Randy Smith v. Curators of the University of Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 03-138392

Employee: Randy Smith

Employer: Curators of the University of Missouri (Settled)

Insurer: Self-Insured (Settled)

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 14, 2014, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued July 14, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of November 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Randy Smith

Injury No. 03-138392

Dependents:

Employer: Curators of the University of Missouri (settled)

Address: 2015 Mcquanry Street, Missouri 61611

Address: 2015 Mcquanry Street, Missouri 61612

Address: 2015 Mcquanry Street, Missouri 61613

Address: 2015 Mcquanry Street, Missouri 61614

Address: 2015 Mcquanry Street, Missouri 61615

Address: 2015 Mcquanry Street, Missouri 61616

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: Occupational disease alleged from November 5, 2002 to April 21, 2003.
5. State location where accident occurred or occupational disease was contracted: 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 was self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: It is alleged that Employee sustained an occupational disease in that overhead lifting and turning of the head and neck for $51 / 2$ months caused a further aggravation and/or progression of ongoing, underlying degenerative changes of the cervical spine.
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: Right shoulder.
14. Nature and extent of any permanent disability: 10 % permanent partial disability of the right shoulder.
15. Compensation paid to-date for temporary disability: Unknown.
16. Value necessary medical aid paid to date by employer/insurer? Unknown.

1. Value necessary medical aid not furnished by employer/insurer? Unknown.
2. Employee's average weekly wages: $\ 503.55.
3. Weekly compensation rate: $\ 335.70.
4. Method wages computation: Stipulation.

Second Injury Fund liability:

NONE. The claim against the Second Injury Fund is denied in full.

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.

Employee: Randy Smith

Injury No. 03-138392

Dependents:

Employee: | Randy Smith |

Before the DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Injury No. Self-Insured (settled)

Relations of Missouri

Jefferson City, Missouri

These two cases (Injury No. 02-148433 and Injury No. 03-138392) were consolidated for hearing. The evidentiary hearing was held on April 15, 2014 in Columbia. The parties requested leave to file post-hearing briefs, which leave was granted. The cases were submitted on May 2, 2014. Randy Smith ("Claimant") appeared personally and by counsel, Truman Allen. The Second Injury Fund appeared by counsel, Assistant Attorney General Brian Herman. The claims in both cases against the Employer, the University of Missouri, were settled by stipulations approved June 8, 2010.

In Injury No. 02-148433, 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 Claimant's average weekly wage is $\ 503.55, with compensation rate of $\ 335.70;
6. That Claimant, Randy Smith, sustained an accident arising out of and in the course of his employment with the University of Missouri on November 5, 2002; and
7. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation against the Second Injury Fund.

In Injury No. 03-138392, 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 Claimant's average weekly wage is $\ 503.55, with compensation rate of $\ 335.70; and
6. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation against the Second Injury Fund.

The issue to be decided in Injury No. 02-148433 is the liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits.

In Injury No. 03-138392, the hearing was held to determine the following issues:

1. Whether Claimant sustained an accident or occupational disease on or about April 21, 2003 arising out of and in the course of his employment with the University of Missouri; and
2. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits.

The evidence consisted of the testimony of Claimant, Randy Smith as well as the deposition testimony of Randy Smith; medical records; the narrative report and deposition testimony of Dr. David Volarich; the deposition testimony of Dr. John Wagner; and the deposition testimony of Mr. Gary Weimholt, a vocational rehabilitation consultant.

The hearing in these cases was held to resolve the Second Injury Fund claims in Injury No. 02-148433 (date of accident 11-5-2002) and Injury No. 03-138392 (alleged occupational disease accruing between November 6, 2002 and April 21, 2003); both of those claims were resolved against the employer by stipulations approved June 8, 2010. A stipulation in another case (Injury No. 01-026509) was also approved on June 8, 2010, for an accident date of March 6, 2001. A thorough discussion of the March 6, 2001 accident and injury is necessary to decide the issues in these cases.

Randy Smith ("Claimant") was born November 11, 1950, and began working for University of Missouri ("Employer") in 1992 as a senior storage clerk. The evidence strongly suggests that Claimant had no known injuries or disabilities prior to the March 6, 2001 accident.

Claimant testified that on March 6, 2001, while working for Employer, he was climbing a rack when he slipped, missing a step, and fell to the ground. Dr. Volarich, Claimant's evaluating physician, noted that in the 3-6-01 accident Claimant injured his back and his neck. Claimant went to a chiropractor on March 9, 2001, reporting, inter alia, neck pain. When Claimant went to the University of Missouri Hospital and Clinics Staff Health Services, his complaints included neck stiffness and he stated that his neck "gradually worsened as time went on" from the March 6, 2001 injury. On March 30, 2001, Claimant saw Dr. Robert Conway and reported complaints that included non-radiating neck pain since the fall at work on March 6, 2001. Dr. Conway diagnosed Claimant with cervical and lumbar strains.

Dr. Conway released Claimant on June 28, 2001, but noted intermittent neck and back pain. Dr. Volarich reported that over the next six months Claimant continued to experience symptoms. This led to an x-ray of Claimant's cervical spine on December 13, 2001 because of a history of cervicalgia. According to the radiologist, the x-ray revealed cervical spondylosis with degenerative changes greatest at C5-6 and C4-5. The radiologist also suspected central stenosis in the bilateral intervertebral foramina at C5-6. On January 2, 2002, Claimant underwent an MRI of his cervical spine due to neck and left shoulder pain. This MRI revealed spinal stenosis at C5-6 and less pronounced changes at C4-5 and C3-4. It also revealed mild asymmetric uncovertebral changes at C5-6, left greater than right, and mild left lateral bulge at C7-T1.

Following these diagnostic results, Claimant saw Dr. Steven Street, a pain management doctor, on March 14, 2002, complaining of neck pain at a level of four out of ten. Dr. Street noted that Claimant presented with left-sided neck pain that radiated into his shoulders "since a fall in March 2001." Dr. Street diagnosed Claimant with likely cervical facet joint pain, cervical radiculopathy, and cervical degenerative disc disease, and performed left C5-6 and C6-7 facet joint injections, which confirmed the cervical facet joint pain diagnosis. Dr. Street performed a repeat injection on March 21, 2002. On April 19, 2002, Claimant returned to Dr. Street reporting that his pain was returning. Dr. Street recommended radiofrequency ablation of the medial branch nerves to the C5-6 and C6-7 facets, and this was performed May 6, 2002.

When Claimant's symptoms did not resolve after the radiofrequency ablation, Dr. Street referred Claimant to Dr. Thomas Highland, a spine surgeon, for surgical evaluation. Dr. Highland evaluated Claimant on August 30, 2002, noting the injury in March 2001 and that

Claimant was being seen for neck pain. Per Dr. Highland's notes, Claimant was also reporting problems supporting his neck: "(w)hen he is at work or when he is trying to do anything he feels like he has to support his neck." Dr. Highland took his own x-rays, which showed narrowing and osteophyte formation at C5-6 and Dr. Highland diagnosed Claimant with degenerative disease of C4-5 and C5-6 with possible Schmorl's node. He then advised that lesions at C4-5 and C5-6 could be causing Claimant's pain and the only other option was surgery.

Shortly after surgery was offered for his neck, Claimant suffered the November 5, 2002 work injury to his shoulder that is the first claim in this matter (Injury No. 02-148433). He testified that a cart was pushed into him and "jammed" his right shoulder. Claimant testified that he has never asked for and has never received treatment for his right shoulder. He simply continued working full time after this injury. His job duties after the shoulder incident did not change and included filling orders, retrieving products from shelves, unloading trucks, and general housekee