A hearing was held for a final award at the Missouri Division of Workers’ Compensation (“DWC)” St. Louis office at the request of Gustave Bopp (“Claimant”), on August 6, 2008, pursuant to Section 287.450 RSMo (2000).
Attorney Geoffrey Meyerkord represented Claimant and Assistant Attorney General Kareitha Osborne represented the Second Injury Fund (“SIF”).
Prior to hearing, Fischer & Frichtel (“Employer”) and Auto Owners Insurance Company (“Insurer”) settled their case with Claimant for 12.5 % of the whole person. At the hearing, Claimant submitted injury numbers 04-030630 and 04-141651 for resolution. Although separate awards were issued, the body of each award contains similar issues and facts. The record closed after presentation of evidence. Hearing venue is correct and jurisdiction properly lies with DWC.
Claimant’s Exhibits A-U are admitted over SIF’s objection to Exhibit E, based on relevance. SIF’s Exhibit I is admitted over Claimant’s objection, based on relevance. Any notations contained in the records were present when admitted into evidence.
**STIPULATIONS**
The parties stipulated that on or about August 13, 2004:
- Claimant was employed by Employer and sustained an accident which arose out of and in the course of employment in St. Louis County;
- Employer and Claimant were operating under the Missouri Workers’ Compensation Law;
- Employer’s liability was fully insured by Insurer;
- Employer had notice of the injury;
- A claim for compensation was timely filed;
- Claimant’s average weekly wage is $736.10;
- Claimant’s rate for temporary total disability (“TTD”) and permanent total disability(“PTD”) is 490.73 and 354.05 for PPD;
- Employer paid 20,119.93 in TTD benefits for 41 weeks;
- Employer paid 122,564.77 in medical benefits for injury numbers 04-141651 and 04-030630; and
- Claimant achieved maximum medical improvement (“MMI”) on August 3, 2005.
The sole issue to be decided is the nature and extent of SIF liability, if any, for PPD or PTD benefits?
**SUMMARY OF DECISION**
The entire record, including Claimant’s testimony, appearance, demeanor, medical reports, and applicable law establish SIF is not liable to Claimant for PPD or PTD benefits.
**FINDINGS OF FACT**
All evidence was reviewed, but only evidence supporting this award is referenced below. Any objections not expressly ruled upon in the award are overruled. Based upon competent and substantial evidence contained in the record, I find the following facts:
**Background Facts**
- Claimant was 38 years old when he sustained a cervical injury while working on August 13, 2004. He is divorced with a 6 year old child. Claimant graduated high school and attended college for one semester.
**Employment Facts**
- In 1992, Claimant worked as a package sorter for UPS. He worked as a laborer for Luth \& Sons, performing heavy work. Claimant was a self-employed painter for five years. He lifted ladders, paint buckets, painted over head, and maintained business records. Claimant worked for St. Joseph's Hospital as a carpenter and painter for ten years.
- Claimant worked as a laborer for Employer from 2000 to 2004. He supervised subcontractors in erosion control, cleaned debris from new construction, inspected and cleaned sewers and man holes, shoveled, and lifted debris, buckets and tools weighing up to 50 pounds.
- On or about August 12, 2004, Claimant returned to work after recovering from an earlier neck surgery. He began to construct a fence. On August 13, 2004, Claimant re-injured his neck while driving fence posts into the ground with a sixty pound cylinder. Claimant felt pain in the neck, shoulder, and arm similar to pain from the earlier injury. He completed his shift but sought medical treatment when he could not return to work the next day. After conservative treatment was unsuccessful, Dr. Bernardi performed neck surgery on January 3, 2005. This was Claimant's fifth cervical spine surgery.
- On October 27, 2004, Employer terminated Claimant due to a workload reduction, and Claimant received unemployment benefits in 2005. He has not worked since that time. Claimant applied for a job with Whelan Security as a driver, but failed the physical examination. Claimant testified he can no longer work, but no has doctor recommended he stop working.
- Complaints include pain in the neck, arms, right thigh, and occasional groin and hand numbness, and a pain level of seven to eight out of ten. He testified he takes eight-five-hundred milligrams of Vicodin per day, prescribed by his primary physician. Claimant testified he takes medication to sleep because of neck pain. He compensates by sleeping during the day. Medication affects his ability to concentrate. On a typical day, Claimant takes medication, feeds the dogs, and watches television. Claimant has gained weight due to inactivity.
- Claimant holds current hunting and fishing licenses, but has not hunted since July 2007. Most of his hunting time was spent socializing with friends. Claimant drives a manual shift pick up truck with a Class E drivers' license and no restrictions. He can drive seventy-nine miles one way.
- Mrs. Betty Jane Bopp, Claimant's mother, is a nurse and testified on his behalf. In 2006, Claimant moved in with Mrs. Bopp and Claimant's father so they could assist him. After Claimant injured his neck, Mrs. Bopp noticed he gained weight and has trouble sleeping, memory lapses, headaches, and inability to work around the house. Mrs. Bopp cooks, washes laundry, feeds the dogs, and cares for Claimant's daughter when she visits. She observed Claimant take two Vicodin pills every four hours for pain and medicine to sleep.