Larry Busby v. D. C. Cycle Ltd.

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 97-495777

Employee: Larry Busby

Employer: D. C. Cycle Ltd.

Insurer: Uninsured

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

Date of Accident: July 3, 1997

Place and County of Accident: Springfield, Greene County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 24, 2008. The award and decision of Administrative Law Judge David L. Zerrer, issued March 24, 2008, is attached and incorporated by this 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 9th day of October 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

1. Value necessary medical aid not furnished by employer/insurer? $\ 14,465.20
2. Employee's average weekly wages: $\ 268.15
3. Weekly compensation rate: $\ 178.77
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: $\ 14,465.20

$6-2 / 7$ weeks of temporary total disability (or temporary partial disability)--\$1,123.69

72 weeks of permanent partial disability from Employer --\$12,871.44

-0 -weeks of disfigurement from Employer

1. Second Injury Fund liability: Yes X No Open

-0- weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: $\ 14,465.20

Total: $\ 28,460.33

1. Future requirements awarded: None

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: Ellen E. Morgan

Employee: Larry Busby

Employer: D.C. Cycle Ltd.

Additional Party: Second Injury Fund

Insurer: Uninsured

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

On the 16th day of January, 2008, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by his attorney, Ellen E. Morgan. The Employer appeared by its corporate representative, Donald Bennett. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General, Cara Harris. Health Care Provided, Cox Medical Center, appeared by

its attorney, Jason Shaffer.

The parties have entered into a stipulation as to certain facts which are not in dispute as follows, to wit: The alleged Employer's liability was uninsured; on the alleged injury date of July 3, 1997, Larry Busby was an employee of the Employer, D.C. Cycle Ltd.; the parties agree that on or about July 3, 1997, Claimant sustained an accident which arose out of the course of and scope of employment with D.C. Cycle Ltd.; the employment occurred in Greene County, Missouri, and Greene County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was $\ 268.15, sufficient to allow a compensation rate of $\ 178.77 for temporary total disability and permanent partial disability; no temporary benefits have been paid prior to the date of this hearing; no medical benefits have been paid prior to the date of this hearing; the Claimant's attorney requests approval of an attorney fee of 25 % of the amount of any award; the amount of the Veteran's Administration lien for medical expenses, in the sum of $\ 13,461.00, was for reasonable and necessary medical treatment administered to the Claimant to cure and relieve the effects of his injuries of July 3, 1997; the amount of Cox Medical Center's medical fee dispute, in the sum of $\ 1,004.20, was for reasonable and necessary medical treatment administered to the Claimant to cure and relieve the effects of the injuries of July 3, 1997.

Whether on or about July 3, 1997, the Employer, D.C. Cycle Ltd., was operating subject to the Missouri Workers' Compensation law.

Whether the accident caused the injuries and disabilities for which benefits are now being claimed.

Whether the Employer is obligated to pay for past medical expense.

Any temporary total benefits owed to the Claimant.

The nature and extent of any permanent disabilities.

The liability of the Second Injury Fund for reimbursement of medical expenses incurred by the Claimant.

A legal file was adopted by the Administrative Law Judge consisting of the following documents, to wit: Claim for Compensation, filed with the Division July 28, 1998; Amended Claim for Compensation, filed with the Division August 17, 1998; Answer to Claim for Compensation, filed by the Employer November 1, 2001;Amended Answer to Claimant for Compensation, filed with the Division October 11, 2005; Answer to Claim for Compensation, filed by the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, through the Office of Attorney General, August 28, 1998; Notice of Services Provided \& Request for Direct Payment, filed with the Division by Cox Medical Center.

Claimant introduced and there were admitted into evidence the following exhibits:

A. Deposition of Donald Cornell Bennett Jr.

B. Deposition of Dr. Robert Poetz

C. Medial records of Veteran's Administration Hospital

D. Medical bills of Cox medical Center and Veteran's Administration Hospital

E. Medical records of Cox Medical Center

F. Original Claim for Compensation, Amended Claim for Compensation, and Employer Answer to Claim for Compensation

G. Business records of D.C. Cycle, Be-Back Motors, and Donald Bennett

H. Correspondence from Division of Workers' Compensation dated September 3, 1998, August 25, 1998, August 17, 1998, and August 2, 1998

I. Copy of subpoena (not offered)

J. Copy of subpoena issued for Don Bennett and Chelly Bennett

K. Correspondence of D.C. Cycle to Division of Workers' Compensation

Larry Busby, claimant herein, testified in his own behalf. Larry Busby worked for D.C. Cycle in 1997. He testified that his duties included working on motorcycles, assisting in the purchase and sale of used motorcycle parts, and from time to time working on cars.

Claimant testified that on July 3, 1997, he was working on a motorcycle as part of his regular work tasks, working on a faulty kick start mechanism. After working on the motorcycle for a period of time, Claimant tried to start the machine. Claimant stood on the kick starter and on the second attempt to start the machine, the kick starter malfunctioned causing the motorcycle to land on Claimant's right leg in the area of his knee. Claimant fell to the floor and Donald Bennett came out to the shop area to assist Claimant. Claimant was removed to the hospital by Donald Bennett in the personal vehicle of Donald Bennett.

Claimant was taken to Cox North Hospital. While at the emergency room, Claimant asked Donald Bennett if he had insurance and Claimant was told "No, you're pretty much on your own." Claimant was advised by medical staff at the emergency room that Claimant's right leg was fractured at the knee and that surgery would be necessary.

Claimant testified that he made arrangements for transfer to the Veteran's Administration Hospital in Columbia, Missouri, for further treatment. Claimant further testified that the emergency room staff indicated that Claimant would have to be transported by ambulance to Columbia. Arrangements were then made and Claimant was transported to the V.A. Hospital in Columbia, Missouri.

Claimant testified that he received surgery which included the placement of plates and screws in his leg and that he was inpatient at the V.A. Hospital for five or six days. Claimant returned to Springfield after his release from the V.A. Hospital and was off work for about 6 or 7 weeks before he returned to work with the assistance of crutches.

Claimant testified that Donald Bennett was the boss of D.C. Cycle and that Bennett approved all purchases and sales of used parts. Claimant further testified that Donald Bennett's spouse worked behind the sales counter from time to time as well as Ian Nax and Chris Passantino. He further testified that there was a bookkeeper named Hutchison who came into the store about one time per week.

Claimant testified that D.C. Cycle business consisted of one room used for parts and supplies inventory and another room which was a sales showroom. In addition, there was a storage room and the mechanics' shop area. Claimant further testified that there was a sales counter which contained a telephone and cash register. Claimant testified that employees used the sales counter to collect cash, ring up sales, and to get parts from the shelves behind the counter for the purpose of delivering parts to customers at the counter.

Claimant testified that Michelle Bennett (Chelly Bennett) worked as a counter person periodically, not every day but weekly. Donald Bennett, Michelle Bennett, Chris Passantino, and Ian Nax ran the counter and that if Donald Bennett was present at the store; he was always in charge of the counter. Claimant testif