Robert Bayer v. Suntrup Buick

(Affirming Award and Decision of Administrative Law Judge with Correction)

Injury No.: 05-140300

Employee: Robert Bayer

Employer: Suntrup Buick

Insurer: Truck Insurance Exchange

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 heard oral argument, reviewed the evidence and briefs, 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 Administrative Law Judge Edwin J. Kohner dated October 14, 2010, as corrected below.

On page 2 of the administrative law judge's award under "21. Amount of compensation payable," the administrative law judge indicates that employee is awarded 11 weeks of temporary total disability benefits, or $\ 5,554.12, and 160 weeks of permanent partial disability benefits, or $\mathbf{\$ 5 8 , 4 1 2 . 8 0}$. It is clear from the body of the award that the administrative law judge's listing of 160 weeks of permanent partial disability benefits, or $\ 58,412.80 is incorrect. As a result of the primary injury, employee was actually awarded 30\% permanent partial disability of the body as a whole, which amounts to 120 weeks of permanent partial disability benefits, or $\mathbf{\$ 4 3 , 8 0 9 . 6 0} ( =120 weeks x \ 365.08 permanent partial disability rate). Therefore, we find that the administrative law judge's award shall be corrected and employee is awarded 120 weeks of permanent partial disability benefits, or $\ 43,809.60.

Based upon the foregoing, the award and decision of Administrative Law Judge Edwin J. Kohner, issued October 14, 2010, is affirmed, as corrected herein, and 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 $\qquad 20^{\text {th }} \qquad$ day of July 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I write separately to disclose the fact that I did not participate in the June 15, 2011, oral argument in this matter. I have reviewed the evidence, read the briefs of the parties, and considered the whole record. I concur with the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

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: September 30, 2005
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 had been working in the trunk of a car, with his legs hanging out, and then removed the back seat. By the time he finished reassembling everything, he complained of significant lower back pain.
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
14. Nature and extent of any permanent disability: 30 % Permanent partial disability of the low back
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

Employee: Robert Bayer

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 757.37
3. Weekly compensation rate: $\$ 504.92 / \ 365.08
4. Method wages computation: By agreement

1. Amount of compensation payable:

11 weeks of temporary total disability (or temporary partial disability) $\ 5,554.12

160 weeks of permanent partial disability from Employer $\ 58,412.80

1. Second Injury Fund liability: No

TOTAL:

$\ 63,966.92

1. Future requirements awarded: None

Said payments to begin immediately 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: James J. Logan, Esq.

Employee: Robert Bayer

Injury No.: 05-140300

Dependents: N/A

Employer: Suntrup Buick

Additional Party: Second Injury Fund

Insurer: Truck Insurance Exchange

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/ch

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, an automotive mechanic, suffered a low back injury while repairing the rear speaker in an automobile. The issues for determination are (1) Accident arising out of and in the course of employment, (2) Medical causation, (3) Liability for Past Medical Expenses, (4) Future medical care, (5) Temporary Disability, (6) Permanent disability, and (7) Second Injury Fund liability. The evidence compels an award for the claimant for temporary total disability and permanent partial disability benefits.

At the hearing, the claimant testified in person and offered depositions of Robert P. Poetz, D.O., and Timothy G. Lalk, medical records from St. John's Mercy Medical Center, Matthew A. Beckerdite, M.D., Robert D. Yoon, M.D., James T. Merenda, M.D., and Daniel L. Kitchens, M.D., and a "lien" filed by GHP, the claimant's private health insurer, for \$46,532.76. The defense offered a deposition of Brett A. Taylor, M.D., and printouts from the claimant's web page.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

Prior to this occurrence, the claimant had been off work for four weeks, recovering from a June 6, 2005, surgical repair of a previous, work-related incarcerated ventral hernia (settled on February 15, 2006), when he was released to return to work in July 2005. See Exhibit C. On his second day back, he felt a horrible tearing sensation in his stomach; he contacted the treating physician, who directed him to take two more weeks off work. After those two weeks were over, he felt he had fully healed from the hernia surgery, and was having no real problems.

After he returned to work, the claimant, an automotive mechanic, received tasks that required him to spend a lot of time bent over and/or twisted around. This aggravated his preexisting back condition, causing increased soreness. In late September 2005, he had to crawl into a car trunk, with his legs hanging out, in order to fix a malfunctioning rear speaker, and then had

to remove the back seat. By the time he reassembled everything, he felt significant back pain. He told his supervisor that he could not do any more work that day and went home.

On October 3, 2005, he consulted Dr. Beckerdite, his primary care physician, because the claimant's preexisting "back pain worsened. The patient has had a recent flare, notes radiation, notes stiffness." See Exhibit C. Dr. Beckerdite ordered an MRI and physical therapy. After physical therapy made the symptoms worse, Dr. Beckerdite ordered a nerve conduction study and referred him to a neurosurgeon. After learning that he would have to wait nearly two months to see a neurosurgeon, the claimant went to Dr. Yoon.

Dr. Yoon ordered a second MRI, and opined that a facet was pinching a nerve. On November 1, 2005, Dr. Yoon performed a facetectomy. In December 2005, the claimant returned to work still stiff and sore, but otherwise fine. After roughly two weeks back at work, his right leg pain returned, and then he began to notice pain in his left leg. He returned to Dr. Yoon on several occasions. On January 30, 2006, Dr. Yoon opined:

MRI of the lumbar spine show some post operative changes from the right L4/5 facetectomy. He has relatively severe foraminal stenosis at the L4/5 which is essentially unchanged from the previous operation. I believe that the MRI is showing the culprit of the pain. See Exhibit C.

On April 7, 2006, the claimant filed his original Claim for Compensation. He testified that the employer arranged for the claimant to see a physician, but the claimant declined to attend the appointment.

On April 18, 2006, the claimant sought care with Dr. Merenda, who opined that he needed a three-level fusion but was reluctant to operate. Dr. Merenda referred him back to Dr. Yoon. Dr. Yoon told him there was nothing more to be done, gave him three months' of Percocet, and cleared him to return to work with no restrictions.

On October 2, 2006, Dr. Kitchens, the final treating physician, performed a two-level fusion at L4-5 and L5-S1. He referred Mr. Bayer for six weeks of physical therapy, which Mr. Bayer felt really helped him. On April 19, 2007, Dr. Kitchens reported, "We will give him permanent work restrictions in the medium duty category." See Exhibit C, page 210.

The claimant is now able to mow half of his yard, and can do laundry and light housework. He cannot sit or stand for long periods without changing positions. (A long period is one to one-and-one-quarter hours.) If he does something physical, such as mowing, he will have to lie down for a while afterward, and will "pay for it the next couple of days." Nearly every week, he has periods when he needs to lie down; the frequency of these spells varies, so he could not give an average. Before 2005, he went to hockey games and movies, went fishing, played roller hockey with his son, went camping and on float trips with his family. He can no longer do these things. Currently, he complains of constant lower back pain, and testified that the intensity varies with the weather and his activities. His pain is not improving, and he testified that it is slowly worsening. He is not currently receiving treatment, and testified that his condition now is stable. He has had no leg pain since the last surgery with Dr. Kitchens.

He has not worked since March 2006 and has not looked for a job since the injury in September 2005. However, he is licensed by the State of Missouri to do tattoos. He primarily tattoos family, but has also tattooed friends; the last time he tattooed a non-relative was a couple of weeks before the hearing. Friends will sometimes pay him a minimal amount for a tattoo. In a given month, he might tattoo one or two non-relatives. He has a tattoo studio i