Keith Woodfin v. Safety Construction Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-120953

Employee: Keith Woodfin

Employer: Safety Construction Company

Insurer: Fairfield Insurance Company

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

Date of Accident: Alleged February 18, 2002

Place and County of Accident: Alleged St. Louis, 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 18, 2007, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Suzette Carlisle, issued May 18, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 21st day of September 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? 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: February 18, 2002 (alleged)
5. State location where accident occurred or occupational disease was contracted: St. Louis, Mo.(alleged)
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? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Claimant testified he injured his low back while attempting to lift a concrete barrier. 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Low back 14. Nature and extent of any permanent disability: None 15. Compensation paid to-date for temporary disability: -0 - 16. Value necessary medical aid paid to date by employer/insurer? -0 -

Employee: Keith Woodfin Injury No.: 02-120953 17. Value necessary medical aid not furnished by employer/insurer? $\ 128,562.90 18. Employee's average weekly wages: N/A 19. Weekly compensation rate: N/A 20. Method wages computation: N/A

1. Amount of compensation payable:

Unpaid medical expenses: 0 No weeks of permanent partial or total disability from Employer

1. Second Injury Fund liability: No

TOTAL:

None

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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Kevin Wayman

Keith Woodfin ("Claimant") requested a hearing pursuant to $\S 287.450$ RSMo (2000). A hearing was held at the Missouri Division of Workers’ Compensation, St. Louis office, on February 22, 2007. The case was continued to February 23, 2007. Attorney Kevin Wayman represented Claimant. Attorney Carl Kessinger represented Safety Construction Company ("Employer") and Fairfield Insurance Co ("Insurer"). Assistant Attorney General Eileen Krispin represented the Second Injury Fund ("SIF"). The record closed after presentation of evidence. Hearing venue is correct and jurisdiction properly lies with the Missouri Division of Workers' Compensation.

The parties have stipulated to the following on or about February 18, 2002:

1. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation Law.
2. Employer's liability was fully insured by Insurer.
3. A Claim for Compensation was filed within the time prescribed by law.

The issues for disposition are: accident; arising out of and in the course of employment; notice; medical causation; liability for past medical expenses totaling $\ 128,562.90; rate; liability for permanent partial disability (PPD) or permanent total disability (PTD) by either Employer or the SIF; average weekly wage; and reasonableness/necessity for treatment.

Claimant's Exhibits A through U were admitted. Claimant withdrew Exhibit H. Exhibit V is excluded based on hearsay. Employer offered Exhibits 1 through 15 which were admitted, except for a portion of Exhibit 7, which contained a 1989 deposition based on lack of foundation. Employer withdrew Exhibits 16 through 22 as duplications. The SIF offered no exhibits. Any notations found on the exhibits were present when admitted into evidence.

All evidence was reviewed but only evidence necessary to decide the award is summarized below.

1. Claimant was born June 18, 1965 and was 36 years old at the time of the alleged accident. Claimant was an honor student in high school before completing twelfth grade. However, he did not graduate because he lacked one English credit.
2. Claimant testified he became an apprentice carpenter. After four years he achieved journeyman carpenter status. Claimant has a current commercial drivers' license. He testified he can read, write, and perform basic math. Claimant testified that carpentry and bridge building require math skills. 1

1. While wresting in high school, Claimant injured his back and treated with a chiropractor several times for a "slipped" disc. Claimant denied a fractured back in the mid eighties until it was pointed out during cross examination. 2
2. In 1985 Claimant fell eight feet off a roof, injured his low back, and felt a burning sensation. He did not recall seeing a doctor, but did not disagree if his deposition stated that he did.
3. In 1986 he injured his back in a motorcycle accident. However, he returned to work without seeing a doctor.
4. In 1988, Claimant jammed his low back while carrying an I-beam. Claimant did not return to carpentry after this injury as he could not lift heavy items. Claimant was also involved in an automobile accident where he broke his left arm but does not remember any back pain associated with the accident.
5. Claimant testified that in 1999 he treated one time for back and leg pain, received steroid injections, and symptoms resolved.
6. Claimant does not recall treating at Jackson Medical Center in December 2001, January 2002 or February 2002.

1. From 1990 to 1993, Claimant worked for the SE Co-op as a fertilizer plant manager and performed office work. Claimant operated heavy equipment and measured stone quality from 1993 to 1999. Claimant also built homes for Shipley Construction and the Semco Company as a carpenter. Claimant drove a truck for two weeks. Claimant also operated heavy equipment, and worked as a clown in the rodeo. Claimant denied any bull riding activities in his capacity as a clown. 3 Claimant uses the phone, computer, and works with the public.
2. Claimant testified he began working as a laborer for Employer as needed in August 2000. He laid heavy highway baskets, worked on rock walls, lifted up to 80 pounds alone, and 150 pounds with help. His only limitation was soreness after heavy lifting.
3. Claimant denied a 15 pound weight limit prior to February 18, 2002 until questioned on cross examination. 4
4. Claimant testified he earned $\ 24.00 an hour but had no regular work schedule between December 2001 and February 2002. Claimant was also paid for the use of his truck at the rate of $\ 125.00 a week or $\ 25.00 a day.
5. Claimant testified he began work at 7:30 p.m. on February 18, 2002 5 Claimant worked the Kramer job located at I270 and Hanley Road with David Waldruff, a co-worker and evening supervisor Steven Worley.
6. Claimant testified the shift ended at 3:00 a.m., and he attempted to load a concrete barrier, weighing more than 300 pounds, to return it to Employer, as requested by Donna Fink, CEO and President of the company. 6 Claimant testified Ms. Fink called him earlier that day and asked him to bring the barrier device back to the office. The barrier