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 April 23, 2008. Claimant told Dr. Volarich he experienced flare-ups of back pain since 2002. He told Dr. Volarich he underwent chiropractic treatment and saw Dr. Curylo when he had flare-ups. He told Dr. Volarich that prior to July 12, 2007, if he had a hard day of work his back hurt, and he would go home and ice it or use a home traction device. He reported he had flare-ups about once every three months. Upon examination he had minimal loss of motion in his lumbar spine, no diffuse spasm, and straight leg raising was 90 degrees bilaterally without radicular symptoms.

As a result of the injury of July 12, 2007, Dr. Volarich diagnosed aggravation of lumbar syndrome with progression of disc protrusion L5-S1 without persistent radiculopathy. He opined Claimant's work accident that occurred on July 12, 2007, was the prevailing or primary factor causing the aggravation of his lumbar syndrome and progression of his disc protrusion that required conservative treatment. He rated Claimant's disability at 20\% PPD of the body as a whole at the lumbosacral spine due to the aggravation of his lumbar syndrome and progression of disc protrusion at L5-S1 without persistent radicular symptoms. Dr. Volarich opined Claimant will require ongoing care for his pain syndrome in the form of prescription and over the counter medications, and physical therapy.

Dr. Volarich issued a supplemental report dated October 20, 2008 after he reviewed Claimant's MRI scans of May 19, 2006 and July 16, 2007. After reviewing and comparing the MRI scans Dr. Volarich concluded there was some progression of the disc protrusion between May 19, 2006 and July 16, 2007 causing neuroforaminal narrowing on the left. He stated the protrusion also appeared to touch the S1 nerve root without causing significant impingement upon it.

Dr. Volarich examined Claimant again on March 10, 2010, and issued a supplemental report. Claimant reported in November 2009 getting out of his truck and having a recurrence of low back pain into his left buttock to his anterior hip. On November 11, 2009, he saw Dr. Margarita who noted he had relief from his pain until the incident stepping out of his truck a week earlier. There was numbness and tingling in his left leg going to the anterior hip. He had tenderness at L5 and loss of extension. Dr. Margarita diagnosed acute lumbar radiculopathy and treated him with medication. Claimant had no further therapy and denied any new injury to his low back. Claimant told Dr. Volarich his baseline symptoms were the same as in Dr. Volarich's report of April 23, 2008. However, Claimant reported when he gets a flare-up he knows he will be out of commission for about three days, basically having to stay in bed, take medications and be barely functional. He continues to do a home exercise program of stretching and calisthenics to maintain his functionality, but during a flare-up it will take him a month of these types of exercises to return back to baseline. He told Dr. Volarich he cannot work if he is on medications so he rests and gets off medications as quickly as possible. He reported continuing pain beginning in the low back on the left and radiating around the pelvis to the anterior leg/groin area with numbness into the anterior thigh down to the knee. It is made worse with lifting at around 50 pounds. As long as he is at baseline, he can sit, stand and walk without difficulty, but when

he gets a flare-up, which occurs about once every three months, he is out of commission. Claimant reported he was able to return to work full duty while at baseline and had no difficulty with working full duty as long as he was very careful to avoid those activities that cause flares. Claimant reported he had none of those problems before July 12, 2007.

Dr. Volarich testified Claimant's work accident of July 12, 2007 was the prevailing factor in causing the progression of the disc protrusion which is shown by the change between the two MRIs, in 2006 and 2007. Dr. Volarich testified Claimant missed approximately three months of work when he was undergoing care for his work injury, and that was a reasonable period of time for him to be off work while receiving conservative treatment. He further testified the care Claimant received appeared to be reasonable and necessary, and the bills appeared to be reasonable and customary charges for treatment within the metropolitan area.

Dr. Volarich reevaluated Claimant on April 4, 2011, prepared a second addendum to his report of April 23, 2008, and again testified on behalf of Claimant. Dr. Volarich took a history of Claimant having a flareup of low back and left lower extremity pain in August 2010 prompting a visit to Dr. Margherita on September 1, 2010. Dr. Margherita diagnosed an acute exacerbation of low back pain with radiculopathy and sent Claimant for an updated MRI while treating him with medication. The MRI which was performed on September 8, 2010 showed no interval changes but noted a herniation to the left at L2-3 with a protrusion to the left at L3-4 along with bulges at L1-2, L4-5, and L5-S1, mild left foraminal stenosis at L2-3 and L3-4 and bilaterally at L4-5 and L5-S1. Dr. Volarich felt the report stated no interval changes, was different from previous MRI reports that noted no herniations at L2-3, but noted protrusions at L4-5 and L5-S1. On September 15, 2010 Dr. Margherita noted Claimant had received moderate benefit from the medication, but still had radicular symptoms into the left pelvis and hip. Examination noted a loss of sensation in the L3 dermatome and Dr. Marherita sent him for an EMG study which showed the presence of an L3 radiculopathy. On September 20, 2010, Dr. Margherita recommended a left sided L3 nerve root block and on December 16, 2010, wrote a letter stating Claimant needed injections and physical therapy. Claimant never received the injections or the therapy.

Dr. Volarich examined Claimant and found he had decreased range of motion in the lumbar spine with no significant spasm, and straight leg raise was accomplished to 90 degrees bilaterally without radicular symptoms. Dr. Volarich diagnosed aggravation of lumbar syndrome with progression of disc protrusion at L5-S1 without persistent radiculopathy as a result of the accident of July 12, 2007, and his opinion regarding PPD remained the same.

Dr. Robert Bernardi, a neurosurgeon, examined Claimant on March 11, 2009, prepared a report, and testified on behalf of Employer. Upon examination Claimant's left hip was a little bit irritable, otherwise his general physical examination and neurological examination were normal. Claimant's straight leg raising test was negative. Dr. Bernardi reviewed the MRIs from May 2006 and July 16, 2007, and testified there may have been a subtle worsening of the disc bulge at L5-S1 from May 2006 to July 2007. Dr. Bernardi compared the films side to side and saw no new acute abnormality on the study from 2007 compared to the study from 2006.

Dr. Bernardi diagnosed multilevel degenerative disc disease in his back, a small left L5S1 disc bulge or disc protrusion, and back and leg pain of uncertain etiology. Dr. Bernardi testified the work injury of July 12, 2007 was not the prevailing factor in the cause of his

degenerative disc disease or the disc protrusion, because Claimant had those same findings on the 2006 MRI scan. He testified it is possible that the slight worsening of his disc bulge is post traumatic and related to the work accident, but he did not believe the work accident was the prevailing factor in causing the possible worsening of the disc bulge.

He testified Claimant's work accident of July 12, 2007 was the prevailing factor in causing the episode of back pain he experienced in July 2007. He testified Claimant had the onset of rather severe back pain, he reported it, it was documented, he sought treatment for it, and then he got better, which is typically what happens with people who have episodes of back pain. He testified it appeared based on the records and history, Claimant's lifting incident at work was the cause of his back symptoms. Dr. Bernardi testified Claimant sustained no PPD as a result of the work injury of July 12, 2007. Dr. Bernardi also testified as of the date he saw him he did not believe there was any need for any further medical treatment for Claimant related to the work injury, and he was at maximum medical improvement. Dr. Bernardi agreed the treatment Claimant received between July 12, 2007 and September 14, 2007 was reasonable and necessary to address the symptoms he developed following the July 12, 2007 work accident.

Based upon a comprehensive review of the evidence, my observations of Claimant at hearing, and the application of Missouri law, I find:

Claimant met his burden of proving he sustained a work related injury arising out of and the in course of employment on or about July 12, 2007, and the work injury caused his symptoms that required conservative medical treatment and rest. Both Drs. Volarich and Bernardi testified Claimant's work injury of July 12, 2007 was the prevailing factor in his need for medical treatment. Claimant had the onset of rather severe back pain, he reported it, it was documented, and Employer offered him treatment, which he declined. Claimant reached maximum medical improvement in October, 2007 when he was released to work full duty as a sheet metal worker.

Employer is responsible for Temporary Total Disability benefits of $\ 10,185.87 for the period from July 12, 2007 until October 15, 2007. Dr. Volarich testified that was a reasonable period of time for Claimant to be off work following his injury while he was receiving conservative treatment. Claimant is therefore awarded TTD benefits for the period of time during which he was receiving treatment for his injury and was unable to work.

Employer is responsible for past medical benefits of $\ 1,813.52. By his own admission, Claimant declined Employer's offer for medical treatment, and chose instead to treat on his own. Employer is liable however, for medical expenses Claimant incurred for treatment after August 27, 2007, when Claimant demanded medical treatment from Employer through his attorney. When Employer did not respond to Claimant's request for medical treatment, Claimant was free to continue to treat on his own. Employer is not liable, however, for portions of the bills adjusted by the medical providers.

Employer is not responsible for future medical treatment. I find the opinion of Dr. Bernardi more persuasive than the opinion of Dr. Volarich on the issue of future medical treatment. Dr. Volarich testified Claimant would need medication and physical therapy in the

future. Dr. Bernardi testified as of the date he saw Claimant, he was not in need of any additional medical treatment as a result of the work injury of July 12, 2007. Claimant is asking Employer to pay for treatment any time he has a flare-up of back pain. Claimant had periodic flare-ups of back pain for five years before the primary injury, and will likely continue to have flare-ups of back pain into the future, but that does not mean Employer is responsible for providing medical treatment for those flare-ups. As Dr. Bernardi summed it up: Claimant had the onset of rather severe back pain, he reported it, it was documented, he sought treatment for it, and then he got better, which is typically what happens with people who have episodes of back pain. Employer is not responsible for medical treatment for Claimant's flare-ups in 2009 and 2010 after he reached maximum medical improvement.

Claimant sustained PPD of 10 % of the body as a whole referable to the low back as a result of the work injury of July 12, 2012. After Claimant treated for approximately three months, he returned to baseline, but his condition was worse than it was before the injury. His flare-ups of back pain are now worse and leave him with more residual pain and loss of function than they did before his work injury of July 2007.

Because Claimant's PPD falls below the statutory threshold for Second Injury Fund liability, the claim against the Second Injury fund is denied.

This award is subject to an attorney's lien of 25 % in favor of Claimant's attorney, Mr. Dean Christianson.

Date: $\qquad Made by: \qquad$

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation