Paul Kist v. Mississippi Lime Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-063133

Employee: Paul J. Kist

Employer: Mississippi Lime Company (Settled)

Insurer: Federal Insurance Company (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 December 12, 2012. The award and decision of Administrative Law Judge Gary L. Robbins, issued December 12, 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 $12^{\text {th }}$ 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:

1. Are any benefits awarded herein? Yes, in Injury Number 99-063133.
2. Was the injury or occupational disease compensable under Chapter 287? Yes, in both cases.
3. Was there an accident or incident of occupational disease under the Law? Yes, in both cases.
4. Date of accident or onset of occupational disease? March 18, 1999 in Injury Number 99063133 and July 8, 2000 in Injury Number 00-178495.
5. State location where accident occurred or occupational disease contracted: Ste. Genevieve County in both cases.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes, in both cases.
7. Did employer receive proper notice? Yes, in both cases.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes, in both cases.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: Mark E. Moreland.

On August 13, 2012, the employee, Paul J. Kist, appeared in person and with his attorney, Mark E. Moreland for hearings for final awards. At the request of the parties the record was left open until September 11, 2012. Injury Number 99-063133 and Injury Number 00-178495 were consolidated for purposes of trial. The employer-insurer was not present at the trial as they had already settled their cases with the employee. Assistant Attorney General Gregg N. Johnson represented the Second Injury Fund. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Mississippi Lime Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Federal Insurance Company.
2. On March 18, 1999, Paul J. Kist was an employee of Mississippi Lime Company and was working under the Workers' Compensation Act.
3. On March 18, 1999, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 700.00. His rate for temporary total and permanent total disability is $\ 466.69 per week. His rate for permanent partial disability is $\ 294.73 per week.
7. The employee's injury was medically causally related to the accident or occupational disease.
8. The employer-insurer paid $\ 89,570.00 in medical aid.
9. The employer-insurer paid $\ 22,116.53 in temporary disability benefits.
10. The employee has no claim for previously incurred medical bills.
11. The employee has no claim for mileage.
12. The employee has no claim for future medical care.
13. The employee had no claim for any temporary disability benefits.
14. The employee has no claim for permanent partial or permanent total disability as to the employer-insurer.

1. Mississippi Lime Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Federal Insurance Company.
2. On July 8, 2000, Paul J. Kist was an employee of Mississippi Lime Company and was working under the Workers' Compensation Act.
3. On July 8, 2000, the employee sustained an accident arising out of and in the course of his employment.

1. The employer had notice of the employee's accident.
2. The employee's claim was filed within the time allowed by law.
3. The employee's average weekly wage is $\ 700.00. His rate for temporary total and permanent total disability is $\ 466.69 per week. His rate for permanent partial disability is $\ 314.26 per week.
4. The employer-insurer paid $\ 0 in medical aid.
5. The employer-insurer paid $\ 0 in temporary disability benefits.
6. The employee has no claim for previously incurred medical bills.
7. The employee has no claim for mileage.
8. The employee has no claim for future medical care.
9. The employee had no claim for any temporary disability benefits.
10. The employee has no claim for permanent partial or permanent total disability as to the employer-insurer.

1. Liability of the Second Injury Fund for either permanent partial or permanent total disability.

1. Medical causation.
2. Liability of the Second Injury Fund for permanent partial or permanent total disability.

The following exhibits were offered and admitted into evidence:

Employees Exhibits:

A. Deposition of Thomas F. Musich, M.D.

B. Deposition of Gary Weimholt.

C. Stipulation for Compromise Settlement in Injury Number 78-18772.

D. Medical records from Ste. Genevieve County Memorial Hospital/Briccio Cadiz, M.D.

E. Medical records from Ste. Genevieve County Memorial Hospital.

F. Medical records from Microsurgery and Brain Research Institute/ Paul H. Young, M.D.

G. Medical records of Faisal J. Albanna, M.D.

H. Medical record of H. Lattinville, M.D.

I. Medical records from St. Anthony's Medical Center.

J. Medical records from Tesson Heights Orthopaedic \& Arthroscopic, P.C./R. Peter Mirkin, M.D.

K. Medical and billing records of Charles A. Wetherington, M.D.

L. Medical records from The Caring Corner, Inc.

M. Medical records of Richard S. Gahn, M.D.

N. Medical records of Steven Granberg, M.D.

O. Medical records from Metro Imaging.

P. Medical records from South County Anesthesia.

Q. Medical records from Metropolitan Neurology, Ltd. /R.A. Head, M.D.

R. Medical records from Cardinal Neurosurgery \& Spine, Inc. /Daniel L. Kitchens, M.D.

S. Medical records from Jefferson Memorial Hospital.

T. Medical records from Vista Imaging of Jefferson County.

U. Deposition of Robert J. Bernardi, M.D.

V. Stipulations for Compromise Settlement in Injury Numbers 99-063133 and 00-178495.

Second Injury Fund Exhibits:

I. Deposition of Ravi Yadava, D.O.

II. Medical report of David B. Robson, M.D.

The employee was the only witness to personally testify at trial. All other evidence was received in the form of written records, medical records or deposition testimony. Employee's counsel filed written suggestions with the Court. The Second Injury Fund chose not to file any suggestions with the Court.

Mr. Kist, the employee, was 69 years at the time of the trail. He is married and has three adult children. He graduated from high school in 1961, and never attended any college or vocational classes. He worked at Mississippi Lime Company for most of his adult life. He worked there from 1963-2000. He began as a laborer and worked through other jobs due to his increasing union seniority and the need to move to less strenuous positions due to his injuries and physical problems. He moved from a laborer to an iron worker to maintenance, to an electrician and finally last worked as a crawler operator. He testified that the maintenance job was better for him as it was on the ground and he did not have to climb as much. He said he moved to an electrician job as he did not have to do as much lifting. Mr. Kist testified that his last job was as a crawler operator and he took that position as it was a sit down job. He testified that this progression of jobs took place from 1978 to 1999. He indicated that he continued to have back problems during his working career that progressively got worse with additional injuries. Mr. Kist testi