Gary Grossenbacher v. Swisher Mower & Machine Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-063095

Employee: Gary Grossenbacher

Employer: Swisher Mower \& Machine Company (Settled)

Insurer: Zurich Insurance Company of North America (Settled)

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 May 29, 2013. The award and decision of Administrative Law Judge Emily S. Fowler, issued May 29, 2013, 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 $19^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Gary Grossenbacher

Injury No. 10-063095

Dependents: N/A

Employer: Swisher Mower \& Machine Company

Insurer: Zurich Insurance Company of North America

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

Hearing Date: April 17, 2013

Checked by: ESF/pd

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: July 21, 2010
5. State location where accident occurred or occupational disease was contracted: Warrensburg, Johnson 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: Employee was lifting log splitter tanks weighing 75 pounds from the overhead paint line when his back popped and he experienced a sudden onset of low back pain.
12. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Low back, body as a whole
2. Nature and extent of any permanent disability: 13.75 percent permanent partial disability of the low back, body as a whole.
3. Compensation paid to date for temporary disability: $\ 691
4. Value necessary medical aid paid to date by employer/insurer? \$28,235.00
5. Value necessary medical aid not furnished by employer/insurer? N/A
6. Employee's average weekly wages: $\ 480
7. Weekly compensation rate: $\$ 320 / \ 320
8. Method wages computation: By stipulation.

1. Amount of compensation payable: Employee previously settled his claim with the Employer for 13.75 percent permanent partial disability to the low back, body as a whole
2. Second Injury Liability: Weekly differential payable by the Second Injury Fund of $\ 0 for $56-1 / 7 weeks beginning March 18, 2011, and thereafter at \ 320 per week for Claimant's lifetime.
3. Future requirements awarded: Said payments to begin as of 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 percent of all payments hereunder in favor of Scott W. Mach, Employee's attorney, for necessary legal services rendered.

Employee: Gary Grossenbacher Injury No. 10-063095 Dependents: N/A Employer: Swisher Mower \& Machine Company Insurer: Zurich Insurance Company of North America Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund Hearing Date: April 17, 2013 Checked by: ESF/pd

On April 17, 2013, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Gary Grossenbacher, appeared in person and with counsel, Scott W. Mach. The Second Injury Fund appeared through Assistant Attorney General, Laura Van Fleet. 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 Missouri has jurisdiction to hear this claim under the Missouri Workers’ Compensation Act; 2) That on or about July 21, 2010 Swisher Mower and Machine Company was an employer operating under and subject to the provisions of Missouri’s workers’ compensation law and that its liability under the Workers’ Compensation Act was fully insured by Zurich Insurance of North America; 3) That Employee was its employee and working subject to the law in Warrensburg, Johnson County, Missouri; 4) that Employee sustained an injury by accident arising out of and in the course and scope of his employment with Employer on July 21, 2010; 5) That Employee notified the employer of his alleged injuries as required by law and his claim was filed within the time allowed by law; 6) That Employee’s average weekly wage was $\ 480, rendering a compensation rate of $\ 320 for permanent partial disability or permanent total disability; and 7) That the claim between Employee and Employer was settled for 13.75 permanent partial disability to the low back, body as a whole.

The issues to be resolved by this hearing are as follows:

1) Whether the Employee's prior disabilities were a hindrance or obstacle to his ability to maintain employment or to be re-employed should he become unemployed;

2) Whether he sustained an accident arising out of and in the course and scope of his employment;

3) Whether he sustained any disability as a result of the July 21, 2010 work injury; and

4) Whether the Second Injury Fund is liable to the Employee for any disability compensation, either permanent partial or permanent total.

The Employee, Gary Grossenbacher, testified on his own behalf and offered the following exhibits, all of which were admitted into evidence without objection:

Claimant's Exhibit A - Stipulation for Compromise Settlement (Injury No. 10-063095)

Claimant's Exhibit B - Deposition of Dr. William Hopkins

Claimant's Exhibit C - Deposition of Mary Titterington

Claimant's Exhibit D - Rating report of Dr. William Hopkins

Claimant's Exhibit E - Vocational Report of Mary Titterington

Claimant's Exhibit F - Records from Department of Veterans Affairs

Claimant's Exhibit G - Medical records from Metro Spine \& Rehab/Dr. Joseph Galate

Claimant's Exhibit H - Miscellaneous medical records

Claimant's Exhibit I - Medical records from Premier Spine Care/Dr. John Ciccarelli

Claimant's Exhibit J - Medical records of Select Physical Therapy

Claimant's Exhibit K - Medical records from Western Missouri Medical Center

Claimant's Exhibit L - Medical records from USAF Hospital

The Second Injury Fund offered the following exhibits which were admitted into evidence without objection:

Second Injury Fund Exhibit No. 1 - Deposition of Claimant

Second Injury Fund Exhibit No. 2 - Deposition of Dr. Alexander Bailey

Based on the above exhibits and the testimony of Claimant, I make the following findings:

Gary Grossenbacher was born on September 2, 1948 and was 64 years old at the time of the hearing.

The highest level of formal education completed by him was an Associate of Arts degree from Muskegon Community College in Computer Science. During the 1960's, he attended machinist classes at a skills training center. He has also had multiple on-the-job training classes as needed throughout the years.

Mr. Grossenbacher attended Muskegon High School in Muskegon, Michigan, through the tenth grade. While in the military he attended Rudyard High School and completed his high school diploma.

Mr. Grossenbacher testified that he lived in a ranch style home in a subdivision and had lived in the one-level home with a basement since 1989.

Considering his employment history, Mr. Grossenbacher testified that he had some odd jobs that were mainly factory work prior to entering the Air Force in 1971. He was in the Air Force working in civil engineering doing heavy labor such as paving, and ground and maintenance work until his discharge in January of 1985. At that time, he went to computer programming school. It is important to note that the computer programming school would not currently benefit him as his abilities as a computer programmer are totally out of date.

In 1986 Mr. Grossenbacher worked for 7-8 months for Pinkerton Security Guards in Warrensburg and Sedalia, Missouri. In 1987 he began a 13-year stint at Payless Cashways, which he likened to a large Lowes store. He performed heavy work and had help from coworkers who helped him lift heavy boxes and loads.

Mr. Grossenbacher began work at Swisher Mower in January 2002 and worked there until March 18, 2011 when he was forced into retirement because of the back pain he was experiencing. He has not worked since March 18, 2011. He described his job at Swisher as factory work on an overhead conveyor line.

Regarding Mr. Grossenbacher's injuries, he was first injured in 1966 while playing high school football when he injured his low back. Medical records were not available for that injury, but he had what he described as a fusion surgery in his low back in Michigan. He indicated that he has had periodic problems with his back, especially while in the military. He told his superiors in the military that he had back surgery. He was asked if his back was symptomatic at the time he entered the military. His response was, no, and he was allowed to enter the Air Force. Mr. Grossenbacher experienced low back pain and was treated in the military which caused him to miss work while in the military. He would be put on light duty from time to time after performing heavy work.

Exhibit L is a packet of records from Mr. Grossenbacher's time in the Air Force. The records from January 24, 1980 state, "low back pain after lifting 50 pound weight. Had fusion for disc problems in low back 1966 ... no problem since until present episode." (Exhibit L, Bates number 1).

Again, on January 29, 1980, Exhibit L, states at Bates number 2, "follow up for low back. Discomfort persists. Has low back pain with prolonged standing." At that time, Motrin was prescribed. Mr. Grossenbacher was treated again in 1982 for low back problems while in the military which were described as a low back strain. The military medical records, Exhibit L, Bates number 8 state, "34 year old male with low back pain after exercises to loose (sic) weight 2 weeks ago. Physical therapy. Had fusion on L3-4 in 1966." The same records reflect a discharge summary, "patient reports an 85-90 \% relief of pain." He was instructed not to perform exercise that he could not tolerate. The final record from the military is dated December 29, 1982, which indicates that Mr. Grossenbacher is to resume exercise classes carefully. There

was no tenderness and the neurologic examination was normal.

Mr. Grossenbacher testified that he would have occasional back issues after he began working at Payless Cashways in 1988. He did pass a physical to work at Payless. He