Robert Jezich v. Lighthouse for the Blind

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-120199

Employee: Robert Jezich

Employer: Lighthouse for the Blind (Settled)

Insurer: Sheltered Workshop Insurance

c/o Corporate Claims Management, Inc. (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 November 10, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued November 10, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: November 19, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant worked running machines for labeling and filling cans for Employer, when he fell over a pallet of cans, injuring his low back.
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: Body as a Whole-Lumbar Spine
14. Nature and extent of any permanent disability: 5 % of the Body as a Whole-Lumbar Spine
15. Compensation paid to-date for temporary disability: $\ 14,502.21
16. Value necessary medical aid paid to date by employer/insurer? $\ 36,140.23

Employee: Robert Jezich Injury No.: 03-120199

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 450.84
3. Weekly compensation rate: $\ 300.56 for TTD/ $\ 300.56 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Employer previously settled its risk of liability in this case

1. Second Injury Fund liability:

None $\ 0.00

TOTAL:

$\underline{\mathbf{\$ 0 . 0 0}}$

1. Future requirements awarded: None

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: Nile D. Griffiths.

On August 3, 2010, the employee, Robert Jezich, appeared in person and by his attorney, Mr. Nile D. Griffiths, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Lighthouse for the Blind, and its insurer, Sheltered Workshop Insurance C/O Corporate Claims Management, Inc., were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by Assistant Attorney General Levander Smith. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about November 19, 2003, Robert Jezich (Claimant) has alleged an accidental injury claim.

2) Claimant was an employee of Lighthouse for the Blind (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 450.84, resulting in applicable rates of compensation of $\ 300.56 for total disability benefits and $\ 300.56 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 14,502.21, representing a period of $482 / 7 weeks.

8) Employer paid medical benefits totaling \ 36,140.23.

1) Did Claimant sustain an accidental injury?

2) Did the accidental injury arise out of and in the course of employment?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to his alleged accident at work on or about November 19, 2003?

4) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this alleged injury?

5) What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Stipulation for Compromise Settlement for Injury Number 03-120199 (Date of Injury of November 19, 2003) between Claimant and Employer

B. Assorted medical treatment records for the November 19, 2003 injury

C. Deposition of Dr. Mark Lichtenfeld, with attachments, dated June 26, 2009

D. Deposition of Dr. Jay Liss, with attachments, dated July 17, 2009

E. Deposition of Mr. James England, Jr., with attachments, dated July 29, 2009

F. Certified medical treatment records of Dr. Somkietr Rojanasathit

G. Certified medical treatment records of Dr. Frank Calandrino

H. Medical treatment records of Dr. Garry Vickar

I. Medical report dated December 2, 2009 and curriculum vitae of Dr. Russell Cantrell

Notes: 1) Unless otherwise specifically noted below, any objections contained in these Exhibits are overruled and the testimony fully admitted into evidence.

2) Some of the records submitted at hearing contain handwritten remarks or other marks on the Exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on August 3, 2010.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical and vocational opinions and depositions, the medical records, and the Stipulation for Compromise Settlement between Claimant and Employer, as well as based on my personal observations of Claimant at hearing, I find:

1) Claimant is a 55-year-old, currently unemployed individual, who last worked for Lighthouse for the Blind (Employer) running labeling and filling machines for aerosol cans, until he was fired for having a bad attitude in November 2003. Claimant testified that his current source of income is Social Security Disability benefits of $\ 1,006.00 per month.

2) Claimant graduated from high school in 1973, but he testified that his grades were average or below average. He testified that he was regularly bullied by a classmate throughout his school career and he was often more worried about what was going on with him, than he was about school itself. He tried to attend college for a semester, but the schooling did not work for him. Claimant has had no other formal education or training.

3) Claimant testified that he turned to alcohol and over-drinking, partly because of his problems at school and partly because his sister was always an "angel" and he was never very good. He testified that he received beatings from his father at a young age for not listening, and so as he got older, turned to drinking. However, Claimant testified that he has stopped drinking and has been sober for approximately nine years now.

4) Claimant testified that in addition to his prior low back problems, which will be discussed in more detail below, he had prior problems with his heart. He testified that he had a stent surgically implanted for heart problems sometime prior to 2001. He admitted that prior to November 19, 2003, he was having symptoms of shortness of breath and chest pain that caused him difficulties at work. He said that he was receiving breathing treatments before the accident to deal with his shortness of breath. When he would suffer from chest pains or shortness of breath at work, he would have to sit down, take a break and try to relax. Claimant admitted that prior to November 19, 2003, he was insulin-dependent for diabetes. He was taking a pill in the morning and insulin at night to try to control his diabetes. He said that he notices problems with the diabetes in that if he eats anything in the morning with any amount of sugar in it, then he has to lie down because he gets immediately tired, and he has also passed out in his backyard from his sugar being too high. He also admitted that he has problems with his eyes, in that sometimes he can see fine, and other times things are fuzzy. Claimant testified that he also received treatment and medications for bipolar disorder prior to the work injury in 2003. Despite taking the medications, Claimant testified that he gets very frustrated and aggravated very easily. He believed the medications help, but do not control it totally.

5) Claimant testified that his work history shows he has had many different jobs that normally ended with his being fired. He said that he felt everyone had a problem with him, and when he felt that way, he would "get that bipolar coming out of me and I just want to argue..." He admitted that he has problems getting along with people and he especially does not like it when authority figures get demanding with him. He admitted also that his bipolar disorder was affected (worsened) by his parents' passing in 2001. He said that his mother used to do everything for him, and since she died he feels lost and that he cannot handle all of this himself. His medications had to be increased and he missed three to four weeks of work following her death. I observed Claimant break down in tears when discussing his mother's death and the effect it had on him.

6) In terms of other pre-existing injuries, Claimant testified that he had problems with his right hand. He said that he fell and crushed the ulnar nerve, and went through two surgeries, but he refused to have a third. He noted that his two fingers are crooked because of the injury and surgeries and he does not have the grip or hand coord