Bradley Burger v. Bloomsdale Excavating Company, Incorporated d/b/a Artisan Contracting

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-027294

Employee: Bradley J. Burger

Employer: Bloomsdale Excavating Company, Incorporated d/b/a Artisan Contracting (Settled)

Insurer: Bituminous Insurance Company (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 April 9, 2009. The award and decision of Administrative Law Judge Gary L. Robbins, issued April 9, 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 $\underline{23^{\text {rd }}}$ day of September 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Bradley J. Burger

Injury No. 04-027294 /04-145230

Dependents: N/A

Employer: Bloomsdale Excavating Company, Incorporated d/b/a Artisan Contracting

Additional Party: Second Injury Fund

Insurer: Bituminous Insurance Company

Hearing Date: January 7, 2009

Checked by: GLR/kh

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
4. Date of accident or onset of occupational disease? March 24, 2004 and March 26, 2004.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau 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
11. Describe work employee was doing and how accident happened or occupational disease contracted: In 04-027294 the employee was using a portable when it torqued multiple

times injuring his right shoulder and arm. 04-145230 is a repetitive motion injury causing bilateral carpal tunnel.

1. Did accident or occupational disease cause death? No
2. Parts of body injured by accident or occupational disease: Right shoulder in 04-027294 and bilateral wrists in 04-145230.
3. Nature and extent of any permanent disability: In 04-027294 the employee settled his case with the employer-insurer for 40 % permanent partial disability of the right shoulder and 30 % permanent partial disability of the body as a whole for psychological disability. In 04145230 the employee settled his case with the employer-insurer for 20 % permanent partial disability of each wrist, 4 weeks disfigurement and a 10 % load.
4. Compensation paid to date for temporary total disability: N/A
5. Value necessary medical aid paid to date by employer-insurer: N/A
6. Value necessary medical aid not furnished by employer-insurer: N/A
7. Employee's average weekly wage: $\ 1,000.00 per week.
8. Weekly compensation rate: The employee's rate for temporary total and permanent total disability is $\ 662.55 per week. His rate for permanent partial disability is $\ 347.05 per week.
9. Method wages computation: By agreement.
10. Amount of compensation payable: See Award
11. Second Injury Fund liability: Permanent Total Disability. See Award
12. Future requirements awarded: None

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: Thomas J. Gregory

On, January 7, 2009, the employee, Bradley J. Burger, appeared in person and by his attorney, Thomas J. Gregory, for a hearing for a final award. The employee had previously settled his cases with the employer-insurer. The Second Injury Fund was represented by Assistant Attorney General Clifton K. Verhines. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. 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 statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Bituminous Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Bloomsdale Excavating Company Incorporated d/b/a Artisan Contracting and was working under the Workers' Compensation Act.
3. On or about March 24, 2004 the employee sustained an accident or occupational disease arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 1,000.00. His rate for temporary total and permanent total disability is $\ 662.55 per week. His rate for permanent partial disability is $\ 347.05 per week.
7. The employee's injury was medically casually related to his accident or occupational disease.

Whether the Second Injury Fund has liability for either permanent partial disability or permanent total disability?

The following exhibits were offered and admitted into evidence without objection:

Employee's Exhibits

A. Transcript of Compromise Settlement-88-146849

B. Stipulation for Compromise Settlement-91-013284

C. Stipulation for Compromise Settlement-04-027294

D. Stipulation for Compromise Settlement-04-145230

E. Deposition of David T. Volarich, D.O.

F. Deposition of Wayne A. Stillings, M.D.

G. Deposition of James M. England, Jr.

Second Injury Exhibits

1. Medical records from Parkcrest Orthopedics, LLC
2. Medical records from Mid America Rehab

Mr. Burger was the only person who testified in person. All other evidence was presented in the form of records from the Division of Workers' Compensation, medical records and deposition testimony by David T. Volarich, D.O., Wayne A. Stillings, M.D., and James M. England.

Mr. Burger is presently forty-nine years old, unmarried, has a ten year old daughter and lives in Scott City, Missouri. He graduated from high school and received training in the military as a carpenter. He began working for Bloomsdale Excavating in 1994. Prior to that his work history generally involved working in the construction industry performing heavy labor jobs. Mr. Burger worked out of a union hall, but after 1994 most of his work was for Bloomsdale Excavating.

The employee had multiple accidents and/or injuries prior to the accidents and/or occupational injuries regarding his right shoulder on March 24, 2004 and his bilateral wrists on March 26, 2004:

1. 1978 motor vehicle accident-As a result of this accident Mr. Burger indicated that he hurt both knees, his left shoulder and caved the back of his head in. He testified that he was in a coma for weeks, had severe headaches for a long time and continues to have short term memory loss. He related this memory loss problem in general and to his job. As an example, he had to write down measurements as he could not remember them. In addition he indicated that he had a hard time squatting or sitting. Mr. Burger testified that he was out of work for 7 months due to this accident. (While Dr. Volarich and Dr. Stillings and Mr. England testified that they had access to some of the medical records regarding the employee's pre 2004 injuries and accidents, no specific medical records were presented at trial outlining the specific medical care that the employee received from this accident, therefore the only evidence concerning this matter came from the employee's memory and relevant medical opinions.)
2. 1986 injury to the left knee-The employee testified that he had surgery to his left knee.
3. 1988 injury to left knee and fractured right ankle-The employee testified that he fell off a roof. He indicated that he had surgery on his right ankle but did not have another surgery on his knee. The employee settled this case with the employer-insurer on March 23, 1989 for 5 % permanent partial disability of the right ankle and 5 % permanent partial disability of the left knee. See Employee Exhibit A.
4. 1991 back injury-The employee testified that he was taking down a "chain fall" and tore loose all of the muscles in his chest and back. He indicated that Dr. Eller treated him and he missed work for 18 months. He also indicated that Dr. Eller told him to avoid surgery

until he could not stand the pain any more. In addition Dr. Eller referred the employee to psychiatric/psychological care for depression. The employee never had back surgery but testified that he has had back problems ever since this accident. He indicated that he had trouble sitting at trial, can only drive about 30 minutes, has pain in both legs and avoided lifting due to these problems. In addition he indicated that he can walk for about $1 / 2$ hour and that if he tried to stoop his back hurts and his knees locks up so he avoids these activities. The employee settled this case with the employer-insurer on October 1, 1993 for 271 / 2 % permanent partial disability of the body as a whole. See Employee Exhibit B.

1. September 1999 right ankle injury-The employee testified that he did not have to have surgery for this injury.
2. June 2000 surgery to right knee-the employee testified that this was a non work related matter that caused him to miss work for some time.

On March 24, 2004, the employee injured his right shoulder while he was using a power drill. Dr. Knight performed surgery on this shoulder on May 13, 2004. Dr. Emanuel performed a second right shoulder surgery on January 5, 2005. The employee settled this case with Bloomsdale Excavating on August 3, 2007 for 40 % permanent partial disability of the right shoulder and 30 % permanent partial disability of the body as a whole for psychological disability. See Employee Exhibit C.

The employee was diagnosed with bilateral carpal tunnel problems in 2002. Dr. David Brown performed right hand carpal tunnel surgery on December 15, 2006 and left hand carpal tunnel surgery on January 5, 2007. He settled this case with Bloomsdale Excavating on August 3, 2007 for 20 % permanent partial disability of each wrist, 10 % load and 4 weeks disfigurement. See Employee Exhibit D.

Mr. Burger began working for Bloomsdale Excavating in 1994 and worked mostly for them until June 20, 2005 when he was finally released. He testified that his initial employment was mostly concrete work and then later as doing millwright work. He indicated that he switched more to the millwork work in 2000-2004 as he had problems with his knees and his back etc. from the past. In general he said he was wearing out. He described the millwright work as being less physical then the concrete work. As a millwright the employee testified that he spent most of his time welding. In addition, the employee indicated that his prior knee injuries affected his ability to work- he used climbing as an example and testified that this was another reason why he