Lawrence Sawyer v. Lawrence Sawyer

The extent and percentage of a disability is a finding of fact within the special province of the Commission. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo.App. W.D. 2000) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo.banc 2003). The Commission may consider all of the evidence, including the employee's testimony, and draw reasonable inferences in arriving at the percentage of disability. Id.

I believe the evidence supports that employee is entitled to a greater percentage of disability than awarded by the majority. Employee testified as to his limitations as a result of his back injury as well as to the chronic pain associated with his condition. Additionally, Dr. James Stuckmeyer, an orthopedic surgeon, examined employee and opined that as a result of the compressive injury to his thoracic and lumbar spine with resultant dysfunction and pain, he suffered a permanent partial disability of 25 % of the body as a whole. I find his opinion regarding the extent and percentage of disability most persuasive and worthy of belief.

Based upon my review of all the evidence, I find employee sustained a permanent partial disability of 25 % of the body as a whole. I respectfully dissent from the portion of the majority's decision awarding employee permanent partial disability of only 161 / 2 % of the body as a whole.

John J. Hickey, Member

Employee: Lawrence Sawyer

Injury No: 99-178564

Dependents: N/A

Employer: Lawrence Sawyer

Additional Party: N/A

Insurer: Clarendon National Insurance Company, administered by North American Risk Services

Hearing Dates: May 10 and 12, 2006

Briefs Filed: June 5, 2006

Checked by: RCM/rm

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: December 10, 1999
5. State location where accident occurred or occupational disease was contracted: Smithville, Clay 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

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee fell from a ladder and suffered injury to his back.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Body as a whole
5. Nature and extent of any permanent disability: Sixteen and one-half percent ( 161 / 2 % ) whole body disability
6. Compensation paid to-date for temporary disability: Clarendon paid fifty weeks of Temporary Total Disability Compensation between December 10, 1999 and January 2, 2001 at a rate of $\ 410.35 for compensation totaling $\ 20,517.50
7. Value necessary medical aid paid to date by employer/insurer? $\ 36,057.69
8. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
9. Employee's average weekly wages: $\ 394.12
10. Weekly compensation rate: $\ 262.74
11. Method wages computation: MO. REV. STAT. $\S 287.250 .4$.
12. Amount of compensation payable:

Medical Expenses

Medical Already Incurred. $\ 36,057.69

Less credit for expenses already paid. $\ 36,057.69)

Total Medical Owing. $\ 0.00

50 weeks at $\ 262.75 $\ 13,137.50

Less credit for benefits already paid. $\ 20,517.50)

Total TTD Overpayment. $\ 7,380.00)

16.5 % whole body disability ( .165 x 400 weeks) x $\$ 262.75 / week. \ 17,341.50

Total Award: $\ 9,961.50

1. Second Injury Fund liability: N/A
2. Future requirements awarded: None

Said payments to begin as of 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 twenty-five percent (25\%) lien totaling \$2,490.38 in favor of David Bony, Attorney, for reasonable and necessary attorney's fees pursuant to MO.REV.STAT. §287.260.1.

On March 10 and 12, 2006, the employee and insurance company appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Mr. Lawrence Sawyer appeared in person and with counsel, David Bony. The Insurer (hereinafter "Respondent") appeared through Robert J. Wonnell. The Second Injury Fund was not a party to the case. For the reasons noted below, I find that Mr. Sawyer is not permanently and totally disabled; the Respondent timely filed an Answer; Mr. Sawyer earned a $394.12 average weekly wage; Claimant’s benefits are not subject to any reduction under §287.149.3; Mr. Sawyer suffered 16.5% whole body disability; and, no additional treatment is awarded.

STIPULATIONS

The parties stipulated that: 1. On or about December 10, 1999 Lawrence Sawyer was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by Clarendon National Insurance Company; 2. Mr. Sawyer was its employee working subject to the law in Smithville, Clay County, Missouri; 3. Mr. Sawyer sustained an accident, arising out of and in the course of employment on December 10, 1999; 4. Mr. Sawyer complied with the notice requirement of §287.420; 5. Mr. Sawyer filed his claim within the time allowed by law; 6. Respondent provided Claimant with medical care costing $36,057.69; and, 7. Respondent paid Mr. Sawyer fifty weeks of Temporary Total Disability Compensation between December 10, 1999 and January 2, 2001 at a rate of 410.35 for compensation totaling 20,517.50

ISSUES

The parties requested the Division to determine: 1. Mr. Sawyer’s average weekly wage and compensation rates? 2. Depending on the determination of Mr. Sawyer’s average weekly wage, whether Clarendon underpaid, or overpaid, the employee’s TTD? 3. Whether Clarendon must provide Mr. Sawyer with additional medical care? 4. Whether Mr. Sawyer suffered any disability and, if so, determining the nature and extent of

his disability and whether he is permanently and totally disabled?

1. Whether the employee's disability benefits should be reduced 50 % pursuant to $\S 287.149 .3 ?$
2. Whether the Answer was filed within the time required by 8 CSR 50-2.010(8)?

Claimant, and his wife, testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

A - Report, James A. Stuckmeyer, M.D., August 30, 2002

B - Report, Stanley Butts, Ph.D.

C - Deposition, Stanley Butts, Ph.D., March 3, 2005

D - Claim for Compensation

E - Division Acknowledgement of Claim, 8/10/2000

F - Division Receipt of Answer, 9/26/2000

G - Answer to Claim, date stamped 9/28/2000

H - 1999 Form 1099 - Beautiful Homes

I - 1999 Form 1099 - Premier Siding \& Window

The employer called one witness, Christine Schletzbaum, and admitted the following exhibits, which have all been received into the record (Claimant's attorney objected to Exhibit \#30, which was overruled):

1 - Wylie Chiropractic

2 - Neurology Consultants

3 - Michael J. Pronko, M.D.

4 - Midwest Radiology

5 - Vito J. Carabetta, M.D.

6 - Eden Wheeler, M.D.

7 - Physical Therapy and Rehabilitation

8 - Health South

9 - H. Andrew Pickett, M.D.

10 - St. Luke's Northland Hospital

11 - S.C. Jamoulis, M.D.

12 - Joseph Galate, M.D.

13 - Excelsior Springs Medical Center

14 - SurgiCenter of Kansas City

15 - Medical Records, Michael J. Poppa, M.D.

16 - Deposition, Eden Wheeler, MD

17 - Deposition, Vito Carabetta, MD

18 - Deposition, Michael J. Pronko, M.D. ${ }^{[1]}$

19 - Deposition, Dick Santner

20 - Deposition, Janice Hastert

21 - Deposition, Paul Seligman, Jr.

22 - Deposition, Rodney Todd

23 - Deposition, Michelle Young

24 - Deposition, Lawrence Sawyer, December 20, 2001

25 - Deposition, Lawrence Sawyer, February 25, 2005

26 - Deposition, Stanley V. Butts, Ph.D.

27 - Sawyer 1999 Tax Return

28 - Division Insurer Request

29 - Acknowledgment of Claim

30 - AICS Screen Image showing 9/11/2001 Answer

31 - Treatment Records, Michael Poppa, D.O.

32 - Sawyer 2002 Tax Return

Based on the above exhibits and the testimony of Claimant and his wife, I make the following factual findings. Mr. Sawyer has been involved in the siding business for most of his life. Claimant's work before December of 1999 was sporadic and part-time. The claimant's wife, who also testified at the Hearing, has also been employed full-time. This has allowed the claimant to work some of the year, and stay at home to work on his farm some of the year. This was a commonplace arrangement before the accident of December 10, 1999.

On December 10, 1999, the claimant was doing soffit and siding work on a three-story home in Smithville when he fell approximately twenty two (22) feet from the ladder he was working on. Mr. Sawyer landed on his feet and then fell down and rolled over. Mr. Sawyer refused transportation to the hospital by ambulance and, instead, was transported by co-workers in his truck to St. Luke's Hospital in Kansas City for treatment. The patient reported pain in his lumbar spine and an x-ray of this region was taken. The x-ray did not reveal any acute findings, but only degenerative changes. (Respondent's Exhibit \#10, page 9). However, these changes were at L1-2 and L2-3. The claimant als