Shane Null v. New Haven Care Center, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-047878

Employee: Shane Null

Employer: New Haven Care Center, Inc.

Insurer: Missouri Nursing Home Trust

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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated October 13, 2011. The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued October 13, 2011, 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 $21^{\text {st }}$ day of June 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

I agree that employee is permanently and totally disabled but I believe his inability to compete in the open labor market is due to the effects of his primary injury in combination with his preexisting disabilities.

I am persuaded by the expert medical opinion of Dr. Cantrell that as a result of his work injury employee sustained a 7 % permanent partial disability of the body as a whole referable to the low back. I also find that the restrictions imposed by Dr. Cantrell for the work injury most accurately reflect employee's physical limitations resultant from the work-related compression fracture and the pain associated therewith.

By contrast, some of the restrictions Dr. Volarich believed to be necessary as a result of the primary injury mirror self-imposed limitations employee was observing before the work injury. Before the work injury, employee had already adjusted the manner in which he performed his job due to his low back problems. For example, employee limited his lifting to less than fifty pounds and alternated physical work tasks with supervisory tasks to relieve pain in his low back.

Employee's vocational expert, Mr. Dolan, relied upon Dr. Volarich's physical restrictions in reaching his conclusion that employee is unable to compete in the open labor market. Mr. Dolan felt that if some of those restrictions pre-existed the work injury, then employee's inability to compete in the open labor market is due to the work injury in combination with his preexisting back problems. As noted above, some of employee's restrictions pre-existed the work injury.

I believe it is the effects of employee's work injury in combination with his many preexisting disabilities that render him unable to compete in the open labor market. I would modify the award of the administrative law judge to award permanent partial disability benefits from employer/insurer to employee. I would award permanent total disability benefits from the Second Injury Fund.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

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 27, 2004
5. State location where accident occurred or occupational disease was contracted: Franklin 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: Claimant was operating a mower which slid off an embankment, he fell twelve feet and the mower landed on top of him.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Head, back, right ear, and psychiatric injury.
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 23,780.97
16. Value necessary medical aid paid to date by employer/insurer? $\ 74,197.92

Employee: Shane Null Injury No. 04-047878

1. Value necessary medical aid not furnished by employer/insurer? \5,639.99
2. Employee's average weekly wages: \ 732.20
3. Weekly compensation rate: $\ 488.13 TTD/\$347.05 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 5,639.99

Permanent total disability benefits of $\ 488.13 from Employer beginning January 19, 2006, for Claimant's lifetime.

1. Second Injury Fund liability: No

TOTAL: SEE AWARD

1. Future requirements awarded: See Award

Said payments to begin as of the date of this award 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:

Dean L. Christianson

Employee: Shane Null

Employee: Shane Null

Dependents: None

Employer: New Haven Care Center, Inc.

Additional Party Second Injury Fund

Insurer: Missouri Nursing Home Trust

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: GCG/In

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on July 12, 2011 in Franklin County, Missouri. Shane Null (Claimant) was present, and represented by Dean L. Christianson. Paul Huck represented New Haven Care Center, Inc. (Employer) and Missouri Nursing Home Insurance Trust (Insurer). Assistant Attorney General Jennifer Sommers represented the Second Injury Fund. Mr. Christianson requested a fee in the amount of 25 %. The parties submitted post-trial briefs.

The parties entered into the following stipulations: Claimant sustained accidental injuries arising out of and in the course of employment on or about May 27, 2004 in Franklin County, Missouri; Claimant was an employee of Employer; venue is proper in Franklin County, Missouri; Employer received proper notice of injury; the claim was filed in a timely manner; Claimant earned an average weekly wage of $\ 732.20, resulting in applicable rate of compensation of $\ 488.13 for total disability and $\ 347.05 for permanent partial disability (PPD). Employer paid $\ 6,032.29 in temporary total disability (TTD) benefits (May 28, 2004 to August 2, 2004, and September 23, 2004 to October 11, 2004), and $\ 17,748.68 in temporary partial disability (TPD) benefits (August 3, 2004 to September 22, 2004, and October 18, 2004 to January 18, 2006). Employer paid medical expenses totaling $\ 74,197.92. If permanent total disability benefits are awarded, the benefits would begin January 19, 2006.

The issues presented for resolution by this hearing are as follows:

1. Extent of permanent disability, whether partial or total
2. Extent of Second Injury Fund liability, if any
3. Employer/Insurer's responsibility for future medical treatment, if any
4. Employer/Insurer's responsibility for past medical expenses, if any
5. Dependency

Only evidence necessary to support this award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. Certain exhibits offered into evidence may contain handwritten marking, underlining and/or highlighting on portions of the documents. Any such marking on the exhibits were present at the time they were offered by the parties. Further, any such notes, marking and/or highlights had no impact on any ruling in this case.

Claimant offered the following exhibits into evidence:

A. Deposition of Dr. Volarich

B. Deposition of Dr. Stillings

C. Deposition of J. Stephen Dolan

D. Medical records of St. John's Mercy Hospital

E. Medical records of Patient's First Health Care Orthopedic Division

F. Medical records of Dr. Benecke

G. Medical records of Dr. Williams

H. Medical records of Dr. Merenda

I. Medical records of Dr. Bridwell

J. Medical records of Dr. Dunteman

K. Medical records of Dr. Davis

L. Medical records of Dr. Davis

M. Certified records of Division of Workers' Compensation

N. Records from England and Company

O. Medical records of Dr. Davis

P. Medical bills and summary

Q. Prescription receipts

R. Marriage license

Exhibits A through R were received into evidence without objection.

Employer offered the following exhibits into evidence:

1. Deposition of Dr. Cantrell
2. Deposition of James England
3. Medical records of Dr. Blatt
4. Records of New Haven Care Center, Inc.
5. Claimant's Health Questionnaire dated 1997 - 2002
6. Work release slips issued by Dr. Merenda, Dr. Bridwell, Dr. Williams and Dr. Dunteman
7. HealthSouth Functional Capacity Evaluation
8. Deposition Exhibits A through D from deposition of Dr. Stillings
9. Missouri Department of Conservation hunting/fishing license purchases $5 / 22 / 05-4 / 6 / 07$

Exhibits 1 through 9 were received into evidence without objection.

The Second Injury Fund offered Exhibit Roman Numeral I which was received into evidence without objection.

Claimant testified at trial that he is fifty-one years old, five feet and nine inches tall, and 238 pounds in weight. He previously weighed around 280 pounds at the time of the injury, though he has lost weight due to a lack of appetite. He currently takes several medications. He takes Protonix for stomach problems, Paxil for depression, Percocet for pain and Imitrex for migraine headaches. All of his medications are prescribed by his family physician, Dr. Davis.

Claimant is not currently married, though he was married at the time the injury occurred to Lori Null. He identified his marriage license, which was admitted into evidence as Exhibit R. He did not have any children with Lori, though she did have two children from a previous marriage. He has not adopted either of them. He does have one son from a previous marriage, though that son was not dependent upon him at the time this injury occurred.

Claimant received a high school diploma after receiving "average" grades during his schooling. Afterwards he received training as a welder, a nurse's aide and a certified medical technician. He does not know how to type with a typewriter or a computer. Nor does he own a computer or know how to operate one. He has not been in the military, though he did apply for entry into