John Owings v. McCray Lumber Company

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 19-008721

**Employee:** John Owings

**Employer:** McCray Lumber Company

**Insurer:** Old Republic Insurance Company

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 March 17, 2020. The award and decision of Administrative Law Judge Angela C. Heffner, issued March 17, 2020, 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 **2nd** day of December 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

*Robert W. Cornejo, Chairman*

*Reid K. Forrester, Member*

*Shalonn K. Curls, Member*

**Attest:**

*Secretary*

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John Owings

Employee: John Owings

Injury No. 19-008721

Dependents: N/A

Employer: McCray Lumber Company

Insurer: Old Republic Insurance Company

Hearing Date: January 28, 2020

Checked by: $\mathrm{AH} / \mathrm{pe}$

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: January 24, 2019
5. State location where accident occurred or occupational disease was contracted: Shawnee, Johnson County, Kansas.
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: Employee John Owings sustained injury when a 30 foot extension ladder fell striking him on his back and neck.
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: neck, back, body as a whole

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John Owings

Injury No. 19-008721

1. Nature and extent of any permanent disability: 10.5 % permanent partial disability of the body as a whole at the 400 -week level or $\ 20,847.96.
2. Compensation paid to date for temporary disability: $\ 0.00
3. Value necessary medical aid paid to date by employer/insurer? $\ 7,592.50
4. Value necessary medical aid not furnished by employer/insurer? N/A
5. Employee's average weekly wages: Sufficient for maximum PPD rate
6. Weekly compensation rate: $\ 947.64 for TTD and $\ 496.38 for PPD
7. Method wages computation: By stipulation.

1. Amount of compensation payable:

10.5 % permanent partial disability of the body as a whole at the 400 -week level or $\ 20,847.96

TOTAL COMPENSATION: $\ 20,847.96

1. Second Injury Liability: N/A
2. Future requirements awarded: N/A.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Joshua P. Perkins, Claimant's attorney, for necessary legal services rendered.

Employee: John Owings

Injury No. 19-008721

Dependents: N/A

Employer: McCray Lumber Company

Insurer: Old Republic Insurance Company

Hearing Date: January 28, 2020

Checked by:

On January 28, 2020, the parties appeared for a final hearing. The Division had jurisdiction to hear the matter pursuant to section 287.110 RSMo. The Employee, John Owings ("Claimant or Employee"), appeared in person and with counsel, Joshua P. Perkins. The Employer, McCray Lumber Company ("Employer") and Insurer ("Insurer") appeared through its counsel, James Hess.

Prior to the hearing, the parties stipulated to the following:

1) On January 24, 2019, ("the injury date"), John Owings was an employee of McCray Lumbar Company and was working subject to the Missouri Workers' Compensation Law;

2) The Employer, McCray Lumber Company, was an employer operating under and subject to the provisions of Missouri Workers' Compensation Law on January 24, 2019, and its liability was fully insured by Old Republic Insurance Company;

3) Mr. Owings contract of employment was made in Missouri;

4) Employee sustained an accident in Shawnee, Kansas arising out of the scope and course of employment;

5) A Claim for Compensation was filed within the time prescribed by law;

6) The Employee notified the Employer of his injuries as required by law;

7) Employee's compensation rate was $\ 947.64 for temporary total disability benefits and $\ 496.38 for permanent partial disability benefits; and

8) The Employer paid $\ 0.00 in temporary total disability compensation and medical expenses in the amount of $\ 7,592.50.

The parties requested the Division to determine the following issue:

Whether the Employee suffered any disability and, if so, the nature and extent of the Employee's disability as a result of the January 24, 2019 work injury.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John Owings

Injury No. 19-008721

The Employee, John Owings, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

- Claimant's Exhibit No. 1 - Claim for Compensation

- Claimant's Exhibit No. 2 - Answer to Claim for Compensation

- Claimant's Exhibit No. 3 - Dr. Anne Rosenthal's Rating Report

- Claimant's Exhibit No. 4 - Meritas Health Occupational Medicine medical records

The Employer/Insurer offered the live testimony of David Schoneman, an employer representative, and offered the following exhibit which was admitted into evidence without objection:

Employer/Insurer's Exhibit A -- Report of Dr. Robert Brown dated September 16, 2019, with supporting medical.

Claimant John Owings is a 52-year-old male. At the time of the hearing, Claimant was employed with McCray Lumber Company as a delivery driver. Claimant began his employment with McCray Lumber Company in 2018. Claimant's job duties include driving a delivery vehicle loaded with construction materials to various construction sites throughout the Kansas City metropolitan area and then unloading the materials at the particular job site.

On January 24, 2019, Claimant testified that he and another co-worker were making a delivery to a residence in Johnson County, Kansas. He and his co-worker were unloading windows and doors and in the process of placing them inside a garage at the new home when he was struck in his neck and back by a 30-foot extension ladder. Claimant testified that he had his back turned and no advance warning that the ladder was going to strike him. Claimant experienced the immediate onset of symptoms in his neck and upper back region and notified his employer of the injury immediately.

Claimant requested medical treatment. Claimant was directed to Meritas Health Occupational Medicine on January 24, 2019, the same day as the incident. Claimant presented with complaints of pain and tenderness in the area where the ladder struck him and radiating pain across his shoulder blades. The physicians at Meritas evaluated Claimant and diagnosed him with a contusion of the back wall of thorax and neck pain. He was advised to ice his back for 20 minutes two to four times per day and to take over-the-counter Tylenol or ibuprofen for pain. He was to follow up the next day.

Claimant followed up with Meritas Health Occupational Medicine on January 25, 2019. Claimant continued to complain of diffuse soreness to his back and in his trapezius. Claimant was to alternate ice or heat for 20 minutes two to four times a day to the affected areas. Claimant was to continue over-the-counter Aleve, ibuprofen, or Tylenol for pain. Claimant was prescribed Cyclobenzaprine and was to follow up in three days.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John Owings

Injury No. 19-008721

Claimant followed up with Meritas Heath Occupational Medicine on January 28, 2019. Claimant had continued right upper back pain and soreness in his neck. It is important to note that the medical records state that Claimant described a large "knot" in his right upper back at this follow-up visit, which was just four (4) days post-injury. Claimant also complained of numbness into his right hand and fingers. Claimant was referred to physical therapy three times a week for one week. An MRI of the cervical spine was ordered.

On January 29, 2019, Claimant underwent an MRI of the cervical spine that revealed a broad based disc protrusion with a small focal area left lateral herniation causing moderate left neuroforaminal stenosis at C3-4, mild central canal stenosis and degenerative changes at C4-5, C5-6 and C6-7 with mild central canal stenosis at C4-5 and C5-6.

Claimant followed up again on February 04, 2019 with Meritas. The medical records again record that Claimant complained of a large "knot" in his upper right back as well as numbness into his right hand and fingers. Claimant began a second round of physical therapy at Boost Physical Therapy on February 6, 2019.

On March 15, 2019, Dr. Brown at Meritas was concerned about the amount of soreness that Claimant was continuing to experience in his rhomboid and thoracic regions and an MRI of the thoracic spine was ordered. It is also noted that Dr. Brown considered a referral to physiatry or orthopedics during the March 15, 2019 office visit, but this was never authorized. Due to continued thoracic pain, Claimant underwent an MRI of the thoracic spine on March 20, 2019. The MRI revealed a small midline disc protrusion at T4-5 resulting in mild central canal stenosis without mass effect on the thoracic spinal cord or neuroforaminal narrowing, broad-based midline disc protrusion at T6-7 resulting in mild central canal stenosis in slight relative flattening of the ventral surface of the thoracic spinal cord, and a mild right paracentral disk osteophyte formation at T3-4 resulting in mild narrowing of the medial portion of the right neural foramen.

Claimant began work conditioning at SERC Physical Therapy on March 28, 2019. After five visits, Dr. Brown released him to full duty on April 5, 2019.

Claimant's current complaints

Claimant described continued ongoing complaints related to his back and neck injury. Claimant's largest concern was the "knot" located beside his right shoulder blade on the right upper portion of his back. The Meritas medical records make multiple references to Claimant's "knot" dating back to the original injury, but further evaluation and treatment, such as sonogram or other imaging, was never ordered or performed by Dr. Brown or the Meritas staff. Claimant states that the "knot" is visible to this day and has not decreased in size or lessened in intensity. Claimant described that his right shoulder blade will rub on the "knot" each time he moves his right arm. Any jarring or bumps cause pain. Claimant has continued muscle spasms and radiating pain across his shoulders. Claimant has difficulty sleeping due to back and right shoulder pain particularly around the region of the "knot." Claimant testified that he pursued a dispatch position because it is less strenuous than his current driver position. Claimant takes Tylenol and Advil but is able to continue working full duty.

I find Claimant to be truthful and credible.

WC-32-R1 (6-81)

Page 5

Mr. Schoneman testified that he is currently the Operations Manager at McCray Lumber Company and oversees all daily activities. All of the department heads report to him, including Employee's direct supervisor. Mr. Schoneman testified that Claimant did not complain of increased pain or symptoms after he reached maximum medical improvement. He finds Employee to be credible and believable and has no problems with him.

Mr. Schoneman testified that a dispatch position opened up and Claimant asked if he could apply. They had a conversation about Claimant applying for the dispatcher position and that Claimant did not say he could not do the driver job anymore. The dispatcher position is a promotion and pays more money than a driver position pays.

Whether the Employee suffers from any degree of permanent partial disability as a result of the January 24, 2019 work injury.

Determining the amount or percentage of disability due to the Claimant is a finding of fact within the province of the Administrative Law Judge. Hawthorne v. Lester E. Cox Medical Center, 165 S.W.2d 587, 594-595 (Mo. Ct. App. 2005). The Administrative Law Judge has discretion as to the amount of the permanent partial disability to be awarded and how it is to be calculated. Ran v. Land Star TLC, 46 S.W. 3d 614, 626 (Mo. App. W.D. 2001).

"[T]he question of nature and extent of permanent partial disability is one for medical testimony." Elliott v. Kansas City, Mo., Sch. Dist., 71 S.W.3d 652, 658 (Mo.App. W.D. 2002). In the present claim, both medical experts agree that Claimant has some degree of permanent partial disability.

The medical evidence presented by Claimant on the issue of whether Claimant suffers from any permanent partial disability as a result of the January 24, 2019 injury was the July 1, 2019 report of Dr. Anne Rosenthal. Dr. Rosenthal rated Claimant's permanent partial disability as follows:

(1) 18 % permanent partial disability of the body as a whole at the 400 -week level referable to Claimant's back and neck injury.

See Claimant's Exhibit 3.

Dr. Rosenthal found that the January 24, 2019 work-injury caused a cervical strain, thoracic strain and strain of rhomboid muscle. Dr. Rosenthal noted that Claimant has ongoing upper back and right shoulder pain that has caused loss of daily function. It is important to note that on page 1 of Dr. Rosenthal's report under the Present Symptoms Section, Claimant described the "knot" and Dr. Rosenthal recorded it. Claimant is worsened by pressure against his back, bumping, jarring and sleeping. Claimant describes his right shoulder and upper back pain as aching and throbbing. Claimant's symptoms are frequent to constant. Claimant has pain with doing most things, particularly his job duties that require a lot of physical exertion.

Claimant has constant pain in his shoulder and back. Claimant has pain with riding his motorcycle. Claimant has pain with activities that require use of his arms at work. Claimant has pain getting dressed and reports that it hurts getting his shirt on and off. Claimant does not sleep well due to back pain.

Upon examination, Dr. Rosenthal noted tenderness in the right periscapular region and tenderness over the right sided paraspinal muscles from the mid thoracic to lower cervical spine.

Employer offered the report of Dr. Robert Brown dated September 6, 2019. Dr. Robert Brown rated Claimant's permanent partial disability as follows:

(1) 0-1 % permanent partial disability of the body as a whole.

See Employer/Insurer's Exhibit A.

In sum, Claimant has significant ongoing complaints as it relates to his neck and upper back. He continues to have the "knot" in the right upper portion of his back that was first recorded in the medical records on January 28, 2019, four days after the incident. The "knot" is aggravated by any movement of the right arm which is particularly problematic in Claimant's job as a delivery driver that does require him to manually unload construction materials. The "knot" was never evaluated or imaged by the physicians at Meritas despite Claimant's repeated complaints during follow-up appointments. He has pain daily. Claimant has difficulty performing his job duties at McCray Lumber Company. Claimant has continued upper back pain. The evidence presented, including Claimant's testimony, supports that Claimant's neck and back injury impacts his activities of daily living, including his job duties, and social and recreational activities.

Upon review of the medical evidence and hearing Claimant's credible testimony concerning the limitations he continues to experience, I hereby award Claimant 10.5 % permanent partial disability of the body as a whole at the 400 -week level. This equals 42 weeks of compensation. Claimant's compensation rate is $\ 496.38. As such, the total amount of compensation to Claimant for permanent partial disability is $\ 20,847.96




Made by:

Angela C. Heffner

Administrative Law Judge

Division of Workers' Compensation