James Wilson v. Ameren UE

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 February 2, 2009. The award and decision of Administrative Law Judge Kevin Dinwiddie, issued February 2, 2009, 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 22nd day of May 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

Employee: James R. Wilson

Injury No.: 02-086208

Dependents: N/A

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Additional Party: State Treasurer, as custodian of the

Second Injury Fund (open)

Insurer: Self-insured c/o Corporate Claims Management Inc.

Hearing Date: Thursday, October 30, 2008

Checked by: KD/cmh

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; injury by accident
4. Date of accident or onset of occupational disease: August 14, 2002
5. State location where accident occurred or occupational disease was contracted: St. Charles 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, self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was in a trench, digging and attempting to avoid an electrical line, while another employee was

operating a motorized hoe; claimant was injured when he was struck by the bucket of the hoe and knocked down.

1. Did accident or occupational disease cause death? No Date of death: N/A
2. Part(s) of body injured by accident or occupational disease: chest wall, right hip, low back, right knee, right

and left upper extremities

- Nature and extent of any permanent disability: 2\% permanent partial disability of the body as a whole, referable to the chest wall. All other issues as to compensability found in favor of the employer and insurer.

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? $\ 587.58
3. Value necessary medical aid not furnished by employer/insurer? N/A
4. Employee's average weekly wages: $\ 940.84

- Weekly compensation rate: $\$ 627.213 / \ 340.12

- Method wages computation: by agreement of the parties

- Amount of compensation payable: Employer and Insurer liable for a 2\% permanent partial

disability of the body as a whole, referable to the chest wall, equals 8 weeks at the rate of

$\ 340.12 per week. $\ 2,720.96.

1. Second Injury Fund liability: open
2. Future requirements awarded: N/A

Said payments to begin as of the 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 lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Jack J. Adams

Employee: James R. Wilson

Injury No: $\quad 02-086208$

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial Relations of Missouri<br>Jefferson City, Missouri

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Ameren UE

Additional Party State Treasurer, as custodian of the Second Injury Fund (open )

Insurer: Self-insured, c/o Corporate Claims Management, Inc.

Checked by: $\mathrm{KD} / \mathrm{cmh}$

The claimant, Mr. James R. Wilson, appeared at hearing in person and by and through his counsel, Jack J. Adams, and testified on his own behalf with regard to a work injury agreed by the employee and employer/insurer to be compensable under the workers' compensation act. The claimant seeks a final award, and requests a finding in his favor on the two issues agreed by the parties as being in dispute in this matter: medical causal relationship as to various complaints of ill being; and as to nature and extent of permanent partial disability. Mr. Wilson requests that the issue as to the liability of the Second Injury Fund remain open.

In support of his claim for compensation, the claimant submitted various medical and chiropractic records and the expert testimony by deposition of Robert Poetz, D.O.

The employer and insurer, Ameren UE, self-insured, appeared at hearing through its counsel, Patrick A. Patterson and Matthew J. Barnhart, and solicited the fact witness testimony of Ms. Deborah Kleve; Mr. Chris Kilgore; and Mr. Kevin Johnson. The employer/insurer further submitted certain medical records and the expert testimony by deposition of Drs. Henry Ollinger and Michael Nogalski.

In advance of taking testimony in the matter, the employee and employer agreed that there was no dispute as to a medical causal relationship between the claimant's complaints of a permanent state of ill being in the chest wall and the involved work injury. When asked as to permanent disability related to the involved work injury, Dr. Nogalski responds "Given the history provided, that of being struck by a backhoe, it would be reasonable to consider a 1 to 2 percent permanency."; Employer and Insurer's Exhibit No. 2, at page 17. Dr. Poetz also believes the work injury resulted in permanent partial disability at the chest wall, Claimant's Exhibit A at page 12. The only dispute as to the chest injury is as to the extent of permanent partial disability. The parties have put in dispute both medical causal relationship and nature and extent of permanent partial disability as relates to complaints of ill being in the lumbar spine; right hip; and right and left upper extremities at the level of the wrists.

The following exhibits were received in evidence at hearing:

1. Deposition of Robert Poetz, D.O., taken on 8/12/08
2. Certified medical records of Dr. John Havey (Boone Orthopaedic Associates, L.L.C.; Boone Hospital Center)
3. Certified medical records of Audrain Medical Center
4. Certified medical records of Columbia Orthopaedic Group
5. Subpoena Duces Tecum and chiropractic records of Murphy Chiropractic \& Acupuncture, James D. Murphy, DC, PC

1. Deposition of Henry Ollinger, M.D., taken on 6/05/08
2. Deposition of Michael Nogalski, M.D., taken on 6/02/08
3. Medical records of Dr. Kathleen Weaver (Audrain Medical Center)

- Certified medical records of Centralia Family Health Clinic (Dr. Curtis D. King)

- Medical records of BHC Occupational Medicine (Dr. Michael J. Szewczyk)

Mr. Wilson is found to be a generally credible witness, and the work history; medical history; history of injury; and subsequent complaints of ill being as contained in the following summary of claimant testimony are hereby incorporated into these findings of fact by this reference, excepting as to a discussion of any perceived misstatement of fact or conflict with other evidence as noted by the fact finder herein. Likewise, Ms. Kleve and Messrs. Kilgore and Johnson are believed to have testified credibly, and their testimony to be worthy of belief unless otherwise specified herein.

Mr. Wilson, 54 years old as of the date of hearing, has a degree in auto/diesel mechanics, and began his employment with the employer in approximately April of 1990, employed in several capacities, most recently as an electrician mechanic. In August of 2002 the claimant was working at a substation, and while in the course of digging up a pvc pipe to wire one device to another, he was accidentally struck by the bucket on the small track hoe being operated by another employee. At the time Mr. Wilson was digging with

a shovel in a shallow trench; claimant relates that the bucket struck him in the hands, pushing the held shovel into his chest. Mr. Wilson recalls striking his right leg on the bucket as he was knocked to the ground, falling on his back, and having the wind knocked out of him but remaining conscious.

The claimant relates that he went to the worksite trailer, and spoke to Chris Kilgore, who was filling in for the claimant's regular supervisor. Mr. Wilson recalls that he was feeling sick to his stomach, but declined the offer to be taken to the hospital for several reasons, including the fact that he was new to the substation; that he preferred to return to Mexico, Missouri where the company headquarters was located and where the claimant had his home; and that he did not wish to cost the substation the award for safety excellence.

Mr. Wilson recalls being hurt on a Thursday, and requesting on Friday to be referred by the employer for medical evaluation. Mr. Wilson recalls being referred to a doctor in Columbia, Missouri, and cannot recall with certainty but believes his first appointment was on the following

Monday. Mr. Wilson recalls five or six doctor visits, and acknowledges that during his treatment he performed home exercises; continued working but limited his activity; and was not prescribed nor did he take any medication. The records of Dr. Szewczyk notwithstanding, at hearing Mr. Wilson notes that his physical complaints did not resolve.

Mr. Wilson acknowledges that he continued to work for the employer thereafter despite leg and hand pain, and notes that although he was able to perform all the functions of his job, the job mostly involved riding in a truck and was not that physical.

Claimant relates that he currently has trouble bending his back or getting up from the floor, and further notes that his back has gotten gradually more stiff following his 8/14/02 work injury. Mr. Wilson recalls that he sought subsequent evaluation by his family physician and from a specialist.

Mr. Wilson notes that he left his employment in February of 2004. Mr. Wilson acknowledges that he worked for Ameren UE without medical restriction, having been terminated not for an inability to work, but rather for using a company gas card for personal use. Claimant also acknowledges that he was working without medical restriction following a similar work injury in 1998.

For the year thereafter Mr. Wilson worked on a hog farm. Claimant notes that his employment at the hog farm was interrupted by the need for right hip replacement surgery. Mr. Wilson denies suffering any injury while at the hog farm, noting that he was unable to perform certain work due to pain in his leg, hip, and back. Claimant relates that subsequent to the hog farm he began driving a truck, and denies suffering any motor vehicle accidents or other injuries from the time he began driving a truck to the present. Mr. Wilson acknowledges that for a time he would transport mobile homes and other such units from state to state, and that more recently he has been lim