Matthew Held v. City of St. Louis

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-020144

Employee: Matthew Held

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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated September 27, 2013. The award and decision of Administrative Law Judge John K. Ottenad, issued September 27, 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 $10^{\text {th }}$ day of April 2014.

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
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: February 2, 2003
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 was employed as a firefighter for Employer and injured his right ankle (right lower extremity), low back and body as a whole when he was buried under bricks, stone and hot roof material as the porch of a burning house collapsed on 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: Right Ankle, Low Back and Body as a Whole
14. Nature and extent of any permanent disability: Permanent total disability against Employer/Insurer from the injury in this accident
15. Compensation paid to-date for temporary disability: $\ 93,696.68
16. Value necessary medical aid paid to date by employer/insurer? $\ 239,279.74

Employee: Matthew Held Injury No.: 03-020144

1. Value necessary medical aid not furnished by employer/insurer? (alleged) $\ 25,473.47
2. Employee's average weekly wages: $\ 941.92
3. Weekly compensation rate: $\ 627.88 for TTD/\$340.12 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

Past medical bills

$\ 25,400.57

Unpaid/underpaid temporary total disability benefits from 06/01/05-07/21/10

$\ 74,575.16

\$627.88 per week starting 07/22/10, subject to review and modification by law

1. Second Injury Fund liability:

None

$\ 0.00

1. Future requirements awarded: Continued and ongoing weekly benefits, as described above, and future medical care for Claimant's right ankle, low back and psychiatric conditions, including but not limited to chronic pain management, medications (pain and psychological/psychiatric), medication management (doctors' visits), psychotherapy, and any other testing, treatment or evaluation that the treating doctors deem necessary to cure and relieve Claimant of the effects of the February 2, 2003 injury. To prevent the health and recovery of Claimant from being further endangered in this case, Employer is further directed to return Claimant to Dr. Anthony Guarino for ongoing pain management and to Dr. Gregg Bassett for ongoing psychiatric therapy and medications, as well as any other treatment they may deem reasonable and necessary to cure and relieve Claimant of the effects of the February 2, 2003 work injury.

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: Christopher A. Wagner.

On September 27, 2012, the employee, Matthew Held, appeared in person and by his attorney, Mr. Christopher A. Wagner, 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 A. Goeddel. The Second Injury Fund was represented at the hearing by its attorney, Assistant Attorney General Rodney J. Campbell.

To allow the parties time to determine if there would be a further stipulation as to the average weekly wage and rates of compensation in this matter and to also prepare and file their proposed awards or briefs in this matter, the record did not technically close until October 27, 2012. Pursuant to an e-mail, received from the parties on October 5, 2012 and scanned into the Division's file in this matter, the parties agreed on an average weekly wage of $\ 941.92, resulting in appropriate rates of compensation of $\ 627.88 for total disability benefits and $\ 340.12 for permanent partial disability benefits. This additional stipulation was made a part of the record on October 9, 2012. The record was, then, closed on October 27, 2012 and the briefs were submitted by the parties on or before that date.

Along with this Claim [Injury Number 03-020144, with a date of injury of February 2, 2003, alleging injury to the right ankle, low back and body as a whole], Claimant also tried his other open companion claim at the same time. Injury 02-137196, with a date of injury of December 9, 2002, alleges injury to the right elbow. The only issue in that matter was the liability of the Second Injury Fund. At the time of trial, on the record, Claimant voluntarily dismissed his Second Injury Fund Claim in 02-137196, bringing closure to that matter. Separate Orders of Dismissal have been issued for 02-137196 with this Award being issued solely to bring resolution to 03-020144.

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 February 2, 2003, Matthew Held (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 $\ 941.92, resulting in applicable rates of compensation of $\ 627.88 for total disability benefits and $\ 340.12 for permanent partial disability (PPD) benefits.

7) Employer paid temporary total disability (TTD) benefits in the amount of $\ 93,696.68, representing a period of time of 154 weeks at a rate of $\ 608.42.

8) Employer paid medical benefits totaling $\ 239,279.74.

1) On what date did Claimant reach maximum medical improvement from his injury on February 2, 2003?

2) Is Employer responsible for the payment of past medical expenses in an amount to be determined?

3) Is Claimant entitled to future medical care on account of this accidental injury at work on February 2, 2003?

4) Is Claimant entitled to a payment for past total disability benefits for any amount underpaid based on the rate?

5) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

6) What is the liability, if any, of the Second Injury Fund?

The following exhibits were admitted into evidence:

A. Deposition of Dr. Thomas Musich, with attachments, dated March 5, 2012

B. Deposition of Dr. Gregg Bassett, with attachments, dated May 11, 2012

C. Deposition of Ms. Delores Gonzalez, with attachments, dated April 11, 2012

D. Medical treatment records of:

St. Louis University Hospital

Concentra Medical Centers (Dr. Dennis McGraw)

Concentra Medical Centers (physical therapy records)

Orthopedic Specialists (Dr. Joseph Ritchie)

Barnes-Jewish Hospital

Orthopaedic Surgery at Washington University in St. Louis (Dr. Joseph Borrelli)

PRORehab

Dr. Ravi Yadava

Aquatic Fitness, Inc.

West Physical Therapy

Barnes-Jewish West County Hospital (Dr. Anthony Guarino)

Missouri Bone \& Joint Center (Dr. Gary Schmidt)

Neurological \& Electrodiagnostic Institute, Inc. (Dr. Daniel Phillips)

Western Anesthesiology Associates, Incorporated (Dr. Thomas Johans)

Barnes-Jewish West County Hospital (Dr. Bakul Dave)

Aquatic Fitness, Inc.

Kirkwood Diagnostic \& Orthopedic Associates, LLC (Dr. Steven Stahle)

Creve Coeur Surgery Center (Dr. Steven Stahle)

St. Louis Orthopedic Institute, Inc. (Dr. Robert Tucker)

PRORehab (Functional Capacity Evaluation of September 7, 2004)

PRORehab (physical therapy)

The Work Center, Inc. (Functional Capacity Evaluation of December 20, 2004)

Orthopedic Specialists (Dr. Joseph Ritchie)

Aquatic Fitness, Inc.

Surgery Center of Kirkwood dated October 6, 2005 (Dr. Joseph Ritchie)

Surgery Center of Kirkwood dated December 15, 2005 (Dr. Joseph Ritchie)

Aquatic Fitness, Inc.

PRORehab

Pain Treatment Center, Inc. (Dr. John Graham)

Washington University Physicians (Dr. Beverly Field)

Washington University Physicians (Dr. Susan Mackinnon)

Barnes-Jewish Hospital (Dr. Susan Mackinnon)

The Rehabilitation Institute of St. Louis

PRORehab (Functional Capacity Evaluation of March 21, 2011)

E. Medical bills

Washington University Physician Services

Dr. Anthony Guarino and Dr. Beverly Field

Allied Behavioral Consultants, Inc. (Dr. Gregg Bassett)

Washington University Physicians (Dr. Susan Mackinnon)

Barnes-Jewish Hospital

Walgreens

F. Stipulation for Compromise Settlement in Injury Number 02-137196 (Date of Injury of December 9, 2002) between Claimant and Employer

G. Stipulation for Compromise Settlement in Injury Number 98-151362 (Date of Injury of December 6, 1998) between Claimant and Employer

H. Stipulation for Com