Terrie Kobolt v. Lowe's Home Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-003115

Employee: Terrie L. Kobolt

Employer: Lowe's Home Center

Insurer: Self-Insured c/o Specialty Risk Services

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 December 29, 2010. The award and decision of Administrative Law Judge Vicky Ruth, issued December 29, 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 $6^{\text {th }}$ day of May 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Terrie L. Kobalt

Injury No. 05-003115

Dependents: N/A

Employer: Lowe's Home Center

Additional Party: N/A

Insurer: Self-Insured c/o Specialty Risk Services

Hearing Date: September 28, 2010

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Hearing Date: September 28, 2010

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: January 6, 2005.
5. State location where accident occurred or occupational disease was contracted: Eldon, 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: Employee, while working in the return department at Lowe's Home Center, attempted to lift a grill into a dumpster.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Low back, right and left legs, headaches, and body as a whole.
14. Nature and extent of any permanent disability: Permanent and total disability.
15. Compensation paid to-date for temporary disability: $\ 31,965.09.
16. Value necessary medical aid paid to date by employer/insurer? $\ 104,447.55.
17. Value necessary medical aid not furnished by employer/insurer? N/A.

1. Employee's average weekly wages: $\ 408.17.
2. Weekly compensation rate: $\ 272.11.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer:

TTD benefits for $7 / 16 / 09 through 2 / 26 / 10: \quad \ 8,707.52

Past -due Mileage (\$2,842.8 miles @ \$0.50/mile: \1,421.40

PTD benefits beginning 2 / 27 / 10 : Indeterminate

Total Award: \quad \ 10,128.92 plus an indeterminate amount for PTD benefits.

1. Second Injury Fund liability: N/A.
2. Future medical awarded: Yes.

Said payments to begin immediately and to be payable and 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: The Van Camp Law Firm.

Employee: Terrie L. Kobolt

Injury No: 05-003115

Dependents: N/A

Employer: Lowe's Home Center

Additional Party: N/A

Insurer: Self-insured c/o Specialty Risk Services

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On September 28, 2010, Terrie L. Kobolt and Lowe's Home Center/Specialty Risk Services appeared for a final award hearing. Terrie L. Kobolt was represented by attorneys Christine M. Kiefer and Douglas L. Van Camp. Lowe's Home Center and Specialty Risk Services were represented by attorney Benjamin Shelledy. Claimant testified in person at the trial. Dr. David T. Volarich, Mr. James M. England, and Ms. June M. Blaine testified by deposition. The parties filed briefs or proposed awards on October 19, 2010.

The parties stipulated to the following:

1. On or about January 6, 2005, Lowe's Home Center (the employer) was an employer operating subject to the Missouri Workers' Compensation law.
2. The employer's liability for workers' compensation was self-insured and Specialty Risk Services was the third-party administrator.
3. Terrie L. Kobolt (the claimant) was an employee of Lowe's Home Center and sustained an injury by accident that arose out of and in the course and scope of employment.
4. Notice is not an issue.
5. Claimant filed a Claim for Compensation within the time prescribed by law.
6. The Missouri Division of Workers' Compensation has jurisdiction and venue in Eldon is proper.
7. The agreed-upon rate of compensation is $\$ 272 /$ week for temporary total disability benefits, permanent partial disability benefits, and permanent total disability benefits.
8. The employer has provided medical benefits in the amount of $\ 104,447.55.
9. The employer has provided temporary total disability benefits in the amount of $\ 31,965.09.

At the hearing, the parties agreed that the issues to be resolved in this proceeding are as follows:

1. Nature and extent of permanent partial disability or permanent total disability.

1. Whether claimant is entitled to temporary total disability benefits from July 16, 2009 through February 26, 2010.
2. Whether the employer/insurer is responsible for future medical treatment.
3. Whether the employer/insurer is responsible for mileage reimbursement as outlined in Exhibit S.
4. Whether the employer/insurer is responsible for future mileage.
5. Whether the employer/insurer is responsible for a portion of the claimant's attorney's fees and costs as outlined in Exhibits Q and R.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit A Medical records of Southwest Spine and Sports.

Exhibit B Medical records of Springfield Neurological Institute, LLC.

Exhibit C Medical records of Osage Family Clinic.

Exhibit D Medical records of Lake Regional Health System.

Exhibit E Medical records of American Physical Therapy.

Exhibit F Medical records of Lake Regional Medical Management.

Exhibit G Medical records of Boone Orthopedic Associates.

Exhibit H Medical records of OnSite Rehabilitation.

Exhibit I Medical records of Columbia Orthopedic Group.

Exhibit J Medical records of Dr. H.M. Crabtree.

Exhibit K Medical records of Springfield Neurological \& Spine Institute.

Exhibit L Medical records of Lake Regional Health System.

Exhibit M Deposition of Dr. David T. Volarich., taken 6/26/08.

Exhibit N Deposition of Dr. Volarich, taken 12/04/09.

Exhibit O Deposition of James M. England, Jr.

Exhibit P Deposition of June M. Blaine.

Exhibit Q Attorney fees and expenses.

Exhibit R Letters to/from opposing counsel.

Exhibit S Mileage list.

The employer did not offer any exhibits.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. At the time of the hearing, claimant was 61 years old. She lives with her husband.

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[^0]: ${ }^{1}$ All depositions were received subject to the objections contained therein.

1. Claimant began employment with Lowe's Home Center, the employer, in approximately June 2003. She was hired as a clerk in the home décor department, and she later transferred to work on the register. When she was hired, she weighed between 255 to 270 pounds and was 5'6" tall. At the time of the accident, claimant was working as a Return to Manufacturer (RTM) clerk. Her duties involved disposing of returned merchandise by sending it back to the manufacturer, sending it off for repair, or destroying it on site at the direction of the manufacturer. This position required claimant to physically handle the products, some of which were very heavy; she also had to interact with manufacturers by phone and by computer.
2. On January 6, 2005, a large, barbeque grill was returned to the employer. The manufacturer instructed the employer to destroy the grill instead of returning it. The grill weighed between 200 and 300 pounds. Claimant requested the help of the department manager in lifting the grill into the compression dumpster. The department manager and claimant tried to jointly lift the grill. When they lifted, the grill did not move and claimant felt pain in her low back and down both legs. She reported the injury to her employer a few days later. In the days before she reported the injury, she stayed in bed as the symptoms increased.
3. The employer authorized treatment, and sent claimant to Dr. Brayfield on January 11, 2005. Claimant complained of acute pain in her lower lumbar area going into her left buttock. Dr. Brayfield initially assessed musculoligamentus strain of the lumbar sacral area and lumbar radiculopathy. The doctor prescribed Vicodin and Flexeril, and ordered x-rays; the x-rays showed mild degenerative change of the lower lumbar spine.
4. When the claimant saw Dr. Brayfield again on January 17, 2005, she had been working 4hour days at the employer's business. She indicated that she was continuing to have problems, including a burning sensation on the bottom of her left foot. The doctor's assessment was lumbar radiculopathy. Dr. Brayfield refilled her medications and ordered an MRI of the lumbar spine. The MRI of January 26, 2005, showed degenerative disc disease and hypertrophic facet changes most prominently at L4-5. On January 31, 2005, Dr. Brayfield diagnosed degenerative disc disease of the lumbar spine with recent exacerbation. He referred her to physical therapy. ${ }^{2}$
5. Claimant attended physical therapy at American Physical Therapy from February 2, 2005, until March 30, 2005. ${ }^{3}$ On February 28, 2005, during the period of her physical therapy, claimant saw Dr. Brayfield and he increased her work hours from four to six hours per day. On March 14, 2005, Dr. Brayfield saw claimant again and noted that she had not done well when her hours increased to six hours per day. He noted that claimant's gait was not nearly as antalgic as it had been. Dr. Brayfield lowered her restriction to four

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[^0]: ${ }^{2} Claimant's Exh. C.

{ }^{3}$ Claimant's Exh. E.

hours per day, and suggested that she see a spine rehabilitation specialist. ${ }^{4}$ He also discussed the possibility of doing an epidural steroid injection.

1. Claimant saw Dr. William Harris on April 7, 2005. His impression was chronic ligamentous strain/sprain of the lumbar spine. Dr. Harris referred the claimant to a work hardening program and continued her on light duty. On May 9, 2005, claimant requested a second opinion and Dr. Harris agreed. Claimant was referred to Dr. Jeffrey Parker, who saw her on June 30, 2005. At that time, Dr. Parker noted that according to claimant, the work hardening program made her symptoms worse. Dr. Parker also noted that claimant had stopped working. Claimant had pain in her left hip and into the lateral calf; the pai