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David Maxwell v. Hogan Transports, Inc.

Decision date: October 18, 200711 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award of workers' compensation benefits to David Maxwell for a cervical spine injury sustained on August 25, 2003, when his truck struck a Department of Transportation vehicle on Interstate 44 in Crawford County, Missouri. The employee was awarded compensation for temporary total disability, permanent partial disability of 25% of the body as a whole, and necessary medical treatment.

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Caption

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
FINAL AWARD ALLOWING COMPENSATION(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 03-099559
Employee:David Maxwell
Employer:Hogan Transports, Inc.
Insurer:Zurich North American Insurance Company
Additional Party:Treasurer of Missouri as Custodian of Second Injury Fund
Date of Accident:August 25, 2003
Place and County of Accident:Crawford County, Missouri
The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided bysection 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commissionfinds 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, theCommission affirms the award and decision of the administrative law judge dated May 7, 2007. The award and decision of Administrative Law JudgeJack H. Knowlan, Jr., issued May 7, 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.Any past due compensation shall bear interest as provided by law.Given at Jefferson City, State of Missouri, this __18th _ day of October 2007.LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
John J. Hickey, Member
Attest:
Secretary

ISSUED BY DIVISION OF WORKERS’ COMPENSATION

FINAL AWARD

Employee: David MaxwellInjury No. 03-099559
*Dependents:None identified*
*Employer:Hogan Transports, Inc.*
Additional Party: Second Injury Fund
Insurer: Zurich North American Insurance Company
Hearing Date: February 14, 2007Checked by: JK/kh
SUMMARY OF FINDINGS
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? August 25, 2003
5. State location where accident occurred or occupational disease contracted: Crawford 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: The employee was driving a truck on Interstate 44 in Crawford County Missouri when he struck the rear of a Missouri Department of Transportation truck that was stopped in his lane of traffic.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Neck / cervical spine
14. Nature and extent of any permanent disability: 25% of the body as a whole
15. Compensation paid to date for temporary total disability: $26,103.92
16. Value necessary medical aid paid to date by employer-insurer: $58,573.57
17. Value necessary medical aid not furnished by employer-insurer: Undetermined
18. Employee's average weekly wage: $916.74 (see findings)
19. Weekly compensation rate:
611.16 for temporary total disability and permanent total disability 347.05 for permanent partial disability
20. Method wages computation: 287.250.1(5) and 287.250.4
21. Amount of compensation payable:
Temporary total disability ($611.16 per week for 38 3/7 weeks):$23,486.01
Permanent partial disability ($347.05 per week for 100 weeks):$34,705.00
Total amount payable by employer-insurer:$58,191.01
22. Second Injury Fund liability: Permanent total disability benefits (see findings).
23. Future requirements awarded: Employer-insurer is directed to furnish additional or future medical aid pursuant to Section 287.140 (see findings).

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Joseph P. Rice

FINDINGS OF FACT AND RULINGS OF LAW

On February 14, 2007, the employee, David Maxwell, appeared in person and by his attorney, Mr. Joseph P. Rice, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Ms. Sarah Heise. The Second Injury Fund was represented at the hearing by Assistant Attorney General, Gregg Johnson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

UNDISPUTED FACTS

  1. On or about August 25, 2003, Hogan Transports, Inc. was a covered employer operating under and subject to the provisions of the Missouri Workers’ Compensation Act, and its liability was fully insured by Zurich North American Insurance Company.
  2. On or about August 25, 2003, David R. Maxwell was an employee of Hogan Transports, Inc., and was working under the provisions of the Missouri Workers’ Compensation Act.
  3. On or about August 25, 2003, the employee sustained an accident or that arose out of and in the course of his employment.
  4. The employer had notice of the employee’s August 25, 2003 accident.
  5. The employee’s claim for compensation was filed within the time allowed by law.
  6. The employee’s injury to his cervical spine and the post traumatic stress disorder with depression were medically causally related to the employee’s accident.
  7. The employer-insurer furnished medical aid in the amount of $58,573.57.
  8. The employer-insurer paid temporary total disability benefits in the amount of $26,103.92. These payments covered 42 5/7 weeks that were paid in two separate time periods. The first period of temporary total disability benefits covered August 26, 2003 through May 24, 2004. The second period covered February 18, 2005 through March 15, 2005.

ISSUES

  1. Average weekly wage and rate of compensation
  2. Future medical aid
  3. Nature and extent of disability
  4. Liability of the Second Injury Fund

EXHIBITS

The following exhibits were offered and admitted into evidence:

Employee’s Exhibits

A. Medical records from Missouri Baptist Hospital B. Medical records of Dr. Kee Park C. Medical records from Pemiscot Memorial Health System D. Medical records of Dr. Stephen Jordan E. Records of Health South F-1. Medical records of Dr. Andrew Wayne F-2. Claimant’s intake sheet from Orthopedic and Sports Medicine

G-1.Report of Dr. Jerome Levy
G-2.November 17, 2005 letter from Dr. Jerome Levy
H.Deposition of Dr. Jerome Levy
I-1.Vocational report of Ms. Susan Shea
I-2.Curriculum Vitae of Susan Shea
J.Deposition of Susan Shea
K.Accident report
L.Photographs
M.Comparative earnings of other truck drivers employed by Hogan Transports, Inc.
N.Deposition of Dr. Kee Park
O.Deposition of Dr. Andrew Wayne
Employer-Insurer’s Exhibits
4.Deposition of June Blaine
5.December 29, 2006 Vocational Assessment of Ms. June Blaine
Note: Employer-insurer’s exhibit’s 1, 2 and 3 were duplicates of evidence offered and admitted by Employee, and were not submitted.
Second Injury Fund
1.June 2, 2006 deposition of employee
FINDINGS OF FACT
Based on the employee’s testimony, the medical records and the other evidence admitted, I find as follows:

Full decision text continues in the plain-text archive copy.

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November 26, 2012

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The Labor and Industrial Relations Commission modified the Administrative Law Judge's June 1, 2012 award, increasing the permanent disability rating from 30% to 35% body as a whole and increasing permanent partial disability compensation from 120 weeks to 140 weeks. The modified total compensation payable to the claimant was increased to $49,996.00.

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Whiteley v. City of Poplar Bluff(2011)

March 22, 2011

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The Commission reversed the Administrative Law Judge's denial of workers' compensation benefits, finding that the employee's October 29, 2006 work accident (while washing a patrol car windshield) was the prevailing factor in causing his cervical spine condition. The case involved determining medical causation for a neck injury claim that the ALJ had previously rejected based partly on the employee's prior workers' compensation settlement from an unrelated 2002 motor vehicle accident.

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