Alan Avery v. Botkin Lumber Company

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

- Was claim for compensation filed within time required by law? Yes

- Was employer insured by above insurer? Yes

- Describe work employee was doing and how accident happened or occupational disease contracted: The employee died from a heart attack that he suffered while at work for Botkin Lumber Company.

- Did accident or occupational disease cause death? Yes

- Parts of body injured by accident or occupational disease: Death

- Nature and extent of any permanent disability: Death

- Compensation paid to date for temporary total disability: $\ 0

- Value necessary medical aid paid to date by employer-insurer: $\ 0

- Value necessary medical aid not furnished by employer-insurer: $\ 9,119.30

- Employee's average weekly wage: $\ 332.94

- Weekly compensation rate: $\ 221.96

- Method wages computation: By agreement

- Amount of compensation payable: See Award

1. Second Injury Fund liability: N/A

- Future requirements awarded: None

Said payments shall be payable as provided in the statement of 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: James E. Hopkins

On September 10, 2007, the employee's widow Jo Ellen Avery appeared in person and by her attorney, James E. Hopkins, for a hearing for a final award. Its attorney, Paul D. Huck, represented the employer-insurer at the hearing. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. 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 statement of the findings of fact and rulings of law, are set forth below as follows:

- The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by Missouri Wood Industry Insurance Trust.

- On or about the date of the alleged accident or occupational disease the employee was an employee of Botkin Lumber Company and was working under the Workers' Compensation Act.

- The employer had notice of the employee's claim.

- The employee's claim was filed within the time allowed by law.

- The employee's average weekly wage was $\ 332.94 per week. His rate for all purposes is $\ 221.96 per week.

- The employer-insurer paid $\ 0 in medical aid.

- The employer-insurer paid $\ 0 in temporary disability benefits.

- The parties stipulated that if the employee wins this case, $\ 9,119.30 in medical bills should be ordered as part of the compensation in this case.

- The parties stipulated that if the employee wins this case, $\ 158.54 in temporary disability payments should be ordered as part of the compensation in this case.

- The parties stipulated that if the employee wins this case, the funeral bill of $\ 4,347.31 should be paid as part of the compensation in this case.

- Accident

- Medical Causation

- Previously Incurred Medical Bills

- Death Benefits and Distribution of Death Benefits

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

- Marriage License of Alan D. Avery and Jo Ellen Avery

- Birth Certificate of Brittany Calhoun

- Death Certificate of Alan D. Avery

- Medicare Lien

- Bill from Amick-Burnett Funeral Chapel in the amount of \$4,347.71

- Medical bill from Neurological Associates of Cape Girardeau, Inc. in the amount of $\ 470.00

- Medical bills from Cape Lab \& Pathology in the amount of $\ 577.00

- Bills from Cape County Private Ambulance in the amount of $\ 403.00

- Medical records from Neurological Associates of Cape Girardeau

- Medical records from Cape County Private Ambulance

- Medical records from Immediate Healthcare, Inc.

- Medical records from St. Francis Medical Center from July 23, 2000 through August 16, 2000

- Medical records from Cardiovascular Consultants of Cape Girardeau, Inc.

- Certified Meteorological Records from August 10, 2000

- Key to METAR Surface Weather Observation/Celsius to Fahrenheit Conversion Chart

- Deposition of Michael Siegal,

- Curriculum Vitae of Michael Siegal,

- Report of Michael Siegal dated January 18, 2003

- Investigative report detailing statement of Cory Dohogne, Randy Corneal and Reuben Jones

Employer-Insurer's Exhibits

- Supervisor's Incident/Accident Review Report dated 8/10/00

- Form 1/Report of Injury dated 8/11/00

- Deposition of David A. Law, M.D.

- Affidavit/Admission Records of Alan D. Avery from Gibson Recovery Center

- Additional records of Intermediate Health Care (supplements Employee Exhibit K)

Alan D. Avery was an employee of Botkin Lumber Company. On August 10, 2000 he had a heart attack at work. He never regained consciousness and died at St. Francis Medical Center on August 16, 2000, and was forty-one years old at the time of his death,

Botkin Lumber Company/Botkin is located in Cape Girardeau County, Missouri. They are in the business of preparing and cutting stock to be used in the manufacture of wooden pallets. In order to make the pallets, Botkin employs twelve to fifteen people to work on a production line. Some of the different jobs on the production line involve rating and grading lumber, operating a chop saw, operating a champfer machine and stacking short and long lumber.

Several witnesses who worked for Botkin and were working on the production line at the time the employee had his heart attack testified at trial. Each of the witnesses had signed a written statement prior to their trial testimony. None of the witnesses worked for Botkin at the time of the trial. In general they testified about the different types of work at

Botkin, described the physical plant and working environment, their relationship with the employee, and what they observed when the employee had his heart attack.

John Reuben Jones testified that he worked for Botkin on two occasions for approximately one year each time. He indicated that he worked as a chop saw operator and a grader. He described the job of operating the chop saw as a very strenuous job as well as being the fastest and most difficult job on the production line. He indicated that workers would work two-hour shifts at the different jobs and then change jobs at the end of the two-hour period. He testified that the chop saw operator had to lift every board for the two hours shift and was constantly pulling boards with his left hand to load them into the chop saw. He indicated that the job was more physically demanding if you were working with stock as long as twenty to twenty-four feet as that lumber was heavier. He further testified that everyone on the production line was paid by piece rate-everyone was paid the same way. If everyone worked hard and fast, everyone got paid more, essentially there would be more pay for the more you produced.

Mr. Jones indicated that the production line is in a building that has no air conditioning and is always twenty degrees hotter than it is outside. He said the building had three sliding doors on the west and north sides and had twenty-five foot ceilings with fans, however, if there was no breeze you had no ventilation. He testified that the production line had no water jugs, you had to provide your own, and that the bathroom was approximately fifty feet from the line. He further indicated that the machinery did not produce much heat as they ran by air.

He also testified that he was working twenty-five feet away from the employee when he had his heart attack. He testified that he saw him go down and he then shut the line down. He testified that earlier in the shift, prior to his collapse, he looked at the employee and he looked okay. He testified that he collapsed somewhere in the 2nd period beginning at 6:30 PM and ending at 9:00 PM, and that he had been operating the chop saw. He further testified that prior to his collapse, the employee was a pasty blue color, was slow and trying to stay up, and was not conscious when he collapsed. After his collapse, other employees administered CPR and 911 was called.

Mr. Jones testified that he only knew the employee from working with him, but was aware that he had previously left work to go home or to the ER as the employee thought he had heart problems and had complained about chest pains. He also testified that the employee had requested light duty work prior to his collapse but he did not know when. He said the employee was not given light duty. He also testified that the employee smoked but he did not know if he used drugs.

Randy Curneal was working on the production line with the employee on August 10, 2000. He also testified that operating the chop saw was a physically demanding job and that the chop saw operator set the pace. He said operating the chop saw was the hardest work of all. In addition he testified that in the summer it is very hot and that it was fif