Craig Bonar v. ATK Alliant Techsystems

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-069588

Employee: Craig Bonar

Employer: ATK Alliant Techsystems

Insurer: Insurance Company of the State of Pennsylvania

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 July 22, 2010. The award and decision of Administrative Law Judge Carl Mueller, issued July 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 $24^{\text {th }}$ day of January 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Craig Bonar

Injury No: 07-069588

Dependents: N/A

Employer: ATK Alliant Techsystems

Insurer: Insurance Company of the State of Pennsylvania

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Date of Accident: June 30, 2007

Hearing Date: June 28, 2010

Checked by: RCM/rm

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 30, 2007
5. State location where accident occurred or occupational disease was contracted: Independence, Jackson 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 occurred or occupational disease contracted: Employee fell injuring his right foot and ankle and due to overuse, developed problems with his left lower extremity.
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: Right and Left Lower Extremities
14. Nature and extent of any permanent disability: Twenty-three and one-half percent ( 231 / 2 % ) to the right lower extremity at the 155 week level and twenty percent ( 20 % ) to the left lower extremity at the 155 week level.
15. Compensation paid to-date for temporary disability: $\ 7,600.35 at $\ 506.69 per week for 15 weeks.

1. Value necessary medical aid paid to date by employer/insurer? $\ 22,607.90. Employer agrees to pay all valid and authorized medical bills.
2. Value necessary medical aid not furnished by employer/insurer? $\ 57,416.34 ( $\ 49,473.59 paid by Employee’s group insurance; $\ 448.06 incurred by Employee in out-of-pocket medical expenses and $\ 7,494.69 still due and owing to healthcare providers.)
3. Employee's average weekly wages: $\ 1,025.41 per week.
4. Weekly compensation rate: $\ 683.61 for temporary disability, and $\ 376.55 for permanent partial disability
5. Method wages computation: Agreement of the parties.
6. Amount of compensation payable:

Left ankle treatment (paid by group health) $\$ 49,473.59^{1}

Left ankle treatment (unpaid or out-of-pocket) \ 7,942.75

Right ankle treatment $\ 22,607.90

Total Medical Already Incurred $\ 80,024.24

Less credit for expenses already paid. $\ 22,607.90)

Total Medical Owing. $\ 57,416.34

63.1428 weeks (7-1-07 to 10-13-07) and (8-4-08 to 7-7-09) $\ 43,165.05

Less credit for benefits already paid $\ 7,600.35

Total TTD Owing. $\$ 35,564.70^{2}$

231 / 2 % disability to the right lower extremity at the 155 week

level ( 36.425 weeks) x $\ 376.55 weekly $\ 13,715.83

20 % disability to the left lower extremity at the 155 week

level ( 31 weeks) x $\ 376.55 weekly $\ 11,673.05

Total PPD Owing $\ 25,388.88

TOTAL AWARD $\ 118,369.92

1. Second Injury Fund liability: Not addressed at this hearing.
2. Future requirements awarded: AFO Brace for the left ankle and treatment to both ankles if the hardware implanted, as a result of this injury, requires further medical treatment pursuant to $\S 287.140 .8$ RSMo (2006)

Said payments to begin as of date of this award 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 twenty-five percent (25\%) lien in favor of Frank D. Eppright, Attorney, for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1. (2006). The lien totals $\ 17,224.08, which is equal to 25 % of the total of the TTD, PPD, and the unpaid expenses for Mr. Bonar's left ankle treatment.

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[^0]: ${ }^{1}$ Employer's attorney advised at hearing that it is self-insured for group insurance and that if Mr. Bonar's medical treatment were found to be compensable on the left lower extremity, that this amount paid simply would be retitled "workers' compensation" and shifted over to the workers' compensation department. Claimant's counsel noted in a post hearing brief that he specifically asks for no fee on this amount.

${ }^{2} \ 2,635.80 for 15 weeks of underpaid TTD ( $\ 683.61 - $\$ 506.69=\ 176.92 ) from July 1 through October 13, 2007, plus $\ 32,910.90 in TTD for the $481 / 7 weeks from August 4, 2008 through July 7, 2009 at \ 683.61 per week.

On June 28, 2010 the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Mr. Craig Bonar, appeared in person and with counsel, Mark E. Kolich, who handled this hearing in lieu of Mr. Bonar’s lead attorney, Frank D. Eppright, who was unable to attend the hearing. The Employer, ATK Alliant Techsystems, appeared through counsel, Michelle Daum Haskins. While the employee also filed a Claim for Compensation against the Second Injury Fund, it did not appear as Assistant Attorney General Andrew Dickson advised by letter dated May 3, 2010 that the Fund agreed to a separate hearing on the Claim against it after this hearing was complete.

The issues the parties requested the Division to determine were whether Mr. Bonar’s June 30, 2007 accident caused any disability to his left ankle, and, if so, the extent of such disability; whether he suffered any disability to his right ankle, and, if so, the extent of such disability; whether the medical expenses incurred for his left ankle treatment should be reimbursed by the employer; whether he qualified for additional temporary total disability benefits; and, whether he requires additional treatment. For the reasons noted below, I find that Mr. Bonar’s accident resulted in 20 % disability to his left ankle, and 231 / 2 % to his right ankle; that the medical bills incurred on the left ankle must be paid by the employer; that Mr. Bonar qualified for temporary total disability benefits while he received treatment on his left ankle; and, that future medical be awarded to Mr. Bonar.

The parties stipulated that:

1. On or about June 30, 2007 (the injury date), ATK Alliant Techsystems (hereinafter "ATK"), was an Employer operating under and subject to Missouri’s Workers’ Compensation law insured by the Insurance Company of the State of Pennsylvania;

1. Mr. Craig Bonar was its employee, working subject to the law in Independence, Jackson County, Missouri;
2. Mr. Bonar sustained an accident arising out of and in the course of employment as to his right ankle; ATK disputes the compensability of his left ankle injury;
3. Mr. Bonar both notified ATK of his accident and filed his claim within the time allowed by law;
4. Mr. Bonar earned a $\ 1,025.41 average weekly wage resulting in a weekly compensation rate of $\ 683.61 for temporary total and $\ 376.55 for permanent partial disability compensation;
5. ATK paid temporary total disability ("TTD") compensation at a weekly rate of $\ 506.69 for the 15 week period from July 1, 2007 through October 13, 2007 for compensation totaling $\ 7,600.35. ATK stipulates that it underpaid TTD in the amount of $\ 2,653.80 and agrees to pay the employee this TTD;
6. ATK provided Mr. Bonar with medical care costing $\ 22,607.90; and,
7. Medical expenses for treatment of Mr. Bonar's left ankle totaled $\ 49,473.59; ATK stipulates that it would not seek reimbursement for these funds whether or not the employee's left ankle disability is found to be compensable.

The parties requested the Division to determine the following:

1. Whether Mr. Bonar is entitled to temporary total disability benefits for the period from August 4, 2008 through July 7, 2009 representing $481 / 7 weeks for compensation totaling \ 32,910.94 ?
2. Whether ATK must reimburse the employee for medical expenses totaling $\ 7,942.75 ?
3. Whether ATK must provide the employee with additional medical care?
4. Whether Mr. Bonar suffered any disability and, if so, the nature and extent of the Employee's disability?

1. Whether the accident caused the disability the employee claims for his left ankle?

Mr. Bonar testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

A - 10/20/09 Report of Dr. Douglas M. Rope (11 pages)

B - 01/18/10 Addendum Report of Dr. Douglas M. Rope (1 page)

C - Curriculum Vitae of Dr. Douglas M. Rope (2 pages)

D - Medical Records, Kansas University Physicians, Inc. (32 pages)

E - Medical Records of University of Kansas Hospital (50 pages)

F - Medical Records of Hanger Orthotics \& Prosthetics (24 pages)

G - Medical Records of Select Physical Therapy (115 pages)

H - Medical Records of University Hospital \& Clinics (52 pages)

I - Medical Records of St. Joseph Medical Center (47 pages)

J - Medical Records of Fitzgibbon Hospital (13 pages)

K - Medical Records of Centerpoint Medical Center (26 pages)

L - Medical Records of Columbia Orthopaedic Group (11 pages)

M - Medical Records of Research Medical Center (57 pages)

N - Medical Records of Rusk Rehabilitation (360 pages)

O - Medical Billing Summary (2 pages)

P - Medical Billing of Select Physical Therapy (4 pages)

Q - Medical Billing of Alliance Radiology (2 pages)

R - Medical Billing of Kansas University Physicians (10 pages)

S - Medical Billing of LabCorp (8 pages)

T - Medical Billing of Hanger Prosthetics \& Orthotics (6 pages)

U - Medical Billing of Physicians Reference Laboratory (3 pages)

V - Medical Billing of CareCentrix (13 pages)

W - Medical Billing of Walgreens (7 pages)

X - Medical Billing of Centerpoint Medical Center (5 pages)

Y - Medical Billing of University of Kansas Hospital (26 pages)

Z - Reports of Dr. Greg Horton (2 pages)

AA - Current Complaints (1 page)

Although the employer did not call any witnesses, it did present as Exhibit 1 the four page March 31, 2010 medical report of Edward J. Prostic, MD which was admitted into evidence without objection.

Based upon t