Billy Joe McMunn v. Complete Roofing, Inc.

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 20, 2008. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued November 20, 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 21st day of July 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

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

Employee: Billy Joe McMunn

Injury No. 03-136465

Dependents: N/A

Employer: Complete Roofing, Inc.

Additional Party: Second Injury Fund

Insurer: Missouri Employer's Mutual

Appearances: Gary Matheny for the employee. Eileen Krispin for the Second Injury Fund.

Hearing Date: August 21, 2008

Checked by: LCK/kh

- 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? On or about April 11, 2003.

- State location where accident occurred or occupational disease contracted: Cole 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 happened or occupational disease contracted: The employee injured his low back while moving a ladder.

- Did accident or occupational disease cause death? No.

- Parts of body injured by accident or occupational disease: Low back and body as a whole.

- Nature and extent of any permanent disability: 22 % of the body as a whole referable to the low back against the employer-insurer. Permanent total disability against the Second Injury Fund.

- Compensation paid to date for temporary total disability: None.

- Value necessary medical aid paid to date by employer-insurer: None.

- Value necessary medical aid not furnished by employer-insurer: N/A.

- Employee's average weekly wage: $\ 770.00.

- Weekly compensation rate: $\ 513.59 for permanent total disability. $\ 340.12 for permanent partial disability.

- Method wages computation: By agreement.

- Amount of compensation payable: Permanent Total Disability against the Second Injury Fund.

- Second Injury Fund liability: Permanent Total Disability.

- Future requirements awarded: See Findings of Fact and Rulings of Law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Gary Matheny.

On August 21, 2008, the employee, Billy McMunn, appeared in person and with his attorney, Gary Matheny, for a hearing for a final award in the employee's claim against the Second Injury Fund. The Second Injury Fund was represented at the hearing by Assistant Attorney General Eileen Krispin. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

- On April 11, 2003 Complete Roofing, Inc. was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was fully insured by Missouri Employers Mutual.

- On April 11, 2003 Billy McMunn was an employee of Complete Roofing, Inc., and was working under the Workers' Compensation Act of Missouri.

- The employer had notice of the employee's alleged accident.

- The employee's claim was filed within the time allowed by law.

- The employee's average weekly wage was $\ 770.00. The rate of compensation for permanent total disability is $\ 513.59 per week and for permanent partial disability is $\ 340.12 per week.

- The employer-insurer did not pay any medical bills.

- The employer-insurer did not pay any temporary total disability benefits.

- The parties agreed to a change of venue from Cole County Missouri to Jefferson County Missouri.

Judicial notice of the contents of the Division's files for the employee was taken. On June 29, 2006, the employee settled his claim against the employer-insurer for 22 % of the body as a whole referable to the low back.

- Accident

- Medical causation

- Liability of the Second Injury Fund for permanent total disability or permanent partial disability

The following exhibits were admitted into evidence:

Employee's Exhibits

- Copy of stipulation for compromise settlement against the employer-insurer

- Medical records of Mid-America Orthopedic Surgery, Inc.

- Medical records of Dr. Gragnani

- Certified copy of the employee's Workers' Compensation file in injury number 90-006489

- Medical records of Dr. Sides

- Medical records of St. Anthony's Medical Center

- Medical records of Des Peres Hospital

- Medical records of Dr. Chabot

- Medical records of Pain Management Center

- Medical records of Dr. Anderson

- Medical records of Dr. Anderson

- Deposition of Dr. Berkin which includes his CV and report

- Deposition of Susan Shea which includes her CV and vocational assessment report

Witness: Billy McMunn the employee

Briefs: The employee filed his brief on August 29, 2008. The Second Injury Fund filed its brief on September 4, 2008 .

The employee is 56 years old. He went through 10th grade and received a GED. He has no other training or vocational experience. His vocational history is almost all in the roofing industry. He worked in a box plant for about 6 months and was involved in the production of corrugated boxes. He also worked in a window plant. He started working in the roofing industry around 1971 and worked until 2004. He started as a roofer and was also a foreman. A roofing foreman works side by side with the roofers. He injured his left ankle in the late1970's in a motorcycle wreck, had surgery, and continued to do roofing but his ankle was sore.

The employee injured his low back lifting propane on January 30, 1990. He saw Dr. Vanderlugt in February with left buttock pain. The doctor diagnosed lumbosacral sprain syndrome and degenerative joint disease. Therapy was prescribed. In April the doctor ordered a lumbar CT scan which showed a minimal bulging disc without significant herniation at L5-S1. In June the employee had an MRI that showed disc degeneration at L2-3, L3-4, L4-5 and L5-S1 but no focal disc herniation or significant encroachment. A bone scan showed degenerative joint disease at the lumbosacral junction. He had a negative EMG and NCV for nerve root involvement. In July Dr. Vanderlugt stated that the employee needed vocational rehabilitation but was not disabled and would see him on an as needed basis.

The employee saw Dr. Gragnani at the end of August. The employee worked as a roofer since 1971 and had back pain for at least the last five years. Dr. Gragnani noted the January 30 low back incident and that the employee

had been off work. He reviewed the prior MRI and the CT scan and noted that there was degeneration at the last three lumbar discs but no evidence of a disc herniation or nerve root compression. Dr. Gragnani ordered another CT scan which was normal. He returned the employee to work duties.

In October, Dr. Gragnani stated that the employee returned to work and had increased discomfort in his back without any particular injury. Dr. Gragnani ordered an MRI and bone scan which showed a disc bulge at L5-S1 slightly to the left which is the opposite side of where the employee had his pain. He released the employee to return to work without restriction. In November, Dr. Gragnani noted a myelogram and post myelogram CT scan showed no significant abnormality and a minimal disc bulge at L5-S1. In December Dr. Gragnani rated the employee at 3-5\% disability for subjective complaints to his back.

The employee was seen by Dr. Morrow in March of 1991. With regard to the January 30, 1990 accident, Dr. Morrow diagnosed a lumbosacral sprain with bulging lumbar disc at L5-S1 superimposed upon pre-existing chronic lumbosacral sprain. Dr. Morrow stated the employee had a 50 % permanent partial disability of the body as a whole attributable to the low back with 10 % pre-existing and 40 % attributable to the work injury. Dr. Morrow recommended that the employee avoid work involving repeated bending at the waist; repeated squatting, pushing and pulling of objects without adequate rest intervals; repeated lifting of weights in excess of fifteen pounds; ascending and descending of steps; and all types of climbing. Dr. Morrow did not feel that the employee would be employable as a roofer.

In August of 1991, Dr. Gragnani re-examined the employee and due to substantial subjective complaints ordered a work capacity evaluation which showed that the employee was functioning in the moderate work category which is beneath the category of work required for a roofer. Moderate work category would indicate that his maximum single lifting limit would be no greater than fifty pounds with a more frequent lift and/or carry up to twentyfive pounds with the same weight restrictions for pushing and pulling. Dr. Gragnani did not think that there was any further treatment that would benefit him.

In August of 1992, Administrative Law Judge Wieland issued an award which stated that the employee had an overall permanent partial disability of 17.5 % of the low back with 12.5 % due to the January 30, 1990 work accident and 5 % pre-existing. In October of 1992, the employee settled his case for 12.5 % permanent partial disability to the body as a whole referable to the low back.

After the 1990 accident and injury, the employee stopped installing roofs. The employee could no longer do physical labor because he was in too much pain with heavy lifting. He started working as a consultant and inspector which was not as much physical labor. He went up on roofs to inspect and evaluate. Sometimes he would design a new roof and would inspect for quality control during production, and cut core samples. He later became a roofing estimator.

In 2001, the employee lifted something and felt a snap in his back. The employee saw Dr. Sides in April with a 5-6 week history of low back pain with no radiation. Dr. Sides diagnosed acute exacerbation of chronic back pain and recommended that the employee take off work and prescribed physical therapy. Dr. Sides continued Vioxx, Skelaxin and Lorcet Plus.

In May, Dr. Sides ordered an MRI which showed a large left paracentral disc protrusion at L5-S1 that caused definite mass effect upon the existing nerve root and the anterioral lateral aspect of the thecal sac.

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