David Heston v. Rock Hill Mechanical Corporation

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 February 13, 2009. The award and decision of Administrative Law Judge Suzette Carlisle issued February 13, 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 23rd day of July 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

1. Are any benefits awarded herein? Yes

- Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

- Date of accident or onset of occupational disease: August 15, 2002

- State location where accident occurred or occupational disease was contracted: St. Louis City, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? Yes
3. 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

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured his back when he was pinned between a truck and a dolly.
3. Did accident or occupational disease cause death? No Date of death? N/A
4. Part(s) of body injured by accident or occupational disease: Low back -Psychiatric

- Nature and extent of any permanent disability: Permanent Total Disability-Employer

1. Compensation paid to-date for temporary disability: $\ 119,288.36
2. Value necessary medical aid paid to date by employer/insurer? $\ 50,792.66
3. Value necessary medical aid not furnished by employer/insurer? N/A

- Employee's average weekly wages: Sufficient for maximum rates

1. Weekly compensation rate: $\$ 649.32 / \ 340.12
2. Method wages computation: By stipulation

1. Amount of compensation payable:

Permanent total disability benefits in the amount of $\ 649.32 from Employer/Insurer beginning March 1, 2008, for Claimant's lifetime

Employer/Insurer shall receive a credit for overpayment of temporary total disability in the amount of $\ 371.04 (4/7 weeks) from February 25, 2008 to March 1, 2008

1. Second Injury Fund liability: Denied

1. Future requirements awarded: As outlined in the award

Said payments to begin 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: Dean Christiansen

Employee: David Heston

Injury No.: 02-156157

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

Before the

A Temporary Award was issued by Judge Edwin Kohner in the above captioned matter on November 3, 2004. The judge found for David Heston ("Claimant") on medical causation, past medical expenses, future medical care, and Temporary Total Disability ("TTD"). On July 31, 2006, Judge Kohner issued a Second Temporary Award in this matter, and found for Claimant on medical causation, past medical expenses, future medical care and TTD.

On November 17, 2008, a hearing was held for a final award at the Missouri Division of Workers’ Compensation ("DWC") St. Louis office at the request of Claimant, pursuant to Section 287.450 RSMo. (2000). Claimant seeks permanent total disability ("PTD") benefits. Attorney Dean Christianson represented Claimant. Attorney Stephen Larson represented Rock Hill Mechanical Corporation, ("Employer") and Travelers Commercial Casualty, ("Insurer")._ Attorney Sarah Reichert represented the Second Injury Fund ("SIF"). Attorney Christopher Archer withdrew on behalf of Employer. The record closed after presentation of evidence.

Claimant’s Exhibits A-EE, Employer’s Exhibits 1-9, and SIF’s Exhibits I-II were admitted. Any notations contained in the records were present when admitted.

The parties stipulate that on or about August 15, 2002:

- Claimant was employed by Employer;

- Claimant sustained an accident which arose out of and in the course of employment in St. Louis City;

- Employer and Claimant were operating under the Missouri Workers’ Compensation law;

- Insurer fully insured Employer’s liability;

- Employer had notice of the injury;

- A Claim for Compensation was timely filed;

- Claimant’s average weekly wage was sufficient for a maximum rate of 649.32 for TTD and PTD and 340.12 for Permanent Partial Disability ("PPD");

- Employer paid $119,288.36 in TTD benefits; from June 7, 2004 to December 15, 2004 and February 16, 2005 to February 25, 2008;

- Employer paid $50,792.66 in medical benefits;

- Claimant achieved maximum medical improvement ("MMI") on February 25, 2008;

- Claimant received a TTD overpayment totaling four days;

- There are two temporary awards from prior hearings, held September 20, 2004 and May 26, 2006;

- The parties request the Court take judicial notice of all testimony in the two prior hearings; and

- All exhibits from the prior hearings are admitted into evidence without objection in this hearing.

The parties presented the following issues for disposition:

- Is Claimant’s medical condition medically causally related to a work injury?

Is Employer liable for future medical benefits?

- What is the nature and extent of Employer's liability for PPD, if any?

- What is the nature and extent of Employer's liability for PTD, if any?

- What is the nature and extent of SIF liability for PPD, if any?

- What is the nature and extent of SIF liability for PTD, if any?

- Did Claimant have dependents on the date of accident?

Claimant met his burden to show his medical condition was medically causally related to a work injury based on the entire record, including expert testimony, Claimant's testimony and demeanor, medical reports, and the applicable law of the State of Missouri.

All evidence was reviewed but only evidence supporting this award is referenced below. This Court adopts and reissues all "Findings of Fact" from the first two hearings. Any objections not expressly ruled on in this award are overruled. Based upon previous "Findings of Fact," competent and substantial evidence presented during three hearings, and reasonable inferences to be derived, I find the following facts:

1. Claimant graduated high school in 1972. He attended college for one semester and dropped out due to a motorcycle accident. Claimant married Sylvia Yoder on July 5, 1980.
2. On August 15, 2002, Claimant was forty-eight years old, still married to Sylvia, and had three children; David, Jessica and Lauren Heston. Claimant lived with his wife, Jessica and Lauren; and provided for their support. David attended college and Claimant provided tuition, room, and board.
3. In 1973, Claimant became a journeyman sheet metal worker and obtained assignments through the union hall with various employers.
4. Claimant worked for Employer from 1999 to November 2003. Employer hired Claimant as a journeyman and promoted him to foreman two months later. He was required to lift seventy-five pounds; but frequently lifted up to one- hundred twenty-five pounds. Claimant worked with sheet metal on roof tops and with ductwork inside buildings. He lifted and installed duct work weighing up to several hundred pounds, with assistance, and operated hand and power tools. Work involved bending, stooping, and using his hands. As a foreman, he measured ductwork, ordered material, and performed manual labor as needed.

1. On August 15, 2002, while moving duct work on a dolly with a co-worker, Claimant injured his back when he was pinned between a truck and the dolly.
2. Claimant continued to work until November 2003; but pain increased; and it became difficult to walk up stairs. He used man lifts to climb. In November 2003, Employer needed to lay off workers and remove man lifts. Claimant volunteered to be laid off because he could not climb, and had difficulty lifting, bending, and walking.
3. The union required Claimant remain on the hiring list, but he refused several jobs because he could not climb thirty-two foot ladders due to leg weakness.
4. Before the accident, Dr. Heidi Prather provided medication and injections for an earlier injury that caused left leg radiculopathy. After the 2002 accident, Dr. Prather injected both sides of Claimant's back for the first time. Also, this was the first time Claimant had pain and numbness in both legs. He received numerous injections but declined the recommended surgery.

1. No work restrictions were imposed after the 2002 work accident, and he missed no time from work until he was voluntarily laid off, sixteen months later.
2. Physical complaints include pain and numbness to the left calf, right thigh, and constant back throbbing, stabbing pain, instability, weakness in both legs, increased pain with movement, coughing or sneezing, and decreased range of motion.
3. Claimant can sit for an hour after walking three minutes on the treadmill, and after six minutes he has to lie down for an hour. After walking twenty-two minutes, he is in bed for two days. Claimant can no longer perform housework or mow the lawn because he cannot bend. He lies down every two hours. If he sits too long, it is hard to walk. After 1998, Claimant limited golf to once a month. After the 2002 accident, Claimant limited golf to twenty swings due to pain. Claimant limits driving because he gets lost in unfamiliar areas. He takes breaks after driving thirty minutes. Claimant continues to smoke against advice from physicians.
4. Twice a night he tries to change position without causing pain. Each morning, he makes coffee, watches television, walks the treadmill twice a day, works puzzles, and loads the dishwasher as long as he is not bending.
5. At times, Claimant feels suicidal and sits around doing nothing. He used to be the "breadwinner", and laughs to avoid crying. He continues to see Dr. Graham twice a year for pain management; and Dr. Stillings four times a year for depression. He would like to continue treatment with Dr. Stillings for both medication and psychiatric therapy.