Johnathon Bernard v. Paris Ready Mix and Precast

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-040541

Employee: Johnathon Bernand

Employer: Paris Ready Mix and Precast

Insurer: Acuity A Mutual 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 June 2, 2016. The award and decision of Administrative Law Judge Hannelore D. Fischer, issued June 2, 2016, 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 $\qquad 4^{\text {th }} \qquad$ day of January 2017.

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: June 5, 2009
5. State location where accident occurred or occupational disease was contracted: Monroe 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: See Award
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 foot
14. Nature and extent of any permanent disability: Permanent and total disability
15. Compensation paid to-date for temporary disability: $\ 10,666.67
16. Value necessary medical aid paid to date by employer/insurer? $\ 25,572.61

1. Value necessary medical aid not furnished by employer/insurer? - 0 -
2. Employee's average weekly wages: $\ 486.00
3. Weekly compensation rate: $\ 324.00 for all benefits
4. Method wages computation: By agreement

1. Amount of compensation payable: Permanent and total disability as of January 15, 2010 ( 332 weeks through May 27, 2016 or $\ 107,568.00 less a credit of $\ 653.66 or $\ 106,914.34 )
2. Second Injury Fund liability: No
3. Future Requirements Awarded: Ongoing PTD payments

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. The compensation awarded to 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: Scott Wilson.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on April 5, 2016. Memoranda were filed by April 22, 2016.

The parties stipulated that on or about June 5, 2009, the claimant, Johnathon Bernand, was in the employment of Paris Ready Mix and Precast (Paris Ready Mix). Mr. Bernand sustained an injury by accident; the accident arose out of and in the course of employment. The employer was operating under the provisions of Missouri's workers' compensation law; workers' compensation liability was insured by Acuity A Mutual Insurance Company. The employer had timely notice of the injury. A claim for compensation was timely filed. Mr. Bernand's average weekly wage was $\ 486.00, resulting in a compensation rate of $\ 324.00 a week for all benefits. Temporary disability benefits have been paid to the claimant to date in the amount of $\ 10,666.67, paid from June 6, 2009, through January 15, 2010. Medical aid has been provided in the amount of $\ 25,572.61.

The issues to be resolved by hearing include 1) the nature and extent of permanent disability, including the date of maximum medical improvement in the event of an award of permanent total disability benefits, and 2) the liability of the Second Injury Fund.

The parties stipulated to credits due the employer in the amount of $\ 553.66 as the result of an overpayment of temporary total disability benefits, and $\ 100.00 as the result of a fee charged for a missed doctor's appointment.

The claimant, Johnathon Bernand, lives in Moberly and has spent most of his life in Randolph County, Missouri. Mr. Bernand was employed by Paris Ready Mix when, on June 5, 2009, he was changing a tire and wheel on a bobcat when either the tire or the pry bar he was holding hit his right foot and caused him to fall backwards onto a steel frame. Mr. Bernand reported immediate pain in his right foot and his back. Mr. Bernand received immediate medical treatment and was treated for his right foot injury by Dr. Turnbaugh. Mr. Bernand understood the diagnosis

of his right foot injury to be comminuted fractures of the distal phalanges of the second through the fifth toes of his right foot. Dr. Turnbaugh treated the right foot injury with a cast, a boot, and physical therapy, and eventually referred Mr. Bernand to Dr. Tiede with the University of Missouri Health System for pain management. On September 11, 2009, an MRI performed under Dr. Tiede's direction reflected degenerative disc disease in Mr. Tiede's back as well as a tear in the annulus at the L4-5 level.

Mr. Bernand was then seen by Dr. Krause who ordered physical therapy for the right foot and referred Mr. Bernand to Dr. deGrange for treatment of his low back. Under Dr. deGrange's direction, Mr. Bernand received an epidural steroid injection for the back and physical therapy.

Mr. Bernand was released from treatment with Dr. Krause on December 18, 2009; Mr. Bernand said that he was still wearing a surgical boot at the time of his release and that he still had pain in his foot just as he did at the time of the accident. Prior to his release from treatment with Dr. Krause, Mr. Bernand had a functional capacity exam done; apparently Mr. Bernand was still in a "cam walker" and using crutches at the time of the exam and had trouble maintaining his balance. Mr. Bernand was released from treatment for the back by Dr. deGrange on January 15, 2010 .

Mr. Bernand saw Dr. Turnbaugh again on January 30, 2010, and understood that the bones in his foot were still broken. Mr. Bernand believes that Dr. Turnbaugh referred him to Dr. Trevino for desensitization therapy and pain management; Mr. Bernand believes he had this treatment but is not sure.

Mr. Bernand had no problems with his right foot prior to June 5, 2009.

Mr. Bernand had a low back injury in 1998 when he was injured on the job; Mr. Bernand settled his workers' compensation claim resulting from that injury for ten percent of the body.

Mr. Bernand testified that walking, bending, stooping, and lifting caused him back pain after the 1998 incident and that he missed two or three days of work annually due to low back pain. Prior to 2009, according to Mr. Bernand, he had low back pain once or twice a week; Mr. Bernand took over the counter pain meds for his low back prior to June of 2009. Mr. Bernand testified that bending and squatting and heavy lifting caused him to have back pain prior to 2009.

Currently Mr. Bernand has back pain daily. Mr. Bernand testified that walking is his only form of exercise and that he can only walk 80 to 100 feet before the back pain increases. Mr. Bernand said that he can sit for 15 to 30 minutes before he needs to change positions as the result of back pain. Mr. Bernand also said that his right foot feels frozen and that he has a constant burning pain in his right foot from his toes to the ball of his foot; according to Mr. Bernand standing and walking increase his right foot pain. Mr. Bernand says that he is in his recliner from one to three times a day for a half hour to one and a half hours at a time.

Mr. Bernand completed the $11^{\text {th }}$ grade and does not have his GED. Mr. Bernand testified that he does very little around his house and that he will go out to his brother's shop and talk to him.

Mr. Bernand said that he has not worked or drawn unemployment compensation since June of 2009 .

Mr. Bernand admitted that he posts on Facebook and that he is the sole person who has access to his Facebook account or page. Mr. Bernand testified that he is the administrator of a Facebook account devoted to his wife's swap shop. Mr. Bernand is also the administrator for a Facebook account called the Man Cave Trading Post. Mr. Bernand said that multiple entries on his Facebook pages relating to his woodworking activities are actually references to items his brother has made or refinished and that although the entries reflect that Mr. Bernand made or refinished items such as birdhouses, sleds, and rockers, Mr. Bernand did not actually make or refinish them. Mr. Bernand's Facebook account also contains offers to remove snow, which Mr. Bernand said were actually offers for his brother's snow removal. Mr. Bernand's brother has his own Facebook account or page on which he is active. Mr. Bernand's brother testified that he is the one who does the making and refinishing of woodworking items and he is the person who does snow removal. Mr. Bernand's brother admitted that he has attributed work to Mr. Bernand on Facebook, citing the assembly of an antique glider and the conversion of a baby cradle for which he credited Mr. Bernand for his help in completing the projects.

When asked about a surveillance video taken on April 10, 2015, Mr. Bernand noted that the video was of himself and his brother at Wal-Mart picking out stain for a woodworking project.

Dr. Garth Russell, orthopedic surgeon, testified by deposition that he examined Mr. Bernand on April 14, 2011, as well as on the morning of the deposition, November 13, 2015. Dr. Russell diagnosed a right foot crush injury involving the second, third, and fourth toes as well as complex regional pain syndrome as the result of the June 5, 2009 accident and injury. Dr. Russell opined that Mr. Bernand is not able to compete in the open labor market as the result of the right foot injury and the ensuing complex regional pain syndrome and is permanently and totally disabled. Dr. Russell dated Mr. Bernand's lo