Harold Reeves v. Master Pitching Machine, Inc.

(Affirming Amended Award and Decision of Administrative Law Judge)

Injury No.: 08-091302

Employee: Harold E. Reeves

Employer: Master Pitching Machine, Inc.

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 July 25, 2013. The amended award and decision of Administrative Law Judge Emily Fowler, issued July 25, 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 $16^{\text {th }}$ day of May 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

EMPLOYEE: Harold E. Reeves

Injury No. 08-091302

DEPENDENTS: N/A

EMPLOYER: Master Pitching Machine, Inc.

INSURER: Self-Insured, c/o Missouri Merchants \& MFG Assn.

ADDITIONAL PARTY: Treasurer of Missouri, as Custodian of the Second Injury Fund

HEARING DATE: April 18, 2013

May 23, 2013

Checked by: ESF/lh

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? Accident
4. Date of accident or onset of occupational disease: August 28, 2008
5. State location where accident occurred or occupational disease was contracted: 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 was self-insured.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Harold E. Reeves

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was carrying two pitching nets while descending a flight of stairs at work, when he tripped over a bucket of parts and fell down 4-5 stairs and landed on the floor
2. Did accident or occupational disease cause death? No Date of death? N/A
3. Part(s) of body injured by accident or occupational disease: body as a whole referable to employee's back and neck
4. Nature and extent of any permanent disability: Permanent total disability as to the employer
5. Compensation paid to-date for temporary disability: $\ 56,722.01
6. Value necessary medical aid paid to date by employer/insurer? $\ 163,188.74
7. Value necessary medical aid not furnished by employer/insurer? None
8. Employee's average weekly wages: $\ 935.04
9. Weekly compensation rate: $\$ 623.46 / \ 404.66
10. Method wages computation: Stipulation of the parties
11. Amount of compensation payable: permanent total disability from the employer beginning October 5, 2010, in the amount of $\ 623.36 per week for as long as Employee remains permanently and totally disabled.
12. Second Injury Fund liability: N/A
13. Future requirements awarded: Pursuant to the parties' stipulation Employer shall provide such future medical care as may reasonably be required to cure and relieve the effects of Employee's injuries.

Said payments to begin as of date of this award and to be payable and be subject to modification and review as provided by law.

Attorney's lien is granted in favor of Mr. Kevin Rotert in the amount of 25 % of the compensation payable.

EMPLOYEE: Harold E. Reeves Injury No. 08-091302

DEPENDENTS: N/A

EMPLOYER: Master Pitching Machine, Inc.

INSURER: Self-Insured, c/o Missouri Merchants \& MFG Assn.

ADDITIONAL PARTY: Treasurer of Missouri, as Custodian of the Second Injury Fund

HEARING DATE: April 18, 2013

May 23, 2013

Checked by: ESF/1h

The above Claim was heard on April 18, 2013 and May 23, 2013. Employee appeared in person and by Attorney Kevin P. Rotert, Employer and Insurer appeared by Attorney Brian J. Fowler, and the Second Injury Fund appeared by Attorney Kimberley Fournier.

Prior to the hearing, the parties stipulated to the following issues:

(1) that on August 28, 2008, Master Pitching Machine, Inc. was an Employer operating under and subject to the provisions of the Missouri Workers' Compensation Law;

(2) that their liability under said law was fully self-insured;

(3) that on August 28, 2008, Harold E. Reeves was an employee of Master Pitching Machine, Inc. and was working under the provisions of the Missouri Workers' Compensation Law in Kansas City, Clay County, Missouri;

(4) that on August 28, 2008, Harold E. Reeves sustained an injury by accident arising out of and in the course of his employment;

(5) that the Employer had notice of the injury and that a Claim for Compensation was filed within the time prescribed by law;

(6) that the average weekly wage was $\ 935.04 and that the applicable compensation rate is $\$ 623.46 / \ 404.66 per week;

(7) that compensation has been paid in the amount of $\ 56,722.01 for a total of 91 weeks, with the last payment made through October 4, 2010;

(8) that medical aid has been furnished in the amount of $\ 163,188.74; and,

(9) that Employee will require ongoing and future medical care as a result of injuries received in the accident on August 28, 2008, and medical care will remain open as to the

Employer/Insurer.

The issues to be decided by the hearing are:

(1) whether Employee suffered any disability and if so the nature and extent of permanent disability resulting from the August 28, 2008 accident;

(2) If Employee is determined to be permanently and totally disabled whether such disability is due to the last accident alone or a combination of disability from his last accident and his prior disability combined.

Employee testified on his own behalf and offered the testimony of Claimant's neighbor, Sabrina Palmer and the testimony of Claimant's brother, Donald Reeves.

In addition, the employee presented the following exhibits, each of which were admitted into evidence without objection, or if deposition transcripts, subject to the objections contained therein:

A. Deposition of P. Brent Koprivica, M.D., M.P.H. dated August 24, 2012

B. Deposition of Allan D. Schmidt, Ph.D. dated August 7, 2012

C. Deposition of Mary W. Titterington dated September 19, 2012

D. Claimant's work history

E. Paycheck stubs and summary of earnings of Claimant's after August 28, 2008 injury

G. Claimant's Claim for Compensation filed with the Missouri Division of Workers' Compensation on October 14, 2008.

The Employer did not call any witnesses, it did present the following exhibits, which were admitted into evidence without objection, or if deposition transcripts, subject to the objections contained therein:

1. Medical report from Arthur B. Jenny, M.D. dated March 12, 2003
2. Stipulation for Compromise Settlement for prior Workers' Compensation Claim, Injury No. 02-156165,
3. Medical records from James V. Maturo, M.D.,
4. Medical records from Karladine Graves, D.O.,
5. Records from CVS Pharmacy
6. Medical records from Emergency Room at North Kansas City Hospital dated September 2, 2008
7. Medical records from Kam Fai Pang, M.D. dated September 1, 2008,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Harold E. Reeves

1. Amended Claim for Compensation filed with the Missouri Division of Workers' Compensation date January 5, 2010
2. Disability Rating Report from Robert M. Drisko, II, M.D. dated December 9, 2009, and his Curriculum Vitae and not admitted as to the Second Injury Fund;
3. Medical report from Ramic Medical Imaging for MRI dated September 10, 2008, and,
4. Medical records from James V. Maturo, M.D. dated July 25, 2012 and North Kansas City Hospital dated July 20, 2012.

The Second Injury Fund's did not offer any live testimony but offered the following exhibit which was admitted into evidence with no objections

1. Deposition of Harold Reeves dated March 9, 2010,

Claimant had been working for Master Pitching Machine, Inc. since September 2000, assembling pitching machines, cages, and conveyors. On August 28, 2008, Claimant was carrying two pitching nets while descending a flight of stairs at work, when he tripped over a bucket of parts and fell down 4-5 stairs and landed on the floor. He was seen in the emergency room at North Kansas City Hospital on August 28, 2008, with complaints of pain in his back, neck, and right rib cage. The physician diagnosed a lumbar sprain, cervical sprain, and possible right rib fracture. On August 29, 2008, Claimant was seen in follow-up at North Kansas City Hospital Occupational Medicine with a diagnosis of cervical strain, lumbar strain, and right rib contusion. On September 2, 2008, Claimant was again seen in the emergency room at North Kansas City Hospital with complaints of acute neck and upper back pain, and low back pain which was as bad as his neck. Claimant was then referred to Kim Fai Pang, M.D. at Rockhill Orthopaedics.

On September 4, 2008, Claimant was seen by Dr. Pang with complaints of severe neck pain, thoracic pain, and low back pain, but he denied any radiation to his extremities. Claimant denied depression or anxiety, but did complain of sweat, malaise, appetite loss, light sensitivity and halos, and headaches. Dr. Pang diagnosed a lumbar strain, pain in the thoracic spine, chronic pain, spondylolistheis, low back pain, neck pain, and a cervical strain. The physician recommended physical therapy, prescribed medications, and ordered an MRI of the cervical, thoracic, and lumbar spine.

On September 18, 2008, Claimant was seen by Dr. Pang after the MRI's were obtained. Dr. Pang noted the MRI of the cervical spine showed postoperative changes at C5-6, mild degenerative disc disease, and foraminal stenosis, but no significant disc herniation. The MRI of the thoracic spine showed multiple levels of degenerative disc disease, but no significant disc herniation or central canal stenosis. The MRI of the lumbar spine showed an L5-S1 disc protrusion with facet arthritis affecting the left L5 neural foramina. Mr. Reeves reported severe

pain with a chronic aching and stabbing pain in the neck and thoracic area, and stabbing pain in the lumbar region which extended to his left buttocks. Dr. Pang diagnosed lumbar radiculopathy and degeneration of the lumbar/lumbrosacral disc. The physician recommended continued physical therapy and lumbar epidural steroid injections for the L5-S1 disc protrusion.

On September 22, 2008 and October 6, 2008, Claimant received lumbar epidural steroid injections from Sean Clinefelter, M.D. On September 22, 2008, Mr. Reeves informed the physician that he had continuing bilateral neck pain and bilateral low back pain. The low back pain radiated down the posterior aspect of his left leg just proximal to the left knee. The physician noted Claimant had a history of chronic neck pain and had a prior cervical fusion, but the level of pain in his neck had remained stable until he fell down the steps at work, and his neck and back pain had been worse since that time. Dr. Clinefelter diagnosed lumbar radiculitis and lumbar spinal stenosis.

Thereafter, Claimant was referred to Robert M. Drisko, II, M.D. for a second opinion. On October 7, 2008, Claiman