John Kinnikin v. Triad Development Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-149623

Employee: John Kinnikin

Employer: Triad Development Company (Settled)

Insurer: Westport Insurance Corporation (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 May 28, 2009. The award and decision of Administrative Law Judge Grant C. Gorman, issued May 28, 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 $\qquad 4^{\text {th }}$ day of February 2011.

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: Novenmber 19, 2002
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 digging with a shovel and operating heavy equipment when he injured 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 low back
14. Nature and extent of any permanent disability: 30 % BAW
15. Compensation paid to-date for temporary disability: $\ 34,713.51
16. Value necessary medical aid paid to date by employer/insurer? $\ 72,236.03

Employee: John Kinnikin Injury No. 02-149623

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 827.50
3. Weekly compensation rate: $\ 551.67 TTD/\$340.12 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

178 weeks of temporary total disability less advance of $\ 10,203.60

$\ 87,993.66

120 weeks of permanent partial disability from Employer $\ 40,814.40

1. Second Injury Fund liability: Yes

26 weeks of permanent partial disability from Second Injury Fund $\ 8,843.12

TOTAL: $\quad \ 137,651.18

1. Future requirements awarded: None

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:

Jill Bollwerk

Employee: John Kinnikin

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on February 24, 2009 at the Division of Workers' Compensation in St. Charles, Missouri. John Kinnikin (Claimant) was present, and represented by Jill Bollwerk. Robert Hendershot represented Triad Development Company (Employer) and Westport Insurance Corporation. (Insurer). Assistant Attorney General Laura Wagener represented the Second Injury Fund. A hardship hearing was previously held before Administrative Law Judge Joseph E. Denigan on April 5, 2006; and a Temporary Award issued on May 12, 2006. The parties submitted post-trial briefs.

The parties made the following stipulations: Claimant sustained an accidental injury arising out of and in the course of employment on November 19, 2002; venue is proper in St. Charles County, Missouri; Employer received proper notice of injury; the Claim was filed in a timely manner; Claimant's average weekly wage is $\ 827.50 resulting in applicable rates of compensation of $\ 551.67 for total disability and $\ 340.12 for permanent partial disability (PPD); Employer paid \$34,713.51 in temporary total disability (TTD) benefits from November 25, 2002 to April 13, 2003 and from September 12, 2006 to March 1, 2007; Employer paid medical expenses totaling $\ 72,236.03; and employer mad an advance payment of $\ 10,203.60 to Claimant.

The following issues are presented for determination: employment; medical causation; Employer's liability for future medical care; Employer's liability for past TTD benefits; nature and extent of Claimant's disability; liability of Second Injury Fund; and the necessity of surgery provided pursuant to the Temporary Award.

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 filed Joint Exhibits I and II—the Transcript from the Hardship Hearing of this case, tried on April 5, 2006, which included Employee’s Exhibits A-H and Employer’s Exhibits 1-5.

The following exhibits were offered by Claimant and received into evidence at the hardship hearing of this case:

- A Certified records of Barnescare

- B Certified records of Nydic Open MRI

- C Certified records of St. Charles Sports & Physical Therapy

- D Certified records of ProRehab, PC

- E Certified records of Creve Coeur Pain Control

- F Certified records of St. Peters Bone and Joint

- G Certified records of The Work Center

- H Original transcript of deposition of Dr. David Kennedy

The following exhibits were offered by Claimant and received into evidence without objection at the final hearing of this case:

- I Certified records of Trinity Rehab

- J Certified records of Dr. Pedro Padilla

- K Certified records of Barnes Jewish Hospital

- L Certified records of St. Joseph West Hospital

- M Records of Aquatic Fitness, Inc.

- N Certified records of St. Louis Orthopedic Institute, Inc.

- O Certified records of Midwest Spine Surgeons/Dr. Coyle

- P Certified records of Primary Care Physicians

- Q Certified records of Missouri Baptist Medical Center

Employee: John Kinnikin

R Certified records of Dr. David Kennedy

S Original Transcript of Dr. David Volarich

T Original Transcript of Mr. James England

The following exhibits were offered by Employer and received into evidence at the hardship hearing of this case:

1. Records of St. Joseph Hospital West
2. Records of Dr. Tate
3. Records of Dr. Lange
4. Judge Brown's Order for Independent Medical Examination
5. Deposition of Dr. James Coyle with Exhibits attached.

The following exhibits were offered by Employer and received into evidence without objection at the final hearing:

1. Application for Review of Hardship Award
2. Commission's Order Dismissing Appeal
3. Deposition of Dr. Russell Cantrell

In the Temporary Award, ALJ Denigan accurately summarized the relevant evidence in the findings of fact made in the Award. They are copied here for the sake of convenience. The following summary of evidence and findings of fact are herein adopted and incorporated:

Claimant initially injured his back while working in a trench, and then on a bulldozer, in November, 2002. The employer referred employee for treatment with Barnescare (Exhibit A). He was placed on light duty, but his employer had no work available for him. Dr. Schockley with Barnescare referred employee for physical therapy, but employee continued to have shooting pain in his legs, so she then suggested an MRI (Exhibit B). After receiving the MRI results, Dr. Schockley suggested a referral to a physiatrist, and employee was then referred to Dr. Sandra Tate. (Exhibit 2).

Dr. Tate ordered epidural steroid injections, additional therapy, and ultimately released employee at maximum medical improvement on April 14, 2003.

Employee was unable to return to his former employment, due to his pain and due to the fact that the job was heavy, and the fact that he was released by Dr. Tate with a restriction of no

lifting greater than 30 pounds. (Exhibit 2). Employee has received no temporary total disability benefits since that time, nor has he worked since that time.

Because employee was still significantly disabled due to the injury, he decided to get a second opinion from a doctor of his own choosing, Dr. Terrence Piper. (Exhibit F). Dr. Piper recommended a fusion at L5-S1 and employee filed his Request for Hardship Hearing (see court file). Employer subsequently agreed to send employee for an appointment with Dr. David Lange, who is in Dr. Tate's office. Dr. Lange ordered an additional MRI on November 19, 2003 (Exhibit C), but provided no treatment to employee.

Another hardship mediation was scheduled, and Judge Brown ordered an IME with Dr. David Coyle. (Exhibit 4). Dr. Coyle first examined employee on March 3, 2004. He testified that upon his initial examination, he believed that employee's pain was due to "sagittal plane imbalance and the development of degenerative changes in the low back." (Exhibit 5, p. 16, line 20 - p. 17, line 1). He testified that the imbalance was caused by a condition called "Scheurmann's kyphosis," and that this condition pre-existed the work injury, but that the work accident made this minimally symptomatic condition become symptomatic. (Exhibit 5, p. 17, lines 2-13). At that time, he didn't feel employee was a candidate for surgery. He admitted that a fusion at L5-S1 might temporarily relieve employee's symptoms, but that it would not correct his imbalance problems and pathology might be transferred to adjacent levels of the spine. (Exhibit 5, p 18, lines 12 - 22). He prescribed additional therapy for employee. (Exhibit 5, p. 22, lines 17-19).

Employee had therapy as directed by Dr. Coyle and returned to see him on May 11, 2004. Dr. Coyle testified that the therapy gave him better flexibility, but that he received no sustained benefit afterwards