Thomas Fischer v. Schultz Electric, Inc.

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-146260

Employee: Thomas James Fischer

Employer: Schultz Electric, Inc.

Insurer: Builders' Association Self-Insurers' Fund

Date of Accident: June 1, 2004

Place and County of Accident: St. Joseph, Buchanan County, Missouri

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 July 22, 2008. The award and decision of Administrative Law Judge Robert B. Miner, issued July 22, 2008, 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 14th day of January 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: John E. McKay.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Thomas James Fischer

Injury No.: 04-146260

Employer: Schultz Electric, Inc.

Insurer: Builders’ Association Self-Insurers’ Fund

Hearing Date: May 5, 2008

Checked by: RBM

A final hearing was held in this case on Employee’s claim against Employer on May 5, 2008 in St. Joseph, Missouri. Employee, Thomas James Fischer, ("Claimant") appeared in person and by his attorney, John E. McKay. Employer, Schultz Electric, Inc., ("Employer") and Insurer, Builders’ Association Self-Insurers’ Fund ("Insurer") appeared by their attorney, Jeff F. Stigall. John E. McKay requested an attorney's fee of 25 % from all amounts awarded. The Second Injury Fund is not a party in this case.

At the time of the hearing, the parties stipulated to the following issues:

- On or about June 1, 2004, Thomas James Fischer ("Claimant") was an employee of Schultz Electric, Inc., ("Employer") and was working under the provisions of the Missouri Workers’ Compensation Law.

- On or about June 1, 2004, Employer was an employer operating under the provisions of the Missouri Workers’ Compensation Law and was insured by Builders’ Association Self-Insurers’ Fund, ("Insurer").

- On or about June 1, 2004, Claimant sustained an injury by accident in St. Joseph, Buchanan County, Missouri arising out of and in the course of his employment.

- Employer had notice of Claimant's injury.

- Claimant's Claim for Compensation was filed within the time allowed by law.

- Claimant's average weekly wage was $\ 836.48, and the rate of compensation for temporary total disability and permanent total disability is $\ 557.65 and the rate of compensation for permanent partial disability is $\ 347.05.

- Employer/Insurer had paid $\ 28,984.94 in temporary total disability at the rate of $\ 469.71 per week for the period February 17, 2005 through August 2, 2005.

- Employer/Insurer had paid $\ 67,041.00 in medical aid.

- The amount of $\ 1,294.00 in unpaid medical expenses incurred to treat Claimant's injury was fair, reasonable and necessary, and shall be paid by Employer/Insurer.

The parties agreed that there were disputes on the following issues:

- What is Employer/Insurer's liability, if any, for underpayment of temporary total disability from February 17, 2005 through August 2, 2005?

- What is Employer/Insurer's liability, if any, for past temporary total disability benefits?

- The nature and extent of Claimant's permanent disability, including whether Claimant is permanently and totally disabled.

- What is Employer's liability, if any, for past medical aid?

- What is Employer/Insurer's liability, if any, for future medical aid?

- Who were the dependents of Claimant on June 1, 2004 for purposes of Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007)?

Claimant testified in person. Claimant also called as witnesses Michael Dreiling, Julie Fischer, Debbie Dolman, and Jenny Petrovick. In addition, Claimant offered the following exhibits which were admitted in evidence without objection:

- OHS Compcare records.

- Dr. Bailey/Heartland Hand \& Spine records Vol. I.

- Dr. Bailey/Heartland Hand \& Spine records Vol. II.

- Health South medical records.

- St. Joseph Imaging records.

- Heartland Hospital records Vol. I.

- Heartland Hospital records Vol. II.

- Dr. Gondring records.

- RS Medical nerve stimulator records.

- Heartland Hospital bill: \$1,294.00.

- Dr. Neighbor medical report dated 12/14/05.

- Verification of no light duty.

- Neurology Associates EMG report.

- Heartland Health radiology report.

- Dr. Neighbor medical report dated 6/27/06.

- Dr. Bailey reports dated April 28, 2006 and May 2, 2006.

- Dr. Amundson medical report.

- Rehabilitation Institute records.

- Health South records Vol. II.

- Dr. Amundson records.

- Dr. Neighbor report dated 9/13/07.

- Dr. Neighbor resume.

- Dr. Neighbor report dated November 26, 2007.

- Dr. Neighbor deposition dated 2/7/08.

- Attorney/Client contract.

- Birth Certificate: Jansen Fischer 7/9/86.

- Birth Certificate: Jarent Fischer 8/3/88.

- Birth Certificate: Jelissa Fischer 9/2/89.

- Marriage Certificate.

- Report of Michael Dreiling dated March 4, 2008.

Employer/Insurer called Robert McClellan as a witness. Employer/Insurer offered the following exhibits which were admitted in evidence without objection:

- Correction page on March 7, 2006 deposition.

- Second correction page on March 7, 2006 deposition.

- Amended Claim \& Amended Answer.

- Dr. Bailey’s reports of August 2, 2005, February 27, 2006, and May 2, 2006.

- FCE dated July 27, 2005.

- FCE dated April 25, 2007.

- Dr. Terrie Price report of November 17, 2006.

- Dr. Amundson’s report of May 15, 2007.

- Claimant’s first deposition dated March 7, 2006.

- Claimant’s second deposition dated February 4, 2008.

- Vocational Counselor’s report of Robert McClellan dated April 30, 2008.

Claimant testified that he was born on July 25, 1960 and will be 48 years old. He said that his wife and three children were living with him and were all financially dependent on him. He said he had worked for Employer for 22 years. His average weekly wage was $\ 836.48. He was a union expediter, not an electrician. His job required heavy lifting of between 50 and 100 pounds every day. He had help with lifting at times. His job required him to carry, stoop and walk. He had no medical restrictions before his work injury. He averaged 45 hours per week at work.

On June 1, 2004 Claimant was moving a threading machine. He was setting it down when he felt a wrenching pain in his back. The machine weighed between 800 and 1,000 pounds. He was trying to move it by himself with a dolly. He was diagnosed with a two-level ruptured disc and had two back surgeries. The first surgery was on one disc and the second surgery was on both discs. He had three epidural steroid injections, physical therapy, a myelogram, CT testing, traction, ice and heat therapy, and a TENS unit and therapy at home. He said he takes Tramadol for pain as needed one to two times per week.

Claimant testified that presently he has right leg pain daily that is between a seven and an eight out of ten. At best, the pain is between four and five during an ordinary day. Claimant testified that he is in some pain every day all day. He said his pain starts at his low back and goes down his buttocks and then down his right leg to his calf and to his four small toes, and, occasionally, to his big toe. He stated that he has had a pins and needles feeling with numbness and tingling in his right leg. His right foot falls asleep. When that happens, he said he should not drive. He said he limps. He said his numbness at the worst is between a seven and eight out of ten and at best is a four to five.

Claimant also said that he has left leg pain that was between four and five, and at best two. He said he is never pain-free in