Chad Uhrhan v. Drury Company

(Modifying Award and Decision of Administrative Law Judge by Separate Opinion)

Injury Nos.: 08-123983 \& 09-073962

Employee: Chad Uhrhan

Employer: Drury Company

Insurers: Missouri Employers Mutual

Midwest Builders Casualty Mutual

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation cases are submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ We have reviewed the evidence and briefs, heard oral argument and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this temporary award modifying the December 2, 2010, temporary or partial award of the administrative law judge (ALJ). We adopt the findings, conclusions, decision and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision and modifications set forth below.

The ALJ found that Midwest Builders Casualty Mutual is responsible for employee's past medical expenses totaling $\ 3,557.41, in addition to $\ 477.95 in mileage reimbursement. The ALJ went on to find that "[t]hese proceeds are to be paid to [e]mployee who in turn will need to reimburse MEM relative to the amounts paid."

We find that the ALJ ordering employee to reimburse MEM was improper under Missouri Workers' Compensation Law. Therefore, we affirm the ALJ's finding that Midwest Builders Casualty Mutual is responsible for employee's past medical expenses and mileage reimbursement, but we specifically do not affirm or adopt the ALJ's ordering of employee to reimburse MEM. There is no statutory authority permitting the Commission/Division to issue an order directing an employee to reimburse an alleged insurer in such manner.

The award and decision of Administrative Law Judge Matthew W. Murphy issued December 2, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this temporary award.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2008 unless otherwise indicated.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Chad Uhrhan

Injury No. 09-073962, 08-123983

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Drury Company

Additional Party: Second Injury Fund

Insurer: Missouri Employees Mutual

Builders Casualty Company

Hearing Date: $\quad 8 / 30 / 10$

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: $12 / 15 / 08 and 6 / 25 / 09$
5. State location where accident occurred or occupational disease contracted: Cape Girardeau, Cape Girardeau 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 the 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: Employee was injured while performing repetitive work activities at or above shoulder level.

Employee: Chad Uhrhan Injury No. 09-073962, 08-123983

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Bilateral shoulders
3. Compensation paid to date for temporary disability: $\ 0.00
4. Value necessary medical aid paid to date by employer/insurer? \$4,035.36 paid by MEM; \$0 by Builders Casualty Co.
5. Value necessary medical aid not furnished by employer/insurer? Unknown.
6. Employee's average weekly wage: $\ 1,119.64.
7. Weekly compensation rate: TTD/PTD: \$746.43, PPD: \$422.97
8. Method wages computation: Stipulation.
9. Amount of compensation payable:

Unpaid medical expenses: $\ 3,557.41

Additional Medical Aid: Such medical, surgical, chiropractic, and hospital treatment including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve the effects of the injury.

This award is only temporary and partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

On August 30, 2010, the employee, Chad Uhrhan, appeared in person and by his attorney, David J. Jerome, for a hearing for a temporary award. Attorney George Floros represented employer Drury Construction and Missouri Employers Mutual (MEM). Attorney Steven McManus represented the employer Drury Construction and insurer Builders Mutual Casualty (Builders Mutual). The Second Injury Fund is to remain open and did not participate in the proceedings. Venue is proper and jurisdiction lies with DWC. The record was closed after presentation of evidence. 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 findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer - Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Law and liability was funded by: Missouri Employers Mutual until 3/31/09; Builders Mutual Casualty Company from 4/1/09 to present.
2. Covered Employee - On or about the date of the alleged occupational disease, the employee was an employee of Drury Construction and was working under the Missouri Workers' Compensation.
3. Notice - Employer had notice of employee's occupational disease.
4. Statute of Limitations - Employee's claim was filed within the time allowed by law.
5. Average Weekly Wage and Rate - Employee's average weekly wage for both injury dates was $\ 1,119.64. The rate of compensation for temporary total disability and permanent total disability is $\ 746.43. The rate for permanent partial disability is $\ 422.97.
6. Medical Causation - Employee's injury was medically causally related to the incident which is the subject of this hearing.
7. Medical Aid Furnished - Employer/Insurer through MEM has paid medical expenses totaling $\ 3,557.41. MEM seeks credit against Builders Mutual Casualty to the extent of these medical expenses.
8. Temporary Total Disability Paid - Employer/Insurer has paid $\ 0 as temporary total disability benefits for 0 weeks of disability.
9. Mileage - Employer/Insurer through MEM has paid mileage expenses totaling $\ 477.95. MEM seeks credit against Builders Mutual Casualty to the extent of these mileage expenses.
10. Permanent Total Disability - There is no claim for permanent total disability for purpose of this hearing.

1. Permanent Partial Disability - There is no claim for permanent partial disability for purposes of this hearing.

1. Accident/Occupational Disease - There is a dispute as to whether the employee sustained an occupational disease arising out of and in the course of his employment.
2. Notice - There is a dispute as to whether the employee provided appropriate notice to the employer exclusively relative to the injury of December 15, 2008.
3. Medical Causation - There is a dispute as to whether the employee's current condition is causally related to his work activities.
4. Previously Incurred Medical - Employee is claiming previously incurred medical expenses in the amount of $\ 3,557.41 as well as $\ 477.95 in mileage that has been paid by Missouri Employers Mutual. There is a dispute as to whether Missouri Employers Mutual can obtain reimbursement directly from Builders Mutual Casualty Company.
5. Future Medical - Employee is claiming additional or future medical aid.

The following exhibits were offered and entered into evidence:

Employee's Exhibits:

A. Deposition of Dr. Jacques Van Ryn

B. Medical records of Dr. David Brown

C. Medical records of Timberlake Surgery Center

D. Medical records of Mid-America Rehab

E. Medical records of Dr. S. Ken Griffith

F. File materials from DWC

Employer/Insurer's Exhibits (MEM)

1. Payment history
2. Claim for Compensation, date of accident 10/7/09
3. Claim for Compensation, date of accident 6/25/09
4. Claim for Compensation, date of accident 12/15/08

Employer/Insurer's Exhibits (Builders Mutual)

I. Photographs of work area

II. Deposition of Dr. Lyndon Gross

Mr. Chad Uhrhan (hereinafter referred to as "Employee") testified that he was born on June 15, 1973. He began working at Drury Company when he was 15 years old as an intern. He worked part-time until he was 19 years old and has been working full-time ever since. Employee's job is a commercial sheet metal worker wherein he installs guttering and downspouts in both commercial and high end residential homes.

Employee testified that prior to the present injuries and during the course of his employment, he developed carpal tunnel syndrome in April of 2007. This condition was deemed to be related to his work activities and he was sent to Dr. David Brown who performed surgery to both of his hands. All treatment and lost time benefits were paid for by the workers' compensation carrier. This case was settled on a pro-se basis.

By October of 2008, Employee developed problems with his elbows. He returned to Dr. Brown who diagnosed him with having bilateral lateral epicondylitis related to his work activities. On January 23, 2009, Employee underwent left cubital tunnel syndrome. On February 13, 2009, Employee underwent right cubital tunnel syndrome. All medical care was paid for by the workers' compensation carrier. While Employee was off work, all lost time benefits were paid by the workers' compensation carrier. Employee testified that following these surgeries, he was eventually released to full duty on April 6, 2009. He returned to work for his same employer.

Employee testified that for the 12 months leading up to his elbow surgeries, he was a working foreman. He noted that he would work eight hours per day at least five days per week. Leading up to the elbow surgeries, he spent 60 % of his work week in the fabrication shop with the remaining 40 % out in the field.

Employee testified that while he was in the fabrication shop, his job involved the manipulation and bending of 4 'x10' sheets of sheet metal that had to be bent using a brake in order to make the various elements of the guttering. Employee testified that in order to perform this activity, he would initially have to remove from storage shelves a 4 'x10' sheet of sheet metal that weighed 80 to 100 pounds. He noted that these sheets are stored at or near his shoulder height and that he would have to remove them from the shelf in order to take them to the work bench. Once he had transferred the sheeting to his work bench, he would cut the sheet into the sizes that he needed. He would then manipulate the pieces of metal into the brake to make the appropriate bends.

Employee testified that in order to bend the metal, he would have to push a handle forward an