Stephen Redfern v. Autozone

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 08-051583

Employee: Stephen L. Redfern

Employer: Autozone (Settled)

Insurer: Fidelity \& Guaranty Insurance Company (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480 RSMo. Pursuant to \S 286.090$ RSMo, we issue this final award and decision modifying the August 15, 2012, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties stipulate that we modify the administrative law judge's award by the inclusion of the following language:

Linda Louise Redfern is only entitled to receive permanent total disability benefits in the event she remains married to Claimant and Claimant predeceases her while they remain married. Her entitlement to permanent total disability benefits shall cease upon her death or remarriage after Claimant's death or divorce from Claimant, whichever comes first.

We accept the stipulation and we modify the award accordingly.

We approve and affirm the administrative law judge's allowance of attorney's fee as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Emily S. Fowler, issued August 16, 2012, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of January 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Stephen L. Redfern

Injury No. 08-051583

Employer: Autozone

Insurer: Fidelity \& Guaranty Insurance Company

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

Hearing Date: September 12, 2011

Checked by: ESF/1h

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: May 5, 2008.
5. State location where accident occurred or occupational disease was contracted: Jackson County, Missouri.
6. Was above employee an employee 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, by Fidelity \& Guaranty Insurance Company.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was walking into a bathroom when he slipped and fell.
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: Neck and left arm.
14. Compensation paid to date for temporary disability: $\ 20,880.00.
15. Value of necessary medical aid paid to date by employer/insurer: $\ 79,607.80.
16. Value of necessary medical aid not furnished by employer/insurer? None.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Stephen L. Redfern

1. Employee's average weekly wage: $\ 540.00.
2. Weekly compensation rate: $\$ 360.00 / \ 360.00.
3. Method wages computation: By agreement.

1. Amount of compensation payable: The following amounts are awarded as benefits to Claimant:

The Employer has paid 150 weeks of permanent partial disability benefits for the period July 14, 2009 to May 30, 2012. Beginning May 31, 2012, The Second Injury Fund shall pay permanent total disability payments at the rate of $\ 360.00 per week. The Second Injury Fund shall continue to pay Claimant $\ 360.00 per week during his lifetime. In the event that Claimant predeceases his wife, Linda Redfern, those payments shall be paid to her during her lifetime.

Said payments to be payable and be subject to modification and review as provided by law.

This Award is subject to a lien in favor of Thomas Stein, attorney at law, in the amount of twenty-five ( 25 % ) for legal services rendered.

Employee: Stephen L. Redfern

Injury No. 08-051583

Employer: Autozone

Insurer: Fidelity \& Guaranty Insurance Company

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

Hearing Date: September 12, 2011

Checked by: ESF/lh

On September 12, 2011, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Stephen Redfern, appeared in person and with counsel, Mr. Thomas Stein. The Second Injury Fund appeared through Assistant Attorney General, Benita Seliga. There was no appearance on behalf of the Employer and Insurer as the claim between the Employer and the Employee has previously been settled.

The parties stipulated to the following:

1) that Autozone was an employer operating under the subject Missouri Workers' Compensation Law on May 5, 2008;

2) that on May 5, 2008, an employer/employee relationship existed between Autozone and Claimant;

3) that the employer was insured under the law by Fidelity \& Guaranty Insurance Company;

4) that the employee filed a claim for compensation within the time prescribed by law;

5) that notice was properly given;

6) that the employee sustained an accident on May 5, 2008 that arose out of and in the course of his employment; and

7) that the claimant's average weekly wage was $\ 540.00 and the applicable compensation rate is $\ 360.00 for permanent partial and permanent total disability benefits.

The issues to be decided are as follows:

1) Whether Claimant suffered any permanent disability from the May 5, 2008 accident and any prior injuries or conditions;

2) The liability of the Second Injury Fund for permanent partial or permanent total disability benefits;

3) Whether Schoemehl v. Treasurer of Missouri, 217 S.W.3d 900 (Mo. banc 2007), applies to this claim;

4) Whether Schoemehl applies to Claimant's wife should he predecease her.

Claimant and his wife, Linda Redfern, testified on his behalf and offered the following exhibits, all of which were admitted into evidence:

A Medical records—Nicholas Michalski, M.D.

B Medical records—Shawnee Mission Medical Center (5/19/08)

C Medical records—Shawnee Mission Medical Center (6/9/08)

D Medical records—Paul O’Boynick, M.D.

E Medical records—Premier Spine Care

F Medical records—Heartland Spine \& Specialty Hospital

G Medical records—SERC

H Deposition—James Stuckmeyer, M.D.

I Deposition—Mary Titterington

J Deposition—Steve Redfern

M Notice of Award from Social Security

N Marriage License

O Original claim for compensation

P $1^{\text {st }} amended claim for compensation

Q 2^{\text {nd }}$ amended claim for compensation

R Stipulation for Compromise Settlement

The Second Injury Fund offered no witnesses or exhibits.

Claimant testified that he was born on February 27, 1951 and is 60 years old. When he was 18 months old, he was diagnosed with polio. This affected him from the waist down. He was required to wear a brace on his left leg. His right leg, although it did not require a brace, was very weak. To compensate for his polio, Claimant walked with the use of crutches under both arms. This is how he walked up until the time of the accident on May 5, 2008.

Claimant graduated from Ruskin High School. He did not obtain a college degree or any other degree. He held a number of different jobs before the accident, including door to door sales of encyclopedias. Although he was able to do this job, his polio made it difficult to walk up and down stairs and walk between houses for door to door sales.

Claimant then went to work in the auto parts business. He worked in that industry for a number of years before his accident. He was able to work full time in several different positions. The jobs he worked in this business required certain accommodations as a result of his polio. He was unable to carry bulky or heavy boxes. He was unable to climb ladders to stock or retrieve product from high shelves. Because of his inability to perform these job duties, his fellow employees performed them for him. He was also given a handicapped parking sticker by his last employer, Autozone. Claimant's polio also affected certain activities of daily living, such as dressing and bathing.

At the time of the accident, Claimant was working for Autozone at their location in Independence, Missouri. As he was going into the bathroom, one of his crutches slipped on a freshly mopped floor and caused him to fall. He tried to catch himself with his crutches. This caused immediate pain between his shoulders. He eventually got up and went back to his work duties. His supervisor saw the water on his shirt and asked him what had happened. He told him he slipped on water in the bathroom. His supervisor asked him if he needed to see a doctor, but Claimant told him he would be all right.

Claimant testified that before the accident, he had slipped and fallen hundreds of times over his lifetime because of his polio. The pain he suffered from these slips and falls had always gone away. He assumed that the pain he was experiencing from this fall would eventually go away as well.

Claimant finished his work day and continued to work there for the next two weeks. During this time, he continued to have pain between his shoulders as well as neck pain and headaches. On May 19, 2008, he was admitted to Shawnee Mission Medical Center for pneumonia. He was discharged after several days and went back to work. A few weeks later, he went back to Shawnee Mission Medical Center for left arm weakness. He was diagnosed with a herniated disc in his neck. Dr. Paul O’Boynick operated on his neck.

The herniated disc caused Claimant to lose strength in his left triceps. Dr. O’Boynick’s surgery did not restore that strength. After a few months, Claimant’s care was transferred to Dr. Adrian Jackson at Premier Spine Care. Dr. Jackson performed a second surgery on Claimant. Unfortunately, this did not restore the strength to his left triceps. Because of this, he was unable to use the crutches. He continues to have no strength in his left triceps. This has prevented him from using his crutches and walking. He has not been able to walk since this surgery in June, 2008.

In addition to left triceps weakness, Claimant continues to have neck pain and pain between his shoulders.

Claimant has not worked since his second surgery. He does not feel capable of working anywhere. He cannot walk. He cannot drive. He cannot walk up stairs or open doors in public. He rarely leaves the house because it is difficult for him to get out of the house. He now gets around in a motorized scooter that has to be loaded and unloaded in a special van by his wife. He has been on Social Security disability for more than two years.

He takes several naps during the day. Part of the reason for napping is that his neck pain and headaches interrupt his sleep during the night. The main reason he naps is because he cannot walk and spends almost the entire day laying in bed or sitting in a chair. Because most of his time is spent sitting or lying around, he has no energy and is constantly fatigued.

James A. Stuckmeyer, M.D. testified by deposition (Exhibit H). He is a board certified orthopedic surgeon. (p. 3) He evaluated Claimant on August 17, 2009. (p. 4) He stated that as a result of the accident; “Claimant sustained a two-level disk herniation in his neck. (p. 30) The accident necessitated surgery at C5-6 and then a second surgery at C5-6 and C