Prior to presenting evidence, the parties stipulated that the issues to be determined by this hearing are:
- Nature and extent of claimant's disability.
- Liability for past medical expenses.
- Liability for future medical aid.
- Liability for past medical mileage.
- Is Employer entitled to an overpayment of TTD representing a period of time for April 12, 2007 through May 3, 2007.
The parties agreed that on September 28, 2005, Victor Richardson was an employee of Ryan's Trucking. The Employer was operating under and subject to the provisions of the Missouri Workers' Compensation law and was fully insured by Compsource Oklahoma.
The parties also agreed that on September 28, 2005, the claimant sustained an injury by accident arising out of and in the course of his employment. The employer had proper notice of claimant's injury and a timely Claim for Compensation had been filed.
The parties further agreed that the correct rate of compensation is $\ 696.97 per week for both temporary total disability and permanent total disability and $\ 365.08 for permanent partial disability. Compensation has been paid in the amount of $\ 76,666.70
representing a period of time from December 1, 2005 through May 7, 2007 and June 18, 2008 through February 25, 2009 for a total of 110 weeks. Medical aid has been furnished in the amount of $\ 56,414.25. The employer is asking for past medical aid expense in the amount of $\ 4800.73.
The claimant testified in person. He is 47 years old. He is well spoken and has a muscular build. He is an over-the-road truck driver. He claims to be permanently and totally disabled.
On September 28, 2005, the claimant was operating an 18-wheeler owned by the employer on Westbound U.S. 36 in Clinton County, Missouri. He had his cruise control set at 70 M.P.H. A car approached his vehicle from a side road.
The vehicle struck the claimant's front passenger wheel of his truck causing the steering wheel to violently jerk his arms and body. It pushed the tractor-trailer into the center median, striking a ditch which caused his vehicle to cross back over the West bound lane and strike another ditch and embankment on the North side of the highway causing the tractor to separate from the trailer. The tractor came to rest with the driver's side on the ground.
The tractor came to rest with the driver's side closest to the ground. Claimant testified that he was unable to use his left arm at all to get out of the vehicle and required assistance from bystanders to exit the passenger side window of the truck. He said the impact caused both of his shoes and one of his stockings to come off of his feet.
He was taken from the scene of the accident by ambulance to Cameron Memorial Hospital in Cameron, Missouri where he was hospitalized. He was taken to surgery for reduction of the fracture of his left humerus and reduction of the glenhumeral dislocation on the left. He was admitted for observation and pain control with an admitting diagnosis of "closed fracture of upper end of humerus, greater tuberocity, open wounds of hip and thigh without complications, contusion of face, scalp and neck except the eye. Face, neck and scalp abrasions, friction burns without infection. Low back pain. Puss in joint of lower leg. Puss in limb."
He was discharged by Cameron Medical Center and told to follow up with his primary care physician. He returned to his home at Lawton, Oklahoma. He was seen by his primary care physician, Dr. Love, who prescribed therapy and referred him to Dr. Stephen K. Ofori.
Dr. Ofori is a neurosurgeon. The claimant said that Dr. Ofori told him he was a surgical candidate but the claimant was then referred by the employer to Dr. Arthur Conley, M.D.
Dr. Conley's report of June 28, 2006 noted that Dr. Ofori had an MRI performed and revealed an injury to L4-5 and L5-6 and DISC injury at C3-4, C4-5 and C5-6. Dr. Ofori had recommended a three level DISC fusion to repair the cervical DISC injuries.
Dr. Conley did not recommend surgical intervention and referred the claimant be sent to a physical medicine rehabilitation center for epidural injections and sacroiliac injections and pain management.
The claimant was then seen by Dr. Darryl D. Robinson, M.D. on July 18, 2006. It should be noted that Dr. Robinson's letterhead states "Darryl D. Robinson, M.D. Specializing In Comprehensive Pain Management \& Non-Operative Spine Care."
Dr. Robinson treated Mr. Richardson for chronic neck and low back pain and opined that Mr. Richardson suffered from cervical degenerative disc disease at C3-C4 and C5-C6. He also diagnosed lumbar degenerative disc disease at L3-L4 with facet arthrosis. Mr. Richardson continued to receive conservative treatment, including epidural steroid injection at C3-C4 and L3-L4. Ongoing therapy was recommended and continued through August, 2006. During this time, Mr. Richardson was still off work and was paid by the employer temporary total disability benefits. He went on to receive additional injections in September 2006 in the cervical and lumbar spine and a muscle stimulator was recommended in November 2006. Right sided facet injections were performed in the lumbar spine in December 2006. Radio frequency ablation of the medial nerve branches at L3-L4 and L4-L5 was performed in January 2007.
A functional capacity evaluation performed in March 2007 demonstrated the claimant's ability to perform medium demand level work. Specifically, it recommended that the claimant could return to work duties with the following requirements:
Pushing up to 22 pounds, pulling up to 57 pounds, lifting knuckle to shoulder occasionally up to 40 pounds, lifting floor to knuckle occasionally 50 pounds, lifting floor to shoulder occasionally 50 pounds, carrying items 30 feet occasionally weighing up to 50 pounds. It also revealed an above competitive ability to reach overhead, stoop and reach, crouch, squat and reach, perform a kneeling reach, and perform an axial rotation reach. It also revealed ability to constantly balance, to frequently stand, frequently sit, frequently walk, and occasionally climb stairs.
Dr. Robinson also provided impairment ratings of 12 % of the cervical spine, 8 % of the lumbar spine, representing a total impairment of 19 %.
At the request of the employer, an independent medical examination was performed by Dr. Poppa in May 2007. His report stated that the claimant was able to work in the medium category physical demand, including lifting 50 pounds occasionally, 25 pounds frequently, and 10 pounds constantly. Dr. Poppa evaluated the claimant and opined that the claimant was at maximum medical improvement. He recommended further pain management and also noted that the claimant could work in the medium category lifting 50 pounds occasionally. He gave a rating of 10 % permanent partial disability as it relates to the cervical spine, 12.5 % permanent partial disability as it relates to the lumbar spine and pelvis, 15 % permanent partial disability as it relates to the left shoulder, giving him an overall disability rating of 31 % of the body as a whole.
Dr. Robinson repeated radio frequency ablation on the right side from L3-L5 in June 2008 and recommended a follow-up cervical MRI. A cervical MRI from August 2007 revealed a right sided C4-C5 disc protrusion and bulges at C2-C3, C3-C4 and C5C6. Further radio frequency ablation on the right was performed in August 2008 and an injection was performed at C4-C5 in August 2008. Further injections were performed throughout 2008 and Mr. Richardson continued pain management treatment thro