Joe Johnson v. Prime, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-070485

Employee: Joe Johnson

Employer: Prime, Inc.

Insurer: Evergreen National Indemnity Co.

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: June 8, 1999

Place and County of Accident: Greene County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the associate administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the associate administrative law judge dated October 4, 2004, as corrected October 6, 2004. The corrected award and decision of Associate Administrative Law Judge L. Timothy Wilson, issued October 6, 2004, is attached and incorporated by this reference.

The Commission further approves and affirms the associate 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 $\underline{18^{\text {th }}}$ day of February 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

VACANT

Member

John J. Hickey, 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: June 8, 1999
5. State location where accident occurred or occupational disease was contracted: Greene 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: While performing his work duties as an over-the-road truck driver, severe winds caused the flat bed trailer to flip over on to the side of the road.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: low back, thoracic and cervical spine, right and left shoulders
14. Nature and extent of any permanent disability: permanent total disability
15. Compensation paid to-date for temporary disability:
16. Value necessary medical aid paid to date by employer/insurer?
17. Value necessary medical aid not furnished by employer/insurer?
18. Employee's average weekly wages:
19. Weekly compensation rate: $\$ 562.67 / 294.73$
20. Method wages computation: award

1. Amount of compensation payable:

The employer and insurer are ordered to provide the employee with future medical care consistent with the opinions of Drs. Bouvette and Belz.

Permanent total disability benefits from Employer beginning July 1, 2002, for Claimant's lifetime at the rate of $\ 562.67 per week

1. Second Injury Fund liability: No

The claim against the Second Injury Fund is denied.

TOTAL:

$\ 13,209.03

1. Future requirements awarded: See above

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:

Paul Reichert

Employee: Joe Johnson

Injury No: 99-070485

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Prime, Inc.

Additional Party Second Injury Fund

Insurer: Evergreen National Indemnity Co.

Checked by: LTW/mp

The above-referenced workers' compensation claim was heard before the undersigned Associate Administrative Law

Judge on January 29, 2004. The parties, however, asked that a decision not immediately issue in order to afford them an opportunity to explore settlement and resolution of the case following issuance of an informal opinion. Subsequently, on or about July 27, 2004, the parties submitted a letter requesting that a final award and decision issue be made. Thusly, the parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about July 29, 2004.

The claimant appeared personally and through his attorney Paul Reichert, Esq. The employer appeared through its attorney Brian K. McBrearty, Esq. The Second Injury Fund appeared through its attorney Cara Harris, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about June 8, 1999, Prime, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Evergreen National Indemnity Co.

(2) On the alleged injury date of June 8, 1999, Joe Johnson was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about June 8, 1999, the claimant sustained an accident which arose out of and in the course and scope of employment.

(4) The above-referenced employment and accident occurred in the State of Texas. However, the employee's contract of employment was made in Missouri; and the parties agree to venue lying in Springfield (Greene County), Missouri. Venue is proper.

(5) The claimant notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident, the claimant's average weekly wage was sufficient to allow minimally a compensation rate of $\ 500.18 for temporary total disability compensation and a compensation rate of $\ 294.73 for permanent partial disability compensation. (The parties agreed that the temporary total disability compensation rate remains an issue, as the employee contends that the applicable temporary total disability compensation rate should be at the statutory maximum -- \$562.67.)

(8) Temporary disability benefits have been provided to the claimant in the amount of $\ 76,175.12, representing 142 weeks of benefits, and payable for the periods of July 6, 1999, through March 26, 2002.

(9) The employer and insurer have provided medical treatment to the employee, having paid benefits in the amount of $\ 148,124.62.

The parties further stipulated that the issues to be resolved by hearing include:

(1) Whether the claimant has sustained injuries that will require future or additional medical care in order to cure and relieve the claimant of the effects of the injuries?

(2) What is the applicable compensation rate for payment of temporary total disability compensation?

(3) Whether the claimant is entitled to temporary disability benefits? (The claimant seeks temporary total disability compensation for the period of March 27, 2002, to July 1, 2002, while alleging an applicable compensation rate of $\ 562.67. Also, in light of the claimant alleging a higher compensation rate, the claimant seeks additional temporary total disability compensation for the period of temporary disability previously paid by the ER/I.)

(4) Whether the claimant sustained any permanent disability as a consequence of the alleged accident; and, if so, the nature and extent of the disability?

(5) Whether the Second Injury Fund is liable for payment of certain permanent disability compensation? (This issue shall remain open, as the parties agreed to defer the

The claimant testified at the hearings in support of his claim. Also, the claimant presented at the hearings of this case the testimony of his wife, Lillie Johnson. In addition, the claimant offered for admission the following exhibits:

Exhibit A Medical Report of E. Alexander L’Heureux, M.D.

Exhibit B Federal Drug Testing Company \& Control Form

Exhibit C DOT Breath Alcohol Testing Form

Exhibit D Business Card of Lanita Cole, R.N. (Concentra Managed Care, Inc.)

Exhibit E Medical Report of Norbert T. Belz, M.D.

Exhibit F ... Information Sheet Re: Beginning Back Stabilization - Level 1 Exercises (3 pages)

Exhibit G Information Sheet Re: Exercises for Shoulder Disorders \& Helpful Hints for Healthy Shoulders

Exhibit H 1999 Tax Statement (Form 1099-MISC)

Exhibit K Walgreens Prescription Profile for Joe Johnson

The exhibits were received and admitted into evidence.

The employer and insurer did not present any witnesses at the hearing of this case. The employer and insurer, however, offered for admission the following exhibits:

Exhibit 1 Medical Records from Michael C. Chabot, D.O.

Exhibit 2 Medical Records from Oklahoma Spine Sports \& Rehabilitation

Exhibit 3 Medical Records from Gil Mobley, M.D.

Exhibit 4 Medical Records from John W. Ellis, M.D.

Exhibit 5 ..... Medical Records from The Neuroscience Institute At Mercy

Exhibit 6 ..... Medical Report from Christopher M. Bouvette, M.D. (July 20, 2000)

Exhibit 7 ..... Medical Report from Christopher M. Bouvette, M.D. (July 1, 2002)

Exhibit 8 Key Functional Assessment from Christopher M. Bouvette, M.D. (July 1, 2002)

Exhibit 9 Surveillance Video

Exhibit 10 Surveillance Video

Exhibit 11 CV of Christopher M. Bouvette, M.D.

Exhibit 12 Deposition of Norbert Belz, M.D.

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official notice of the documents contained in the Legal File. These documents include: Notice of Hearing; Receipt \& Notice of Termination of Compensation (filed April 1, 2002); Temporary or Partial Award; Receipt and Notice of Termination of Compensation; Report of Injury (filed May 9, 2001); Notice of Hearing (Hardship Setting); Letter Dated March 13, 2001; Motion for Temporary Order for Medical Treatment and Compensation; Receipt and Notice of Termination of Compensation (filed July 17, 2000); Answer of Second Injury Fund to Claim for Compensation; Answer of Employer / Insurer to Claim for Compensation; Claim for Compensation; and Report of Injury.

Also, subsequent to the hearing, the claimant, by counsel, moved to supplement the record with wage information provided to the employee from the employer. This information, which is entitled "Prime, Inc. Operator Settlements Final" and consisting of 7 pages, was received on or about July 27, 2004. The employer and insurer did not respond specifically to this request, and it is not part of a stipulation regarding admission of evidence. These documents, therefore, are received, but not admitted into evidence. (The cover letter, together with the Motion to Supplement the Record, together with the employer and insurer's letters of reply, having been received, are included in the Legal File, but are not admitted into evidence. And these documents are not included in the consideration of this decision.)

The claimant, Joe Johnson, is 54