Leonard Froehlich v. Dupuis Redi-Mix Concrete

Employee: Leonard Froehlich Injury No: 05-120748 Dependents: N/A Employer: Dupuis Redi-Mix Concrete Additional Party: State Treasurer as Custodian of the Second Injury Fund (Fund Issues reserved to a separate future hearing) Insurer: Builders’ Association Self-Insurers’ Fund Hearing Date: March 13, 2007 Checked by: RCM/rcm

On March 13, 2007, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Mr. Leonard Froehlich, appeared in person and with counsel, Keith V. Yarwood. The employer appeared through Jeff Stigall. The proceeding against the employer and the Second Injury Fund was bifurcated by agreement. The primary issues the parties requested the Division to determine were whether the accident at issue caused disability and need for treatment that the employee claimed; whether Mr. Froehlich is entitled to temporary total disability benefits from May 8, 2006 through June 19, 2006 representing six (6) weeks of compensation totaling $3,080.16; whether Dupuis Redi-Mix must reimburse the employee for medical expenses totaling $11,779.53; whether Dupuis Redi-Mix must provide the employee with additional medical care; and whether Mr. Froehlich suffered any disability and, if so, the nature and extent of Mr. Froehlich ’s disability.

For the reasons noted below, I find that Mr. Froehlich: sustained a compensable injury on October 26, 2005 that resulted in 50% permanent partial disability to his right lower extremity at the 207-week level; was temporarily and totally disabled from May 8, 2006 through June 19, 2006; must be reimbursed for medical expenses totaling $11,779.53; and receive continuing medical care as a result of his October 26, 2005 injury.

The parties stipulated that: 1. On or about October 26, 2005 ("the injury date"), Dupuis Redi-Mix ("Dupuis") was an employer operating subject to Missouri’s Workers’ Compensation law with its liability fully self-insured through Builders’ Association Self-Insurers’ Fund; 2. Mr. Froehlich was an employee of Dupuis working subject to the law in Greenwood,

1. Mr. Froehlich sustained an accident arising out of and in the course of his employment on October 26, 2005
2. Mr. Froehlich both notified Dupuis of the accident as required by law and filed his Claim within the time allowed by law;
3. Mr. Froehlich earned a $\ 770.04 average weekly wage resulting in a weekly $\ 513.36 temporary total disability compensation ("TTD") rate, and the maximum $\ 365.08 weekly permanent partial disability ("PPD") rate;
4. Dupuis has not paid Mr. Froehlich any TTD;
5. Dupuis provided Mr. Froehlich with medical care costing \2,444.53. Mr. Froehlich incurred an additional \ 11,779.53 in medical expenses for which he seeks reimbursement.

The parties requested the Division to determine:

1. Whether the accident caused the disability and need for treatment that Mr. Froehlich claims?
2. Whether Mr. Froehlich is entitled to TTD from May 8, 2006 through June 19, 2006 representing six (6) weeks for compensation totaling $\ 3,080.16 ?
3. Whether Dupuis must reimburse Mr. Froehlich's additional medical expenses totaling $\ 11,779.53 ?
4. Whether Dupuis must provide Mr. Froehlich with additional medical care? And,
5. Whether Mr. Froehlich suffered any disability and, if so, the nature and extent of his disability?

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

Exhibit A - Letter dated April 11, 2006 from Scott M. Cook, M.D.

Exhibit B - Medical Bill - Shawnee Mission Medical Center

Exhibit C - Letter dated April 14, 2006 from Yarwood to Stigall

Exhibit D - Medical Bill - Orthopaedic and Sports Medicine Consultants

Exhibit E - Affidavit - Kathy Hogan, March 9, 2007

Exhibit F - Medical Report, James A. Stuckmeyer, M.D., August 11, 2006

Although Dupuis did not call any witnesses, it did present the following exhibits, all of which were admitted into evidence without objection:

Exhibit 1 - Medical Report, Roger W. Hood, M.D., December 20, 2005

Exhibit 2 - Medical Report, Roger W. Hood, M.D., January 12, 2006

Exhibit 3 - Medical Report, Roger W. Hood, M.D., October 2, 2006

Exhibit 4 - Letter dated February 8, 2007 from Mary Buhr, R.M.C.T.

Exhibit 5 - Letter dated February 14, 2007 from Stigall to Yarwood

Exhibit 6 - Deposition, Leonard Froehlich, June 13, 2006

Based on the above exhibits and the testimony of Mr. Froehlich, I make the following findings. Mr. Froehlich is a married, 66-year old male, who lives with his wife in Lee's Summit, Missouri. At the time of the accident, Mr. Froehlich had worked for Dupuis Redi-Mix for two (2) years and had taken the job to procure medical insurance to cover his wife's medical needs due to her diabetic condition. It is his hope to continue working for as long as possible.

On October 26, 2005, Mr. Froehlich worked for Dupuis Redi-Mix as a cement truck driver. Among his responsibilities were to transfer unused cement from his truck to another truck. On October 26, 2005 he backed his truck into position to transfer the rest of his load of concrete. In doing so, Mr. Froehlich backed the back end of his truck up a hill while leaving the front portion of the truck on the flat surface. In doing so, the truck formed a triangle with the ground with the cab of the truck directly over the widest angle of the triangle thereby lifting the cab an additional one and a half to two feet off the ground. To exit the vehicle, Mr. Froehlich backed out of the cab placing his right foot on the top of two steps and attempted to place his left foot on the lower of two steps. Mr. Froehlich's left foot slipped off the lower step causing him to fall and placing all of his 195 pound weight on his right leg. By the time Mr. Froehlich's right foot broke lose of the top step his right foot was at approximately the level of his right shoulder with the sole of his foot facing away from him. Mr. Froehlich both felt and heard a "pop" at that point and momentarily felt excruciating pain in his right hip. However, that pain quickly dissipated and was overwhelmed by the pain he felt from a gash he suffered to his foot.

Mr. Froehlich experienced the pain primarily in his right hip, groin and buttocks. He did not immediately report the incident to his employers sinc