Richard Schroeder v. Applied Turf Products, LLC

1. Are any benefits awarded herein? No
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: November 5, 2009
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 employee, a truck driver, fell five feet off a ladder exacerbating his neck, left trapezius muscle, headaches, and vertigo conditions.
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, psychiatric condition
14. Nature and extent of any permanent disability: 5\% Permanent partial disability of the neck and 5\% permanent partial disability for psychiatric condition
15. Compensation paid to-date for temporary disability: Not Determined
16. Value necessary medical aid paid to date by employer/insurer: Not Determined

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 576.99
3. Weekly compensation rate: $\ 384.66
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

TOTAL:

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, Esq.

Employee: Richard Schroeder

Injury No.: 09-110444

Dependents: N/A

Employer: Applied Turf Products, LLC (Settled)

Additional Party: Second Injury Fund

Insurer: Secura Insurance, A Mutual Company (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kr

This workers' compensation case requires a determination of Second Injury Fund liability arising out of a work-related injury in which the claimant, a truck driver, aggravated his prior disc osteophyte complexes and suffered head aches and vestibular dysfunction when he fell while a ladder kicked out from underneath him causing an increase neck pain, dizziness, and headaches. The sole issue for determination is Second Injury Fund liability. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and depositions and reports from David T. Volarich, D.O., Wayne A. Stillings, M.D., and Delores Gonzalez, there claimant's Workers' Compensation settlements with his employer, and various medical records. The defense offered no evidence beyond cross-examination of the claimant.

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 November 5, 2009, the claimant, a truck driver, aggravated his prior disc osteophyte complexes and suffered head aches and vestibular dysfunction when he fell from a ladder causing an increase neck pain, dizziness, and headaches. The claimant complained of right hip pain and an increase in headaches and dizziness. The claimant returned to work, following his fall. In a follow-up visit on March 8, 2010, the claimant indicated there was no change in his symptoms, was released to full duty without working at heights, and returned to work.

Dr. Volarich examined the claimant and diagnosed: (1) Cervical left arm radicular syndrome secondary to irreversible aggravation of disc osteophtyte C4-5, C5-6, and C6-7 causing extremity and shoulder girdle radiculopathy - S/P anterior cervical discectomy with fusion and instrumentation C4-5, C5-6, and C6-7 and (2) Posttraumatic headaches and vestibular dysfunction causing dizziness. See Exhibit 3. He rated the claimant's permanent partial disabilities from the occurrence at 5 % of the body as a whole rated at the cervical spine, due to aggravation of his cervical syndrome and left upper extremity radicular symptoms and

paresthesias, and (2) 5 % of the body as a whole rated at the central nervous system, due to the aggravation of posttraumatic headaches and vestibular dysfunction. See Exhibit 3.

The claimant settled his workers' compensation claim with the employer on the basis of a 10 % permanent partial disability to the body as a whole ( 40 weeks). One half of the disability was attributed to his neck and the other half of the disability was attributed to a psychological condition. See Exhibit C.

The claimant sustained a subsequent work related injury. On March 3, 2011, while installing a rotor weighing about 45 pounds on a shaft, claimant fell backwards, striking steel and the rotor crushed his left little finger. He filed a workers' compensation claim and received medical treatment for his left little finger injury. The claimant ultimately settled his workers' compensation claim with his employer on the basis of a 121 / 2 % permanent partial disability to his left hand and a 71 / 2 % permanent partial disability based on a psychiatric disability. See Exhibit 4. The claimant continues to have difficulty with his left hand including stiffness, disfigurement and pain related to weather changes.

On July 17, 2009, claimant was in a motor vehicle accident and sustained injuries to his head and neck. He was diagnosed with posttraumatic headaches and posttraumatic vestibular dysfunction causing dizziness. As a result of this occurrence, Dr. Volarich diagnosed: (1) Cervical radiculopathy, left greater than right upper extremity due to irreversible aggravation of disc osteophtyte complexes C4-5, C5-6, and C6-7- S/P anterior cervical discectomy with fusion and instrumentation C4-5, C5-6, and C6-7 with partial C5 corpectomy, and (2) Posttraumatic headaches and vestibular dysfunction. See Exhibit 3.

Dr. Volarich evaluated the claimant on three occasions, July 28, 2010, November 4, 2011, and December 14, 2012. Dr. Volarich reviewed numerous records including diagnostic studies, operative reports, and treatment records and conducted a physical examination. He also performed numerous range of motion tests, both passive and active. See Dr. Volarich deposition pages 5-7. He also reviewed Dr. Stillings' report and the vocational report from Ms. Gonzalez. Dr. Volarich opined, "When you included psychiatric disabilities and his physical disabilities, he's permanently and totally disabled as a result of the combination of all his medical conditions." See Dr. Volarich deposition, page 10. He also testified:

Q. Dr. Volarich, when did Mr. Schroeder reach MMI in regards to his July $17^{\text {th }}$, '09, in jury? ...

A. It looks like on August 28, 2012. That's when he was released by Dr. Riew.

Q. Okay. And so those were after his ... 11/2/09 and His 3/3/11 injury?

A. Yes.

Q. So before those two injuries I just spoke of, he was not at MMI in regards to the 7/17/09 injury, correct?

A. Correct.

Q. And I understand you're saying combination with the physical and orthopedic; however, would you agree that the orthopedic standing alone regardless of any psychiatric disabilities, the orthopedic disability from the July 17, 2009 injury standing alone renders him permanently and totally disabled?

A. From just a physical standpoint, yes. See Dr. Volarich deposition, pages 10,11 .

Wayne T. Stillings, M.D.

On February 7, 2013, Dr. Stillings evaluated claimant for psychiatric disability after reviewing medical records, taking a medical history, and conducting a mental status examination. Dr. Stillings performed numerous tests on the claimant including the MMPI-2 test, MCMI-III, WTAR and WRAT3. Dr. Stillings diagnosed:

The three work injuries are the prevailing factors in causing Mr. Schroeder a mood disorder with an associated 10 % psychiatric permanent partial disability of the body as a whole, residual symptoms from a head injury with an associated 10 % psychiatric permanent partial disability of the body as a whole, and a pain disorder with an associated 5 % psychiatric permanent partial disability of the body as a whole;

Mr. Schroeder has the following pre-existing psychiatric disorders and disabilities:

(A) Low IQ with poor education achievement with an associated 15\% psychiatric permanent partial disability of the body as a whole. (B) Personality disorder with an associated 5 % psychiatric permanent partial disability of the body as a whole.

The two work injuries of 07/17/2009 and 11/05/2009 were hindrances or obstacles to employment/re-employment and combine synergistically with each other and with the 03/2011 work injury, causing Mr. Schroeder to be permanently and totally disabled from the work force. See Dr. Stillings deposition, page 9.

Dr. Stillings testified that the MMPI-2 and the MCMI-III give information about a person's personality and that those tests confirm pre-existing personality disorder.

On February 15, 2013, Delores Gonzalez, CRC, performed a vocational rehabilitation evaluation. She reviewed all of the medical records, performed a social and vocational history, educational history, conducted a client interview, vocational history and obtained the activities of daily living. She testified that the claimant's "impairments have severely compromised his a