Clinton Hulsey v. Kirberg Roofing
Decision date: March 22, 200530 pages
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FINAL AWARD ALLOWING COMPENSATION <br> (Modifying Award and Decision of Administrative Law Judge)
Injury No.: 00-170217
Employee: Clinton Hulsey
Employer: Kirberg Roofing
Insurer: TIG Premier Insurance Company
Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund
Date of Accident: October 19, 2000
Place and County of Accident: Jefferson County, Missouri
The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (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 administrative law judge, as modified, 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 administrative law judge (ALJ) dated October 6, 2004, as modified. The award and decision of Administrative Law Judge Leslie E.H. Brown, is attached and incorporated by this reference.
The Commission modifies the award of the ALJ to include an award of future medical care. Employer shall provide such care as necessary to cure and relieve employee from the vertigo and headaches, which have been caused by the injury. This care shall be including, but not limited to prescriptions. Section 287.140 RSMo. The Commission finds that the need for this future medical has been established to the satisfaction of the requirements of the law. Tate v. Southwestern Bell, 715 S.W. 2d 326 (Mo. App. E.D. 1986). We find and believe the testimony of Dr. Volarich establishing the medical basis for the need for this additional care. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001).
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 $\qquad 22^{\text {nd }} \qquad$ day of March 2005.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
N O T S ITTING
William F. Ringer, Chairman
Alice A. Bartlett, Member
AWARD
Employee: Clinton Hulsey
Employer: Kirberg Roofing
| Add. Party: | State Treasurer, as Custodian of the Second Injury Fund | COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri |
| Insurer: | TIG Premier Insurance Company c/o Uhlemeyer Services, Inc. | |
| Hearing Date: | 3/8/04 (finally submitted 4/5/04) | Checked by: LEHB:bb (by df) |
| FINDINGS OF FACT AND RULINGS OF LAW | ||
| 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: October 19, 2000 | |
| 5. | State location where accident occurred or occupational disease was contracted: Jefferson County, MO | |
| 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 was working on a ladder and fell off onto the concrete ground. | |
| 12. | Did accident or occupational disease cause death? No Date of death? -- | |
| 13. | Part(s) of body injured by accident or occupational disease: Body as a whole re: head and residuals, cervical spine; right upper extremity at shoulder | |
| 14. | Nature and extent of any permanent disability: Permanent Total Disability | |
| 15. | Compensation paid to-date for temporary disability: $54,596.36 | |
| 16. | Value necessary medical aid paid to date by employer/insurer? $42,203.76 | |
| 17. | Value necessary medical aid not furnished by employer/insurer? --- | |
| 18. | Employee's average weekly wages: Maximum | |
| 19. | Weekly compensation rate: $599.96/$314.26 | |
| 20. | Method wages computation: By agreement of the parties | |
| COMPENSATION PAYABLE | ||
| 21. | Amount of compensation payable: | |
| Unpaid medical expenses: --- | ||
| --- weeks of temporary total disability (or temporary partial disability) | ||
| --- weeks of permanent partial disability from Employer | ||
| --- weeks of disfigurement from Employer |
| At rate of $599.96/week, permanent total disability benefits from Employer beginning July 2, 2002 for Claimant's lifetime | |
| 22. Second Injury Fund liability: | No |
| weeks of permanent partial disability from Second Injury Fund | |
| Uninsured medical/death benefits | |
| Permanent total disability benefits from Second Injury Fund: | |
| weekly differential () payable by SIF for weeks beginning | |
| and, thereafter, for Claimant's lifetime | |
| TOTAL: PTD AT RATE OF $599.96/WK. BEGINNING ON JULY 2, 2002 FOR LIFE. | |
| 23. Future requirements awarded: | --- |
| Said payments to begin as of date of this Award 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: | |
| Daniel McMichael, Attorney for Claimant | |
| FINDINGS OF FACT and RULINGS OF LAW: | |
| Employee: | Clinton Hulsey |
| Injury No: 00-170217 | |
| Before the DIVISION OF WORKERS' COMPENSATION | |
| Department of Labor and Industrial Relations of Missouri | |
| Jefferson City, Missouri | |
| Employer: | Kirberg Roofing |
| Add. Party: | State Treasurer, as Custodian of the Second Injury Fund |
| Insurer: | TIG Premier Insurance Company c/o Uhlemeyer Services, Inc. |
| Checked by: LEHB:bb (by df) | |
| This is a hearing in Injury No. 00-170217. The claimant, Clinton Hulsey, appeared in person and by counsel, Attorney Daniel McMichael. The employer/insurer, Kirberg Roofing//TIG Premier Insurance Company c/o Uhlemeyer Services Incorporated, appeared by and through counsel, Attorney Robert Hinson. The Second Injury Fund appeared by and through Assistant Attorney General Laura Wagener.The parties entered into certain stipulations, and agreements as to the complex issues to be presented in this hearing.Memorandums of Law were filed by the parties. | |
| STIPULATIONS: | |
| On or about October 19, 2000: | a. the claimant while in the employment of Kirberg Roofing sustained an injury by |
accident arising out of and in the course of his employment occurring in Jefferson County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was insured by TIG Premier Insurance Company c/o Uhlemeyer Services Incorporated; d. the employee's average weekly wage was at the maximum, the rate being $\ 599.96 over $\ 314.26.
e. The employer had notice of the injury. f. A Claim for Compensation was filed within the time prescribed by law. g. Temporary total disability benefits have been paid to the employee in the total amount of $\ 54,596.36; those payments represent 91 weeks of benefits covering a period from October 19, 2000 through July 1, 2002. h. Medical aid has been provided in the amount of $\ 42,203.76.
ISSUES:
- Nature and extent of permanent disability - whether partial or total
- Liability of the Second Injury Fund
EXHIBITS:
The following exhibits were admitted into evidence:
Claimant's Exhibits:
No. A: Medical records of Clint Hulsey, including: St. Anthony's Hospital; Dr. Smith; Dr. Kitchens; Dr. Goldring; Dr. Emanuel; Dr. Benecke; Kitty Nabholtz, who is a case manager for the defendant insurance company; VA Hospital; Missouri Baptist CT scan, Pro Rehab medical records; Dr. Benz; VA Hospital records from 2001 to December, 2002; and Dr. McKinney.
No. B: Deposition transcript of Dr. Volarich with attachments of his report and curriculum vitae (Admitted subject to the objections therein)
No. C: Deposition transcript of Dr. Samuel Bernstein with attachment of his report (Admitted subject to the objections therein)
Employer/Insurer's Exhibits:
No. 1: Deposition transcript of Dr. John McKinney taken on behalf of the employer/insurer on August 28, 2003 (Admitted subject to the objections therein)
No. 2: Deposition transcript of Dr. James Emanuel taken on behalf of the employer/insurer on August 11, 2003 (Admitted subject to the objections therein)
No. 3: Deposition transcript of James England (Admitted subject to the objections therein)
Second Injury Fund:
No exhibits.
SUMMARY OF THE EVIDENCE $[\underline{1]}$
Clinton Hulsey, the claimant, testified that he was born on 9/29/1940. My schooling is through the eighth grade, started the ninth grade and quit three months into it because I was having a hard time with school itself, and I needed a job so I went to work, Hulsey stated. I did not get a GED, he said. I can read though there's lot of words I don't understand so I skip over them; when I'm reading the newspaper I can read the headlines and when I get to words that I don't know then I just skip over them and go on to the next word, the claimant said. The claimant was queried if in preparation for the hearing he read Dr. Volarich's report as instructed, and Hulsey responded that he was not able to read it without assistance. I had to get my wife to help me, because there's a lot of words in there I couldn't pronounce or I didn't know the meaning of, he said. With math, I can do basic math, adding, subtracting, the claimant stated. When we get into any other type of math then I have problems, he said, I don't understand math. I cannot do long division and multiplication that well, the claimant said. Hulsey agreed that at one time he had his own roofing business, and that there was a certain amount of bookwork associated with having your own business. My wife did the bookwork until she got sick and then I hired a secretary to take care of the rest of it and he did it all, Hulsey explained, make out the contracts, typed them and everything. Usually my secretary, or my wife made out the checks and I usually just signed them, he said. Hulsey stated that he can not type. He was asked if he knew anything about using a computer. No, I have no idea
about computers, the claimant replied, I don't operate a computer. Hulsey agreed that in preparation for the hearing today he wanted to look at what was included in an application at Lowes Hardware Store just to have some idea of what might be involved in working there. When I went there they did not have a paper application for me to look at, the claimant said, they said I had to use the computer setup in the entry way where you go in, that's how you fill out your application, you start there. I was not able to call it up myself, Hulsey stated, I sat down and typed -- tried to put my name in and then it asked other questions that I had no idea what I was talking about, so I just quit. The claimant agreed that if it came to looking something up on the Internet or looking up something in some kind of an index on a computer he would have to learn how to do that because he does not know how to do that now.
The last two or three months prior to the October 19, 2000 accident, we were working anywhere from 50 to 60 hours a week, Hulsey testified. I worked on the roofing repair crew, the claimant said, so we would go out to different buildings and we would repair the roof, which included scratching gravel back and sometimes we'd have to tear out a section and we usually used an axe or a hatchet to tear out sections
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