Craig Wingbermuehle v. City of St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-084670

Employee: Craig Wingbermuehle

Employer: City of St. Louis (Settled)

Insurer: Self-Insured (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 August 28, 2013. The award and decision of Administrative Law Judge Joseph E. Denigan, issued August 28, 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 $11^{\text {th }}$ day of December 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

STATE OF MISSOURI

DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS

DIVISION OF WORKERS' COMPENSATION

3315 WEST TRUMAN BLVD, P.O. BOX 58, JEFFERSON CITY, MO 65102 (573) 751-4231

AUGUST 28, 2013

10-084670

Scan Copy

142

Injury No : 10-084670

Injury Date : 09-16-2010

Insurance No. : 10062B429289

*Employee : CRAIG WINGBERMUEHLE

08855254 8 3324 NORMA COURT

ST LOUIS, MO 63139

#Asst Atty General: ATTY GENERAL CHRIS KOSTER

815 OLIVE ST

STE 200

ST LOUIS, MO 63101

*Employee Attorney: JAMES J SIEVERS

8131 MANCHESTER RD

BRENTWOOD, MO 63144

party provided. The Certificate of Service for this document is maintained in the Division's records.

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review

of the decision of the Administrative Law Judge may be made to the Missouri Labor and

Industrial Relations Commission within twenty (20) days of the above date. If you wish to

request a review by the Commission, application may be made by completing an Application for

Review Form (MOIC-2567). The Application for Review should be sent directly to the

Commission at the following address:

Labor and Industrial Relations Commission

PO Box 599

Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20)

days of the above date, the enclosed award becomes final and no appeal may be made to the

Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or

Commission.

DIVISION OF WORKERS' COMPENSATION

W0-142 (09-12)

AWARD ON HEARING

TE

Please visit our website at www.labor.mo.gov/DWC

Employee: Craig Wingbermuehle

Injury No.: 10-084670

Dependents: N/A

Employer: City of St. Louis (settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured (settled)

Hearing Date: May 29, 2013

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

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: September 16, 2010 (stipulated)
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 sustained injury while installing drywall, taping, sanding, and painting at apartment complexes.
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
14. Nature and extent of any permanent disability: 30 % PPD of left knee; 37.32 weeks PPD from SIF.
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\ 418.58 PPD
4. Method wages computation: Stipulation.

1. Amount of compensation payable:

48 weeks PPD from Employer

(settled)

1. Second Injury Fund liability: Yes

weeks PPD from the SIF

$\ 15,621.41

TOTAL:

$\ 15,621.41

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 attorney for necessary legal services rendered to the claimant:

James J. Sievers

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Craig Wingbermuehle

Dependents: N/A

Employer: City of St. Louis (settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured (settled)

Hearing Date: May 29, 2013

Injury No.: 10-084670

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

This case involves a stipulated left knee injury resulting to Claimant with the reported accident date of September 16, 2010 with allegations of synergistic disability against the Second Injury Fund ("SIF"). Employer and its insurer previously settled their risk of liability. Both parties are represented by counsel. The single issue for trial is the liability of the SIF. The parties tried the case on some stipulated facts.

The parties stipulated Claimant sustained a current PPD of 30% of the left knee as a result of the reported injury and that Claimant's right knee injury pre-existed the reported injury herein and has a 30% percent PPD.

Claimant has been a firefighter for 21½ years. He works out of a firehouse on large fire trucks with crew. He continues to work but does not work alone. He has increasing problems that he experiences on a daily basis. He has particular problems climbing. His job requires him to climb conventional ladders and automated high-rising ladders. He has problems crawling, carrying tools and equipment (on ladders), and climbing large apparatus. His basic gear and boots represent an additional load on his legs.

Claimant offered the narrative report of Dr. David Volarich, admitted as Exhibit A. Dr. Volarich examined Claimant in September 2011 and reviewed the medical record. He made physical findings of the primary and pre-existing injuries that form the basis of PPD assignment in each injury. Dr. Volarich noted marked bilateral patellofemoral crepitus and patellar mistracking. He also noted bilateral quadriceps and hamstring weakness, more so on the left. Calves were strong bilaterally. The left knee is painful. Dr. Volarich also reviewed radiological studies consistent with these physical findings.

Dr. Volarich rated the left knee at 50 percent PPD (for the current PPD) and the right knee at 45 percent (pre-existing) PPD. He stated Claimant's pre-existing disability combines with the disability caused by the primary injury to create an increased overall disability that is greater than the simple sum of the disabilities. This opinion evidence is probative and unrebutted.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 10-084670

The stipulated PPD for the current disability on the reported (primary) injury is 48 weeks. The stipulated PPD for the pre-existing PPD item equates to 48 weeks. These stipulations are easily supported by the medical history and Dr. Volarich's findings and opinions.

Synergy is the concept in which the current PPD and the pre-existing PPD are found, in combination, to create a "substantially greater" disability, or an increased overall disability, and for which the employer should not be held liable. The significance of PPD assignments is predicated by the statutory minimum thresholds for injuries to the extremities and injuries to the body as a whole. Section 287.220.1 RSMo (2000). Here, Claimant's primary injury and prior disability, while stipulated, are found to synergize resulting in additional PPD which is recognized as common opposing limb synergy. The synergistic bilateral knee disability represents serious carrying, lifting, stability and climbing deficits. The primary and pre-existing disabilities are found to be hindrances and obstacles to employment.

While Claimant is still working, he experiences ongoing pain and weakness in both knees. It may be reasonably inferred that Claimant's work with crewmembers permits Claimant to obtain relief as necessary and avoid some of the more difficult tasks requiring greater leg strength and exertion. The opinion evidence and other evidence suggest Claimant's combined PPD equates to increased overall PPD of one-third of a body, or thirty-three and one-third percent of a body (133.32 weeks). Thus, after the pre-existing PPD plus the current PPD are deducted from the combined disability, the synergistic effect results in an additional 37.32 weeks of PPD liability against the SIF.

Accordingly, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have sustained an additional 37.32 weeks PPD as a result of the combination between the primary injury and the synergistic pre-existing PPD, for which the SIF is responsible.

Date: 8/25/13

I certify that on 8/25/13 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service, upon each party is retained with the exception of the Division's case file.

By: 1. Hock

WCC-32-R1 (6-81)

By: 2. Hock

Date: 8/25/13

I have received a copy of the foregoing award from the parties to the case. A complete record of the method of delivery and date of service, upon each party is retained with the exception of the Division's case file.

By: 3. Hock

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