Daniel Mroz v. State of Missouri, Missouri State University

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-080798

Employee: Daniel Mroz

Employer: State of Missouri, Missouri State University (Settled)

Insurer: C A R O (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 April 8, 2014. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued April 8, 2014, 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 $23^{\text {rd }}$ day of October 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Daniel Mroz

Injury No. 09-080798

Dependents: N/A

Employer: State of Missouri, Missouri State University

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

Insurer: CARO

Hearing Date: $1 / 7 / 14$

Checked by: MEH

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: 10/7/09
5. State location where accident occurred or occupational disease was contracted: GREENE COUNTY, MO
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: HELPING LIFT a 100 POUND DRAIN SNAKE ONTO a ROOF.
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: LOWER BACK
14. Nature and extent of any permanent disability: 15 %
15. Compensation paid to-date for temporary disability: $\ 1,224.46
16. Value necessary medical aid paid to date by employer/insurer? $\ 17,077.02

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 632.36
3. Weekly compensation rate: $\ 421.57
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: N/A

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer (PREVIOUSLY SETTLED)

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

1. Second Injury Fund liability: Yes X No Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential $\ 0 payable by SIF for 60 weeks, beginning 5/12/11,

and, $\ 421.57 thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded:

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:

JOE HOSMER

Employee: Daniel Mroz

Injury No. 09-080798

Dependents: N/A

Employer: State of Missouri, Missouri State University

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

Insurer: CARO

Hearing Date: $\quad 1 / 7 / 14$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on January 7, 2014, for a final hearing. The claimant appeared in person represented by Joseph Hosmer. The employer and insurer did not appear as the claim against the employer and insurer was previously settled. The Second Injury Fund appeared represented by Kim Fornier.

The parties stipulated to the following facts: On or about October 7, 2009, The State of Missouri, Missouri State University, was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by CARO. On the alleged injury date of October 7, 2009, Daniel Mroz was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. The employment occurred in Greene County, Missouri. The claimant notified the employer of his injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the accident, the claimant's average weekly wage was $\ 632.36 sufficient to allow a compensation rate of $\ 421.57 for temporary and permanent total disability compensation. Temporary disability benefits have been paid by the employer and insurer to the claimant in the amount of $\ 1,224.46, which represents $26 / 7$ weeks of benefits. The employer and insurer have paid medical benefits in the amount of \$17,077.02.

The parties agree that claimant reached maximum medical improvement on May 12, 2011. The attorney fee being sought is 25 %.

1. Whether the claimant sustained an accident which arose out of the course and scope of his employment.
2. The nature and extent of permanent disabilities.
3. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

Claimant testified at the hearing. I find him to be a credible witness. The claimant is 57 years old. He graduated from high school in 1974. He attended community college but did not finish. He also attended Arizona State University part-time in the late 1970's, but did not finish. In 1985 he returned to Michigan and finished his associate degree in business administration from Oakland Community College. He has also received real estate training but did not obtain his license.

Claimant's past employment includes working in Arizona at Holsom Bread from 19781982 as a foreman. He worked at a newspaper in Los Angeles, California, for about a year and a half in the credit department. He then moved to the east coast and started a construction company in Virginia. He moved to Michigan in 1984 where he finished his associate's degree.

He worked in Michigan at a manufacturing plant where he ran a thread roller. He then started painting and was a self-employed painting contractor for about fifteen years. He then worked at a bakery for about four and a half years and continued to paint on the side. He next worked at Bass Pro as a computer operator for five years. He went to work for Missouri State University in January 2008.

Claimant worked in the maintenance department at Missouri State University. His duties included various activities involved in maintaining the buildings, such as electrical, plumbing, drywall, painting, lighting, flooring, roofing, etc.

On October 7, 2009, he and a plumber were attempting to repair a blocked drain in a building, accessing the drain on the roof. They were using a snake, a metal rope like motorized mechanism. It is put down the drain. This snake weighed approximately one hundred pounds. The claimant was assisting the plumber who was climbing up a ladder pulling the snake. The claimant was below pushing it up. As they were on the roof setting the snake down, the claimant felt a pop on the right side of his back.

The claimant testified that he did not have a lot of pain immediately. They finished and got the snake back to the ground. The claimant then felt a sharp pain in his back and he could hardly stand up. The claimant reported his injury to his foreman the same day.

The employer provided the claimant treatment at Taylor Health Center on campus. He was diagnosed with acute low back strain. Dr. Scott ordered an x-ray, prescribed medication and sent him home. Claimant was off work for one week. When he returned for a follow-up appointment he was prescribed physical therapy and placed on light duty. In November 2009, Dr. Scott felt he needed to be evaluated by a physical medicine or rehabilitation specialist or an orthopedic surgeon.

Claimant was referred to Dr. Ted Lennard, a physical medicine specialist. Dr. Lennard examined him on December 8, 2009. He found the work injury to be the prevailing factor for his current complaints, but noted preexisting spondylolisthesis at L4-5.

He ordered an MRI and sent claimant to work conditioning. The MRI showed no impingement. Dr. Lennard performed facet joint injections in December 2009 and January 2010

Issued by DIVISION OF WORKERS' COMPENSATION Daniel Mroz

Injury No. 09-080798

and imposed a 20 pound lifting restriction. Dr. Lennard released claimant to full duty on

February 15, 2010.

On March 4, 2010, Dr. Lennard found claimant to be at maximum medical improvement.

He rated claimant with a permanent partial disability of 8% of the body as a whole, with 3%

attributed to the work related strain and 5% pre-existing.

The claimant returned to Dr. Lennard on May 3, 2010, with worsening pain. Dr. Lennard

scheduled repeat lumbar facet injections, took the claimant off work and recommended a surgical

consultation.

Dr. Mark Crabtree performed a surgical evaluation on May 11, 2010. He concluded the

claimant was not a surgical candidate and referred the claimant to physical therapy. Claimant

continued to attend physical therapy and follow-up with Dr. Lennard and Dr. Crabtree.

On July 15, 2010, Dr. Lennard ordered a functional capacity evaluation.

On February 11, 2011, Dr. Lennard recommended work conditioning/core exercise

training for four weeks. On March 10, 2011, Dr Lennard returned claimant to full duty work but

did state that the claimant may ultimately require a job change due to his ongoing complaints.

An epidural steroid injection was performed on March 13, 2011. On April 5, 2011, Dr. Lennard

imposed a thirty pound work restriction and avoid prolonged bending. On April 26, 2011, Dr.

Lennard found claimant to be at maximum medical improvement and made the restrictions

permanent.

On May 12, 2011, Dr. Lennard issued another rating report in which he rates claimant

with permanent partial disability of 15% of the body as a whole, 5% attributable to the work

injury and 10% pre-existing.

Claimant had been working on light duty. After his release he returned to work but he

could not perform his duties with his permanent restrictions. He testified that he was eligible for

WC-52-B1 (6-81)

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some continued vacation and family leave. When these ran out, he resigned and last worked on July 1, 2011. He settled his claim with the employer on April 18, 2012, for 15\% of the body as a whole.

Around that time, claimant went to work for Edible Arrangements part-time as a delivery driver. The owners are friends of his. He worked an average of five hours a week, some weeks more. His duties included driving the employer owned delivery van. He would carry the fruit arrangements from the cooler and put them in the van. When he reached the customer's address he would take them out of the