Billy Davis v. Enerfab, Inc.

symptoms per day, which is more than what he was taking before the November 2011 work injury. The fact that taking hydrocodone may also benefit employee's earlier injuries is, as the Tillotson court makes clear, irrelevant. Meanwhile, Dr. Volarich's recommendations for future medical treatment in 2013, while substantially similar, are not identical to those he provided in 2004. Specifically, in 2013, Dr. Volarich recommended, for the first time, consideration of a TENS unit and radiofrequency ablation procedures if employee experiences a worsening of his symptoms referable to lumbar radicular syndrome.

For the foregoing reasons, we do not discern a compelling reason to disturb the administrative law judge's award of future medical treatment. We do note that it would appear, given employee's concessions in his brief, that the issue of future medical treatment in this case may be susceptible to final resolution by entry of a stipulation for compromise settlement closing out the award of future medical treatment.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Maureen Tilley, issued January 12, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 $\qquad 14^{\text {th }}$ day of September 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Billy Davis

Injury No. 11-105117

Dependents: N/A

Employer: Enerfab, Inc.

Additional Party: Second Injury Fund

Insurer: Continental Casualty Company c/o Claims Plus, Inc.

Hearing Date: 10-7-2015

Checked by: MT/kg

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: November 26, 2011.
5. State location where accident occurred or occupational disease was contracted: New Madrid County, Missouri.
6. Was the employee in the employ of above employer at time of alleged incident 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 the employer insured by above insurer? Yes.
11. Describe work Employee was doing and how accident occurred or occupational

disease contracted: The employee was riding an elevator on the premises of his work site; the elevator malfunctioned and the employee fell.

1. Did accident or occupational disease cause death? No.
2. Part(s) of body injured by accident or occupational disease: Left and right hip, body as a whole referable to low back, and body as a whole referable to ventral hernia.
3. Nature and extent of any permanent disability: See findings.
4. Compensation paid to date for temporary total disability: $\ 38,151.31
5. Value of necessary medical aid paid to date by employer: $\ 10,336.81
6. Value of necessary medical aid not furnished by employer-insurer: N/A.
7. Employee's average weekly wage: $\ 1,665.33.
8. Weekly compensation rate: $\ 811.73 for TTD/PTD; $\ 425.19 for PPD.
9. Method of wage computation: By agreement of parties.
10. Amount of compensation payable for permanent partial disability: See findings.
11. Second Injury Fund Liability: Payment of $\ 811.73 per week for the lifetime of the employee.
12. Future requirements awarded: See findings.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: William Beatty

On October 7, 2015, the employee, Billy Davis, appeared in person and with his attorney, William Beatty, for a hearing for a final award. The employer was represented at the hearing by its attorney, Randee Schmittdiel. The Second Injury Fund was represented by Assistant Attorney General, Crystal Williams. By agreement of the parties, the record was left open until October 14, 2015, in order for Employee to offer medical exhibits. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer-Insurer was a covered employer and duly insured under the Missouri Workers' Compensation Act.
2. Covered Employee: Employee was a covered employee under the Missouri Workers' Compensation Act.
3. Accident: The parties agree that Employee was involved in an accident on November 26, 2011, while working for Employer-Insurer that arose out of and was in the course of his employment.
4. Notice: The parties agree that Employer-Insurer had proper notice of the accident.
5. Statute of limitations: The parties agree that the Claim for Compensation was filed within the time prescribed by law.
6. Average weekly wage and rate: At the relevant time, Employee earned an average weekly wage of $\ 1,665.33 resulting in applicable rates of compensation of $\ 811.73 for temporary total disability and permanent total disability benefits. The compensation rate for permanent partial disability benefits is $\ 425.19.
7. Medical aid furnished by Employer-Insurer: Employer-Insurer paid \$10,336.81 in medical benefits.
8. Temporary disability paid by Employer-Insurer: Employer-Insurer paid \$38,151.31 for 49 weeks from June 13, 2012, to May 17, 2013, for temporary total disability benefits.

1. Medical causation: Are Employee's injuries and continuing complaints medically causally connected to his alleged accident?
2. Claim for additional or future medical aid: Is Employer-Insurer liable for future medical?
3. Permanent total disability: Is Employee entitled to permanent total disability from Second Injury Fund?
4. Permanent partial disability: Is Employee entitled to permanent partial disability from Employer-Insurer and/or Second Injury Fund?

The following exhibits were offered and admitted into evidence:

1. Certified Stipulations for Compromise Settlement from the Missouri Division of Workers' Compensation
2. Certified Settlement Contract and Lump Sum Petition and Order, Illinois Workers' Compensation Commission 10-WC-45848
3. Report of Dr. David Volarich (December 26, 2013)
4. Report of Dr. David Volarich (April 29, 2004)
5. Deposition of James England (June 17, 2015)
6. Employee Medical Records

The employer-insurer and the Second Injury Fund did not offer any exhibits into evidence.

Employee is a fifty-three year old boilermaker who had worked out of the union hall for various employers since 1997. On November 26, 2011, he was working as a union boilermaker at the New Madrid power plant for Employer-Insurer. At the time of the accident, Employee was in an elevator with fifteen other workers going up to his work site. Between the fourth and fifth floors, the elevator failed and dropped approximately forty to fifty feet. It took a while to rescue everyone from the elevator. All the workers, including Employee, were taken to Missouri Delta Medical Center.

On November 26, 2011, Employee was seen in Missouri Delta Medical Center emergency room with complaints to his low back and left hip that radiated down his leg. He reported improvement after receiving an injection. He was discharged and told to rest and use ice packs.

Employee received follow-up treatment from his primary care physician, Dr. Lum. He reviewed an MRI that was performed on December 6, 2011. That study did not show a new and/or acute injury. It indicated postoperative changes of the partial left-sided hemilaminectomy at the L3-4 and L4-5 levels with slight retrolisthesis of the L3 on the L4 vertebral body by 1-2mm. There was also some scar tissue surrounding the operative site. There was no evidence of central canal stenosis, disc protrusions or herniations. Based on this study, Dr. Lu