12-0096. JEFFREY L. HENDRICKS Employee v. THE HOME DEPOT INC. Employer and NEW HAMPSHIRE INSURANCE CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0096. JEFFREY L. HENDRICKS Employee v. THE HOME DEPOT INC. Employer and NEW HAMPSHIRE INSURANCE CO. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512JEFFREY L. HENDRICKS, Employee, Applicant v. THE HOME DEPOT INC., Employer, and NEW HAMPSHIRE INSURANCE CO., Insurer, Defendants.AWCB Case No. 200918260AWCB Decision No. 12-0096Filed with AWCB Anchorage, Alaska on June 11, 2012FINAL DECISION AND ORDERJeffrey L. Hendricks (Employee) and The Home Deport, Inc. and New Hampshire Insurance (collectively Employer) mediated Employee's workers' compensation claim (WCC) and reached a settlement. As part of the settlement, the parties requested a hearing on Employee's claim for ongoing medical treatment. The request to approve the settlement and Employee's claim for ongoing medical benefits were heard on April 11, 2012, in Anchorage, Alaska. Attorney Charles Coe represented Employee. Attorney Michael Budzinski represented Employer. The settlement was approved orally and this decision memorializes the findings of fact and legal conclusions regarding Employee's claim for ongoing medical benefits reached at the hearing on April 11, 2012. ISSUES Employee contends he has substantial ongoing medical problems for which the 2009 injury is the substantial cause of Employee's need for treatment and disability. Employer contends Employee has a substantial history of many severe medical problems prior to the work injury which are the substantial cause of his ongoing medical problems. Therefore, Employer contends no additional medical benefits are owed to Employee now or in the future. Furthermore, Employer contends it has a credit against any medical benefits it might owe Employee from Employee's third-party settlement with the driver of the truck which hit Employee. Employer asserts since it has a credit against the settlement proceeds and these proceeds are of a sufficient size, Employer would not be liable to Employee, now or in the future, for any additional medical treatment as a result of the work injury. Employer further contends the settlement reached is in Employee's best interest because Employee would not be awarded any additional benefits at hearing. 1) Is Employee entitled to any additional medical benefits in the future as a result of the 2009 work injury? 2) Should the settlement agreement be approved as being in Employee's best interest? FINDINGS OF FACT A review of the entire record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On June 29, 2009, Employee was struck in the back by a customer's truck in Employer's pickup area. The impact flipped Employee over the end of the pick-up (Report of Injury; security video). 2) The police report indicated Employee was laying face down when they arrived on the scene and was complaining of neck and back pain (Accident Report, Employee's Notice of Intent to Rely, August 3, 2011). 3) Employee was taken to Valley Hospital Emergency Room for left hip pain, neck pain, and rib discomfort (Compromise and Release (CandR), approved April 12, 2012). 4) Employee has a long history of back and neck complaints, from at least 1985. Medical records reflect Employee was prescribed Flexeril for headaches and neck pain by Morris R. Horning, M.D., in 1985 (00002 Jeffrey Hendricks Medical Records (SIME Binder)). 5) On June 23, 1986, Employee reported "another motor vehicle accident" to Dr. Horning. The diagnosis was neck sprain. Employee's scoliosis was noted (00006 SIME Binder). 6) On October 1, 1986, Employee was seen for spinal cord monitoring consultation following a posterior fusion with Harrington rod instrumentation from T4 to L3 (00007-12 SIME Binder). 7) On July 1, 1987, Employee underwent an electromyography (EMG) evaluation with Dr. Horning, which showed mild acute right L5 radiculopathy (00016 SIME Binder). 8) On January 19, 1988, Employee saw Dr. Horning with continuing complaints of back pain, although much improved and without evidence of acute radiculopathy. Employee was to start vocational retraining (00020 SIME Binder). 9) On May 16, 1988, Employee saw William J. Mills, Jr., M.D., with complaints of back pain. Employee inquired about removal of the Harrington rods. The x-rays showed excellent position of the rods with no evidence of nonunion and Dr. Mills did not recommend removal (00023 SIME Binder). 10) On May 25, 1988, Employee saw Dr. Horning for ongoing headaches and back pain which Employee thought might be attributable to the Harrington rods. Employee was to follow up with Harold King, M.D., University of Washington (00024 SIME Binder) . 11) On June 16, 1988, Dr. King opined Employee would be unlikely to return to work due to chronic back pain and scoliosis. Dr. King recommended Employee follow-up with a neurologist for his migraine headaches and right-sided sensory symptoms (00028 SIME Binder) . 12) On June 14, 1989, Dr. Horning, using AMA Guides to Permanent Impairment, rated Employee as having a 28% permanent partial impairment (PPI) as a result of the T4-L3 fusion. (00047 SIME Binder) . 13) On March 28, 1990, Dr. Horning saw Employee and diagnosed (1) achondroplastic dwarfism, (2) status-post fusion from T4 to L3 due to scoliosis, (3) reduced range of motion secondary to numbers 1 and 2, (4) chronic head and neck ache from muscle contraction pain and migraines, and (5) left elbow arthritis. These conditions were permanent and stationary but Employee's condition was expected to deteriorate over time. Employee had permanent lifting restrictions (00052 SIME Binder) . 14) On June 16, 1994, Employee saw Davis Peterson, M.D., following an onset of pain after lifting grader tires while working for the Municipality of Anchorage. A neurological evaluation was recommended (00072-73 SIME Binder) . 15) On August 14, 1994, Dr. King noted back pain (post scoliosis) , migraine headaches, and history of numbness and tingling in the upper and lower extremities. He recommended Employee see a neurologist (00074-75 SIME Binder) . 16) On August 16, 1994, Philip L. Grisham, M.D., conducted a neurological evaluation and recommended nerve conduction studies (00079-80 SIME Binder) . 17) Henk I. Dawson, M.D., did the nerve conduction testing and found the study normal with no electrophysiologic evidence to suggest radiculopathy or peripheral neuropathy (00081 SIME Binder) . 18) On November 7, 1995, Employee saw Dr. Peterson for severe right radiating leg pain. Dr. Peterson found no fixed radiculopathy and recommended a CT of lumbar spine (00092 SIME Binder) . 19) On November 6, 1997, Employee was seen at Providence Hospital Emergency Room after a fall on the ice. His assessment was back contusion, with the Harrington rods stable on x-ray (00094 SIME Binder) . 20) On August 4, 1998, Employee was seen for back pain following an altercation and treated for a hemopneumothorax and rib fracture (00110 SIME Binder) . 21) On December 15, 1998, Employee again saw Dr. Peterson for pain at the upper left side of his scoliosis incision and at the left upper shoulder and trapezius level. Dr. Peterson recommended physical therapy (00194-195 SIME Binder) . 22) On January 14, 1999, Dr. Peterson reviewed the cervical MRI which was normal. Physical therapy was helping (00208 SIME Binder) . 23) On September 15, 1999, Employee saw John E. Hall, M.D., at Providence Emergency Room following a motor vehicle accident. The assessment was contusion of the chest wall and musculoskeletal strain cervical (00218 SIME Binder) . 24) On March 16, 2000, Dr. Peterson noted Employee was involved in another motor vehicle accident on February 25, 2000, with resulting neck and left shoulder pain and complaints of low back pain (00242-243 SIME Binder). 25) On September 8, 2000, Employee saw Dr. Peterson reporting another auto accident on August 10, 2000, when he was rear-ended (00252 SIME Binder) . 26) On October 3, 2000, Employee reported to Dr. Peterson an onset of severe back and buttock pain, following the August accident. Dr. Peterson recommended an MRI of L4-5 and L5-S1. The MRI scan was normal (00277 SIME Binder) . 27) On November 27, 2000, Dr. Peterson noted Employee had a nerve root block at S1 with transient pain relief. He suspected a root traction injury or S1 radiculitis and increased Employee's Neurontin to 200 mg. three times a day. On December 13, 2000, Employee complained of increased pain and right foot numbness (00285 SIME Binder) . 28) On January 22, 2001, Employee reported to Dr. Peterson he had seen J. Michael James, M.D., who recommended physical therapy and an increase in Neurontin for pain management. (00286 SIME Binder) . 29) On March 27, 2001, Employee reported to Dr. Peterson continuing left leg pain after an EMG and nerve conduction studies (NCS) , which showed L5 acute and chronic radiculopathy (0266-0290 SIME Binder) . 30) On September 13, 2002, Dr. Peterson saw Employee for chronic back pain and right leg radiation. His assessment was probable S1 radiculitis from mild degenerative changes L3 to sacrum. Dr. Peterson prescribed Bextra and swimming (00332 SIME Binder) . 31) On October 2, 2002, Employee continued to have severe back, buttock and radiating thigh pain. The standing AP pelvis view was normal. An MRI was scheduled (00333 SIME Binder) . 32) On October 29, 2002, Employee had an MRI, which was compared to the October 2000 MRI and showed stability with...