Gregg Peery v. Mid Continent Industrial

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-084324

Employee: Gregg Allen Peery, deceased

Dependent: Diane L. Peery

Employer: Mid Continent Industrial

Insurer: Hartford Underwriters Insurance Company

Date of Accident: July 12, 2004

Place and County of Accident: St. Joseph, Buchanan 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 July 27, 2007, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Robert B. Miner, issued July 27, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 25th day of February 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Employee: Gregg Allen Peery

Injury No.: 04-084324

Employer: Mid Continent Industrial

Dependent: Diane L. Peery

1. Second Injury Fund liability: None. (Second Injury Fund is not a party in this case.

TOTAL: None.

1. Future requirements awarded: None.

Employee: Gregg Allen Peery

Injury No: 04-084324

Dependent: Diane L. Peery

Employer: Mid Continent Industrial

Insurer: Hartford Underwriters Ins. Co. Checked by: RBM

A final hearing was held in this case in St. Joseph, Missouri on April 23, 2007. Diane L. Peery, ("Claimant"), dependent widow of deceased Employee, Gregg Allen Peery ("Employee"), who died on July 4, 2005, appeared in person. Attorney Nickolas A. Marshall, appeared on behalf of Claimant. Employer, Mid Continent Industrial ("Employer") and its insurer, Hartford Underwriters Ins. Co. ("Insurer") appeared by and through their attorney, J. Sean Dumm. The Second Injury Fund is not a party in this case.

Counsel for Employer/Insurer advised at the beginning of the hearing that he had intended to call Mike Tate, supervisor of Employer, as a witness at the hearing, but that Mike Tate was unavailable, according to Employer, because of his wife's illness. Counsel for Employer/Insurer requested that the record in the case be left open for up to thirty days from the date of the April 23, 2007 hearing (which was May 23, 2007) to permit him to offer additional deposition testimony of Mike Tate, regarding his observations of Employee and causation. Counsel did not request a continuance of the scheduled April 23, 2007 hearing. Claimant's counsel did not object to the request, with the understanding that he be permitted to depose additional witnesses within the thirty day period relating to the testimony of Mike Tate. The request to keep the record open for up to an additional thirty days from April 23, 2007 was granted. Counsel for Employer/ Insurer wrote a letter dated May 22, 2007 that was received by the Division on May 23, 2007 advising that they were unable to take or schedule the deposition of Mike Tate, and that the case was now ready for submission and determination. The record in this case was closed on May 23, 2007. Claimant's attorney requested that the Administrative Law Judge take judicial notice of the Division of Workers Compensation's file in this case.

Nicholas A. Marshall requested a 25\% attorney's fee from all compensation awarded.

Stipulations

It was stipulated between Claimant and Employer/Insurer that:

1. On or about July 12, 2004, Mid Continent Industrial was an employer operating under the provisions of the Missouri Workers' Compensation law and that their liability under said Law was fully insured by Hartford Underwriters Ins. Co.
2. On or about July 12, 2004, Gregg Allen Peery was an employee of Mid Continent Industrial and was working under the provisions of the Missouri Workers' Compensation Law.
3. Employer had notice of the alleged injury, and a Claim for Compensation was filed within the time

prescribed by law.

1. The average weekly wage was agreed to be $\ 992.05, and the weekly compensation rate for temporary total disability, permanent total disability, and death is $\ 661.37, and the weekly compensation rate for permanent partial disability is $\ 354.05.
2. Compensation in the amount of $\ 33,068.50, representing temporary total disability benefits at the rate of $\ 661.37 per week for the period July 13, 2004 to June 26, 2005, had been paid by Employer/Insurer.
3. Medical aid in the amount of $\ 16,504.17 had been furnished by Employer/Insurer.

Issues

It was stipulated between Claimant and Employer/Insurer that the issues in dispute to be determined in this case were:

1. Was Employee's death medically causally related to an accident or occupational disease that arose out of and in the course of his employment for Employer, resulting in Claimant being entitled to death benefits, including burial expenses?
2. What is Employer/Insurer's liability, if any, for permanent partial disability benefits?
3. What is Employer/Insurer's liability, if any, for past medical bills?

Claimant offered the following Exhibits which were admitted in evidence without objection:

Exhibit A—September 19, 2005 letter from Dr. Allen Parmet.

Exhibit C—Employee's Death Certificate.

Exhibit D-Employee's and Claimant's Marriage Certificate.

Exhibit F—Heartland Regional Medical bill.

Exhibit I— Medical records.

Exhibit J—Dr. Parmet's CV dated 6-30-05.

Exhibit K—Dr. Parmet's CV dated 1-1-07.

Exhibit L—Answer to Amended Claim for Compensation.

Exhibit M—Answer to Claim for Compensation.

Claimant offered the following Exhibit which was admitted in evidence over the objection of Employer/Insurer: Exhibit N—Photograph of Employee.

Claimant also offered Exhibit B, a letter dated September 19, 2005 from Dr. Parmet, and Exhibit H, a section from the Code of Federal Regulations. Claimant also asked the Administrative Law Judge to take judicial notice of Section 201.322 of the Code of Federal Regulations set forth in Exhibit H.

Employer/Insurer's counsel objected to the admission of Exhibit B and Exhibit H, and to the Court taking judicial notice of Section 201.322 of the Code of Federal Regulations. The Court took under advisement the

offers of these Exhibits and the request to take judicial notice of this federal regulation. Employer/Insurer's objections are overruled. Exhibits B and H are admitted, and judicial notice is taken of Section 201.322 of the Code of Federal Regulations.

Employer/Insurer offered the following Exhibits which were admitted in evidence without objection:

Exhibit 1—Deposition of Dr. Howard Worman.

Exhibit E—Deposition of Dr. Allen Parmet.

Exhibit 2—Dr. Worman Notice of Filing of Medical Report.

Claimant's counsel called Claimant and Dr. Allen Parmet as witnesses at the hearing. No deposition testimony of Employee was offered at the hearing.

This case is brought by Diane L. Peery ("Claimant"), widow of Gregg Allen Peery ("Employee"), a carpenter, who sustained a back injury on July 12, 2004 in the course of his employment for Employer. Employee had conservative treatment until December 28, 2004 when he had an L4-5 microdiscectomy on the left. He continued to have pain and radiculopathy after surgery, and saw two physical medicine and rehabilitation doctors in March and April 2005. He was hospitalized in April 2005 for end stage liver disease. He died on July 4, 2005 at the age of forty-five from liver failure before he had completed treatment of his back injury. He had a history of drinking several beers a day over many years. Employee was prescribed pain medication containing acetaminophen to treat his back injury. Claimant asserts that Employee died from liver failure caused by his taking acetaminophen to treat his back injury, and that she is entitled to compensation for Employee's death. She also alleges that she is entitled to receive permanent partial disability benefits resulting from Employee's back injury. For the following reasons, I deny Claimant's claim for benefits.

Gregg Allen Peery ("Employee") was hired by Employer as a carpenter on June 29, 2004.[1] His wife, Diane L. Peery, ("Claimant"), testified that she took Employee to work on July 12, 2004 and dropped him off. He walked into work with the other guys. He called her before noon and said he needed to go to the clinic because he was hurt. He complained about his rear and down into his leg. He was not able to sit. He had to recline in his seat in the car on the way to the clinic.

Exhibit I contained medical treatment records pertaining to Employee.

Employee went to Heartland Occupational Medicine on July 12, 2004 complaining of cramping in left leg carrying heavy panels at work. He saw Mike Stroud, NP, whose impression was left sciatica. Employee was taken off work and given a prescription for Medrol Dosepak, Skelaxin, and Lortab,[2] one every six hours as needed for pain. Employee returned and saw Richard Campbell, NP, on July 14, 2004. His chief complaint was lumbar spine and left lower extremity. The diagnosis was lumbar strain/pain with left radiculopathy. The plan was to schedule an MRI of the lumbar spine. Medications were continued. Employee saw Dr. David Cathcart at Heartland Occupational Medicine on July 19, 2004. Dr. Cathcart noted that Employee had been having some pain in his back radiating down his left leg and it started after a work-related injury. His impression was lumbosacral strain with probably L5-S1 ruptured disk to the left. He needed an M