James Ignatz v. Phillips Getschow Co.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-025748

Employee: James Ignatz

Employer: Phillips Getschow Co. (Settled)

Insurer: Fidelity and Guaranty Insurance Co.

c/o Gallagher Basset (Settled)

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

Date of Accident: March 8, 2000

Place and County of Accident: Franklin 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 January 5, 2006. The award and decision of Administrative Law Judge Leslie E. H. Brown, issued January 5, 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 $23^{\text {rd }}$ day of August 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: Yes
5. State location where accident occurred or occupational disease was contracted: Franklin County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? ---- 7. Did employer receive proper notice? ---- 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? ---- 11. Describe work employee was doing and how accident occurred or occupational disease contracted: ---- 12. Did accident or occupational disease cause death? No Date of death? ---- 13. Part(s) of body injured by accident or occupational disease: left elbow 14. Nature and extent of any permanent disability: Permanent partial disability against the Second Injury Fund 15. Compensation paid to-date for temporary disability: ---- 16. Value necessary medical aid paid to date by employer/insurer? ---- 17. Value necessary medical aid not furnished by employer/insurer? ---- 18. Employee's average weekly wages: maximum 19. Weekly compensation rate: $\$ 578.48 / \ 303.01
7. Method wages computation: by agreement of the parties

1. Amount of compensation payable: ----

Unpaid medical expenses: ----

---- weeks of temporary total disability (or temporary partial disability)

---- weeks of permanent partial disability from Employer

---- weeks of disfigurement from Employer

----Permanent total disability benefits from Employer beginning ----, for

Claimant's lifetime

1. Second Injury Fund liability: Yes X

TOTAL:

$\ 15,832.88

1. Future requirements awarded: ----

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:

Mathew J. Padberg, Attorney for Claimant

Employee: James Ignatz

Injury No: 00-025748

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ----

Employer: Phillips Getschow Co. (previously settled)

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: ----

Checked by: LEHB/bfb for df

This is a hearing in Injury Number 00-025748. The claimant, James Ignatz, appeared in person and by counsel, Matthew Padberg, Attorney at Law. The claim against the employer/insurer was previously settled and the employer/insurer was not present at this hearing. The Second Injury Fund appeared by and through Assistant Attorney General Jennifer

Sommers.

The parties entered into certain stipulations, and agreements as to the complex issues and evidence to be presented in this hearing.

On or about March 8, 2000: a. the claimant while in the employment of Phillips Getschow Company, sustained an injury by accident arising out of and in the course of his employment in Franklin County, Missouri; b. the employee's average weekly wage was at the maximum, the rate being $\ 578.48 over $\ 303.01.

c. A Claim for Compensation was filed within the time prescribed by law.

1. Nature and extent of permanent disability - whether or not partial or total
2. Liability of the Second Injury Fund

The following exhibits were admitted into evidence:

No. A: Deposition transcript of Dr. Robert Margolis, M.D., taken on behalf of the employee on November 16, 2004 (Admitted subject to objections therein)

No. B: Report of Robert P. Margolis, M.D., dated March 30, 2004

No. C: Deposition transcript of Samuel Bernstein, Ph.D., taken on behalf of the employee on November 12, 2004 (Admitted subject to objections therein)

No. D: Report of Samuel Bernstein, Ph.D., dated April 8, 2003

No. E: Records of St. John's Mercy Medical Center

No. F: Records of Missouri Bone \& Joint Clinic

No. G: Records of Dr. Martin Boyer, M.D.

No. H: Records of Gateway Rehabilitation

No. I: Records of Anderson Hospital

No. J: Records of Orthopedic \& Sports Medicine

No. K: Records of Belleville Memorial Hospital

No. L: Records of Dr. Dale Rosenberg, M.D.

No. M: Records of Associated Orthopedic Surgeons

No. N: Records of Oliver Anderson Hospital

No. O: Records of Christian Hospital Northeast

No. P: Records of Dr. James Strickland, M.D.

No. Q: WITHDRAWN

No. R: Records of Dr. Stephen Benz, M.D.

No. S: Records of Dr. Gregg Ginsburg, M.D.

No. T: Record of Dr. Erik Houttuin, M.D

No. U: Record of Dr. Christopher Speidel, M.D.

No. V: Record of Dr. Michael Rallo

No. W: Prior Workers' Compensation records

Second Injury Fund's Exhibits:

No. 1: Deposition transcript of James M. England, Jr. taken on behalf of the Second Injury Fund on May 5, 2005 (Admitted subject to objections therein)

James Ignatz, the claimant, testified that he is fifty-nine years old, date of birth January 14, 1946. I have two years of community college with a degree in computer processing in 1968, Ignatz said, but further stated that he has no modern

computer skills as he has never worked in computers. After computer school I went into construction work, a boilermaker, the claimant said, and I worked as a boilermaker up until the March 8, 2000 accident.

Ignatz explained a boilermaker's duties. We build power plants, safety pollution devices; build tanks and ships, he said. My job duties required me to bend, lift, stoop, climb ladders and stairs and get into awkward positions, he stated. I carried a tool belt that weighed about 35 pounds, Ignatz said. He agreed that it was a heavy labor job. I worked out of a union hall, the claimant testified, and could work for five employers in one week, or on a big job, and around the country. I was a journeyman boilermaker after two and a half years working, he said.

Testifying about his work related injury on March 8, 2000, Ignatz stated that he was working as a boilermaker and foreman at the Labadie Power Plant and the crew had just gone into a boiler. When I turned a release valve off a one-half inch diameter hose blew off and hit me across the left arm; mud hit my face and hit my watch leaving an indent of the watch in my hand, the claimant testified, and my left arm went numb. I reported the injury, the claimant said. While working a few weeks later, I picked up an object at work and experienced more pain in my left elbow and forearm, and decided to seek treatment, Ignatz said.

I got treatment at St. John's Mercy Hospital two days later, Ignatz testified. X-rays were taken and I was told I had a bone chip in the left wrist, and it was immobilized until I could go see another doctor, he said. I was taken off work, the claimant said, and ended up missing two years of work because of treatment. The Labadie Power Plant job was my last job, he said. Discussing his treatment, Ignatz stated that his arm in a cast did not get any better. I came under the care of Dr. Scherer, the claimant said, who diagnosed me with a severe contusion of the forearm. Dr. Scherer treated me into the summer of 2000; my symptoms were pain radiating down my forearm and weakness in my left arm, the claimant said. Dr. Scherer referred me to Dr Galatz who also kept me off work, the claimant testified. Dr. Galatz' treatment included nerve shots which gave me temporary relief; continued problems were that my arm would go numb with lifting my hand, he said. Dr. Galatz sent me to physical therapy but I continued to have pain upon trying to lift anything with my left arm, Ignatz stated. I was sent for a functional capacity evaluation, the claimant said. I was then examined by Dr. Boyer who offered surgery, the claimant stated. Ignatz noted that Dr. Cantrell performed an electrical test on him, and with testing my arm popped; the doctor said I should retire because I could not control my left arm, Ignatz stated. Another functional capacity evaluation was performed and I had difficulty while doing the activities, the claimant said.

I can't go back to being a boilermaker because in that job I have to climb steel ladders and I can't do that anymore.

The claimant testified about prior injuries and conditions. In November 1999 I had a heart attack; I died and was brought back; they put a stent in my heart, he said. I returned to work after this in January or February 2000, the claimant said. On the job I experienced chest pain with moving stuff and was taken to the hospital by ambulance, he said. I was moved to another job and the employer made accommodations, and three weeks later I got hurt (March 8, 2000). Continuing problems with my heart that caused problems with working, Ignatz said, are tightness in my chest, fatigue particularly with going up and down stairs and it feels like my blood pressure goes up with excitement. I take cardiac medications, blood pressure medicine and cholesterol medication, he said. In 1976 I fell backwards onto a hangar rod and knocked my tailbone off, Ignatz said. I missed work for this injury because everything a boilermaker does is heavy, he said. Continuing problems from the 1976 injury are that I lose feeling in my right leg, I have to watch what I am lifting to avoid pulling my back out. Also, I have problems with walking because of the pressure on my spine; the discs are crushed together and causes the pressure, the claimant said. I would miss time from work from time to time because of my back, Ignatz said. I have had surgery on both of my knees, the claimant said. In June of 1994 I injured my right knee at work and had two surgeries, the claimant said. I had an injury to the left knee in January 1996 and surgery in February 1996, Ignatz stated, they took bone chips out and there was