Willie White v. University of Missouri, Kansas City

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-076565

Employee: Willie White

Employer: University of Missouri, Kansas City

Curators of the University of Missouri

Insurer: Self-Insured c/o Corporate Claims Management, Inc.

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 September 16, 2010. The award and decision of Administrative Law Judge Lisa Meiners, issued September 16, 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 $26^{\text {th }}$ day of May 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Willie White

Injury No. 07-076565

Dependents: N/A

Employer: University of Missouri, Kansas City, Curators of the University of Missouri

Insurer: Self-Insured, c/o Corporate Claims Management, Inc.

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

Hearing Date: July 12, 2010

Checked by: LM/1h

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: June 11, 2007.
5. State location where accident occurred or occupational disease was contracted: Kansas City, 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: While in the course and scope of employee's work, employee held his neck in an awkward position for several hours causing injury of his cervical region and myelopathy of the left lower extremity.
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: Neck/body as a whole.
14. Nature and extent of any permanent disability: 40 % permanent partial disability body as a whole.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Willie White

1. Compensation paid to-date for temporary disability: $\ 12,606.37.
2. Value necessary medical aid paid to date by employer/insurer? $\ 48,941.53.
3. Value necessary medical aid not furnished by employer/insurer? -0-
4. Employee's average weekly wages: N/A.
5. Weekly compensation rate: $\$ 513.07 / \ 376.55.
6. Method wages computation: Stipulation.

1. Amount of compensation payable: The employer is liable to employee for permanent partial benefits in the amount of $\ 60,248 or 160 weeks of compensation.
2. Second Injury Fund liability: The Second Injury Fund is not liable to Claimant for permanent partial disability benefits.
3. Future requirements awarded: Employer is to provide employee with additional medical care required to cure and relieve the symptoms related to the injury of June 11, 2007.

Said payments to begin as of the date of the 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 24 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Keith Yarwood.

Employee: Willie White

Injury No. 07-076565

Dependents: N/A

Employer: University of Missouri, Kansas City, Curators of the University of Missouri

Insurer: Self-Insured, c/o Corporate Claims Management, Inc.

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

Hearing Date: July 12, 2010

Checked by: LM/1h

On July 12, 2010, the parties appeared for hearing. Willie White was present and represented by Keith Yarwood. The Employer, University of Missouri, Kansas City or the Curators of the University of Missouri, and Insurer through its authority to self-insure was represented by Brian Fowler. The Second Injury Fund was also a party and represented by Kim Fournier.

The parties stipulated:

1) That Claimant was an employee working subject to the law in Kansas City, Missouri;

2) That the Employer and Employee were working subject to the law on June 11, 2007;

3) The Employer stipulated that the Claimant sustained an injury by accident of a cervical spine that occurred within the course and scope of his employment and the Employer also stipulated that Claimant provided proper notice

4) Both Second Injury Fund and Employer stipulated that Claimant filed a claim within the time allowed by law;

5) That the Employer had paid medical expenses in the amount of $\ 48,941.53, as well as paid temporary total disability benefits in the amount of $\ 12,606.37;

6) That the compensation rates were $\$ 513.07 / \ 376.55.

The parties requested this hearing address:

1) whether Claimant sustained an injury by accident that occurred within the scope and course of his employment on June 11, 2007; (issue as to Second Injury Fund only)

2) and whether Claimant provided proper notice to the Employer; (issue as to Second Injury Fund only)

3) whether Claimant sustained any disability and, if so, the nature and extent of that disability;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Willie White

4) whether the Employer is liable to the Employee for future medical care in order to cure and relieve the effects of the June 11, 2007 injury;

5) and the liability of the Second Injury Fund.

On June 11, 2007, Claimant had worked for 23 years as a painter/drywaller for University of Missouri-Kansas City campus. On June 11, 2007, Claimant worked on a 12-foot ladder using his upper extremities to perform overhead work. After three hours with his neck and arms in an awkward position, Claimant felt a loud pop of his neck with immediate onset of stiffness. The next day Claimant reported the injury to his Employer. Then the Employer sent him to Concentra for an evaluation. Ultimately Claimant underwent a two-level cervical fusion performed by Dr. Hess in September of 2007. Claimant underwent surgery the day after Labor Day in 2007. In November of 2007, Claimant noted low back pain and left leg pain that went down into his left lower extremity. The Employer refused to provide treatment of the low back so he sought treatment with his own doctor who diagnosed a pinched nerve. As a result, Claimant underwent a series of epidural injections without success. Claimant worked light duty sanding and painting outside handrails until his last day working in the open labor market on August 14, 2007 .

Currently Claimant has limited range of motion of his neck as a result of the neck fusion. Medical records and Claimant's testimony revealed Claimant continues with radiculopathy of the left upper extremity as a result of the neck condition from the June 11, 2007 incident. Claimant also experiences weakness of the left upper extremity that he did not experience prior to June 11, 2007. Claimant also has myelopathy of the left lower extremity that Dr. Hess and Dr. Pang relate to the spinal cord injury.

Although the Employer stipulated that Claimant gave proper notice of the neck injury and that the June 11, 2007 neck incident occurred within the course and scope of his employment, the Second Injury Fund does not. Regardless, I find Claimant gave notice to the Employer of the June 11, 2007 incident. Indeed, the Employer must have been aware of this incident as they sent Claimant to Concentra the next day on June 12, 2007.

I also find Claimant sustained an injury by accident of his neck that occurred within the course and scope of his employment on June 11, 2007. Both Dr. Hess, a neurosurgeon, and Dr. Koprivica, who performed an independent medical evaluation, found the June 11, 2007 incident the prevailing factor of Claimant's current cervical condition. Additionally, Dr. Pang and Dr. Hess relate the radiculopathy of the left lower extremity to the cervical spinal cord injury. No contrary evidence was presented. As such, I find Claimant sustained a compensable work injury of his cervical region, including the left lower leg.

Based on Claimant's credible testimony, medical records and expert testimony, I find Claimant sustained a 40 % permanent partial disability body as a whole as a result of the June 11, 2007 accident. The Employer is liable to Claimant for 160 weeks or $\ 60,248 of permanent partial disability body as a whole. Indeed, Claimant is restricted from walking, bending, and stooping due to the left leg myelopathy. Claimant is no longer able to perform overhead activity and has limited range of motion due to the cervical fusion. I do not find Claimant unemployable based on the June 11, 2007 accident alone as he continued to work in the open labor market until August 14, 2007.

The Claimant also requests this award address whether the Employer is liable to Claimant for future medical care in order to cure and relieve the effects of the June 11, 2007 accident. I find Claimant met his burden of proof. Indeed, Dr. Hess, a neurosurgeon, never specifically addressed this issue. The only doctor to address this issue was Dr. Koprivica. Dr. Koprivica opined Claimant needed ongoing pain management due to the June 11, 2007 accident. Therefore, the Employer is liable to Claimant for future medical care in order to cure and relieve the symptoms of the June 11, 2007 accident.

Based on the evidence presented, I do not find the Second Injury Fund liable to Claimant. Claimant testified he worked without hindrances or obstacles to his employment prior to June 11, 2007. Therefore, I find Claimant did not have pre-existing permanent partial disability prior to June 11, 2007.

The Employer is liable to Claimant for 160 weeks of disability or $\ 60,248 of permanent partial disability body as a whole. Additionally, the Employer is liable to Claimant for future medical care in order to cure or relieve the effects of the June 11, 2007 accident.

This award is subject to an attorney's lien for services rendered by Keith Yarwood in the amount of 24 percent.

Date: $\qquad

Made by: \qquad$

Lisa Meiners

Administrative Law Judge

Division of Workers' Compensation

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