James Myers v. Heilig-Meyer Furniture

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 June 20, 2007. The award and decision of Administrative Law Judge R. Carl Mueller, issued June 20, 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 10th day of March 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

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

Employee: James R. Myers

Injury No: 01-169682

Dependents: N/A

Employer: Heilig-Meyer Furniture

Additional Party: State Treasurer, Custodian of the Second Injury Fund (Dismissed 3/13/2007)

Insurer: Fidelity \& Casualty Co. of NY c/o Sedgwick CMS

Hearing Date: April 26, 2007

Briefs Filed: May 16, 2007 Checked by: RCM/cm

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: April 13, 2001
5. State location where accident occurred or occupational disease was contracted: Sedalia, Pettis 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 occurred or occupational disease contracted: Employee was moving furniture
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: right upper extremity at the 210-week level
14. Nature and extent of any permanent disability: Five percent (5\%) - right elbow
15. Compensation paid to-date for temporary disability: $\ 64,900.29
16. Value necessary medical aid paid to date by employer/insurer? $\ 22,858.77
17. Value necessary medical aid not furnished by employer/insurer? $\ 0
18. Employee's average weekly wages: $\ 550.00

1. Weekly compensation rate: $\ 366.67 for temporary/permanent total; $\ 314.26 for permanent partial
2. Method wages computation: by stipulation of parties
3. Amount of compensation payable:

Medical Already Incurred $\ 22,858.77

Less credit for expenses already paid $\ 22,858.77)

Total Medical Owing $\ 0.00

176 and $6 / 7 s weeks \ 64,900.29

Less credit for benefits already paid $\ 64,900.29)

Total TTD Owing $\ 0.00

5 % disability to right elbow ( $05 \times 210 weeks) x \$ 314.26 / week \ 3,299.73

Total Award: $\ 3,299.73

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 $\ 824.93 in favor of Steve Fritz, Attorney, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

Employee: James R. Myers

Injury No: 01-169682

Dependents: N/A

Employer: Heilig-Meyer Furniture

- Whether Mr. Myers suffered any disability and, if so, the nature and extent of the employee's disability and whether the employee is permanently and totally disabled?

Mr. Myers testified on his own behalf and called his wife, Kimberly Myers, and his brother, Larry Myers, to testify. In addition he and presented the following exhibits, all but one of which (Exhibit E) was admitted into evidence without objection:

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

Based on the above exhibits and the testimony of the witnesses, I make the following findings. Mr. Myers is a married, 42 -year old male, who lives with his wife and two children in Sedalia, Missouri. He received his high school diploma in 1983 and completed one year of post high school education at State Fair Community College in 1983 and 1984. Mr. Myers began working for Homaker's Furniture when he was approximately 16 years old. Homaker's was bought out by Heilig-Meyer Furniture in 1991 and Mr. Myers continued to work at the same facility. He began working as a store cleaner and warehouse worker, eventually being promoted to senior warehouse manager. Heilig-Meyer Furniture filed for bankruptcy in August 2000 and closed its warehouse on July 1, 2001.

Due to the bankruptcy, Heilig-Meyer Furniture began to lay off some of its employees. Even though Mr. Myers was a senior warehouse manager responsible primarily for supervising other employees, scheduling deliveries and helping out on the showroom floor, he was required to assist with deliveries again due to these layoffs. Mr. Myers testified that on or about April 13, 2001, he was making a large delivery of furniture to an individual's home. He was setting down an entertainment center when he first noticed pain in his right elbow and a sharp pain in his groin area and both testicles. Mr. Myers admitted on cross-examination that he was aware of the bankruptcy at the time of his injury and knew that in a few months he would lose his job that he had had for twenty (20) years.

Mr. Myers initially saw his primary care physician, Dr. William Woolery, on April 17, 2001. See Claimant's Exhibit A, page 23. Mr. Myers complained of right elbow pain that started when he was doing a lot of heavy lifting at his job. Dr. Woolery diagnosed right elbow tendonitis and prescribed some medication. Mr. Myers also complained of a "groin pull with some testicular discomfort which has bothered him off and on for weeks..." (emphasis added). Dr. Woolery thought the medication prescribed for his elbow tendonitis would also benefit the groin pull and recommended he try to avoid lifting for a while. Id.

Mr. Myers testified that he continued working at Heilig-Meyer Furniture from the date of his injury until his layoff with the rest of the employees on July 1, 2001 when the facility closed. Larry Myers, the claimant's brother and supervisor, testified that he was never presented with any off work slips for Mr. Myers during this time.

Mr. Myers was seen by Dr. Steve Foster at the referral of Dr. Woolery. Dr. Foster saw him on July 23, 2001 for inguinal pain. Id at 289. Dr. Foster found nothing on physical examination, no varicocele, no hernia. Mr. Myers did not have any testalgia during physical examination; prostate exam was normal; urinalysis was normal; VB3 was normal. Dr. Foster thought the pattern of pain was of muscular skeletal etiology. Id. When seen in follow-up on August 15, 2001, Dr. Foster thought the pain was referred from his back. Id at 287. He noted Mr. Myers was on Vioxx and recommended a scrotal support and heat to his back.

Mr. Myers was also referred to Dr. Ryan Edwards for evaluation of his right elbow pain. Id. at 295. Dr. Edwards evaluated Mr. Myers on August 28, 2001 for a recent re-aggravation of the elbow and dissatisfaction with his pain relief. Id at 294. He was given another injection, prescribed medication, and referred for therapy. He began therapy at Bothwell Regional Health Center on September 5, 2001. Id at 254.

By August 28, 2001, Mr. Myers was doing reasonably well. Id at 22. Mr. Myers was looking for a job and that was distressing him but his right elbow and groin were both better with rest and not so much lifting. Dr. Woolery recommended lumbar spine films which were taken at Bothwell Regional Health Center on August 28, 2001 and were negative. Id at 267 .

Mr. Myers saw Dr. Edwards again on September 18, 2001. Id at 294. His elbow pain was markedly improved. He was advised t