Ralph Shelton v. Missouri Department of Corrections

(Affirming Amended Award and Decision of Administrative Law Judge)

Injury No.: 07-086266

Employee: Ralph Shelton

Dependent: Connie Shelton

Employer: Missouri Department of Corrections

Insurer: Self-Insured

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 amended 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 amended award and decision of the administrative law judge dated April 19, 2013. The amended award and decision of Administrative Law Judge Carl Strange, issued April 19, 2013, 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 $20^{\text {th }}$ 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: Ralph Shelton

Injury No. 07-086266

Dependents: Connie Shelton

Employer: Missouri Department of Corrections

Additional Party: Second Injury Fund

Insurer: Self-Insured

Hearing Date: December 21, 2012

Checked by: CS/rm

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? September 13, 2007.
5. State location where accident occurred or occupational disease contracted: Washington County, 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 happened or occupational disease contracted: Employee fell from a guard tower 25 feet and reinjured his back and neck.
12. Did accident or occupational disease cause death? N/A

1. Parts of body injured by accident or occupational disease: Low back and neck.
2. Nature and extent of any permanent disability: 20% of the body as a whole referable to his low back and 35% of the body as a whole referable to his neck (See Findings).
3. Compensation paid to date for temporary total disability: 8,573.44.
4. Value necessary medical aid paid to date by employer-insurer: 102,459.03.
5. Value necessary medical aid not furnished by employer-insurer: N/A
6. Employee's average weekly wage: Not calculated.
7. Weekly compensation rate: $361.53 for temporary total disability, permanent total disability; and permanent partial disability.
8. Method wages computation: By Agreement.
9. Amount of compensation payable: a. Employee awarded permanent partial disability from Employer in the amount of $80,982.72 (See Findings). b. Employee awarded permanent total disability benefits from Second Injury Fund at a rate of $361.53 per week beginning June 13, 2012 (See Findings).
10. Second Injury Fund liability: Yes (See Findings).
11. Future requirements awarded: Yes (See Findings).

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The compensation awarded to the employee shall be subject to a lien in the amount of costs plus 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Kenneth Seufert

On December 21, 2012, the employee, Ralph Shelton, appeared in person and by her attorney, Kenneth Seufert, for a hearing for a final award. The employer-insurer was represented at the hearing by Assistant Attorney General Gregg Johnson. The Second Injury Fund was represented by Assistant Attorney General Kevin Nelson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about September 13, 2007, Missouri Department of Corrections was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a self-insured employer.
2. On or about September 13, 2007, the employee was an employee of Missouri Department of Corrections and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about September 13, 2007, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 361.53.
7. The employee's injury is medically causally related to the work injury occurring on or about September 13, 2007.
8. The employer has furnished $\ 102,459.03 in medical aid to the employee.
9. The employer has paid temporary total disability benefits for $235 / 7 weeks at a rate of \ 361.53 per week for a total of $\ 8,573.44.
10. Employee reached maximum medical improvement on February 26, 2008.
11. Employer shall furnish additional medical to cure and relieve the effects of the September 13, 2007 work-related injury in accordance with 287.140 RSMo.

1. Nature and Extent of Disability.
2. Liability of the Fund.
3. Dependency under Schomehl

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A-1 Report of Dr. David T. Volarich, D.O. dated April 19, 2010;

A-2 Supplemental report of Dr. David T. Volarich, D.O. dated June 24, 2010;

A-3 Curriculum Vitae of Dr. David T. Volarich, D.O.;

A-4 Records Provided to David T. Volarich D.O. for IME;

A-5 Deposition of David T. Volarich D.O. taken 10-22-10;

B-1 Report of James England, V.R.C. dated 11-17-10;

B-2 Supplemental Report of James England, V.R.C. dated 12-6-10;

B-3 James England, V.R.C. Curriculum Vitae;

B-4 Engagement letter of Ken Seufert to James England dated 8-27-10;

B-5 Letter of Ken Seufert to James England dated 11-29-10;

B-6 Records Provided to James England for Vocational Evaluation;

B-7 Deposition of James England taken 04-25-11;

C-1 Claim for Compensation, DOI: 08-23-00;

C-2 Report of Injury, DOI: 08-23-00;

D-1 Amended Claim for Compensation, DOI: 08-23-01;

D-2 Report of Injury, DOI: 08-23-01;

E-1 Claim for compensation, DOI: 12-24-02;

E-2 Department Accident/Incident Cause Evaluation (ACE), DOI: 12-24-02;

F-1 Claim for Compensation, DOI: 06-18-03;

F-2 Department Accident/Incident Cause Evaluation (ACE), DOI: 06-18-03;

G-1 Claim for Compensation, DOI: 09-13-07;

G-2 Report of Injury, DOI: 09-13-07;

H Medical History of Ralph Shelton along with medical records from the care providers for treatment for Injury No. 00-095465 (DOI: 08-23-2000), Injury No. 01-106528 (DOI: 08-23-2001), Injury No. 02-138453 (12-24-2002) and Injury No. 03-057911(DOI: 6-182003):

1. Mineral Area Regional Medical Center;
2. Quality Healthcare;
3. Paul Young, M.D.;
4. Washington County Memorial Hospital;
5. Dr. Dennis E. Sumski, D.O.;
6. Robart Chiropractic Care Center;
7. Dr. Matthew T. Gornet, M.D.; and
8. Barnes-Jewish West County Hospital.

I Medical History of Ralph Shelton concerning injuries he sustained on 09-13-07 (Inj\# 07086266) along with medical records from the following care providers attached:

1. Arch Air;
2. St. John's Mercy Medical Center;
3. Dr. Lukasz J. Curylo, M.D.;
4. Dr. Bryan R. Troop, M.D.;
5. Missouri Baptist Medical Center;
6. Dr. James J. Coyle, M.D.;
7. ProRehab;
8. Dr. Matthew F. Gornet, M.D.; and
9. Dr. Anthony Guarino, M.D.

J-1 Printout from Wal-Mart Pharmacy for the period of 01-01-06 to 07-27-09;

J-2 Printout from Wal-Mart Pharmacy for the period of 01-01-08 to 11-20-09;

J-3 Printout from USA Clinic at Mineral Area for the period of 06-01-10 through 06-18-11;

J-4 Printout from USA Clinic at Mineral Area for the period of 05-01-11 through 07-05-12;

J-5 Printout from USA Clinic at Mineral Area for the period of 07-01-12 through 12-17-12;

L-1 Medical Records from Jefferson Regional Medical Center;

L-2 Medical Records from Jefferson Regional Medical Center-Stress Unit;

M Medical Records from Southeast Missouri Behavioral Health;

N Social Security Administration Retirement, Survivors and Disability Insurance, Notice of Award dated 08-03-08;

P-1 Medical Records of Dr. Jordan Balter, D.O. covering the period of 11-20-10 to 10-18-11;

P-2 Medical Records of Dr. Jordan Balter, D.O. covering the period of 12-27-11 to 07-04-12;

Q Medical Records of Dr. Anthony H. Guarino, M.D. covering the period of 02-23-09 through 08-28-12;

R Stipulation for Compromise Settlement Injury No. 01-106528;

S Stipulation for Compromise Settlement Injury No. 02-138453; and

T. Stipulation for Compromise Settlement Injury No. 03-057911.

1. Deposition of Dr. Wayne Stillings; and
2. Deposition of Susan Shea.

Based on the testimony of Ralph Shelton ("Employee") and the medical records and reports admitted, I find as follows:

At the time of the hearing, Employee was 58 years old. After obtaining his GED, Employee enlisted in the US Army for two years. His past employment history includes loading carpet, pumping gas, light mechanic work, and drywall work. Employee began working for Missouri Department of Corrections ("Employer") in 1998. On September 13, 2007, Employee was married and living with his wife, Connie Shelton. At that time, they were dependent upon each other's income for support.

On September 13, 2007, Employee was in the Guard Tower and stepped into the open trap door hole and fell 25 feet to the ground landing on his neck and back. Although Employee had prior back and neck problems, Employee suffered additional injury to his back and neck. Employee was taken by Arch Ambulance to St. John's Mercy Medical Center. While the MRI of the lumbar spine revealed the disc prosthesis L5-S1 with mild foraminal narrowing, a CT of the cervical spine revealed acute injuries from C3-4 through C6-7. Dr. Curylo diagnosed Employee with low back pain superimposed on previous disc replacement and spinal cord injury due to herniation C3-4 and superimposed over old injury. On November 20, 2007, Dr. Lukasz Curylo performed an anterior cervical decompression and discectomy at C3-4 with decompression of spinal cord anterior cervical interbody fusion, C3-4 with structural allograft and spacer and local bone graft with instrumentation. Dr. Curylo discharged Employee from his care for the neck on February 26, 2008 (Employee's Exhibit I).

After his release from care, Employee was evaluated by Dr. James Coyle and Dr. Matthew Gornett. On February 23, 2009, Employee was examined by Dr. Anthony Guarino for pain management and was diagnosed with sciatica and lumbar spondylosis and facet disease. Dr. Guarino later added cervical spondylosis, status post discectomy and fusion, and facet disease to the diagnosis. On October 12, 2009, Employee underwent L3-L4, L4-5, and L5-S1 radiofrequency neuroablation of the lumbar facets. Since that time, Employee has continued to receive pain management from Dr. Guarino (Employee's Exhibit I).

On April 19, 2010, Dr. David