William Hazen v. City of Kirksville

Hearing Date: October 11, 2007, and November 1, 2007

Checked by: RJD/cs

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: October 15, 2003.
5. State location where accident occurred or occupational disease was contracted: Kirksville, Adair 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? Employer is self-insured through Missouri Intergovernmental Risk Management Association, a self-insurance trust.
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee was assisting in moving a 12 -foot $\log$ when he injured his low back.

1. Did accident or occupational disease cause death? No. Date of death? $\mathrm{N} / \mathrm{a}$.
2. Part(s) of body injured by accident or occupational disease: Low back.
3. Nature and extent of any permanent disability: 10 % permanent partial disability of the body as a whole rated at the low back.
4. Compensation paid to-date for temporary disability: $\ 5,637.14.

An evidentiary hearing was held in this case on October 11, 2007 in Kirksville. The record was held open for the submission of the transcript of the December 18, 2006 hearing; that transcript was filed on November 1, 2007. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was finally submitted on December 18, 2007. The evidentiary hearing was held to decide the following issues:

- Whether Claimant is entitled to additional temporary total disability ("TTD") benefits, and, if so, for what period(s) of time;

- Whether Employer shall be ordered to provide Claimant with additional medical care pursuant to Section 287.140, RSMo;

- Whether the work-related accident of October 15, 2003 is the medical and legal cause of the alleged injuries or conditions in Claimant's neck and upper back;

- Whether Claimant's claim for injuries to his neck and upper back are barred by the notice requirement of Section 287.420;

- Whether Employee has reached maximum medical improvement, and, if so, whether it is appropriate for a final award to be issued;

- If a final award is issued, the nature and extent of Claimant's permanent partial disability, if any.

The parties stipulated as follows:

1. The Division of Workers' Compensation has jurisdiction over this case;
2. Venue is proper in Adair County;
3. Both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
4. The rates of compensation are $\$ 361.98 / \ 347.05, based on an average weekly wage of $\ 542.98;
5. Claimant sustained an accident arising out of and in the course of his employment with the City of Kirksville on October 15, 2003;
6. The City of Kirksville was an authorized self-insured employer for Missouri Workers' Compensation at all relevant times, and such self-insurance was handled by Missouri Intergovernmental Risk Management Association, a self-insurance trust;
7. Employer paid medical benefits of $\ 24,562.00; and
8. Employer paid temporary total disability benefits of $\ 5,637.14, representing $154 / 7$ weeks of compensation.

The evidence consisted of the testimony of Claimant, William L. Hazen, the deposition testimony of Dr. Matthew Gornet, the narrative report of Dr. David Ebelke, claim for compensation, report of injury, and extensive medical records.

The original claim for compensation was filed in this case on October 21, 2004 by Employee’s attorney, Harry Nichols. On December 16, 2004, attorney Ellen Morgan entered her appearance on behalf of Employee. On November 9, 2005, the parties appeared for a prehearing conference, at which time Ellen Morgan informed Legal Advisor Robyn that Claimant would be requesting a hardship hearing. On December 23, 2005, Ellen Morgan withdrew as Claimant's attorney.

On February 15, 2006, Claimant appeared at a prehearing conference with attorney Jay Benson, who entered his appearance on that date. Attorney Benson informed the undersigned administrative law judge on that date that he and Harry Nichols would both be representing Claimant; that Claimant would be requesting a hardship hearing, although no physicians' depositions had yet been scheduled; and that Employer was requesting Claimant to see Dr. Chris Wilson in Kansas City, that Claimant had been refusing to see Dr. Wilson, but that he (attorney Benson) had convinced Claimant to see Dr. Wilson, although there was a question as to whether Dr. Wilson had recently closed his medical practice. The undersigned administrative law judge then requested the parties to agree on another physician for an independent medical evaluation. The parties indicated they could not agree, and requested the undersigned administrative law judge to recommend a physician. At that time I informed the parties that I was very reluctant to recommend a physician for numerous reasons; I further indicated that a case on another docket had recently been concluded after the parties had agreed to allow Dr. David Ebelke to perform an independent medical evaluation. The parties indicated that they would each consider having Dr. Ebelke perform an evaluation. Dr. Ebelke performed such an evaluation on April 11, 2006.

On June 29, 2006, attorney Jeff Slattery, on behalf of Employer, filed a REQUEST FOR HEARING - FINAL AWARD. On July 17, 2006, that request was denied as none of the attorneys had responded to the docket clerk's request for available hearing dates.

At the August 8, 2006 prehearing conference, Claimant appeared by counsel Ellen Morgan, who again entered her appearance as counsel for Claimant. Ms. Morgan indicated that she would shortly be requesting a hardship hearing; Mr. Slattery reiterated his request for a final hearing; it was mutually agreed to set the case for evidentiary on October 10, 2006, and the parties were instructed to have all discovery completed by that date.

On August 10, 2006, Jay Benson was given leave to withdraw as attorney for Claimant.

On September 1, 2006, the deposition of Dr. Matthew Gornet was taken.

On September 22, 2006, a conference call was held with Ms. Morgan, Mr. Slattery, Ms. Kristen Paulsmeyer, Assistant Attorney General (on behalf of the Second Injury Fund) and the undersigned administrative law judge. At that time, Ms. Morgan informed the undersigned administrative law judge that she was filing an amended claim alleging neck injuries and depression, and alleging permanent total disability against the Second Injury Fund. Ms. Morgan also informed the undersigned administrative law judge that Claimant was scheduled to see Dr. Poetz that same day for an evaluation of his permanent total disability claim against the Second Injury Fund, and that Claimant also needed a report from Dr. John Bailey regarding the nature of Claimant's neck condition and a causation opinion thereon. For all of these reasons, Ms. Morgan was requesting a continuance of the October 10, 2006 hearing. I informed the parties that I would continue the October 10, 2006 hearing, that I would set the case for a prehearing conference in Kirksville on November 15, 2006 and that I required the following information at the prehearing conference: (A) Whether Mr. Hazen kept his appointment with Dr. Poetz; (B) The status of Dr. Poetz's report and the scheduling of Dr. Poetz's deposition; (C) The status of the scheduling of Mr. Hazen's deposition by the Second Injury Fund, in light of the amended claim alleging permanent total disability; (D) In light of the amended claim alleging neck injuries, a report from Dr. Bailey addressing (at a minimum) the diagnosis of Mr. Hazen's neck condition, planned course of treatment for the neck, and the cause/effect relationship, if any, between the work accident and the neck condition and need for treatment; and (E) In light of the amended claim alleging depre