Martin Sanchez-Rivera v. Jorge Calderon Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-059076

Employee: Martin Sanchez-Rivera

Employer: Jorge Calderon Construction

Insurer: State Farm Insurance

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 February 28, 2017. The award and decision of Administrative Law Judge Emily S. Fowler, issued February 28, 2017, 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 21st day of September 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Martin Sanchez Rivera Injury No. 10-059076

Employer: Jorge Calderon Construction Insurer: State Farm Insurance Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund (Dismissed) Hearing Date: January 20, 2017 Record Closed: February 21, 2017 Checked by: ESF/drl

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: July 16, 2010
5. State location where accident occurred or occupational disease was contracted: Hollister, Taney 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: Employee, while in the course and scope of his employment was approximately 25 feet off the ground framing in a window when he lost his balance and fell landing on his feet causing the injuries to his bilateral lower extremities and back.
12. Did accident or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Martin Sanchez Rivera Injury No. 10-059076

1. Part(s) of body injured by accident or occupational disease: bilateral lower extremities and back.
2. Nature and extent of any permanent disability: Permanent total disability
3. Compensation paid to-date for temporary disability: $\ 23,334.50 with a credit to employer for overpayment of $\ 2,916.90.
4. Value necessary medical aid paid to date by employer/insurer? $\ 257,158.20
5. Value necessary medical aid not furnished by employer/insurer? Employee seeks $\ 4,980.58 for unpaid medical bills.
6. Employee's average weekly wages: $\ 437.50
7. Weekly compensation rate: $\$ 291.68 / \ 291.68
8. Method wages computation: By agreement

1. Amount of compensation payable from employer/insurer to the employee:

Employer shall pay to Employee permanent total disability benefits beginning November 21, 2011 at the rate of $\ 291.68 per week and thereafter for as long as claimant remains permanently and totally disabled. Employer owes past due permanent total disability from the date of November 21, 2011 to the date of hearing for a total of 268.71 weeks at $\ 291.68 totaling $\ 78,377.33. The amount of $\ 2,916.90 in overpayment of temporary total disability benefits shall be subtracted from this amount making the total amount that employer owes to Employee for past due benefits up to the date of the hearing is $\ 75,460.43. Employer shall pay Employee from the date of hearing forward the amount of $\ 291.68 per week for as long as Employee remains permanently and totally disabled.

1. Second Injury Fund liability: None
2. Future requirements awarded: Employer to provide Employee with such future medical care that shall serve to cure and relieve symptoms from which Employee suffers as a result of his work injury of July 16, 2010.

The compensation awarded to Employee shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of Mr. David Curotto, attorney for Employee.

On January 20, 2017, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The Employee, Martin Sanchez Rivera, appeared in person and with counsel, Mr. David Curotto. The Employer and Insurer appeared through counsel, Mr. Brian Fowler. The Employee dismissed the Second Injury Fund claim at hearing.

The parties stipulated to the following: (1) That the Employer, Jorge Calderon Construction, was an employer operating subject to the provisions of the Missouri Workers’ Compensation Law on July 16, 2010, and was fully insured by State Farm Insurance; (2) That Martin Sanchez Rivera was its Employee and was working subject to the law near Hollister, Taney County, Missouri; (3) That Employee sustained an accident arising out of and in the course of his employment; (4) That Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law; (5) That Employee’s average weekly wage was $\ 437.50 resulting in a compensation rate of $\ 291.68 for temporary total, permanent partial, and permanent total disability compensation; (6) That the Employee reached MMI on November 20, 2011; (7) That the Employer has paid temporary total disability compensation in the amount of $\ 23,334.50 with an overpayment of $\ 2,916.90; (8) That the Employer/Insurer paid $\ 257,158.20 as and for medical care; (9) That the Employer agrees to leave medical care open for any and all medical treatment which will cure or relieve Employee of the symptoms he suffers from his work injury of July 16,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Martin Sanchez Rivera

Injury No. 10-059076

2010, specifically for pain medication and psychiatric counseling as well as blood work and quarterly appointments with a liver specialist.

The issues to be resolved by this hearing are as follows:

(1) Whether the Employer must reimburse the Employee for medical expenses totaling $\ 4,980.58; and

(2) Whether the Employee suffered any disability and, if so, the nature and extent of his disability with regard to the Employer's liability.

Employee Martin Sanchez Rivera testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit A July 26, 2016 Deposition of Dr. P. Brent Koprivica with Exhibits

Exhibit B October 19, 2015 Deposition of Michael J. Dreiling with Exhibits

Exhibit D Contract for Legal Services between Claimant \& Attorney David Curotto

Exhibit E Calderon Deposition

Exhibit F Emergency Medical Services Bill, St. John’s Regional Health Center

The Employee offered the following exhibit into evidence over objection from

Employer's counsel, which was admitted into evidence:

Exhibit C 60 Day Letter Containing Dr. P. Brent Koprivica's January 30, 2012

Report; July 11, 2014 Report; May 17, 2015 Report; Michael J. Dreiling's

August 12, 2014 Report with Exhibits

The Employee offered the following exhibit, which was objected to by Employer and not received into evidence based on lack of foundation:

Exhibit G Olathe Medical Care

The Employer did not call any witnesses, but offered the following exhibits into evidence, all of which were admitted without objection:

Exhibit 1 Rating Report of Dr. Jackson 11/7/2011, with CV

Exhibit 2 Rating Report of Dr. Horton 3/11/2012 with CV

Exhibit 3 Report of Dr. Jackson 9/11/2011

Exhibit 4 MMI Report of Dr. Horton 8/18/2011

Based on a review of the above exhibits and the testimony of the witness, I make the following findings and rulings:

Martin Sanchez Rivera, hereinafter referred to as "Employee", was 34 years old at the time of the hearing. He is married with three children living in Olathe, Kansas. Employee testified that he worked for Jorge Calderon Construction on July 16, 2010. He worked as a framer in residential building. His duties included assembling walls, siding, and building soffits. He worked with wood, nailing it together, carrying wood in bundles, using hammers, hammer guns, nail guns. He had been employed for approximately one month prior to this accident. He had, however, worked for the employer on prior occasions for about two years in the past in the construction trade mostly doing framing of houses. On the date of the accident, Employee was constructing a house in Taney County, Missouri, near Hollister, which is near Branson. At that time he was a full-time employee of the employer.

Employee explained that he was approximately 25 feet in the air putting trim on a window on the outside of a home, which was under new construction. He does not exactly remember how he fell, but he was apparently on a ladder and he fell to the left and the ladder went to the right. He landed standing on his feet on a lot of rocks and cement. He could not get up immediately and felt immediate pain after the fall. There was pain in his heels, ankles, tibias, feet, and back. When he tried to stand up, he could not because he felt like his feet were liquefied. When he sat down and lifted his legs up, the lower half of his calves bilaterally were hanging at 90 -degrees from the ankle bone. He was immediately taken to Skaggs Regional Medical Center in Branson where he stated the staff did nothing. He was then transferred to Saint John's Hospital in Springfield, Missouri, by ambulance where they did x-rays, scans, and some surgery. He stated they offered to amputate his legs. He was then sent to KU Medical Center for treatment to his legs, feet, ankles, and back. It is noted in the medical records that his initial treatment at Skaggs Regional Medical Center included a chest CT scan, which was negative, as was his CT scan of the abdomen and pelvis; however, there were identified lumbar fractures. The CT scan of lumbar spine revealed a 10 to 15 percent compression deformity involving the L1 and a 15 to 20 percent compression deformity of L2; however, the fractures were found to be stable. He also suffered comminuted distal tibial fractures bilaterally. The left was basically a pilon fracture. On the right, there was a distal tibial fracture with comminuted articular involvement. There was also increased density of the left calcaneus suggesting the possibility of a compression fracture of the calcaneus without any loss of bony height.

When Employee was transferred to Saint John's Regional Medical Center in Springfield, Missouri, he was hospitalized from July 16, 2010, through July 22, 2010. Dr. Harbach treated Employee's compression fractures