James Babcock v. MB Roofing

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-144602

Employee: James Babcock

Employer: MB Roofing

Insurer: Missouri Employers Mutual Insurance Co.

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

Date of Accident: December 30, 1998

Place and County of Accident: Kansas City, Jackson County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the chief administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the chief administrative law judge dated July 12, 2004. The award and decision of Chief Administrative Law Judge Kenneth J. Cain, issued July 12, 2004, is attached and incorporated by this reference.

The Commission further approves and affirms the chief 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 $14^{\text {th }}$ day of February 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Member

Attest: John J. Hickey, Member

Secretary

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: December 30, 1998
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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, while in the course and scope of his employment as a roofer for his employer, MB Roofing, sustained an injury when he fell from the roof and landed on the ground below.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: low back and left leg and ankle
14. Nature and extent of any permanent disability: compression fractures at L1, L2 and pillion fracture of the left tibia.
15. Compensation paid to-date for temporary disability: $\ 5,423.74
16. Value necessary medical aid paid to date by employer/insurer? $\ 34,986.29
17. Value necessary medical aid not furnished by employer/insurer? None
18. Employee's average weekly wages: $\ 384.55
19. Weekly compensation rate: $\ 256.37
20. Method wages computation: 287.250

1. Amount of compensation payable:

Unpaid medical expenses: None 19 2/7 weeks of temporary total disability (or temporary partial disability) @ $\ 256.37 = \$4,905.65 (\5,423,74 previously paid, resulting in an overpayment of \ 518.09 )

Claimant testified that Dr. James Reardon performed surgery on his left leg. He stated that the doctor placed pins in it. He also indicated, however, that he concluded that the doctor was not looking after his best interest and that he, therefore, requested a referral to a different physician. He stated that the insurance company refused to do so. He stated that he then went to St. Joseph Chiropractic on his own hoping to improve his mobility.

Claimant testified, however, that he was "hot-headed" and that he had problems in getting along with Dr. Reardon. He admitted to problems in getting along with the physical therapist.

Next, Claimant testified that he had only worked for MB Roofing for two weeks prior to the accident. He acknowledged that he had stated in his claim for compensation that his average weekly wages were $\ 500 per week. He stated that he "figured" that he would make that amount. He stated that it was "an around-about figure." He stated that his actual wages were based on the amount of squares put on a roof. He stated that the pay was greater for working on steeper roofs. He also admitted that the wage statement contained two advanced payments made to him by his employer.

Claimant stated that he had alleged in the claim for compensation injuries to his neck, back, hip, leg and ankle in the accident. He stated that his left ankle, left hip and low back continued to throb. He stated that he still experienced pain in his mid back and neck. He indicated that he was experiencing such pain on the day of the hearing. He stated that his pain had gotten worse over the last two years.

Claimant complained of problems in walking, standing and sitting. He stated that his back was throbbing at the hearing. He stated that it was difficult to walk on uneven surfaces and up and down stairs. He admitted that he did not always use a cane to walk.

Claimant admitted that Dr. Reardon released him to light duty. He stated he did not go back to roofing because his employer would not take him back. He stated that he could not sit for eight hours and do a job.

Claimant testified that subsequent to the accident he sought treatment at the Family Guidance Center due to suicidal thoughts. He stated that he also thought someone was out to kill him. He stated that he was paranoid and stressed out. He complained of being depressed due to a lack of money and his inability to work.

Claimant admitted, however, that during the period in which he received treatment at the Family Guidance Center he was using alcohol and smoking marijuana. He stated that he was an addict. He stated that he used the alcohol and drugs to relieve his arthritic pain and stress and anxiety.

Later, Claimant admitted that prior to the accident at work he had used both alcohol and marijuana. He denied using either to the same extent as after the accident. He stated that subsequent to the accident at work he was placed in several 96 -hours holds due to his mental problems. He stated that the 96 -hours holds were for individuals who were dangerous to themselves or others. He stated that eventually he was placed in treatment for 60 days for his drug and alcohol problems. He stated that he had been "clean and sober" for seven or eight months.

Claimant testified that he was on medication for his arthritis and mental problems. He also alleged some psychological problems, which preexisted the December 1998 accident at work. He stated that after falling from the roof he became suicidal and thought that people were out to kill him. He stated that prior to the fall he had experienced emotional problems and received counseling in elementary school. He stated that he had trouble with discipline in school. He stated that he had trouble with discipline, authority and relating to people in the workforce. He stated that he was honorably discharged from the military after six weeks due to an inability to get along with the drill instructors.

Claimant testified that his father was an alcoholic and abusive. He stated that he was a poor student in school. He stated that he had trouble with reading and math. He stated that he repeated the ninth and tenth grades. He stated that he later obtained a GED.

Claimant testified that he had worked on a number of jobs for short periods but quit due to an inability to get along with his supervisors. He stated that the jobs were in restaurants, construction, roofing and general maintenance. He stated that on one occasion he owned a roofing company, but quit the business after he began experiencing problems in his marriage.

Claimant alleged that subsequent to the accident at work he began to experience panic attacks. He stated that pressure caused stress. He alleged sleep problems. He stated that medication helped with the panic attacks and sleep problems.

On cross-examination by his employer, Claimant testified that he had been diagnosed with paranoid schizophrenia and depression. He stated that he believed that the psychiatric problems and not the physical impairments prevented him from working.

Claimant admitted that he was actively abusing marijuana at the time of each of his multiple involuntary holds at the

Heartland Psychiatric Hospital. He admitted that he was using alcohol at the time of some of the involuntary holds. He stated that despite being afraid of people, he would approach individuals in bars and stores in an effort