Randy Wineland v. Missouri Highway & Transportation Department

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-060794

Employee: Randy Wineland

Employer: Missouri Highway \& Transportation Department

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 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 April 16, 2014. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued April 16, 2014, 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 $\qquad 16^{\text {th }} \qquad$ day of September 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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 6, 2002
5. State location where accident occurred or occupational disease was contracted: Cole 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 occurred or occupational disease contracted: See award
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
14. Nature and extent of any permanent disability: Permanent and total disability as of July 14, 2005
15. Compensation paid to-date for temporary disability: $\ 51,184.63
16. Value necessary medical aid paid to date by employer/insurer? $\ 206,771.21

Employee: Randy Wineland Injury No. 02-060794

1. Value necessary medical aid not furnished by employer/insurer? Unknown
2. Employee's average weekly wages: ---
3. Weekly compensation rate: $\ 420.92 for TTD and PTD/\$329.42 for PPD
4. Method wages computation: By agreement

1. Amount of compensation payable: PTD from July 14, 2005

(456 weeks from 7/14/05 through 4/10/14 of $\ 420.92 per week $=\ 191,939.52 )

1. Second Injury Fund liability: No
2. Future Requirements Awarded: Ongoing medical as described in the award.

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: Allen \& Nelson PC/Truman Allen.

Employee: Randy Wineland

Injury No. 02-060794

Employee: Randy Wineland

Injury No: 02-060794

Dependents: N/A

Employer: Missouri Highway \& Transportation Department

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

Insurer: Self-Insured

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on February 26, 2014. Memoranda were submitted by March 14, 2014.

The parties stipulated that on or about June 6, 2002, the claimant, Randy Wineland, was in the employment of the Missouri Highway and Transportation Department (MoDOT). On or about that date the claimant sustained an injury by accident; the accident arose out of and in the course of employment. The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was self insured. The employer had notice of the injury. A claim for compensation was timely filed. The compensation rate is $\ 329.42 per week for permanent partial disability benefits and $\ 420.92 per week for temporary and permanent total disability benefit.

Temporary disability benefits have been paid in the amount of $\ 51,184.63, reflecting 121 weeks of benefits paid through July 13, 2005. Medical aid has been provided in the amount of $\ 206,771.21.

The issues to be resolved by hearing include 1) the nature and extent of permanent disability, 2) the liability of the Second Injury Fund, 3) the liability of the employer/insurer for past medical bills as set out in Exhibit Y, and 4) the liability of the employer/insurer for future medical treatment. Permanent total disability benefits as of July 14, 2005, are sought.

The claimant, Randy Wineland, was employed by MoDOT on June 6, 2002, when he injured his back while stacking bags of bentonite into the back of a van. Mr. Wineland's job with MoDOT involved core drilling and the bentonite was used to maintain the drilled holes in sandy soil. Mr. Wineland was in a bent position and felt a slight pulling sensation as he was stacking the 50 pound bags; Mr. Wineland could not stand from his bent over position. Mr. Wineland reported his injury and saw several physicians and had physical therapy and injections to improve his back condition. Mr. Wineland returned to full duty work with MoDOT in January of 2003, and on January 6, 2003, he was unable to get out of his truck without assistance after driving to St. Louis

and his supervisor had to bring him home. At that point Mr. Wineland saw Dr. Trecha, whom he had seen after the June 2002 accident, again.

Dr. Trecha operated on Mr. Wineland's back followed by surgery on his back by Dr. Robson. Dr. Robson's initial back surgery included a two-level fusion with hardware. Dr. Robson performed his second back surgery for Mr. Wineland after Mr. Wineland's bone growth following Dr. Robson's first surgery stopped. Mr. Wineland was on modified duty at a temporary job mapping with MoDOT periodically during this time. Mr. Wineland's job during this time was very flexible, including breaks and going outside to walk as needed for comfort.

Mr. Wineland noted signs of depression setting in after his second surgery with Dr. Robson and received anti-depressant medication from Dr. Robson. Mr. Wineland had had an episode of depression before and recognized the signs when he became depressed after the back surgeries. Mr. Wineland described his depression as triggered by his inability to do more than walk in his house for a limited time, worries about bills, and thoughts of things he was no longer able to do. Dr. Robson referred Mr. Wineland to Dr. Spalding for treatment of his depression in 2005. Mr. Wineland discontinued his antidepressants in 2007, and could not immediately see Dr. Spalding when Mr. Wineland wished to resume the antidepressant medications. Mr. Wineland's family physician, Dr. Finney, prescribed antidepressant medications in the interim period. When Dr. Spalding left the area, Mr. Wineland's care was transferred to Dr. Frick.

Dr. Robson released Mr. Wineland from treatment on about July 8, 2005; around that time Mr. Wineland's temporary total disability benefits ceased and his long-term disability benefits set in. Mr. Wineland was not released to full duty by Dr. Robson; Mr. Wineland described his permanent restrictions as including 15 pounds maximum lifting and no bending or twisting and limited sitting, standing, and walking with the ability to change positions.

Mr. Wineland described a previous back injury resulting from a work accident in 1996 when a pipe wrench he was working with snapped causing low back pain; the injury resulted in prescription medications and a week of physical therapy. Mr. Wineland returned to full duty work with MoDOT in core drilling, which Mr. Wineland described as very heavy and demanding work involving drill bits weighing from 20 to 150 and 180 pounds. Mr. Wineland testified to only intermittent slight numbness in his right buttocks after the 1996 accident and said that his job responsibilities did not change after the 1996 accident.

Currently, Mr. Wineland continues to have pain and numbness in his low back radiating into his left leg into his toes. Mr. Wineland cannot lift without pain and gets to his knees when he has to lift something. Mr. Wineland cannot sit for extended periods of time due to his low back pain and needs to take breaks when he is driving. Mr. Wineland spends his days with limited shopping trips to the grocery store or small woodworking projects and in the summer utilizes the swimming pool as a pain reliever.

Records from St. Mary's Health Center for May 13, 2009, describe Mr. Wineland as seeking help for his depression pertaining to stress over family issues, including the impending loss of a job

Employee: Randy Wineland

Injury No. 02-060794

for his wife, and his daughter moving out of the home to live with her mother, Mr. Wineland's ex-wife.

Dr. Robert Frick, with Capital Region Medical Center wrote in a letter to defense counsel on February 23, 2011, that "Mr. Wineland is being treated for Major Depression and Generalized Anxiety Disorder. The Effexor is prescribed for both disorders. I agree that the depression and Generalized Anxiety Disorders began prior to the 2002 work injury. Therefore, the injury is probably not responsible for the bulk of his psychiatric problems. However, the pain and functional limitations stemming from that injury probably do increase the degree of depression and anxiety with which he struggles. He most likely will need Effexor or a similar medication indefinitely." (Frick letter 2.23.11)

Dr. David Volarich testified by deposition that he evaluated Mr. Wineland on March 28, 2006, and authored a report pertaining thereto on the same day. Dr. Volarich opined that Mr. Wineland had a "herniated nucleus pulposis L5-S1 to the left, as well as aggravation of degenerative disc disease at L4-5 and L5-S1-S/P microdiscectomy L5-S1 to the left ... post laminectomy syndrome ... failed back syndrome ... [and] persistent post-laminectomy/failed back syndrome with chronic left leg S1 radiculopathy" as the result of the June 6, 2002 accident. (Volarich report 3.28.06) Dr. Volarich found Mr. Wineland to have a permanent disability of 75 percent of the body attributable to the June 6, 2002 accident and opined that Mr. Wineland would not be able to "engage in any substantial gainful activity nor ... perform in an ongoing work capacity in the future." (Volarich depo p14) Dr. Volarich noted Mr. Wineland's prior back injury and evaluated the permanent disability from that injury to be 7.5 percent of the body; Dr. Volarich opined that if Mr. Wineland is determined to be unable