Billey Haynes v. American Construction and Energy

FINDINGS OF FACT and RULINGS OF LAW:

On June 4, 2008, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The employee, Mr. Billey O. Haynes is deceased and his wife, Sherry Haynes was present and with counsel, William and Mathew Partin. The employer and its insurer appeared through attorney Kip Kubin. The Second Injury Fund appeared through Assistant Attorney General Maureen Shine. Preliminary matters were then addressed by the court. First, counsel for the claimant requested on the record before the submission of any evidence or testimony that the claim filed against the State Treasurer as custodian of the Second Injury Fund be dismissed with prejudice. Assistant Attorney General Shine was excused after the declaration was made by counsel for the claimant.

Former attorney for the employee, Frank Eppright also appeared. Attorney Eppright had filed a Motion to Withdraw and attorney lien totaling 5,922.45, with 3,422.45 in case expenses and fees in the amount of $2,500.00. Attorney Eppright appeared at hearing and waived his attorney fee, but requested reimbursement of the $3,422.45 in case expenses.

The primary issue the parties requested the Division to determine was whether or not Mr. Haynes suffered any disability from the accident arising out of and in the course of his employment, and if so, the nature and extent of that disability. For the reasons noted below, I find that Mr. Haynes sustained a compensable accident on September 4, 1996, but that the claimant failed to show that he sustained any permanent partial disability from the accident or that that accident was a substantial contributing factor in causing the claimant's disability.

The parties stipulated that:

- On or about September 4, 1996 ("the injury date"), American Construction and Energy ("American") was an employer operating subject to Missouri's Workers' Compensation law with its liability fully insured by TIG Insurance Co.;

- Mr. Haynes was its employee working subject to the law in Independence, Jackson County, Missouri;

- Mr. Haynes sustained an accident arising out of and in the course of his employment with American on September 4, 1996;

- Mr. Haynes notified American of his injury and filed his claim within the time allowed by law;

- American provided Mr. Haynes with medical care costing $\ 12,895.07.

- Mr. Haynes had an average weekly wage of $\ 492.00 per week which yields a compensation rate for temporary total compensation of $\ 328.00 and a compensation rate for permanent partial disability of $\ 268.72;

- Mr. Haynes does not seek reimbursement for any medical costs; and,

- Mr. Haynes does not seek any payment of temporary total disability benefits.

The parties requested the Division to determine:

- Whether Mr. Haynes suffered any disability and, if so, the nature and extent of the Employee's disability?

- Whether the accident caused the disability the employee claimed?

- Whether the Missouri Department of Social Services Medicaid Lien must be satisfied?

- Whether Research Medical Center's Application for Direct Payment Medical Fee Dispute must be satisfied?

- Whether Sherry Haynes is the proper party to this claim and/or whether she has been properly joined?

Sherry Diane Haynes testified on behalf of the deceased employee. In addition, claimant's counsel presented the following exhibits (and withdrew Exhibit G) which were admitted into evidence:

Exhibit A - Medical Report, Daniel Downs, MD, September 7, 2006

Exhibit E - Medical Report, G.R. Wurster, MD, November 1, 1999

Exhibit F - Death Certificate of Billey O. Haynes, May 23, 2006

Claimant's counsel also offered the following exhibits which were objected to by the attorney for the employer both as not constituting a "complete medical report", and because the exhibits did not contain what claimant's counsel provided to him in its May 27, 2003 "60 day letter".

Exhibit B - Medical Report, P. Brent Koprivica, MD, December 23, 2002

Exhibit C - Medical Report, Stanley Butts, PhD, December 17, 1998

Exhibit D - Medical Report, John Pro, MD, November 26, 2002.

The court sustained the objections to Exhibits B and D and neither exhibit was admitted into evidence. The court reserved the ruling on the objection to Exhibit C to the issuance of this award. Exhibit C is a report authored by a licensed psychologist who holds only a Ph.D. The "60-day" rule applies only to medical reports of "physicians". Walsh v. Treasurer of the State, 953 S.W.2d 632 (Mo.App. S.D.1997). Therefore, Mo.Rev.Stat. §287.210.7 does not apply to this report and I admit it into evidence.

Although the employer did not call any witnesses, it did present the following exhibits, all of which were admitted into evidence:

Exhibit 1 - Medical Report, David Ebelke, MD, February 7, 2001

Exhibit 2 - Letter dated May 27, 2003 from Frank Eppright re: "complete medical report"

Exhibit 3 - Medical Records Timeline Summary

Exhibit 4 - Chronology of Drugs given to Claimant

Exhibit 5 - Calendar showing dates employee received prescriptions listed in Exhibit 4

Exhibit 6 - Curriculum Vitae, David K. Ebelke, MD

Based on the above exhibits and the testimony of Mrs. Haynes, I make the following findings.

Since the claimant is now deceased and did not testify, the court is limited in its factual record. The parties have stipulated that the claimant was injured on September 4, 1996 in Independence, Missouri. The histories in the medical reports indicate that he suffered pain in his low back while moving a bundle of slab doors. However, it is noted in the medical report from Dr. Ebelke, and the accompanying medical records,

that the employee gave a different version of the accident to the emergency room physicians at Research Medical Center on the accident date. Those records would indicate that the claimant injured himself the day before when he fell backward picking up sheetrock. See, Employer's Exhibit 1 at tab D, page 57.

The evidence in the record offered by the claimant, consists of three narrative medical reports from Daniel Downs, MD, with the accompanying medical records from St. Mary Hospital; the death certificate of Billey O. Haynes, which indicates he died on May 23, 2006; and the medical report from G. R. Wurster,