Jamey Blackerby v. Rocky Ridge Construction

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: 8/04/05
5. State location where accident occurred or occupational disease was contracted: PULASKI COUNTY, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? YES

- Did employer receive proper notice? YES

- Did accident or occupational disease arise out of and in the course of the employment? YES

1. Was claim for compensation filed within time required by Law? YES
2. Was employer insured by above insurer? YES
3. Describe work employee was doing and how accident occurred or occupational disease contracted: WHILE TRYING TO LIFT AND PLACE A BEAM WITH A COWORKER THE COWORKER DROPPED ONE END OF A BEAM WHILE CLAIMANT WAS HOLDING THE OTHER END, CAUSING CLAIMANT TO INJURE HIS BACK.
4. Did accident or occupational disease cause death? NO Date of death? N/A

- Part(s) of body injured by accident or occupational disease: BODY AS A WHOLE

1. Nature and extent of any permanent disability: PERMENANT AND TOTAL

- Compensation paid to-date for temporary disability: \$7,040.00

- Value necessary medical aid not furnished by employer/insurer? \11,033.32

- Employee's average weekly wages: \ 434.50

- Weekly compensation rate: $\ 289.77

1. Method wages computation: ACCORDING TO LAW

1. Amount of compensation payable:

Unpaid medical expenses: $\ 11,033.32

$251 / 7$ weeks of temporary total disability (or temporary partial disability) AT \$9.77, FOR THE DIFFERENCE BETWEEN AMOUNT PAID OF \$280 AND THE ADJUDICATED RATE OF \$289.77.

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning FEBRUARY 8, 2006, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: 0

Permanent total disability benefits from Second Injury Fund:

weekly differential (0) payable by SIF for 0weeks, beginning N/A

and, thereafter, for Claimant's lifetime

Total: SEE AWARD

1. Future requirements awarded: PERMANENT TOTAL DISABILITY AND FUTURE MEDICAL TREATMENT

Said payments to begin immediately 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:

RANDALL BARNES

The parties appeared before the undersigned administrative law judge on June 21, 2007, for a final hearing. The record remained open until June 29, 2007. The claimant appeared in person represented by Randall Barnes. The employer and insurer appeared represented by Michael Mayes. The Second Injury Fund appeared represented by Andrew Lykowski. Memorandums of law were filed by July 23, 2007.

The parties stipulated to the following facts. On or about August 4, 2005, Rocky Ridge Construction was an employer operating subject to The Missouri Workers' Compensation Law. The employer's liability was fully insured by Missouri Employers Mutual Insurance Company. On the alleged injury date of August 4, 2005, Jamey Blackerby was an employee of the employer. The claimant was working subject to the Missouri Workers Compensation Law. On or about August 4, 2005, the claimant sustained an accident, which arose out of and in the course and scope of employment. This employment occurred in Pulaski County, Missouri. The claimant notified the employer of his injury as required by Section, 287.420, RSMo. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo. Temporary disability benefits have been paid to the claimant in the amount of $7,040, representing 25 1/7 weeks in disability benefits, at the rate of 280. The employer and insurer have paid medical benefits in the amount of 38,955.25. The attorney fee being sought is 25%. ISSUES: 1. Whether the accident caused the injuries and disabilities for which benefits are being claimed; namely, the current physical symptoms and psychological condition. 2. Whether the employer is obligated to pay past medical expenses. 3. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries. 4. What is the proper rate. 5. The nature and extent of permanent disabilities, including permanent and total disability from February 8, 2006, the last date temporary total disability was paid. 6. The liability of the Second Injury Fund for permanent total disability. FINDINGS OF FACT: The main issues in this case are whether the work injuries caused the claimant's current physical and mental complaints and the nature and extent of his permanent disability, including whether he is permanently and totally disabled, and if he is, whether it is from the last injury alone or from a combination of the last injury and prior disabilities. The claimant is a 35 year old male. He is married with two children and two stepchildren. The claimant was born in the State of California. He completed the eighth grade and then attempted to attend high school, but dropped out in the tenth grade. He has not received any subsequent formal or vocational education since that time. He tried and failed to obtain his general education degree in 1998. Claimant has always had difficulty reading and writing. This was the reason he dropped out of school. Claimant has always worked jobs where he was not required to read. He never filled out an application himself. If an employer required an application he would take it home and have his wife fill it out for him. After quitting school, claimant's step-father and mother moved to Missouri and he remained in California. He quit school because of poor grades and problems reading and writing. His first job was as a laborer in a potato shed. He then worked as a common laborer in the oil fields of California. In 1996 he moved to

Missouri where he worked as a laborer in an engine factory and for several marinas until he ventured into the construction business.

Claimant testified that before the August 4, 2005 incident, he had been injured on two occasions. Once, when he suffered a laceration on his foot, and once when he was shot through the hand with a nail gun. Neither injury resulted in a workers compensation claim, nor did either injury affect his ability to work. Although he has had other injuries, including a carpal tunnel release and an injury suffered in a car wreck, he did not feel that those posed any hindrance to employment.

He began his employment as a general construction laborer with Rocky Ridge Construction Company LLC on or about May 23, 2005.

He worked full-time until August 4, 2005, and his rate of pay was $\ 12.00 per hour. He testified that he sometimes worked over 40 hours a week. He also said that he worked 3 or 4 Saturdays for which he was paid cash. There is no record of these hours. He started on a Monday and the work week started on Wednesday, so the first week he did not work a full week. The holidays of Memorial Day, Fourth of July, and Labor Day were not regular or scheduled work days. Employer and insurer admitted wage records that covered 12 weeks including the week he was injured and the partial week when he began working. In the other 10 weeks he earned a total of $\ 4,150.50.

Robin Gower, the bookkeeper for employer, testified. She stated that the wage statement she prepared correctly reflected the timesheets she had, and that she did not find any Saturday's claimant worked.

Craig Gower, the owner of Rocky Ridge Construction, testified. He did not remember the claimant ever working on a Saturday, and he did not remember paying him for working on a Saturday. He did remember giving the claimant $\ 50 when his truck was broken down and he was short on money.

On the date of injury, August 4, 2005, claimant was assisting another employee in placing a twenty six foot, two inch by twelve inch board onto the roof of a home. Claimant was holding on to one end of the board while kneeling on the third tier of a scaffold. The other employee, who was holding the other end of the board, was on the roof of the home. While lifting the board, the other employee slipped and dropped his end of the board. In an attempt to prevent the board from falling, claimant held onto the board but was twisted downward and sustained the full weight of the board.

Claimant immediately felt pain in his back. He descended from the scaffold and informed his boss of the injury. He remained at work but was unable to perform any subsequent duties and has not returned to any type of employment since that date.

Immediately after the injury, claimant requested his employer to provide medical treatment. That request was denied. On August 8, 2005, after waiting three days for authorized treatment, claimant went to his family physician, Dr. Joseph Rakestraw. He presented with complaints of lower back pain and pain to the right wrist. He was prescribed Vicoden and Flexeril. He was also given samples of Lexapro. On August 9, 2005 an X-ray of the lumbar spine was performed. In addition, a work excuse was given for August 9 until August 14.

On August 20, 2005, clai