Kent Buerk v. King Glass Distributors, Inc. a/k/a King Auto Glass

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-019616

Employee: Kent Buerk

Employer: | King Glass Distributors, Inc. |

Insurer: National Union Fire Insurance Company of Pittsburgh

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 November 4, 2014. The award and decision of Administrative Law Judge Edwin J. Kohner, issued November 4, 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 $11^{\text {th }}$ day of June 2015.

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 13, 2009
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? 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: The claimant suffered neck and back injuries while carrying a 65 pound windshield across a muddy surface.
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: Neck, back
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 27,528.79
16. Value necessary medical aid paid to date by employer/insurer: $\ 203,936.88

1. Value necessary medical aid not furnished by employer/insurer: $12,139.63
2. Employee’s average weekly wages: 663.105
3. Weekly compensation rate: 442.07/$404.66
4. Method wages computation: Average of four weeks without absences during the 13 weeks before the accident

1. Amount of compensation payable:

1. Second Injury Fund liability: No

TOTAL: Indeterminate

1. Future requirements awarded: See Additional Findings of Fact and Rulings of Law

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: Ronald D. Edelman, Esq.

Employee: Kent Buerk

Injury No.: 09-019616

Dependents: N/A

Beforethe

Beforethe

Enployer: King Glass Distributors, Inc. a/k/a King Auto Glass

Compensation

Department of Labor and Industrial

Additional Party: Second Injury Fund

Relations of Missouri

Injurer: National Union Fire Insurance Company of Pittsburgh

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case raises several issues arising out of a work-related injury in which the claimant, an automotive glass replacement technician, suffered neck and back injuries while carrying a 65 pound windshield across a muddy surface. The issues for determination are (1) Liability for Past Medical Expenses, (2) Future medical care, (3) Rate, (4) Temporary Disability, (5) Permanent disability and disfigurement, and (9) Second Injury Fund liability. The evidence compels an award for the claimant for medical expenses, future medical care, temporary total disability benefits, and permanent total disability benefits.

At the hearing, the claimant testified in person and offered a deposition of Robert P. Poetz, M.D., Gary Weimholt, a vocational counselor, and the claimant, various correspondence from the claimant's attorney, medical bills, a medical bill summary, a trial stipulation, employee wage and attendance records, and voluminous medical records. The defense offered depositions of James M. England, a vocational counselor and James J. Coyle, M.D.

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 February 13, 2009, this now 43 year-old claimant, an automotive glass replacement technician, suffered neck and back injuries while carrying a 65 pound windshield across a muddy surface. The injury occurred as the claimant attempted to install a windshield at a muddy site. He slipped and twisted his back resulting in immediate neck and back pain. He finished the installation and reported the incident by phone to his employer who suggested he go to a chiropractor. See claimant deposition, pages 46-48. He went to Dr. Anderson, who provided chiropractic treatment for the condition. He testified that the chiropractor told him it was more serious than he could take care of and he should consult a back specialist. The claimant paid the chiropractor and told his employer that he needed to see a specialist. On March 24, 2009, the claimant's employer referred the claimant to Dr. Lamble at Mercy Clinic. See claimant deposition, page 50 and Exhibit 24. On March 24, 2009, Dr. Lamble examined the claimant, recommended an MRI, and took him off work. See Exhibit 7. The claimant testified that

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kent Buerk

Injury No.: 09-019616

between February 13, 2009 and March 24, 2009 he did not work or receive a salary or temporary

total disability benefits and testified that he could not work during this period. After the MRI, the

claimant went to Dr. Coyle on April 22, 2009, who took a medical history of the February 2009

work-related injury and a history of prior lumbar surgeries in 2007. He noted the claimant's

complaints of neck pain, bilateral upper extremity pain and tingling as well as pain in the lumbar

spine and posterior thigh pain. He noted a disc protrusion at C5-6. He recommended further

conservative treatment and epidural steroid injection. He limited the claimant to 20 pounds

lifting. Dr. Coyle opined that the February 2009 work-related injury was the prevailing cause of

the claimant's current condition and need for treatment. See Exhibit 8.

Dr. Coyle provided medical care for the claimant's condition from April 22, 2009,

through November 30, 2010 at which point Dr. Coyle opined that the claimant was at maximum

medical improvement. See Exhibit 8. The parties stipulated the claimant attained at maximum

medical improvement on November 30, 2010. During this period he was not released to

unrestricted work and no work within the varied limitations was offered by Employer. See

Exhibit 28.

On April 29, 2009, Dr. Gregory Smith performed a right C6 selective nerve root injection

under fluoroscopy and diagnosed C5-6 disc herniation with right cervical radicular pain

overlapping C6 pattern. See Exhibit 9.

Dr. Coyle referred the claimant to Dr. Doll, an orthopedist, for management of

conservative treatment and injections. Dr. Doll provided medications, exercise programs, and

therapy from May through August 2009. See Exhibit 10. On June 4, 2009, a lumbar spine MRI

of the lumbar spine revealed a central annular tear at L4-5 with a broad based disc bulge and

facet degenerative changes resulting in mild to moderate neuroforaminal encroachment without

central canal compromise and a lateralized disc herniation at L5-S1 resulting in severe right

neuroforaminal encroachment and degenerative changes resulting in moderate to moderately

severe left neuroforaminal encroachment without central canal compromise. See Exhibit 11. On

September 29, 2009, Dr. Coyle examined the claimant and recommended cervical spine surgery,

because conservative treatment had not relieved the claimant's cervical spine problems and

radiculopathy. See Exhibit 8.

On October 20, 2009, Dr. Coyle performed an anterior cervical discectomy and

arthrodesis at C5-6 with Synthes machined allograft spacer, infuse bone morphogenic protein &

Slim-Loc anterior cervical plate for a C5-6 cervical disk prolapse with cervicalgia and right upper

extremity radiculopathy. See Exhibits 8, 14. On November 9, 2009, Dr. Coyle examined the

claimant, prescribed medication, and directed him to return in a month. See Exhibit 8.

On December 8, 2009, Dr. Coyle examined the claimant and reviewed the claimant's

history of prior low back surgeries and the onset of new back symptoms after the accident. He

interpreted the June 5, 2009, lumbar spine MRI to reveal a recurrent herniation of L5-S1 right

and annular tear and disc prolapse at L4-5. Dr. Coyle recommended a new MRI. On December

16, 2009, Dr. Coyle reviewed the additional diagnostic study and opined that the claimant had

pre-existing degenerative lumbar spine changes and pre-existing post-surgical changes. He

opined that the February 13, 2009, work injury was the prevailing factor causing the claimant's

current symptoms which were related to the recurrent herniation at L5-S1. Dr. Coyle also opined

WC-52-B1 (6-81)

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that if the claimant had surgery, he would need a lumbar fusion because he had already had two prior surgeries at L5-S1 and because of the problems at L4-5 this would need to be incorporated. He referred claimant to Dr. Doll for consideration of epidural steroid injections and physical therapy. He noted the claimant was off work due to his cervical spine. See Exhibit 8.

On January 6, 2010, Dr. Doll conducted an extensive physical evaluation and review of diagnostic studies relating to the claimant's low back and found:

Complaints are low back pain with radiation down the right leg to his heel, occasional left leg symptoms. Right foot feels tingly. Difficulty w/ ROM of his low back. Taking Tylenol extra strength 4 X day. Has used Cyclobenzaprine to help with sleep. Lumbar MRI study with \& without contrast done 12/8/2009 showed post-operative ch