David Schmitt v. City of St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-069654

Employee: David Schmitt

Employer: City of St. Louis

Insurer: Self-Insured

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds 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, the Commission affirms the award and decision of the administrative law judge dated June 20, 2012. The award and decision of Administrative Law Judge John K. Ottenad, issued June 20, 2012, is attached and incorporated by this reference.

The Commission further approves and affirms 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.

Given at Jefferson City, State of Missouri, this $26^{\text {th }}$ day of March 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

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 16, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis City
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 worked as a utility and maintenance worker for Employer's Water Division and injured his left knee, neck and body as a whole, when he was down in a trench working on a water main, and the trench wall collapsed, partially burying him.
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: Left Knee and Body as a Whole-Neck \& Psych
14. Nature and extent of any permanent disability: 25 % of the Left Knee
15. Compensation paid to-date for temporary disability: $\ 8,747.44
16. Value necessary medical aid paid to date by employer/insurer? $\ 29,656.67

Employee: David Schmitt

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 534.00
3. Weekly compensation rate: $\ 356.00 for TTD/ $\ 294.73 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

40 weeks of permanent partial disability benefits

1. Second Injury Fund liability:

29.5625 weeks of permanent partial disability

$\ 8,712.95

TOTAL: $\mathbf{\$ 2 0 , 5 0 2 . 1 5}$

1. Future requirements awarded: None

Said payments to begin immediately 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 attorneys for necessary legal services rendered to the claimant: Ellen E. Morgan and Gerald V. Tanner, Jr. Pursuant to the terms of this award, Mr. Tanner is to receive $\ 2,000.00 in full and final satisfaction of his attorney's lien and Ms. Morgan will receive the balance of the 25 % fee awarded. Mr. Tanner will also receive an additional $\ 642.50 for expenses from the proceeds of this case.

*Employer is entitled to a credit of $\ 5,000.00 for the advance on the settlement/award that they previously paid to Claimant and his attorney, leaving a balance owed to Claimant, pursuant to this award, of $\ 6,789.20.

On December 14, 2011, the employee, David Schmitt, appeared in person and by his attorney, Ms. Ellen E. Morgan, for a hearing for a final award on his claim against the employer, the City of St. Louis, which is duly self-insured under the statute C/O Cannon Cochran Management Services, and the Second Injury Fund. The employer, the City of St. Louis, which is duly self-insured under the statute C/O Cannon Cochran Management Services, was represented at the hearing by its attorney, Mr. Thomas J. Goeddel. The Second Injury Fund was represented at the hearing by Assistant Attorney General Carol L. Barnard.

Along with this Claim [Injury Number 99-069654, with a date of injury of June 16, 1999, alleging injury to the left knee, neck, back and body as a whole], Claimant also tried his three other open companion claims at the same time. Injury Number 98-172753, with a date of injury of April 14, 1998, alleges injury to the back and body as a whole. Injury Number 99-044054, with a date of injury of April 10, 1999, alleges injury to the back and body as a whole. Injury Number 00-120471, with a date of injury of August 2, 2000, alleges injury to the left foot. Separate awards have been issued for each of these other cases.

On the initial day of the hearing, it was determined that additional evidence and witnesses needed to be presented to deal with some of the issues raised in these matters. Therefore, the record of evidence was left open for up to 30 days to allow the parties to gather the evidence and to allow any additional witnesses to testify. The hearing was reconvened for the taking of additional evidence on January 9, 2012 and then the record formally closed on January 13, 2012.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about June 16, 1999, David Schmitt (Claimant) sustained an accidental injury arising out of and in the course of his employment that resulted in injury to Claimant.

2) Claimant was an employee of the City of St. Louis (Employer).

3) Venue is proper in the City of St. Louis.

4) Employer received proper notice.

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of $\ 534.00, resulting in applicable rates of compensation of $\ 356.00 for total disability benefits and $\ 294.73 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 8,747.44, representing a period of time of $244 / 7 weeks.

8) Employer paid medical benefits totaling \ 29,656.67.

9) Employer previously paid Claimant an advance of $\ 5,000.00, which the parties agree is to serve as a credit against any award of disability in this matter.

1) What is the nature and extent of Claimant's permanent partial disability attributable to this injury?

2) What is the liability of the Second Injury Fund?

3) Whether or not there is a valid attorney's lien and to what extent, if any, the lien requires a division of attorney's fees in this case?

The following exhibits were admitted into evidence:

A. Deposition of Dr. Adam Sky, with attachments, dated June 30, 2011

B. Deposition of Dr. Jeffrey Magrowski, with attachments, dated June 24, 2011

C. Deposition of Dr. Jerry Meyers, with attachments, dated June 24, 2011

D. Deposition of Dr. Thomas Musich, with attachments, dated June 21, 2010

E. Certified medical treatment records of Orthopedic and Sports Medicine, Inc.

F. Certified medical treatment records of Allen M. Jacobs \& Associates

G. Certified medical treatment records of Creve Coeur Pain Control

H. Exhibit offered but not admitted

I. Certified medical treatment records of Dr. Daniel Schwarze/St. Louis Orthopedic Surgeons

J. Exhibit offered but not admitted

K. Certified medical treatment records of Washington University Department of Orthopaedic Surgery

L. Medical treatment records of HealthSouth Rehabilitation Center of St. Louis

M. Medical treatment records of Forest Park Hospital

N. Medical treatment records of St. Louis University Hospitals

O. Certified medical treatment records of Dr. Collins Corder

P. Exhibit offered but not admitted

Q. Medical report of HealthSouth Industrial Rehabilitation Program

R. Certified medical treatment records of Forest Park Hospital

S. Certified medical treatment records of SSM St. Clare Health Center of Fenton and St. Joseph Hospital of Kirkwood

T. Medical (operative) report from St. Joseph Hospital dated March 31, 2000

U. Certified medical treatment records of Dr. Christopher Maret

V. Certified medical treatment records of Dr. Christopher Maret

W. Exhibit marked but withdrawn by Employee

1. Deposition of Dr. Gregg Bassett, with attachments, dated November 4, 2011
2. Deposition of Dr. William C. Kostman, with attachments, dated August 4, 2010
3. Transaction details regarding Advance on Settlement paid to Employee on January 24, 2005
4. Transaction details regarding Advance on Settlement paid to Employee on September 27, 2007
5. Report of Injury for the June 16, 1999 accident

Nothing offered or admitted at the time of hearing

I. Memorandum signed by the parties and Administrative Law Judge Matthew Vacca regarding Attorney Gerald Tanner's withdrawal and assertion of an attorney's lien, dated March 12, 2002

II. Attorney Gerald Tanner's Contingent Legal Fees agreement with Employee for the April 1998 and April 10, 1999 injuries

III. Attorney Gerald Tanner's Contingent Legal Fees agreement with Employee for the June 16, 1999 injury

IV. Attorney Gerald Tanner's Contingent Legal Fees agreement with Employee for the August 2, 2000 injury

V. Correspondence from Mr. Gerald Tanner to Ms. Ellen Morgan dated October 7, 2009 regarding attorney's fees and expenses in these cases

Notes: 1) Unless otherwise specifically noted below, any objections contained in the exhibits are overruled and the testimony is fully admitted into evidence in this case.

2) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on December 14, 2011 or January 9, 2012.

3) With regard to Exhibits H, J and P, the record will reflect that the Exhibits were offered and objections were raised by Employer and the Second Injury Fund regarding the admissibility of these Exhibits. Generally speaking, the Exhibits were expert opinion reports obtained by Claimant's former counsel in anticipation of litigation. However, the experts who wrote the report