Steven Polkinghorne v. Charles F. Vatterott & Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-054080

Employee: Steven Polkinghorne

Employer: Charles F. Vatterott \& Company (Settled)

Insurer: American Association of Independent Management Workers' Compensation Fund (Settled)

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 § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 13, 2011, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 13, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 21^{\text {st }} \qquad$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

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 believe the decision of the administrative law judge should be reversed.

On March 1, 2007, employee performed work on a retention pond. First, he was digging with a backhoe and then he was shoveling mud by hand. Employee began experiencing back pain radiating to his lower extremities.

Dr. Cohen believes the March 1, 2007, injury was the prevailing factor in causing employee's recurrent lumbar disc herniations. Without explaining why the work activities employee performed before the onset of his pain on March 1, 2007 could not have caused employee's spinal condition, Dr. Mirkin summarily concluded that employee's disc herniations were caused by degeneration resultant from a 2005 surgery. I find the opinion of Dr. Cohen more credible than the opinion of Dr. Mirkin for several reasons.

First, Dr. Cohen's credentials are proven by the record which includes his curriculum vitae. Dr. Mirkin's curriculum vitae is not in the record before us. Second, although both physicians were initially confused regarding the date of employee's 2005 injury, Dr. Cohen identified the confusion and clarified that he stood by his opinions after considering the correct injury date. Dr. Mirkin never identified the proper date of the 2005 injury. Worse yet, Dr. Mirkin used the incorrect injury date to question employee's credibility regarding the timeline of his symptoms. Finally, Dr. Cohen's opinion is consistent with the timing of the onset of employee's symptoms after working on the retention pond. Dr. Mirkin's opinion leaves me to wonder if Dr. Mirkin thought the timing of employee's new pain on March 1, 2007, was a mere coincidence, wholly unrelated to employee's work on the retention pond.

The medical imaging evidence in this case clearly shows that employee's back was in a different condition in 2007 than it was after the 2005 surgery. The myelogram performed on April 4, 2007, revealed, among other things, disc bulging and herniations at L4-5 and L3-4 and bulging at L2. These findings were not present at the time Dr. Sheehan performed the 2005 surgery. Their presence on April 4, 2007, is consistent with employee's description of his injury and Dr. Cohen's causation opinion.

I believe employee has shown that the March 1, 2007, work on the retention pond was the prevailing factor in causing employee's bulging discs and herniations. Consequently, I find that employee has shown that he sustained a compensable injury on March 1, 2007. Employee has a 25\% preexisting permanent partial disability of the body as a whole referable to his back and a 25 % preexisting permanent partial disability of the body as a whole referable to his abdomen. I find that these preexisting disabilities combine with the 30 % permanent partial disability of the body as a whole resulting from his work injury to result in a greater disability than the simple sum of the disabilities. I agree with the opinions of Dr. Cohen and Mr. Dolan that the disability from employee's 2007 back injury combines with his preexisting back and abdominal disabilities to render him permanently and totally disabled.

I would reverse the award of the administrative law judge and award to employee permanent total disability benefits from the Second Injury Fund. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

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: March 1, 2007
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: The employee developed low back pain while shoveling mud out of a retention pond.
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: 20 % Permanent partial disability to the low back
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: $\ 564.83
3. Weekly compensation rate: $\ 376.55
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

None

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: Michael J. Sudekum, Esq.

Employee: Steven Polkinghorne

Injury No.: 07-054080

Dependents: N/A

Employer: Charles F. Vatterott \& Company (Settled)

Additional Party: Second Injury Fund

Insurer: American Association of Independent Management

Workers' Compensation Fund (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a punch laborer, experienced pain and tightness in his back and down his leg while shoveling wet mud out of a retention pond. The sole issue for determination is Second Injury Fund liability. The evidence compels an award for the defense, because the credible evidence supports a finding that the claimant's pre-existing condition was the prevailing factor causing the claimant's medical condition.

At the hearing, the claimant testified in person and offered three workers' compensation settlement agreements, depositions of Raymond F. Cohen, D.O., and Stephen Dolan, and medical records from Leonard Lucas, D.O., Christian Hospital, St. Luke's Hospital, and Neurospinal Surgery. The Second Injury Fund offered a deposition of Dr. R. Peter Mirkin, M.D.

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.

This 58 year old claimant, a punch laborer, testified that on March 1, 2007, he experienced pain and tightness in his back and down his leg while shoveling wet mud out of a retention pond after his last load. On March 5, 2007, he reported "extreme pain" in his left hip and leg pain to Dr. Lucas. On March 16, 2007, a CT scan identified a disc protrusion at L3-L4 and L4-L5. On April 4, 2007, a lumbar myleogram showed mild canal stenosis at L4-5 herniating to the left, a disc bulge at L3-4, central disc bulging at L5-S1, and a large hemangioma at L3. The claimant's medical history at that time was "a four week history of severe low back pain with extension into the left thigh and calf. The pain has become progressively worse and intolerable and he has developed numbness and difficulty walking." See Exhibit E. Dr. Marchosky reviewed the radiology testing and opined that the claimant had lumbar canal stenosis at L4-L5 with severe degenerative disc disease and bilateral disc bulge at L4-L5 and the herniation at L4-L5 on the left with nerve root compression. See Exhibit E. He found degenerative disc disease at L3-L4 and at L5-S1. See Exhibit E. On April 11, 2007, Dr.

Marchosky performed L4 and L5 decompressive hemilaminectomies, foraminotomy, and a discectomy. See Exhibit E.

On June 14, 2007, the claimant filed a claim for compensation stating that he suffered a work related injury on March 1, 2007, "due to repetitive motion and the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability."

On June 21, 2007, Dr. Marchosky released the claimant after an office visit that noted back pain with radiation into both lower extremities. Dr. Marchosky opined that the claimant needed to lose weight and a fusion would likely be necessary. The claimant testified that Dr. Marchosky told him to consult his primary care physician and lose weight. The claimant testified that at this time he was worse than before the surgery with extreme pain in both legs and pain in all aspects of life. On July 9, 2007, the claimant returned to Dr. Lucas, who noted low back pain, chronic pain syndrome and prescribed narcotic pain killers.

In December 2007, the claimant reported to Dr. Cohen and Dr. Mirkin that he suffered sudden low back pain while shoveling wet mud out of a retention pond on March 1, 2007.

The claimant testified that he has continued to receive pain medications, including Vicodin for daily pain, Percocet for break-through pain and muscle relaxers from Dr. Lucas since summer 2007. He testified that he has informally discussed future surgery with physicians and each recommended against future surgery. The claimant attempted to make an appointment with a pain management specialist, but did not wish to have the diagnostic studies repeated that the pain management office claimed