Gary Pace v. City of St. Joseph

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-130561

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, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert B. Miner, issued October 25, 2010, is attached and incorporated by this reference.

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.: 04-130561

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? No.
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 10, 2004.
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: While working in the course and scope of his employment for Employer on December 10, 2004, Claimant had a hard stabbing pain in his right leg, his leg went out, and he fell down stairs.

1. Did accident or occupational disease cause death? No.
2. Part(s) of body injured by accident or occupational disease: Right lower extremity, left upper extremity, left hip, and low back.
3. Nature and extent of any permanent disability: No permanent disability is awarded in this case (Injury Number 04-130561.) Claimant is awarded permanent total disability benefits against Employer in Injury Number 02-134660 as described in the attached Findings of Fact and Conclusions of Law.
4. Compensation paid to-date for temporary disability: None.
5. Value necessary medical aid paid to date by employer/insurer? $\ 411.13.
6. Value necessary medical aid not furnished by employer/insurer? No past medical expenses are awarded in this case (Injury Number 04-130561.) Claimant is awarded past medical expenses against Employer in Injury Number 02-134660 as described in the attached Findings of Fact and Conclusions of Law.
7. Employee's average weekly wages: $\ 771.01 per week.
8. Weekly compensation rate: $\ 514.03 per week for temporary total disability and permanent total disability, and $\ 354.05 per week for permanent partial disability.
9. Method wages computation:

1. Amount of compensation payable: No benefits are awarded in this case (Injury Number 04-130561.) Claimant is awarded compensation against Employer in Injury Number 02-134660 as described in the attached Findings of Fact and Conclusions of Law.
2. Second Injury Fund liability: None. Employee's claim against the Second Injury Fund is denied.

1. Future requirements awarded: No benefits are awarded in this case (Injury Number 04-130561.) Claimant is awarded compensation against Employer in Injury Number 02134660 as described in the attached Findings of Fact and Conclusions of Law.

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.: 04-130561

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, 2010, the Administrative Law Judge received a letter from Employer's attorney dated August 5, 2010 advising that he was not going to offer any additional records at that time. The letter from Bart Eisfelder dated August 5, 2010 has been marked as Court's Exhibit 1. The record was closed on August 9, 2010.

Any objections not expressly ruled on during the hearing or otherwise in this award are now overruled. To the extent there are marks, tabs or highlights contained in the exhibits, those markings were made prior to being made part of the record, and were not placed thereon by the Administrative Law Judge.

The post-hearing briefs of the attorneys have been considered.

Summary of the Evidence

Claimant, age 59, began working for Employer in December 1998. He started as a work crew supervisor, picking up and returning inmates to the correctional center. He performed that job for a year. He then became a Dangerous Building Inspector for Employer. His duties