James Haag v. Terry Snelling Construction

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-041850

**Employee:** James K. Haag

**Employer:** Terry Snelling Construction

**Insurer:** Depositors Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated May 10, 2018.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued May 10, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 10th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Employee: James K. Haag

Injury No: 17-041850

Employer: Terry Snelling Construction

Insurer: Depositors Insurance Company

Hearing Date: April 3, 2018

Checked By: MSS/drl

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287 RSMo? Yes
3. Was there an accident or incident of occupational disease under the law? Yes.
4. Date of Accident of onset of occupational disease? March 17, 2017.
5. State location where accident occurred or occupational disease was contracted: Cass 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 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: Claimant was lifting pieces of concrete and suffered injury to his back.
12. Did accident or occupational disease cause death? No. Date of Death? N/A.
13. Part(s) of body injured by accident of occupational disease: Back, body as a whole.
14. Nature and extent of any permanent disability: To be determined

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No. 17-041850

1. Compensation paid to date for temporary disability? $0.00

1. Value necessary medial aid paid to date by employer/insurer? $0.00

1. Value necessary medial aid not furnished by employer/insurer? To be determined

1. Employee's average weekly wage: 927.65

1. Weekly compensation rate: 618.43

1. Method wages computation: By agreement of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: Weekly benefits at $618.43 per week beginning October 20, 2017, and to continue until Claimant at maximum medical improvement.

Temporary total disability benefits: $618.43

Medical costs: To be determined

1. Employer liability: To be determined

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No: 17-041850

Employer: Terry Snelling Construction

Insurer: Depositors Insurance Company

Hearing Date: April 3, 2018

Checked By: MSS/drl

This case comes on for hearing before Administrative Law Judge Siedlik on April 3, 2018. The Claimant James Haag was present with his counsel, Mr. Mark Kolich. The Employer and Insurer were represented by their counsel, Ms. Shannon Moore.

The case involves injuries alleged on or about March 17, 2017, while the Claimant was in the employ of Terry Snelling Construction and allegedly sustained injuries by accident arising out of and in the course and scope of employment in Cass County, Missouri. At the time of the injuries, the parties were subject to the Missouri Workers' Compensation law and the employer's liability insured by Nationwide Insurance. The Employer had allegedly been provided notice of an injury and claims were timely filed.

The average weekly wage is agreed to be 927.65 and the compensate rate agreed to be 618.43. There have been no weekly benefits or medical expenses paid to date.

The issues to be taken up include:

1. Accident;
2. Notice;
3. Whether the accident arose out of the course and scope of employment;
4. Medical causation;
5. Need for future medical care;
6. Nature and extent of temporary total disability.

EVIDENCE PRESENTED

The employee testified at the hearing in person and, additionally, the employee offered Exhibits A through M, which were received into evidence.

Exhibit A Curriculum Vitae of Harold A. Hess, M.D.

Exhibit B Medical Report of Harold A. Hess, M.D. dated 10/20/17

Exhibit C Medical Records from Schroeder Chiropractic

The employer and insurer offered no live testimony and offered Exhibits 1 through 14. Counsel for the Claimant objected to the admission of Employer/Insurer Exhibit No. 1, the medical report of Dr. Robert Ebelke on the basis of hearsay statements within the body of the doctor's report. After reviewing the medical report of Dr. Ebelke, I find no basis to exclude the medical report of the doctor based on the doctor's passing reference to a statement made by the Claimant's prior employer regarding the Claimant's work history. I, therefore, find the Claimant's objection to Employer/Insurer No. 1 is overruled and that exhibit is admitted as well as the remaining Employer/Insurer Exhibits 2 through 8. There was an objection to Employer/Insurer Exhibit No. 9 and that exhibit was not admitted into evidence. Employer/Insurer Exhibits 10 through 14 were admitted.

The Claimant, James Haag, testified in person that at the time of trial he is 39 years old, born June 22, 1979, and had worked as a concrete finisher for Terry Snelling Construction. The Claimant testified he sustained an injury sometime in March of 2017 while lifting a piece of

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No. 17-041850

concrete weighing approximately 25 pounds after which he twisted and felt an immediate pop in his back. The Claimant stated he had a pain immediately in his low back and into his right leg and foot as well as pain down his left leg to the knee. The Claimant stated he immediately reported his accident to his supervisor, Glenn, at the time of its occurrence. The Claimant stated his supervisor asked if he could finish the day, to which the Claimant replied in the affirmative and finished that day's shift. The Claimant believed the pain would resolve and did not request treatment that day. The Claimant continued to work for approximately two weeks in increasingly greater pain to the point where at the end of a period of approximately two weeks after the lifting incident, he informed his supervisor, Glenn, that he did not believe he could carry on with his duties for the remainder of that day. The Claimant testified Glenn asked him to finish the day and let him do broom work to finish out that day's shift. The Claimant again did not specifically request treatment that day and none was provided. The Claimant testified he was instructed that the following day, a Saturday, was a mandatory work day and testified that, even though his supervisor knew of his inability to do the normal job duties, he was instructed to show up the following day. Upon returning to work the following day as ordered, the Claimant was sent home because of other related issues which cancelled the concrete work for that day. The Claimant did not return to that employer and has not worked for that employer since.

The Claimant testified he contacted his supervisor, Glenn, later to request treatment and was told by Glenn to go see someone about his medical care. The Claimant sought chiropractic care from Schroeder Chiropractic. The Claimant again requested medical treatment from Glenn and was told that the employer was too busy to discuss this matter and the Claimant was thereafter discharged.

The Claimant testified he was able to find work with Mike Jones in Pleasant Hill and recalls working for approximately one month driving a skid steer. The Claimant testified that job lasted approximately one month with rarely a full week worked. The Claimant testified that that employment ended when the portion of the project to which he was able to participate had ended.

The Claimant testified between March and September of 2017, he sought out and obtained chiropractic treatment on a number of occasions at different providers, including Schroeder and Hampton Chiropractic, Lee's Summit Medical Center, Research Medical Center, and Truman Medical Center.

The Claimant first sought treatment on March 20, 2017, from Dr. Sarah Sharp, the chiropractor, wherein a history of accident included "hurt when getting back to work pouring concrete, has worked hurt the last week or so. Pain down both legs, worse with extension and work." The Claimant sought follow-up care with Dr. Sharp where some improvement was noted.

The Claimant next sought treatment on April 5, 2017, at the Lee's Summit Medical Center emergency room. Claimant reported a three-week history of back pain after twisting and lifting concrete at work. The Claimant thereafter sought treatment on May 23, 2017, from

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No. 17-041850

Dr. Hampton, a chiropractor, who recorded back and leg pain since onset at work lifting a heavy rock. That treatment note also referenced chronic low back pain for almost 13 months, which the Claimant denies and believes the reference is a typographical error and the correct number would have been 3 months of prior back pain. The Claimant was seen again by Dr. Hampton in June of 2017 with a slight reduction in pain from the initial visit. The Claimant was seen in the emergency room on June 3, 2017, at the Truman Medical Center. The history was of a work-related accident lifting a large piece of concrete, turning and twisting.

The Claimant testified he continued to seek chiropractic treatment as he could afford these. From the medical records provided for review, the Claimant's history of the mechanism of injury remains consistent.

Medical Evidence

The Claimant was evaluated by Dr. Harold Hess on October 20, 2017. Dr. Hess is a board certified neurosurgeon in the practice limited to spinal surgery. Dr. Hess took a history from the Claimant, reviewed the treatment that has been provided to date, and performed his examination. Dr. Hess diagnosed bilateral lumbar radiculopathy secondary to the broad-based disc protrusion at L4-L5, a central L5-S1 disc herniation, and an L5-S1 annular tear. Dr. Hess related this damage to the Claimant's work accident. In Dr. Hess' report is a recitation that the patient is currently suffering from bilateral lumbar radiculopathy secondary to the broad-based disc protrusion, contributing to stenosis at L4-L5 and a central L5-S1 disc herniation and L5-S1 annular tear. Dr. Hess' records reflect the Claimant had prior episodes of low back pain that were mid back in nature and episodes which were short-lived wherein the Claimant received chiropractic treatment. Dr. Hess noted those records of prior chiropractic treatment predating the date of injury do not indicate any leg pain. Dr. Hess ultimately opined within a reasonable degree of medical certainty that the work-related injury of March 7, 2017, is the prevailing factor in causing the patient's current medical condition and his current symptoms.

Dr. Hess recommended a trial of conservative measures consisting of physical therapy and lumbar epidurals. If relief were not provided through those modalities, Dr. Hess proposed a lumbar myelogram followed by CAT scan in preparation for an L4, L5, and S1 laminectomy and L4-L5 and L5-S1 discectomies as well as perhaps a lumbar fusion. Dr. Hess felt the Claimant was restricted to sedentary duty activities.

The Claimant was examined by Dr. David Ebelke at the behest of the Employer/Insurer. Dr. Ebelke is a board certified orthopaedic surgeon who limits his practice to treatments of spinal conditions. Dr. Ebelke took a history from the Claimant, reviewed modalities of treatment provided to date, and performed his examination. Dr. Ebelke ultimately diagnosed a degenerative disc at L4-L5 and L5-S1, facet joint arthritis at L4-L5, lumbar spinal stenosis at L4-L5, low back pain, Grade 1 spondylolisthesis at L4-L5 (degenerative), and neurogenic claudication symptoms/early radiculopathy. Dr. Ebelke felt that all of these conditions were

I find the Claimant bears the burden of proof to all contested issues as a prerequisite to being found entitled to workers' compensation benefits. I find the Claimant in his testimony to be credible and answered questions in a straightforward and consistent manner. The Claimant has admitted being a poor historian and admitted prior chiropractic treatment, which predated his alleged date of work injury. The Claimant testified that in the line of work pouring concrete, aches and pains were a normal event and from time to time the Claimant sought chiropractic relief. The Claimant I believe is credible and consistent in his testimony that this specific event happened in early March and his supervisor, Glenn, was informed that very day. The Claimant was asked if he could continue working and did without requesting treatment at that time. The Claimant credibly testified that he continued to work for a period of approximately two weeks until the pain radiating down his legs became intolerable and the Claimant could no longer perform the work duties necessary. The Claimant again informed Glenn, his supervisor, of this fact and requested treatment, to which the Claimant was referred to go get treatment on his own. The Claimant appeared for work on March $18^{\text {th }}$ as directed and that was the last the Claimant worked. This is an undisputed fact. The timeline which Claimant alleges of an approximately two-week period while he continued to attempt to work through the pain ending on March $18^{\text {th }}$ is consistent with an alleged date of injury in early March. The Claimant has admitted he is uncertain of some dates, but there are certain dates that are undisputed, that being the last day of work from the employer.

The Employer/Insurer alleges lack of notice, but I believe the Claimant's testimony is credible and clear of his reporting to his supervisor, Glenn, on two separate occasions and the Employer has offered no rebuttal evidence, leaving those alleged events to be factual and credible.

The Claimant's recitation of the mechanism of injury is not challenged by the Employer/Insurer and, with slight variations, is consistent throughout the myriad of treatment sought by the Claimant thereafter. There are some slight variations where in one doctor's report references lifting a heavy rock, where others refer to a block of concrete, and I find these differences insignificant and of no import. While the Claimant was not able to provide a precise date of accident, he believed it to be a couple of weeks before March $18^{\text {th }}$, his last day of work. On March 20, 2017, at the first sought medical treatment of Dr. Sharp, Claimant noted that he

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No. 17-041850

got hurt at work in the last week or so, and that on April 5, 2017, at the Lee's Summit Hospital emergency room, Claimant mentioned a 3-week history of back pain after twisting and lifting concrete at work.

The two medical experts who offered opinions as to the causative factor of the Claimant's alleged work injury were Dr. Hess and Dr. Ebelke. Dr. Hess was of the opinion that the Claimant had a broad-based disc bulge, herniated disc, and an annular tear and the work accident is the prevailing factor in causing the patient's medical condition and his current symptoms. In contrast, Dr. Ebelke stated that the accident merely caused a strain that should have resolved within one to two months. This opinion by Dr. Ebelke seems difficult to reconcile with the undisputed evidence that the Claimant has experienced unrelenting back and leg pain since the date of the accident. Dr. Ebelke further fails to offer an explanation as to when the symptoms from the alleged strain would have resolved and how Dr. Ebelke was to arrive at that determination. Dr. Ebelke diagnosed neurogenic claudication and radiculopathy, neither of which existed pre-accident, yet Dr. Ebelke contends Claimant's current condition is solely due to the pre-existing degeneration of the spine. Dr. Ebelke's opinion suggests the onset of the leg pain and the difficulty ambulating was spontaneous and only coincidental to the work accident.

Both physicians who offered opinions in this case limit their practice and specialties to treatment of spinal disorders, but I find the opinion of Dr. Hess to be more persuasive. While it can be argued that degenerative changes were present in the Claimant's back before the accident, they were asymptomatic except for isolated episodes where chiropractic care was obtained with resolution of symptoms. Any prior episodes of chiropractic treatment generally did not interfere with the Claimant's ability to work. I find of import the current diagnosis of radiculopathy. There is no evidence or suggestion of this condition predating the accident. Dr. Hess' opinion that the accident damaged the lumbar spine causing leg pain and impeding the ability to walk is more believable than Dr. Ebelke's opinion of a degenerative condition.

Both Dr. Hess and Dr. Ebelke concur that the Claimant was in need of additional care. Dr. Ebelke would suspend all care until the Claimant had engaged in a smoke cessation program in preparation for surgery. Dr. Hess recommended physical therapy and lumbar epidurals and, if those were unsuccessful, a lumbar myelogram, CAT scan, and ultimately surgery.

In finding Dr. Hess' testimony to be more credible, I rely on the doctor's opinion that as of October 20, 2017, the Claimant was restricted to sedentary duties only. The Employer has not offered any accommodated positions and there is no evidence that the Claimant has the qualifications or training necessary for sedentary work. The Claimant in his undisputed testimony testified he believes he is unable to work in the open labor market.

I find, therefore, that the Employer and Insurer are liable for the payment to the Claimant of temporary total disability compensation at a weekly rate of $618.43 to begin October 20, 2017, and to continue until the Claimant is released to return to work without restrictions or until he reaches maximum medical improvement. I find that the Claimant is entitled to medical treatment

8

Employee: James K. Haag

*Injury No. 17-041850*

consistent with the opinions of Dr. Hess and the Employer and Insurer are obligated to provide that treatment.

I find Claimant's counsel, Mr. Mark Kolich, is entitled to attorney's fees of 25 percent of sums recovered for his legal services rendered.

This award is temporary in nature and is to be placed on the inactive docket until such time as the parties inform the Court that final disposition is appropriate.

I certify that on **May 10, 2018** 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 **May**

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**Made by:**

**Mark S. Siedlik**

Chief Administrative Law Judge

Division of Workers' Compensation