Andrew Lukowski v. Macon Electric Cooperative

Employee: Andrew Lukowski

Employer: Macon Electric Cooperative

Insurer: Missouri Electric Cooperative Insurance Plan

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and considered the whole record. We find 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 § 286.090 RSMo, we issue this final award and decision affirming the May 25, 2012, award and decision of the administrative law judge, as supplemented herein.

Employer asserts that the administrative law judge did not credit the past medical expense award with amounts employer paid for treatment of this injury. The administrative law judge awarded the full amount of the medical expenses without credit for amounts the parties agreed were paid directly to providers by employer.

This case was tried with Injury No. 08-001945. The parties stipulated that employer paid $\ 3,141.88 in medical expenses relative to the 2008 injury and that employer paid nothing on behalf of the 2009 injury. The billing records suggest that of that $\ 3,141.88, employer paid $\ 1,866.48 for treatment of the 2008 injury and $\ 1,275.40 for treatment of the 2009 injury. However, we are bound to accept the parties' stipulation so we credit all of employer's payments to the 2008 expenses and none toward the medical expenses in this case. ${ }^{2}$

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

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

The award and decision of Administrative Law Judge Vicky Ruth, issued May 25, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 1^{\text {st }}$ day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

[^0]

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

${ }^{2}$ The parties in each case are identical, so no party should be financially prejudiced by the misallocation.

Employee: Andrew Lukowski

Injury No. 09-045934

Dependents: N/A

Employer: Macon Electric Cooperative

Additional Party: Second Injury Fund

Insurer: Self-insured, Missouri Electric Cooperative Ins. Plan, c/o CCMSI as third-party administrator

Hearing Date: February 23, 2012

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: June 24, 2009.
5. State location where accident occurred or occupational disease was contracted: Macon 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: The employee tripped over a pole and fell backwards onto his outstretched right arm.
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: Right shoulder and right knee.
14. Nature and extent of any permanent disability: 25 % of the right shoulder.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? See Award.

1. Employee's average weekly wages: N/A.
2. Weekly compensation rate: $\$ 664.89 / \ 389.04.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer:

PPD (58 weeks x $\ 389.04 ): $\ 22,564.32.

TTD: $\ 9,308.46

Past Medical: $\quad \ 29,779.80

TOTAL: $\quad \ 61,652.58

1. Second Injury Fund liability: $\ 13,752.56.
2. Future medical awarded: No.

Said payments to begin immediately and to be payable and 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 (excluding future medical treatment) in favor of the following attorney for necessary legal services rendered to the claimant: Dean Christianson.

Employee: Andrew Lukowski

Injury No: 09-045934

Departments: N/A

Employer: Macon Electric Cooperative

Additional Party: Second Injury Fund

Insurer: Self-insured, Missouri Electric Cooperative Ins. Plan, c/o CCMSI as third-party administrator

On February 23, 2012, Andrew Lukowski, Macon Electric Cooperative, Missouri Electric Cooperative Insurance Plan (MECIP), and the Second Injury Fund appeared for a final award hearing. This case was tried at the same time as Injury No. 08-001945. Andrew Lukowski, the claimant, was represented by attorney Dean Christianson. Attorney Joseph Page represented Macon Electric Cooperative/MECIP, the employer/insurer. The Second Injury Fund elected not to participate in the hearing. The claimant testified in person at the hearing. Dr. Mark Lichtenfeld, Dr. Bruce Schlafly, and Dr. Michael Nogalski testified by deposition. The Administrative Law Judge set a deadline of March 22, 2012, for the filing of briefs or proposed awards and the record closed at that time. Claimant and the employer/insurer submitted briefs/proposed awards; the Second Injury Fund did not.

The parties stipulated to the following:

Injury No 08-001945

1. On or about January 15, 2008, Andrew Lukowski (the claimant) was an employee of the Macon Electronic Cooperative (the employer).
2. The parties were operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was self-insured through MECIP c/o CCMSI.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Macon County is proper.
5. A Claim for Compensation was timely.
6. Temporary disability benefits were paid in the amount of $\ 3,514.41, representing five and two-sevenths weeks of benefits for the period of January 16, 2008 through February 26, 2008.
7. Medical treatment was provided in the amount of $\ 3,141.88.
8. Notice is not an issue.

1. On or about June 24, 2009, claimant was an employee of the employer.
2. The parties were operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was self-insured through MECIP c/o CCMSI.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Macon County is proper.
5. A Claim for Compensation was timely filed.
6. No temporary disability benefits were paid.
7. No medical treatment was provided.
8. Notice is not an issue.

The parties agreed that the following issues were to be resolved in this proceeding:

1. Accident arising out of and in the course of employment.
2. Medical causation.
3. Nature and extent of permanent partial disability.
4. Temporary total disability benefits.
5. Unpaid medical.
6. Future medical benefits.
7. Second Injury Fund Liability.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit A Deposition ${ }^{1}$ of Dr. Lichtenfeld.

Exhibit B Deposition of Dr. Schlafly.

Exhibit C Medical records from Moberly Medical Clinics.

Exhibit D Medical records from Samaritan Hospital.

Exhibit E Medical records from Kathleen Abernathy, physical therapist.

Exhibit F Medical records from Dr. Deline.

Exhibit G Medical records from Mid Missouri Physical Therapy.

Exhibit H Medical records from Columbia Orthopedic Group (4/19/08).

Exhibit I Medical records from Columbia Orthopedic Group (8/06/08).

Exhibit J Medical records from Columbia Orthopedic Group (1/11/09).

Exhibit K Medical records from Columbia Orthopedic Group (5/17/09).

Exhibit L Medical records from Columbia Orthopedic Group (6/12/10).

Exhibit M Medical bill exhibit.

[^0]

[^0]: ${ }^{1}$ All depositions were received subject to the objections contained therein.

Exhibit N Report of Injury form (1/15/08).

Exhibit O Demand for medical care letter.

The following exhibits were admitted on behalf of the employer/insurer:

Exhibit 1 Deposition of Dr. Nogalski.

Exhibit 2 Report of Dr. Nogalski - 11/30/11.

Exhibit 3 Medical bill summary with adjustments.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant was born on January 3, 1961; at the time of the hearing he was 51 years old. He currently lives in Macon, Missouri. Claimant is a high school graduate. In addition, he completed some post-secondary education and training.
2. Claimant has worked for the employer since May 19, 1989. His current position is as a ground man operator. It is his job to set up sites for the linemen, including shoveling, running a truck, setting poles, pulling wires, etc.
3. While working on January 15, 2008, claimant stepped up into the cab of his truck (Injury No. 08-001945). The cab was rather high, and was reached by climbing up two steps. Claimant slipped as he stepped up. As he slipped, he grabbed for the steering wheel with his right hand and his left foot slipped off the step and nearly touched the ground. This left his right knee in an awkwardly bent position and some of his weight was hanging from his right arm. He felt pain and stiffness in his knee and shoulder, although the knee was worse.
4. Claimant reported the injury and was sent to Dr. Joseph Quaranto for medical care. The doctor evaluated claimant and also had him evaluated in the emergency room. Dr. Quaranto asked him which of his two problems was worse, the knee or the shoulder. Claimant indicated that the knee was worse, so Dr. Quaranto focused on that injury.
5. Claimant was then referred to Dr. Thornburg at the Columbia Orthopedic Group. Dr. Thornburg evaluated claimant, noting that he was authorized to treat the right knee but not the shoulder. Dr. Thornburg performed an MRI and a cortisone injection. When the symptoms continued, Dr. Thornburg referred claimant to an orthopedic surgeon in his practice, Dr. Tarbox.
6. On April 15, 2008, Dr. Tarbox performed arthroscopic surgery on the knee. At surgery, the doctor diagnosed a torn medial meniscus. The tear of the medial meniscus involved

the anterior horn of the medial meniscus, which the doctor treated with a partial medial meniscectomy. Dr. Tarbox also performed chondroplasty for treatment of the chondromalacia of the knee joint. The doctor noted that the ACL was no longer present; he apparently believed that the absent ACL was an old injury and was unrelated to the 2008 work injury. After the surgery, claimant had physical therapy and did well. On May 28,, 2008, Dr. Tarbox released claimant to full duty as of June 16, 2008. He last saw claimant on July 2, 2008. After being discharged by Dr. Tarbox, claimant has had no further care on the right knee.

1. Claimant, however, still has some problems in the right knee, such as pain, swelling, and stiffness. He indicated that the complaints are worse the longer that he works on his knee. He felt that he had approximately 50 % of the motion that he had before the injury.
2. Claimant also continues to have problems