffrey; the reports and depositions of Mary Titterington, all of the medical records from the treating physicians; Meadville R-IV School Transcript; and records from the Social Security Administration. Claimant's Exhibits A through JJ were admitted into evidence.
The Second Injury Fund's Evidence consisted of:
The deposition testimony of the Claimant, admitted into evidence as Second Injury Fund's Exhibit 1.
Claimant is alleging injury to his low back and body as a whole, which occurred when he was pulling a tarp loaded with dirt and debris. As a result of this injury, Claimant alleged that he
was permanently and totally disabled. Claimant also alleged pre-existing psychological disability and a learning disability of written expression.
David Taube is a 58-year-old man who resides at 5 Mulberry Street, Hale, Mo., a small town thirty miles north of Chillicothe. He completed the $9^{\text {th }} grade at Meadville High School and left school in the 10^{\text {th }}$ grade after an argument with a coach and the principal. He does not have a GED despite an attempt to obtain one. His work history consists of heavy exertion labor jobs. He was employed with North Missouri Construction for the 25 years preceding his primary work injury, initially as a general laborer or hand digger until he was promoted to job foreman, working alongside 2-3 co-workers laying telephone cable underground. This involved operating backhoes, bulldozers, as well as various other machinery to dig into the ground and to lay the cable. At times, he and his crew were required to engage in hand-digging when necessary. During the winter when the ground was frozen and he was laid off, he drew unemployment and did dry-wall/carpentry work.
On 10/12/05, Mr. Taube sustained a minor injury to his low back when, while attempting to pull a telephone pole out of the ground, the pole fell over, and he fell over with it to the ground. Thereafter, he saw his chiropractor, Dr. Bonnette, who administered chiropractic manipulation. He took a day off and then returned to his regular job with no restrictions.
Then, on 10/21/05, Mr. Taube sustained a second and significant injury to his low back when he was attempting to help pull a tarp full of dirt when he fell down again. He testified that it felt like someone "hit him in the back with a ball bat," and the pain was so bad that he was crying. The pain was in the small of his back at the belt-line, and radiated into both legs. He described the back and leg pain as excruciating to the extent that he could not even walk. He was helped up and into the truck, drove 60 miles to the office and reported the injury to the employer. He again saw Dr. Bonette who performed another manipulation. The 10/21/05 injury occurred on a Friday. Mr. Taube stayed at home all weekend, and on Monday morning when he went to get up, he could not move. He described crawling along the floor until his daughter came over to assist him up. He then called his superintendent and told him that he needed to see a doctor, and was summarily laid off.
Mr. Taube was eventually referred to Dr. Goddard on 12/22/05, who ordered an MRI scan which was performed on 12/29/05 and revealed diffuse bulging at L5-S1 with central protrusion. There was a minimally protruded herniated central disk at L4-L5, more to the left than the right. Dr. Goddard recommended neurosurgical evaluation on 1/6/06. Mr. Taube was then seen by Ann Lee, M.D. on 2/1/06, who noted spasm and ongoing complaints for which she recommended a Medrol-Dosepak and conservative management. His care and treatment were then directed to Dr. Drisko, who examined him on 3/7/06 and diagnosed symptomatic spinal stenosis and recommended conservative management with physical therapy, which Claimant apparently did not tolerate. A functional capacity evaluation was performed on 4/27/06: he demonstrated good effort, and was limited to light physical demand level of activity. Overall, the prognosis was poor. Dr. Drisko released him at maximal medical improvement on 5/9/06 with permanent
restrictions based on the functional capacity evaluation. Apparently, Dr. Drisko offered surgical intervention, but Mr. Taube was not willing to undergo surgery. His smoking history had a negative impact on the prognosis of the outcome of any proposed back surgery, and Claimant was unwilling to quit smoking. Dr. Drisko prescribed a TENS unit, which at times alleviated a portion of his back pain and made him somewhat more comfortable, but never completely took away his pain.
On May 27, 2007 Mr. Taube was evaluated by neurosurgeon, Stephen L. Reintjes, M.D. Dr. Reintjes noted "Interestingly, I discussed the possibility of physical therapy or surgery to correct his problem. He refuses both physical therapy and surgery" (Exhibit T).
P. Brent Koprivica, M.D. testified on behalf of the Claimant. In his initial deposition of 3/13/08, Dr. Koprivica did not assess any liability to the Second Injury Fund (Exhibit FF, 21-22), as he did not identify any disabilities predating the 10/21/05 primary injury which constituted a hindrance or obstacle to Mr. Taube's employment or re-employment if he were to become unemployed. Dr. Koprivica opined that the Claimant was permanently and totally disabled solely as a result of the 10/21/05 primary injury.
Vocational expert Mary Titterington initially opined in her 2/27/08 deposition that Mr. Taube is unemployable on the open labor market and, thus, permanently and totally disabled solely due to the restrictions stemming from the 10/21/05 last accident, his extreme pain behaviors, his emotional lability from the primary injury as well as his low academic and intellectual functioning and his limited education. She also admitted that there were no prior disabilities which would constitute a hindrance or obstacle to his employment, and that no prior restrictions had been imposed on Mr. Taube's work (Exhibit HH, 68 \& 73). She also admitted that his educational background and low intelligence level did not present an obstacle or hindrance to his ability to obtain or perform his jobs prior to 10/21/05 (Exhibit HH 73). At that time, Ms. Titterington did not identify any learning disabilities in David Taube.
The employer then engaged the services of psychologist Patrick Caffrey, who diagnosed in Mr. Taube a learning disability of written expression; a pain disorder associated with both psychological factors and a general medical condition, chronic; and dysthymic disorder, a form of depression; and low back pain (Exhibit JJ, 18). He opined that he considered the learning disorder of written expression a hindrance or obstacle to Mr. Taube's employment. However, Dr. Caffrey admitted that the learning disability did not actually negatively affect Claimant in any of his past employment, as Mr. Taube was never required to write reports, letters, or documents in his past work (Exhibit JJ, 76-77). Dr. Caffrey also opined that the chronic pain disorder resulted from the pain associated with the 10/21/05 primary injury, noting that Mr. Taube's first complaint was "My back is killing me, I wish I was home in my recliner." (Exhibit JJ, 53-54).
Thereafter, Mary Titterington confirmed such learning disability of written expression in her second report and deposition of 12/14/09, opining that Mr. Taube's learning disability, intellectual ability, emotional lability, his personality impairments as well as his physical
restrictions and his extreme pain behaviors stemming from the primary injury render him unemployable in the open labor market (Exhibit II, 17-18). However, she acknowledged that the