James Aulbach v. Sachs Electric

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-169918

Employee: James V. Aulbach

Employer: Sachs Electric (Settled)

Insurer: Liberty Mutual Insurance Company (Settled)

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

Date of Accident: October 23, 1998

Place and County of Accident: St. Louis, 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 February 28, 2006. The award and decision of Administrative Law Judge Cornelius T. Lane, Jr., issued February 28, 2006, 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 $28^{\text {th }}$ day of July 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: October 23, 1998
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Installing a u-shaped channel iron into concrete floors.
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: Right knee
14. Nature and extent of any permanent disability: 27.5 % permanent partial disability of the right knee
15. Compensation paid to-date for temporary disability: $\ 4,903.26
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,810.23

Employee: James V. Aulbach Injury No.: 98-169918 17. Value necessary medical aid not furnished by employer/insurer? -0- 18. Employee's average weekly wages: Maximum 19. Weekly compensation rate: $\$ 562.67 / \ 294.73 20. Method wages computation: By agreement

1. Amount of compensation payable:

Weeks of permanent partial disability from Employer (previously settled)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\267.94) payable by SIF for 44 weeks beginning

March 24, 2000 and thereafter \ 562.67 for Claimant's lifetime

TOTAL:

1. Future requirements awarded: N/A

Said payments to begin immediately 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 20 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Ann G. Dalton

On January 13, 2006, there was a hearing in the above-mentioned matter. The Claimant, James V. Aulbach, was represented by Attorney Ann G. Dalton and the Second Injury Fund was represented by Assistant Attorney General Kay Osborne.

1. The parties stipulated that Claimant sustained an accident or injury arising out of and in the course and scope of his employment on October 23, 1998.
2. At the time, Claimant's temporary total/permanent total disability rate was $\ 562.67 and permanent partial

working through March of 2000 and has not returned to work. Claimant testified that he was unable to continue to do to his job because of such severe pain in his back and his knees. Claimant also had to start using a cane and had difficulty sleeping and during the daytime had to take a nap to relax and had many problems that would make working impossible for him.

1. Claimant was very credible in his testimony and I give a great deal of credit to him for trying so hard to work after all the injuries and disabilities that he sustained through his life.
2. Dr. Volarich testified on behalf of the Claimant. Dr. Volarich stated that the Claimant sustained a 50\% permanent partial disability of the right knee as a result of the injury of October 23, 1998. The doctor also felt Claimant had a 35 % permanent partial disability of the left knee; 25 % permanent partial disability of the left elbow; 35 % preexisting permanent partial disability as a whole due to the surgery performed prior to October 23, 1998; and an additional 35 % permanent partial disability as a body as a whole for the back surgery performed in 2001 and 2002. Dr. Volarich testified very credibly that Claimant was permanently and totally disabled as a result of his work injury of October 23, 1998 and his preexisting disabilities.
3. Timothy Lalk, a vocational counselor, testified that after having viewed all of the injuries of the Claimant and reviewing off of his medical records, and administering vocational testing exams, that Claimant would be unable to compete with other job applicants when applying for a job.

Based upon the Claimant's testimony, Dr. Volarich's testimony, Mr. Timothy Lalk's testimony, and exhibits entered into evidence, it is evident that Claimant is permanently and totally disabled. Claimant's many injuries create a synergistic effect which result in Claimant's inability to work in the open market place. The Second Injury Fund is liable for permanent and total disability benefits resulting from Claimant's disability from the last injury in combination with the preexisting injuries.

Employee: James V. Aulbach Injury No.:98-169918

This award is subject to a lien in the amount of 20 % of the additional payments hereunder in favor of the Claimant's attorney, Ann G. Dalton, for necessary legal services rendered to Claimant.

Date: $\qquad Made by: \qquad$

Cornelius T. Lane

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation