Rodney Deckard v. Department of Natural Resources/State of Missouri

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-010994

**Employee:** Rodney D. Deckard

**Employer:** Department of Natural Resources/State of Missouri

**Insurer:** Central Accident Reporting Office/State of Missouri

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 February 21, 2018. The award and decision of Administrative Law Judge Gary L. Robbins, issued February 21, 2018, 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 15th day of June 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

**Employee:** Rodney D. Deckard

**Dependents:** N/A

**Employer:** Department of Natural Resources/State of Missouri

**Insurer:** Central Accident Reporting Office/State of Missouri

**Appearances:**

- Robert M. Ramshur, attorney for the employee.

- Crystal L. Williams, attorney for the employer-insurer.

**Hearing Date:** December 18, 2017

**Checked by:** GLR/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? February 24, 2015.
5. State location where accident occurred or occupational disease contracted: Wayne County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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.

Employee: Rodney D. Deckard

Injury No. 15-010994

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Mr. Deckard slipped on ice and injured his back.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Back and body as a whole.

1. Nature and extent of any permanent disability: 35% permanent partial disability.

1. Compensation paid to date for temporary total disability: $14,134.44

1. Value necessary medical aid paid to date by the employer-insurer: $164,250.59

1. Value necessary medical aid not furnished by the employer-insurer: N/A

1. Employee's average weekly wage: 579.74

1. Weekly compensation rate: 386.49 per week for all purposes.

1. Method wages computation: By agreement.

1. Amount of compensation payable: See Award.

1. Second Injury Fund liability: N/A.

1. Future requirements awarded: None. See Award.

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: Robert M. Ramshur.

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On December 18, 2017, the employee, Rodney D. Deckard, appeared in person and with his attorney, Robert M. Ramshur for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Assistant Attorney General Crystal L. Williams. 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 a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The Department of Natural Resources was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was duly qualified as a selfinsured employer.
2. On February 24, 2015, Rodney D. Deckard was an employee of Department of Natural Resources and was working under the Workers' Compensation Act.
3. On February 24, 2015, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 579.74, resulting in a compensation rate of $\ 386.49 for all purposes.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid $\ 164,250.59 in medical aid.
9. The employer-insurer paid $\ 14,134.44 in temporary disability benefits.
10. The employee had no claim for previously incurred medical bills.
11. The employee had no claim for mileage.
12. The employee had no claim for any temporary disability benefits.
13. The employee reached MMI on December 29, 2015.

1. Future Medical Care
2. Permanent Partial Disability

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

1. Medical report of Dwight I. Woiteshek, M.D.
2. Medical report of James J. Coyle, M.D.

1. Medical report of Robert J. Bernardi, M.D.
2. Medical records of James J. Coyle, M.D.
3. Medical records from Piedmont Family Clinic
4. Medical records from Mercy Clinic
5. Medical records of Ramis Gheith, M.D.
6. Medical records of Olive Surgical Group
7. Medical records from Poplar Bluff Rehabilitation
8. Medical records from FOCUS Physical Therapy
9. Medical records from Athletico Physical Therapy

Employer-Insurer Exhibits:

A. Medical records of Jimmy Bowen, M.D.

The employee, Rodney D. Deckard and his wife Edith J. Deckard were the only two witnesses to personally testify at trial. All other evidence was received in the form of medical records or medical reports.

Mr. Deckard is 51 years old. He and his wife Edith live together as man and wife with no dependent children. They have been married for 19 years.

Mr. Deckard was injured on February 24, 2015, while working for the Department of Natural Resources at Sam A. Baker State Park. He slipped on ice and injured his back. He worked in the maintenance department and testified that he did all the maintenance work prior to his accident. He testified that he was blessed to have good co-workers, as after his accident they allow him to do the easiest of jobs. Now he says he cannot do the maintenance jobs he did before and is essentially an errand boy. He indicated that he has easy jobs such as light electrical work, changing light bulbs and some bookwork.

Mr. Deckard testified as to the problems he was having:

-he is numb from the waist down and his legs give out.

-cannot climb ladders.

-cannot mow, as the tractor is too rough-it puts him in pain. He indicated that they let him mow a little but he goes home if he hurts too badly.

-he cannot pick up over 20 pounds without excruciating pain.

-cannot ride his 4 wheeler due to pain.

-he does not use his boat to fish and does not go hunting due to pain.

-on a good night, he gets 4 hours sleep. He moves to the couch due to pain.

-does not walk on stairs normally.

-he has trouble getting in and out of a shower.

Employee: Rodney D. Deckard

Injury No. 15-010994

-he does everything slower.

-after he gets home from work the first thing he does is use the hot tub and then sits in his recliner.

Mr. Deckard talked about his drug usage. He presently takes Advil. He testified that he does not take a prescription pain drug daily. He indicated that the last time he got a Hydrocodone prescription was in 2016 and that was for 12 pills. He indicated that he has some Hydrocodone left over and he takes it when he hurts really badly. He testified that he did not get his Hydrocodone prescription refilled in 2017. He stated that prior to his back surgery he took lots of Hydrocodone. His testimony was that he is worse since the surgery and that if he could do it all over again he would not have the surgery.

Mr. Deckard testified that he had another accident in 2016. His position was that that accident did not alter the problems he has from the 2015 accident. The evidence was that he was discharged from medical care after his 2016 injury due to a positive marijuana test.

Mr. Deckard testified that he is still working at Sam A. Baker Park and is still working at the same job. He works 8 hours a day 5 days a week. He testified that prior to the accident he worked 30 hours a week. He reported that since the accident and his surgery, he was promoted and now works 40 hours a week.

Ms. Deckard is the wife of Mr. Deckard. They have been married 19 years and have no dependent children.

Ms. Deckard testified that prior to his February 24, 2015 accident, her husband did everything around the house including getting wood for their wood stove. She also indicated that he had another part-time job taking care of a widow lady's property and repairs. She testified that prior to his 2015 accident, her husband never complained of any problems and did not take any medications. She indicated that they do not participate in their prior hobbies and activities: 4 wheeling, boating activities, and hunting. She indicated that her husband cannot do any of these activities because of pain.

Ms. Deckard testified that her husband only spends about half of a night in bed due to pain. She also indicated that she has to assist her husband with his shoes and pants.

Dr. Coyle treated Mr. Deckard and prepared a report dated September 15, 2016. He reported that Mr. Deckard was known to him, as he had treated him in the past. On May 29, 2015, Dr. Coyle performed a lumbar decompression and arthrodesis surgery at L3-4 and L4-5 due to Mr. Deckard's February 24, 2015 work accident. As of December 29, 2015, Mr. Deckard reported that he was doing great. Dr. Coyle released Mr. Deckard at MMI at that time.

As of September 15, 2016, Mr. Deckard reported that he was at work and fell on sawdust on August 16, 2016. Mr. Deckard reported that prior to this fall he did have some residual low back pain but was making it through workdays. He reported that prior to the August 2016 fall he was treating with Dr. Gheith and was receiving three Hydrocodone a day. He reported pain between

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Employee: Rodney D. Deckard

Injury No. 15-010994

his shoulder blades as a result of the August 2016 accident and indicated that nothing had changed as to his prior back condition.

Based on his complaints, Dr. Coyle indicated that a cervical MRI would be appropriate. Dr. Coyle indicated that Mr. Deckard is now taking Hydrocodone from Dr. Gheith, which he was not doing when he was released in December 2015. Dr. Coyle also indicated that there is really no change in his fusion status as per the films and that Mr. Deckard did not report any change in the status of his low back symptoms.

A cervical MRI was done as of September 26, 2016.

Dr. Bernardi saw Mr. Deckard for an Independent Medical Exam (IME) on August 2, 2016. He prepared a report dated August 2, 2016, and another dated November 26, 2016. In his November 26, 2016 report, he indicated that he reviewed a Functional Capacity Exam (FCE) that he ordered. The FCE reported severe overguarding and non-physiological findings. Dr. Bernardi reported that the quality of Mr. Deckard's effort or reliability of his pain descriptions were both abnormal. Dr. Bernardi indicated that these factors made the assessments of his physical abilities much more difficult. Dr. Bernardi pointed out that at the FCE Mr. Deckard exhibited ability to function at the light demand level, yet he was working without restrictions at the heavy demand level.

In his November 26, 2016 report, Dr. Bernardi suggested restrictions:

- avoid activities that require prolonged unsupported lumbar flexion.

- avoid repetitive waist-level bending/twisting movements.

- lifting 25 pounds on a repetitive basis and 50 pounds intermittently.

Dr. Bernardi indicated that he thought these restrictions were attributable to the February 2015 accident.

In Dr. Bernardi's August 2, 2016 report, he took a history from Mr. Deckard reviewing his accident and his pre and post surgical medical history and noted that he had a two level lumbar fusion surgery performed by Dr. Coyle on May 29, 2015. Mr. Deckard reported that he felt worse after the surgery than he did prior to the surgery. Mr. Deckard reported that his pain is much worse when he works. On December 29, 2015, Mr. Deckard reported that he was feeling great; therefore, Dr. Coyle released him at MMI.

Dr. Bernardi reported that as of January 27, 2016, Dr. Coyle rated Mr. Deckard as having a 25% permanent partial disability to his lumbar spine due to his accident. Dr. Bernardi also indicated that Dr. Bowen provided post surgical follow up care to Mr. Deckard; however, as of March 14, 2016, Dr. Bowen terminated their relationship due to a drug screen showing that Mr. Deckard was using marijuana.

Dr. Bernardi provided his opinions indicating that:

- Mr. Deckard has diagnoses of 1. Status-post anterior/posterior L3-5 decompression and instrumented fusions, 2. Multilevel lumbar degenerative disc disease (spondylosis), 3. Left L5

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Employee: Rodney D. Deckard

Injury No. 15-010994

pars interarticularis fracture (spondylolysis) and 4. Low back pain and non-dermatonal leg numbness of uncertain etiology.

-Mr. Deckard has disc disease above and below his fusion that are mild, age-appropriate, degenerative and unrelated to his work accident.

-the L5 pars fracture is suspected as a congenital fracture that develops in childhood and was not caused by his accident.

Dr. Bernardi reported multiple concerns about Mr. Deckard's presentation that concerned him. He indicated that Mr. Deckard has no objective abnormalities in his general physical examination other than his scars; there were no objective or subjective neurological findings. Dr. Bernardi reported that the most pronounced findings on his exam are non-physiological-he has Waddell's signs.

Dr. Bernardi opined that Mr. Deckard was at MMI and did not require any additional medical care due to his work accident. Dr. Bernardi did not provide any permanent partial disability ratings in either of his reports.

Dr. Woiteshek examined Mr. Deckard on November 16, 2016. He prepared a report dated November 23, 2016. As part of his evaluation, he obtained a medical history, performed a physical examination and examined medical records. An MRI was taken on April 16, 2015, that showed degenerated disc at L3-4 with disc herniation and an annular tear with displacement of the L4 nerve root. Dr. Coyle treated Mr. Deckard and performed a lumbar fusion surgery on May 29, 2015. Dr. Coyle performed a right L3-4 and L4-5 micro discectomy with anterior/posterior fusions at L3-4 and L4-5. On December 29, 2015, Dr. Coyle released Mr. Deckard to work at MMI with restrictions to observe normal safety precautions.

As of June 6, 2016, Dr. Gheith provided follow-up care due to back pain. Mr. Deckard was treated with work restrictions, medications and an epidural steroid injection. Dr. Gheith treated until June 28, 2016.

Dr. Woiteshek acknowledged that Mr. Deckard had prior back problems. A December 18, 2013 MRI showed degenerative disc disease at L3-4 and L4-5 with some prolapse at L4-5. Mr. Deckard reported that he returned to work without restrictions but he did wear a back brace and had episodic pain from time to time.

Dr. Woiteshek reported that Mr. Deckard was working full time maintenance at Sam A. Baker Park but was reporting pain and having problems with sitting, driving, standing, walking, lifting, carry, bending, reaching, pushing, pulling, climbing, squatting, and kneeling.

Dr. Woiteshek reported that:

-Mr. Deckard has reached MMI for his February 24, 2015 work-related injury.

-within reasonable probability, Mr. Deckard will require future medical treatment "to give comfort and relief if a cure is beyond avail." This future medical care may include pain management, pain management techniques, physical therapy, and medications, both over-the-counter and prescription.

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Employee: Rodney D. Deckard

Injury No. 15-010994

-Mr. Deckard has a 65% permanent partial disability of the body as a whole related to the lumbar spine.

-Mr. Deckard has a 10% permanent partial disability of the body as a whole at the lumbar spine due to the degenerative disc disease at L3-4 and L4-5 with some prolapse at L4-5. Dr. Woiteshek opined that this rating is due to a "relatively asymptomatic" condition of the lumbar spine prior to the February 24, 2015 accident.

RULINGS OF LAW:

Future Medical Care

Neither Dr. Coyle, Dr. Gheith nor Dr. Bernardi supported the employee's position that he needed future medical care to provide relief from his February 24, 2015 accident. Only Dr. Woiteshek supported the employee's position. The Court finds that the combined opinions of Dr. Coyle, Dr. Gheith and Dr. Bernardi are more reliable than the opinion of Dr. Woiteshek in this matter.

Based on a consideration of all of the evidence in the case, the Court finds that the employee has not provided credible evidence supporting his claim that he requires future medical care to cure and relieve the effects of his February 24, 2015 injury.

Permanent Partial Disability

Dr. Coyle opined that the employee has a 25% permanent partial disability as a result of his February 24, 2015 accident. Dr. Bernardi did not provide a permanent partial disability rating. Dr. Woiteshek opined that he employee has a total of a 65% permanent partial disability to his back, 55% from the February 24, 2015 accident and 10% due to his degenerative disc disease.

In their proposed findings, counsel for the employer-insurer suggested 27 1/2% permanent partial disability and counsel for the employee suggested 55% permanent partial disability.

Based on a consideration of all of the evidence in the case, the Court finds that the employee has a 35% permanent partial disability to his lumbar spine. The Court therefore orders that the employee be paid $54,108.60 as compensation for permanent partial disability due to his February 24, 2015 accident.

ATTORNEY'S FEE:

Robert M. Ramshur, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

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Employee: Rodney D. Deckard

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

I certify that on **2-21-18** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **__________________________**


Gary L. Robbins

Administrative Law Judge

Division of Workers' Compensation