Richard Grill v. Cedar Creek Hardwoods

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-085542

Employee: Richard Grill

Employer: Cedar Creek Hardwoods (Settled)

Insurer: Indiana Lumbermens Mutual Insurance Company (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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated November 1, 2011. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued November 1, 2011, 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 $\qquad 12th \qquad$ day of April 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Richard Grill

Injury No. 04-085542

Dependents: N/A

Employer: Cedar Creek Hardwoods (settled)

Insurer: Indiana Lumbermens Mutual Insurance Company (settled)

Additional Party: Second Injury Fund

Appearances: Sam Eveland, attorney for employee.

Gregg Johnson, Assistant Attorney General for the Second Injury Fund.

Hearing Date: June 22, 2011 (commenced) Checked by: LCK/rf

July 26, 2011 (completed)

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? February 16, 2004.
5. State location where accident occurred or occupational disease contracted: Madison 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.

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was lifting a 55 gallon drum of glue and injured his lower back.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Low back and body as a whole.
4. Nature and extent of any permanent disability: 35% permanent partial disability of the body as a whole referable to the low back.
5. Compensation paid to date for temporary total disability: 9,111.28
6. Value necessary medical aid paid to date by employer-insurer: 122,803.62
7. Value necessary medical aid not furnished by employer-insurer: N/A
8. Employee's average weekly wage: 349.16
9. Weekly compensation rate: 232.77
10. Method wages computation: By agreement.
11. Amount of compensation payable: Permanent total disability against the Second Injury Fund.
12. Second Injury Fund liability: Permanent total disability.
13. Future requirements awarded: See Rulings of Law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Sam Eveland.

On June 22, 2011, the employee, Richard Grill appeared in person and with his attorney, Sam Eveland, for a final award hearing. The Second Injury Fund was represented at the hearing by Assistant Attorney General Gregg Johnson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issue that was in dispute. These undisputed facts and issue, together with the findings of fact and rulings of law, are set forth below as follows:

1. Cedar Creek Hardwoods was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Indiana Lumbermens Mutual Insurance Company.
2. On February 16, 2004 Richard Grill was an employee of Cedar Creek Hardwoods and was working under the Workers' Compensation Act.
3. On February 16, 2004 the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 349.16. The rate of compensation for permanent total disability and permanent partial disability is $\ 232.77 per week.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid $\ 122,803.62 in medical aid.
9. The employer-insurer paid $\ 9,111.28 in temporary disability benefits for $405 / 7$ weeks. The employer-insurer paid temporary total disability from February 19, 2004 through August 3, 2006; temporary partial disability from August 4, 2004 through August 7, 2004; and temporary total disability from August 8, 2004 through November 22, 2004.

1. Liability of the Second Injury Fund for permanent total or permanent partial disability.

A. Stipulation for Compromise Settlement in Injury Number 04-085542.

B. Deposition of Timothy Lalk which includes his CV and Vocational Evaluation.

C. Deposition of Dr. Berkin which includes his CV and two reports.

D. Records of the Social Security Administration.

E. Medical records of Dr. Krettek.

F. Medical records of Parkland Health Center.

G. Medical records of Dr. Lange.

H. Medical records of Dr. Vaught.

I. Medical records of Dr. Ritter.

J. Medical records of St. Luke's Hospital.

K. Medical records of Dr. Holder.

L. Therapy records of Work Solutions.

M. Physical therapy records of Farmington Sports and Rehabilitation Center.

N. Therapy records of Madison Physical Therapy Center.

O. Medical records of Southeast Missouri Hospital.

P. Medical records of Dr. Smith.

Q. Medical records of Dr. Guiley.

R. Medical records of Dr. Damba.

I. Report of Sherry Browning. (The record was left open for the submission of this exhibit which was received on July 26, 2011. On that date, a telephone conference was held between the parties, the exhibit was admitted into evidence, and the record was closed.)

Judicial notice of the contents of the Division's files for the employee was taken.

WITNESS: Richard Grill.

BRIEFS: The parties did not file briefs.

The employee was born in 1958. The last day he worked was February 16, 2004, the day of the primary accident. The employee had several pre-existing conditions. In 1986, when he was working for Biltwell, he fell down steps and injured his lower back and neck. The employee saw Dr. Krettek in August of 1986 for low back pain and bilateral lower extremity pain and numbness. The employee injured himself on July 2, 1986 when he landed on his sacrum. Dr. Krettek admitted the employee to the hospital for a low back myelogram and CT scan and diagnosed a L4-5 herniated disc. Surgical alternatives including chemonucleolysis and discectomy were discussed.

The employee saw Dr. Holder in August of 1986 for the L4-5 herniated disc. Dr. Holder thought the employee should have a surgical laminectomy or a chemonucleolysis under local anesthesia. Dr. Holder performed a chemonucleolysis of the L4-5 disc. In October, the employee told Dr. Holder that his discomfort in his legs has been relieved.

In January of 1987 the employee saw Dr. Krettek who noted that the employee wanted to avoid having an open surgical discectomy of the L4-5 disc and had a chemonucleolysis by Dr. Holder. Subsequently, the employee continued to have low back pain and bilateral lower extremity aching sensations but did not have the same pre-operative numbness. Due to neck pain, Dr. Krettek ordered a cervical and thoracic MRI which showed a herniated disc at C5-6. In February, a cervical myelogram with post myelogram CT showed a large central disc herniation

at C5-6 with mild compression of the spinal cord and a central bulging disc at C6-7. In February of 1987 Dr. Krettek performed a C5-6 anterior discectomy and fusion.

In April of 1987 the employee saw Dr. Krettek with continued neck and low back pain with radiating pain to both thighs particularly after prolonged sitting and bending. Dr. Krettek prescribed a different muscle relaxant and Elavil for neck stiffness and difficulty sleeping. Dr. Holder noted the employee was doing well with the chemonucleolysis; was remarkably improved with regard to his lower back; and may enter vocational rehabilitation or return to gainful employment with restrictions of no lifting more than 35 pounds. In June, Dr. Holder stated the employee could be considered to be employed in a limited capacity provided he does not have to lift more than 35 pounds on a repeated basis. The employee saw Dr. Krettek and additional physical therapy was ordered. The employee had restrictions of no standing greater than one hour, alternating with sitting and no continuous walking on concrete and no work above shoulder level. He recommended vocational rehabilitation and prescribed medications including Darvocet.

In July, Dr. Holder talked to the employee by telephone about vocational rehabilitation and training. The employee was attempting to get the state to send him to computer school. Dr. Holder stated that the employee should get into an occupation which did not allow heavy manual labor due to the low back and neck surgery. It was Dr. Holder's opinion that the employee was at maximum benefit with regard to the lower back and his final limitation was increased to a lifting capacity of no more than fifty pounds which would probably be a permanent condition for both his back and neck. It was Dr. Holder's opinion that the employee sustained a 15\% permanent partial disability of the body as a whole due to the herniated disc and subsequent chemonucleolysis procedure. It was possible that the employee may have future treatment.

In August of 1987, the employee and Dr. Holder discussed by phone a fifty pound capacity working on light duty on a permanent basis. In September, Dr. Holder released the employee to be seen on an as needed basis. Dr. Krettek stated the employee was overall improving slowly with his neck, but had some minor current neurologic damage due to his cervical disc disease. The employee wished to return to work previously but was told there was no light duty.

In October of 1987, the employee settled his claim by compromise settlement in Injury Number 86-77722. The employee was paid $555 / 7$ weeks of temporary total disability. The settlement was for 15 % permanent partial disability of the body as a whole referable to the neck and 15 % permanent partial disability of the body as a whole referable to the low back.

In July of 1990, the employee called Dr. Holder for his lower back. Dr. Holder noted that occasionally the employee called for a limited amount of medication. The employee requested Darvocet and six tablets were prescribed. In September of 1990, the employee called and six more Darvocet tablets were prescribed. Four days later the employee saw Dr. Holder who noted that since the August 1986 injection for the L4-5 disc he did very well, had changed jobs several times and periodically required some pain medication.