Robert Winston

FINAL AWARD DENYING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 88-185088

Employee: | Robert Winston |

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

Date of Accident: July 27, 1988 (Allegedly)

Place and County of Accident: St. Charles County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (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 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 administrative law judge dated November 24, 2004, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Koren M. Mueller, issued November 24, 2004, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $16^{\text {th }}$ day of May 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest: John J. Hickey, Member

Secretary

AWARD

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: alleged 7/27/88
5. State location where accident occurred or occupational disease was contracted: St. Charles County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? No
8. Did accident or occupational disease arise out of and in the course of the employment? n/a
9. Was claim for compensation filed within time required by Law? No
10. Was employer insured by above insurer? n/a
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Alleged fall
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: Back
14. Nature and extent of any permanent disability: n/a
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None
17. Value necessary medical aid not furnished by employer/insurer? n/a
18. Employee's average weekly wages: n/a
19. Weekly compensation rate: $\$ 279.64 / \ 167.78
20. Method wages computation: By stipulation

1. Amount of compensation payable: None

Unpaid medical expenses: None None weeks of temporary total disability (or temporary partial disability) None weeks of permanent partial disability from Employer

1. Second Injury Fund liability: No

TOTAL:

1. Future requirements awarded: None

Said payments to begin 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 of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Robert Winston

Injury No: 88-185088

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: General Motors

Add. Party: State Treasurer, as Custodian of the Second Injury Fund

Insurer: Self

Checked by: KMM/df

A consolidated hearing was held in injury numbers 88-185088 and 92-134465 on August 24, 2004 in St. Charles County and post-hearing briefs were to be submitted by the parties on September 17, 2004. Robert Winston (hereinafter "Claimant") by counsel requested an additional week to complete a post-hearing brief and there were no objections to an extension of time. Therefore post-hearing briefs were submitted by the parties by September 24, 2004. The claims were fully submitted on September 24, 2004. Claimant was represented by Harry J. Nichols. General Motors Corp. was represented by Daniel J. Harlan. The Second Injury Fund was represented by Barbara Toepke. Claimant testified at the

hearing. Mr. Nichols requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about July 27, 1988 the Claimant was in the employment of General Motors Corp. (hereinafter "Employer") in St. Charles County, Missouri. The parties further stipulated that the applicable compensation rates are $\$ 279.64 / \ 167.78 and that Claimant has not been paid temporary total disability benefits to date. The parties also stipulated that Employer has not paid any medical benefits to date. The parties agreed and stipulated that the issues for disposition in this case are:

1. Accident
2. Notice
3. Nature and extent of permanent partial disability
4. Statute of limitations
5. Whether the Employer's Answer was filed within the time prescribed by law
6. Payment of medical bills
7. Second Injury Fund liability

Claimant offered the following exhibits which were admitted into evidence:

Claimant's A: Social Security Administration Notice of Decision dated June 26, 1996 (admitted over objection of SIF)

Claimant's B: General Motors Dispensary records (admitted by stipulation of parties)

Claimant's C: Terrence L. Piper, M.D. (St. Peters Bone \& Joint Surgery) records (admitted by stipulation of parties)

Claimant's D: Joseph H. Morrow, Jr., D.O. deposition (admitted by stipulation of parties)

Claimant's F: Marc W. Weise, M.D. (Orthopedic \& Sports Medicine) records (admitted by stipulation of parties)

Claimant's G: Joseph Hanaway, M.D. deposition (admitted by stipulation of parties)

Claimant's H: Charles M. Linsenmeyer, M.D. records (admitted over objection of ER)

Claimant's J: Terrence K. McKellar, D.C. records (admitted over objection of SIF)

Claimant's K: Paul Spezia, D.O. records (admitted over objection of SIF)

Claimant's L: St. Louis Regional Medical Center records (admitted by stipulation of parties)

Claimant's M: Barnes-Jewish Hospital of St. Peters records (admitted by stipulation of parties)

Claimant's N: Boonslick Medical Group, Inc. records (admitted by stipulation of parties)

Claimant's O: St. Joseph Health Center records (admitted by stipulation of parties)

Claimant's P: Daniel J. Bergmann, M.D. (Bennis Surgical) records (admitted over objection of SIF)

Claimant's Q: Saint Louis United Health Sciences Center/Anheuser-Busch Eye Institute (admitted over objection of SIF)

Claimant offered the following exhibits which were NOT admitted into evidence:

Claimant's E: Jacques Paul Schaerer, M.D. records (ER and SIF objections sustained)

Claimant's I: Samuel Bernstein, Ph.D., C.R.C. records (ER and SIF objections sustained)

Employer offered the following exhibits which were admitted into evidence:

Employer's 1: Ralph J. Graff, M.D. May 16, 2002 deposition (admitted by stipulation of parties)

Employer's 2: Ralph J. Graff, M.D. May 5, 1992 deposition (admitted by stipulation of parties)

The Second Injury Fund offered the following exhibit, which was admitted into evidence:

SIF I: James England, Jr. deposition (admitted over objection of Claimant)

Claimant testified that he was 58 years old at the time of hearing (Injury date was 16 years ago). Claimant stated he graduated from high school and trade school for plumbing and pipefitting. Claimant testified he worked as a construction plumber from 1965 until 1976. He began working in 1976 as a skilled trades pipefitter at Employer. He did not work on the assembly line, instead he worked with high-pressure pumps, air lines, water lines, sewers and waste lines. He regularly serviced machines, hydraulic lines, water, sewer and high-pressure lines as well as gas and air lines. He testified that these lines could be located in ceilings, walls or floors. He further testified that he used 36-48 inch wrenches and pipes varying from $1 / 4$ inch to 3-4 inches in diameter. Claimant testified he was a journeyman and that when he was on lay-off for plant closure for one year he found work pipefitting with McDonnell Douglass. He testified he worked eighthour days regularly from 1976 through 1987 with ER.

Claimant testified that he fractured his right hip in May 1976 at work and spent one week in the hospital. He complained that his hip hurt after he returned to work. Claimant testified that he presented to ER's dispensary for low back pain and saw Dr. Piper in 1987 for low back pain. Claimant testified that Dr. Piper performed a low back fusion in 1987 at Barnes Hospital-St. Peters and Claimant was off work for one year after surgery on ER-sponsored sick pay. Claimant testified he returned to work sometime in 1988, not sure of the date and saw Dr. Piper from time to time after returning to work. Claimant testified he also went to the ER's dispensary after returning to work. He stated the only physician ER sent him to was Dr. Graph. He further testified that he had temporary relief from the back surgery and that his back pain subsided.

Claimant further testified that after returning to work in 1988 he was transferred from the paint shop to the body shop. Claimant testified he went down while in the process of going over a track. After this injury in 1988 he testified that pain radiated more down his legs and continues to this date. Claimant testified that from 1988 through 1992 he worked fulltime and he was expected to trouble-shoot. Claimant testified he worked with other plumbers and missed a "couple of days." Claimant could not specify the date of the 1988 injury at work.

On cross-examination Claimant testified he could not remember whether he was off work from 8/24/87 through 1/10/88. He also testified he could not remember whether he was back on sick leave from 1/18/88 until 6/13/88. He admitted he was not sure of the July 27, 1988 date of injury from the Workers' Compensation Claim form. Claimant stated he went to ER's dispensary and believed he also went back to see Dr. Piper. Claimant admitted on crossexamination to a slip on ice at home in January or February, but could not remember the year. Claimant agreed that he may have seen Dr. Piper and was sent to work hardening and physical therapy to try and get back to 100 % after that injury. Claimant testified he did not sign the 1988 Workers' Compensation Claim for Compensation date-stamped October 29, 1990 alleging a July 27, 1988 date of injury. Claimant testified the last date he worked was October 15, 1992.

Based upon the competent and substantial evidence, I find that:

Claimant alleges an injury by accident on July 27, 1988. In a workers' compensation proceeding it is the Claimant who has the burden to prove by a preponderance of credible evidence all material elements of the claim, including Second Injury Fund liability. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo. 1968); Fischer v. Archdiocese of St. Louis, 793 S.W. 195 (Mo.App. 1990). ER contends Claimant's claim for compensation is barred by the statute of limitations. Section 287.430 RSMo. provides:

Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefore is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if