Gary Sullivan v. Advanced Drywall Systems, Inc.

Employee has established a medical causal connection between the scaffold tipping, which we just held is a violation of § 287.120.4, and his injuries.

Employee has established the three elements prerequisite to an award of compensation under § 287.120.4 as set forth in Akers, supra. Section 287.120.4 mandates that we increase the compensation awarded by fifteen percent. Accordingly, the compensation as awarded by the administrative law judge is hereby increased by fifteen percent ( 15 % ).

The administrative law judge made employee's entitlement to future medical care in the form of ongoing pain management contingent upon employee's future behavior. We do not so limit the award. Employee is awarded future medical care in the form of pain management as needed to cure and relieve him of the effects of the injury pursuant to the provisions of the Workers' Compensation Act.

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.

The award and decision of Administrative Law Judge Linda J. Wenman, issued August 30, 2005, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of September 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

SEPARATE OPINION FILED

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge allowing compensation should be modified, although not in the same manner as the majority believes.

I find the testimony of Dr. Coyle to be the most persuasive, credible and trustworthy. Dr. Coyle believes that employee's low back condition is entirely due to his preexisting spondylolisthesis. Dr. Coyle cannot make a causal connection between the fall from the scaffold and employee's spondylolisthesis becoming symptomatic because employee's low back did not become symptomatic for many months after the scaffold incident. I find that the scaffold incident did not cause employee's low back condition or his resultant psychological problems.

As a consequence of this finding, I would limit the payment of past medical expenses to treatment of employee's left knee injury and I would limit future medical in the form of pain management to treatment of pain related to the knee injury.

I do not believe employee is permanently and totally disabled as a result of a combination of his primary injury with his preexisting conditions. I believe employee is 45 % permanently and partially disabled at the level of the left knee. If employee is permanently and totally disabled it is as a result of his post-injury worsening of his spondylolisthesis and is, thus, not compensable. I would reverse the award of permanent total disability against employer and award 45\%

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: February 8, 2000
5. State location where accident occurred or occupational disease was contracted: St. Louis 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 fell approximately 5 feet from a scaffold while taping drywall.
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: Left leg at knee, lumbar spine
14. Nature and extent of any permanent disability: Permanent total disability from Employer
15. Compensation paid to-date for temporary disability: $\ 14,602.46 a period of 36 weeks.

Employee: Gary Sullivan

Injury No.: 00-022997

Dependents: N/A

Employer: Advanced Drywall Systems Inc.

Additional Party: Second Injury Fund

Insurer: American Interstate Insurance

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW:tr

The above referenced Workers' Compensation claim was heard by the undersigned Administrative Law Judge on May 23, 2005. Briefs were received and the case was formally submitted on June 23, 2005. Attorney Scott Bernstein represented Gary Sullivan (Claimant). Advanced Drywall Systems Inc., (Employer) was insured by American Interstate Insurance, and represented by Attorney Michael Margherio. Assistant Attorney General Rachel Paul represented the Second Injury Fund (SIF). Hearing venue is correct, and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

Prior to the start of the hearing the parties identified the following issues for disposition in this case: wage rate; medical causation; liability of Employer and SIF for permanent total disability (PTD) or permanent partial disability (PPD) benefits; liability for past medical expenses; temporary total disability (TTD) underpayment; future medical care; and application of a penalty under $\S 287.140 .4$ RSMo.

Claimant offered Exhibits A-U. Employer offered Exhibits 1-3, SIF offered Exhibit I, and all exhibits were admitted without objection. Any objections not expressly ruled on in this award are overruled.

Only testimony necessary to support this award will be reviewed and summarized.

Claimant: Claimant is 49 years old. He attended, but did not complete the $9^{\text {th }}$ grade, and did not graduate from high school. Claimant never acquired a GED, and has not received any additional vocational training. Claimant's sole occupation during his working life was as a drywaller. Drywall duties include hard physical work, the ability to access scaffolds and use stilts when required. Claimant's longest period of employment occurred when working for his father, and he frequently did not get along with his father. He worked for other drywall employers successfully, without personality conflicts.

Claimant has memory problems. He has a history of alcohol and marijuana use, and served a jail term for marijuana possession, but has had no arrests for dishonesty or stealing. Claimant is currently seeing a counselor in an effort to stop his alcohol use. He