Joseph Moore v. Jefferson Keller Printing

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-183530

Employee: Joseph Moore

Employer: Jefferson Keller Printing

Insurer: Missouri Printing Industries Trust

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Dismissed)

Date of Accident: December 23, 1999

Place and County of Accident: N/A

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations 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 June 26, 2006, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued June 26, 2006, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 6^{\text {th }}$ day of October 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? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: December 23, 1999
5. State location where accident occurred or occupational disease was contracted: N/A
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? No.
8. Did accident or occupational disease arise out of and in the course of the employment? No.
9. Was claim for compensation filed within time required by Law? No.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was on the way home from the company party when he was in a car accident.
12. Did accident or occupational disease cause death? N/A
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

Employee: Joseph Moore Injury No.: 99-183530 17. Value necessary medical aid not furnished by employer/insurer? 0 18. Employee's average weekly wages: $\ 741.00 19. Weekly compensation rate: $\$ 494.00 / \ 303.01 20. Method wages computation: By agreement.

1. Amount of compensation payable: $\ 0.00
2. Second Injury Fund liability: Dismissed

1. Future requirements awarded: None.

Said payments to begin 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 of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

The matter of Joseph Moore ("Claimant") proceeded to hearing on April 3, 2006, to determine whether Claimant sustained an accidental injury arising out of and in the course of his employment. Attorney Lynn Barnett represented Claimant. Attorney Mark Anson represented Jefferson Keeler Printing ("Employer") and its Insurer, Missouri Printing Industries Trust. Claimant dismissed the Second Injury Fund claim at the start of the hearing.

The parties agreed that on December 23, 1999, Claimant was in a motor vehicle accident that resulted in injury to him and others. On that date, Claimant was an employee of Employer, and earned an average weekly wage of $\ 741.00, with corresponding compensation rates of $\ 494.00 for total disability benefits and $\ 303.01 for permanent partial disability benefits. Employer paid no benefits.

The issues to be determined are: 1) is Claimant's claim barred by the statute of limitations; 2) did Claimant provide proper notice that he had a work related accident; 3) did Claimant's accidental injury arise out of and in the course of his employment; 4) is Employer liable to pay past medical benefits in the amount of $\ 13,679.50 ; 5 ) is Employer responsible for providing future medical care; 6) is Claimant entitled to recover temporary total disability benefits from December 23, 1999, to May 15, 2000, and from January 15, 2001, to October 22, 2002; 7) what is the nature and extent of Claimant's disability; and 8) is Claimant barred from recovery due to the intoxication defense. [1]

The parties stipulated that Employer ceased doing business on October 28, 2002. The parties further agreed that Claimant's Claim for Compensation was stamped as received by the Division of Workers' Compensation on December 12, 2002, and acknowledged by the Jefferson City office on December 18, 2002. Neither Employer nor Insurer filed an answer until after Claimant amended his claim in 2005. Employer did not raise the intoxication defense until it filed an amended answer in 2006.

Claimant is a 32-year-old project supervisor who resides in Chicago, Illinois, where he currently is supervising the

rebuilding of a warehouse. Employer hired Claimant on October 26, 1995, and in late 1999, employed Claimant as a shipping and receiving supervisor. His job involved handling freight, loading and unloading packages, and arranging for package transport.

On December 23, 1999, Employer held its annual Christmas party for all employees. Claimant testified Employer posted a flier announcing the party that indicated attendance was required. Claimant testified that two shifts were operating that day and both started at 7:00. Claimant testified that most of the workers worked until noon or 1:00, and many prepared for the social event by leaving work early. Claimant testified he was still doing work in shipping with a co-worker, even though the presses were not running that day. He explained that the work was left over from the previous day.

Despite the work he said he had in shipping, Claimant testified that he was also assigned to pick up items in preparation for the party. He initially testified that he left around noon to retrieve tables and a bar stored in a rented warehouse down the street from the plant. Claimant also testified that between 1:00 and 2:00, Employer sent him to Walgreens with money to purchase ice and beverages, both alcoholic and non-alcoholic.

Claimant said that he did not hear the president's traditional award speech at the start of the party because he was back in shipping. He gave conflicting statements regarding when the party started and the food was served. Although Claimant walked through the party on occasion, he said he did not actively join the party until 4:30 or 5:00. Claimant testified he drank about four beers before he left the party around 6:30. He denied there was a bartender. He did not take advantage of Employer's standing offer to arrange for a taxi ride.

Claimant testified that when he left, he had one more package to deliver to UPS. Claimant testified that because of the party there was no regular 7:00 UPS pick-up that day. Claimant had the options of delivering the UPS package to the local UPS facility or, if he missed that shipment, to the airport. Rather than exercise these options, or leave it for later since next day delivery was not required, Claimant said he decided to take the package to the UPS drop box located near his house. Claimant testified that he left the Employer's location near Manchester and Kingshighway, and was driving on Highway 55 near Gasconade when he was in a motor vehicle accident.

Claimant was traveling on the highway towards home when he came upon four disabled cars, which he claimed were located on the downside of a poorly lit, hilly curve. Claimant's car struck the vehicles, killing one and hurting others, including himself. Claimant was initially taken to Alexian Brothers for treatment, and then transferred to St. Anthony's, where he was admitted for what would prove to be the first of many surgeries for his right ankle. He also broke ribs, fractured his nose, bruised his kidneys, lacerated his mouth, and sprained his left ankle. He admitted his blood alcohol levels were tested at the hospital. Claimant testified that the UPS package he was transporting at the time of his accident was "handled by his wife".

Claimant did not receive a ticket at the scene for operation of the vehicle under the influence of alcohol, however, nineteen months after the accident, Claimant was brought to trial on a criminal matter associated with the accident. He was convicted of involuntary vehicular manslaughter and two counts of vehicular assault. The conviction is currently on appeal, although he has served the time originally assigned to the conviction.

Claimant returned to work on May 15, 2000, and worked until January 15, 2001. He received short-term disability through his union when he was unable to return to work after the accident. He incurred medical expenses for treatment associated with his accident and for nothing else in a total amount of $\ 13,679.50. Claimant's current problems include limited mobility of the foot, a permanent limp, and an aggravated neck. His foot is sensitive, and he cannot walk without shoes. Weakness in his leg has caused problems with the knee and atrophy of the calf muscle. At his current job, he has pain every day from walking.

Dr. Christopher Long is a board certified forensic toxicologist who performs testing, teaches, and lectures on many subjects, including blood alcohol levels. He is well qualified by virtue of his education and experience to testify regarding the effect of alcohol on the human brain.

Dr. Long testified that he reviewed records, including a police report, hospital records, and transcript from the criminal trial. Dr. Long testified that the blood sample drawn at the hospital and tested in the course of Claimant's medical treatment showed that Claimant had a blood alcohol level of .203 gram percent. When presented with a hypothetical question and asked to assume the effect of such a blood alcohol level on a man of Claimant's size and weight, Dr. Long testified that the alcohol would affect an individual by reducing his reaction time, limiting his visual acuity, and limiting his fine and gross motor skills. It would have a significant effect on one's ability to operate a motor vehicle.

Presented with facts regarding the timing of the accident, the subsequent testing, and the assumption that the individual stopped drinking approximately one-half an hour to forty-five minutes before the accident, Dr. Long explained that an individual with a blood alcohol level of Claimant's after the accident would have had significantly more than four drinks in him. Dr. Long testified that given the blood alcohol of .203 gram percent, alcohol was a causative