John Renner v. Exteriors by Roesch

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-066171

Employee: John Renner

Employer: Exteriors by Roesch

Insurer: American Family Mutual Insurance Company

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

Date of Accident: May 12, 2003

Place and County of Accident: St. Louis 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 12, 2007, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued January 12, 2007, is attached and incorporated by this reference.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: John Renner

Injury No.: 03-066171

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: May 12, 2003
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? No.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
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 fell from a walk board while working on a customer’s residence.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 0

Employee: John Renner Injury No.: 03-066171 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: $\ 1,000.00 19. Weekly compensation rate: $\$ 649.32 / \ 340.12 20. Method wages computation: By stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 0.00 0 weeks of temporary total disability (or temporary partial disability) $\ 0.00

1. Second Injury Fund liability: No

TOTAL:

1. Future requirements awarded: None

Said payments to begin 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 of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

The matter of John Renner ("Claimant") proceeded to hearing to determine if he should recover workers' compensation benefits on account of an alleged May 12, 2003, accident. Attorney Joseph Frank represented Claimant. Attorney Ken Alexander represented Exteriors by Roesch ("Employer") and its insurer, American Family Mutual Insurance Company. The Second Injury Fund is a party to the claim, but Claimant's attorney agreed to leave the Second Injury Fund claim open pending the outcome of the primary case. No one appeared on behalf of the medical providers who filed medical fee disputes.

The parties stipulated that on or about May 12, 2003, Claimant was an employee of Employer earning an average weekly wage of $\ 1,000.00. The applicable rates of compensation are $\ 649.32 for total disability benefits and $\ 340.12 for permanent partial disability benefits. Venue is proper in the City of St. Louis, and the claim was filed within the time required by law. Employer paid medical benefits of $\ 5,189.16, but did not pay temporary total disability benefits.

The issues to be determined are: 1) Did Claimant's accident arise out of and in the course of employment; 2) Is Claimant's medical condition causally related to his accident; 3) Did Claimant give proper notice as required by law; and 4) What is the nature and extent of Claimant's permanent partial disability?

Claimant submitted the following exhibits which were admitted into evidence: Records of the Affton Fire Protection District documenting an ambulance run involving Claimant on May 12, 2003; Emergency room records of St. Anthony's Medical Center for Claimant on May 12, 2003; and Deposition of Dr. Berkin. Employer submitted the following exhibits which were admitted into evidence: Medical Records of Dr. Singh; and Deposition of Dr. Cantrell.

Claimant is a 39 year old construction worker. When Claimant entered the courtroom, he obviously appeared to be in distress. His multiple overt pain behaviors included slow ambulation with a single-point cane, verbal moaning, facial grimacing, and grunting. ${ }^{[1]}$ However, at two or three brief periods throughout his testimony, I observed him to sit in the chair in a relaxed manner, with no tension observable in his body until questioning resumed, when the facial distortions and body tension returned. On two separate occasions, he began to sob as if crying.

Claimant began working for Employer in early 2003, and his boss was Vic Roesch, the owner. On May 12, 2003, Claimant was a lead man on a job in the Indian Hills subdivision, working with Al Deeken as his material helper. Al was not employed by Employer, but was a friend of Claimant who sometimes helped him. According to Claimant, he was on the job at 7:00 a.m. to set up two ladders to support a walk board so he could work on the gables. After several hours of work, he was on top of the walk board, standing on his toes to set a nail above his head, when the walk board shifted and he fell to the ground, landing on his chest. Claimant testified he lay on the ground in pain while Al called 911 on his cell phone. Claimant also testified that he asked Al to call Employer, and even claimed to have overheard a ten-minute conversation between Al and Mr. Roesch, who was not on the scene. An ambulance took Claimant to St. Anthony's Hospital, where he was tested and released.

Claimant testified he returned to work the next day, and worked for about two weeks with pain in his neck, chest, and back. Then, on a Friday, he called in to Mr. Roesch to say he needed to see a doctor. Claimant testified that his boss did not ask why he needed to see a doctor, and hung up. That Monday, Claimant testified that he "put a bug in his ear" by telling Mr. Roesch he was hurting. Again, he said he received no reply. Claimant did not file a written report of injury. Claimant testified that about three to four weeks after the accident, for no apparent reason, Mr. Roesch fired him, saying he did not care if he fell twenty feet to his chest.

Claimant said he saw Dr. Singh for about ten minutes one day after the accident, and then he was "kicked out" of Dr. Singh's office. Prior to this event, he had seen Dr. Singh for what he called "slight" back pain. He admitted that he was taking narcotic pain medication for this slight or mild back pain prior to his accident. Claimant admitted he hurt his back and neck in a car accident prior to his work fall, and he received compensation in settlement of his civil complaint. In 2005, Claimant came under the care of Dr. Julie Bush and Dr. Greywald at the People's Health Clinic for pain management and psychiatry respectively. Claimant receives a number of medications. Claimant testified that he had no physical problems before his injury.

Claimant testified that after he was fired, he attempted several small jobs in inspection and construction, but could not perform such work due to the pain that he attributes to the fall. Claimant last worked two weeks in 2004. He described his pain in various ways. He said that he sometimes loses control of his legs, and that his pain radiates to the hip, neck, and lower part of his legs, all of which prompts him to go to the emergency room. Two weeks prior to hearing, Claimant had been taken to the emergency room at SLU by ambulance because his legs were numb. Claimant's description of his pain was dramatic. He testified that he has started burning his arms to transfer the pain from his back to other parts of his body. Claimant testified he is unable to do anything. He used to be a good softball player and bowler, but he can no longer perform those activities.

Claimant testified when he is in extreme pain, he goes to emergency rooms at Barnes Jewish, St. Louis University, and St. Anthony's, and other facilities. He estimated that over the past year, he has gone to the emergency room fifteen or twenty times. Medicaid pays the medical bills. Sometimes, but not always, the emergency room physicians prescribe narcotics. Claimant said his family says he has a problem with drugs, but he said he was a "pain addict, not a drug addict." He says he tries not to take narcotics. Claimant testified he drinks four to five beers every night in order to sleep. He testified he wakes up in the middle of the night with flashbacks of his head barely missing the post on the way down from the walk board. Claimant started to cry when he described his sleep habits.

Victor Roesch is the owner of Employer, a home improvement company that has been in his family for fifty years. Mr. Roesch testified that in May 2003, Claimant became an employee of Employer after having worked as an independent contractor. Although Mr. Roesch's records indicated that the Indian Hills job was scheduled to start May 13, 2003, a day after Claimant's alleged accident, the records, including the ambulance and emergency room records, indicate that Claimant indeed fell on the $12^{\text {th }}$ of May. Mr. Roesch admitted that he could be mistaken regarding the start date.

Mr. Roesch testified that he first became aware of an alleged accident in September 2003, when he investigated why he had begun to receive bills from medical providers. He had not had any conversations with Claimant prior to September in which Claimant told him he had fallen at work or required medical treatment. Mr. Roesch described Al as a friend of Claimant's who helped him as necessary. He was not an employee. Al never contacted anyone at the Employer regarding a fall in May 2003. Mr. Roesch testified he has never spoken to Al by phone about any subject.

Mr. Roesch testified that Claimant worked up until July 3, 2003. Mr. Roesch terminated Claimant after he and Al got into a "tiff" on the job and the homeowner complained abou