Michael Agnew v. AALCO Wrecking Company, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 99-171802

Employee: Michael C. Agnew, deceased

Dependent: Logan Zachary Hartman-Agnew, dependent son

Employer: AALCO Wrecking Company, Inc.

Insurer: Granite State Insurance Company

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 2, 2014. The award and decision of Administrative Law Judge Edwin J. Kohner, issued May 2, 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 $21^{\text {st }}$ day of November 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: March 26, 1999
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: The Employee was working on a roof and fell approximately 25 feet to the ground.
12. Did accident or occupational disease cause death? No Date of death? November 22, 2008
13. Part(s) of body injured by accident or occupational disease: Body as a whole
14. Nature and extent of any permanent disability: Permanent and Total Disability
15. Compensation paid to-date for temporary disability: $\ 286,672.44 (03/27/99 - 11/26/08 - 4 days after date of death)
16. Value necessary medical aid paid to date by employer/insurer: $\ 2,269,197.03

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 844.00
3. Weekly compensation rate: $\$ 562.67 / \ 294.73
4. Method wages computation: By agreement

1. Amount of compensation payable:

Permanent total disability benefits from Employer beginning November 23, 2008, for

Lifetime of deceased employee's dependent son, at a rate of $\ 562.67 per week, with a $\ 321.53 credit to the Employer/Insurer for 4 days overpay (November 23-26, 2008)

Indeterminate

1. Second Injury Fund liability: No

TOTAL:

Indeterminate

1. Future requirements awarded: As above

Said payments to begin November 23, 2008, 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: Steven V. Stenger, Esq.

Employee: Michael C. Agnew, deceased

Injury No.: 99-171802

Dependents: Logan Zachary Hartman-Agnew, born July 23, 1996 Before the

Employer: AALCO Wrecking Company, Inc.

Additional Party: Second Injury Fund

Insurer: Granite State Insurance Company

This workers' compensation case raises several issues arising out of an alleged workrelated injury in which the claimant, a laborer, suffered a severe injury when he fell 25 feet from a roof. At the hearing, the dependents of Michael C. Agnew, the deceased employee, appeared by their attorneys, and the employer and insurer appeared by counsel for a hearing for a Final Award. The parties agreed on certain undisputed facts and identified the issues in dispute. No witnesses testified at the hearing. These undisputed facts and issues, together with the findings of fact and rulings of law, are as follows:

1. On or about March 26, 1999, AALCO Wrecking was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by Granite State Insurance Co. c/o Chartis Claims, Inc.
2. On or about March 26, 1999, Michael C. Agnew was an employee of AALCO Wrecking and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about March 26, 1999, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was sufficient to put his compensation rate for temporary total and permanent total disability at the maximum rate for the date of accident of $\ 562.67, and his rate for permanent partial disability is $\ 294.73.
7. The employee's physical injuries are medically causally related to the work accident occurring on or about March 26, 1999.
8. The employer has furnished $\ 2,269,197.03 in medical aid to the employee.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael C. Agnew, deceased

1. The employer has paid disability benefits from March 27, 1999 through November 26, 2008 for 504 4/7 weeks at a rate of $\ 562.67 (maximum rate for TTD/PTD) for a total of $\ 286,672.40, which included 4 days TTD overpayment (November 23-26, 2008).
2. The parties stipulate Michael C. Agnew died on November 22, 2008.
3. If permanent total disability is awarded to employee, the parties stipulate Logan Zachary Hartman-Agnew, born July 23, 1996, is the sole dependent child of Michael C. Agnew, was the sole dependent child of Michael C. Agnew at all relevant times, and is a minor child as of the February 28, 2014 date of this trial.
4. If permanent total disability is awarded to employee, the parties stipulate Michael C. Agnew married Kristen Fulmer Agnew in August 2006 and they were continuously married until his death on November 22, 2008.
5. If permanent total disability is awarded to employee, permanent total disability payments will begin on November 23, 2008 at a rate of $\ 562.67 per week; with a $\ 321.53 credit to the Employer/Insurer for 4 days overpay (November 23-26, 2008).

1. Whether employee reached maximum medical improvement from the injuries sustained as a result of the March 26, 1999 work injury prior to his death on November 22, 2008?
2. Nature and extent of permanent partial vs. permanent total disability.
3. Reimbursement for unpaid prescription medication expenses. (Exhibit D, Employee's evidence in support of this issue was withdrawn).
4. If employee was rendered permanently totally disabled as a result of the March 26, 1999 work injury,

a) Whether Schoemehl v. Treasurer of State of Missouri and its progeny apply;

b) Whether employee's November 22, 2008 death was related to the work injury;

c) Whether Employer/Insurer are precluded from using Employee's death as a basis for compensation, pursuant to RSMo. §287.020.4;

d) Whether employee has qualified dependent(s) for purposes of Schoemehl (and its progeny) benefits.

1. Whether Employer/Insurer have unreasonably defended this claim, pursuant to RSMo. $\S 287.560$.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Michael C. Agnew, deceased

1. Whether Employee has presented a frivolous claim for benefits on behalf of widow, Kristen Fulmer Agnew, pursuant to RSMo. §287.560.

Court's Exhibit:

I. Joint Statement of Undisputed Facts and Issues for Trial

A. Deposition of Dr. Mark Pelikan, with Exhibits

B. Deposition of Mr. Timothy Lalk, with Exhibits

C. Deposition of Dr. Edwin Wolfgram, with Exhibits

D. (Withdrawn)

E. 10/9/12 correspondence copy to Defense Counsel

F. 10/18/12 correspondence copy to Defense Counsel

G. Itemized expense and attorneys' time billing, related to responding to Defense assertions of cause of death, in violation of RSMo. §287.020.4

H. Medical Records, subdivided A - DD

I. Motion in Limine, Instanter

All exhibits were entered into evidence, with rulings on the objections to be taken with the case. All objections made at the time of depositions were renewed. Employer objected to admissibility of Exhibit C on the basis of hearsay and failure of the medical report to meet the statutory requirements of RSMo. §287. 210.5. All objections are overruled, and the Exhibits are received for whatever evidentiary value they may contribute.

1. Certified record of Division of Workers' Compensation
2. Deposition of Ivra J. Cross
3. Certified Certificate of Death
4. City of St. Peters Police Department, Record
5. Certified records, St. Charles County Medical Examiner's Office
6. Certified records, Francis Howell North
7. Transcript of Records, Logos High School
8. Deposition of Michael Christopher Agnew
9. Marriage Certificate
10. Deposition of Kristin Agnew
11. Deposition of Kathleen Hartman Clark
12. Deposition of Michael W. Agnew (father)
13. Deposition of Donna S. Agnew (mother)
14. Undated note, handwritten
15. Deposition of Dr. Russell Cantrell
16. Deposition of Dr. Wayne Stillings (2/11/2013)
17. Second Deposition of Dr. Wayne Stillings (12/23/2013)

1. Deposition of Donna Abram
2. Records, Mercy Hospital
3. Records, Barnes-Jewish Hospital, inpatient
4. Records, Barnes-Jewish Hospital, outpatient
5. Records, Barnes-Jewish Hospital, pain management
6. Records, Washington University Physicians
7. Records, SSM St. Joseph Hospital West
8. Records, Blessing Hospital
9. Records, The Rehabilitation Institute of St. Louis
10. Records, Dr. Wice
11. Records, Dr. Dave
12. Records, Dr. Field
13. Report of Dr. Tate
14. Report of Dr. Berry
15. Deposition of Dr. Richard Anderson
16. Deposition of Dr. Christina Sadowsky
17. Deposition of Dr. Lawrence Lenke

Employee objected to Exhibits 12, 13, 14, 15-18, and 32-34. All exhibits were entered into evidence, with rulings on the objections to be taken with the case. All objections made at the time of depositions were renewed. Employee objected to the description of Exhibit 14. Experts for both Employee and Employer/Insurer reviewed and relied on the note in forming their opinions. Exhibits 32-34 contain testimony obtained at the request of Employee. All objections are overruled, and the Exhibits are received for whatever evidentiary value they may contribute.

Injury of March 26, 1999

On March 1, 1999, this employer, AALCO Wrecking, hired the employee, Michael C. Agnew, a 22-year-old laborer. On March 26, 1999, while working in St. Charles County, Missouri, Employee sustained a 20+ foot fall through a steel roof gate. He was emergently transferred to St. John's Mercy Medical Center for immediate life-saving treatment. Having sustained massive injuries, he was taken to the operating room "in extremis" after having been resuscita