Gary Pace v. City of St. Joseph

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-134660

Employee: Gary R. Pace

Employer: City of St. Joseph

Insurer: City of St. Joseph

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 October 25, 2010. The award and decision of Administrative Law Judge Robert B. Miner, issued October 25, 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 $\qquad 4^{\text {th }} \qquad$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Gary R. Pace Injury No.: 02-134660

Employer: City of St. Joseph

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

Before the

Division of Workers’

Compensation Department of Labor and Industrial Relations of Missouri

**Insurer:** City of St. Joseph

Hearing Date: July 28, 2010

Checked by: RBM

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: December 9, 2002.
5. State location where accident occurred or occupational disease was contracted: St. Joseph, Buchanan 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: On December 9, 2002, Claimant injured his right knee while working in the course and scope of his employment when his right foot lodged in a hole in the floor of a building, and he twisted and fell. Claimant’s right knee gave out on him on

November 2, 2004 and December 17, 2004 because of the December 9, 2002 accident, and he sustained additional injuries on November 2, 2004 and December 10, 2004 in the course of his employment for Employer.

1. Did accident or occupational disease cause death? No.
2. Part(s) of body injured by accident or occupational disease: Right knee, right lower extremity, back, left shoulder, resulting in complex regional pain syndrome and depression.
3. Nature and extent of any permanent disability: Permanent total disability as a result of Employee's December 9, 2002 accident considered alone.
4. Compensation paid to-date for temporary disability: $\ 8,078.73.
5. Value necessary medical aid paid to date by employer/insurer? $\ 34,592.05.
6. Value necessary medical aid not furnished by employer/insurer? $\ 16,465.84 plus the additional sum of $\ 836.42 pursuant to the terms and provisions of the Missouri Department of Social Services, MO HealthNet Division (MHD) lien (Exhibit Y).
7. Employee's average weekly wages: $\ 712.80.
8. Weekly compensation rate: $\ 475.22 per week for temporary total disability and permanent total disability, and $\ 340.12 per week for permanent partial disability.
9. Method wages computation: By agreement of the parties.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 16,465.84. Employer is also ordered to pay the additional sum of $\ 836.42 pursuant to the terms and provisions of the Missouri Department of Social Services, MO HealthNet Division (MHD) lien (Exhibit Y) in Injury Number 02-134660.

No weeks of temporary total disability (or temporary partial disability).

No weeks of disfigurement from Employer.

Employer is directed to authorize and furnish additional medical treatment to cure and relieve Claimant from the effects of his December 9, 2002 work injury, in accordance with Section 287.140, RSMo in Injury Number 02-134660.

Permanent total disability benefits from Employer at the rate of $\ 475.22 per week beginning February 6, 2005 for Claimant's lifetime in Injury Number 02-134660.

1. Second Injury Fund liability: None. Employee's claim against the Second Injury Fund is denied.
2. Future requirements awarded: As 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: Benjamin S. Creedy.

Employee: Gary R. Pace

Injury No.'s: 02-134660, 04-113970, 04-130561 \& 04-130584

Employer: City of St. Joseph

Before the

Additional Party: The Treasurer of the State of

Missouri as Custodian of the Second Injury Fund

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Insurer: City of St. Joseph

Hearing Date: July 28, 2010

Checked by: RBM

A final hearing was held in these cases on Employee's claims against Employer and the Treasurer of the State of the Missouri as Custodian of the Second Injury Fund in Injury Numbers 02-134660, 04-113970, 04-130561, and 04-130584 on July 28, 2010 in St. Joseph, Missouri. Employee, Gary R. Pace appeared in person and by his attorney, Benjamin S. Creedy. Self-insured Employer, City of St. Joseph, appeared by its attorney, Bart E. Eisfelder. The Second Injury Fund appeared by Maureen T. Shine. Benjamin S. Creedy requested an attorney's fee of 25 % from all amounts awarded. It was agreed that post-trial briefs would be due on September 10, 2010.

At the time of the hearing, the parties stipulated to the following:

1. On or about December 9, 2002, November 2, 2004, December 10, 2004, and December 17, 2004, Gary R. Pace ("Claimant") was an employee of City of St. Joseph ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about December 9, 2002, November 2, 2004, December 10, 2004, and December 17, 2004, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was duly self-insured under the provisions of said Law.
3. Employer had notice of Claimant's alleged injuries.
4. Claimant's Claims for Compensation were filed within the time allowed by law.

Issued by DIVISION OF WORKERS' COMPENSATION

Re: Injury No.: 02-134660

Employee: Gary R. Pace

1. The average weekly wage in Injury No. 02-134660 was $\ 712.80, and the rate of compensation for temporary total disability and permanent total disability in Injury No. 02-134660 is $\ 475.22 per week, and the rate of compensation for permanent partial disability in Injury No. 02-134660 is $\ 340.12 per week.
2. The average weekly wage in Injury Numbers 04-113970, 04-130561 and 04130584 was $\ 771.01, and the rate of compensation for temporary total disability and permanent total disability in Injury Numbers 04-113970, 04-130561 and 04-130584 is $\ 514.03 per week, and the rate of compensation for permanent partial disability in Injury Numbers 04-113970, 04-130561 and 04-130584 is $\ 354.05 per week.
3. Employer has paid $\ 8,078.73 in temporary total disability at the rate of $\ 475.22 per week for $166 / 7$ weeks for the period December 10, 2002 through April 7, 2003 in Injury No. 02-134660.
4. Employer has paid $\ 34,592.05 in medical aid in Injury No. 02-134660.
5. Employer has paid no temporary disability compensation in Injury Numbers 04113970, 04-130561 and 04-130584.
6. Employer has paid $\ 105.42 in medical aid in Injury No. 04-113970.
7. Employer has paid $\ 411.13 in medical aid in Injury No. 04-130561.
8. Employer has paid no medical aid in Injury No. 04-130584.

The parties agreed that there were disputes on the following issues:

1. Whether on or about December 9, 2002, November 2, 2004, December 10, 2004, and December 17, 2004, Claimant sustained injuries by accident arising out of and in the course of his employment for Employer.
2. Whether Claimant's current condition is medically causally related to the alleged work injuries of December 9, 2002, November 2, 2004, December 10, 2004, and December 17, 2004.
3. Employer's liability for past medical expenses.
4. Liability of Employer for permanent disability benefits, including permanent partial disability and permanent total disability.

1. Liability of the Second Injury Fund for permanent disability benefits, including permanent partial disability and permanent total disability.
2. Employer's liability for future medical aid.
3. Liability for Missouri Department of Social Services, MO HealthNet Division (MHD) lien of $\ 836.42

Claimant testified in person. Claimant also called Diane Pace and Eric Pace to testify. In addition, Claimant offered the following exhibits which were admitted in evidence without objection (the depositions were offered with deposition exhibits, and the depositions and deposition exhibits were admitted in evidence subject to objections contained in the depositions):

A—Deposition of Dr. Garth Russell

B-Deposition of Dr. Bernard Abrams

C-Deposition of Mary Titterington

D—Cal. Summary of Time Cards

E-Medical Records of St. Joseph Imaging

F-Medical Records of Dr. M. DePriest

G-Medical Records of Orthopedic and Sports Medicine

H—Heartland Medical Center bills

I-Medical Records of The Surgery Center

J-Medical Records of Wal-mart Pharmacy

K-Medical Records of Stevenson Family Pharmacy

L-Medical Records of Specialists of Internal Medicine

M-Medical Records of Orthopedic and Sports Medicine

N-Medical Records of Heartland Occupational Medicine

O-Medical Records of Heartland Hospital

P-Medical Records of HealthSouth

Q-Medical Records of Dr. Michael DePriest

R-Medical Records of CVS Pharmacy

S-Medical Records of Benders Prescription

T-Medical Records of Walgreens Pharmacy

U-Medical Records of Center for Pain Management

V-Medical Records of South Side Health Center

W—Photo 2117-19 Garfield

X—Photo $81 / 2 \times 11$

Y- Missouri Department of Social Services, MO HealthNet Division (MHD) lien

Z-Ben Creedy Affidavit

AA-Photo of legs

BB—Photo of legs

Employer offered the following exhibits which were admitted in evidence without objection (the depositions were offered with deposition exhibits, and the depositions and deposition exhibits were admitted in evidence subject to objections contained in the depositions):

1-Deposition of Dr. Koprivica

2-Deposition of Walter Hughes, Jr.

3-Deposition of Stephen Allen

4-Employee Records

5-Time Cards

6-Job Description

7-Misc. Accident Reports

8-Payout Ledger

9-Records of Rick Ford

10-Records of NWMO Phys

11-Records of Dr. Olson

The Second Injury Fund offered the following exhibits which were admitted in evidence without objection:

1-Records of Dr. Smith

2-Dr. Cathcart note

The parties agreed at the hearing that the record be left open temporarily to permit Employer's attorney an opportunity to offer additional medical records. On August 9,