Jimmy Whitaker v. Midwest Foundation Corporation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-082457

Employee: Jimmy Whitaker

Employer: Midwest Foundation Corporation

Insurer: St. Paul Fire \& Marine Insurance Company

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

Date of Accident: July 15, 2000

Place and County of Accident: St. Charles 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 May 26, 2006. The award and decision of Chief Administrative Law Judge Leslie E. H. Brown, issued May 26, 2006, 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 $\underline{28^{\text {th }}}$ day of September 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: July 15, 2000
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Laborer work
12. Did accident or occupational disease cause death? No Date of death? --
13. Part(s) of body injured by accident or occupational disease: thoracic spine; PTD
14. Nature and extent of any permanent disability: 12% BAW re: thoracic spine; PTD
15. Compensation paid to-date for temporary disability: $16,798.88
16. Value necessary medical aid paid to date by employer/insurer? $10,669.33
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

1. Amount of compensation payable:

Unpaid medical expenses: --

1 4/7 weeks of temporary total disability (or temporary partial disability) ..... $\ 942.79

12\% BAW re: thoracic spine permanent partial disability from Employer, or ..... \15,084.48

- credit of

\$ 6,513.85=

\ 8,570.63)

--- weeks of disfigurement from Employer

--- Permanent total disability benefits from Employer beginning, for

Claimant's lifetime

1. Second Injury Fund liability: Yes

PTD at $\ 285.70 per week for 48 weeks 03/19/01-02/17/02, and $\ 599.96 per week thereafter for life

TOTAL: ..... $\ 9,513.42

and PTD (See Award)

1. Future requirements awarded: None

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:

Ronald J. Wuebbeling, Attorney for Claimant

NOTE: There is an attorney's lien for former Claimant's Attorney Jack J. Adams as follows: $\ 770.00 for Dr. Morrow's report and $\ 730.00 attorney fee for a total of $\ 1,500.00; this amount is to be paid from the 25 % attorney's lien, and remainder attorney's lien thereafter to be paid to Ronald J.

Wuebbeling, Attorney for Claimant.

Employee: Jimmy Whitaker

Injury No: 00-082457

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: Midwest Foundation Corporation

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

Insurer: St. Paul Fire \& Marine Insurance Company

Checked by: LEHB/lsn for df

counsel, Attorney Ronald J. Wuebbeling. The employer/insurer, Midwest Foundation Corporation/ St. Paul Fire and Marine Insurance Company, appeared by and through counsel, Attorney Rhonda J. Kattleman. The Second Injury Fund appeared by and through Assistant Attorney General Barbara Toepke.

The parties entered into certain stipulations, and agreements as to the complex issues ${ }^{[1]}$ and evidence to be presented in this hearing.

On or about July 15, 2000: a. the claimant while in the employment of Midwest Foundation Corporation sustained an injury by accident arising out of and in the course of his employment occurring in St. Charles 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 St. Paul Fire and Marine Insurance Company; d. the employee's average weekly wage was at the maximum; the rate on 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 $\ 16,798.88; those payments represent 28 weeks of benefits covering four periods -- period one is July 16, 2000 through September 20, 2000; period two is January 15, 2001 through February 14, 2001; period three is February 26, 2001 through March 18, 2001, and the fourth period is October 2, 2002 through December 16, 2002. h. Medical aid has been provided in the total amount of $\ 10,669.33.

i. Re: a Notice of Services Provided \& Request for Direct Payment filed with the Division on November 28, 2001, and concerns two bills - a. July 15, 2000 bill from Missouri Baptist Medical Center/Dr. William Baber, thoracic sprain E.R. visit, $\ 1,396.06; and b. a January 19, 2001 bill for an MRI cervical spine ordered by Dr. Barry Samson and performed at Missouri Baptist Medical Center, \$1,270.00 (Court Exhibit No. A-1). It is agreed and stipulated to by the employer/insurer that they have paid these medical bills and/or are responsible for these bills.

1. Medical causation
2. Liability of past medical expenses
3. Nature and extent of temporary total disability benefits re: three specific periods -- first is December 15, 2001 through January 14, 2001; second is February 15, 2001 through February 25, 2001; and third is March 19, 2001 through October 1, 2002
4. Nature and extent of permanent disability - whether partial or total
5. Liability of the Second Injury Fund

The following exhibits were admitted into evidence:

Nos. A-F: Exhibits A through F were submitted at the hearing for the Temporary Award

No. G: Deposition transcript of Dr. Peggy Boyd Taylor, D.O., taken on May 23, 2002 on behalf of the claimant (No. G was offered into evidence in the hearing for the Temporary Award, and reoffered into evidence in the hearing for Final Award in this case)

No. H: Deposition transcript of Dr. Raymond F. Cohen taken June 7, 2004 on behalf of the claimant (Admitted subject to the objections therein)

No. I: No exhibit so marked.

No. J: Medical rating of Dr. Raymond F. Cohen dated November 13, 2003 (Ruling: Second Injury Fund's objection is overruled.)

No. J-1: Supplemental medical rating of Dr. Raymond F. Cohen dated December 12, 2003 (Ruling: Second Injury Fund's objection is overruled.)

No. K: Deposition transcript of James M. England, Jr., taken January 5, 2005 on behalf of the claimant. (Admitted subject to the objections therein, and objections at the hearing by the employer/insurer on grounds of lack of

foundation and Mr. England's reliance on hearsay, objections at the hearing by the Second Injury Fund of objections contained on page 19 of Mr. England's deposition regarding his conclusions and his reliance on a report by Dr. Buckles and motion to strike any reference to Dr. Buckles' report and Mr. England's conclusions as they rely on Dr. Buckles' report)

No. L: Report of James M. England, Jr., dated October 21, 2004 (Admitted, but the employer/insurer and the Second Injury Fund specifically note the objections which were previously voiced with regard to Mr. England's deposition testimony as to his opinions, and Second Injury Fund's request at the hearing that the objections made to the testimony can carry over to anything within the report itself.)

No. M: Medical records of Missouri Baptist Medical Center (192 pages)

No. N: Medical records of St. Peters Bone and Joint Surgery, Dr. Theodore S. Rummels (10 pages)

No. O: Open MRI report of St. Charles County (1 page)

No. P: Medical records of Dr. Barry Samson, M.D. (45 pages)

No. Q: Records of Pro Rehab (13 pages)

No. R: Records of SSM Rehab (185 pages)

No. S: WITHDRAWN (Medical records of Dr. Peggy Boyd Taylor, being offered by the Second Injury Fund Roman Numeral II)

No. T: Medical records of Premier Care Orthopedics/Dr. Ravi V. Shitut, M.D. and Dr. George R. Schoedinger, III, M.D. (39 pages)

No. U: NOT ADMITTED (March 3, 2003 record of Dr. Richard B. Buckle/Claybrooke Medical Group, 3 pages) [Ruling: Employer/Insurer's and Second Injury Fund's objections on grounds of hearsay and report prepared for litigation is sustained. It is found the sources of information, method and time of preparation are such as to not justify the admission of Dr. Buckles record in that: a. the doctor admits Whitaker "is personally known by me and is the patient I'm doing the physical on today" with no indication in the report of the doctor having treated Whitaker over the years; b. there is no indication of a knowledge of a complete medical history, particularly in regards to the claimant's thoracic spine (a causation issue in this case), thus bringing question to the competency of the medical diagnosis and opinion; and c. with a lack of a complete medical history, there is question as to the probative value of a medical opinion on the claimant's physical condition in 2003 when the issues in this case concern a 2000 injury and any preexisting injuries. See, generally, Thomas v. Fred Weber Contractor, Inc., 498 S.W.2d 811, 812813 (Mo.App. 1973).]

No. V: Medical records of Dr. Bruce Schlafly. M.D.

No. W: Medical records of Neurological Associates/Dr. John E. Krettek, M.D. (14 pages)

No. X: Medical records of Dr. John Tessier, M.D. (12 pages)

No. Y: Stipulation for Compromise Settlement for Injury Number 95-401541 approved on December 23, 1998

No. Z: Computer printouts from the Illinois Industrial Commission for Claim Numbers 87WC-38598, 88WC-10063, 88WC-46465, 92WC-41178, and 94WC-62020 (22 pages)

No. AA: NOT ADMITTED (Social Security Administration decision dated October 2, 2003)

No. BB: Warren County Ambulance District statement dated February 19, 2002

No.