Debra Sanders v. Echlin/Pacer Industries

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 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 dated December 15, 2004. The award and decision of Administrative Law Judge Kevin Dinwiddie, as issued December 15, 2004, is attached and incorporated by this reference.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching his conclusions, including those as to disability and causation. Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522 (Mo. App. E.D. 2002), Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001), Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003).

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 22nd day of July 2005. LABOR AND INDUSTRIAL RELATIONS COMMISSION N O T S IT T I N G William F. Ringer, Chairman Alice A. Bartlett, Member

Attest: John J. Hickey, Member

Secretary Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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 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 dated December 15, 2004. The award and decision of Administrative Law Judge Kevin Dinwiddie, issued December 15, 2004, is attached and incorporated by this reference.

The Commission finds that the ALJ correctly weighed and evaluated the lay and medical testimony in reaching his conclusions, including those as to disability and causation. Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522 (Mo. App. E.D. 2002), Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879 (Mo. App. S.D. 2001), Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240 (Mo. banc 2003).

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 $22^{\text {nd }}$ day of July 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

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: 8/19/94
5. State location where accident occurred or occupational disease was contracted: Franklin 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: symptomatic spondylolisthesis related to lifting at work
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: low back
14. Nature and extent of any permanent disability: permanent and total disability
15. Compensation paid to-date for temporary disability: See Award
16. Value necessary medical aid paid to date by employer/insurer? $\ 90,570.00
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: -----
19. Weekly compensation rate: $\ 258.91 for temporary total disability and permanent total disability
20. Method wages computation: by agreement of the parties

1. Amount of compensation payable:

Employer and Insurer liable for temporary total disability from 8/19/94 trhough 6/25/98 at the rate of $\ 258.91 per week; permanent and total disability

from the Employer and Insurer beginning on 6/26/98 and thereafter, at the rate of $\ 258.91 per week, for so long as the condition of permanent and total disability continues to subsist.

Employer to pay mileage reimbursement for travel to necessary treatment as per award.

Claim as against the Second Injury Fund is denied.

TOTAL: ----

1. Future requirements awarded:

Said payments to begin as of the 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:

Brian L. Harvell

Attorney's lien of Fred Roth compromised in the amount of $\ 2000.00

Employee: Debra Sanders

Injury No: 94-115777 \& 94-115794

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents:

Employer: Echlin/Pacer Industries

Additional Party State Treasurer, as custodian of the Second Injury Fund

Insurer: National Union Fire Insurance Company

Checked by: KD/bb

The claimant, Ms. Debra Sanders, appeared at hearing in person, represented by Attorney Brian Harvell. Attorney Robert Hendershot appeared on behalf of the employer, Echlin/ Pacer Industries, and its insurer, National Union Fire Insurance c/o Gallagher Bassett. Assistant Attorney General Jennifer Sommers appeared on behalf of the State Treasurer, as custodian of the Second Injury Fund. This matter comes on for a final award, following a temporary or partial award previously issued and affirmed on appeal.

Hearings pursuant to a request for a final award were held on Wednesday, October 20, 2003 and again on Thursday, May 20, 2004. At hearing on 10/20/03, Attorney Harvell acknowledged that the issue as to the Attorney's Lien of Attorney Roth had been compromised in the amount of $\ 2,000.00. At hearing on 5/20/04, the employer and the employee stipulated and provided documentation as to a resolution of the issue as to temporary total disability benefits alleged to be due. The parties further acknowledged that any issue as to penalties, additional compensation, costs and attorney's fees with regard to collection of temporary total disability were also compromised by resolution of the TTD issue. Compromise by the parties of the aforementioned issues leaves only the following issues to be resolved at hearing in this matter; nature and extent of permanent disability, liability of the Second Injury Fund; and as to mileage expense. Note that a recitation as to the facts agreed upon, and as to the issues to be addressed, was postponed at the beginning of the hearing as a courtesy so that the testimony of Dr. Bernstein could be taken without delay. It is further the case that counsel for the employee did not note that mileage as an issue when the issues were identified by counsel prior to the taking of the testimony of Ms. Sanders, but counsel for employee did announce, during the course of the hearing, that mileage was an issue, and counsel for the employer and insurer did not object or otherwise suggest a prejudice.

At some point in the proceedings the claimant further raised the issue of commutation, and the issuance of a final award was held in abeyance pending an agreement as to readiness for a hearing as to commutation. By letter dated October 1, 2004, counsel for claimant advised that the request for a hearing on commutation was being withdrawn, and that the parties were ready for a final award.

The claimant objected to the offer of the videotapes marked as Employer and Insurer's Exhibit Nos. 10, 11, 13, and 15. The record was left open for the Employer and Insurer to submit the original tapes corresponding to the duplicates marked as 10,11,13, and 15 . Original videotapes to 11,13 , and 15 were marked and received in evidence without objection as Employer and Insurer's Exhibit Nos. 20, 21, and 22. Employer and Insurer were not able to find the original tape corresponding to the duplicate marked as Employer and Insurer's Exhibit No. 10. The objections of the claimant to Employer and Insurer's Exhibit Nos. 10,11, 13, and 15 are sustained, and those tapes are not admitted. The following exhibits are in evidence:

A. Decision of Labor and Industrial Relations Commission in Injury Numbers 94-115777 \& 94-115794

B. Medical report of Dr. P. Brent Koprivica dated 4/25/02

C. Report of Samuel Bernstein, PhD, dated 8/20/02

D. Compilation of medical records

E. Deposition of Dr. P. Brent Koprivica taken on 10/9/02

F. Curriculum vitae of Samuel Bernstein, PhD

G. Report of Samuel Bernstein, Ph.D., dated 5/28/96

1. Medical records of David B. Robson, M.D.
2. Medical report of. John A. Gragnani, M.D., dated 4/2/96
3. Medical reports of David G. Kennedy, M.D.
4. Deposition of Dr. Marvin Mishkin taken on 12/16/02
5. Deposition of Wayne A, Stillings, M.D., taken on 12/17/02
6. Deposition of Debra Y. Sanders taken on 9/12/94
7. Deposition of Debra Y. Sanders taken on 3/21/00
8. Certified medical records of Urgi-Care (Dr. Bonney)
9. Surveillance report of Ms. Pam Springer for 4/15/98-5/22/98
10. Not admitted
11. Not admitted
12. Surveillance report of Ms. Pam Springer for 6/5/98- 6/6/98
13. Not admitted
14. Surveillance report of Ms. Pam Springer for 7/10/98-8/29/98
15. Not admitted
16. Surveillance report of Matt Morgan for 12/22/02
17. Surveillance videotape for $12 / 22 / 02$
18. Report of Karen Kane dated 4/28/03
19. Curriculum vitae of Karen Kane Thaler

1. Surveillance videotape
2. Surveillance videotape
3. Surveillance videotape
4. Letter from Ms. Springer to Robert Hendershot dated 5/14/04
5. Letter from R