Lloyd Bessard v. Alberici Constructors, Inc.

The award and decision of Administrative Law Judge Cornelius T. Lane, issued April 25, 2012, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the ALJ's allowance of attorney's fee as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of February 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: February 23, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Claimant was struck in the head by a shore post.
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
14. Nature and extent of any permanent disability: $\ 42 % permanent partial disability body as a whole, regarding cervical spine and permanent total disability against the Second Injury Fund for the primary injuries and preexisting injuries and disabilities.
15. Compensation paid to-date for temporary disability: $\ 32,104.71
16. Value necessary medical aid paid to date by employer/insurer? $\ 59,905.61

Employee: Lloyd Bessard Injury No.: 09-012515

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\$ 759.88 / \ 404.66
4. Method wages computation: Stipulation

1. Amount of compensation payable: Settled
2. Second Injury Fund liability: Payments of $\ 355.22 for 168 Weeks from February 23, 2009 through May 13, 2012 and then $\ 759.88 per week for the rest of Claimant's life.

weeks of permanent partial disability from Second Injury Fund

TOTAL: N/A

1. Future requirements awarded:

Said payments to begin 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: Todd Muchnick

Employee: Lloyd Bessard

Dependents: N/A

Employer: Alberici Constructors, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: USF \& G

Injury No.: 09-012515

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: CDL

A hearing was held in the above mention matter on January 30, 2012. Claimant's primary injury against the Employer/Insurer was previously settled. The hearing in this matter is against the Second Injury Fund only. Claimant Lloyd Bessard was represented by attorney Todd Muchnick. Second Injury Fund was represented by Assistant Attorney General Sam You.

Compensation rates are $\ 759.88 for temporary total disability and $\ 404.66 for permanent partial disability.

Employer paid \$20,516.76 in temporary total disability for 27 weeks, from February 23, 2009 to August 31, 2009. Employer paid additional sum of $\ 11,587.95 in temporary total benefits from August 31, 2009 to November 20, 2009.

The nature and extent, if any, of the Second Injury Fund liability.

Claimant offered the following exhibits that were accepted into evidence without objection, Exhibits A through N13. Second Injury Fund Exhibits were accepted without objection, Exhibits 1 through 5.

Claimant at the time of hearing was 52 years old. Claimant was a high school graduate; he played minor league baseball for the Boston Red Sox. Claimant started working for Alberici Constructors Inc. in the year 2000 as a laborer, worked until his last day in February 23, 2009.

Claimant stated in his testimony that he was a laborer, and for the Employer and he did demolition type of work and other construction type of work in which he operated jack hammers, hammers, shoveling, digging ditches, removing materials, breaking materials up, etc.

On February 23, 2009, Claimant while working for the Employer, Claimant was struck on the back of his head and neck by a shore post resulting in injuries to his cervical spine and causing what was later diagnosed as central cord syndrome. As a result of the injury Claimant stated he had transitioned quadripareiesis.

Claimant was taken to St. Louis University Hospital for care. Claimant was diagnosed with closed head trauma and central cord syndrome. Claimant was at the hospital from February 23, 2009 until February 26, 2009.

Claimant was referred to St. John Mercy Hospital, where claimant was seen by Dr. Martin Wice. From all the evidence Dr. Wice diagnosed Claimant with central cord syndrome, upper extremity dysenteric pain and close head trauma as a result of injury on February 23, 2009.

Claimant was sent to Dr. James Coyle on March 10, 2009 for evaluation and the doctor diagnosed Claimant with central cord syndrome and cervical spinal stenosis. Dr. Coyle had Claimant wear a cervical collar and gave physical therapy. Dr. Coyle in his records thought Claimant could potentially be a candidate for an anterior cervical fusion.

Claimant went back to see Dr. Wice on May 9, 2009, provided trigger point injections and Dr. Wice thought that Claimant should have some nerve conduction test with regard to his bilateral hand. In the records it was also noted that Claimant's complaint with regards to the hands that were prior to the February 23, 2009 injury.

Dr. Rotman performed right carpal tunnel decompression on November 20, 2009 and left carpal tunnel release on December 4, 2009.

The claimant was still having problems with his neck and was sent to see Dr. David Kennedy on April 1, 2010. Dr. Kennedy diagnosed Claimant with central cord syndrome with severe spinal canal stenosis, and he found that Claimant had spinal stenosis produced by disk herniations which was a result of Claimant's injury of February 23, 2009.

On October 4, 2010, Claimant went to Dr. Thomas Musich for an independent medical evaluation. Dr. Musich felt that the Claimant had an increased risk for additional surgical complaints and if he suffers any additional cervical spine trauma he felt that Claimant was a candidate for surgical intervention. Dr. Musich was of the opinion that for Claimant's neck

problems were the result of his injury from February 23, 2009, that the Claimant had 60\% permanent partial disability the body as a whole because of the neck problems.

Ms. Delores Gonzales, an independent vocational expert, saw Claimant on September 10, 2010 and she was the opinion that Claimant's medical problems prevent him from performing his past jobs or any job in the open labor market.

Claimant has stated he still has problems with his neck, problems with his elbows, and Claimant testified that he attempted to return to work and did so for eight days in December 2009. Claimant was laid off and has not worked since.

Claimant has a prior following a pre existing disabilities before the injury of February 23, 2009 as follows:

a. Right shoulder injury in 1980 from playing baseball on a minor league team resulting in surgery to the right shoulder.

b. Right knee injury in 1980 while playing baseball sliding into second base and underwent surgical procedure.

c. Knee injury in late 1980's when Claimant was coming down a ladder while working and injured the right knee which required arthroscopic surgery.

d. Claimant while working at Best Buy in December 1999, Claimant had a sprained left knee, which he settled with employer for 10 % permanent partial disability of the knee.

e. In April 2003, Claimant was working for Forest Park for Subsurface Constructors twisted his knee which required surgery with Dr. Charles Mannis. Claimant's left knee injury while working for the Employer resulted in 30 % permanent partial disability of the knee in his settlement of his worker's compensation case.

f. In June 2004, Claimant was working on a construction job on Highway 70 when Claimant tripped sustaining a left knee injury