Jackie Hampton v. Champion Precast, Inc.

49, 52 (Mo. App. 2008). Accordingly, the question is not whether employee may have taken over-the-counter pain medications before this work injury, nor whether taking those medications now might relieve symptoms referable to a non-work-related condition. The only question is whether employee established a need for future medical care that "flows from the accident." Id. at 54 . We are convinced employee has shown that here.

We modify the award of the administrative law judge. Pursuant to § 287.140.1 RSMo, employee is entitled to that future medical treatment which may reasonably be required to cure and relieve from the effects of his low back and cervical spine injuries.

We modify the award of the administrative law judge. Employee is entitled to that future medical treatment which may reasonably be required to cure and relieve from the effects of his low back and cervical spine injuries.

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.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued April 26, 2011, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

(Concurring in Part and Dissenting in Part)

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I agree with the majority that employee met his burden on the issue of future medical care, and therefore I concur in the majority's decision to so modify the award; however, I am convinced that the administrative law judge also erred in failing to award compensation related to employee's hernia injuries sustained in the work injury, and I am convinced that the administrative law judge's award of permanent partial disability benefits referable to the low back is inadequate considering the seriousness of employee's injury and ongoing complaints.

On May 21, 2005, a steel door weighing between 250 and 300 pounds fell on employee while he knelt underneath it to pick up some tools. Employee felt sore all over his body following this accident and pursued authorized medical treatment through employer's workers' compensation doctors. Those doctors discovered a herniated disc in employee's cervical spine as well as a disc protrusion at L5-S1, and took employee off work. Employee testified he also had pain in his belly following the accident, but it appears from the medical records that treatment was focused on employee's orthopedic injuries. Employee was off work from June 2005 until December 23, 2005. When he returned to work and began to engage in more activity, employee noticed the pain in his abdomen getting worse, and finally noticed bulges in his abdomen while undergoing physical therapy for his low back in March 2006. Employee saw Dr. Easterday, who diagnosed a ventral and an umbilical hernia. Dr. Follwell performed surgical repairs of both hernias on May 25, 2006, and discharged employee to return to work on July 1, 2006.

The administrative law judge denied compensation for employee's hernia injuries on a finding that they were not medically causally related to the May 2005 accident. The administrative law judge's finding hinges on the rationale that, if the hernias were caused by that accident, employee would have complained about them sooner. This analysis ignores the facts of the case. First of all, employee credibly testified that his stomach felt sore immediately after the May 2005 accident. Second, employee was off work for about six months following the work injury. During that time period, he wasn't doing any lifting or otherwise exerting himself in such a way as to cause the pain or tightness in his abdomen to flare up. When he did return to activity, employee noticed that something wasn't right in his abdomen, and sought treatment, at which point the doctors discovered the hernias.

Dr. Pruett opined that the mechanics of the May 2005 accident are consistent with causing employee's hernias, and testified that if that accident is not the cause, he could not identify another one. Dr. Meyers credibly opined that the May 2005 accident was a substantial factor causing employee to sustain the hernias. I would credit Drs. Pruett and Meyers and find that the May 2005 accident caused employee to sustain the two hernias. I would award benefits consistent with what I believe to be a 5\% permanent partial disability of the body as a whole referable to each of the hernias, as well as

Employee's past medical expenses referable to the hernias, including the surgery performed by Dr. Follwell, temporary total disability benefits for employee's lost time before and after the surgery, and those future medical treatments which may reasonably be required in light of the hernia injuries.

As I noted above, I also disagree with the administrative law judge's decision to award benefits consistent with a finding of only 5\% permanent partial disability of the body as a whole referable to the low back. This finding unduly minimizes the terrible injury employee suffered in this case. Employee credibly testified he heard or felt a "crunch" in his spine when the door fell on him, and that his low back was "killing him" thereafter. Post-accident diagnostic studies revealed a focal disc protrusion at L5-S1. The administrative law judge focused on the opinions from employer's workers' compensation doctors, including Dr. Chabot, who said employee just suffered a strain. I find Dr. Chabot wholly lacking in credibility. The administrative law judge also makes much of the fact employee suffered some low back complaints before May 2005. But employee credibly testified that his low back pain had resolved before the work accident. Dr. Meyers rated employee's low back disability attributable to the May 2005 accident at 30\% permanent partial disability of the body as a whole. I find employee sustained at least a 20\% permanent partial disability of the body as a whole referable to the low back and would award benefits commensurate with this finding.

In sum, I agree with the majority's decision to modify the award to find employee entitled to his future medical expenses. But, insofar as the majority has determined that employee is not entitled to compensation for his hernia injuries, and that he only suffered 5 % permanent partial disability referable to his low back injury, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: Jackie Hampton

Injury No.: 05-067328

Dependents: N/A

Employer: Champion Precast, Inc.

Additional Party: N/A

Insurer: St. Paul Travelers

Hearing Date: February 3, 2011

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

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: May 21, 2005
5. State location where accident occurred or occupational disease was contracted: Lincoln 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, a lead person for a concrete manufacturer, suffered a cervical spine disc injury while building a metal mold for a concrete product.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Cervical spine, lumbar spine
3. Nature and extent of any permanent disability: 30 % permanent partial disability to the cervical spine and 5 % permanent partial disability to the lumbar spine
4. Compensation paid to-date for temporary disability: $\ 7,614.52
5. Value necessary medical aid paid to date by employer/insurer: $\ 43,759.27

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jackie Hampton

1. Value necessary medical aid not furnished by employer/insurer? None