Larry Barrett v. Office of Missouri Secretary of State

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 16-088246

**Employee:** Larry Barrett

**Employer:** Office of Missouri Secretary of State

**Insurer:** Central Accident Reporting Office

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 January 25, 2018. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued January 25, 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 19th day of July 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Larry Barrett

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Office of Missouri Secretary of State

Additional Party: N/A

Insurer: Central Accident Reporting Office

Hearing Date: January 8, 2018

Injury No.: 16-088246

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: HDF/scb

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 10, 2016
5. State location where accident occurred or occupational disease was contracted: Cole 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: Right hip; lumbar spine
14. Nature and extent of any permanent disability: 15 % right hip; 5 % body referable to the lumbar spine
15. Compensation paid to-date for temporary disability: - 0 -
16. Value necessary medical aid paid to date by employer/insurer? $\ 16,158.43

1. Value necessary medical aid not furnished by employer/insurer? - 0 -
2. Employee's average weekly wages: $\ 776.54
3. Weekly compensation rate: $\ 517.69 for TTD; $\ 477.33 for PPD
4. Method wages computation: By agreement

1. Amount of compensation payable: $\ 24,367.70 ( 15 % right hip and 5 % body referable to the lumbar spine)
2. Second Injury Fund liability: None
3. 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: Brad Medcalf.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on January 8, 2018. Memoranda were submitted by January 10, 2018.

The parties stipulated that on or about November 10, 2016, the claimant, Larry Barrett, was in the employment of the Office of the Missouri Secretary of State. Mr. Barrett sustained an injury by accident; the accident arose out of and in the course of employment. The employer was operating under the provisions of the Missouri workers' compensation law; workers' compensation liability was self-insured through the Central Accident Reporting Office. The employer had timely notice of the injury. A claim for compensation was timely filed. The claimant's average weekly wage was 776.54; the corresponding compensation rates are 517.69 per week for temporary total disability benefits and $477.33 per week for permanent partial disability. No temporary disability benefits have been paid. Medical aid has been provided in the amount of $16,158.43.

The issue to be resolved by hearing is the nature and extent of permanent disability.

The claimant, Larry Barrett, injured his right hamstring and low back on November 10, 2016, while assisting in moving a very heavy book press. Mr. Barrett was employed as a senior records analyst by the Office of the Missouri Secretary of State (Mo Sec'y of State). Mr. Barrett has been employed by the Mo Sec'y of State for over 33 years at the time of his hearing on this claim and continues to work as a senior records analyst for the Mo Sec'y of State. Mr. Barrett was 52 years old as of the date of hearing. Mr. Barrett had medical treatment, including surgery to repair the right hamstring and physical therapy to address both the right hamstring and low back. Dr. Mall performed the right hamstring surgery on December 8, 2016, and treated Mr. Barrett's right hamstring and lower back injuries. Mr. Barrett testified that he was prescribed medications for the hamstring injury and treatment through the conclusion of his physical therapy as well as oral

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Larry Barrett

Injury No. 16-088246

steroid medications for his back pain. Mr. Barrett last saw Dr. Mall in March of 2017. Mr. Barrett continues to do home exercises for both his right hamstring and low back.

Mr. Barrett complains of continuing pain in his right hamstring daily and states that the pain varies in degree from day to day. The pain from the hamstring injury is toward the right hip. Mr. Barrett has a desk job so the hamstring injury affects him at work only in that he needs to take additional breaks during the day. Mr. Barrett no longer golfs, jogs or runs and plays softball as he did before the accident due to pain in the hamstring when he participates in these activities or anticipated pain should he engage in these activities.

Mr. Barrett also complains of low back pain which he described as a dull, thumping pain, with occasional tingling radiating into the right leg. Mr. Barrett testified that sitting or standing for an extended period of time causes a constant dull pain and results in the need to change positions or exercise or stretch to alleviate the pain.

Mr. Barrett takes no medications as the result of the right hamstring injury or low back injury but did testify that he takes sleep aids for variable pain in either the right hamstring or low back.

Dr. David Volarich evaluated Mr. Barrett on July 10, 2017, and issued a report based thereon on the same date. With regard to the lumbar spine, Dr. Volarich found full motion and that "the worst back pain occurred with extension. Palpation elicited pain in the paraspinal muscles bilaterally at L4-5. Spasms or trigger points were not found." (Volarich report 7.10.17) Dr. Volarich noted a straight leg raise test to 80 degrees on the left without difficulty and to 70 degrees on the right with back and right hip girdle pain. Dr. Volarich noted no radicular symptoms.

Dr. Volarich noted that with regard to the lower extremities that the left hip examination was normal and that there was full motion in the right hip. Dr. Volarich found discomfort in the right hip when resisting extension and with external rotation. Dr. Volarich noted that the Patrick test was negative and described an 11 centimeter scar resulting from the surgical repair of the torn right hamstring. The circumferences of Mr. Barrett's right leg at the proximal thigh were at 74 centimeters on the right and 75 centimeters on the left, at the thigh 51 centimeters on the right and 52 centimeters on the left, and at the calf 40.5 centimeters on the right and 41 centimeters on the left.

Dr. Volarich opined to a 40 percent disability of the right hip and a 17.5 percent disability of the body at the lumbar spine. Dr. Volarich noted no restrictions in activity for Mr. Barrett.

Dr. Nathan Mall was Mr. Barrett's treating physician. Dr. Mall's report of April 10, 2017 referred to Mr. Barrett's treatment and that he was placed at maximum medical improvement when Dr. Mall evaluated him on March 7, 2017. Dr. Mall opined that Mr. Barrett should be allowed to participate in all of his prior work and athletic activities. Dr. Mall opined to a seven percent permanent disability of the right hip as the result of the November 10, 2016 work injury.

Dr. Mall's treatment records include the March 7, 2017 note containing the release from treatment at maximum medical improvement. That note contains Dr. Mall's statement that

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**Injury No. 16-088246**

Mr. Barrett had "mild weakness with hamstring resistance testing compared with the opposite side" although Dr. Mall noted that he had good strength with manual muscle testing. (The Orthopedic Center of St. Louis records 3.7.17) Dr. Mall also noted "subjective numbness distal to the scar in an approximately 6 x 6 cm. patch." (The Orthopedic Center of St. Louis records 3.7.17)

**RSMo Section 287.120.1** Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident or occupational disease arising out of and in the course of the employee's employment. Any employee of such employer shall not be liable for any injury or death for which compensation is recoverable under this chapter and every employer and employees of such employer shall be released from all other liability whatsoever, whether to the employee or any other person, except that an employee shall not be released from liability for injury or death if the employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury. The term "accident" as used in this section shall include, but not be limited to, injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.

The claimant, Larry Barrett, has sustained his burden of proof that he has a permanent disability of 15 percent of the right hip as the result of the hamstring injury and five percent of the body referable to the lumbar spine as the result of the low back injury. This award is based on Mr. Barrett's testimony as well as the opinions of Dr. Volarich and Dr. Mall.