Daniel Mell v. Biebel Brothers, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-085799

Employee: Daniel Mell

Employer: Biebel Brothers, Inc.

Insurer: Missouri Employers Mutual Insurance Co.

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

Date of Accident: July 27, 2001

Place and County of Accident: St. Louis County

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 August 3, 2006. The award and decision of Administrative Law Judge John K. Ottenad, issued August 3, 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 $\qquad 6^{\text {th }} \qquad$ day of February 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

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: July 27, 2001
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: Claimant was a roofer for Employer who developed low back pain when he was shoveling gravel and twisted his back.
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: Body as a Whole-Low Back
14. Nature and extent of any permanent disability: 20 % of the BAW referable to the low back
15. Compensation paid to-date for temporary disability: $\ 9,135.35
16. Value necessary medical aid paid to date by employer/insurer? $\ 22,777.16

Employee: Daniel Mell

Injury No.: 01-085799

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 872.04
3. Weekly compensation rate: $\ 581.36 for TTD/ $\ 329.42 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

6) At the relevant time, Claimant earned an average weekly wage of $\ 872.04, resulting in applicable rates of compensation of $\ 581.36 for total disability benefits and $\ 329.42 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 9,135.35, representing a period of time from July 30, 2001 to November 16, 2001, or $155 / 7 weeks.

8) Employer paid medical benefits totaling \ 22,777.16.

1) Is Claimant entitled to future medical care related to this injury?

2) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this accident?

3) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A-Compilation of medical treatment records pertaining to the low back injury of July 27, 2001 including records from BJC Corporate Health, Dr. Frank O. Petkovich, and ProRehab.

B-Compilation of medical treatment records pertaining to the low back injury of January 9, 2002 including records from Dr. Frank O. Petkovich Dr. James Coyle, Dr. David Raskas, The Work Center, Dr. John Graham and Aquatic Fitness.

C-Stipulation for Compromise Settlement for Injury Number 99-074795 and compilation of medical treatment records pertaining to the low back injury of June 3, 1999 including records from Dr. Frank O. Petkovich and Missouri Baptist Medical Center.

D-Certified records from the Special School District of St. Louis County.

E-Deposition of David T. Volarich, D.O., with attachments, dated March 6, 2006.

F-Deposition of Mr. James M. England, Jr., with attachments, dated February 6, 2006.

1-Deposition of Frank O. Petkovich, M.D., with attachments, dated June 20, 2005.

Note: Exhibits E, F and 1 were admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence.

Based on a comprehensive review of the substantial and competent evidence, including Claimant's testimony, the expert medical opinions and depositions, and the medical and educational records, as well as my personal observations of Claimant at hearing, I find:

1) Claimant is a 30 year old, currently unemployed individual, who last worked for Biebel Brothers Roofing as a roofer in January 2002. Claimant currently receives both a monthly payment from Social Security Disability and from his union's pension fund. He also has been receiving Medicare benefits for the last year.

2) Claimant testified that he dropped out of school after the ninth grade in 1991 or 1992 because he just couldn't do it anymore. He said that he was not good in school and testified that he had a learning disability. He said that he

received special education services for language and spelling. He said that he tried to get a GED, but he could not do the reading and writing. He could not remember if he actually took the GED test or not.

3) Claimant's certified school records from the Special School District of St. Louis County (Exhibit D) document the evaluations performed by the District from 1985 until 1991. When Claimant was initially evaluated in 1985, as a nine year old third grader, his cognitive functioning was "found to be at the upper end of the Low Average range" based on the Wechsler Intelligence Scale for Children-Revised. His reading skills were two and a half years below his age expectancy but his math skills were his strongest academic area, measuring close to grade expectancy. He was found to be Learning Disabled and Language Impaired. Following this assessment, Claimant was enrolled in a Resource program for the Learning Disabled with Itinerant Language services.

4) When Claimant was next evaluated three years later, in 1988, Claimant was again found in the Low Average range for cognitive functioning on the Wechsler Scale. Math was not an area of concern, but Claimant's spelling skills were described as "poor." It was noted though that if he spent an adequate amount of time preparing for tests, he was able to pass, but there was no carryover to daily work. In this three-year period though, he showed improvement in his language skills, and it was felt that language services should be terminated. He was diagnostically found to be non-handicapped with regard to speech and language. It was also noted in this assessment that he needed monitoring to complete tasks because he would talk and play around with others around him in a group setting. Following this assessment, he was found to be Learning Disabled but no longer language impaired, and he continued to be enrolled in a Resource program.

5) Claimant's last evaluation from Special School District occurred three years later, in 1991, when Claimant was 15 years old. His grades were listed in the report ranging from a B+ to a D-. It was noted though that he would rather play in class and he seldom studied for tests. He would rather finish work at school and take nothing home. The evaluator believed Claimant would have much higher grades if he would use his time more wisely. Testing continued to reveal severe deficits in reading, spelling and written language skills. The student was found to continue to be Learning Disabled. Overall cognitive functioning was found to be in the average range. Additionally, the evaluators found that "this disability does not appear to be primarily caused by visual acuity deficits, auditory acuity deficits, motor deficits, emotional disturbance, language disability, mental retardation, dialectal differences or second language influence." (Exhibit D) Services at Special School District were terminated when Claimant dropped out of school on March 20, 1992.

6) After Claimant dropped out of school, he worked full time for Biebel Brothers Roofing from 1993 or 1994 until his last date of injury of January 9, 2002. His job as a roofer included tearing up and laying down roofing materials. The job required bending, twisting, lifting up to 135 pounds (a roll of roofing), physical labor, climbing and standing on his feet most of the day. Clai