Employee: BRYAN R. LONG
Injury No.: 04-146261
Employer: HERZOG CONTRACTING CORPORATION
Insurer: ACIG INSURANCE COMPANY
Hearing Date: NOVEMBER 29, 2007
Checked by: NGA
FINDINGS OF FACT AND RULINGS OF LAW
- Are any benefits awarded herein? YES
- Was the injury or occupational disease compensable under Chapter 287? YES
- Was there an accident or incident of occupational disease under the Law? YES
- Date of accident or onset of occupational disease: AUGUST 14, 2004
- State location where accident occurred or occupational disease was contracted: SALINE COUNTY, MISSOURI.
- Was above employee in employ of above employer at time of alleged accident or occupational disease? YES
- Did employer receive proper notice? YES
- Did accident or occupational disease arise out of and in the course of the employment? YES
- Was claim for compensation filed within time required by Law? YES
- Was employer insured by above insurer? YES
- Describe work employee was doing and how accident occurred or occupational disease contracted: EMPLOYEE WAS CARRYING A BATTERY WEIGHING 125 POUNDS WHEN HE SLIPPED AND FELL INJURING HIS BACK AND BODY AS A WHOLE.
- Did accident or occupational disease cause death? No Date of death? N/A
- Part(s) of body injured by accident or occupational disease: BACK \& BODY AS A WHOLE.
- Nature and extent of any permanent disability: CLAIMANT IS PERMANENTLY TOTALLY DISABLED.
- Compensation paid to-date for temporary disability: $\mathbf{\$ 2 , 9 8 0 . 1 5}$
- Value necessary medical aid paid to date by employer/insurer? $\mathbf{\$ 1 2 9 , 3 6 7 . 4 1}$
- Value necessary medical aid not furnished by employer/insurer? NONE
| 18. | Employee’s average weekly wages: | $875.52 |
| 19. | Weekly compensation rate: | $583.68 |
| 20. | Method wages computation: | SECTION 287.250 R.S.MO. |
| COMPENSATION PAYABLE |
| 21. | Amount of compensation payable: |
| Unpaid medical expenses: | NONE |
| weeks of temporary total disability (or temporary partial disability) |
| weeks of permanent partial disability from Employer |
| weeks of disfigurement from Employer |
| Permanent total disability benefits from Employer of | $583.68 per week beginning July 11, 2006 for claimant’s lifetime subject to a credit of $2,980.15 for benefits paid by the employer from October 17, 2007 to November 29, 2007. |
| 22. | Second Injury Fund liability: | N/A |
| weeks of permanent partial disability from Second Injury Fund |
| Uninsured medical/death benefits |
| Permanent total disability benefits from Second Injury Fund: |
| weekly differential | payable by SIF for | weeks |
| beginning | and, thereafter, for claimant’s lifetime. |
| TOTAL: |
| 23. | Future requirements awarded: The employer is directed to provide claimant with such medical aid in the future that may be reasonably required to cure and relieve the condition caused by his August 14, 2004 injury to his spine. |
| Said payments to begin July 11, 2006 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 25% of all payments hereunder in favor of the following attorney for necessarylegal services rendered to the claimant: John E. McKay. |
| FINDINGS OF FACT and RULINGS OF LAW: |
| Employee: | BRYAN R. LONG | Injury No.: | 04-146261 |
| Employer: | HERZOG CONTRACTING CORPORATION |
| Insurer: | ACIG INSURANCE COMPANY |
| Hearing Date: | NOVEMBER 29, 2007 | Checked by: | NGA |
Prior to presenting evidence, the parties stipulated the issues to be determined by this hearing are:
class $= Section2 >$
- What is the correct rate of compensation;
- Whether there was an underpayment of compensation from October 17, 2007 through November 29, 2007;
- What is the nature and extent of claimant's disability; and
- The liability of Employer/Insurer for future medical treatment.
class=Section3>
The parties agreed that on August 14, 2004, Bryan Long was an employee of Herzog Contracting Corporation. The Employer was operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by ACIG Insurance Company.
The parties also agreed that on August 14, 2004, the Claimant sustained an injury by accident arising out of and in the course of his employment with Herzog Contracting Corporation. The employer had proper notice of the injury and a timely Claim for Compensation had been filed.
The parties agreed that the correct rate of compensation for permanent partial disability is $\ 354.05 per week.
The claimant was paid full salary through July 10, 2006. The employer does not request any credit for payment of salary nor overpayment of compensation prior to July 11, 2006.
Compensation has been paid in the amount of $\ 2,980.15 from October 17, 2007 through November 29, 2007. The employer is asking for a credit against permanent partial disability for this payment. Medical aid has been provided in the amount of $\ 129,367.41.
The Claimant testified in person. He is 31 years old. He has a high school education, graduating with a 1.6 or a "D" average which placed him next-to-last in his class. He has limited typing skills and limited computer skills. All of his employment has required heavy physical labor. He has no special training or transferable job skills. I found him to be a believable witness.
He said on August 14, 2004, he was carrying a 125-pound battery over a railroad track for Herzog Contracting Corporation when he slipped and fell, wrenching his back. As a result of the injury, he said he had four surgical procedures to the low back in a ten month period. In addition, he had ice therapy, heat therapy, physical therapy, multiple epidural injections, and other forms of treatment. He testified that the third surgical procedure was a total artificial disc replacement in the low back which left a scar on his abdomen that is one foot long and one inch wide. He said the total disc replacement surgery caused pain, numbness and tingling all the way to his big toe in his left-lower extremity so that his back and both lower extremities are now symptomatic. His left leg had not been painful prior to his disc replacement surgery.
He testified that his low-back pain varies from a five-to-seven on a ten-point scale. Standing, walking, sitting, and stooping make his pain worse. His right leg pain begins in his lower back, goes through the right hip, over the top of the right thigh, and ends at the inside of his right knee. This pain he described as ranging between a 5-7/10. He has numbness and tingling in his right leg, which is made worse when he stands for more than ten minutes. The left leg has pain that starts in his low back, goes into his left thigh, down his shin, into his left foot and left big toe. The other toes are not painful. The left lower extremity pain ranges
from 5-8/10. Walking and standing make the left lower leg pain worse. He testified that he suffers some degree of pain in his back and both legs at all times.
He said that if he had an eight-hour job, he could sit for 30-to-45 minutes before having to change positions. However, during the next increment, the time before he would have to change positions again would be shorter. He said that he could stand for 10 or 15 minutes before his right thigh became numb, but he could force himself to stand longer. The second increment of time would be shorter and he would pay a price the next day for forcing himself to stand longer. He could walk up to three-quarters of a mile but the second increment of walking would be much shorter and the third increment of walking during an eight-hour period would be shorter still.
class $= Section 4>$
He said it is difficult to lift his three-year-old daughter into her car seat or playground swing. He cannot sit on the floor and play games with her. Before his injury, he had been able to help with lawn mowing, perform lawn mower tune-ups, water heater repairs, hang new front doors, replace car batteries and install guttering. He said that he could not help his mother with those activities after the August 14, 2004 work injury. He testified that he could not help his wife rotate the mattress on their bed or do most of the housekeeping chores because it was difficult for him to stand, bend, or move his lower back. He said shopping in large stores required him to stop and rest. He would also take rest breaks while driving automobiles. Prior to his injury, he was a sportsman; however, after the August 14, 2004 work injury, he tried trap shooting but had to stop after 10 or 15 minutes. He sold his deer rifle because he could no longer climb into or sit in a deer stand to hunt. He said that he sold his fishing boat because he could not sit in the boat very long.
He testified that prior to his injury, he averaged eight or nine hours of sleep per night. He said after the work injury, he sleeps five or six hours per night, but not continuously. He said the loss of sleep and the fact that his sleep is interrupted due to pain has caused a loss of concentration when he is awake. He takes a nap between about one and two o'clock p.m. every day.
Claimant testified that his wife helps him bathe and cuts his toenails. He said she helps him put on his socks and shoes. He said that most of his time is spent sitting in a loveseat that has a recliner function. He said that he either lies down or reclines in this loveseat about eight or nine times between 8:00 a.m. and 5:00 p.m. each day.
Dr. Ernest Neighbor testified by deposition taken on February 2, 2007 and admitted into evidence as Claimant's Exhibit U. All objections thereto are hereby overruled.
Dr. Neighbor examined the Claimant on September 13, 2006. He said the Claimant was permanently totally disabled as a result of the August 14, 2004 work injury and the resulting surgeries for that work inj