Tim Johnson v. DIRECTV Home Services

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: December 19, 2012
5. State location where accident occurred or occupational disease was contracted: Camden 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: See Award
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: Low back, right ankle
14. Nature and extent of any permanent disability: 35 % body regarding low back; 10 % right ankle
15. Compensation paid to-date for temporary disability: $\ 31,797.66
16. Value necessary medical aid paid to date by employer/insurer? $\ 39,279.61

Employee: Tim Johnson Injury No. 12-100647

1. Value necessary medical aid not furnished by employer/insurer? - 0 -
2. Employee's average weekly wages: $\ 994.13
3. Weekly compensation rate: $\$ 662.75 / \ 433.58
4. Method wages computation: By agreement

1. Amount of compensation payable: Employer/Insurer $=\ 67,421.69 ( 35 % body and 10 % right ankle)
2. Second Injury Fund liability: $\quad 155.5 weeks at \$ 229.17=\ 35,635.94

$\ 662.75 from December 10, 2016 (155.5 weeks from December 17, 2013)

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 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: Ryan Murphy.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on March 15, 2017. Memoranda were submitted by April 14, 2017.

The parties stipulated that on or about December 19, 2012, the claimant, Tim Johnson, was in the employment of DirecTV Home Services (DirecTV). Mr. Johnson sustained an injury by accident; the accident arose out of and in the course of employment. The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by Liberty Mutual Insurance Company. The employer had notice of the injury. A claim for compensation was timely filed. The claimant's average weekly wage was $\ 994.13; the corresponding rate of compensation is $\ 662.75 per week for temporary total and permanent total disability benefits and $\ 433.58 per week for permanent partial disability benefits. Temporary disability benefits have been provided in the amount of \$31,797.66, paid through December 17, 2013. Medical aid has been provided in the amount of $\ 39,279.61.

The issues to be resolved by hearing include 1) the nature and extent of permanent disability and the liability of the employer/insurer therefor, 2) the liability of the Second Injury Fund, and 3) the liability of the employer/insurer for future medical treatment.

The parties have stipulated to a date of maximum medical improvement of December 17, 2013.

The claimant, Timothy Johnson, testified that he was 48 years old as of the date of hearing. Mr. Johnson did not graduate from high school but attended the tenth grade. Mr. Johnson did not receive a GED. Mr. Johnson said that his work with DirecTV as a satellite technician involved the installation and repair of television dishes. Mr. Johnson fell on the evening of December 19, 2012, at about 6:30 pm in a customer's yard; according to Mr. Johnson it was dark and he was using a headlamp to see and the customer's yard was very cluttered.

Mr. Johnson injured his right foot, right buttock, and low back. After receiving initial medical treatment, Mr. Johnson was referred to Dr. Lennard who treated Mr. Johnson with spinal injections, a TENS unit, physical therapy, and pain management. Mr. Johnson was also referred to Dr. Salim Rahman who performed a microdiscectomy at L5-S1, followed by more physical therapy and pain medications. On December 17, 2013, Mr. Johnson was released from treatment.

Mr. Johnson testified that he took no pain medication prior to December 19, 2012, and now takes Norco, acetaminophen, and ibuprofen daily for his low back injury of 2012. These prescriptions are now provided by Mr. Johnson's primary care physician. Mr. Johnson testified to constant pain in his low back and right buttock and occasional pain in the right foot and leg. In his deposition testimony, Mr. Johnson said that sitting up straight causes back pain as do activities like showering or putting on shoes. His back pain was described by Mr. Johnson in his deposition testimony as at an eight for his back and at a six or seven for his right leg. Mr. Johnson said that he has not worked since March of 2013, when he was taken off of light duty by DirecTV, due to his pain and his need to lie down two to three times during the day. Mr. Johnson said that lying down flat on his back or lying in a flat recliner alleviates his back pain and that he will lie down for 45 minutes to an hour at a time. Mr. Johnson said that sitting up or walking for more than 30 minutes increases his pain to the point where he needs to lie down.

Mr. Johnson testified that when he was two years old he fell, severing the muscles in his right leg below his right buttock. During surgery to repair the muscles, a nerve was nicked resulting in paralysis of the right leg. Mr. Johnson testified to multiple surgeries as well as consistent medical treatment for the next ten to twelve years. Mr. Johnson wore a brace for the next ten years for stability and because he had a drop foot. Mr. Johnson said that he was teased as a child and called names like "squeaky" because his brace squeaked. Mr. Johnson said that he suffered from anxiety and began drinking. At the age of 35 Mr . Johnson was put on a permanent regimen of Xanax and has not had anything alcoholic to drink since then. Mr. Johnson said that the right leg never regained full function and mobility and that he cannot rotate the right ankle.

Mr. Johnson discussed having symptoms in his low back and right buttocks prior to 2012, but said that he never needed prescription medication or injections prior to 2012 to control his symptoms. Similarly, Mr. Johnson was able to control his anxiety and sleep difficulties with medication prior to 2012, but now has anxiety and trouble sleeping despite the continued use of the same medication.

Mr. Johnson's work history prior to 2012 includes work in construction framing houses; Mr. Johnson said that he could not climb on a roof without decking due to his right leg and foot injury and that he was fired from the construction job as a result. As a welder, Mr. Johnson would add cardboard or mats to stand on to make it easier to stand on his right leg and foot; Mr. Johnson said that his work was slower and that he took more breaks. Mr. Johnson also worked as a truck driver prior to his 2012 accident and injury; Mr. Johnson was not able to work as a truck driver after he began taking anti-anxiety medications pursuant to Department of

**Employee:** Tim Johnson

**Injury No.:** 12-100647

Transportation regulations; Mr. Johnson also testified that he had difficulty keeping his right foot on the gas pedal for extended periods of time when he was truck driving. Mr. Johnson began work for DirecTV in 2010, installing and repairing satellite televisions. Mr. Johnson said that he had trouble climbing on roofs and balancing on ladder rungs prior to his 2012 accident and injury and preferred "pole mounts" to "roof mounts".

Dr. Ted Lennard's records reflect his treatment of Mr. Johnson from March 12, 2013, through April 2, 2014. In the notes for April 2, 2014, Dr. Lennard opined to a 15 percent permanent disability as the result of Mr. Johnson's L5-S1 right hemi-microdiscectomy. Dr. Lennard also imposed permanent lifting restrictions of 25 pounds and recommended against prolonged bending. Dr. Lennard does not mention disability or restrictions pertinent to the right foot.

Dr. Robert Paul, medical doctor, testified by deposition that he evaluated Mr. Johnson on April 16, 2014, and issued reports pertaining to his evaluation on June 20, 2014, and April 11, 2015. Dr. Paul opined that Mr. Johnson has a permanent disability of 25 percent of the body attributable to the low back and 10 percent of the right ankle at the 155 week level as the result of the accident and injury of December 19, 2012, as well as preexisting disability of 20 percent of the right knee due to sciatic nerve damage, and 20 percent of the right ankle at the 155 week level due to the fusion surgery and tenodesis of the Achilles heel. Dr. Paul found the 2012 injury and the preexisting injuries to combine synergistically to make Mr. Johnson more disabled. Dr. Paul also provided a functional ability statement in which he restricted Mr. Johnson to no more than two hours of standing or walking in an eight-hour day as well as no sitting for more than four hours in an eight-hour day. Dr. Paul restricted Mr. Johnson to lifting or carrying no more than ten pounds for 2.5 hours in an eight-hour work day. Dr. Paul imposed other restrictions on Mr. Johnson including no significant climbing, balancing, stooping, bending, kneeling, crouching, or crawling. Dr. Paul also found it necessary for Mr. Johnson to lie down during the day to relieve pain associated with standing, which caused pain in the right foot and low back, and sitting, which caused pain in the low back. Dr. Paul stated that after reviewing the reports of Phillip Eldred, a vocational rehabilitation specialist, and Dr. Halfaker, a neuropsychologist, he believed Mr. Johnson to be permanently and totally disabled as the result of the December 19, 2012 accident and injury combined with Mr. Johnson's preexisting injuries and medical conditions. Dr. Paul conceded that Mr. Johnson did not appear to have to recline during the day prior to the December 19, 2012 accident and injury. Dr. Paul indicated that Mr. Johnson's limitations in balancing, stooping, kneeling, crouching, and crawling as well as ten-pound lifting limitation were due to both the preexisting injuries as well as those resulting from the December 19, 2012 accident. With regard to additional medical treatment, Dr. Paul stated in his report that Mr. Johnson would need to be on anti-inflammatory and non-narcotic pain medications as well as muscle relaxers for two years. Dr. Paul also noted that Mr. Johnson should be weaned off of narcotic medications.

Phillip Eldred, vocational rehabilitation consultant, testified by deposition that he evaluated Mr. Johnson on November 11, 2014, and issued reports based thereon on December 16, 2014, and March 27, 2015. Mr. Eldred concluded that Mr. Johnson is unemployable as the result of his December 19, 2012 accident and injury in combination with his preexisting injuries and medical conditions. Mr. Eldred considered the damage to the sciatic nerve and the generalized anxiety.

and depression to be Mr. Johnson's preexisting obstacles to employment. Mr. Eldred felt that Mr. Johnson's need to lie down during the day would negate employment. Mr. Eldred said that Mr. Johnson would not be able to return to his work as a satellite installer or any of his previous jobs as a garbage collector, tractor-trailer truck driver, material handler, arc welder, construction worker, or truck driver based on the restrictions imposed on him by Dr. Lennard or Dr. Paul.

Dr. Dale Halfaker, neuropsychologist, testified by deposition that he believed Mr. Johnson to have a permanent disability of 10 percent of the body attributable to a generalized anxiety disorder, panic attacks and alcohol dependency in remission preexisting the December 19, 2012 accident and injury. During cross-examination Dr. Halfaker admitted that Mr. Johnson had no work restrictions as the result of his psychological problems while employed at DirecTV. Dr. Halfaker acknowledged that Mr. Johnson had been sober for 11 years when he saw him in 2015 and that Mr. Johnson's alcohol use disorder or dependency appeared to be in full remission. Dr. Halfaker admitted that Mr. Johnson's depression manifested itself post injury of 2012 and that Mr. Johnson had no symptoms of depression prior to 2012.

Benjamin Hughes, certified rehabilitation counselor and licensed practitioner of vocational rehabilitation, testified by deposition that he reviewed all relevant records to determine Mr. Johnson's employability, but that he did not meet with him in person. Mr. Hughes described Mr. Johnson's work for DirecTV as in the heavy demand category, which is defined in the DOT as exertion of 50 to 100 pounds occasionally and 25 to 50 pounds frequently. Mr. Hughes concluded that Mr. Johnson would be well qualified for positions such as parking lot attendant as well as ticket sales and taking tickets. Mr. Hughes considered these jobs appropriate for Mr. Johnson because they are sedentary in nature and provide freedom for the employee to stand and sit at will. Mr. Hughes acknowledged that Mr. Johnson's need to lie down or recline during the day would effectively take him out of the job market.

RSMo Section 287.220.2 All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted

from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section $\underline{287.200}$ out of the second injury fund.

The claimant, Tim Johnson, has sustained his burden of proof that he has a permanent disability of 35 percent of the body attributable to the low back and 10 percent of the right ankle as the result of the accident and injury of December 19, 2012. This opinion is based on the testimony of Mr. Johnson as well as the opinions of Dr. Paul and Dr. Lennard.

The claimant, Timothy Johnson, has sustained his burden of proof that he is permanently and totally disabled as the result of the combination of his December 19, 2012 injuries to his low back and right ankle injury combined with his preexisting right knee and right ankle injuries. Mr. Johnson testified extensively with regard to the problems posed by his childhood injuries to his right leg and right ankle, including the use of a brace and the need to support and stabilize the right leg and foot. Mr. Johnson testified to the limitations his combined injuries had on jobs such as truck driving. Mr. Johnson also testified to his need to lie down sporadically throughout the day to relieve his back pain. Dr. Paul cited the low back and the right foot injuries as the cause of Mr. Johnson's need to lie down for pain relief during the day. Even Dr. Hughes admitted that the need to lie down during the day would be inconsistent with a job in the marketplace. The opinions of Dr. Paul and Mr. Eldred also support the position that Mr. Johnson is not employable in the open labor market as the result of the injuries from his 2012 accident combined with his preexisting injuries.

Mr. Johnson has failed to sustain his burden of proof that he is entitled to future medical treatment where his own physician, Dr. Paul, stated in a June 2014 report that medications would only be appropriate for two more years and that the use of narcotic medication should be discontinued. Documentation of Mr. Johnson's need for medications prior to June of 2016 is not relevant to his claim of a need for future medical treatment given Dr. Paul's analysis of his future medical needs.

Made by:

HANNELORE D. FISCHER

Administrative Law Judge

Division of Workers' Compensation