James Brawley v. City of St. Louis

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Therefore, we modify the award only to order the SIF to pay permanent total disability benefits to employee at the differential rate of $198.25 per week beginning July 17, 2006, for 73.5 weeks, and to thereafter pay him $563.33 per week for as long as provided by law.

The award and decision of Administrative Law Judge Kathleen M. Hart, as modified, is attached and incorporated by 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 19th day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: James Brawley

Departments: None

Employer: City of St. Louis (previously settled)

Additional Party: Second Injury Fund (only)

Insurer: Self c/o CCMSI (previously settled)

Hearing Date: April 13, 2009 and April 20, 2009

Injury No.: 05-086232

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: August 3, 2005
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 occurred or occupational disease contracted: Claimant injured his left wrist while in the course and scope of his employment.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: Left wrist
14. Nature and extent of any permanent disability: 42 % left wrist
15. Compensation paid to-date for temporary disability: $\ 7,299.56
16. Value necessary medical aid paid to date by employer/insurer? $\ 54,901.22

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\$ 563.33 / \ 365.08
4. Method wages computation: Stipulation

1. Amount of compensation payable:

73.5 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential of $\ 198.25 payable by SIF for 73.5 weeks beginning

May 17, 2006, and, thereafter, $\ 563.33 per week as provided by law

TOTAL:

TO BE DETERMINED

1. Future requirements awarded:

Said payments to begin immediately 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:

Phillip Tatlow

Employee: James Brawley

Departments: None

Employer: City of St. Louis (previously settled)

Additional Party: Second Injury Fund (only)

Insurer: Self c/o CCMSI (previously settled)

Injury No.: 05-086232

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter April 13 and April 20, 2009. James Brawley (Claimant) was represented by attorney Phillip Tatlow. The Second Injury Fund (SIF) was represented by attorney Kay Osborne.

All objections not expressly ruled upon in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant was injured by accident while in the course and scope of his employment for the City of St. Louis.
2. Employer and Claimant were operating under the provisions of the Workers' Compensation law. Employer's liability was fully self-insured.
3. Employer had notice of the injury and a claim for compensation was timely filed.
4. Claimant's rates for TTD/PPD are $\$ 563.33 / \ 365.08. Claimant was paid $\ 7,299.56 representing a disputed number of weeks of TTD. Claimant received $\ 54,901.22 in medical benefits.
5. On January 22, 2007, Claimant and Employer reached a compromise settlement regarding Employer/Insurer's liability. The settlement was approved by the Division of Workers' Compensation and represents 42 % PPD to Claimant's left wrist.

The parties stipulated the sole issue to be resolved by trial is the nature and extent of SIF liability.

Based upon the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 47 year old male who is not married and lives with his mother. His highest level of education is the $12^{\text {th }}$ grade. He testified he had problems in school and attended three different high schools. He had behavioral difficulties, frequently got in trouble, drank a lot, and had conflicts with his peers. He was expelled from his first high school for absenteeism, alcohol abuse, and behavioral issues. He then went to Bayliss and flunked out during his junior year. He got into South County Technical School and testified he earned his GED. Claimant's vocational expert noted Claimant graduated from South County Technical School in 1979.
2. Claimant served in the Army from 1982-1985 as a combat engineer and truck driver. He has no additional schooling or training. He does not know how to use a computer, type or do any office work.
3. When he returned to St. Louis he had numerous unskilled labor jobs. He worked as a commercial equipment and household mover, a roofer, a concrete worker, a moving truck driver, and he did steam cleaning and restaurant cleaning. These jobs all involved heavy lifting and working with both hands.
4. Claimant worked for the St. Louis City Water Company for 18 years. He performed routine maintenance on sump pumps, boilers and chillers. He used both hands to perform his job. This was heavy work, and he had to twist and lift continuously. He often climbed ladders and carried items up ladders. He lifted pumps, jackhammers, boxes of tools, and pipes. Some of these weighed up to 100 pounds. He last earned $\ 21.00 per hour. He worked 40 hours a week and often worked overtime.
5. On August 3, 2005, Claimant injured his non-dominant left wrist at work. He initially treated with Dr. Kostman and was diagnosed with a comminuted distal radius fracture. Dr. Kostman performed an open reduction and joint fixation implanting plates and screws in Claimant's wrist. Dr. Kostman noted Claimant was taking Prozac, Xanax, Darvocet, and sleeping pills before his work injury. In November 2005, Dr. Kostman noted Claimant had failed to follow up for placement of a cast. He recommended Claimant seek psychiatric care. Claimant refused the cast and wanted to seek medical assistance elsewhere. He then decided to allow Dr. Kostman to cast his arm.
6. Claimant returned to work full time, and still had significant pain in his wrist. He was put on light duty shredding paper. Claimant testified he could not do this job because he had to move large stacks of paper and he was not able to lift.
7. In January 2006, Claimant treated at Advanced Psychiatric Services (APS) with Dr. Bun Tee Co and Mary Hughes. Their initial assessment indicates Claimant presented with anxiety, depression, sleep deprivation, and he was on "forced leave" after breaking his wrist. He was diagnosed with bipolar disorder, depression and anxiety. Ms. Hughes spoke to Claimant's supervisor who said Claimant was setting himself up to be

terminated if he didn't show up for work. Claimant had a severe reaction to the medications these doctors prescribed, and was hospitalized in February 2006.

1. Claimant then began seeing Dr. Brown. Due to Claimant's ongoing difficulty using his wrist and hand, Dr. Brown ordered nerve conduction studies which showed the nerves were functioning well. Claimant had significant loss of flexion which Dr. Brown opined was due to a tendon disruption.
2. Claimant was aware the doctor at APS had spoken with his supervisor, and he was aware he was in danger of being fired unless he showed up at work. He testified at trial he was taking care of his father, and Employer didn't give him time off work when his dad died March 8, 2006. Claimant does not recall if he went back to APS after his dad's death. On March 17, 2006, the doctors at APS note Claimant was distraught and not able to work due to his stress level. He told the doctors he was angry and might have to go off on someone. He was struggling with left wrist pain