Roosevelt Carter v. J.B. Hunt Transportation, Inc.

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-157260

Employee: Roosevelt Carter

Employer: J.B. Hunt Transportation, Inc.

Insurer: Insurance Co. of the State of Pennsylvania

c/o AIG Claims Services, Inc.

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

Date of Accident: October 15, 1999

Place and County of Accident: Kansas City, Jackson 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 April 1, 2008. The award and decision of Administrative Law Judge Mark Siedlik, issued April 1, 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 18th day of November 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

Employee: Roosevelt Carter

Injury No. 99-157260

Dependents: N/A

Employer: J.B. Hunt Transportation, Inc.

Insurer: Insurance Company of the State of Pennsylvania c/o AIG Claims Services, Inc.

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

Hearing Date: January 10, 2008

Checked by: MSS/pd

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: Repetitive trauma through 10/15/99.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Missouri and various

routes.

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
2. Did Employer receive proper notice? Yes.
3. Did accident or occupational disease arise out of and in the course of the employment? Yes.
4. Was claim for compensation filed within time required by Law? Yes.
5. Was Employer insured by above insurer? Yes.
6. Describe work Employee was doing and how accident occurred or occupational disease contracted: Repetitive bouncing of truck with damaged seat.
7. Did accident or occupational disease cause death? No. Date of death? N/A
8. Part(s) of body injured by accident or occupational disease: Lumbar spine and body as a whole.
9. Nature and extent of any permanent disability: Permanent total disability.
10. Compensation paid to-date for temporary disability: None.

1. Value necessary medical aid paid to date by Employer/Insurer? None.
2. Value necessary medical aid not furnished by Employer/Insurer? \82,486.57.
3. Employee's average weekly wages: \ 1,035.49.
4. Weekly compensation rate: $\ 578.48 PTD/TTD $\ 303.01 PPD.
5. Method wages computation: By stipulation.

1. Amount of compensation payable:

Outstanding Medical. $\ 66,126.77

Out of Pocket. (380.00)

Health Insurance Payments. $\ 15,979.80

Total Medical Owing. $\ 82,486.57

$1131 / 7$ weeks (12/10/99 to 1/22/01 and 12/11/01 to 1/22/03. $\ 65,450.87

Less credit for benefits already paid. ( $\ 0.00 )

Total TTD owing. $\ 65,450.87

Permanent Total Disability. To be determined

1. Second Injury Fund liability: 0
2. Future requirements awarded: Medical to be left open and paid by the Employer regarding the lower back.

Said payments to begin as of date of this award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the Employee shall be subject to a 25 percent lien in favor J. Mark Kell, Attorney, for reasonable and necessary attorney's fees pursuant to MO.REV.STAT. 287.260.1.

Employee: Roosevelt Carter

Injury No. 99-157260

Dependents: N/A

Employer: J.B. Hunt Transportation, Inc.

Insurer: Insurance Company of the State of Pennsylvania c/o AIG Claims Services, Inc.

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

On January 10, 2008, the Employee and Employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The Employee, Roosevelt Carter, appeared in person and with counsel, Timothy P. O'Mara. The Employer appeared through David Reynolds and Sabrina Merritt. The Second Injury Fund appeared and was represented by Meredith Moser. The primary issues the parties requested the Division to determine were whether Mr. Carter suffered an accident arising out of and in the course and scope of his employment, whether there was notice to the Employer, whether he sustained any temporary or permanent disability, whether the Employer is responsible for past and/or future medical, and whether there is any Second Injury Fund liability. For the reasons noted below, I find that Mr. Carter sustained a compensable accident between September 1, 1999 and October 15, 1999, that his disability is a permanent total disability, the Employer is responsible for temporary total and permanent disability benefits, and past and future medical benefits. The Second Injury Fund has no liability.

Employee's Exhibits:

1. Deposition Testimony of Dr. Volarich (1/24/04)
2. Dr. Volarich's Report of October 29, 2007
3. Deposition of James England (3/20/07)
4. DePaul Health Center records
5. Dr. Scott Anderson's records
6. Dr. Paul Sheehan's records
7. ProHab's records
8. Dr. Daniel Kitchens' records
9. Dr. Joshua Dowling's records
10. North Kansas City Hospital's records
11. Christian Hospital's records
12. Center for Interventional Pain Management's records
13. Cigna's liens

Employer's Exhibits:

A. Deposition Testimony of James Stanley (7/18/03)

B. Deposition Testimony of Tim Hudspeth (7/18/03)

C. Deposition Testimony of Mark Whitehead (7/18/03)

D. Deposition Testimony of Dr. Scott Anderson (1/30/04)

E. Deposition Testimony of Dr. Bernard Randolph (4/12/04)

F. Deposition Testimony of Dr. Bernard Randolph (10/3/07)

G. Deposition Testimony of Liala Slaise (10/5/07)

H. Certified Prior Division of Workers' Compensation Records

(Admitted as to Employee, Admitted as to Second Injury Fund with the exception of the independent medical report of Dr. Jeffrey Schierer, which lacked foundation as to the Fund based on the lack of supporting deposition testimony.)

I. Certified Records of Missouri Department of Vocational Rehabilitation

J. Certified Records of Phoebe Putney Memorial Hospital Emergency Room

K. Certified Records of Metropolitan Orthopedics

L. Certified Records of Missouri Baptist Medical Center

M. Certified Records of Concentra Medical Centers

N. Certified Records of The Work Center

O. Certified Records of Metro Imaging

P. Certified Records of Christian Hospital Northwest

Q. Certified Records of Dr. Sandra Tate

R. Certified Subsequent Employment Records of Rush Trucking Company

S. Video

T. Photos

U. Photos (Objected to and not admitted into evidence.)

Second Injury Fund: No exhibits.

The parties stipulated:

1) that on or about October 15, 1999, J.B. Hunt Transportation was an employer operating under the provisions of the Missouri workers' compensation law and that its liability under said law was fully insured by AIG;

2) that on or about October 15, 1999, Roosevelt Carter was an employee of J.B. Hunt Transportation working under the provisions of the Missouri workers' compensation law;

3) that the employee's contract of employment was made in Missouri;

4) that the employee's claim was filed within the time allowed by law;

5) that Employee's average weekly wage was approximately $\ 867.72, making a temporary and permanent total disability rate of $\ 578.48 and a permanent partial disability compensation rate of $\ 303.01.

The issues to be determined by the hearing are as follows:

1) Was there an accident or occupational disease on or about October 15, 1999?

2) Was notice required and/or provided by Claimant to Employer?

3) What temporary total disability liability, if any, does the Employer/Insurer have to the Claimant?

4) Whether past medical bills are payable by the Employer/Insurer.

5) What, if any, future medical treatment should the Employer/Insurer provide to Claimant?

6) What is the nature and extent of permanent disability resulting from the alleged work injury of October 15, 1999?

7) What is the liability of the Second Injury Fund?

A final hearing was held on January 10, 2008 before Administrative Law Judge Siedlik. Claimant appeared in person and through counsel, Mr. Timothy O'Mara. The employer and insurer were represented by counsel, Mr. J. David Reynolds and Ms. Sabrina Merritt. The Second Injury Fund was represented by counsel, Ms. Meredith L. Moser.

Mr. Roosevelt Carter is a 54-year-old worker who lives in St. Louis, Missouri with his wife, Wanda, and two sons, ages 15 and 21. Mr. Carter testified that he attended high school in Barbados, West Indies. Since high school, he has completed technical training in television and radio repair as well as truck driving school. He attempted an additional educational program on computer repair including hardware and software components with Missouri Vocational Rehabilitation following his injury at J.B. Hunt Transport but was unable to complete the program due to the severe pain in his low back.

Mr. Carter worked in the television and radio repair field from approximately 1977 until 1984. He began driving a truck in approximately 1987, first for Sygma, then for National Freight. He worked for J.B. Hunt Transport for approximately 10 to 11 years as a truck driver before his work injury in late 1999.

While driving for J.B. Hunt Transport on route from St. Louis to Kansas City in early September of 1999, Mr. Carter experienced a loss of air pressure in his air-ride seat. He testified that he felt immediate pain in his low back when the seat lost pressure. He continued to have instances where the seat would lose air pressure on several more occasions. He was driving a cab-over type tractor at that time, where the cabin sat directly over the engine. Mr. Carter testified that he told his dispatcher, Jim Stanley, when the seat initially lost pressure. Mr. Stanley indicated that there were no available trucks to switch out with Mr. Carter. Mr. Carter continued to attempt driving the truck. Records from J.B. Hunt Transport available in the deposition of Mark Whitehead demonstrate that on October 7, 1999, Mr. Carter's seat was indeed repaired.

Mr. Carter had begun wearing a back brace following the initial loss of air pressure in the seat and saw his personal physician, Dr. Scott Anderson. Dr. Anderson's deposition was taken on January 30, 2004. On that date, the doctor confirmed that there are times when the notes he dictates are inaccurate (Anderson 2004, pg. 10, In. 24). In this case, the notes would appear to be inaccurate as all the remaining medical information indicates the low back pain began approximately two months before the visit with Dr. Anderson in November of 1999, not two years as was mistakenly put in a treatment note.

Mr. Carter continued to have problems with his low back. He left his employment with J.B. Hunt Transport in November of 1999. He was referred to orthopedic surgeon Dr. Paul Sheehan. On April 8, 2000, Dr. Paul Sheehan performed an L5-S1 anterior laminectomy and fusion with insertion of BAK cages and a left iliac crest bone harvest. Mr