Edward Arnold v. MSTA, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 03-022663

Employee: Edward Arnold

Employer: MSTA, Inc.

Insurer: Nationwide Mutual Insurance Co.

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 June 19, 2014. The award and decision of Administrative Law Judge Joseph E. Denigan, issued June 19, 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 $10^{\text {th }}$ day of October 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: February 18, 2003 (alleged)
5. State location where accident occurred or occupational disease contracted: St. Louis County
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 sustained a ladder fall.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: cervical spine
14. Nature and extent of any permanent disability: 10 % PPD of the body referable to cervical spine.
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? \$1,104.00

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\$ 311.78 / \ 311.78
4. Method wages computation: Stipulation

1. Amount of compensation payable:

40 weeks PPD from Employer $\ 12,471.20

1. Second Injury Fund liability: No

TOTAL:

$\ 12,471.20

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to Claimant:

Padberg, Corrigan \& Appelbaum

Employee: Edward Arnold

Departments: N/A

Employer: MSTA, Inc.

Additional Party: Second Injury Fund

Insurer: Nationwide Mutual Ins. Co.

Hearing Date: March 20, 2014

Injury No.: 03-022663

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves three separate Claims for Compensation: 03-022663 (February 18, 2003), 03-142852 (March 22, 2003), and 03-142853 (July 6, 2003). The testimony and exhibits in this record constitute the evidence in each Claim. Each Claim is disputed by Employer. Separate Awards issue on each Claim. These cases may be referred to herein as the first, second, and third cases, chronologically. Employer went out of business in December 2003.

Employer admits Claimant was employed on each of the reported dates of injury and that any liability was fully insured. The Second Injury Fund ("SIF") is a party to these claims. Claimant seeks PTD benefits against the SIF in the third Claim. Both parties are represented by counsel. Objections are ruled upon consistent with the findings herein. At all times relevant herein, Claimant worked as a cable installer for this and two subsequent employers.

All three Cases

1. medical causation;
2. nature and extent of permanent disability;
3. past medical expenses
4. future medical expenses;
5. liability of the SIF.

1. First Case - February 18, 2003. In the first case, Claimant sustained a fall from a ladder, landing on his back. Claimant treated neck and low back symptoms conservatively. Also, he had one appointment with his existing chiropractor, Dr. Robert Monti, and one appointment with his family doctor, Dr. Michael Patterson. Claimant underwent some physical therapy. This was Claimant's fourth low back injury, none involving surgery.

1. Second Case - March 22, 2003. In the second case, Claimant reported an accident in which he was driving a ground rod with a sledgehammer and experienced pain between the shoulder blades. Claimant asserted Employer denied treatment. Claimant offered no medical records corroborating this accident as a cause for treatment. Claimant treated privately beginning three weeks later on April 1, 2003 with his family physician Dr. Patterson and was released feeling much better.
2. Third Case - July 6, 2003. In the third case, Claimant sustained another low back injury moving equipment in a warehouse. Claimant was discharged from physical therapy on August 5, 2003. He continued working until Employer went out of business in December 2003.
3. Stipulated Benefits Payments:

1. None of these Claims was submitted for hearing pursuant to Hardship Petition in order to receive (additional) medical or indemnity benefits. Claimant presented no evidence in any of the cases that he lost time from work, received TTD benefits or that he seeks past due TTD benefits herein.

1. In 2002, prior to all three cases, Claimant's physician, Dr. Monti, projected a pattern of flareups proportional to activity prior to all three of the Claims herein. He also stated Claimant's prognosis for the future was "poor." (Exhibit D.)
2. Also in 2002, Dr. Patterson diagnosed osteoarthritis. (Exhibit C.)

1. On cross-examination, Claimant admitted that after he left MSTA in December 2003. He began working for AFRAM two days later, and later BNL Communications, performing the same kind of tasks, working 40-45 hour weeks, including 10-14 hour days. Specifically, he continued climbing telephone poles. At BNL, Claimant was submitted and passed a physical fitness exam.
2. On cross-examination, Claimant admitted prior deposition testimony that he could do "anything" prior to working for AFRAM. This included climbing multiple telephone poles during a workday. By the time he terminated with BNL, he could "hardly do anything." (T. 6263.) He testified that his work with BNL worsened his condition.

1. Claimant worked until September 2006 when he was terminated because BNL left the area. He applied for unemployment benefits aware that he certified he was "ready and willing" to work. Claimant worked 40-45 hours per week between December 2003 and September 2006. He received unemployment benefits through April 2007. (T. 59-60, 66-67.)

1. Claimant had back and neck complaints which he treated conservatively from February to June 2003 when he was "feeling much better" according to Dr. Wilkinson.
2. Working full-time, Claimant did not treat for a period of eleven months, August 5, 2003 until July 6, 2004 (after Employer went out of business) even though Dr. Wilkinson had referred Claimant to pain management for cervical symptoms. Claimant did not make demand upon Employer for pain management but Claimant was working full-time performing the same work.
3. Another treatment gap occurred between July 2004 and June 2005 (eleven months). Claimant worked in the same capacity from August 2004 until 2006.
4. Subsequently, Dr. George examined Claimant in February 2005 for Employer and made no treatment recommendations.
5. In September 2005, another of Claimant's physician, Dr. Kevin Rutz, examined Claimant and noted somewhat dramatic presentation and lack of interest in surgery. Notes suggest confusion about the appointment. (Exhibit H.)
6. Notes from both Dr. Patterson and Dr. Rutz include cautionary notes against long-term use of vicodin and hydrocodone. Use of each, from different physicians, appears to overlap for some periods of years.
7. Dr. Rutz referred Claimant to a physiatrist but there is no evidence that Claimant acted on the referral.
8. Claimant had treatment for various serious pathologies after 2005. Claimant testified he had ten heart attacks. Claimant had a heart attack in October 2005 and was off-work for four weeks. Claimant developed cancer.

1. Claimant offered Exhibit J for medical expenses for medical treatment for which he sought reimbursement. The affidavits do not relate the expenses to any one of the three cases herein. Claimant attempted unsuccessfully to identify the expenses contained within the Exhibit on direct examination. He did not relate the expenses to any one of the three cases herein.
2. Separately, on cross-examination, Claimant admitted a number of the medical expenses in Exhibit J were for the period of employment with AFRAM and BNL, not Employer herein.
3. Claimant did not offer sufficient evidence of any treatment demands.

1. Claimant offered the deposition of Dr. David Volarich as Exhibit A. Claimant told Dr. Volarich he had no low back issues hindering work prior to 2003. Dr. Volarich assigned ten percent PPD of the body referable to the low back on the first case. Dr. Volarich also assigned PPD ratings to each of the second and third cases and to numerous alleged pre-existing disabilities. He further found Claimant permanently and totally disabled as a result of the combination of current (i.e. 2003) disabilities and the pre-existing disabilities (See Exhibit A.)
2. Claimant offered the deposition of Mr. James England, rehabilitation counselor, as Exhibit B. Mr. England saw Claimant in 2012. He admitted that if Claimant was working 45-50 hours per week with BNL through 2006, in context with the above identified treatment gaps, that Claimant was employable at that time (pp. 23-30).
3. Employer offered the deposition of Dr. Philip George as Exhibit 1. Dr. George examined Claimant in 2005 and 2009. He assigned ten percent PPD of the body referable to the cervical spine referable to the first case. He did not assign any PPD to the second and third cases. Dr. George assigned ten percent PPD to the pre-existing low back condition.

Claimant's testimony was difficult to follow and unreliable. His responses were not straight-forward and often contradictory. Accordingly, Claimant's testimony is found not credible. This is not inconsistent with the assessment of Claimant's communications by Dr. Rutz and Mr. England. Separately, the suggestion of Claimant's (chronic) misus