Mark McCulloch v. TASCO Construction

The above-captioned workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence and considered the whole record, the Commission modifies the award and decision of the administrative law judge dated August 13, 2007 pursuant to $\S 286.090$ RSMo. This Commission adopts the Findings of Fact as set forth in the decision.

The Commission affirms all findings and conclusions of the administrative law judge, except for its analysis and award concerning temporary total disability owed to employee. The hearing record was conflicting regarding the amount of temporary total disability paid to employee. The parties agreed that the weekly amount that should have been paid was $\ 647.36, but that the weekly amount actually paid was only $\ 647.10. At one point, the attorney for employer/insurer indicated that employer had paid employee this incorrect amount, $\ 647.10, for 114 weeks (which would total $\ 73,769.40 ) (Tr. 7). At another point, the same attorney indicated that employer had paid employee a total of $\ 73,564.37 (Tr. 8).

We cannot reconcile these totals. It appears, however, that the administrative law judge based his award on the lower total: $\ 73,564.37. He furthermore held that employee reached maximum medical improvement on April 14, 2005; that employer had continued paying temporary total disability benefits through April 25, 2005; and that employer had, thus, overpaid the temporary total disability benefits by 11 days.

We must modify this portion of the award. Employee should have received temporary total disability benefits from October 16, 2002 (the day after his injury), through April 14, 2005 (the date he reached maximum medical improvement). This period encompasses 130 2/7th weeks. Accordingly, employee was entitled to receive a total of 84,341.76, if the proper weekly amount was paid. Since employer paid employee a lesser amount, it clearly did not overpay him. To the contrary, depending on whether it paid him $\ 73,564.37 or $\$ 73,769.40(114 X \ 647.10), it underpaid him either $\ 10,777.39 or $\ 10,572.36.

The award and decision of Chief Administrative Law Judge Kenneth J. Cain, as modified, is attached hereto and incorporated by 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 7th day of May 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Mark McCulloch

Injury No. 02-111874

Dependents: N/A

Employer: TASCO Construction

Insurer: Transportation Insurance Co.

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

Hearing Date: May 24, 2007

Checked by: KJC/lh

- Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.
2. Was there an accident or incident of occupational disease under the Law? Yes.
3. Date of accident or onset of occupational disease: October 15, 2002.

1. State location where accident occurred or occupational disease was contracted: Grain Valley, Jackson County, Missouri.
2. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
3. Did employer receive proper notice? Yes.
4. Did accident or occupational disease arise out of and in the course of the employment? Yes.
5. Was claim for compensation filed within time required by Law? Yes.
6. Was employer insured by above insurer? Yes.
7. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of his employment as a construction laborer sustained an injury to his right knee and low back when he fell approximately 20 feet from some scaffolding while attempting to keep a wall under construction from falling.
8. Did accident or occupational disease cause death? No. Date of death? N/A
9. Part(s) of body injured by accident or occupational disease: right knee and low back
10. Nature and extent of any permanent disability: Tear in right knee and aggravation of degenerative changes in low back.
11. Compensation paid to-date for temporary disability: $\ 73,564.36.
12. Value necessary medical aid paid to date by employer/insurer? $\ 171,530.13.
13. Value necessary medical aid not furnished by employer/insurer? Undetermined.
14. Employee's average weekly wages: $\ 970.55
15. Weekly compensation rate: $\$ 647.36 / \ 340.12.
16. Method wages computation: By Agreement.

1. Amount of compensation payable:

Unpaid medical expenses: Undetermined.

Weeks for temporary total disability (temporary partial disability) 114 weeks paid at rate of $\ 647.10 for period October 16, 2002 to April 25, 2005. Employee reached maximum medical improvement on April 14, 2005. Benefits also should have been paid at rate of $\ 647.36. Employer made an overpayment of 11 days but underpaid 26 cents per each week paid.

160 weeks for permanent partial disability from employer @ \$340.12 per week = \$54,419.20

N/A weeks of disfigurement

N/A permanent total disability benefits from employer

1. Second Injury Fund liability: Yes.

Weeks of permanent partial disability from Second Injury Fund - N/A

Permanent total disability benefits from Second Injury Fund: Yes

Employee: Mark McCulloch Injury No. 02-111874 Dependents: N/A Employer: TASCO Construction Insurer: Transportation Insurance Co. Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund Hearing Date: May 24, 2007 Checked by: KJC/lh

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

- the nature and extent of the disability sustained by the Employee;

- liability of the Employer for additional temporary total disability benefits;

- liability of the Employer for future medical benefits; and,

- liability of the State Treasurer as Custodian of the Second Injury Fund for compensation.

At the hearing, Mr. Mark McCulloch (hereinafter referred to as Claimant) testified that he was born on July 1, 1957, and that he was 49-years-old. He stated that he could not read or write. He stated that he was placed in special education classes in school. He stated that he earned his high school diploma through a work program and that he last attended classes in the 6th or 7th grade.

Claimant testified that as an adult he had failed in several attempts to learn how to read and write. He stated that he was mentally and physically abused by his father. He stated that his work experience was as a laborer and that his wife completed the job application forms for him.

Claimant testified that due to his injuries he could no longer do any of his past labor jobs. He stated that all of his jobs

required an ability to stand, lift, bend, walk and jump.

Claimant testified that he was injured at work on October 15, 2002, while employed by TASCO Construction. He stated that the injury occurred when a wall under construction began to fall and he jumped from some scaffolding in an effort to grab the wall and in the process fell 20 to 30 feet to the ground below. He stated that he injured his right knee and low back in the accident.

Claimant testified that his right knee immediately "locked up" and that he could not move his back after he landed on the ground. He stated that his Employer instructed him to drive himself to the hospital and to not return to work until he was " 100 percent". He stated that his wife drove him to the doctor's office. He stated that he could hardly move or walk by the time he reached the doctor.

Claimant testified that Dr. Downs performed surgery on his right knee and that Dr. MacMillan did a three-level fusion on his back. He stated that he was later advised that the back surgery had failed.

Claimant complained that his right knee still felt as though it was going to "blow up". He stated that he could no longer feel his toes or heel. He stated that his back pain radiated to his knee. He stated that he could not sleep. He stated that he took pain pills about every four hours. He also stated that after his back surgery he began to experience problems with his right leg and knee giving way, leading to falls.

Claimant complained of emotional problems. He complained of feeling inadequate. He complained that he could only sit and stand for 15 to 25 minutes. He stated that he had to periodically lie down. He stated that he could lift about 30 pounds.

Finally, Claimant alleged that he had not experienced any right knee or low back problems prior to the October 2002 accident at work. He stated that he had not filed any workers' compensation claims or lawsuits for personal injuries prior to October 2002.

On cross-examination by his employer, Claimant admitted that Dr. MacMillan had released him from treatment. He admitted that Dr. MacMillan only restricted him to no lifting over 20 pounds and no squatting or bending. He admitted that he had not looked for work since the release from treatment. He also stated, however, that his family doctor was now prescribing the medications previously recommended by Dr. MacMillan.

Claimant admitted that his inability to read and write had affected his ability to get certain jobs. He admitted that on one occasion he was fired from a job due to his inability to follow directions.

On cross-examination by the Second Injury Fund, testified that the treatment did not improve his back or knee. He alleged that that his pain medication had caused memory problems and an inability to concentrate. He stated that he had to lie down about four times per day. He stated that he had not received any counseling prior to October 2002.

The medical evidence consisted of the deposition testimony of Drs. P. Brent Koprivica, M.D., Theodore Sandow, M.D., Patrick Hughes, M.D., and Jeffery MacMillan, M.D. and various reports and records. Dr. Koprivica, testifying on Claimant's behalf, indicated that he had examined Claimant on April 16, 2005. Pages 6 through 9, 14 through 17, 22 through 25,30 through 33,38 through 41,46 through 49 and 54 through 57, however, were missing from his deposition.

Dr. Koprivica outlined Claimant's treatment and stated that Claimant was positive in three of five areas on testing for exaggerated or inappropriate pain behaviors. He admitted that Claimant had non-anatomic neurologic findings. He concluded, however, that Claimant was not over-reacting. He also concluded that Claimant was rendered permanently and totally disabled due to physical and emotional injuries Claimant sustained in the October 2002 accident at work.

On cross-examination by Claimant's