Mark Alcorn v. McAninch Corp.

Employee: Mark Alcorn

Injury No. 05-052329

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: McAninch Corp.

Additional Party: Treasurer of the State of Missouri, Second Injury Fund

Insurer: Zurich American Insurance Co.

Hearing Date: August 11, 2006

Checked by: VRM/meb

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: June 3, 2005
5. State location where accident occurred or occupational disease contracted: Polk 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 happened or occupational disease contracted: Claimant injured back while driving a dump truck at a road construction site.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Parts of body injured by accident or occupational disease: Back
14. Compensation paid to-date for temporary disability: $\ 3,379.50.
15. Value necessary medical aid paid to date by employer/insurer? $\ 8,757.38
16. Value necessary medical aid not furnished by employer/insurer? See Award.

1. Employee's average weekly wages: $\ 1,013.85 approx.
2. Weekly compensation rate: $\ 675.90 (TTD)
3. Method wages computation: Agreement.

1. Amount of compensation payable:

Unpaid medical expenses: No medical bills are outstanding.

56 and $6 / 7$ weeks of past temporary total disability from June 4, 2005 through the date of hearing on August 11, 2006.

TOTAL: $\ 38,429.38

Future temporary total disability shall begin August 12, 2006, and shall be subject to modification and review as provided by law. 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.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

William W. Francis, Jr.

Employee: Mark Alcorn

Injury No. 05-052329

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Dependents: N/A

Employer: McAninch Corp.

Additional Party: Treasurer of the State of Missouri,

The parties appeared before the undersigned Administrative Law Judge for an emergency hearing on August 11, 2006. The claimant seeks additional temporary total disability and the provision of additional medical treatment. William W. Francis, Jr., represented the claimant, Mark Alcorn. Kevin Johnson represented the employer, McAninch Corporation, and its insurer, Zurich Insurance, and third party administrator, GAB Robins N.A. The Second Injury Fund did not participate in this proceeding. The claimant and the employer/insurer stipulated to the following facts:

On June 3, 2005, Mark Alcorn was an employee covered under the Workers' Compensation Act and the employer, McAninch Corporation, was fully insured. The incident is alleged to have occurred near Bolivar, Missouri, in Polk County. Venue is appropriate in Springfield, Missouri. The employer/insurer paid five weeks of temporary total disability in the amount of $\ 3,379.50 and provided medical treatment in the amount of $\ 8,757.38. The claimant's average weekly wage was $\ 1013.85, and the temporary total disability rate is $\ 675.90.

1. Did the claimant sustain an injury or contract an occupational disease arising out of and in the course of claimant's employment with McAninch Corporation?
2. Is the alleged injury or occupational disease medically and causally related to the claimant's work at McAninch Corporation?
3. Is claimant entitled to additional medical care?
4. Is claimant entitled to additional temporary total disability?

The employer/insurer expressly reserved for future determination all other issues.

The following exhibits were submitted by the claimant and admitted without objection:

A. Medical Records of Cox Occupational Medicine and Workers' Compensation Center

B. Medical Records of Springfield Neurological and Spine Institute

C. Independent Medical Examination Report of Dr. Shane Bennoch

F. Curriculum Vitae of Dr. Shane Bennoch

The following exhibits were submitted by the employer and were admitted:

1. Curriculum Vitae of Dr. Cary Bisbey (admitted without objection)
2. Report of August 2, 2006, by Dr. Cary Bisbey (admitted over objection)
3. Curriculum Vitae of Peggy Shibata (admitted over objection)
4. Photographs of the test construction site (admitted over objection)
5. Acceleration test printouts (admitted over objection)
6. Photographs of the Missouri job site (admitted without objection)

Claimant's attorney objected to the medical report of Dr. Cary Bisbey because it had been made in anticipation of litigation and not in accordance with "the statute." The exhibit was admitted provisionally, but the parties were allowed to address its admissibility in their briefs. Dr. Bisbey testified live at the hearing, and claimant's counsel admitted that the physician's report was provided to him at least seven days in advance of the hearing. This satisfies the requirements of $\S 287.210$, RSMo. Nothing in the Workers' Compensation Act precludes the admission of a medical report merely because it was created in anticipation of litigation. A medical report is not a business record which, to be admitted as an exception to the hearsay rule, must normally be prepared in the usual course of business at or near the time of the event rather than in anticipation of litigation. See e.g. Huffy Corp. v. Custom Warehouse, Inc., 169 S.W.3d 89, 92 (Mo.App. E.D. 2005) (discussing the admissibility of business records). The claimant's objection to the medical report is overruled, and the exhibit is admitted.

Mark Alcorn possesses a ninth-grade education and has worked as a heavy equipment operator in the construction industry for 28 years. He currently is unemployed and unable to work due to the work injury he sustained on June 3, 2005. While the claimant has a prior history of hypertension, colon cancer, and a sprain to his knee, he reports no prior neck or back injuries.

The accident occurred on or about June 3, 2005, while claimant was working on a road construction project, operating an articulating dump truck. Claimant was on the job for a few weeks. During his employment he would haul as many of 50 loads per day, each weighing about 40 tons. While the truck was fitted with adjustable air ride seats, claimant testified that there were deep ruts in the haul road and borrow pit of three to four feet in depth and claimant would bounce around inside the truck. Claimant explained that because it had rained it was muddy in some areas. He said he complained to his supervisor and to his business agent about the work conditions.

On the morning of June 3, 2005, claimant began having severe pain around the beltline after he had been performing his usual work duties as an articulating dump truck driver for the employer at a road construction site. The next morning, on June 4, 2006, the claimant reported the pain to his employer and was told to go to the emergency room. Claimant went to the Cox Hospital emergency room the next day on June 5, 2006, with low back pain and was referred to Cox Occupational Medicine. On June 6, 2006, claimant saw Dr. Bisbey at the Cox Occupational Medicine facility.

Dr. Bisbey diagnosed the claimant with low back pain and prescribed narcotic medication and physical therapy. While claimant asked to be taken off work, Dr. Bisbey ordered that claimant return to a modified work schedule of no more than eight hours per day; and he directed that the claimant engage in duties that had only minimal jarring. Dr. Bisbey suggested in his report and testimony that claimant was magnifying his symptoms. As claimant explained, however, the construction work he was performing was not completed in an eight-hour day and the medication that Dr. Bisbey prescribed required that it not be taken if driving, working, or operating machinery. Claimant believed he could not perform any of his usual duties if he followed Dr. Bisbey's restrictions and took his medication as prescribed. Although the employer's safety director later testified that there was light duty available, including the answering of phones, the construction work site was located in a rural area. Claimant could only get to the construction site by driving there -- something he could not do if he took the medication as prescribed.

Dr. Bisbey also recommended physical therapy. Claimant attended three sessions, after which the therapist told him that no progress was being made. Claimant did not thereafter return to physical therapy because he wanted to know what was going on with his back before he continued any treatment which was not helping him.

An MRI conducted on June 15, 2005, revealed an L3-4 small broad-based disc protrusion laterally to the left. There was no evidence of a disc herniation or significant stenosis. At the time of the June 15, 2005 MRI, the claimant's pain was not situated to the left; but he later developed pain on the left as well as on the right.

Claimant continued to see Dr. Bisbey until June 21, 2005, but contended that the physician hurt him physically. Claimant then was referred to Dr. Rahman and