John White, Sr. v. Schrieter Materials, LLC

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 18-046371

**Employee:** John J. White, Sr.

**Employer:** Schrieter Materials, LLC

**Insurer:** Secura Insurance A Mutual Company

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

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 November 3, 2021. The award and decision of Administrative Law Judge Edwin J. Kohner, issued, 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 **27th** day of September 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Rodney J. Campbell, Chairman

Shalonn K. Curls, Member

VACANT Member

Attest:

*John J. White*

Secretary

Employee: John White

Injury No.: 18-046371

Dependents: N/A

Before the

Employer: Schreiter Materials LLC

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Industrial Party: Second Injury Fund

Insurer: Secura Insurance A Mutual Company

Hearing Date: September 10, 2021

Checked by: EJK/kmr

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: June 14, 2018
5. State location where accident occurred or occupational disease was contracted: Lincoln 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: Employee was working on a concrete mixer truck and fell to the ground.
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: Head, Neck, Nose, Left Wrist, and Right Leg
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 4,133.83
16. Value necessary medical aid paid to date by employer/insurer: $\ 74,211.94

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 524.32
3. Weekly compensation rate: $\$ 349.72 / \$ 483.48 / \ 923.01
4. Method wages computation: By agreement

1. Amount of compensation payable:

Permanent total disability benefits from Employer, $\ 923.01 per week, beginning April 10, 2019, for employee's lifetime

Indeterminate

1. Second Injury Fund liability: No

TOTAL:

Indeterminate

1. 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 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: Cynthia M. Hennessey, Attorney at Law

This Workers' Compensation Claim raises several issues arising out of an alleged workrelated injury in which the claimant, was working on a concrete mixer truck and fell to the ground. The issues for determination are: (1) Rate; (2) Permanent disability, and (3) Second Injury Fund liability. The evidence compels an award for the claimant for permanent total disability.

At the hearing, the claimant testified in person and offered depositions of David T. Volarich, D.O., and Benjamin Hughes, and a medical report from Dr. Volarich. The defense offered depositions of the claimant, J. Stephen Dolan, and Bernard Randolph, M.D., and voluminous medical records from Mercy Hospital and Clinics, Troy Henry Caron, D.O., and the claimant's payroll records.

All objections not previously sustained are overruled. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On June 14, 2018, this now, 68-year-old claimant, was working on the back end of a concrete mixer truck and fell to the ground. He was transported to Mercy Hospital, he was evaluated in the emergency room, and underwent detailed clinical assessment, including multiple radiographic images. See Exhibit A. A CT of the brain revealed a small subdural hematoma without mass effect. A CT scan of the cervical spine revealed a fracture of the inferior endplate of C7. The instrumentation from his prior fusion from C5 through C7 was intact. An MRI of the cervical spine revealed no evidence of disc herniation, neural foraminal stenosis, central canal stenosis, or spinal cord injury. X-rays of the left wrist and forearm revealed a comminuted fracture of the distal radius and ulnar styloid fracture. A CT of the thoracic and lumbar spine revealed no acute abnormalities. A CT of the chest, abdomen, and pelvis revealed no acute abnormalities. See Exhibit A.

On June 15, 2018, Dr. Mark Trump, an orthopedic surgeon, performed an open reduction internal fixation of the distal radius fracture to his left wrist. Dr. Troy Caron, an orthopedic spine surgeon, managed conservatively his C 7 endplate fracture and recommended non-operative care. The claimant was discharged from the hospital on June 17, 2018. See Exhibit A.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

Injury No.: 18-046371

On August 3, 2018, the claimant started occupational therapy at Mercy in Troy, Missouri. He was treated conservatively and according to progress notes, made steady progress towards short-term and long-term goals. The claimant followed up with Dr. Bryan Troop, a critical care surgery specialist, at Mercy Hospital. Post-op X-rays revealed adequate healing of the distal radius and ulnar fractures. He was advanced to occupational therapy for rehabilitation. Dr. Caron examined the claimant on several occasions for management of his neck and upper extremity injuries. A follow-up note dated September 11, 2018, indicated the left wrist fracture was progressing well in occupational therapy and X-rays showed adequate healing. The claimant continued to experience some neck discomfort and sensory disturbances in the right upper extremity. Cervical spine films revealed adequate healing of the endplate fracture. Dr. Caron recommended continued outpatient therapy and indicated the weight bearing status in the upper extremity and lower extremities was as tolerated. See Exhibit A.

The claimant was involved in physical therapy as well. Outpatient physical therapy was initiated at Mercy on September 10, 2018. Treatment was focused on cervical soft tissue and manual care to decrease pain, improve range of motion and improve strength in the cervical, proximal shoulder girdle, and upper extremity muscles. Additionally, vestibular treatments were performed to decrease episodes of dizziness and vertigo. The claimant participated in four sessions of therapy through the end of September 2018. According to the last progress note, the claimant reported reduction in vertigo, but continued to have some cervical complaints. Dr. Caron released the claimant to full duty as of September 11, 2018, without any restrictions. Dr. Caron opined the claimant could work, drive, and should follow up as needed. See Exhibit D, page 80.

On February 14, 2019, Dr. Randolph, a specialist in physical medicine and rehabilitation, examined the claimant for ongoing neck complaints. Dr. Randolph provided conservative treatment for the claimant including additional outpatient physical therapy at Lincoln Mercy from February 22, 2019, through March 29, 2019. The claimant told Dr. Randolph his cervical range of motion was improved in all directions. Dr. Randolph understood the claimant's episodes of vertigo or dizziness to be largely resolved. The claimant continued to use a cane at times because of left hip pain which was unrelated to the work-related injury. See Exhibit A. The claimant never returned to work. He last received treatment on April 10, 2019.

Pre-existing Conditions

The claimant suffered prior work-related injuries from a 2006 motor vehicle accident and was awarded permanent partial disability benefits in Injury Number 06-094944: 25% of the cervical spine, 1% of the nose, 2% of an eye, 10% for seizures, 15% of the left shoulder, 3% of the left knee, 2% for an rib injury, 8% of the lumbar spine, and 15% for depression. Administrative notice of Division of Workers' Compensation records.

David T. Volarich, D.O.

On December 5, 2019, Dr. Volarich examined the claimant, took a medical history, and reviewed his medical records. As a result of this occurrence, Dr. Volarich diagnosed closed head trauma with loss of consciousness causing subdural hematoma, concussion with post-concussion

WG-32-81 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: John White

Injury No.: 18-046371

syndrome including headaches, dizziness, visual disorders, hearing loss, diminished focus, and concentration, left forehead laceration, bilateral nasal bone fracture, left distal radius comminuted displaced intra-articular fracture with ulnar styloid fracture status post open reduction, internal fixation of the radius fracture, cervical spine C7 inferior endplate fracture, and right calf contusion with persistent pain. Dr. Volarich opined the claimant suffered the following permanent partial disabilities as a result of the occurrence: 30% of the head for the concussion, 5% of the head for the nasal fractures, 50% of the left wrist for the surgical fracture, 20% to the neck for the unoperated neck fracture, and 15% of the right calf. See Exhibit 1. He also opined the combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate Injury/Illness, and a loading factor should be added.

By way of preexisting permanent partial disabilities, he opined the claimant suffered from the following preexisting permanent partial disabilities: 15% from a nasal fracture, 40% for the cervical spine due to disc herniation at C5-6 and aggravation of spinal stenosis at C5-6 and C6-7 that required two level anterior cervical discectomy with fusion, corpectomy, and instrumentation (including posttraumatic headaches), 35% of the left shoulder due to impingement, and rotator cuff tear requiring surgical repair, 7 1/2% of the chest due to rib fractures, and 15% to the low back from degenerati