Larry Burnam v. Curators of the University of Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-048199

Employee: Larry Burnam

Employer: Curators of the University of Missouri

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 July 26, 2013. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued July 26, 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 $\qquad 4th \qquad$ day of February 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Larry Burnam

Injury No. 08-048199

Dependents:

Employer: Curators of the University of Missouri

Address: 08-048199

Address: 08-048199

Address: 08-048199

Additional Party: Second Injury Fund (deferred)

Address: 08-048199

Insurer: Self-Insured

Hearing Date: May 23, 2013

EMPLOYERS

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: June 11, 2008
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone 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? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was changing a compressor on an MRI chiller unit, which required him to sit or lie on a concrete ledge and lean backward through a small opening to perform his work, resulting in injury to his low back.
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, body as a whole.
14. Nature and extent of any permanent disability: 17.5 % permanent partial disability of the body as a whole
15. Compensation paid to-date for temporary disability: $\ 78.20
16. Value necessary medical aid paid to date by employer/insurer? $\ 268.92

Employee: Larry Burnam Injury No. 08-048199

1. Value necessary medical aid not furnished by employer/insurer? $\ 23,437.25
2. Employee's average weekly wages: $\ 821.09
3. Weekly compensation rate: $\ 547.40 for temporary total disability; $\ 389.04 for permanent partial disability
4. Method wages computation: Stipulation

1. From Employer

70 weeks of permanent partial disability benefits $\ 27,232.80

5 weeks of temporary total disability benefits $\ 2,737.00

Reimbursement of medical expenses $\ 23,437.25

1. Second Injury Fund liability:

The claim against the Second Injury Fund is deferred for adjudication to a later date.

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Thad Mulholland

Employee: Larry Burnam

Injury No. 08-048199

Dependents:

Employee: | Larry Burnam | Injury No. 08-048199 |

The evidentiary hearing in this case was held on May 23, 2013 in Columbia. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on June 14, 2013. The hearing was held to determine the following issues:

1. Whether the work-related accident of June 11, 2008 was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. The liability, if any, of Employer for permanent partial disability benefits;
3. Whether Employer shall be ordered to reimburse Employee for medical treatment previously rendered; and
4. Whether Employer shall be ordered to pay temporary total disability ("TTD") benefits, and, if so, for what period(s) of time.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Employee sustained an accident arising out of and in the course of his employment with the University of Missouri on June 11, 2008;

1. That Employee's average weekly wage is $\ 821.09, with compensation rates of $\ 547.40 for temporary total disability benefits and $\ 389.04 for permanent partial disability benefits;
2. That the notice requirement of Section 287.420 is not a bar to Employee's Claim for Compensation;
3. That Employer has paid $\ 268.92 in medical benefits and $\ 78.20 in temporary benefits; and
4. That the University of Missouri was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of Claimant, Larry Burnam; medical records; medical bills; the deposition testimony of nurse-practitioner Patricia Kean, taken February 18, 2011; the deposition testimony of nurse-practitioner Linda Kolostov, taken February 18, 2011; the deposition testimony of nurse Karen Hackmann, taken February 18, 2011; the deposition testimony of Dr. Robert J. Bernardi, taken October 20, 2010 and February 26, 2013; the deposition testimony of Dr. Michael Chabot, taken June 15, 2012; the deposition testimony of Dr. David T. Volarich, taken November 19, 2010 and February 2, 2012; photographs; correspondence; transcript of recorded statement of Employee apparently taken June 13, 2008, but dated June 13, 2009.

Larry Burnam ("Claimant") was born on September 7, 1951. He has been employed since October 2004 for the University of Missouri ("Employer") as a master refrigeration technician. Claimant performs most of his work for Employer at the old Ellis Fischel building in north Columbia. Claimant has performed commercial refrigeration work for all of his adult life.

In 1997, Claimant sustained a left-sided disc herniation at L5-S1 with migration of the disc material down to the S1 nerve root. Claimant was experiencing a left lower extremity radiculopathy. Claimant underwent discectomy surgery with resolution of the radicular symptoms.

As stipulated, Claimant sustained a work-related accident and injury on June 11, 2008. The injury occurred while Claimant was changing a compressor on an MRI chiller unit. This required him to sit on a concrete ledge and lean backwards through a small open space in order to install the compressor and cut, re-route, and weld its piping. As he changed positions and moved around throughout the day while working on this project, he noted the onset of back pain and some difficulty straightening up. He described pain across his back at or above his belt level that extended down into his right buttocks to an area slightly below his right back pocket. He

mentioned the symptoms to his supervisor before leaving work but did not seek treatment that evening. His back remained stiff and painful, even after he took a hot bath. The following morning he filled out an injury report when he arrived at work. He was sent to Work Injury Services at the University. Claimant was seen by a nurse or a nurse-practitioner on five occasions between June 12, 2008 and July 17, 2008. Claimant was treated conservatively with exercises and prescription medication, and was placed on modified work duty.

On Claimant's first visit to Work Injury Services, he reported a resting pain level of 6/10 which increased to 8-9/10 sharp pain with activity. It was documented that he "denies numbness/tingling in LE". He was ordered off work until June 16 at which time he was to return to work on modified duty. He was treated for a lumbosacral strain. Claimant was instructed to take ibuprofen, an anti-inflammatory, was prescribed Skelaxin, a muscle relaxant, and Ultram, a narcotic pain reliever.

Claimant testified that he asked nurse-practitioner Patricia Kean if he should undergo an MRI as he was worried about having sustained a herniated disc. Claimant testified that she declined. Ms. Kean testified that she did not recall Burnam asking about an MRI and, besides, that the mechanism of injury "was not there to herniate a disc." At the first visit, an x-ray was ordered by the nurse-practitioner. Claimant testified that the pain was greater on the right than left and the pain traveled into his buttocks very early after the injury.

On the June 19, 2008 visit to Work Injury Services, Claimant complained of "dull" and "achy" pain in the lumbosacral area. He was noted to have gait "guarded with sit to stand". He was maintained on modified duty but his restrictions were lessened and he was continued on ibuprofen and Skelaxin.

On the June 26, 2008 visit to Work Injury Services, it was recorded that Claimant indicated that his low back pain was usually a $5 / 10$ by noon. His complaints were focused on the right low back. His movements were noted to be "stiff". Claimant was diagnosed with a lumbosacral strain, maintained on limited duty, and instructed to do home exercises. Claimant was, at that time, still taking a maximum daily dose of ibuprofen.

Claimant was next seen in Work Injury Services on July 9, 2008. He was diagnosed with a lumbar strain right greater than left. It was noted that he reported a pain level of $2 / 10 at rest with pain increasing to 4 / 10$ by the end of the day. The physical exam revealed increased pain with lateral bending to the right. Ms. Kean testified that on the July 9, 2008 visit, Claimant's reported pain was limited to the right instead all of the way across the lumbar area. Claimant was still taking ibuprofen at that time although less than had been noted in the previous visit. Claimant was released to return to "medium-heavy" work.

Claimant was last seen in Work Injury Services on July 17, 2008. He was released from care at that time. It is noted that his "[b]ack pain resolved with no discomfort". However, Claimant testified that though his back improved over the five week period he was followed by Work Injury Services his pain never completely resolved and he never reported that his pain had completely resolved. The pain diagram for that visit was completed by Ms. Kolostov and it was shaded indicating pain in the lumbosacral area which is roughly the same area shaded by Kolostov during the June 26, 2008 visit. However, Ms. Kolostov testified that she shaded the

pain diagram on July 17 not because Claimant reported pain in that area on that day but because he had previously reported pain in that area.

After five visits to University of Missouri Work