Ova Scott v. Asarco, Inc.

Employee: Ova Scott

Injury No. 96-107734

Dependents: Undetermined

Employer: Assarco, Inc.

Additional Party: Second Injury Fund

Insurer: Assarco, Inc., self-insured in 1996; current successor party - Missouri Private Sector Individual Self-Insurer's Guarantee Corp. pursuant to Section 287.860 RSMo. 1996 c/o Corporate Claims Management Inc.

Hearing Date: August 9, 2005 (delayed due to bankruptcy stay)

Checked by: JK/kh

July 12, 2007

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? September 9, 1996
5. State location where accident occurred or occupational disease contracted: Reynolds 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? Self-insured with the Missouri Private Sector Individual Self-Insurer's Guarantee Corporation as the current successor party
11. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was lifting a sand bag and injured his cervical spine.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Cervical spine
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to date for temporary total disability: $\ 7,353.32
16. Value necessary medical aid paid to date by employer-insurer: $\ 20,591.73

1. Value necessary medical aid not furnished by employer-insurer: $\ 577.94
2. Employee's average weekly wage: $\ 749.61
3. Weekly compensation rate: $\ 499.74 for temporary total disability and permanent total disability and $\ 268.72 for permanent partial disability
4. Method wages computation: By agreement
5. Amount of compensation payable: (See findings)

Previously incurred medical expenses: $\ 577.94

Permanent Total Disability: $\ 499.74 per week commencing on April 7, 2000, and continuing for the remainder of the employee's life or until suspended, if the employee is restored to his regular employment or its equivalent as provided in Section 287.200 RSMo.

1. Second Injury Fund liability: Claim denied (see findings).
2. Future requirements awarded: Future medical aid pursuant to Section 287.140 RSMo. and permanent total disability benefits.

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: Mr. Christopher Tucker

On August 9, 2005, the employee, Ova B. Scott, appeared in person and by his attorney, Mr. Christopher Tucker, for a hearing for a final award. The employer was represented at the hearing on August 9, 2005 by its attorney, Mr. Robert Haeckel. The Second Injury Fund was represented at the hearing by Assistant Attorney General Gregg Johnson. Shortly after the hearing was concluded Asarco filed for Chapter 11 Reorganization and Protection under the supervision of the U.S. Bankruptcy Court in Corpus Christi, Texas. The workers' compensation proceedings were subsequently stayed by the U.S. Bankruptcy Court. In October of 2006, the Missouri Division of Workers' Compensation, Director of Self-insured Bonds, Mr. Rick Cole, declared self-insured, Asarco, Inc. insolvent in relation to its pending workers' compensation claims, and the claim under injury number 96-107734 was referred to the Missouri Private Sector Individual Self-Insurer's Guarantee Corporation c/o Corporate Claims Management, Inc., for administration pursuant to Section 287.860 RSMo. 1996. The Missouri Private Sector Individual Self-Insurer's Guarantee Corporation retained Evans \& Dixon, LLC for representation of this claim on behalf of Missouri Private Sector Individual Self-Insurer's Guarantee Corporation.

Given the length of time that the matter had been delayed because of the bankruptcy stay, the parties agreed to have a transcript prepared of the August 9, 2005 hearing, and requested an additional hearing to allow the parties to present further evidence on the disputed issues. The second hearing was scheduled and held on July 12, 2007. On that date, the employee, Ova B. Scott appeared in person, and by his attorney, Mr. Christopher T. Tucker. The Missouri Private Sector Individual Self-Insurer's Guarantee Corporation appeared at the hearing by its attorney, Mr. Robert Haeckel. At the time of the second hearing, Mr. Haeckel was not representing Asarco, Inc. and no one appeared on behalf of Asarco, Inc. The Second Injury Fund was represented at the July 12, 2007 hearing by Assistant Attorney General Gregg Johnson.

At the time of the hearings, 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:

1. On or about September 9, 1996, Asarco, Inc., was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and it was duly qualified as a self-insured employer.
2. On or about September 9, 1996, Ova B. Scott was an employee of Asarco, Inc., and was working under the provisions of the Missouri Workers' Compensation Act.
3. On or about September 9, 1996, the employee sustained an accident that arose out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim for compensation was filed within the time allowed by law.

The following exhibits were offered and admitted into evidence:

A. Medical records from various healthcare providers B. Medical bills C. List of healthcare providers D. Medical records for pre-existing injuries E. Deposition of Dr. Raymond F. Cohen F. Deposition of Dr. Henry F. Steele, III G. Deposition of Donna Kisslinger Abram H. Report of Injury I. Additional medical records of Dr. Henry Steele J. Records from Brown’s Pharmacy

None offered

Based on the employee’s testimony, the medical records and the other evidence admitted, I find as follows:

- Ova B. Scott (“employee”) was 49-years-old at the time of the last hearing on July 12, 2007. The employee’s education was limited to completing the eleventh grade. The employee did not obtain a GED. The employee’s work history was limited to jobs that required heavy manual labor, and included jobs with Alberici Construction, Black River Asphalt, and Daly Oil Tools.

- The employee had pre-existing injuries to his low back and his right ankle. On October 3, 1990, the employee injured his low back

while laying railroad track for the employer. The employee had low back surgery on December 11, 1990 by Dr. Carl Jacobs. Dr. Jacobs performed a laminectomy at L4-L5 (Employee's exhibit D, \#2). The employee settled his workers' compensation claimfor the low back injury for 21.25 percent of his body as a whole. After recovering from his low back injury, the employee returned towork without restrictions. Although the employee had occasional back pain and took medication on a few occasions, the employee was able to perform heavy work, and was able to function at home and at work without any limitations.

The employee fractured his right ankle in 1988. The fracture was treated with a cast, but the employee did not require surgery. After recovering from his fractured ankle, the employee returned to work without restrictions or limitations. The employee indicated that after his fracture had healed he did fine except for occasionally experiencing pain that was similar to a sprained ankle.

On September 9, 1996, the employee was driving a locomotive for Asarco and injured his neck while lifting a heavy bag of sand. The employee reported his accident and was authorized to see Dr. Charles Cunningham. The employee's initial complaints were of pain in his neck, between his shoulder blades, and in the area of his low back (Employee's exhibit A, \#1).

After his initial treatment by Dr. Cunningham, the employee continued to experience significant pain in his cervical spine. Although the employer repeatedly ignored the employee's request for treatment, the employer eventually authorized the employee to see a physician sometime in January of 1998. The employee received conservative treatment from a number of physicians, including pain injections from Dr. Andrew Walker at the St. Francis Medical Center in March of 1998. Two bills from St. Francis Medical Center totaling $\ 577.94 were submitted by the employee as part of employee's exhibit B.

After conservative treatment failed to improve his symptoms, the employer authorized treatment with Dr. Peter Merkin, who is an orthopedic surgeon in St. Louis, Missouri. On August 6, 1998, Dr. Merkin performed an anterior cervical interbody fusion at the C5-6 level.

The employee was taken off work from August 5, 1998 through November 8, 1998, and received temporary total disability benefits during this time period.

Both the medical records and the employee's