Ricki Ross v. Saturn of Blue Springs

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 August 24, 2007. The award and decision of Administrative Law Judge R. Carl Mueller, issued August 24, 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 $1^{\text {st }}$ day of February 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member John J. Hickey, Member

Less credit for benefits already paid. $\qquad (\ 74,776.50)

Total TTD Owing. $\qquad \ 0.00

Accrued Permanent Total Disability

Accrued benefits for the period July 3, 2006 - July 9, 2007 (53 wks. x \$662.55/wk.). $\qquad \ 35,115.15

Less credit for benefits already paid. $\qquad (\ 35,115.15)

Total accrued PTD owing. $\qquad \ 0.00

Commencing July 10, 2007, PTD benefits shall continue to be paid at the rate of $\$ 662.55 / \mathrm{wk}$. for Employee's lifetime and the lifetime of his dependant, Deborah Ross, should the dependant survive Employee in accordance with the holding in Schoemehl v.Treasurer of the State, 217 S.W. 3d 900 (Mo. banc 2007)

Total Award: $\qquad$ Indeterminate

1. Second Injury Fund liability: None
2. Future medical treatment awarded: Yes

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 permanent disability compensation awarded to Employee commencing July 3, 2006 shall be subject to a twenty-five percent (25\%) lien in favor of Bill Manson, Attorney, for reasonable and necessary attorney's fees pursuant to MO.REV.STAT. §287.260.1.

Employee: Ricki E.Ross, Claimant

Injury No: 04-104621

Dependents: Deborah Ross (spouse)

Employer: Saturn of Blue Springs

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: Universal Underwriters Ins. Co.

Hearing Date: July 9, 2007

Briefs Filed: July 24, 2007

Checked by: RCM/rm

On July 9, 2007, Employee, Employer, and the State Treasurer as Custodian of the Second Injury Fund ("Fund") appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Ricki Ross, appeared in person and with counsel, Bill Manson. The employer appeared through Mark Kolich, and the Fund appeared through Assistant Attorney General Jason Lloyd. The primary issues to be resolved were whether the employer must provide Mr. Ross with additional medical care and whether he is permanently and totally disabled.

For the reasons noted below, I find that Mr. Ross is permanently and totally disabled as a result of the injuries he sustained on May 3, 2004 while working for Saturn of Blue Springs and is entitled to benefits for his lifetime and the lifetime of his dependant spouse, Deborah Ross, should she survive his death in accordance with the holding in Schoemehl v. Treasurer of the State, 217 S. W. 3d 900 (Mo. banc 2007) commencing July 3, 2006, as well as future medical treatment required for his left knee and any resulting complications that might arise there from.

The parties stipulated that:

1. On or about May 3, 2004 ("the injury date"), Saturn of Blue Springs ("Saturn") was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by Universal Underwriters Ins. Co.;
2. Mr. Ross was its employee working subject to the law in Kansas City, Jackson County, Missouri;
3. Mr. Ross notified Saturn of his injury and filed his claim within the time allowed by law;
4. Mr. Ross earned a $\ 1,235.00 average weekly wage resulting in the maximum weekly compensation rate of $\ 662.55 for temporary total disability (TTD) and permanent total disability (PTD), and $\ 347.05 for permanent partial disability (PPD) compensation;
5. Saturn of Blue Springs has paid TTD totaling $\ 74,776.50 representing one hundred twelve and six-sevenths weeks from May 4, 2004 through July 2, 2006;
6. In addition, Saturn of Blue Springs has continued paying weekly benefits totaling $\ 662.55 per week from July 3, 2006 through today. This additional benefit paid totals $\ 35,115.15 and represents fifty three weeks of compensation. The employer and claimant stipulate that this additional benefit will apply as a credit to this final award;
7. Saturn of Blue Springs has provided Mr. Ross with medical care costing $\ 88,972.03; and,
8. The Claimant and Employer stipulate that authorized medical care resulted in expenses totaling $\ 30,738.09 that remain unpaid and that such expenses shall be paid by the Employer.

ISSUES

The parties requested the Division to determine:

1. Whether Saturn of Blue Springs must provide the employee with additional medical care?
2. Whether Mr. Ross suffered any disability and, if so, the nature and extent of the Employee's disability and whether the employee is permanently and totally disabled?
3. Whether SIF is liable to Employee for any disability compensation?
4. Whether Mr. Manson's attorney's fee request is fair and reasonable?

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

A - May 3, 2004 Claim for Compensation

B - Deposition, Theodore Sandow, MD, August 16, 2006

C - Deposition, Mary Titterington, October 31, 2006

D - Deposition, Terry Cordray, March 20, 2007

Although Saturn of Blue Springs ("Saturn") did not call any witnesses, it did present Exhibit T, a Kansas Division of Workers' Compensation "Docket Report", which was admitted over the objection of the Fund. Exhibit T was added to the three ring binders of exhibits provided by Claimant's counsel.

The Fund did not call any witnesses or introduce any exhibits.

Based on the above exhibits and the testimony of Mr. Ross, I make the following findings:

Mr. Ross is a 53-year old married male, who lives with his wife of 33 years, Deborah Ross, in Kingsville, Missouri. Mr. Ross attended Center High School in Kansas City, Missouri, until he dropped out in the $11^{\text {th }}$ grade in 1970. Mr. Ross received his GED in 1988. Mr. Ross attended vocational school in 1986 and completed a program in heating, refrigeration and air conditioning. He subsequently attended another vocational training school in 1993 where he completed training to be an auto mechanic. Mr. Ross continued to receive continuing education from his employer, Saturn, each year he was employed there.

In the 1970s, Mr. Ross worked as a handyman doing repair work for an amusement park. Afterwards, Mr. Ross worked as an attendant at a full-service gas station where he was responsible for pumping gas, servicing cars, and running a cash register. There were no service bays where he actually did mechanic work. Mr. Ross then worked for the Kansas City Water Department as a machine operator on heavy equipment. He was required to do general labor work in addition to working with heavy equipment. Mr. Ross al