William Kuehn v. Mississippi Lime Company

Additional Party: Second Injury Fund Insurer: Federal Insurance Company Hearing Date: September 12, 2006 Checked by: GR/kh

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? March 22, 2004
5. State location where accident occurred or occupational disease contracted: Ste. Genevieve 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 happened or occupational disease contracted: The employee was hooking cables to a crane and injured his back and body as a whole.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Back and body as a whole.
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to date for temporary total disability: N/A
16. Value necessary medical aid paid to date by employer-insurer: N/A
17. Value necessary medical aid not furnished by employer-insurer: N/A
18. Employee's average weekly wage: $\ 772.40
19. Weekly compensation rate: $\ 514.93 per week for temporary total and permanent total disability. $\ 347.05 per week for permanent partial disability.
20. Method wages computation: By agreement.
21. Amount of compensation payable: See Award
22. Second Injury Fund liability: Second Injury Fund liable for permanent total disability. See Award
23. Future requirements awarded. See Award

Said payments shall be payable as provided in the statement of the findings of fact and rulings of law, and shall be subject to

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: Thomas J. Gregory

On September 12, 2006, William G. Kuehn, the employee, appeared in person and by his attorney, Thomas G. Gregory, for a hearing for a final award. The employee had previously settled his case against the employer-insurer. The Second Injury Fund was represented by Assistant Attorney General Gregory N. Johnson. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was acting under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Federal Insurance Company.
2. On or about the date of the alleged accident or occupational disease, the employee was an employee of Mississippi Lime Company and was working under the Workers' Compensation Act.
3. The employee's claim was filed within the time allowed by law.
4. The employee's average weekly wage is $\ 772.40. His rate for temporary total and permanent total disability is $\ 514.93 per week. His rate for permanent partial disability is $\ 347.05 per week.

1. Whether on or about March 22, 2004 the employee sustained an accident or occupational arising out of and in the course of his employment?
2. Whether the employer had notice of the employee's accident?
3. Whether the employee's injury was medically causally related to his accident or occupational disease?
4. Liability of the Second Injury Fund?

The following exhibits were offered and admitted into evidence without objection:

A. Records re pre-existing work related back injuries.

B. Records of prior workers' compensation claims in case numbers 88-032442, 89-191162 and 94-025793.

C. Medical records from Ste. Genevieve County Memorial Hospital.

D. Medical records from Mississippi Valley Orthopedics.

E. Medical records from Ste. Genevieve Family Health Center, Susan O’Donnell, M.D.

F. Medical records of Kevin T. Enger, M.D.

G. Medical records from Plaza Chiropractic\& Accupuncture, P.C.

H. Medical records of David G. Kennedy, M.D.

I. Deposition of David T. Volarich, D.O.

J. Deposition of James England, Jr.

Second Injury Fund Exhibits

None

The employee was the only witness to testify at the hearing. He had worked at various jobs for Mississippi Lime Company continuously since 1981. He testified that he had an accident on March 22, 2004 and last worked for Mississippi Lime on May 17, 2004. Records provided by Mississippi Lime Company confirm that the employee last worked on May 7, 2004, however he was on vacation and paid through May 14, 2004. The accident on March 22, 2004 resulted in a back fusion surgery.

Before March 22, 2004, the employee had a lot of accidents while working for Mississippi Lime and had disabilities/problems that resulted from those accidents. The employee had a history of back injuries with at least seven

separate reported instances of back injuries prior to 2004. None of the back injuries prior to March 22, 2004 resulted in surgical intervention. The employee never filed a workers' compensation claim or received a workers' compensation settlement in any of the back incidents. Prior to March 2004, the employee had not received any medical treatment for his back since May 2003.

In addition, the employee had four accidents involving his right knee that resulted in four surgeries. The employee received workers' compensation settlements in each of these knee cases.

The employee also had documented problems and treatment to his right shoulder. None of these problems resulted in surgery. Again, no workers' compensation claims were made and the employee received no workers' compensation benefits for his right shoulder problems. In short, the employee has had a history of back problems, none of which resulted in surgery, a history of right knee problems that resulted in surgery, and a history of right shoulder problems that did not result in surgery while he worked for Mississippi Lime. These incidents resulted in various physical problems over the years. In addition to the accidents that the employee had over the years, the employee also had some other health or medical problems. However, the employee was never placed on any permanent restrictions prior to his fusion surgery and was always able to meet the responsibilities of his job. The employee did indicate that there were times when other co-workers helped him out by doing the harder parts of the job or that he took vacation time to help him cope with the problems.

The employee testified that he never filed a claim for any of his prior back injuries. He indicated that he felt he was fortunate to have a job and just wanted to keep working. He also testified that the climate at Mississippi Lime was that they did not like workers' compensation claims. Mississippi Lime gave perks to employees such as free boots when there were no accidents or claims filed. If someone turned in a claim, everyone would lose their free boots or perks. Therefore there was pressure among the workers not to turn in injuries so the perks would not be lost. The employee testified that the way he handled his injuries was to pursue his medical care through the general health policy that Mississippi Lime provided, get his treatment and return to work. His testimony indicated that was the way that Mississippi Lime wanted injuries to be handled. There are no issues in this case concerning the payment of medical bills for the employee's medical care regarding his backapparently those were processed through the group health plan. As no other witness testified and as no other evidence was presented on this topic, the testimony of the employee about how he dealt with work injuries or the atmosphere about how injuries were handled at Mississippi Lime was uncontroverted.

The employee described how he was injured on March 22, 2004. He indicated that he was assisting the replacement of a lime screen in a building about one hundred feet tall. In order to accomplish this task, a rental crane was utilized to move the screen that weighed about four tons. The employee was responsible to hook loading chokers/cables attaching the screen to the hook on the crane. The employee testified that he had a choker in each hand and was reaching overhead to attach the cables to the crane. He indicated that a choker weighs maybe twelve pounds. The employee further indicated that as he attempted to attach the chokers to the crane, he felt a sharp pain in his back and he went to his knees. The employee testified that the pain was so sharp, "that is was like he was hit in the testicles with a sledgehammer". He said the immediate sharpest pain was in his testicles, but that he also had immediate pain in his back and legs. He said this event took place about 11 A.M.

The employee testified that his supervisor that day was Donnie Basler. He testified that he reported the incident to Donnie Basler that day. The employee further indicated that during the lunch break he told two buddies that he blew out his back and that something was wrong. The employee testified that Mr. Basler asked him if he wanted to fill out a form. The employee testified that he told him no, and said, "I am going to get it fixed and I will be back". The employee finished his shift that day. The employee further testified that he told David Roth-the supervisor of the plant about his upcoming surgery. None of this testimony was disputed.

The employee testified that after a few days the testicle pain tapered off some, but he still had pain in his back and legs. He also testified that the pain was a lot more int