Norman Ott v. Government Employees Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-124458

Employee: Norman Ott

Employer: Government Employees Hospital

Insurer: Liberty Mutual 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 December 26, 2012. The award and decision of Administrative Law Judge Mark Siedlik, issued December 26, 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 $1^{\text {st }}$ day of November 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Norman Ott

Injury No. 08-124458

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Government Employees Hospital

Insurer: Liberty Mutual Insurance Company

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: September 6, 2012

Checked by: MSS/pd

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: April 30, 2008
5. State location where accident occurred or occupational disease was contracted: Jackson County, Missouri
6. Was above Employee an employee 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: On April 30, 2008, Claimant was lifting a box overhead and reinjured his right shoulder.
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: Right shoulder

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Norman Ott

1. Nature and extent of any permanent disability: 15 percent permanent partial disability to the right shoulder for the April 30, 2008 injury
2. Compensation paid to date for temporary disability: $\ 9,412.47
3. Value necessary medical aid paid to date by employer/insurer? $\ 50,604.74
4. Value necessary medical aid not furnished by employer/insurer? N/A
5. Employee's average weekly wages: $\ 259.68
6. Weekly compensation rate: $\ 173.13
7. Method wages computation: By stipulation

1. Amount of compensation payable: From the Employer/Insurer - 15 percent permanent partial disability to the right shoulder, a sum of $\ 6,024.92
2. Second Injury Liability: 15 % permanent partial disability to the right shoulder at the 232 -week level; 22.5 % permanent partial disability of the body as a whole due to his preexisting lumbar spine condition; 20 % permanent partial disability of the right leg at the 160 -week level due to the preexisting right knee condition; 20 % permanent partial disability of the left leg at the 160 -week level due to the preexisting left knee condition; and 20 % permanent partial disability to the left arm at the 175 -week level due to the left wrist condition, a sum of $\ 4,477.14. .
3. Future requirements awarded: None

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of David Whipple, Employee's attorney, for necessary legal services rendered.

On September 6, 2012, the Employee, Employer and the Second Injury Fund appeared for a final hearing. The Employee, Norman Ott, appeared in person and with counsel, David Whipple. The Employer/Insurer appeared by and through counsel, Heather Howard. The Second Injury Fund appeared by counsel, Eric Lowe.

The parties stipulated to the following:

1) that on or about April 30, 2008, the parties were operating under and subject to the Missouri Workers’ Compensation Law; 2) That Claimant suffered an accidental injury that occurred within the course and scope of his employment on April 30, 2008; 3) That proper notice of the injury was given by Claimant and the claim was filed within the time allowed by law; 4) That the Claimant's average weekly wage was $\ 259.68; 5) That medical care was provided in the amount of $\ 50,604.74; and 6) That temporary total disability benefits have been provided in the amount of $\ 9,412.47.

The issues to be resolved by this hearing are as follows:

1) The nature and extent of the Employee’s disability. 2) The liability of the Employer and Insurer for Claimant’s disability. 3) The liability of the Second Injury Fund for Claimant’s disability. 4) The liability of the Employer and Insurer for future medical treatment.

Claimant testified on his own behalf and presented the following exhibits which were admitted subject to the objections in the deposition transcripts.

Claimant's Exhibit A - Deposition of Dr. Truett Swaim

Claimant's Exhibit B - Deposition of Michael Dreiling

Claimant's Exhibit C - Midwest Brain \& Spine Associates (Dr. Park) medical records

Claimant's Exhibit D - Centerpoint Medical Center medical records

Claimant's Exhibit E - St. Luke's Imaging Center medical records

Claimant's Exhibit F - Kansas City Bone \& Joint Clinic medical records (Dr. Samuelson)

Claimant's Exhibit G - OHS Compcare medical records

Claimant's Exhibit H-Oak Grove Medical Clinic medical records (Dr. Steve Gialde)

Claimant's Exhibit I - Dr. Gregory Hummel's medical records

Claimant's Exhibit J - Independence Regional Health Center and Medical Center of Independence medical records

Employer and Insurer presented the following exhibit which was admitted into evidence subject to the objections in the transcript:

Employer/Insurer Exhbit No. 1 - Deposition of Dr. Samuelson

The Second Injury Fund presented the following exhibits, all of which were admitted into evidence subject to the objections in the transcripts:

Second Injury Fund Exhibit No. 1 - Deposition of Normal Ott

Second Injury Fund Exhibit No. 2 - Deposition of Mary Titterington

Norman Ott testified in person about two specific accidents. The first injury occurred on November 30, 2006. Mr. Ott was walking across a parking lot to a warehouse when he slipped on ice. He fell backward onto his right side and injured the right elbow and shoulder region. He reported that he had immediate pain and left work within 30 minutes of the fall. He reported the injury the next day when he awoke with increased shoulder and elbow pain. Mr. Ott testified to receiving medical treatment after the original injury and then being released from care and returning to work when he later suffered a second accident.

The second injury occurred on April 30, 2008 when he was pushing a box up on a shelf with his right arm and felt a sharp twinge in the right shoulder. Mr. Ott testified that following the second accident he had an increase in pain and described in general terms his medical condition. Mr. Ott also testified to having surgery on his right shoulder after both injuries. Mr. Ott was off of work until January of 2009, when he was given a permanent work restriction of no lifting more than 15 pounds overhead. He took the restriction provided by the treating physician, Dr. Samuelson, back to his employer and on January 23, 2009, was notified by letter that they had no work that would accommodate the restrictions imposed by Dr. Samuelson.

After being informed that there was no work GEHA had that could accommodate his restrictions, Mr. Ott filed for unemployment. As a condition of filing for unemployment he stated that he was able to work and was actively looking for employment. Mr. Ott testified that he continued to look for employment by completing job applications and contacting businesses in person until his injury in February 2009.

Mr. Ott testified in February 2009 that a tree fell on his property. He used a chain saw to cut the tree and had an increase in pain in his back. Mr. Ott went to the doctor on March 6, 2009, reporting to his personal doctor that he had low back pain with pain in both legs for approximately one month. Mr. Ott testified that it was a pain that he had not had before. Mr. Ott testified that as a result of that injury in February 2009, he had a fusion at L4-5. He then had a second fusion in January 2010 incorporating additional levels including L2-3 and L3-4. Mr. Ott testified that it was his belief that not enough was done during the surgery in October 2009 and, therefore, he needed the additional surgery.

Mr. Ott testified after the subsequent injury in February 2009 and the surgery in October 2009, he knew he was no longer able to work and stopped filing for unemployment and looking for employment. Mr. Ott testified after the subsequent injury in February 2009 and surgery in October 2009, he no longer went to the meetings at the American Legion or the VFW. He also testified that after the subsequent injury and surgery he had to start lying down during the day. Mr. Ott testified currently his back hurts at the time. On a scale of 1-10 with 10 being the worst pain possible, Mr. Ott testified that his pain was a 4 at rest and a 10 when it is at its worst.

Mr. Ott testified that after the back injury he only walks down the driveway once in the morning for the paper and once in the afternoon for the mail. Mr. Ott estimated that the walk down the driveway was approximately 100 or so feet. Mr. Ott also testified he now uses a cane since the back in February 2009. He reported that he did not use the cane in his home but did use it to get around when he walked to the mailbox and when going into town. Mr. Ott uses the cane for both stability and to rest on. During a normal day, Mr. Ott reported that he spends a lot of time in bed watching television. Mr. Ott reported that he purchased a Tempur-Pedic bed that is adjustable and vibrates. Additionally, since the back injury in February 2009, Mr. Ott utilizes several narcotic pain medications on a daily basis for pain relief. These medications include a Lidocaine pain patch, Oxycontin 10 mg twice daily, Oxycodone $1 / 2$ pill twice daily, and epidural injections. Mr. Ott's pain management has been ongoing since the last back surgery in 2011.

Mr. Ott testified regarding all of his pre-existing conditions. He was diagnosed with prostate cancer and had prostate surgery. After the surgery, he returned to work full-time for six weeks before informing his boss that he could no longer work 40 hours. Mr. Ott was allowed to work two days a week for a total of sixteen hours. He testified he would get too exhausted working more than two days a week.

Mr. Ott had a pre-existing back condition. He testified he h