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Schwartz v. Shamrock Dairy Queen6/6/2000
Curtis Schwartz, employee, appeals the award of the Labor and Industrial Relations Commission (Commission) awarding 400 weeks for permanent partial disability for his scheduled and unscheduled losses pursuant to section 287.190 RSMo 1994 (all further references shall be to RSMo 1994 unless otherwise noted).
Employee contends that Commission erred in concluding that it was limited to awarding employee 400 weeks for permanent partial disability given the multiple and severe injuries sustained by employee, which include both scheduled and unscheduled losses pursuant to section 287.190. We affirm.
The facts are undisputed. Labor and Industrial Relations Commission's interpretation and application of the law are not binding on the Court of Appeals and fall within the Court's realm of independent review and correction. Williams v. City of Ava, 982 S.W.2d 307, 310 (Mo.App.S.D. 1998).
At the time of his injury, employee was a seventeen year old high school student employed part-time by Shamrock Dairy Queen, earning $4.35 per hour. At most, he worked eight hours in any given day. In addition, he worked part-time as a bagger/cart control/stocker for National Food Stores. On December 8, 1992, employee was injured in the course and scope of his employment with Dairy Queen when an unidentified assailant entered Dairy Queen, announced a robbery and shot employee. As a result, employee suffered a gunshot wound, a thoracic spine injury resulting in paraplegia, and numerous other injuries.
Employee was initially treated at Christian Hospital Northeast. He was subsequently transferred to St. John's Mercy Medical Center for rehabilitation under the care of Martin B. Wice, M.D. Dr. Wice determined employee to be at maximum medical improvement on December 8, 1993.
Prior to that time, On July 15, 1993, employee returned to work on a part-time basis for National Foods and recalls making $5.00 per hour. He continued to work for National Foods until Schnucks Markets bought the store in 1995, at which time Schnucks hired him. He earned $8.86 per hour until April 1996 and as of August 21, 1998, he was earning $10.75 per hour. His duties included working in the office of the corporate headquarters monitoring store alarms, providing support for the stores, and filling in for vacationing employees.
Employee finished high school in the fall of 1993 and began attending Southern Illinois University at Edwardsville. As of August 21, 1998, he was pursuing a degree in elementary education, with an anticipated graduation date in December 1998. He continues to reside with his parents, whose home was modified at the expense of the insurer to accommodate his disability. Employee drives a vehicle, which he obtained in 1993. The cost of the vehicle was shared equally between employee and insurer. The insurer paid for the modifications to the vehicle.
On August 21, 1998, an administrative law judge (ALJ) conducted a hearing on employee's claim for worker 's compensation . At the hearing, Dr Lichtenfeld and Dr. Wice testified as to the significance and severity of employee's injuries. Based on the medical history obtained from employee, his examination of employee, and a review of medical records, Dr. Lichtenfeld diagnosed that as a result of and in addition to the gunshot wound, employee suffered from:
1. T6 complete paraplegia
2. Neurogenic bladder with recurrent urinary tract infections
3. Neurogenic bowel
4. T6-7 posterior element destruction with comminuted fracture of the right pedicle of T6 and fragmentation of the lamina and spinous process of T6 and T7, as well as portion of bony fragments not
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