Gary Adamson v. DTC Calhoun Trucking, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-022351

Employee: Gary L. Adamson

Employer: DTC Calhoun Trucking, Inc.

Insurer: Westport Insurance Corporation

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

Date of Accident: February 17, 2003

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 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 August 3, 2005. The award and decision of Associate Administrative Law Judge L. Timothy Wilson, issued August 3, 2005, 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 $\qquad 2 2^{\text {nd }} \qquad$ day of March 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, 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: February 17, 2003
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:

Claimant was attempting to put a tarp over the load of sand on his trailer; while doing this, the tarp tore, causing him to fall to the ground. 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 and femoral hernia 14. Nature and extent of any permanent disability: 12.5 percent permanent partial disability body as a whole referable to the low back and femoral hernia 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: $\ 595.30 19. Weekly compensation rate: $\$ 396.87 / 340.12$ 20. Method wages computation: award

1. Amount of compensation payable:

The claim for future medical care is denied.

The employee is entitled to any additional temporary total disability compensation in the amount of $\ 39.40.

50 weeks of permanent partial disability from Employer at $\ 340.12

The claim for permanent total disability benefits from Employer is denied.

The employee's request for a 15 percent penalty increase is denied.

1. Second Injury Fund liability: No

The claim for compensation as filed against the Second Injury Fund is denied.

TOTAL:

$\ 17,045.40

1. Future requirements awarded: none

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: Gary L. Adamson

Injury No: 03-022351

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: DTC Calhoun Trucking, Inc.

Additional Party Second Injury Fund

Insurer: Westport Insurance Corporation

Checked by: LTW/mp

The above-referenced workers' compensation claim was heard before the undersigned Associate Administrative Law Judge on May 23, 2005. The record was left open for the submission of additional evidence and/or briefs, resulting in the record being completed and submitted to the undersigned on or about July 13, 2005.

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

(1) On or about February 17, 2003, DTC Calhoun Trucking, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Westport Insurance Corporation.

(2) On the alleged injury date of February 17, 2003, Gary Adamson was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about February 17, 2003, the employee sustained an accident which arose out of and in the course and scope of employment.

(4) The contract of employment between the aforementioned employee and employer occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee 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) Temporary total disability compensation has been provided to the employee in the amount of $\ 7,728.50. (The employee asserts that the payment of temporary total disability compensation was for the period of March 14, 2003, through July 28, 2003, with the employer and insurer being unable to verify the period of disability.)

(8) The employer and insurer have provided medical treatment to the employee, having paid $\ 17,583.48 in medical expenses.

The sole issues to be resolved by hearing include:

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

(2) What is the applicable compensation rate?

(3) Whether the employee is entitled to temporary disability benefits? (The issue is presented in the context of the parties being unable to stipulate to a compensation rate, thus presenting the question of whether the payment of temporary total disability compensation for the period of March 14, 2003, through July 28, 2003, is an underpayment or overpayment of temporary disability compensation.)

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

(5) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

(6) Whether the employee is entitled to an increase in benefits in the amount of 15 percent, pursuant to the statutory penalty allowed under Section 287.120.4, RSMo, wherein the employee alleges an employer violation of DOT regulations?

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case

the testimony of three additional witnesses - Matt Schudy, Wilbur Swearingin, and Norbert Belz, M.D. In addition, the employee offered for admission the following exhibits:

Exhibit A .... Medical Records (Attachments to Complete Medical Report of Norbert T. Belz, M.D.)

Exhibit B $\qquad$ Medical Records (Addendum \& Attachments to Complete Medical Report of Norbert T. Belz, M.D.)

Exhibit C Calendar

Exhibit D .......................................................... (Not Offered)

Exhibit E .................................................... Wage Records

Exhibit F ... Recorded Statement of Gary Adamson (April 7, 2003)

Exhibit G ...................................................... Photograph

Exhibit H ............................ CV of Wilbur Swearingin, CRC

Exhibit I ............ Vocational Report of Wilbur Swearingin, CRC

Exhibit J ................................... CV of Norbert T. Belz, M.D.

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

Exhibit L ........ Medical Record Review by Norbert T. Belz, M.D.

Exhibit M ....... Medical Record Review by Norbert T. Belz, M.D.

Exhibit N ........ Medical Record Review by Norbert T. Belz, M.D.

Exhibit O ....... Medical Records Review by Norbert T. Belz, M.D.

Exhibit P ..... Deposition and Medical Records Review by Norbert T. Belz, M.D.

Exhibit Q ........................ Deposition of Norbert T. Belz, M.D.

Exhibit R .................................... Medical Drawing of Spine

Exhibit S .......................................................... Video Tape

Exhibit T .......... Wage Information (Form W-2 for 2002 - 2002)

Exhibit U ...................................................... Photograph

Exhibit V ...................................................... Photograph

Exhibit W ...................................................... Photograph

The exhibits were received and admitted into evidence, with Exhibit T being received but not 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

Not Offered (Duplicate of Exhibit S)

Exhibit 2 . Deposition of James L. Jordan, M.D. (with attachments)

Exhibit 3 Deposition of Keith Mainprize, D.C.

Exhibit 4 Deposition of Melvin Eugene Curry, D.O.

Exhibit 5 Medical Records from Robert Sieve

Exhibit 6 DOT Medical Examination Report

Exhibit 7 Daily Logs

Exhibit 8 Compilation of Log Sheets

Exhibit 9 Affidavit of Tammy Calhoun

Exhibits 2, 3, 4, 5, 6, 7, and 8 were received and admitted into evidence at the hearing. Exhibit 9 was received and admitted into evidence subsequent to the hearing.

The Second Injury Fund did not present any witness or offer any evidence at the hearing of this case.

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: Notice of Hearing; Letter \& Motion to Dismiss Medical Fee Dispute; Application for Payment of Additional Reimbursement of Medical Fees; Release of Lien on Workers' Compensation Benefits (filed by Missouri Family Support Division - February 13, 2004); Notice of Lien on Workers' Compensation Benefits (filed by Missouri Family Support Division - November 6, 2003); Release of Lien on Workers' Compensation Benefits (filed by Missouri Family Support Division - April 16, 2003); Notice of Lien on Workers' Compensation Benefits (filed by Missouri Family Support Division - April 7, 2003); Answer of Second Injury Fund to Second Amended Claim for Compensation (filed October 4, 2004); Answer of Employer \& Insurer to Second Amended Claim for Compensation (filed September 30, 2004); Second Amended Claim for Compensation (filed September 13, 2004); Answer of Employer \& Insurer to First Amended Claim for Compensation (filed October 8, 2003); First Amended Cl