Troy Schroer v. City of Fulton

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-068337

Employee: Troy Schroer

Employer: City of Fulton

Insurer: Missouri Intergovernmental Risk Management

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 June 26, 2015. The award and decision of Administrative Law Judge Vicky Ruth, issued June 26, 2015, 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 $20^{\text {th }}$ day of January 2016.

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: September 1, 2009.
5. State location where accident occurred or occupational disease was contracted: Callaway County, Missouri.
6. Was above employee in the employ of above employer at the time of the 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: As claimant was climbing out of a manhole, he slipped and hit his head on the rim of the manhole.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: body as a whole referable to the head.
14. Nature and extent of any permanent disability: permanent total disability due to the last injury alone.
15. Compensation paid to-date for temporary disability: $\ 9,469.83.
16. Value necessary medical aid paid to date by employer/insurer? $\ 22,544.16.
17. Value necessary medical aid not furnished by employer/insurer? (See Award).
18. Employee's average weekly wages: $\ 705.20.

1. Weekly compensation rate: $\$ 422.97 / \ 470.13.
2. Method of wages computation: By agreement.

1. Amount of compensation payable from employer:

Permanent total disability benefits of $\ 470.13 from January 21, 2010, and ongoing for claimant's lifetime, subject to review and modification as provided by law.

1. Second Injury Fund liability: None.
2. Future medical awarded: Yes.

Said payments to begin immediately and to be payable and 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: Robert Hines.

Employee: Troy Schroer

Injury No. 09-068337

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: City of Fulton

Additional Party: Second Injury Fund

Insurer: Missouri Intergovernmental Risk Management

Hearing Date: May 19, 2015

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On May 19, 2015, Troy Schroer (the claimant), the City of Fulton (the employer), Missouri Intergovernmental Risk Management (the insurer), and the Second Injury Fund appeared in Jefferson City, Missouri, for a final award hearing. Claimant was represented by attorney Robert Hines. The employer/insurer was represented by attorney Susan Turner. The Second Injury Fund was represented by attorney Maggie Ahrens. Claimant testified in person at the hearing and also by deposition. Dr. Eli Shuter, Dr. A. E. Daniel, Gary Weimholt, James England, and Dr. Wayne Stillings testified by deposition. The parties submitted briefs on or about June 12, 2015, and the record closed at that time.

The parties stipulated to the following:

1. On or about September 1, 2009, Troy Schroer (the claimant) was an employee of the City of Fulton (the employer) when he sustained an injury by accident to his body as a whole referable to the head. This accident occurred while claimant was in the course and scope of his employment with employer.
2. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.
3. The employer's liability for workers' compensation was insured by Missouri Intergovernmental Risk Management.
4. The Missouri Division of Workers' Compensation has jurisdiction and venue in Callaway County is proper. For trial purposes, venue is also proper in Jefferson City, Missouri.
5. Notice is not an issue.
6. Claimant filed a Claim for Compensation within the time prescribed by law.
7. Claimant's average weekly wage is $\ 705.20, yielding a weekly compensation rate of $\ 422.97 for permanent partial disability benefits and $\ 470.13 for permanent total disability benefits.
8. Medical aid was provided in the amount of $\ 22,544.16.

1. Temporary total disability was provided in the amount of $\ 9,469.83.
2. If the employer/insurer is found liable for permanent total disability benefits, the employer/insurer and the employee agree that benefits should begin on January 21, 2010.

The parties agreed that the following issues were to be resolved in this proceeding:

1. Medical causation.
2. Whether claimant is permanently and totally disabled, or
3. Nature and extent of permanent partial disability.
4. Liability, if any, of the Second Injury Fund.
5. Unpaid medical bills.
6. Future medical treatment.

On behalf of Claimant, the following exhibits were entered into evidence without objection:

Exhibit 1 Deposition of Dr. Eli Shuter.

Exhibit 2 Curriculum Vitae of Dr. Shuter.

Exhibit 3 Medical report of Dr. Shuter (5/15/2011).

Exhibit 4 Deposition of Dr. A. E. Daniel.

Exhibit 5 Curriculum Vitae of Dr. Daniel.

Exhibit 6 Report by Dr. Daniel of psychiatric evaluation of claimant.

Exhibit 7 Deposition of Gary Weimholt.

Exhibit 8 Curriculum Vitae of Gary Weimholt.

Exhibit 9 Report by Gary Weimholt of Vocational Rehabilitation Assessment Evaluation of claimant.

Exhibit 10 Claimant's Request for Records dated 2/23/10 (Callaway Community Hospital).

Exhibit 11 Claimant's Request for Records dated 2/09/2015 (Mid-Missouri Neurology).

Exhibit 12 Claimant's Request for Records dated 5/19/10 (Neurology, Inc).

Exhibit 13 Medical records from Neurology, Inc.

Exhibit 14 Medical records from Boone Hospital Center.

Exhibit 15 Medical billings and records from Mid-Missouri Neurosurgery.

Exhibit 16 Medical records from Fulton Family Health Associates.

Exhibit 17 Medical records from Fulton Family Health Associates.

Exhibit 18 Medical records from Boone Hospital Center.

Exhibit 19 Claimant's Request for Records dated 2/27/12 (Barnes-Jewish West County Hospital).

Exhibit 20 Unpaid medical bills.

On behalf of the employer/insurer, the following exhibits were admitted into the record without objection:

Exhibit A Independent Medical Report of Dr. John Selhorst (12/10/2010).

Exhibit B Deposition of James England.

Exhibit C Deposition of Dr. Wayne Stillings.

On behalf of the Second Injury Fund, the following exhibit was admitted into evidence:

Exhibit I Deposition of Troy Schroer, the claimant.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence. All depositions were admitted subject to any objections contained therein. Unless noted otherwise, the objections are overruled.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant was born on November 16, 1972. At the time of the hearing, he was 42 years of age. Claimant lives in Fulton, Missouri, with his wife.
2. Claimant has a high school education.
3. Claimant worked for the City of Fulton (the employer or the City) for 19 years. His last position held was as a Senior Construction Inspector. This job involved inspecting all new construction for the City.
4. On September 1, 2009, claimant was inspecting sewer mains for a new fire station. In order to perform this task, claimant climbed down to the bottom of a manhole, approximately 14 feet, inspected it, and climbed back up the wall. He put one hand on the ladder to come out of the manhole and his feet were on the ladder. As he pulled himself out, the cuff of his pants caught on the ladder and caused him to slip and fall back and hit the back of his head on the metal ring at the back of the manhole. Claimant "saw a flash and stars," but was able to hold on to the ladder to avoid dropping 14 feet. He testified at trial that he believes he did not lose consciousness, because if he had done so, he would have fallen. He did not know how much time passed before he heard a friend yell for him. Claimant then climbed out of the manhole. He put the cover on the manhole and started to drive back to the City. The claimant became sick while driving and felt nauseated, had cold sweats, and his left side became numb. He called his boss and was told to go to the Callaway Community Hospital. He was admitted to the hospital and kept overnight; a CT scan of the brain was performed during that visit.
5. The next day claimant was transferred to Boone Hospital Center Intensive Care, where he

saw a neurosurgeon, Dr. Terry Ryan. Dr. Ryan diagnosed "closed head injury, history of cavernous malformation." Dr. Ryan continued to treat claimant after he was released from Boone Hospital Center. Dr. Ryan took claimant off work after the injury on September 1, 2009. He treated him with Ultram and Topamax for his headaches. Dr. Ryan ordered CT scans of claimant's head in September 2009 and October 2009. Dr. Ryan then referred claimant for speech therapy and physical therapy. Dr. Ryan also referred claimant to Dr. Allyn Sher, a neurologist, for his headaches.

1. Claimant saw Dr. Sher on December 7, 2009, for an evaluation of headache management. ${ }^{1}$ The doctor's impression was (1) post-concussive/post-traumatic syndrome, and (2) history of pontine cavernous malformation. The doctor put claimant on a trial of amitriptyline and Imitrex. At the visit on January 21, 2010, Dr. Sher indicated he would taper claimant off the amitriptyline. He also put him on a trial of Inderal LA 80 for headache prevention and noted that claimant should start a trial of Treximet and or should continue Imitrex for headaches. ${ }^{2}$
2. On February 17, 2010, Dr. Sher opined claimant was permanently and totally disabled due to the primary injury. ${ }^{3}$ Dr. Sher noted "when Mr. Schroer gets headaches, they are quite debilitating and along with the headaches comes nausea,