Michael Simpson v. Lyon Sheet Metal

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-073695

Employee: Michael Simpson

Employer: Lyon Sheet Metal

Insurer: Old Republic Insurance Company

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 June 6, 2012. The award and decision of Administrative Law Judge Margaret D. Landolt, issued June 6, 2012, 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 $\qquad 9^{\text {th }} \qquad$ day of November 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, Member

Attest:

Employee: Michael Simpson

Departments: N/A

Employer: Lyon Sheet Metal

Additional Party: Second Injury Fund

Insurer: Old Republic Insurance Company

Hearing Date: March 5, 2012

Injury No.: 07-073695

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: MDL

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: July 12, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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:

Employee was unloading large sheets of metal and stacking them on a table in a twisting motion when he felt pain in his low back.

1. Did accident or occupational disease cause death? No
2. Part(s) of body injured by accident or occupational disease: low back
3. Nature and extent of any permanent disability: 10 % PPD of the body as a whole - low back
4. Compensation paid to-date for temporary disability: 0
5. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? $\ 10,189.71
2. Employee's average weekly wages: $\ 1,280.00
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: By stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 1,813.52

13-5/7 weeks of temporary total disability

$\ 10,185.87

40 weeks of permanent partial disability from Employer

$\ 15,561.60

TOTAL: $\quad \ 27,560.99

1. Second Injury Fund liability: No
2. Future requirements awarded: None

Said payments to begin 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: Mr. Dean Christianson

Employee: Michael Simpson

Dependents: N/A

Employer: Lyon Sheet Metal

Additional Party: Second Injury Fund

Insurer: Old Republic Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on March 5, 2012 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Michael Simpson ("Claimant") was represented by Mr. Dean Christianson. Lyon Sheet Metal ("Employer") and its insurer Old Republic Insurance Company were represented by Mr. Todd Hilliker. The Second Injury Fund ("SIF") was represented by Assistant Attorney General Carol Barnard. Mr. Christianson requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about July 12, 2007, Claimant was an employee of Employer; venue is proper in the city of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant was earning an average weekly wage of $\ 1,280 resulting in rates of compensation of $\ 742.72 for Temporary Total Disability ("TTD") benefits and $\ 389.04 for Permanent Partial Disability ("PPD") benefits; and Employer has paid no benefits to date.

Claimant and the SIF stipulated in the event the alleged primary injury is found to be compensable, and the Court finds the amount of PPD sustained as a result of the alleged primary injury meets the threshold for payment of PPD benefits from the SIF, then Claimant's only preexisting PPD is 25 % of the left knee, and a loading factor of 10 % shall apply. The Claimant and SIF agree and stipulate that Claimant's prior left knee injury is a hindrance or obstacle to employment of re-employment, and there is synergy between the alleged primary and preexisting injuries.

The issues for resolution by hearing are whether Claimant sustained an accidental injury arising out of and in the course of employment on or about July 12, 2007; medical causation; liability of Employer for past medical benefits of $\ 10,189.71; liability of Employer to provide future medical treatment; whether Claimant is entitled to TTD benefits from July 12, 2007 to October 15, 2007; what is the nature and extent of PPD sustained by Claimant; and is the SIF liable for PPD benefits.

Claimant is a 47 year old sheet metal worker. Claimant has been experiencing back problems since 2002. On December 6, 2004 Claimant went to see Dr. Curylo, a spine surgeon, and gave Dr. Curylo a two year history of moderate to severe low back pain. Claimant told Dr. Curylo he was doing heavy lifting at work and had to take several days off as a result of his back pain. The pain was aggravated by sitting, standing, walking, and bending forward. Dr. Curylo's impression at that time was Claimant had a two year history of increasing and severe low back pain possibly secondary to degenerative disc disease at L4-5 and recommended an MRI. Claimant did not obtain the MRI because he recovered.

Claimant returned to Dr. Curylo on May 11, 2006, and reported working on a ladder several days before and twisting his back, suffering severe non-radiating low back pain. Dr. Curylo again recommended an MRI which revealed an annular tear at L5-S1 paracentral to the left, with a small disc protrusion paracentral to the left with no significant herniation components or neurocompression. The impression/diagnosis was mild degenerative disc disease at L5-S1 with an annular tear/HIZ (high intensity zone). He was instructed by Dr. Curylo to avoid heavy lifting, and was told to follow up as needed.

On July 12, 2007, Claimant was working for Employer in its fabrication shop. He was assigned to unload large sheets of metal weighing between 60 and 80 pounds. Claimant was sliding the sheets off a table, loading, and stacking them on to an adjoining table with a twisting motion, when he felt a pop in his lower back followed by immediate pain that shot up his back to his shoulder and to his pelvic region. Claimant reported the injury to Employer, and filled out an accident report. Claimant was offered the option of seeing Employer's doctor, but declined. He wanted to go on his own to a chiropractor for a re-alignment.

On July 13, 2007, Claimant saw Dr. Crane, a spine surgeon, and gave a history of lumbar spine pain for one and one-half years, with increased pain from lifting and twisting at work the day before. He reported radiating pain into his left hip to his leg. Dr. Crane noted the MRI of 2005 showed an HNP at L5-S1 and that Claimant had relief from chiropractic manipulation. Dr. Crane requested a repeat MRI, and prescribed medication and physical therapy. He diagnosed a back sprain.

An MRI was performed on July 16, 2007, which showed a left paracentral disc protrusion and annular tear causing mild to moderate left lateral recess stenosis at L5-S1 with potential impingement of the transiting nerve root, and mild diffuse disc bulge at L1-2 without significant central canal or neural foraminal stenosis.

When Claimant began physical therapy on July 18, 2007, he denied radiculopathy. He reported having chiropractic care for his current complaints with good results.

Claimant also saw Dr. Chapel, a chiropractor on July 13, 2007, and gave a history of lower back pain and discomfort since July 2006, which comes and goes, and indicated the condition was getting slightly worse. He denied the injury was work related. Claimant received

numerous chiropractic treatments under his private insurance between July 13, 2007 and October 10, 2007.

On September 14, 2007, at a physical therapy session, Claimant reported a 90 to 92 percent improvement and stated he was able to run for two and one-half miles, and bike for approximately eight miles without pain.

On August 27, 2007, Claimant's attorney sent a letter to Employer's safety manager, informing Employer Claimant was currently receiving medical treatment through a physician of his own choosing. Claimant's attorney asked Employer to inform Claimant if Employer preferred Claimant to see a doctor of Employer's choosing. Employer did not respond.

Leading up to August 27, 2007, Claimant incurred the following medical expenses:

July 13 through August 27, 2007: Crane Sports Medicine \$264.00

July 13, 2007 through August 1, 2007 Chapel Chiropractic \$679

July 16, 2007 St. Luke's Center for Diagnostic Imaging \$3,275

July 18, 2007 through August 8, 2007 St. Louis Physical Therapy \$940.09

July 16, 2007 Diagnostic Imaging \$231

Claimant incurred the following medical expenses between August 27, 2007 and October 10, 007:

Crane Sports Medicine - $\ 204 minus a 46.68 insurance adjustment leaving a balance of $\ 157.32

Chapel Chiropractic \$1,047.50

St. Louis Physical Therapy - \$1,335 minus a \726.30 insurance adjustment leaving a balance of \ 608.70

Claimant missed work from July 12, 2007 until October 15, 2007, at which time Dr. Crane released him to full duty work as a sheet metal worker.

Claimant saw Dr. Margherita, a pain management specialist on November 11, 2009 because of a flare up of his back injury. He told Dr. Margherita he had a back injury in 2007, did treatment, and had pain relief until a week ago. Dr. Margherita diagnosed acute lumbar radiculopathy and prescribed medication. Another MRI was performed on September 8, 2010, which revealed no significant interval change when compared to the prior study.

Currently Claimant has lower back pain including pain in his left pelvic region, and numbness in his left leg. Sometimes he has flare-ups of his pain, and he returns to Dr. Margherita who provides him with pain medication. He stretches, and is careful with lifting. Driving, heavy lifting, and not working cautiously make his symptoms worse. Before July 12,

2007, Claimant had mild back discomfort, but since July 12, 2007, he deals with pain on a daily basis.

Claimant's attorney referred him to Dr. Volarich who saw Claimant on three separate occasions, issued four reports, and testified twice on behalf of Claimant. Dr. Volarich first examined Claimant on Apri