Reed v. Associated Electric Cooperative, Inc.

302 S.W.3d 693, 2009 Mo. App. LEXIS 1042, 2009 WL 1957291
CourtMissouri Court of Appeals
DecidedJuly 9, 2009
DocketNo. SD 29324
StatusPublished
Cited by5 cases

This text of 302 S.W.3d 693 (Reed v. Associated Electric Cooperative, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reed v. Associated Electric Cooperative, Inc., 302 S.W.3d 693, 2009 Mo. App. LEXIS 1042, 2009 WL 1957291 (Mo. Ct. App. 2009).

Opinion

JOHN E. PARRISH, Judge.

Associated Electric Cooperative, Inc., (employer) appeals the Final Award Allowing Compensation of the Labor and Industrial Relations Commission (the commission). The commission found that Ray Reed (claimant) was permanently and totally disabled as a result of an injury sustained while working for employer; that the injury resulted from an accident that occurred September 26, 2001; that the injury was not the result of a pre-existing disability. This court affirms.

Claimant began working for employer in 1990. He worked as a utility operator, an auxiliary operator, a deck hand, and, finally, as a yard equipment operator. He began working as a yard equipment operator in 1994. He worked in that capacity until June 9, 2002. His duties as yard equipment operator involved operating heavy machinery including scrapers, doz-ers, trailer trucks, loaders, and backhoes.

On September 26, 2001, claimant was injured at work. He was loading coal in a scraper. He explained what happened:

... [Wjhen I got to the bottom of the pile, I looked back and there was smoke rolling out of the rear engine. So I headed off, I kicked the gate open. I pulled the extractor, I extracted all the coal on the way to a water outlet. When I got to the water outlet, I got out of the scraper, I walked from the front of the scraper to the back of the scraper. I climbed up on top of the back of the scraper and shielding myself behind the radiator, I peered over into the engine to see what was happening. I seen a fuel line had — -metal fuel line had broke and it was squirting diesel on to the engine and the smoke I was seeing was the diesel that was vaporizing. At that point it scared me pretty good because I could see some hot coal on edges around the engine.

Claimant was asked what he did. He answered:

What I did was I bended down and grabbed ahold of this rod and I reached in to get the throttle level to kill the engine to kill the flow. As I did, I couldn’t reach the lever so I pulled my body up with my right hand as I was reaching to the left and pushing forward with my right foot off of a piece of metal there. Wben I did, I reached the lever, my foot slipped off and I twisted my back. At that specific time it felt like I [695]*695have sprung my ankle. I went ahead, shut the engine down, I crawled down and I went and got the water hose trying to walk off what I thought was a sprained ankle.

Claimant went home, took a bath, and lay down. He began experiencing pain in his lower back and down his right leg to the top of his foot. This occurred on a Wednesday. Claimant was not scheduled to work the following Thursday or Friday. On Thursday he continued to experience pain down his right leg and lower back and foot. It was worse on Friday. Claimant stayed home on Friday and tried to rest in an attempt to be able to return to work on Saturday. On Saturday claimant called employer and reported that he was unable to work due to the accident he had at work the previous Wednesday. Claimant asked if employer wanted him to go to the company doctor. The safety coordinator told him to see whoever he wished.

Claimant sought treatment at the emergency room at Southeast Hospital in Cape Girardeau. He was examined, x-rayed, and given a prescription for medication. He was diagnosed as having acute para-lumbar strain with muscle spasms and right leg radiculopathy. Claimant was told to see a “follow-up doctor” if he did not get better. Claimant did not feel better. He consulted Dr. Deborah Thomas. She examined claimant and ordered an MRI. The MRI revealed “mild multilevel changes with a small right foraminal disc extrusion at L4-5 involving the right L4 nerve root.”

Employer arranged for claimant to see Dr. Scott Gibbs, a neurosurgeon. Dr. Gibbs examined claimant and reviewed the earlier MRI. His observation was that the MRI revealed a “broad-based disc bulge” at L4-5 and a “very slight broad-based disc bulge with no deformity of the exiting nerve roots” at L5-S1. He stated a diagnostic impression from the MRI findings of “a right L4-5 foraminal herniated nucleus pulposus and this is superimposed on lateral recess stenosis at this level.” He stated the impression that claimant’s lower extremity pain and paresthetic numbness and tingling appeared to follow an L5 der-matomal pattern. Dr. Gibbs prescribed medication and explained that should conservative management of claimant’s condition fail, claimant might be a good candidate for surgery. Claimant was ordered to remain off work.

Claimant ultimately underwent surgery. Dr. Gibbs preformed lumbar surgery December 13, 2001 — a bilateral interior L4 and superior L5 laminectomy and medial facetectomy with foraminotomy. Claimant continued to experience numbness in his right leg and foot after surgery.

Dr. Gibbs released claimant to return to work with restrictions on February 11, 2002. Claimant had a follow-up appointment with Dr. Gibbs on March 5, 2002. Claimant was still experiencing numbness in his right leg and calf. At work, he avoided heavy lifting or other duties that would put undue strain on his back. At the March 5 appointment, Dr. Gibbs found claimant at maximum medical improvement. He released claimant to return to work without restrictions and discharged claimant from his medical care.

Claimant’s numbness in his right leg and foot gradually increased after returning to work. Use of his foot in operating machines and vibrations from the machines intensified his symptoms. He again developed lower back pain. He contacted Dr. Gibbs’ office to request prescription medication. His request for medication was not granted, and Dr. Gibbs would not see claimant again unless a claim for a second injury was filed.

[696]*696Claimant’s pain and numbness progressively increased. On June 9, 2002, claimant told his supervisor of his discomfort and said he was going to talk to employer’s yard superintendent. The supervisor told claimant not to talk to the superintendent but to see a doctor.

Claimant saw Dr. Kimberly Schisler on June 10, 2002. She took claimant off work. She provided claimant with a prescription for medication and ordered physical therapy. Claimant had follow-up visits with Dr. Schisler on June 17 and on July 1. There was no change in his symptoms. Dr. Schisler sent claimant for an MRI. After the MRI, she told claimant she thought the pain he was experiencing was associated with the September 26, 2001, injury. Dr. Schisler noted that claimant could not return to work due to his level of discomfort and numbness. She continued him off work until August 1, 2002.

Claimant reported the information to employer. He asked if they would provide additional treatment. Employer declined claimant’s request for further treatment. Claimant was told to seek medical treatment on his own and use his medical insurance.

Claimant next contacted Dr. Alan Chen. After having examined and agreed to treat claimant, Dr. Chen referred claimant to Dr. Matthew Gornet, an orthopedic surgeon. Claimant first saw Dr. Gornet in September 2002. After reviewing Dr. Gibbs’ treatment notes and the previous MRI results, Dr. Gornet had claimant undergo a CT-myelogram. Dr. Gornet concluded that claimant suffered from post-discectomy back pain related to his initial September 26, 2001, work-related injury. He found claimant to be temporarily totally disabled. Dr. Gornet recommended a lumbar fusion as claimant’s only option.

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Cite This Page — Counsel Stack

Bluebook (online)
302 S.W.3d 693, 2009 Mo. App. LEXIS 1042, 2009 WL 1957291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-associated-electric-cooperative-inc-moctapp-2009.