Jerry Tarpley v. Bartch Roofing Company, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 10-064649

**Employee:** Jerry Tarpley

**Employer:** Bartch Roofing Company, Inc. (Settled)

**Insurer:** Missouri Employers' Mutual Insurance Company (Settled)

**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 15, 2019. The award and decision of Administrative Law Judge Suzette Carlisle, issued February 15, 2019, 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 **24th** day of **July 2019**.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Jerry Tarpley

Departments: N/A

Employer: Bartch Roofing Company, Inc. (Settled)

Additional Second Injury Fund

Insurer: Missouri Employers' Mutual Insurance Company (Settled)

Hearing Date: November 13, 2018

Injury No.: 10-064649

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC:SH

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: August 5, 2010
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 junped onto a roof.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right knee
14. Nature and extent of any permanent disability: 36 % permanent partial disability of the right knee (Settled)
15. Compensation paid to-date for temporary disability: $\ 11,594.27
16. Value necessary medical aid paid to date by employer/insurer? $\ 29,220.15

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 1,181.94

1. Weekly compensation rate: 418.58/$787.96

1. Method wages computation: Stipulated by the parties

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

57.60 weeks of permanent partial disability from Employer

$24,110.21

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential ($369.38) payable by SIF for 57.60 weeks beginning January 8, 2013, and, thereafter, $787.96 per week for Claimant's lifetime

**TOTAL:**

**TO BE DETERMINED**

1. Future requirements awarded: N/A

Said payments to begin 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: Attorney Christopher Wagner

Revised Form 21 (3/97)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

**Employee:** Jerry Tarpley

**Dependents:** N/A

**Employer:** Bartch Roofing Company, Inc. (Settled)

**Additional:** Second Injury Fund

**Insurer:** Missouri Employers' Mutual Insurance Company (Settled)

**Injury No.:** 10-064649

**Before the**

**Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

On November 13, 2018, Mr. Jerry Tarpley ("Claimant") appeared in person at the Missouri Division of Workers' Compensation ("DWC"), St. Louis Office before the undersigned administrative law judge, for a hearing for a final award, to determine Second Injury Fund ("SIF") liability for either permanent partial disability ("PPD") or permanent total disability ("PTD") benefits, if any.

Venue is proper in St. Louis and jurisdiction properly lies with the DWC.

At the hearing, attorney Christopher Wagner appeared and represented Claimant. Assistant Attorney Kristin Frazier appeared on behalf of the Treasurer's Office and represented SIF. The record closed after presentation of the evidence. Court Reporter Maria Krawat transcribed the proceedings. The parties submitted memorandums of law by December 5, 2018.

The parties stipulated that on August 5, 2010:

1. Claimant was employed by Bartch Roofing Company, Inc., the Employer, and sustained an accident that arose out of and in the course of his employment in St. Louis County;
2. Claimant and Employer operated under the Missouri Workers' Compensation Law;¹
3. Employer's liability was fully self-insured by Missouri Employers' Mutual²;
4. Employer had proper notice of the injury;
5. A Claim for Compensation was timely filed;
6. Claimant's average weekly wage was 1,181.94, which resulted in a rate of 787.96 for both temporary total disability ("TTD") and permanent total disability ("PTD") benefits; and $418.58 for permanent partial disability benefits ("PPD");
7. Employer paid TTD benefits for 14 5/7 weeks which total $11,594.27³ and
8. Employer paid $29,220.15 in medical benefits.

¹ All references in this award are to the 2008 Revised Statutes of Missouri (Supp.), unless otherwise stated.

² Any reference in this award to the Employer also refers to the Insurer, unless otherwise stated.

³ According to Exhibit 3, the Stipulation for Compromise Settlement which was approved September 3, 2014.

WC-32-R1 (6-81)

Page 3

The parties identified one issue for disposition: What is the nature and extent of SIF liability for either PPD or PTD benefits, if any?

The parties offered the following exhibits which were received into evidence without objection from either side:

Exhibits | Description | Offered | Objection | Admitted |

Delores Gonzalez | Yes | No | Yes |

Dr. Thomas Musich | Yes | No | Yes |

Settlement - Primary Injury

Injury No. 10-064649 | Yes | No | Yes |

Settlement - 1995 claim

Injury No. 95-063045 | Yes | No | Yes |

medical treatment - primary and

preexisting conditions | Yes | No | Yes |

Exhibits | Description | Offered | Objection | Admitted |

Dr. Biel

(May be duplicate) | Yes | No | Yes |

Any marks or highlights contained in the above exhibits were made before they became a part of the record and were not placed there by the undersigned administrative law judge. Any objections contained in the deposition or made during the hearing but not ruled on during the hearing or in this award are now overruled.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

Claimant proved the following facts by a preponderance of the evidence.

At the time of the hearing, Claimant was 67 years old and married with an eleventh grade education and honorable discharge from the Marine Corps. Claimant's work experience includes the following: over the road truck driver, auto mechanic, service station owner, power hacksaw operator, and punch press operator. Claimant completed a four year apprenticeship program for roofers, and he worked as a roofer for about 25 years.

Claimant worked for Employer over 20 years. He started as a journeyman roofer and progressed to foreman because of his willingness to handle a variety of assignments. He repaired roof leaks and roof penetrations and he trained apprentice. As a foreman he assigned jobs to workers, lifted rolls of roofing material by himself up to 100 pounds, and measured the square footage of roofs. Most of his career as a foreman he worked with one helper. During Claimant's last five years of work he delegated heavy lifting to his helper because of problems with his neck and back. Claimant last worked for Employer August 6, 2010, one day after his primary work injury.

In the 1980's Claimant testified he herniated a disc in his low back when he slipped and fell on ice. After conservative treatment failed, Dr. Leubert performed a laminectomy and discharged Claimant with no permanent restrictions. (Medical records are not in evidence) Leading up to August 2010, Claimant continued to have discomfort with movement. To relieve pain, Claimant uses cold and hot packs, Vicodin and relaxation. Several times a year Claimant could not function at work after he took narcotic medication to relieve pain. Flare ups could last up to two months per year.

In January 1995, Claimant injured his right shoulder, neck and right knee when he slipped on an ice covered roof at work. For Claimant's cervical spine, Dr. Chabot prescribed physical therapy, injections and he aspirated the area. No physician imposed restrictions were made. Claimant settled the work-related case for 15% PPD of the cervical spine. The other issues resolved. Ongoing neck complaints include pain and limited range of motion. To relieve discomfort Claimant uses cold packs and takes pain medication and muscle relaxers. Occasionally he missed work due to discomfort.

In 1998, Dr. Chabot surgically repaired Claimant's right knee and returned him to work with no physician imposed restrictions. Leading up to August 2010 Claimant had pain with cold weather. To compensate for right knee pain Claimant kneeled on his left knee.

In 2004, Claimant had a heart attack. Dr. Biel inserted a stent, ordered physical therapy and returned Claimant to work with no permanent restrictions. He missed work for two months. Claimant believes medication slowed his movements. After recovery, Claimant took frequent breaks and was careful not to overexert himself.

WC-32-R1 (b-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

About 2008, Claimant received oxygen, temporarily, at DePaul Emergency Department for breathing problems. Follow up treatment included use of a nebulizer and inhaler twice a day at work, and four times a day when not at work. Claimant was prescribed Spiriva (an inhaler) and albuterol (a breathing treatment) for chronic obstructive pulmonary disease ("COPD"). Claimant used the medications at work to help him breathe better, but he became lethargic. At Claimant's request his physician changed the medication because Claimant could not find electrical power at work to plug in the nebulizer. Claimant switched to an inhaler and nebulizer which he took at work every four to five hours, and when he developed a cold or sinus problems. He does not believe he could have continued to work without the nebulizer and inhaler. He worked without physician imposed restrictions rela