James Travis v. Rexam

**Injury No.:** 09-109134

Where employee's testimony is deemed unpersuasive and his own experts have provided opinions suggesting that he is permanently and totally disabled as a result of the primary injury considered alone, there is simply no basis for an award of Second Injury Fund liability in this case.

We affirm and adopt the award of the administrative law judge with this supplemental opinion.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued August 2, 2013, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 25th day of July 2014.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: August 11, 2009 (alleged)
5. State location where accident occurred or occupational disease was contracted: Franklin 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? No
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: The claimant, a machine operator assistant, suffered a low back L4-6 spondylosis and foraminal stenosis.
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: None
14. Nature and extent of any permanent disability: Permanent total disability.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 552.92
3. Weekly compensation rate: $\ 368.61
4. Method wages computation: By evidence submitted

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

None

TOTAL:

None

1. Future requirements awarded: None

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: James J. Sievers and Melanie Adams, Attorneys at Law

Employee: James T. Travis, Jr.

Injury No.: 09-109134

Dependents: N/A

Employer: Rexam (Settled)

Additional Party: Second Injury Fund

Insurer: Hartford Insurance Company of the Midwest (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case requires a determination of Second Injury Fund liability arising out of a work related injury in which the claimant, a machine operator assistant, suffered a low back L4-6 spondylosis and foraminal stenosis. The issues for determination were: (1) Medical Causation, (2) Rate, (3) Date of maximum medical improvement, and (4) Second Injury Fund liability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered depositions from David T. Volarich, D.O., James M. England, and Delores E. Gonzalez, and medical records from Peter K. Yoon, M.D., and Jennifer L. Scheer, M.D. The defense offered medical records from Jennifer L. Scheer, M.D., and St. Johns Mercy Medical Center.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On August 11, 2009, this forty-nine year old claimant, a machine operator assistant, had an L4-5 decompression and bilateral facetectomy, posterior lumbar interbody fusion, and autologous bone graft with pedicle screw fixation at L4-5 and ceased working for this employer. See Exhibits D, IV. The claimant had a long history of low back pain. The claimant testified that sometime in June 2008, he felt a pop in his low back and immediate pain in his right side while lifting a box overhead at work. He testified that his accident was witnessed by two employees, who helped him back to his feet following the injury. The claimant did not offer testimony or statements from either of the two witnesses to which he made reference. The claimant testified that he declined immediate medical attention because according to his employer's point policy, had he left work, he would have acquired enough points that he would be fired.

On June 24, 2008, the claimant went to Dr. Scheer, his primary care physician, for back pain in the lower back without radiation. See Exhibit II.

James T. Travis complains today of back pain. The pain is located in the left lower back without radiation. Symptoms have been present for 1 week and have been worsening since onset. He denies an acute injury. He denies overuse, but

doing more swimming. Pain is described as intermittent and sharp and stabbing. Severity of pain is moderate. Aggravating factors: standing, walking, bending forwards, bending sideways, sitting too long. Alleviating factors: None. Previous lower back problems: Pain like this about once or twice a year. Past evaluation showed muscle problem. See Exhibit II.

Dr. Scheer recommended rest and Ibuprofen and prepared an off work note. See Exhibit II. On November 3, 2008, the claimant returned to Dr. Scheer with right shoulder pain that had been present for 2 years, but had been waxing and waning since onset. See Exhibit II. The claimant denied acute injury, change in activity or overuse. Examination of shoulder was largely normal. See Exhibit II. On November 5, 2008, an MRI of the neck and shoulder revealed cervical spine degenerative changes with moderate canal stenosis. See Exhibit II.

The claimant returned to Dr. Scheer in November 2008 with severe nonradiating shoulder pain that had been present for two years, waxing and waning since onset, and "comes on for no apparent reason." See Exhibits E, II. Dr. Scheer referred the claimant to Dr. Yoon for a neurosurgery consult for the claimant's neck and shoulder pain. See Exhibit II. On January 29, 2009 an MRI of the lumbar spine revealed sacralization at L5 on S1 and a moderate diffuse bulge at L4-5 with a central herniation, annular fissure, and canal stenosis. The EMG showed a mild sensory neuronal right carpal tunnel syndrome.

On December 18, 2008, Dr. Yoon examined the claimant for neck and lower back pain radiating down his right leg into the bottom of the foot. Physical examination revealed some numbness in the L5-S1 distribution. On January 29, 2009, a lumbar spine MRI revealed sacralization at L5 and S1 and a moderate diffuse bulge at L4-5 with a central herniation, annular fissure, and canal stenosis. See Exhibit.III. Following three series of epidural injections which provided limited relief, Dr. Yoon recommended surgery. On August 11, 2009, Dr. Yoon performed a posterior lumbar discectomy and fusion at L4-5. In his admission history, Dr. Yoon reported that symptoms had been present for two years with no mention of a work related occurrence. See Exhibit.III.

The claimant returned to Dr. Scheer on November 19, 2009, and reported that he had not progressed well after the surgery. See Exhibit II. The claimant reported daily low back pain and daily neck pain for which he consumed Percocet and Vicodin. Dr. Scheer concluded that the claimant had not gotten good relief after his surgery and recommends physical therapy. She noted that the claimant was taking both Percocet and Vicodin but at different times. See Exhibit II.

On February 24, 2010, a repeat MRI of the lumbar spine revealed areas of soft tissue density at L4-L5 and slightly increased canal stenosis at