Todd Grauberger v. Atlas Van Lines, Inc.

Injury No.: 01-137020

Employee: Todd Grauberger

Employer: Atlas Van Lines, Inc.

Insurer: Legion Insurance Company

An administrative law judge issued an award of compensation in this matter. Employer filed an Application for Review of the award. While the matter was pending before the Labor and Industrial Relations Commission (Commission), employee filed a Motion to Commute Award. On December 20, 2011, the Commission issued its award affirming the administrative law judge's corrected award. ${ }^{1}$ In the award, the Commission acknowledged the existence of employee's Motion to Commute but deferred determination of the Motion to Commute until such time as the award became final. Employer appealed the Commission's award.

On June 14, 2012, the Missouri Court of Appeals for the Southern District issued an opinion dismissing employer's appeal of the December 20, 2011, award and decision of the Commission. Grauberger v. Atlas Van Lines, Inc. (Mo. App. 2012) (SD31823). The Court concluded our award was not a final award subject to review by the Court. The Court ruled:

This order treated the case exactly as if Claimant had filed the motion for commutation with the Division and the ALJ had issued an award in favor of Claimant but failed to rule on Claimant's motion for commutation as required by 8 CSR 20-3.010(5)(A). In that posture, the determination of the commutation issue is part of the award on the claim and, therefore, the Commission's order did not "[dispose] of the entire controversy between the parties to the claim[,]" nor did it "[arrive] at a terminal, complete resolution of the case before it." See Jackson, 310 S.W.3d at 710. ${ }^{2}$ Conversely, the Commission's order "remains tentative, provisional, contingent[, or] subject to recall, revision or reconsideration by the commission." Id. In other words, the Commission's order on December 20, 2011, is not a final award as required by section 287.495 .1 in order to grant this Court statutory authority to review it. Employer's first point is granted.

By mandate dated July 2, 2012, the Court confirmed its dismissal.

On July 3, 2012, employee filed his Notice of Withdrawal of Motion for Commutation against Employer. The matter is now ready for final disposition.

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[^0]: ${ }^{1}$ On December 20, 2011, Alice A. Bartlett was the employer representative on the Commission. The Commission's December 20, 2011, award was made by Commissioners Bartlett and Chick (thenChairman, William F. Ringer, not sitting).

${ }^{2}$ Citing Jackson v. Stahl Specialty Co., 310 S.W.3d 707 (Mo. App. 2010).

The Commission has reviewed the evidence, read the briefs, and considered the whole record. In addition, Commissioner Chick heard the parties' oral arguments. ${ }^{3}$ The Commission finds that the corrected 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 § 286.090 RSMo, the Commission affirms the corrected award and decision of the administrative law judge.

The corrected award and decision of Administrative Law Judge Robert H. House, issued March 3, 2011, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $16^{\text {th }}$ day of July 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{3}$ Commissioner James Avery was appointed as the employer representative on the Commission in January 2012, after the Commission heard oral arguments in this matter.

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: NOVEMBER 19, 2001
5. State location where accident occurred or occupational disease was contracted: JASPER COUNTY, MO
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: MOVING FURNITURE
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: BACK
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: $\ 44,294.52
16. Value necessary medical aid paid to date by employer/insurer? \$24,534.72

1. Value necessary medical aid not furnished by employer/insurer? -0-
2. Employee's average weekly wages:
3. Weekly compensation rate: $\$ 628.90 / \ 329.42
4. Method wages computation: AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: -0-

N/A weeks of temporary total disability (or temporary partial disability)

N/A weeks of permanent partial disability from Employer

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: NO

TOTAL: UNDETERMINED

1. Future requirements awarded: PERMANENT TOTAL DISABILITY

Said payments to begin SEPTEMBER 9, 2004 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 PERCENT of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

DAVE CHILDERS

MICHAEL LUTKE

Employee: Todd Grauberger

Injury No. 01-137020

Dependents: N/A

Employer: Atlas Van Lines, Inc.

Additional Party: N/A

Insurer: Legion Insurance Company

Hearing Date: January 14, 2011

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

The parties presented evidence at a final hearing in this matter on January 14, 2011. Claimant appeared in person and through his attorneys, David Childers and Mike Lutke. Employer/insurer appeared through their attorney, Matthew Leonard.

The parties presented only two issues for determination at the hearing.

1. The nature and extent of disability, with claimant alleging permanent total disability benefits. The parties agreed that should I find claimant to be permanently and totally disabled permanent total disability benefits would begin on September 9, 2004.
2. That should I find that claimant was permanently and partially disabled that employer/insurer would be entitled to a credit for the overpayment of temporary total disability benefits in the amount of $\ 10,781.14 representing $171 / 7$ weeks of compensation.

The parties additionally agreed that claimant had an average weekly wage sufficient for the maximum rate of compensation which was $\ 628.90 for permanent total and temporary total disability benefits and $\ 329.42 for permanent partial disability benefits. The parties agreed that medical benefits were paid in the amount of $\ 24,534.72 and that temporary total disability benefits were paid in the amount of $\ 44,294.52 representing $703 / 7$ weeks of compensation.

Only one witness testified at the hearing - claimant, Todd Grauberger. Additionally, testifying by deposition on behalf of claimant were Dr. Shane Bennoch, Dr. Garth Russell, Dr. Dale Halfaker (a neuropsychologist), and vocational rehabilitation counselor, Phillip Eldred. Testifying on behalf of employer/insurer by deposition were Dr. Ted Lennard (two depositions), Dr. Edwin Wolfgram (a psychiatrist), and Bob Hammond, a vocational consultant. Additionally, claimant also introduced into evidence a report of Dr. Ronald Zipper, an orthopedic surgeon. The parties, through a joint exhibit, introduced into evidence claimant's medical records.

On the date of the hearing claimant was 49 years old. He was born October 17, 1961. During his working life claimant worked as a tractor/trailer driver for moving companies, moving both business and residential items. Claimant mainly operated as an owner/operator moving household items for North American Van Lines and then Atlas Van Lines. He owned his own tractor and would pull the trailer owned by the moving company with which he contracted. He would disassemble items as well as pack and load materials with helpers. He would drive the tractor/trailer to the location where the move was to be completed. With helpers he then would unload and unpack the items that had been transported and reassemble items that had to be disassembled prior to the move. He would lift items anywhere from five pounds to 500 pounds along with his helpers.

On November 19, 2001, while working for employer, claimant bent over to pad a nightstand. He felt immediate pain. He initially treated at Cox Hospital and was referred to Dr. Rethorst who then referred claimant to Dr. Charles Mace, a neurosurgeon. Dr. Mace ultimately performed surgery on claimant's back on December 28, 2001. Dr. Mace performed a right L4-5 laminectomy and microdiscectomy. Claimant had some relief from his symptoms following the surgery. He no longer had the excruciating pain that immediately followed his injury at work, but his symptoms did not completely resolve. Over time, his symptoms worsened. Following surgery, claimant returned to Dr. Rethorst. Later he was referred to Dr. Ted Lennard who treated claimant from October 29, 2002, until May 10, 2004, when Dr. Lennard released claimant. Claimant was provided with prescriptive medications and an epidural injection, neither of which relieved his symptoms. Dr. Lennard released claimant, giving him a rating of 15 percent to the body as a whole and a 50-pound lifting restriction, later changed to 40 pounds. Claimant has received no additional treatment for his injuries since his release by Dr. Lennard.

Claimant continues to have pain in his back radiating through his right leg. Claimant has difficulty sleeping because of his pain. He cannot walk more than 100 yards at a time because of the pain in his back and right leg. He has a numbing and burning sensation going down his right leg, and he limps when he walks. He will take large amounts of over-the-counter medications, including ibuprofen and Aleve in an attempt to relieve his pain. He drives no more than 35 or 40 minutes without stopping. He changes positions on a regular basis, including going to bed and sleeping two to three times a day for up to six hours. Claimant is also depressed because of his physical condition and lack of funds. He believes that there is no job he can perform. Most of the time claimant stays home and sleeps.

There is a disparity of opinion from the experts who treated and examined claimant regarding whether or not he is able to work. Claimant's physical condition as a result his injury involved the L4-5 disk space only and included treatment with a laminectomy and microdiscectomy. However, it is clear from all of the physicians who have examined claimant that he continues to have significant pain in his back, radiating into his leg.

Claimant's examining physicians have rated cla