David Sanderson v. Dolgencorp, Inc.

Employee: David Sanderson

Employer: Dolgencorp, Inc.

Additional Party: Second Injury Fund

Insurer: Self-insured

Hearing Date: April 4, 2017

Injury No. 09-108286

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/cs

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: October 27, 2009.
5. State location where accident occurred or occupational disease was contracted: Callaway 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 is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee was loading cardboard into a baler as part of his work for Employer; while performing this work task, Claimant picked up a large load of cardboard, twisted to put the load into the baler, and noted immediate pain in his lower back.

1. Did accident or occupational disease cause death? No. Date of death? N/A.
2. Part(s) of body injured by accident or occupational disease: Low back, body as a whole.
3. Nature and extent of any permanent disability: 20 % permanent partial disability of the body as a whole due to the October 27, 2009 accident; Employee is totally and permanently disabled.
4. Compensation paid to-date for temporary disability: None.
5. Value necessary medical aid paid to date by employer/insurer? None.

1. Value necessary medical aid not furnished by employer/insurer: 18,160.97.
2. Employee's average weekly wages: 536.83.
3. Weekly compensation rate: $357.89.
4. Method wages computation: Stipulation.

1. Compensation payable from Employer and Insurer: $28,631.20

Employer is also ordered to provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required to cure and relieve Claimant from the effects of the work-related injury.

1. Second Injury Fund liability:

Permanent total disability benefits of $357.89 per week, beginning July 19, 2011, for Claimant's lifetime.

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:

R. L. Veit

Employee: David Sanderson

Injury No. 09-108286

Dependents:

Employer: Dolgencorp, Inc.

Additional Party: Second Injury Fund

Insurer: Self-insured

Hearing Date: April 4, 2017

An evidentiary hearing was held in this case on April 4, 2017, in Jefferson City. David Sanderson ("Claimant") appeared personally and by counsel, Rudy Veit. Dolgencorp, Inc. ("Employer") appeared by counsel, Jeffrey Mullins. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by counsel, Eric Doner, Assistant Attorney General. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on May 9, 2017. The hearing was held to determine the following issues:

1. Whether Employee sustained a compensable accident or occupational disease arising out of and in the course of his employment with Dolgencorp, Inc. on or about October 27, 2009;
2. If found to have been sustained, whether the work-related accident or occupational disease is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
3. Employer's liability, if any, for temporary total disability benefits;
4. Employer's liability, if any, for permanent partial disability benefits or permanent total disability benefits;
5. Employer's liability, if any, to reimburse Claimant for medical bills incurred before October 27, 2010 and after May 30, 2012;
6. Employer's liability, if any, to provide Claimant with future medical benefits pursuant to $\S 287.140$, RSMo; and
7. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits.

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 Callaway County and adjoining counties, including Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the average weekly wage is $\ 536.83, with compensation rates of $\ 357.89 for temporary total disability and permanent total disability and $\ 357.89 for permanent partial disability;
6. That Employer has paid no benefits under Chapter 287, RSMo;
7. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein; and
8. That Dolgencorp, Inc. was an authorized self-insurer for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of David Sanderson ("Claimant"), and the following exhibits:

Employee's Exhibits 1-9.

Exhibit 1 Claim for Compensation and Amended Claim for Compensation

Exhibit 2 03/04/14 Deposition of David Volarich, M.D. with attached exhibits

Exhibit 3 Notice of Filing of Medical Report Pursuant to Section 287.210 of Dr. Volarich Report dated March 23, 2015

Exhibit 4 09/25/14 Deposition of Gary Weimholt with attached exhibits

Exhibit 5 11/09/16 Deposition of Gary Weimholt with attached exhibits

Exhibit 6 Prior Workers' Compensation Records

Exhibit 7 Photograph of Cardboard Sheets on Rolltainer, undated

Exhibit 8 Social Security acceptance

Exhibit 9 First Report of Injury

Employer's Exhibits A-C.

Exhibit A 06/21/10 Deposition of David Sanderson

Exhibit B 09/07/16 Deposition of Terry Cordray

Exhibit C Division of Employment Security record dated 03/24/10

The Second Injury Fund Exhibits I and II.

Exhibit I 11/26/14 Deposition of David Sanderson

Exhibit II 02/02/16 Deposition of James M. England

Claimant testified to being sixty-five (65) years old as of the date of the hearing. He was born on September 22, 1951. Claimant began working for Employer, DOLGENCORP, INC ("Dollar General"), in early February, 2006. Claimant was employed as a warehouse worker at the Dollar General Distribution Center in Fulton, Missouri. Claimant typically worked Monday through Thursday with normal work hours of 6:00 am to 4:30 pm. Claimant worked overtime and sometimes worked on Fridays. Claimant's rate of pay was $\ 13.10 per hour.

Claimant testified he was injured while working for Dollar General on October 27, 2009. On the day in question, Claimant testified that he was working loading cardboard into a baling machine. Claimant stated that the injury occurred when he picked up a heavy load of cardboard, twisted to put it in the baler, and injured his back. Claimant testified that he felt immediate pain in his back. Claimant testified that he told his Supervisor, Norm, about the accident approximately 15 minutes after it happened. Claimant did finish his work shift that day. That was the last day Claimant worked for Dollar General or at any employer.

Claimant contacted his personal physician, Dr. Wells, at Callaway Physicians in Fulton Missouri. Claimant testified that he saw Dr. Wells who prescribed physical therapy. Claimant completed that physical therapy at Callaway Hospital Rehab. Claimant testified that after rehab he was still having pain in his back. He testified to having x-rays and an MRI of the back. Medical records show x-rays of the back taken 10/30/09. The MRI was obtained on 12/09/09.

Claimant was seen by Dr. William Hopkins on 12/24/09 and noted back pain radiating into his right leg. Dr. Hopkins reviewed the treatment records and the films and recommended epidural steroid injection in the back. Claimant had the injection on 02/10/10.

Claimant applied for Unemployment Compensation in March 2010. Claimant testified he was granted those benefits and received them for about seven weeks. Claimant applied for and was granted Social Security benefits in April 2010. Claimant was deemed to be disabled for Social Security benefits as of October 28, 2009.

Claimant also treated with Dr. Joel Jeffries. He began treating with Dr. Jeffries on October 19, 2010. On that visit it was noted that Claimant was returning for care following his appointment with Dr. Hopkins in December 2009 and his subsequent injection. Dr. Jeffries' note specifically states that Claimant "enjoyed significant relief of his symptoms" following his epidural steroid injection. The note goes on to state Claimant had a friend pass away later in February, was lifting the casket as a pallbearer and "noted a resurgence of his discomfort." Dr. Jeffries provided additional treatment and a second injection.

Claimant was seen by Dr. Christopher Main for an IME on October 25, 2010. Dr. Main reported that Claimant had reached Maximum Medical Improvement from the alleged work injuries from October 2009. In fact, Dr. Main opined that the work at Dollar General and the alleged accident from October 2009 was not the prevailing factor in Claimant's condition. Dr. Main indicated that Claimant required no further medical care and no work restrictions. Dr. Main found Claimant to have suffered no ( 0 % ) permanent partial disability.

Claimant went an extended period of time following the IME with Dr. Main without additional medical treatment. Claimant did return to see Dr. Jeffries on May 30, 2012. Dr