Scott Mertz v. Ameren UE

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-129583

Employee: Scott Mertz

Employer: Ameren UE

Insurer: Self-Insured

c/o CCMI

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

Date of Accident: December 22, 2003

Place and County of Accident: St. Louis

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 October 24, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued October 24, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 5^{\text {th }} \qquad$ day of March 2007.

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? No
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: December 22, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 pulling cable when he strained his low 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: Low back and right leg
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: $\ 8,329.20
16. Value necessary medical aid paid to date by employer/insurer? $\ 9,197.20

Employee: Scott Mertz Injury No.: 03-129583 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 1154.00 19. Weekly compensation rate: $\$ 662.55 / \ 347.05 20. Method wages computation: Stipulation

1. Amount of compensation payable: 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 $\mathrm{n} / \mathrm{a}$ of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Employee: Scott Mertz

Injury No.: 03-129583

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Employer: Ameren UE

Division of Workers'

Compensation

Department of Labor and Industrial

Relationships of Missouri

Jefferson City, Missouri

Industrial Party: Second Injury Fund

Insurer: Self c/o CCMI

Checked by: KMH

A hearing was held on the above matter July 20, 2006. Attorney Bob Keefe represented Scott Mertz (Claimant). Attorney Pat Patterson represented Ameren UE (Employer). Assistant Attorney General Tracey Cordia represented the Second Injury Fund (SIF).

The parties stipulated to the following:

1. Claimant sustained an injury by accident on December 22, 2003, while in the course and scope of his employment in St. Louis, Missouri.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation Law. Employer was self-insured and had notice of the injury. A claim for compensation was filed within the time

the electrical field. He testified he felt he could "possibly" work as an electrician.

1. Claimant has been working at RE/MAX. He trained through their school and earned his real estate license this year. He has not gotten any listings yet and has not made any money yet through RE/MAX. He believes he can handle working in real estate because he is able to make his own hours and work around his pain.
2. Claimant testified he needs to lie down at least three times a day for 30-45 minutes to relieve his back pain. If he does not, he cannot function. He continues to have back and right leg pain and takes six to eight Ibuprofens a day.
3. Prior to his 2003 work injury, Claimant injured his right elbow in 1998 and his low back in 2000. As a result of his right elbow injury, he underwent surgery, but he continues to have burning in his elbow when swinging a hammer or a wrench. He also has difficulty lifting, has pain and has a loss of grip strength. This injury settled in 2002 for 22 % of his right elbow.
4. Claimant's 2000 back injury was also work related. He underwent extensive conservative treatment and settled that case for 18.75 % of the low back on March 24, 2003. Claimant testified he continued to have problems with his low back after that case settled. His back continued to ache all the time, he could not jump fences which linemen do a lot, he had difficulty bending and climbing, and he had to be careful how he lifted. He occasionally missed work due to back pain. Due to his continuing back complaints, Claimant took Ibuprofen and treated on his own with a chiropractor from May 2001 until his last visit of December 18, 2003.
5. Claimant testified from 2000 through 2003 his complaints were in his back only and he had no radiation into his legs. He testified that before his 2003 injury, he had none of the catching in his back, none of the stabbing pain into his right lower back and hip and none of the pain into his right leg and ankle that he has now. He simply had a back ache and soreness before 2003 and he could still climb at work. He testified that now his right leg gives out on him daily and he falls sometimes.
6. Claimant had other health problems before 2003. He had been diagnosed with anxiety, allergies, and insomnia. He was and continues to take medications for all of these conditions.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

The Claimant has the burden of proving all the elements of his case including medical causation. Welker v. M.F.A. Central Cooperative, 380 S.W. 2d 481, 487 (Mo.App. 1964). He also has the burden of proving a causal connection between the accident and the injury. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195, 198 (Mo.App. E.D.1990).

I find Claimant has failed to establish his current back complaints are the result of his December 22, 2003 work injury.

Claimant had a serious back injury in 2000. He treated for several months and had two MRIs . Both of those MRIs were interpreted as showing Claimant had degenerative disc disease, a central bulge at L5-S1 with an annular tear or fissure at that level. Claimant had another MRI after his 2003 work injury. Dr. Reinse