Ottavio Tarpeo v. New World Pasta

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 08-122569

Employee: Ottavio Tarpeo

Employer: New World Pasta

Insurer: New Hampshire Insurance Company

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 17, 2014. The award and decision of Administrative Law Judge John K. Ottenad, issued September 17, 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 $15^{\text {th }}$ day of January 2015.

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: May 27, 2008
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 worked as a pressman for Employer and injured his right and left knees as a result of the extensive, repetitive stair climbing he performed as a part of his job for Employer, operating the presses for over 35 years.
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 Knee and Left Knee
14. Nature and extent of any permanent disability: 50 % of the Right Knee and 55 % of the Left Knee, plus 15 % multiplicity load factor
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 0.00

Employee: Ottavio Tarpeo Injury No.: 08-122569

1. Value necessary medical aid not furnished by employer/insurer? $\ 137,212.74
2. Employee's average weekly wages: $\ 830.21
3. Weekly compensation rate: $\ 553.47 for TTD/ $\ 389.04 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

140 5/7 weeks of temporary total disability (06/03/2009 to 02/13/2012) \77,881.13

193.2 weeks of permanent partial disability \ 75,162.52

1. Second Injury Fund liability:

Second Injury Fund Claim denied $\ 0.00

TOTAL: $\mathbf{\$ 1 5 3 , 0 4 3 . 6 5}$

1. Future requirements awarded: Future medical care, including but not limited to, yearly follow-up visits with a physician that performs knee replacement surgeries, as well as any other care and treatment that physician, or any other authorized referral physician, would determine is needed for Claimant's bilateral knees to cure and relieve Claimant of the effects of his bilateral knee occupational disease 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: Kurt C. Hoener.

On April 24, 2014, the employee, Ottavio Tarpeo, appeared in person and by his attorney, Mr. Kurt C. Hoener, for a hearing for a final award on his claim against the employer, New World Pasta, its insurer, New Hampshire Insurance Company C/O F.A. Richard \& Associates, and the Second Injury Fund. The employer, New World Pasta, and its insurer, New Hampshire Insurance Company C/O F.A. Richard \& Associates, were represented at the hearing by their attorney, Mr. Robert N. Hendershot. The Second Injury Fund was represented at the hearing by Assistant Attorney General Kristin M. Frazier.

Along with this Claim [Injury Number 08-122569, with a date of injury of May 27, 2008, alleging injury to the right and left knees], Claimant also tried his other open companion claim at the same time. Injury Number 09-063651, with an alleged date of injury of March 20, 2009, alleges injury to the left ankle. Separate awards have been issued for each of these cases.

To allow the parties time to obtain evidence on the appropriate wage rate and rates of compensation for this case, the record was left open for a period of time not to exceed 30 days from the date of the start of the hearing. On May 7, 2014, the same parties referenced above appeared and entered stipulations into the record regarding the appropriate average weekly wage and rates of compensation for this case. They were, then, given the balance of the 30-day period to work on submitting their briefs or proposed awards in this matter. Although we did not go back on the record or take any further evidence in this matter after May 7, 2014, the record was, then, finally closed on May 24, 2014 and the briefs were submitted by the parties by June 13, 2014, pursuant to the agreement of the parties.

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 May 27, 2008, Ottavio Tarpeo (Claimant) allegedly sustained an occupational disease.

2) Claimant was an employee of New World Pasta (Employer).

3) Venue is proper in the City of St. Louis.

4) The Claim was filed within the time prescribed by the law.

5) At the relevant time, Claimant earned an average weekly wage of $\ 830.21, resulting in applicable rates of compensation of $\ 553.47 for total disability benefits and $\ 389.04 for permanent partial disability (PPD) benefits.

6) Employer has not paid any benefits to date.

1) Did Claimant sustain an occupational disease?

2) Did the occupational disease arise out of and in the course of Claimant's employment for Employer?

3) Are Claimant's injuries and continuing complaints, as well as any resultant disability, medically causally connected to his alleged occupational disease at work leading up to May 27, 2008?

4) Did Claimant provide Employer with proper notice of the injury under the statute?

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

6) Is Claimant entitled to future medical care on account of this work injury?

7) Is Claimant entitled to the payment of temporary total disability benefits for a period of time to be determined?

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

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

The following exhibits were admitted into evidence:

A. Certified medical treatment records of Midwest Health Professionals, P.C.

B. Certified medical treatment records of Midwest Health Professionals, P.C.

C. Certified medical treatment records of Dr. Saad Khan

D. Certified medical treatment records of Dr. Saad Khan

E. Certified medical treatment records of Signature Health Services, Inc.

F. Medical bills of Signature Health Services, Inc.

G. Certified medical treatment records of Tesson Heights Orthopaedic \& Arthroscopic Associates, P.C.

H. Medical bills of Tesson Heights Orthopaedics

I. Certified medical treatment records of Dr. Steven Stahle

J. Certified medical bills of Dr. Steven Stahle

K. Certified medical treatment records of U.S. Center for Sports Medicine

L. Medical bills of Professional Athletic Orthoped

M. Certified medical treatment records of U.S. Center for Sports Medicine

N. Certified medical bills of U.S. Center for Sports Medicine

O. Certified medical treatment records of Advanced Ambulatory Surgical Care

P. Certified medical bills of Advanced Ambulatory Surgical Care

Q. Certified medical treatment records of Des Peres Hospital

R. Certified medical bills of Des Peres Hospital

S. Certified medical treatment records of PRORehab, P.C.

T. Medical bills of PRORehab, P.C.

U. Certified medical treatment records of Watson Imaging Center

V. Certified medical treatment records of Watson Imaging Center

W. Certified medical treatment records of St. Anthony's Medical Center

X. Certified medical treatment records of Metropolitan Orthopedics, LTD

Y. Certified medical bills of Metropolitan Orthopedics, LTD

Z. Medical report of Dr. Bruce Schlafly dated November 29, 2011

AA. Deposition of Dr. Bruce Schlafly, with attachments, dated October 11, 2012

BB. Vocational report of Mr. James England dated March 7, 2012

CC. Deposition of Mr. James England, with attachments, dated September 27, 2012

DD. Objections sustained—Not admitted into evidence in this case

EE. Objections sustained-Not admitted into evidence in this case

1. Deposition of Dr. Richard Rende, with attachments, dated October 16, 2012
2. Withdrawn by Employer/Insurer prior to admission
3. Withdrawn by Employer/Insurer prior to admission
4. Records regarding a May 30, 1994 left knee work injury
5. Employer Response to Employee Request for Family or Medical Leave dated June 11, 2008

1. Claimant's short term disability application with Employer dated April 28, 2009
2. Claimant's Nissan Forklift Knowledge Evaluation (test) dated February 7, 2008
3. Computer notes of Earleen Ehlers and John McGrath from Employer
4. Claimant's time records from Employer from March 2009
5. Claimant's FMLA time records from Employer from 2007-2009
6. Employer's Short Goods Press Monitoring Log

I. Excerpt of Claimant's deposition from January 2014, pages 21-23

Notes: 1) Unless otherwise specifically noted below, any objections contained in the deposition exhibits are overruled and the testimony is fully admitted into evidence in this case.

2) Any stray marks or handwritten comments contained on any of the exhibits were present on those exhibits at the time they were admitted into evidence, and no other marks have been made since their admission into evidence on April 24,