Joseph Heuer v. Sunrise R-9 School District

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-166891

Employee: Joseph Heuer

Employer: Sunrise R-9 School District

Insurer: Missouri United School Insurance c/o Gallagher Bassett

Date of Accident: December 20, 1999

Place and County of Accident: Jefferson 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 March 17, 2005. The award and decision of Administrative Law Judge Koren M. Mueller, issued March 17, 2005, 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 $\qquad 22^{\text {nd }} \qquad$ day of July 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, 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 20, 1999
5. State location where accident occurred or occupational disease was contracted: Jefferson County
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 involved in a motor vehicle accident 12. Did accident or occupational disease cause death? No Date of death? ---- 13. Part(s) of body injured by accident or occupational disease: Right knee and low back 14. Nature and extent of any permanent disability: 25 % of the right knee, and 20 % body as a whole referrable to the low back 15. Compensation paid to-date for temporary disability: $\ 1,081.76 16. Value necessary medical aid paid to date by employer/insurer? $\ 33,840.73 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 272.88 19. Weekly compensation rate: $\ 181.92 TTD and PPD 20. Method wages computation: See Award

1. Amount of compensation payable: -----

Unpaid medical expenses: N/A weeks of temporary total disability (or temporary partial disability) underpayment of $\ 217.67 due from employer

120 weeks of permanent partial disability from Employer

N/A weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for

Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential () payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

TOTAL:

$\ 22,048.07

1. Future requirements awarded: None

Said payments to begin as of the date of this Award 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:

Ray A. Gerritzen

Employee: Joseph Heuer

Injury No: 99-166891

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Sunrise R-9 School District

Additional Party N/A

Insurer: Missouri United School Insurance c/o Gallagher Bassett

Checked by: KMM/bfb

The above-referenced claim was heard by the undersigned Administrative Law Judge on September 27, 2004 and on November 17, 2004 at Jefferson Memorial Hospital in Jefferson County, Missouri. The claim was heard against only the Employer/Insurer; the Second Injury Fund was not applicable. Post-hearing briefs were initially due December 17, 2004 and the parties by agreement requested an extension of time and briefs were received and the claim was formally submitted on December 21, 2004. Joseph Heuer, (hereinafter "Claimant"), was represented by Ray A. Gerritzen. Sunrise R-9 School District, (hereinafter "Employer"), was insured by MUSIC Self-Insured, care of Gallagher Basset Services, and represented by Karen A. Mulroy. Joseph Heuer, Sandra Heuer, Timothy J. LaBruyere and Kathryn Heimos testified live at the hearing. Mr. Gerritzen requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about December 20, 1999, the Claimant while in the employment of Employer sustained an injury by accident in Jefferson County, Missouri. The parties further stipulated that the Employer had notice of the injury and a claim for compensation was filed within the time prescribed by law. Claimant was paid compensation in the amount of $\ 1081.76 at a temporary total disability rate of $\ 145.61. Those payments represented $71 / 7$ weeks of benefits covering a period from December 21, 1999 through January 11, 2000; from May 2, 2001 through May 28, 2001 and from January 3, 2002 through January 4, 2002. Medical aid was provided in the amount of $\ 33,840.73.

The parties agreed and stipulated that the issues for disposition in this case are:

1. Medical Causation
2. Future Medical Care
3. Rate
4. Nature and Extent of Permanent Partial Disability

Claimant offered the following exhibits which were admitted into evidence without objection:

Claimant's A: Ronald E. Hoffman, M.D. deposition taken May 10, 2004

Claimant's B: Jefferson Memorial Hospital medical records

Claimant's C: Frank A. Krewet, M.D. medical records

Claimant's D: Jefferson Memorial Hospital Rehabilitation Center medical records

Claimant's E: Kirkwood MRI Center medical records

Claimant's F: Frank A. Krewet, M.D. medical records

Claimant's G: ProRehab medical records

Claimant's H: David A. Mullen, D.O. deposition taken August 6, 2004

Claimant's I: Operative report dated May 2, 2001

Claimant's J: Judgment dated July 28, 2004

Claimant's K: Letter dated July 26, 2004

Claimant's L: Letter dated July 21, 2004

Claimant's P: School District's response page 4

Claimant's Q: School District's response page 4

Claimant offered the following exhibits which were admitted into evidence after Employer withdrew objection:

Claimant's M: Photograph

Claimant's N: Photograph

Claimant's O: W-2 Wage and Tax Statement 1999

Employer offered the following exhibits which were admitted into evidence without objection:

Employer/Insurer's 1: John D. Graham, M.D. deposition taken April 7, 2004

Employer/Insurer's 2: John R. Wagner, M.D. deposition taken May 7, 2004

Employer/Insurer's 3: Orthopedic and Sports Medicine medical records

Employer/Insurer's 4: The Occupational Medicine Specialty Center medical records

Employer/Insurer's 5: Michael F. Boland, M.D. medical report

Employer offered the following exhibits which were admitted into evidence over the objection of Claimant:

Employer/Insurer's 6: Sunrise R-9 School District payroll records

Employer/Insurer's 8: David O. Mullen, D.O. medical report

Employer offered the following exhibit which was not admitted into evidence after Claimant's objection was sustained:

Employer/Insurer's 7: John D. Graham, M.D. June 16, 2004 report

Claimant was 55 years old at the time of the hearing held in this matter. Claimant obtained an Associates Degree in Business and Auto Tech. in 1970. He was honorably discharged from the United States Army in 1972. Claimant, prior to the accident involved in this claim was a school bus driver for Employer. Claimant was hired by Employer in 1994. He normally drove five days per week and was unsure of the hours. Claimant testified he worked less than twenty hours each week for Employer explaining that he did not qualify for retirement benefits, which required at least twenty hours of work each week. He was paid a yearly salary for elementary school routes and received additional pay for high school and field trip routes. Claimant testified his "W-2" wages were $\ 10,634.76 for the year 1999. Claimant continues to work for Employer through the dates of hearing.

Claimant testified there were drivers that worked more hours than he did prior to the accident because some drivers qualified for retirement benefits. Claimant testified that the wage information provided by the Employer was inaccurate noting that field trips were not in chronological order. However, Claimant could not specify additional dates of field trips nor increased hours during the applicable time period. Claimant did not know if he worked more hours than the documents reported. Claimant appeared confused by the reports, however he testified that knew he was paid fairly by reviewing the "sheets" given to him by Employer. Claimant did not dispute the 1999 wage form (EE's Exh. O) and in fact used the 1999 W-2 form to prepare his taxes. He does not recall the number of 1999 field trips he drove for Employer. If wages were inaccurate Claimant would notify the Employer's bookkeeper. Claimant testified on cross-examination that errors in wages were not routine.

Claimant was returning a school bus to the garage on December 20, 1999 when a work van ran a stop and hit

the back of the front tire area of the bus behind the driver. Claimant's head hit the bus window, and the steering column jammed the inside of his right knee. Claimant's wife took Claimant to Jefferson Memorial Hospital. Claimant had a knot on his head, redness in his right eye, hand contusions, shoulder pain, a lump in the right knee and back pain. Dr. Krewet's diagnoses were multiple contusions with contusion of the head, right knee, right and left hands, right shoulder and low back strain (Claimant's Exh. C). Claimant was treated a JMH with ice packs, pain relievers, eye drops and antibiotics. He testified he was off work for twenty-one days. After his initial treatment Claimant had ongoing problems with his right knee and low back.

Claimant was treated by Dr. Wayne who diagnosed right knee contusion/strain, lumbar strain and right knee degenerative changes. Claimant received a knee injection and lumbar epidural steroid injections. Dr. Wagner performed a right knee arthroscopy on May 2, 2001 with post operative diagnoses of chondromalacia of the lateral tibial plateau and patella. The medial meniscus was intact according to Dr. Wagner. Dr. Wagner shaved the chondromalcia. Claimant testified his knee was better for several months and then progressively worse. Claimant testified he was off work one month after his right knee surgery. Dr. Wagner testified Claimant reached maximum medical improvement on March 14, 2002 and he issued a rating of 7.5 % permanent partial dis