Charles Reese v. T.J. O'Neil Painting Incorporated

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-095189

Employee: Charles P. Reese

Employer: T. J. O'Neil Painting, Incorporated (Settled)

Insurer: Missouri Employers Mutual 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 February 22, 2010. The award and decision of Administrative Law Judge Gary L. Robbins, issued February 22, 2010, 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 $29^{\text {th }}$ day of July 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Charles P. Reese

Injury No. 04-095189

Dependents: N/A

Employer: T.J. O’Neil Painting Incorporated

Additional Party: Second Injury Fund

Insurer: Missouri Employers Mutual Insurance Company

Hearing Date: December 9, 2009

Checked by: GLR/rf

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? September 8, 2004.
5. State location where accident occurred or occupational disease contracted: Perry 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: The employee was using a spraying apparatus painting fire escapes with

epoxy. Wind blew the epoxy into his eyes causing dizziness and burning. He fell backwards and struck the back of his head on a steel beam.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Head, eyes, ears and body as a whole.
3. Nature and extent of any permanent disability: The employee settled his case with the employer-insurer by stipulation for compromise settlement on October 13, 2009. The parties settled for 17 % of the body as a whole referring to the head, eyes and hearing.
4. Compensation paid to date for temporary total disability: Not disclosed at trial.
5. Value necessary medical aid paid to date by employer-insurer: Not disclosed at trial.
6. Value necessary medical aid not furnished by employer-insurer: None.
7. Employee's average weekly wage: The parties stipulated that the employee's average weekly wage was approximately $\ 1,000.00 per week.
8. Weekly compensation rate: $\ 679.50 per week for temporary total and permanent total disability. $\ 354.05 per week for permanent partial disability.
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: Chris N. Weiss.

On December 9, 2009, Charles P. Reese, the employee, appeared in person and by his attorney, Chris N. Weiss, for a hearing for a trial for a final award. The employee had settled the primary case with the employer-insurer by stipulated settlement on October 13, 2009. The Second Injury Fund/SIF was represented at the hearing by Assistant Attorney General Clifton K. Verhines, Jr. 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 Missouri Employers Mutual Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of T.J. O'Neil Painting Incorporated and was working under the Workers' Compensation Act.
3. On or about September 8, 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 parties stipulated that the employee's average weekly wage was approximately $\ 1,000.00 per week. The employee's rate for temporary total and permanent total disability was stipulated to by the parties as $\ 675.90 per week. His rate for permanent partial disability is $\ 354.05 per week.
7. The employee's injury was medically casually related to his accident or occupational disease.
8. The parties agreed that the amount of medical aid paid by the employer-insurer was not an issue.
9. The parties agreed that the amount of temporary disability benefits paid by the employerinsurer was not an issue.
10. The employee has no claim for any past medical bills, future medical care or mileage.
11. The employee has no claim for temporary disability benefits.

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

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

Employee's Exhibits

A. Prior Stipulations, pages 1-32.

B. Social Security Administration Notice of Award.

C. Stipulation for Compromise Settlement in Case 04-095189.

D. Deposition of Raymond F. Cohen, D.O.

E. Deposition of Jeffrey Francis Magrowski, PhD.

F. St. Thomas of Aquin - Grade School Record (1964-1965).

G. Medical records of Joan M. Pernoud, M.D.

H. Medical records of Aamir J. Siddiqi, M.D.

I. Medical records of David M. Peeples, M.D.

J. Medical records of John W. McKinney, M.D.

K. Medical records of Gregg J. Berdy,M.D.

L. Medical records of Ste. Genevieve Memorial Hospital.

M. Medical records of BJC HealthCare.

N. Medical records of BarnesCare-West.

O. Medical records of JMH Rehab Center.

P. Medical records of James E. Benecke, Jr., M.D.

Q. Medical records of James D. Gould, M.D.

R. Medical records of Mujtaba A. Qazi, M.D.

Second Injury Fund Exhibits

None.

Charles P. Reese, the employee, and his wife were the only persons who testified live at trial. All other evidence was presented in the form of medical records, written records and reports, or by deposition testimony.

Mr. Reese was born in 1957 and was 52 years old at the time of trial. He married his wife Sherry in 1995 and they have two children. Mr. Reese testified that he only completed the $8^{\text {th }}$ grade and has difficulty with reading, writing and math. He indicated that he was enrolled in special education and left school after the $8^{\text {th }}$ grade as he could not keep up and due to the teasing of other kids. Mr. Reese has had no further education since leaving the $8^{\text {th }}$ grade.

Mr. Reese started construction work at age 16 and has worked in that general area his entire life. He testified that his family worked at Anheuser-Busch and he tried to work there but was not

hired because he could not pass the aptitude test. He also indicated that he was not able to join the armed forces for the same reason.

Mr. Reese has had many job-related injuries beginning in the 1970's. The following list reflects the documentation that was presented as evidence at trial:

1. 78-76675 - the employee settled a claim with the SIF for 20% permanent partial disability/PPD of the right knee. The employee had previously settled a claim with his employer for 10% PPD of the body as a whole/BAW (low back).
2. 80-89172 - the employee settled a claim with his employer for 2 ½ % PPD of the BAW (low back).
3. 82-61763 - the employee settled a claim with his employer for 5% PPD of the BAW (low back).
4. 84-4017 - the employee settled a claim with his employer for 7 ½% PPD of the right shoulder and with the SIF for pre-existing disabilities.
5. 85-47575 - the employee settled a claim with his employer for 25% PPD of the left knee and with the SIF for pre-existing disabilities.
6. 85-95199 - the employee settled a claim with his employer for 12 ½% PPD of the left shoulder.
7. 90-23500 - the employee settled a claim with his employer for 7 ½% PPD of the BAW (low back).
8. 91-108246 - the employee settled a claim with his employer for 10% PPD of the right knee and with the SIF for pre-existing disabilities.
9. 92-080845 - the employee settled a claim with his employer for 6% PPD of the BAW (neck and eyes).
10. 93-148926 - the employee settled a claim with his employer for 10% PPD of the right shoulder.
11. 95-152445 - the employee settled a claim with his employer for 25% PPD of the right knee.

In general, the employee testified that even though he continued working, performing physical labor, his pre-existing injuries continued to give him problems throughout his working history. He testified that he had a lot of jobs that needed a back and not brains. He further testified that as a result of prior injuries he had two right knee surgeries, one left knee surgery as well as multiple strains to his back and shoulders. There are also other settlements over the employee's work history including a finding by Social Security that the employee was permanently and totally disabled/PTD as of March 1, 1993. Mr. Reese testified that he received social security benefits up until the time he got married in 1995. He testified that his physical situation did not change but he returned to work finding something he could do as his wife and kids could not live on the money they had.

In 1995, the employee opened up his own business called CR Painting and Power Washing. He indicated that this was an easier job then those he'd had in the past. He indicated that he hired his stepson to do the heavier work that he could not do. In addition, he testified that his wife had to do all the paperwork as he could not read, write or do math well enough to properly prepare such things as bids and contracts. He testified that his reading and writing problems kept him

from getting some jobs as he tried to write the contracts and due to incorrect information did not get the jobs.

After Mr. Reese started his own business he also began receiving painting jobs from the union. He indicated that many of these jobs were short term jobs of a couple of months that did not involve heavy lifting.

Mr. Reese received a job through the union to work for T.J. O'Neil Painting. He was working for this employer when he had the accident that is the subject of this case. Mr. Reese's duties involved using a spraying apparatus and painting fire escapes before they left the factory. On September 8, 2004 he was working undern