Robert Bell v. St. Charles County

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 10-017735

Employee: Robert Bell

Employer: St. Charles County

Insurer: Self-Insured

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 October 9, 2015. The award and decision of Administrative Law Judge Edwin J. Kohner, issued October 9, 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 $\qquad 17^{\text {th }} \qquad$ day of March 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 6, 2010
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? Self-Insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The claimant, a deputy sheriff, suffered a lumbar spine disc injury when he fell to the ground to avoid gunfire.
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: Low back
14. Nature and extent of any permanent disability: 20 % permanent partial disability to the low back
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: $\ 1,945.06

1. Value necessary medical aid not furnished by employer/insurer: $395.00
2. Employee’s average weekly wages: 844.52
3. Weekly compensation rate: 563.00/$422.97
4. Method wages computation: By agreement

1. Amount of compensation payable:

1. Second Injury Fund liability: No

TOTAL: $43,818.00

1. Future requirements awarded: None

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: Ronald J. Wuebbeling, Esq.

Employee: Robert Bell

Injury No.: 10-017735

Dependents: N/A

Employer: St. Charles County

Additional Party: N/A

Insurer: Self-Insured

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kr

This workers' compensation case raises several issues arising out of an alleged workrelated injury in which the claimant, a deputy sheriff, suffered a lumbar spine disc injury when he fell to the ground to avoid gunfire. The issues for determination are (1) Accident or occupational disease arising out of and in the course of employment, (2) Notice, (3) Medical causation, (4) Liability for Past Medical Expenses, (5) Temporary Disability, and (6) Permanent disability. The evidence compels an award for the claimant for medical expenses, temporary total disability benefits, and permanent partial disability benefits.

At the hearing, the claimant and his wife, Edward Noonan, Daniel J. Cunningham, Bryan Streck, and Tom Koch testified. The claimant offered the following exhibits which were received without objection:

Exhibit 1. Deposition of Dr. Raymond F. Cohen taken August 4, 2015 (subject to the objections contained therein).

Exhibit 1-A Curriculum Vitae of Dr. Raymond F. Cohen.

Exhibit 1-B Medical Rating Report of Dr. Raymond F. Cohen dated June 2, 2014.

Exhibit 1-C Supplemental Medical Report of Dr. Raymond F. Cohen dated July 8, 2015.

Exhibit 2. Medical Records of Barnes-Jewish St. Peters

Exhibit 3. Medical Records of BarnesCare St. Peters

Exhibit 4. Medical Records of Dr. Galileu Cabral/C\&M Medical

Exhibit 5. Medical Records of Dr. Ralph Caraffa/Psychological Network, Inc.

Exhibit 6. Medical Records of Rohen \& Associates

Exhibit 7. Medical Records of Dr. Jyothi Mandava

Exhibit 8. Medical Records of St. Peters Bone \& Joint Surgery

Exhibit 10. Medical Records of St. Joseph Hospital West (3/6/2010 Injury)

Exhibit 12. St. Charles County Employee Injury Forms

Exhibit 13. Medical Records of St. Joseph Hospital West (7/25/2012 Injury)

Exhibit 14. Medical Records of St. Charles Orthopaedic Surgery Associates (7/25/2012 Injury)

Exhibit 15. Medical Records of St. John's Mercy (7/25/2012 Injury)

Exhibit 16. Answer to Claim for Compensation (Injury No. 10-017735)

The following exhibits were offered by claimant and received over Employer's objections:

Exhibit 9. Medical Records of Professional Pain Physicians/South County Anesthesia (objection as to foundation overruled)

Exhibit 11. Medical Records of Dr. Brian Stufflebam (objection as to relevance overruled)

The defense offered the following exhibits which were received without objection:

Exhibit A. Deposition of Dr. Elizabeth F. Pribor taken June 15, 2015 (subject to the objections contained therein).

Exhibit A-1 Curriculum Vitae of Dr. Elizabeth F. Pribor.

Exhibit A-2 Independent Psychiatric Evaluation Report of Dr. Elizabeth F. Pribor dated May 6, 2015.

Exhibit B. Deposition of Dr. Michael C. Chabot taken August 7, 2015 (subject to the objections contained therein).

Exhibit B-1 Curriculum Vitae of Dr. Michael C. Chabot.

Exhibit B-2 Medical Rating Report of Dr. Michael C. Chabot dated July 10, 2015.

Exhibit B-3 Supplemental Medical Report of Dr. Michael C. Chabot dated July 30, 2015.

Exhibit C. Prior Medical Records of Dr. Galileu Cabral/C\&M Medical

Exhibit D. Email correspondence to/from Ed Noonan dated August 21, 2012 and email correspondence from claimant to Ed Noonan dated October 17, 2012.

Exhibit E. Email correspondence from claimant to Ed Noonan dated October 17, 2012 and response dated November 21, 2012.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On March 6, 2010, this then 33-year-old claimant, a County Sheriff's deputy, injured his low back after falling to the ground to avoid gunfire from an armed assailant near the Katy Trail and Upper Bottom Road in St. Charles County, Missouri. On that date, the claimant was on regular patrol near the Katy Trail at 8:49 pm when he observed a 40-50 year old white male, grey hair, approximately 5'10 to 6'0" tall, approximately 180-200 pounds, wearing a camouflage jacket and dark-colored pants. The claimant identified himself as a police officer. After the unidentified subject initially ignored the claimant's inquiry, the subject turned toward the claimant and fired one shot at the claimant. The claimant who was then 30 to 50 feet from the subject and behind his driver side door, then drew his gun, fired two shots, went to the ground and rolled to the rear of his vehicle for cover. The claimant fell to the ground landing on his mace canister which was on his service belt. The claimant advised dispatch of the incident and remained at the scene. An empty cartridge was found at the scene where the shooting took place.

The claimant testified that he felt he had lots of adrenalin, felt pain and knew that something was not right. He remained at the scene with many other officers and supervisors for about an hour and then went by ambulance to Barnes-Jewish St. Peters Hospital.

At Barnes-Jewish St. Peters Hospital, the claimant reported being involved in a shooting (without gunshot wound) and complained of low back pain and high blood pressure after the altercation. The claimant received pain medication and muscle relaxers, some of which caused nausea/vomiting. The claimant reported back pain with a severity of 7 , which was constant and sharp, and radiated into his right thigh. The claimant was diagnosed with low back pain and sciatica and instructed to follow up with his employer's occupational health provider. See Exhibit 2. Both the claimant and Jennifer Bell testified that the emergency room physician recommended a low back MRI.

On March 8, 2010, the claimant went to BarnesCare St. Peters and reported that his symptoms had continued since the injury occurred and that the pain was constant. He stated to the nurse practitioner that he wanted to return to full-duty work. See Exhibit 3. The claimant testified that even though he was still experiencing pain, he wanted to go back to work because that is who he is.

The claimant testified that as a result of the shooting he was required to go to at least three appointments with a psychiatrist. At the April 13, 2010 appointment, Dr. Caraffa noted that the claimant "likes most all supervisors" but a lieutenant questioned one of the claimant's "protégés about having [a] throw-down gun and extra shells" and the protégé told the lieutenant "no way". At the April 20, 2010 appointment, Dr. Caraffa noted how the claimant had issues with a lieutenant who mistrusts him. The claimant also discussed with Dr. Caraffa the differences between working in Jennings (the claimant's prior employer where the claimant was involved in other shootings) and St. Charles. See Exhibit 5.

The claimant testified that he continued to have low back complaints in the months following the accident. On April 9, 2010, he went to his primary care physician who noted that the claimant's back and leg pain were not responding with conservative treatment and he was advised to follow up with an orthopedist. See Exhibit 4. The claimant testified that in order to cope with his back pain that he self-medicated by taking large quantities of over-the-counter pain medications such as Tylenol and Advil. Jennifer Bell testified that the claimant was in significant pain, was very immobile and only left bed for work.

On May 24, 2010, the claimant went to St. Joseph Hospital West complaining of nausea/vomiting and left heel pain, brought about by overcompensating due to back pain and right leg pain. Th