Oscar Graves v. Roadway Express

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-163150

Employee: Oscar Graves

Employer: Roadway Express

Insurer: Old Republic Insurance Company

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

Date of Accident: December 20, 2000

Place and County of Accident: Greene 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 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 April 4, 2005. The award and decision of Associate Administrative Law Judge L. Timothy Wilson, issued April 4, 1005, 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 $\qquad$ 9th day of August 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

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: December 20, 2000
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 lifting a dock plate, Claimant injured his right shoulder.
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: right shoulder
14. Nature and extent of any permanent disability: 40 percent permanent partial disability referable to the right shoulder
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: $\ 686.08
19. Weekly compensation rate: $\$ 457.34 / 314.26$
20. Method wages computation: stipulation

1. Amount of compensation payable:

The employer and insurer are ordered to provide the employee with future medical care, including orthopedic care, as may be causally related to the accident of December 20, 2000.

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

$\ 143.08 weekly differential payable by SIF for 92.8 weeks beginning

September 1, 2001, and, thereafter, $\ 457.34 per week, for Claimant's lifetime

TOTAL:

1. Future requirements awarded: Future medical (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 F. Reichert

Employee: Oscar Graves

Injury No: 00-163150

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Roadway Express

Additional Party Second Injury Fund

Insurer: Old Republic Insurance Company

Checked by: LTW/mp

The above-referenced workers' compensation claim was heard before the undersigned Associate Administrative Law Judge on November 1, 2004.

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

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses at the hearing of this case. The Second Injury Fund, however, offered for admission the following exhibits:

Exhibit I Deposition of Michael Lala, M.A.

Exhibit II Work History Statement

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, which include: Report of Injury; Claim for Compensation; Answer of Employer \& Insurer to Claim for Compensation; and Answer of Second Injury Fund to Claim for Compensation.

The employee, Oscar Graves, is 60 years of age, having been born on October 4, 1994. Heand Betty have been married for more than 41 years and have four grown children. During their marriage he and Betty owned and lived on a farm, consisting of 26 acres, which allowed them to own and breed registered Missouri Fox Trotters. He and his wife, Betty, now reside in Marshfield, Missouri. Additionally, Mr. Graves is now retired from his employment with Roadway Express and is on social security disability.

Mr. Graves attended public schools in Laclede County, Missouri, graduating from high school in 1962. Following high school, Mr. Graves elected not to pursue or obtain any formal vocational education or job training; and he enjoys no college credit. However, he does possess a Missouri Commercial Drivers License (CDL), Class A, with HMPT endorsements.

Initially, upon graduating from high school, Mr. Graves pursued employment as a general laborer, working in construction. Thereafter, Mr. Graves pursued other employment; and in 1966 Mr. Graves obtained employment with Alcoa, working as a maintenance worker. In this employment Mr. Graves performed general laborer work such as mowing the grounds, pouring concrete, using a jackhammer to break up concrete, hauling off debris from the plant, and replacing wooden flooring. This work was physically demanding and required him to continuously stand, walk, lift, and bend. Mr. Graves continued in this employment until 1977, when he left this employment to secure other employment with Roadway Express.

In 1977 Mr. Graves obtained employment with Roadway Express, working primarily as a dockworker and, at times, as a delivery driver. As a dockworker, Mr. Graves was responsible for unloading freight from various trucks and loading freight onto other trucks. In performing this work on the dock, approximately 70 percent of the time Mr. Graves manually, using his physical strength, moved the merchandise and product; and the other 30 percent of the time he used a sit-down forklift. Additionally, Mr. Graves utilized two-wheelers and floor jacks to move the products on the dock. And, as a delivery driver, Mr. Graves would drive a delivery truck delivering products to, and picking up products from, customers in Springfield. This delivery work involved loading and unloading his freight.

Mr. Graves worked continuously for Roadway Express, performing the work of a dockworker or delivery driver until suffering an accident in December 2000. Following this accident, Roadway Express reassigned Mr. Graves to a position that allowed him to perform certain light-duty work, as assigned, such as answering the telephone, doing some filing, and some sorting of paper. Fortunately, in this employment setting, Roadway Express permitted him to work at his own pace and to get up, move around, and takes breaks when nec