Eric Neathery v. Accurate Fire Protection Systems

Mr. Lory: I'm ready to proceed. I mean what are my options otherwise?

(Tr. 3)

On December 7, 2005, employee, through counsel, filed a Motion to Submit Additional Evidence. The proposed evidence was an October 4, 2005, medical report of Dr. Robert C. Russell. Employer/insurer and the Second Injury Fund filed responses opposing the motion. By Order dated January 4, 2006, the Commission entered an order denying the motion.

On March 1, 2006, employee, through counsel, filed another Motion to Submit Additional Evidence seeking admission of the same October 4, 2005, report. Employee does not attempt to show this Commission that the report satisfies the criteria of Commission Rule 8 CSR 20-3.030(2). Rather, employee's argument seems to be that the Commission should allow the evidence and remand this matter to the Division of Workers' Compensation because the administrative law judge should have issued a temporary award rather than a final award disposing of all issues.

Employee's Motion is again denied. The portion of the transcript reproduced above confirms that employee stipulated to the disposition of all issues.

The administrative law judge did not err by deciding the issues of permanent disability and Second Injury Fund liability or by issuing a final award in this case. 8 CSR 50-2.010(14) provides that "prior to hearing, the parties shall stipulate uncontested facts and present evidence only on contested issues." "Stipulations are controlling and conclusive, and the courts are bound to enforce them." Boyer v. Nat'l Express Co., 49 S.W.3d 700, 705 (Mo. App. 2001)

We modify the award of temporary total disability. The administrative law judge denied temporary total disability for the period September 11, 2003, through June 29, 2004.

Dr. Strecker determined employee was at maximum medical improvement as of September 10, 2003, and needed no further medical care. Dr. Strecker released employee to return to work with several restrictions.

In December 2003, Dr. Hanaway identified that employee was suffering symptoms of ulnar nerve compression and further treatment in the form of surgery was necessary. Dr. Hanaway believed employee remained totally disabled. In January 2004, Dr. Russell also determined that employee needed a third surgery - a submuscular transposition of the ulnar nerve at the level of the elbow.

When employee was finally referred to Dr. Brown on June 21, 2004, Dr. Brown agreed that employee needed a submuscular transposition of the ulnar nerve at the level of the elbow and also felt he needed a decompression of the ulnar nerve at the level of the wrist. Dr. Brown performed those surgeries on September 17, 2004.

We are persuaded that Dr. Strecker's opinion that employee was at maximum medical improvement was incorrect in light of the impressions of Dr. Hanaway, Dr. Russell, and Dr. Brown. Employee did not reach maximum medical improvement until he was released by Dr. Brown on January 4, 2005. Because we believe Dr. Strecker erred in finding employee at maximum medical improvement in September 2003, we are unable to rely upon the physical restrictions he believed would allow employee to return to work in September 2003. We find more persuasive the opinion of Dr. Hanaway that employee remained unemployable as of December 2003. Because Mr. England relied upon Dr. Strecker's restrictions in forming his opinion that employee was employable during the period September 11, 2003, through June 29, 2004, we do not find his opinion regarding this period persuasive. We believe employee remained unemployable from September 2, 2002, until he was released by Dr. Brown.

The administrative law judge relied upon the case of Boyles v. USA Rebar Placement, Inc., 26 S.W.3d 418 (Mo. App. 2000), in reaching his conclusion. Boyles is distinguishable. In Boyles, the claimant did not offer any expert testimony concerning his ability to obtain employment on the open labor market under his condition. In the instant

case, employee offered the medical opinion of Dr. Hanaway and the vocational opinion of Dr. Bernstein to support his contention that he was unemployable during the period in question.

We conclude that in addition to the temporary total disability awarded by the administrative law judge, employee is entitled to temporary total disability benefits for the period September 11, 2003, through January 4, 2005. We modify the administrative law judge's award accordingly.

The Commission 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.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued October 19, 2005, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $22^{\text {nd }}$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Eric Neathery

Injury No.: 02-073752

Dependents: N/A

Before the

Employer: Accurate Fire Protection Systems

Division of Workers'

Additional Party:

Department of Labor and Industrial

Second Injury FundRelations of Missouri

Jefferson City, Missouri

Insurer: American Home Assurance c/o AIG

Hearing Date:August 8 and 12, 2005

Checked by: EJK:tr

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: July 24, 2002

1. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri
2. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
3. Did employer receive proper notice? Yes
4. Did accident or occupational disease arise out of and in the course of the employment? Yes
5. Was claim for compensation filed within time required by Law? Yes
6. Was employer insured by above insurer? Yes
7. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee slipped on a piece of drywall and suffered an ulnar neuropathy in his left arm.
8. Did accident or occupational disease cause death? No Date of death? N/A
9. Part(s) of body injured by accident or occupational disease: Left elbow
10. Nature and extent of any permanent disability: 30 % of the left elbow
11. Compensation paid to-date for temporary disability: $\ 51,667.32
12. Value necessary medical aid paid to date by employer/insurer? $\ 60,506.59

Employee: Eric Neathery Injury No.: 02-073752

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 973.98
3. Weekly compensation rate: $\$ 649.32 / \ 340.12
4. Method wages computation: By agreement

COMPENSATION PAYABLE

21.Amount of compensation payable:

63 weeks of permanent partial disability from Employer \$21,427.56

1. Second Injury Fund liability: Yes

40.25 weeks of permanent partial disability benefits from Second Injury Fund \13,689.83

TOTAL: \quad \ 35,117.39

1. Future requirements awarded: None

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Harry J. Nichols, Esq.

Employee: Eric Neathery

Injury No.: 02-073752

Dependents: N/A

Employer: Accurate Fire Protection Systems

Additional Party: Second Injury Fund

Insurer: American Home Assurance c/o AIG Checked by: EJK

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant, a sprinkler fitter, slipped on a piece of drywall and suffered an ulnar neuropathy in his left arm. The issues for determination are (1) Future medical care, (2) Temporary disability, (3) Permanent disability, (4) Second Injury Fund liability, (5) Mileage, and (6) Costs and Attorney Fees. The evidence compels an award for the claimant for permanent partial disability benefits from the employer and the Second Injury Fund.

At the hearing, the claimant and Samuel Bernstein, Ph.D., testified in person, and the claimant offered a deposition of Joseph Hanaway, M.D., a list of prior injuries, a vocational report and curriculum vita of Dr. Bernstein, Ph.D., a medical report from Joseph Hanaway, M.D., and medical records from Dr. Hanaway, BarnesCare, Ravi Yadava, M.D., Sports Medicine \& Occupational Ortho Clinic, Des Peres Square Surgery Center, Gateway Rehab PT, Joseph Hanaway, M.D., Robert C. Russell, M.D., and Surgery Center of Kirkwood. The defense offered depositions of William B. Strecker, M.D., David M. Brown, M.D., and James M. England, Jr., photos of the claimant, a copy of the claim for compensation, correspondence between counsel, and medical records from John Wagner, M.D., and Joseph Hanaway, M.D. The Second Injury Fund offered a deposition bill from Concannon \& Jaeger from July 7, 2005.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occu