Gary Cole v. Schreiter Concrete Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-164772

Employee: Gary Cole

Employer: Schreiter Concrete Company

Insurer: Employers Mutual Casualty Company

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 December 14, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued December 14, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: August 2, 1999
5. State location where accident occurred or occupational disease was contracted: Warren 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: The employee was on the plant roof, shoveling sand from the roof into a bucket on a front-end loader, lost his footing on the sand, and fell off the roof.
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: Alleged neck and right knee
14. Nature and extent of any permanent disability: None from the accident
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 480.00
3. Weekly compensation rate: $\$ 320.00 / \ 303.01
4. Method wages computation: By agreement

1. Amount of compensation payable:

None

1. Second Injury Fund liability: No

TOTAL:

None

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: Mark R. Bahn, Esq.

Employee: Gary Cole

Injury No.: 99-164772

Dependents: N/A

Employer: Schreiter Concrete Company

Additional Party: Second Injury Fund

Insurer: Employers Mutual Casualty Company

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 claimed that he suffered torn right knee cartilage and a crushed vertebra in his neck on August 2, 1999, when he fell off a roof while shoveling sand off the employer's building. The issues for determination are (1) Medical causation, (2) Liability for past medical expenses, (3) Future medical care, (4) Temporary disability, (5) Permanent disability, and (6) Second Injury Fund liability.

At the hearing, the claimant testified in person and offered the report of injury, the claim and amended claim for compensation, records from the Missouri Division of Workers' Compensation, depositions of Dr. Polinsky, Dr. Berkin, and Vickie Tucker, medical bills from Missouri Baptist Medical Center and Dr. Polinsky, and voluminous medical records. The employer offered a deposition of Marvin Mishkin, M.D., a medical report from Sherwyn Wayne, M.D., and medical records, and a lien letter from Missouri Healthnet. The Second Injury Fund offered a deposition of the claimant.

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.

The primary issue for resolution in this case is whether the August 2, 1999, accident at work was a substantial factor in causing the claimant's cervical and right knee conditions, and need for cervical spine and right knee surgery. The evidence compels an award for the defense, because the evidence submitted by the claimant does not support an award of workers' compensation benefits. The claimant's testimony was impeached by the defense, because it conflicted with numerous prior statements found in many medical records from a variety of medical providers and in the claimant's deposition. In addition, the forensic medical evidence submitted by the claimant was not credible, because those medical experts had no information about the claimant's preexisting conditions that were well documented by medical providers that rendered medical services to the claimant before the accident. The evidence as a whole supports a finding that the claimant has a long history of degenerative osteoarthritis, but is not sufficient to establish whether, or to what extent, the accident at work was a substantial factor causing or aggravating that condition.

The claimant began working for this employer on March 17, 1999, as a concrete mixer and truck driver. He drove and maintained a truck. See claimant deposition, pages 13-14. At job sites, the claimant was responsible for keeping rock and sand bins filled, running a lift, and putting the rock in the right bins. The claimant performed heavy lifting including lifting steel bars and rods and bags of lime. See claimant deposition, page 15. Immediately before working for this employer, the claimant was in prison for 18 months for drug possession with intent to distribute. Before incarceration, the claimant drove a truck over the road for various employers. See claimant deposition, pages 18-19. The claimant had no neck pain before August 1, 1999, and never injured his neck before August 2, 1999. See claimant deposition, pages 41-42. Before the August 1999 occurrence, the claimant suffered injuries to his low back and left shoulder.

At the hearing, the claimant testified that he had no complaints regarding the right knee or treatment for his right knee before August 1, 1999. In his deposition, however, the claimant testified that he had right knee problems before August 1999. There was a disc floating around in his right knee. The claimant had fluid drained from the knee. See claimant deposition, pages 50-51. On July 9, 1999, the claimant went to Dr. Merenda, an orthopedic surgeon, and reported injuries to his "back, right knee, left shoulder, left hand, right foot" from work related injuries on "11-13-86/5-23- or 24-99". See Exhibit 2. The claimant stated that his back pain began bothering him in 1994. See Exhibit 2. The Patient Medical History Form asked the claimant to state the percentage of pain he had in his extremities, and the claimant reported that he had 8090 % pain in his left arm, 60-70 % pain in both legs, 40-50 % pain in his neck, and 100 % pain in his back. See Exhibit Q. Most all physical activity worsened the pain. The claimant described his pain as pins and needles in the left buttock, left leg, lower back, numbness and tingling in the left hand, left shoulder and arm. The claimant signed the Patient Medical History Form. See Exhibit Q.

Dr. Merenda examined the claimant on July 12, 1999, and the claimant related that he had increasing back pain for the past five months, with what sounded like a 1986 work-related injury. He had experienced intermittent back pain ever since. The claimant suffered from chronic intermittent low back pain, and bilateral leg pain, left greater than right. See Exhibit 2. Dr. Merenda performed a physical exam. Straight leg raising was negative. The claimant had normal motor strength and reflexes and a negative straight leg raising test. Dr. Merenda ordered an MRI and opined that the claimant did not require surgery. See Exhibit 2.

A July 21, 1999 lumbar spine MRI showed degenerative disc disease, greatest at L4-5 and L3-4. The claimant had desiccation of the discs at L3-4 and L4-5. There was a mild diffuse bulge at L3-4, without stenosis. The claimant had a mild posterior disc protrusion at L4-5, which did not produce significant nerve root impingement. There was mild facet arthropathy bilaterally at L5-S1. See Exhibit 2.

The Accident and Subsequent Medical Care

The claimant testified that his injury occurred between August, 1, 1999, and August 3, 1999, but could not recall the exact date of the accident. When he was injured, the claimant was

on the plant roof, shoveling sand from the roof into a bucket on a front-end loader. The claimant lost his footing on the sand and fell off the roof. The claimant estimated that he fell ten to fifteen feet, hit his chest on a rubber tire on the front-end loader, and fell onto his back on concrete. While the claimant had no pain at the time he fell, he believed he was unconscious for "a second" but got up a few minutes later. He could not recall having any pain or symptoms at that time in any part of his body. See claimant deposition, pages 26-27.

The claimant testified that he returned to work and did not seek medical treatment on the day of the accident. See claimant deposition, pages 17,18,26,27. He continued to work for $11 / 2 to 2^{1 / 2}$ weeks. As the claimant continued to work, he testified that he slowly began to experience symptoms in his low back, right arm, and both knees. See claimant's deposition, pages 26-28.

The claimant went to the Emergency Room at Doctors Hospital on August 3, 1999, reported that he "fell off roof at work - 1 month ago", and had bilateral knee pain. The registration notes state that the claimant reported a chronic back pain, and now had knee pain radiating to his feet. See Exhibit L. The claimant was diagnosed with chronic back pain and left knee pain. No swelling was noted in either knee. See Exhibit L. However, no physician found that the claimant had right knee pathology. The records disclose no diagnostic studies, including x-rays, of the claimant's right knee or any complaints of cervical spine or neck pain. See Exhibit L.

On October 4, 1999, the claimant went to Dr. Imboden, an osteopathic physician specializing in family practice, and reported right knee pain. The right knee clicked and had decreased range of motion in the knee. Dr. Imboden diagnosed right knee pain due to trauma and ordered