David Kinealy v. Ford Motor Company

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 May 30, 2007. The award and decision of Administrative Law Judge John K. Ottenad, issued May 30, 2007, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law. Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of October 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? 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: January 19, 2002
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? 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 a pipefitter for Employer who injured his left ankle and thoracolumbar spine when he fell 10 to 12 feet through the ceiling onto the floor while installing a sprinkler system.
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: Left Ankle and

Body as a Whole-Thoracolumbar Spine 14. Nature and extent of any permanent disability: 35 % of the Left Ankle and 20 % of the Body as a Whole referable to the Thoracolumbar Spine 15. Compensation paid to-date for temporary disability: $\ 14,599.24 16. Value necessary medical aid paid to date by employer/insurer? $\ 47,255.12

Employee: David Kinealy Injury No.: 02-006369 17. Value necessary medical aid not furnished by employer/insurer? N/A 18. Employee's average weekly wages: approximately $\ 1,000.00 19. Weekly compensation rate: $\ 628.90 for TTD/ $\ 329.42 for PPD 20. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer/Insurer previously settled their risk of liability in this case

1. Future requirements awarded: 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 22.5% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Michael C. Goldberg.

On January 29, 2007, the employee, David Kinealy, appeared in person and by his attorney, Mr. Michael C. Goldberg, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Ford Motor Company, which is duly self-insured, was not present or represented at the hearing since it had previously settled its risk of liability in this claim. The Second Injury Fund was represented at the hearing by Assistant Attorney General Levander Smith. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of facts and rulings of law, are set forth below as follows:

1. On or about January 19, 2002, David Kinealy (Claimant) sustained an accidental injury arising out of and in the course of his employment that resulted in injury to Claimant.
2. Claimant was an employee of Ford Motor Company (Employer).
3. Venue is proper in the City of St. Louis.
4. Employer received proper notice.
5. The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of approximately $\ 1,000.00, resulting in applicable rates of compensation of $\ 628.90 for total disability benefits and $\ 329.42 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 14,599.24, representing a period of time from January 19, 2002 to approximately June 28, 2002, or 23 weeks.

8) Employer paid medical benefits totaling $\ 47,255.12.

1) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this accident?

2) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A-Stipulation for Compromise Settlement for Injury Number 02-006369 between Claimant and Employer.

B-Certified medical treatment records of Dr. James J. Coyle.

C-Certified medical treatment records of Dr. Robert A. Sciortino.

D-Certified medical treatment records of PRORehab, P.C.

E-Certified medical treatment records of DePaul Health Center.

F-Stipulation for Compromise Settlement for Injury Number 95-102693 between Claimant and Employer.

G-Certified medical treatment records of Dr. David Caplin.

H-Certified medical treatment records of St. Luke's Hospital.

1 -Deposition of Dr. Thomas F. Musich, with attachments, dated June 9, 2005.

J -Deposition of Mr. Gary Weimholt, with attachments, dated July 6, 2006.

K-Certified medical treatment records of Ford Motor Company-St. Louis.

Nothing submitted at the time of trial.

Note: Unless otherwise specifically noted below, any objections in these exhibits are overruled and the testimony fully admitted into evidence.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinion and deposition, the vocational opinion and deposition, the stipulations for compromise settlement, and the medical records, as well as my personal observations of Claimant at hearing, I find:

1) Claimant is a 65 year old, currently retired individual, who last worked for Ford Motor Company as a pipefitter in March 2004. Claimant worked for Employer for 40 years, the last 20 of those years as a pipefitter. In that position, he was responsible for all of the moving of pipe systems in the factory. He would normally work with 21 foot pipe which weighed approximately 100 to 110 pounds each. His job required bending, stooping, squatting, and climbing ladders. Most of the time he was on his feet. He admitted on cross-examination that prior to the 2002 injury, he was repairing machinery, hanging pipes, building pumps, and regularly lifting 150-200 pounds.

2) Claimant testified that he graduated from CBC High School and took enough courses at UMSL (The University

of Missouri St. Louis) to obtain Sophomore or Junior status. He did not obtain a degree from UMSL. He received training in an apprenticeship program for the work he eventually performed for Employer. He testified he has never done any computer work, any typing, or any office work.

3) In addition to his work as a pipefitter for Employer, Claimant also served as an Alderman for the City of St. Louis from 1979 until 1991. Additionally, he was a lobbyist in Jefferson City and Washington for Ford and the Union. He said that during the legislative session, he would be in Jefferson City from Monday afternoon until Thursday afternoon.

4) Claimant testified he had two low back surgeries prior to the accident at work on January 19, 2002. Medical treatment records from St. Luke's Hospital (Exhibit H) document Claimant's second low back surgery on October 1, 1980 when Dr. Geise performed a bilateral hemilaminectomy at L4-5 with epidural approach of removal of a bulging degenerated midline disc. The admission noted dated September 29, 1980 indicates Claimant initially hurt his low back in the service in the 1960's when he came under fire and fell over the side of a hill. About a week later, he bent over and felt a pull in the back. He underwent a lumbar laminectomy in September 1971 by Dr. Roulhac because of paresthesia in the left leg. The note indicates those complaints were relieved following the first surgery until about 1978 when intermittent low back and leg pain retuned, which became worse over time, resulting in the second surgery in 1980. Following the second surgery in 1980, Claimant continued to report complaints. The last note dated May 3, 1982 indicates he has given up all sports activities because of his back, and has been unable to work since April 2, 1982. The note indicates Claimant had problems sitting or standing in one position for long periods of time. His job at the time was working one day a week at the Ford plant and then commuting between St. Louis and Jefferson City as a lobbyist. Dr. Lansche, at the time, was recommending a decompressive laminectomy and spinal fusion to treat the degenerative disc disease al L4-5 and L5-S1. Claimant apparently never had that surgery. There are also no further follow-up low back treatment records between 1982 and his January 19, 2002 injury.

5) After these surgeries, but prior to the January 19, 2002 accident, Claimant testified that he returned to work as a pipefitter. He said that he continued to have low back problems, but he would compensate for those problems by lifting with other parts of his body. He also described problems with bending, walking and pain in the low back. He admitted there were no restrictions imposed by a doctor following these surgeries on bending and stooping. Claimant admitted that he was able to coach soccer and baseball before the 2002 injury, and he could also do minor repairs on the platform for his hot tub.

6) Claimant also described an injury to his hands and wrists in 1995 prior to the January 19, 2002 injury, which is t