Charles Rothschild v. Roloff Trucking, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-112621

Employee: Charles Rothschild

Employer: Roloff Trucking, Inc.

Insurer: Continental Western Insurance Company

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

Date of Accident: August 30, 1999

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 19, 2006. The award and decision of Administrative Law Judge Leslie E. H. Brown, issued January 19, 2006, is attached and incorporated by this reference.

Employer/insurer filed a motion to submit additional evidence in the form of a copy of a cancelled check allegedly proving payment of a bill in the amount of $\ 217.00 from West County Radiology. We deny the motion. Our role is to award the compensation set forth in Chapter 287 RSMo. The administrative law judge did so. We affirm the administrative law judge's conclusion that employee is entitled to payment of this medical expense and that employer/insurer shall make payment if the bill is unpaid (Award p. 43).

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 $\qquad 23^{\text {rd }} \qquad$ day of January 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

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: August 30, 1999
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? 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: Removing tree limb from truck cab shield and fell off truck
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, left shoulder 14. Nature and extent of any permanent disability: 50% permanent partial disability referable to the right knee and 20% permanent partial disability referable to the left shoulder.
13. Compensation paid to-date for temporary disability: $\ 32,463.72
14. Value necessary medical aid paid to date by employer/insurer? $\ 54,649.82
15. Value necessary medical aid not furnished by employer/insurer? $\ 217.00
16. Employee's average weekly wages: $\ 560.84
17. Weekly compensation rate: $\$ 373.89 / \ 303.01
18. Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Future medical care (knee braces) . . . . . . . . . . . . . . . . . . . . Future medical care (knee brace) Unpaidmedicalexpenses: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

50% of the right knee, 20% of the left shoulder permanent partial disability

fromEmployerpr. 38,300.46

Multiplicity. 3,830.05

---- weeks of disfigurement from Employer

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

Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

TOTAL: $42,347.51; FUTURE MEDICAL CARE

OF A KNEE BRACE.

1. Future requirements awarded: Future medical of a right knee brace

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:

Co-counsels Ray Gerritzen, Attorney for Claimant and Allen Surinsky, Attorney for claimant; and 50\% of Attorney Allen Surinsky's attorney fee to Ron Caimi, Attorney at Law of Brown \& Crouppen

Employee: Charles Rothschild

Injury No: 99-112621

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: ---

Employer: Roloff Trucking Inc.

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

Insurer: Continental Western Insurance Company

Checked by: LEHB/bfb

This is a joint hearing involving four cases for the claimant, Charles Rothschild, who in all four cases appeared in person and by counsel, Attorney Ray Gerritzen. In all four cases, the Second Injury Fund appeared by and through Assistant Attorney General

Caroline Bean. In the first case, Injury No. 99-112621, the employer/insurer, Roloff Trucking/Continental Western Ins. Co., appeared by and through counsel, Attorney John Mohan.

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

On or about August 30, 1999: a. the claimant while in the employment of Roloff Trucking Incorporated sustained an injury by accident arising out of and in the course his employment occurring in Franklin County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was insured by Continental Western Insurance Company; d. the employee's average weekly wage was $\ 560.84, the rate being $\ 373.89 over $\ 303.01.

e. The employer had notice of the injury. f. A Claim for Compensation was filed within the time prescribed by law. g. Temporary total disability benefits have been paid to the claimant by the employer/insurer in the total amount of $\ 30,075.84; those payments represent $822 / 7$ weeks of benefits covering a period from August 31, 1999 through March 28, 2001. h. Medical aid has been provided in the total amount of $\ 54,649.82.

i. The claimant and the employer/insurer (Roloff Trucking/Continental Western Insurance Company) further agree and stipulate: that on or about October 16, 2003 Ray Gerritzen, Attorney for Claimant, made a demand for the difference between what claimant was paid for temporary total disability and an alleged $\ 7000.00 amount due plus interest at 10 percent per annum under 227.160 ${ }^{[1]}$ Revised Statutes of Missouri. On 11/25/03 Continental Western's group check number 0210020359, dated 11/13/03, in the amount of $\ 2,378.88 was sent to Mr. Rothschild. The check noted: TTD rate correction, 82.27 weeks, 8/31/99 through 3/28/01. But there was no payment of any interest due on the money, and the claimant asks for an interest award of 10 percent on $\ 2,378.88 from $3 / 28 / 01$.

Additional/clarifying comment by the employer/insurer (agreed to by the claimant): Roloff and it's insurer paid the amount of $\ 344.98 for TTD instead of the amount of $\ 373.89, which was found to be eventually the correct rate; and paid that amount in a timely fashion with the underpayment being the difference between $\ 373.89 and $\ 344.98. After the claimant's attorney had brought it to the attention of the employer/insurer attorney and he in turn brought it to the attention of the insurer, the insurer performed an investigation and discovered the wage rate had been incorrect, they'd been given an incorrect wage rate. We at that point issued the check in the amount of $\ 2,387.88 representing the underpayment between the dates aforesaid that have been read into the record.

1. Medical causation
2. Liability of past medical expenses
3. Future medical care
4. Nature and extent of permanent disability - whether partial or total
5. Liability of the Second Injury Fund
6. Interest (Whether or not interest is due on a late payment of temporary total disability benefits that were due on March 28, 2001; the amount in question upon which interest of 10 percent is being requested is $\ 2,378.88.)

FINDINGS OF FACTS AND RULINGS OF LAW - Injury Number 99-112621

It is agreed and stipulated to by the parties that the claimant, Charles Rothschild, sustained injury as a result of a work related accident arising out of and in the course his employment with Roloff Trucking Incorporated on or about August 30, 1999. Rothschild testified that on August 30, 1999 he was delivering rock to a construction site in a dump truck for Roloff, and as he was starting to leave the dump site after dumping the rock he noticed that one of the tree limbs had broken off in the cab shield and was hanging down over the windshield. I got out and pulled it out and that's when the accident happened, Rothschild stated. When I jerked the tree limb all of a sudden it came out and I slipped and fell off the side of the truck, about 11 or 12 feet, and landed pretty much on my feet the best I could and then rolled, primarily landing I think on the right leg then the left; and my knee immediately, and my left shoulder, was hurting pretty bad, the claimant testified. I think I twisted my knee because it was really sore and my left shoulder was too, it must of happened when I rolled on the ground on my left shoulder, he said. I experienced pain immediately in my right knee, left shoulder, and my left ankle and heel area, Rothschild stated. I then got back in the truck with a little bit of difficulty, he said, and I took the truck back to the shop.

The next day I tried to get up and I was really hurting, the claimant said, my right knee was killing me and it was so swolled up it was starting to turn colors. And my left shoulder, I could not even lift it up, Rothschild said. I knew I wasn't going to be able

to work that day so I called in and told them that I had hurt myself that night, and I had to go see the doctor, or chiropractor, or something. Agreeing that he saw Dr. Al Fischer, Rothschild stated that the boss used this doctor, Roloff used him. Dr. Fischer xrayed and checked my range of motion out on mainly my left shoulder and my right knee 'cause I was really hurting, I was having a real hard time walking, Rothschild said. Dr. Fischer started making me do these movements and exercises, and I think there was hot packs and cold packs and ultrasound on my left shoulder and I think my right knee too, he said. Th