Trevor Kirby v. J.D. Builders, Inc.; Alliance Savings Company, Inc.; Prost Builders, Inc.

Employee: Trevor Kirby

Injury No. 03-125396

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: J.D. Builders, Inc.

Insurer: St. Paul Travelers (alleged)

Employer: Alliance Savings Company, Inc. (alleged)

Insurer: Missouri Employers Mutual Insurance Company (alleged)

Employer: Prost Builders, Inc. (alleged)

Insurer: Builders' Association Self-Insurance Fund

Additional Party: Second Injury Fund

Additional Party: University of Kansas Medical Center

Additional Party: North Kansas City Hospital

Hearing Date: January 27, 2006

Checked by: RJD/tmh

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: September 16, 2003.
5. State location where accident occurred or occupational disease contracted: Boone County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes. I find that Employee was in the employ of J.D. Builders, Inc., and Alliance Savings Company, Inc., at the time of his accident.
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? I find that J.D. Builders, Inc., was uninsured; I find that Alliance Savings Company, Inc., was insured by Missouri Employers Mutual Insurance Company.

1. Describe work employee was doing and how accident happened or occupational disease contracted:

Employee was working on a steel frame for a building, approximately $30^{\prime}-40^{\prime}$ above ground level when the structure collapsed.

1. Did accident or occupational disease cause death? No. Date of death? N/A.
2. Parts of body injured by accident or occupational disease: Head, brain injury, right leg, cervical vertebrae, spinal cord, hips, left foot, body as a whole.
3. Nature and extent of any permanent disability: Deferred to final award.
4. Compensation paid-to-date for temporary disability? Temporary total disability benefits were paid through June 18, 2005; exact amount unknown.
5. Value necessary medical aid paid to date by employer/insurer? Unknown.
6. Value necessary medical aid not furnished by employer/insurer: Unknown at this time.
7. Employee's average weekly wages: $\ 491.67.
8. Weekly compensation rate: $\ 327.78.

Employer, J.D. Builders, Inc.; Employer, Alliance Savings Company, Inc.; and its Insurer, Missouri Employers Mutual Insurance Company are ordered to pay Claimant TTD benefits of $\ 327.78 from and after June 19, 2005, until such time as Claimant's condition has reached maximum medical improvement, or until Claimant is able to compete in the open market for employment, or until Claimant has been paid 400 weeks of TTD benefits, or until Claimant's death, whichever shall first occur.

Employer, J.D. Builders, Inc.; Employer, Alliance Savings Company, Inc.; and its Insurer, Missouri Employers Mutual Insurance Company are ordered to pay Claimant the sum of $\ 43,200.00 (i.e., $\$ 4,800.00 \times 9$ months) to compensate Claimant for nursing services rendered by Jennifer Garringer from June 2005 through February 2006.

Employer, J.D. Builders, Inc.; Employer, Alliance Savings Company, Inc.; and its Insurer, Missouri Employers Mutual Insurance Company are ordered to pay all unpaid medical charges for the medical treatment that Claimant has received since September 16, 2003.

Employer, J.D. Builders, Inc.; Employer, Alliance Savings Company, Inc.; and its Insurer, Missouri Employers Mutual Insurance Company are ordered to reimburse the Second Injury Fund for all of its expenditures for Claimant's prescription medications.

Employer, J.D. Builders, Inc.; Employer, Alliance Savings Company, Inc.; and its Insurer, Missouri Employers Mutual Insurance Company are ordered to provide Claimant with all such medical, surgical, chiropractic and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required to cure and relieve Claimant from the effects of the work-related injury, all as required by Section 287.140, RSMo.

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

Claimant's attorney, William Spooner, is allowed 25\% of all sums awarded hereunder for temporary total disability benefits and for nursing services, as and for necessary attorney's fees.

An evidentiary hearing was held in this case in Jefferson City on January 27, 2006, on Claimant’s request for a temporary or partial award. Claimant Trevor Kirby appeared by Counsel William Spooner, and by his guardian Jennifer Garringer; Employer J.D. Builders, Inc., appeared by Counsel Rick Montgomery, and by corporate representative David Green; Employer Alliance Savings Company, Inc., appeared by Counsel William Rotts and Andrew Jones, and by corporate representative David Jatho; alleged Insurer Missouri Employers Mutual Insurance Company appeared by Counsel Scott Pool and Leah Williamson, and by corporate representative Joyce Underwood; alleged Insurer St. Paul Travelers appeared by Counsel Steve Brueggeman, and by corporate representative Janice Sturman; alleged Employer Prost Builders, Inc., and its Insurer, Builders’ Association Self-Insurance Fund, appeared by Counsel Timothy Lutz and Jennifer Arnett; the Second Injury Fund appeared by Counsel, Assistant Attorneys General Cara Harris and Sarah Reichert; University of Kansas Medical Center appeared by Counsel Timothy Gaarder; and North Kansas City Hospital appeared by Counsel, Dewey Crepeau. The parties requested leave to file posthearing briefs, which leave was granted, and the case was submitted on February 7, 2006. The evidentiary hearing was held to decide the following issues:

1. Whether the notice requirement of Section 287.420, RSMo, serves as a bar to Claimant’s claim for compensation as against any of the alleged employers or insurers;
2. Whether the statute of limitations, Section 287.430, RSMo; serves as a bar to Claimant’s claim for compensation as against any of the alleged employers or insurers;
3. A determination of the employee’s average weekly wage and resultant compensation rates;
4. Whether Alliance Savings Company, Inc., was a covered employer under the Missouri Workers’ Compensation Law at the time of employee’s accident;
5. Whether Claimant is entitled to temporary total disability (“TTD”) benefits from and after June 19, 2005;

1. Whether Claimant is entitled to payment for nursing services and custodial services allegedly rendered to him by Jennifer Garringer;
2. Whether Claimant is entitled to payment for bills for his past medical treatment, including, but not limited to, the treatment allegedly rendered by North Kansas City Hospital and University of Kansas Medical Center;
3. Whether Claimant is entitled to additional medical treatment pursuant to Section 287.140, RSMo;
4. Whether the Second Injury Fund is entitled to reimbursement for medical expenses it has paid on Claimant's behalf and may continue to pay on Claimant's behalf through the time of the award herein; and
5. Which alleged employer and/or insurer, if any, shall be deemed primarily liable for payment of benefits to Claimant under Chapter 287, RSMo, and which employer(s) and/or insurer(s), if any, shall be secondarily liable, and in what order, as contemplated by Section 287.040, RSMo.

The parties stipulated as follows:

1. The Division of Workers' Compensation has jurisdiction over this case;
2. Venue is proper in Boone County and adjoining counties, including Cole County;
3. That Trevor Kirby ("Claimant") was injured in a work-related accident in Boone County, Missouri, on September 16, 2003; and
4. That temporary total disability ("TTD") benefits of $\ 333.66 per week were paid through June 18, 2005.

The evidence consisted of the testimony of Claimant's mother, Jennifer Garringer; the testimony of David Jatho (President of Alliance Savings Company, Inc.), as well as the deposition testimony of David Jatho; the testimony of David Green (President of J.D. Builders, Inc.) as well as the deposition testimony of David Green; the testimony of Lewis Melahn, former Director of the Missouri Department of Insurance; the testimony of Joyce Underwood, Acting Director of Underwriting for Missouri Employers Mutual Insurance Company; the testimony of Janice Sturman, corporate representative of St. Paul Travelers; and numerous documents.

Trevor Kirby ("Claimant