Doug Nord v. City of St. Charles

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-129192

Employee: Doug Nord

Employer: City of St. Charles (Settled)

Insurer: Self-Insured (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 December 23, 2011, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued December 23, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 14^{\text {th }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Claimant: Doug Nord

Injury No. 06-129192

Dependents: None

Employer: City of St. Charles (settled)

Address: 20110000000000

Address: 201100000000000000000

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Injurer: Self-insured (settled)

Jefferson City, Missouri

Hearing Date: September 20, 2011

Checked by: GCG/In

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? No
4. Date of accident or onset of occupational disease: Alleged March 31, 2006
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
6. Was above Claimant 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? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work Claimant was doing and how accident occurred or occupational disease contracted: Claimant alleges he sustained injury to his low back from repetitive use and traumatic impact from riding in fire trucks.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Alleged low back.
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: Not applicable
16. Value necessary medical aid paid to date by employer/insurer? Not applicable

1. Value necessary medical aid not furnished by employer/insurer? Not applicable
2. Claimant's average weekly wages: $\ 1,045.66
3. Weekly compensation rate: TTD \$696.97/PPD $\ 365.08
4. Method wages computation: stipulation

1. Amount of compensation payable: (settled)
2. Second Injury Fund liability: No

TOTAL: 0

1. Future requirements awarded: None

Said payments to begin as of the date of this award 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:

Keith Link

Claimant: Doug Nord

Injury No. 06-129192

Claimant: Doug Nord

Injury No: 06-129192

Dependents: None

Employer: City of St. Charles (settled)

Additional Party Second Injury Fund

Insurer: Self-insured (settled)

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: GCG/In

The parties appeared before the undersigned Administrative Law Judge on September 20, 2011 for a final hearing to determine the liability of the Second Injury Fund in the matters of Doug Nord (Claimant). Attorney Keith Link represented Claimant. Assistant Attorney General Caroline Bean represented the Second Injury Fund. Employer, City of St. Charles, previously settled with Claimant and did not participate in the hearing. The hearing for this injury was held in conjunction with Claimant's other cases. The three Injury Numbers are as follows: 02052025, 03-113105, and 06-129192. Mr. Link requested a fee in the amount of 25 %. The parties filed proposed awards subsequent to the hearings.

The parties stipulated to the following:

1. Claimant alleges an occupational disease arising out of and in the course of employment that resulted in injury to Claimant with an injury date of March 31, 2006. The alleged injury occurred in St. Charles County, Missouri.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Venue is proper in St. Charles County.
4. Employer received proper notice of the claim.
5. Claimant filed the claim within the time allowed by law.
6. The applicable rates of compensation are $\ 696.97 for total disability benefits, and $\ 365.08 for permanent partial disability (PPD) benefits.

The issues to be determined are:

1. Medical causation of occupational disease; and
2. Liability of the Second Injury Fund.

Only evidence necessary to support this Award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

The following Exhibits were offered into evidence:

A Deposition of Samuel Bernstein, Ph.D. and Deposition Exhibits A and B

B Deposition of Dr. David Volarich and Deposition Exhibits 1 and 2

C Claimant's Statement of Disability to the Employer dated July 6, 2007

D Claimant's Application for Retirement from St. Charles City Fire Dept. dated March 2, 2006

E Disability approval letter dated September 10, 2007

F Certified Settlement Stipulations for Injury No's. 02-052025, 03-113105, 04-114812, and 06-129192

G Certified files of Div. of Workers' Compensation for Injury No's. 89-121379, 97-462500, 01-063127, 02-052025, 03-090329, 03-113105, 03-142824, and 04-114812

H St. Joseph's Health Center E.R. records for 11-30-1997 \& 11-07-2003

I Treatment records of Orthopedic for the period 2-5-1998 to 10-06-2005

J Missouri Baptist radiology reports dated 2-10-1998 and 12-16-2004

K Treatment records of Dr. Michael Boland for the period 11-25-2002 to 5-25-2011

L Treatment records of Heritage Physical Therapy for the period 3-30-2004 to 6-23-2004

M Medical report of Dr. John Graham dated August 1, 2011

The Second Injury Fund's objections to Claimant's Exhibits C, D and E on the ground(s) of relevance and/or hearsay are sustained. Exhibits F and G were received into evidence over SIF objection. Exhibits A, B, H - M were received into evidence without objection.

I Deposition, CV \& 10-13-08 report of Marvin R. Mishkin, M.D.

II Deposition, CV and 6-2-10 report of vocational expert James England, Jr.

III Depositions of the Claimant dated 9-19-2007 and 11-26-2007

Second Injury Fund Exhibits I and II were received into evidence without objection, Exhibit III was received over Claimant's objection.

The Claimant is 60 years of age and last worked on March 31, 2006. Prior to March 31, 2006, he worked as a firefighter, paramedic, arson investigator and fire captain for the City of St. Charles Fire Department. The Claimant worked for this Employer for twenty seven (27) years, with the last twenty four (24) years in the position of Fire Captain. On March 31, 2006, the Claimant left the St. Charles City Fire Department and applied for duty related disability benefits, which were approved.

Claimant sustained a work related injury to his low back May 31, 2002 and another work injury affecting his right arm in November 2003. The history and treatment regarding these injuries are chronicled in the Awards in Injury Number 02-052025 and Injury Number 03113105. Following his 5/31/02 injury and his December 2002 back fusion Claimant was off for three months and then on light duty for three months. Claimant was released back to work full duty in June 2003 with the only restriction of no repetitive bending, twisting while lifting. Following his 11/07/03 wrist injury, Claimant was first put on light duty and released back to work full duty in July 2004. On 11/1/04 Claimant was put on light duty by Dr. Wagner following a flare-up of back pain.

Following his second fusion surgery on 3/18/05, he was off for 6 months and returned to light duty in early July 2005 conducting fire code inspections throughout St. Charles City until his retirement in March 2006. He has not filed for SS disability.

Claimant: Doug Nord Injury No. 06-129192

On 5/31/02, claimant was testing fire hydrants when he felt sharp shooting pains in his back. Before this injury, claimant was working full time without restrictions. Claimant went to see Dr. John Wagner who ordered x-rays and an MRI. Claimant was then referred to Dr. Michael F. Boland. Dr. Boland's impression was chronic intermittent back pain, activity related, with a normal neurologic examination, related to isthmic spondylolisthesis L5-S1. Dr. Boland concurred with Dr. Wagner to go ahead and perform a lumbar fusion L5-S1. On 12/10/02, claimant underwent a L5 Gill procedure with bone fusion and instrumentation. Following the December 2002 surgery, Claimant was off work for 12 weeks, on light duty for 12 weeks, after which Dr. Boland returned him to full duty on 6/10/03. X-rays showed Claimant's fusion mass to be solid.

In March 2004, Claimant told Dr. Wagner he was having more back pain especially when doing his workout. Dr. Wagner recommended an MRI and physical therapy. On 4/6/04 Dr. Wagner reviewed the MRI and noted that due to the bulging and degenerative disc disease there would be some decompression due to the fusion. Two weeks later Claimant was able to return to work without restrictions.

On 9/27/04 Claimant filed a report of injury, he had no specific injury, but had pains going from sitting to standing, and it took several steps and some hip rotational movements to loosen up before his leg would support him. Dr. Wagner saw him on 11/01/04 regarding increasing symptoms in his low back. Physical exam revealed slight loss of motion in the lower lumbar spine. An MRI on 12/22/04 showed some possible edema of the pedicle at L4 which prompted at CT of the lumbar spine. On 12/16/04 the CT showed that a solid fusion at L5-S1 was not present on either side. On 12/21/04 Dr. Wagner noted that the bone and CT scan showed what appeared to be pseudoarthrosis of the fusion mass and some evidence of looseness of the screws.

The doctor noted that on November 2003 Claimant had been involved in another accident at work where he was carrying a fire hose and was pulled into a moving truck. He had fractured his right wrist and torn his right rotator cuff. He also had onset of back pain after that injury, which had steadily gotten worse. The doctor's impression was failed fusion at L5-S1 with additional structural change involving the L4-5 facet on the right side that contributed to the foraminal stenosis affecting the course of the L4 nerve root.

On 3/21/05, Claimant underwent an L3-S1spinal fusion for treatment of pseudoarthrosis at L5-S1 and degenerative facet disease at L4-5. Post-op Claimant had relief of right hip and anterior thigh pain and his back was improving. He was walking 2-3 miles per day by 5/4/05 and wore a corset and bone stimulator. He continued with physical therapy and restrictions were relaxed to allow lifting u