Robert Mahurin v. Washington University

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-130469

Employee: Robert Mahurin

Employer: Washington University (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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 24, 2012. The award and decision of Administrative Law Judge Kathleen M. Hart, issued April 24, 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 $\qquad 1^{\text {st }}$ day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Robert Mahurin

Departments: $\mathrm{n} / \mathrm{a}$

Employer: Washington University (previously settled)

Additional Party: Second Injury Fund (SIF)

Insurer: self c/o CCMSI (previously settled)

Hearing Date: February 1, 2012

Injury No.: 05-130469

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

Checked by: KMH

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: December 15, 2005
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Claimant injured his low back in the course and scope of his employment.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: low back and body as a whole
14. Nature and extent of any permanent disability: 17 % PPD to the low back, previously paid by Employer, and permanent and total disability benefits from the SIF beginning September 1, 2007.
15. Compensation paid to-date for temporary disability: $\ 3,157.71
16. Value necessary medical aid paid to date by employer/insurer? $\ 12,636.59

Employee: Robert Mahurin

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 525.64 / \ 365.08
4. Method wages computation: Stipulation

1. Amount of compensation payable:

68 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Indeterminate

Permanent total disability benefits from Second Injury Fund:

$\ 160.56 weekly differential payable by SIF for 68 weeks beginning

September 1, 2007, and, $\ 525.64 per week thereafter, for Claimant's lifetime, or as long as provided by law.

TOTAL:

INDETERMINATE

1. Future requirements awarded: N/A

Said payments to begin immediately 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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Ann Dalton

Employee: Robert Mahurin

Dependents: $\mathrm{n} / \mathrm{a}$

Employer: Washington University (previously settled)

Additional Party: Second Injury Fund

Insurer: Self c/o CCMSI (previously settled)

Injury No.: 05-130469

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter February 1, 2012. Robert Mahurin (Claimant) was represented by attorney Ann Dalton. The SIF was represented by Assistant Attorney General Mike Finneran. Employer and Claimant settled the primary claim prior to hearing.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

Claimant alleges he is permanently and totally disabled as a result of his primary injury combined with his prior injuries and disabilities.

The parties stipulated to the following:

1. Claimant sustained an injury by accident December 15, 2005, while in the course and scope of his employment for Employer.
2. Employer's liability was self-insured.
3. Employer had notice of the injury and a claim for compensation was timely filed.
4. Claimant's rates for PTD and TTD are $\ 525.64. His PPD rate is $\ 365.08.
5. Claimant received $\ 3,157.71 in TTD benefits and $\ 12,636.59 in medical benefits.
6. Claimant and Employer settled the primary claim for 17 % PPD to the low back.
7. If Claimant is permanently and totally disabled, his total disability began September 1, 2007.

The parties stipulated sole issue for trial is the liability of the SIF.

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 70 year-old, married male. He graduated from high school in 1961. He served in the Navy from 1962-1966 when he was honorably discharged. He had some vocational training in HVAC, and worked at Wagner Electric until he was laid off in 1982. He started at Wagner in the Metal Plating Room, where he worked in a physically demanding job distributing chemicals. After a few years, he moved to Inspection. His duties involved substantial walking, reading blue prints, and troubleshooting to inspect small motors. He next worked in Quality Control where he pulled samples and inspected small motors.
2. Claimant worked for Employer from 1983 until August 31, 2007. He first worked as a Tool Crib Attendant, where he ordered parts, maintained inventory, and repaired small motors. The job required him to stand, sit, work with his hands, and lift up to 25 pounds. After about one year, he was transferred into HVAC maintenance. He maintained the heating and cooling systems and compressors throughout the Washington University campus. His job duties involved being on his feet much of the day and lifting up to 25 pounds alone or 100 pounds with help. He had to bend, kneel, squat, climb, reach, push, pull, stoop and work on ladders. He used a computer to pull up building maps and diagnose problems.
3. Claimant has a history of back problems dating back to the 1970's. He was injured when he slipped on a wet floor while working for Wagner. He complained of severe back pain radiating into his thigh, and treated with Dr. Hollocher for a few years. He had electrodiagnostic studies and extensive physical therapy. He was initially diagnosed with a lumbosacral strain and suspected herniated disc at L3-4. Studies also showed a Schmorl's node at L4-5 and minor spina bifida at S1. A lumbar myelogram in 1973 showed a disc herniation at L4-5 with a possible protrusion at L5-S1.
4. Claimant returned to work and was given a lighter job that was easier on his back. Following the injury and leading up to his 2005 injury, Claimant continued to have occasional flare-ups of back pain and often asked co-workers for help. He had to sit down frequently at work due to back pain. He took over the counter medications and missed several days of work each year due to back pain, restricted motion, inability to straighten up, and pain across his hips. In 2001 he had physical therapy for low back pain.

1. In the early 1980's, Claimant was diagnosed with diabetes, complicated by his weight. The records from Dr. Meghjee in the mid 1990's show Claimant complained of peripheral neuropathy. He was treated with numerous medications, but continued to have difficulty controlling his blood sugar levels. He began insulin injections for a few years, and continues to take oral medications. Claimant complained of constant tingling in his toes and the front of his feet prior to his 2005 injury. Claimant was given an annual note to excuse him from wearing leather boots at work, in favor of soft comfortable shoes, due to peripheral neuropathy and nail infections in his left great toe. Claimant testified he did not miss any significant time from work due to his diabetes, but was often fatigued.
2. On December 15, 2005, Claimant re-injured his low back at work. He missed a step while descending a ladder, and fell to the floor. He had immediate pain in his low back that radiated into his right buttock and leg.
3. Claimant was initially treated at BarnesCare and was diagnosed with lumbar strain, paravertebral spasm, and possible sciatica. He underwent conservative treatment with physical therapy, medications and work restrictions. His complaints worsened, and he had an MRI in January 2006. This revealed a right paracentral disc herniation at L4-5 with caudal displacement of the disc and stenosis as well as a right foraminal disc herniation at L5-S1 with diffuse disc bulging.
4. Claimant was sent to Dr. Yadava who diagnosed a lumbosacral strain, sacroiliitis, right piriformis syndrome and myofascial pain with trigger points. He continued therapy and medications and recommended injections. He took Claimant off work when his complaints increased and the injections did not provide significant relief. Dr. Yadava released Claimant to return to work with restrictions March 14, 2006.
5. Employer sent Claimant to Dr. Wayne in May 2006. He ordered EMG and nerve conduction studies which revealed right sub-acute L5 radiculopathy with evidence of proximal reinnervation, and mild sensory-motor polyneuropathy consistent with his diabetes. Dr. Wayne diagnosed low back pain with right L5 radiculopathy, chronic degenerative changes at L4-5 and L5-S1, disc herniation at L4-5, and moderate lateral recess stenosis. Dr. Wayne recommended injections and work restrictions. The injections did not provide relief, and Dr. Wayne recommended a surgical consultation.
6. Claimant saw Dr. Coyle in September 2006. He diagnosed a L4-5 disc herniation, L4-5 and L5-S1 spinal stenosis, and peripheral neuropathy. He opined Claimant might benefit from lumbar decompression at L4-5, but his prognosis was guarded due to his diabetes and chronic back problems. He noted the NCS showed peripheral neuropathy consistent with his diabetes. He noted Claimant's low back complaints and need for treatment was related equally to his 2005 work injury and his preexisting back condition. When Claimant elected to retire and not pursue further treatment, Dr. Coyle rated Claimant's disability at 5 % of the back related to his 2005 injury, and 5 % of the back related to his preexisting condition.
7. Claimant testified he elected not to have surgery because Dr. Coyle could not guarantee a resolution to his symptoms. He continued to work light duty with the option to sit and

stand as needed until he reached retirement age. He worked a morning shift in order to avoid rush hour traffic, which aggravated his complaints. He had problems walking at work bec