Jerry Fischer v. Montgomery County

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-052344

Employee: Jerry Fischer

Employer: Montgomery County

Insurer: Missouri Association of Counties

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

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 June 24, 2009. The award and decision of Administrative Law Judge June Striegel Doughty, issued June 24, 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 $15^{\text {th }}$ day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Jerry Fischer

Departments: N/A

Employer: Montgomery County

Additional Party: Second Injury Fund (dismissed)

Insurer: Missouri Association of Counties

Hearing Date: March 23, 2009

Injury No. 04-052344

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JSD/scb

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: June 7, 2004.
5. State location where accident occurred or occupational disease contracted: Montgomery County, MO.
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: Claimant was repairing tracks on crawler (small bulldozer) when the tool he was using broke and he fell off crawler striking his head and back on the bucket attached to the front of the crawler.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Parts of body injured by accident or occupational disease: Head, back, body as a whole, and psyche.
14. Nature and extent of any permanent disability: Permanent total disability.
15. Compensation paid to-date for temporary disability: $\ 17,196.19.
16. Value necessary medical aid paid to date by employer/insurer? $\ 16,592.54.
17. Value necessary medical aid not furnished by employer/insurer? Unknown.
18. Employee's average weekly wages: $\ 505.77.

1. Weekly compensation rate: (PTD)/(PPD) $\$ 337.18 / \ 337.18.
2. Method wages computation: By stipulation of the parties.

1. Amount of compensation payable by Employer: $\ 337.18 per week beginning November 21, 2005, through Claimant's lifetime.
2. Second Injury Liability: Voluntarily dismissed.
3. Future requirements awarded: As described in award.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of attorney Mark E. Moreland for necessary legal services rendered.

The compensation awarded to the Claimant is also subject to a lien filed by the MO HealthNet Division of the Missouri Department of Social Services in the amount of $\ 416.95.

Employee: Jerry Fischer

Injury No. 04-052344

Dependents: N/A

Employer: Montgomery County

Additional Party: Second Injury Fund (dismissed)

Insurer: Missouri Association of Counties

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A final hearing was conducted in this case on March 23, 2009. Jerry Fischer was represented by Mark E. Moreland. The employer and the insurer were represented by Christine M. Kiefer. Mr. Moreland moved to dismiss the Second Injury Fund at the beginning of the hearing, and it has been voluntarily dismissed from this case.

At the hearing, the parties stipulated to the following facts.

- On June 7, 2004, Fischer was employed by Montgomery County ("Employer").

- On that day, he sustained an injury by accident arising out of and in the course of his employment (the "accident").

- The accident occurred in Montgomery County, Missouri.

- Fischer alleges that the accident resulted in injury to his head, neck, back, and body as whole, and that it also caused psychiatric injury.

- The parties were operating under and subject to the provisions of the Missouri Workers' Compensation Law.

- The Missouri Division of Workers' Compensation (the "Division") has jurisdiction and venue is proper.

- Employer's liability was insured by the Missouri Association of Counties.

- Employer received proper notice of the accident and the claim for compensation was timely filed.

- Fischer's average weekly wage at the time of the accident was $\ 505.77, and the applicable weekly rate of compensation for purposes of temporary total disability ("TTD"), permanent total disability ("PTD"), and permanent partial disability ("PPD") is $\ 337.18.

- Fischer received TTD benefits from Employer in the amount of \$17,196.19, representing 51 weeks of benefits covering the period of June 8, 2004, through October 25, 2004, and also the period of April 18, 2005, through November 20, 2005.

- Medical aid has been provided by Employer in the amount of \$16,592.54.

- The Missouri Department of Social Services, through MO Healthnet Division, has filed a lien in the amount of $\ 416.95 for services provided to Fischer in connection with the accident.

I. Did the accident medically cause the injuries alleged in this claim?

II. Did Fischer sustain permanent disability as a result of the accident, and, if so, what is the nature and extent of his disability?

III. Is Employer liable for future medical care needed to cure or relieve the effects of the accident, including but not limited to, medication, other treatment therapies, and psychiatric care?

Fischer and J. D. Miller testified on Fischer's behalf. In addition, the following exhibits were admitted without objection on Fischer's behalf:

- Exhibit A Deposition of Gregg Bassett, M.D.; ${ }^{2}

- Exhibit B Deposition of Gary Weimholt, MS, CDMS; { }^{3}$

- Exhibit C Medical Records - Wellsville Medical Clinic;

- Exhibit D Medical Records - Montgomery City Medical Clinic;

- Exhibit E Medical Records - Neurology, Inc.;

- Exhibit F Medical Records - Audrain Medical Center;

- Exhibit G Medical Report - Fredric M. Simowitz, M.D., F.A.A.N.; and

- Exhibit H Psychological Testing Reports - MCMI-III and MMPI-2.

Employer cross-examined Fischer, called no additional witnesses, and offered the following exhibits, which were admitted without objection:

- Exhibit $2^{4} Medical Records - Wellsville Medical Clinic; { }^{5}$

- Exhibit 3 Medical Records - Open MRI of St. Louis and St. Charles County;

- Exhibit 4 Medical Records - University Hospital;

- Exhibit 5 Medical Records - Columbia Orthopaedic Group;

- Exhibit 6 Medical Report - David M. Peeples, M.D.;

- Exhibit 7 Medical Report - Patrick A. Hogan, M.D.; and

- Exhibit 8 Deposition of Stacey Smith, M.D. ${ }^{6}$

[^0]

[^0]: ${ }^{1}$ Exhibits containing markings, highlighting, redactions, etc., were submitted in that manner. In addition, all objections contained in the depositions are deemed waived, and are hereby overruled, as they were not renewed when the evidence was offered.

${ }^{2} Including deposition exhibits 1 and 2, attached thereto.

{ }^{3} Including deposition exhibits 1 and 2, attached thereto.

{ }^{4} The record contains no Exhibit 1.

{ }^{5} These records are also contained in Exhibit C.

{ }^{6}$ Including deposition exhibits 1 and 2, attached thereto.

1. Fischer is 44 years old. He was born in Missouri. Fischer's parents divorced when he was young. His mother remarried and Fischer was raised by his mother and stepfather. Fischer's mother had polio as a child, permanently affecting her left leg. Fischer's mother has worn a brace on her left leg since she was five years old and she also uses a cane to walk. She has no other limitations and worked as a homemaker throughout Fischer's upbringing. Fischer describes his mother as a fiery, small woman.
2. Fischer's biological father has a history of alcohol problems. Fischer saw his biological father only occasionally as a child. After divorcing Fischer's mother, his biological father remarried and had two children, both of whom had a degenerative neurological condition and both of whom died as teenagers. Fischer saw his biological father more frequently during his teenage years before he went into the military. When he was with his father and halfsiblings, Fischer would help carry his siblings because they could not walk. Fischer never lived with his biological father and half-siblings.
3. Fischer completed the $12^{\text {th }}$ grade of high school but did not graduate. He does not have a GED. He earned poor grades in school because he did not care about his education at that time. Fischer has no formal technical or college training. Fischer has very limited knowledge of computers. He used to have a computer, but used it only to receive email.
4. Fischer has been married four times. His fourth marriage lasted 12 years and produced two children. Fischer is very committed to his children. Fischer's ex-wife left the home in February 2007, and the children stayed with Fischer and visited their mother every other weekend. Then Fischer and his ex-wife shared custody for a period of time and the children spent equal time with each parent. Fischer and his ex-wife divorced in May 2008, and she was awarded full custody of their children at that time. Now Fischer only sees his children every other weekend and several weeks in the summer.
5. Fischer is currently single and resides alone. He has no income and relies on his mother and stepfather to pay for the utilities in his mobile home and his car insurance. His mobile home is currently in foreclosure.

1. Fischer enlisted in the United States Army following high school where he served as a telephone wire line installer. This involved climbing telephone poles and installing telephone and radio lines on poles and in buildings. Fischer served in the military for five or six years until he received an "other than honorable" discharge for drunk and disorderly conduct.
2. After his military service, Fischer held several different jobs before he went to work for Employer. Fischer's employment history includes:

- running the cash register, reading gas pumps, and stocking shelves at a gas station;

- welding, which included gathering, lifting, cutting, and welding pipe for Porta-King;

- cashier management with Casey's General Store, which included running the cash register, ordering supplies, stocking shelves, cleaning, scheduling workers, and filling in where needed;

- fuel running at Ray's Car \& Truck Mart, which involved fueling, servicing, and parking trucks for truck driving customers; and

- working in various management capacities (relief, kitchen, and maintenance) for Flying J's Travel Plaza.

These jobs required Fischer to perform varying types of physical labor