Phillip Wheelington v. McBaine Contracting Co.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-013252

Employee: Phillip Wheelington

Employer: McBaine Contracting Co.

Insurer: Missouri Employer's Mutual Insurance

Date of Accident: January 24, 2001

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 February 6, 2007. The award and decision of Administrative Law Judge Grant C. Gorman, issued February 6, 2007, 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.

This award also is subject to a lien in favor of the Division of Child Support Enforcement.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\underline{27^{\text {th }}}$ day of June 2007.

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: January 24, 2001
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Employee was moving a refrigerator up some stairs.
12. Did accident or occupational disease cause death? No Date of death? Not Applicable
13. Part(s) of body injured by accident or occupational disease: Low back, depression.
14. Nature and extent of any permanent disability: Permanent total disability.
15. Compensation paid to-date for temporary disability: $\ 15,052.80
16. Value necessary medical aid paid to date by employer/insurer? $\ 43,917.18

Employee: Phillip Wheelington Injury No.: 01-013252 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 537.60 19. Weekly compensation rate: $\ 358.40 TTD/\$314.26PPD 20. Method wages computation: Stipulation

1. Amount of compensation payable:

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:

Burton A. Librach, Ron Caimi to have a lien for $\ 2,752.04 of the awarded attorneys' fees.

Hearing on the above styled Claim was held on August 23, 2006 at the Division of Workers' Compensation in St. Charles County. Claimant was present and was represented by Burton A. Librach. Patrick N. McHugh represented McBaine Contracting Co. (Employer) and Missouri Employers Mutual Insurance Co. (Insurer).

The parties entered into the following stipulations:

1. That Claimant was employed by McBaine Contracting Company at the time of the alleged date of accident.
2. That on January 24, 2001, claimant sustained an accident arising out of and in the course of his

1. Deposition of Stacey Smith, M.D.
2. Deposition of Donna Abram
3. Russell C. Cantrell, M.D.-medical report of 2/26/02
4. James J. Coyle, M.D.-medical report of 12/5/01
5. John D. Graham, M.D.-medical reports of 9/14/01 and 11/19/01
6. PRORehab-functional capacity evaluations of 10/13/01 and 1/14/02-1/17/02; work hardening reports of 9/24/01, 10/18/01, 10/25/01-10/26/01
7. Missouri Baptist Medical Center-radiology reports of 4/16/01; 9/17/01
8. Claim for Compensation
9. Amended Claim for Compensation-filed 9/12/05
10. Claims Payments-medical and TTD benefits.

Certain Exhibits offered into evidence contained additional handwritten markings, underlining and/or highlighting on portions of the documents. Any extraneous markings on the exhibits were present when they were offered by the parties. Further, any such notes, markings and/or highlights were ignored by the undersigned ALJ in reaching any decisions made in this case.

Each exhibit was received into evidence without objection, with the exception of Exhibit B1. Employer objected to Exhibit B1 at hearing, and at the deposition of Dr. Wayne Stillings taken on November 23, 2005. The undersigned ALJ took the objection made at hearing under advisement, and the deposition transcript (Exhibit B) was offered into evidence subject to objections made at the time of the deposition.

At hearing, Employer made the following objection at the time Exhibit B1 was offered:

I have an objection to Exhibit B-1 which is the supplemental report of Dr. Stillings on the basis that its hearsay and Dr. Stillings was not a treating physician in this case. He was hired as an independent examiner on behalf of the claimant and as such, the report is not admissible under - as a treatment record. Also I believe it was raised at his deposition. It was produced at that time and the Seven-Day Rule objection was made then and that's contained in his deposition and I don't believe it was admitted at that time. Other than that I have no objections.

The deposition transcript (Exhibit B) on page 15 records the following objection to Dr. Stillings' testimony about the supplemental report, which was made after Dr. Stillings' testimony about the first conclusion in the report. "I just want to object at this point to the next conclusion that is in the report as it invades the province of the trier of fact. It calls for a legal conclusion and improper foundation for such an opinion." This same objection was again made on page 27 of Exhibit B.

At the deposition, the "seven day rule" from $\S 287.210 .3$ was not given as a basis for the objection made to the testimony (p. 15) or the admission of the report (p.27). In fact, no objection was made to the entire supplemental report, but only to the second conclusion contained in the report, regarding Dr. Stillings' opinion of Claimant's permanent disability. Therefore, the record indicates that the first time the "seven day rule" was raised was at hearing on August 23, 2006.

Dr. Stillings is a licensed medical doctor and is board certified in Psychiatry and Neurology, and competent to form an opinion regarding the alleged permanent disability of Claimant based on physical and psychiatric conditions. Further, it is necessary for Claimant to provide such evidence in order to prove his case to the trier of fact. In cases involving medical causation, which is not within the common knowledge or experience, he must present medical or scientific evidence showing the cause and effect relationship between the complained-of condition and the asserted cause. McGrath v. Satellite Sprinkler Systems, Inc. 877 S.W.2d 704, 708 (Mo.App. E.D. 1994). Employer's objection to the opinion evidence presented in Dr. Stillings' testimony at deposition on the basis that it calls for a legal conclusion, invades the province of the

trier of fact, and that an improper foundation has been laid, is overruled.

Regarding Exhibit B1, and the "seven day rule" objection made at hearing, the testimony from the deposition has been admitted, which would effectively render the objection to Exhibit B1 itself moot. Further, the deposition was held in November 2005, since Employer did not make the "seven day rule" objection until the hearing, Employer had possession of the exhibit for more than seven days prior to its introduction. The objection is overruled, and Exhibit B1 is received into evidence.

Claimant testified at trial. He is married and has two children, ages 21 and 5. His children do not live with him. He completed tenth grade and has not obtained his GED. He briefly described his employment background as involving positions in house keeping and bussing at hotels and hospitals. He said he has no special training in a skilled trade.

Claimant testified he wor