David Steed v. Air-Serve Group, Inc.

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 September 23, 2008. The award and decision of Chief Administrative Law Judge Kenneth J. Cain, issued September 23, 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 27th day of January 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman

Alice A. Bartlett, Member John J. Hickey, Member

Employee: David Steed

Injury No. 05-010798

Dependents: N/A

Employer: Air-Serve Group, Inc.

Insurer: Crum \& Forster Insurance Company

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

Hearing Date: July 8, 2008, briefs filed July 29, 2008

Checked by: KJC/pd

- Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.
2. Was there an accident or incident of occupational disease under the Law? Yes.
3. Date of accident or onset of occupational disease: January 6, 2005.
4. State location where accident occurred or occupational disease was contracted: State of Kansas with contract of hire in Missouri.
5. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
6. Did employer receive proper notice? Yes.
7. Did accident or occupational disease arise out of and in the course of the employment? Yes.
8. Was claim for compensation filed within time required by Law? Yes.
9. Was employer insured by above insurer? Yes.
10. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of his employment as a service coordinator for Air Serve was involved in a vehicular accident.
11. Did accident or occupational disease cause death? No. Date of death? N/A
12. Part(s) of body injured by accident or occupational disease: left tibia plateau fracture, left acetabular fracture, right and left patellar fractures and a back strain.
13. Nature and extent of any permanent disability: left tibia plateau fracture, left acetabular fracture, right and left patella fractures and a back strain.
14. Compensation paid to-date for temporary disability: $\ 27,907.88.

1. Value necessary medical aid paid to date by employer/insurer? $\ 127,732.22.
2. Value necessary medical aid not furnished by employer/insurer? Undetermined
3. Employee's average weekly wages: $\ 460.
4. Weekly compensation rate: $\ 306.67.
5. Method wages computation: By agreement of the parties.

1. Amount of compensation payable:

unpaid medical expenses: Undetermined

91 weeks for temporary total disability (temporary partial disability) @ 306.67 per agreement of the parties; the employer is granted a credit for the $\ 27,907.88 previously provided.

N/A - weeks for permanent partial disability from employer.

N/A - weeks of disfigurement.

Permanent total disability benefits from employer: See additional findings of fact and rulings of law.

1. Second Injury Fund liability: N/A

TOTAL: Undetermined

- Future requirements awarded: See additional findings of fact and rulings of law.

Said payments to begin as of date of the award 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Mark Kelly

Employee: David Steed

Injury No. 05-010798

Dependents: N/A

Prior to the hearing, the parties entered into various admissions and stipulations. The remaining issues were as follows:

- Whether Mr. Steed was an employee of Air Service Group, Incorporated and working under the provisions of the Missouri workers' compensation law;

- Accident;

- The nature and extent of the disability sustained by the Employee;

- Liability of the Employer for future medical benefits;

- Liability of the Employer for mileage reimbursement;

- Liability of the Employer for past temporary total disability benefits for the period August 4, 2006 to August 23, 2007;

- Liability of the State Treasurer as Custodian of the Second Injury Fund for compensation; and

- Whether the Employer and the Second Injury Fund have a subrogation interest in any third-party recovery made by any alleged tortfeaser.

At the hearing, Mr. David Steed (hereinafter referred to as Claimant) testified that he was born on June 15, 1950 and that he attended school through the seventh or eighth grade. He stated that he did not believe that he attended high school. He stated that he received his GED in the early 1970s.

Claimant testified that he received vocational training as a truck driver in 1974. He stated that he was in the military from 1968 to 1970 where he was trained in aviation.

Claimant testified that beginning in 1971 he served two-and-a-half to three years in the reformatory after being convicted of burglary and theft. He stated that afterwards he worked on various labor-type jobs. He stated that on one job he built “huge wood pallets.” He stated that his other jobs were over-the-road truck driver, furniture deliverer, roofer and construction laborer. He stated that in his job with Rent Mart he used a computer and collected money.

Claimant testified that he worked for three years at Air-Up and until it was purchased by the Air-Serve Group. He stated that his job at Air-Up required him to install air machines, drill holes, run conduits and to do wiring. He stated that his job title was service coordinator.

Claimant testified that his territory covered the states of Kansas, Missouri, Iowa and Nebraska. He stated that he was based out of Kansas. He stated that he regularly did heavy lifting and occasionally up to 100 pounds. He stated that the machines were set on 500 pound concrete blocks. He stated that he had to maintain and repair the machines, collect money and do a lot of driving.

Claimant testified that Air-Serve purchased Air-Up in October 2004. He stated that both companies were in the same business. He stated that his job duties at both companies were the same. He stated that his supervisor at Air-Serve was Jeff Gravesman.

Claimant testified that he first met Mr. Gravesman when Gail, who worked at Air-Up, told him to bring the money from the machines to Nebraska instead of depositing it in the bank. He stated that he met with Gail and Mr. Gravesman in Nebraska and that Gail informed him that Mr. Gravesman had purchased the company. He stated that Mr. Gravesman instructed him to bring the company van to Holt, Missouri on the following Monday for a meeting.

Claimant testified that on Monday, October 4, 2004 he met with Mr. Gravesman in Holt, Missouri. He stated that while in Holt, Missouri Mr. Gravesman sent him on a route with Brian to make sure that he knew how to do the job and to evaluate whether the new company was going to hire him.

Claimant testified that after he and Brian had serviced some of the machines, Mr. Graveman offered him a job. He stated that he accepted the job offer in Holt, Missouri. He stated that on the following day he signed various papers related to his employment with Air-Serve while still in Holt, Missouri.

Claimant identified various documents signed and dated by him October 5, 2004, which he alleged that he executed in Holt, Missouri. Those documents included a W-4, the personnel policy, a covenant not- to compete, the internet policy, the driving policy, and a terms of employment policy, which provided that his hiring date was October 1, 2004.

Claimant testified that he sustained an injury at work on January 6, 2005 while in the state of Kansas and driving from Great Bend, Kansas to Erdman, Kansas. He stated that he was in the company van when the accident occurred.

Claimant testified that the accident occurred on the same route he always took to make that drive. He stated that the route he took was the shortest and used less gasoline. He acknowledged that the route was "more of a back roads" type route and not an interstate highway.

Claimant testified that the accident occurred when a garbage truck failed to stop at a stop sign and struck his company van. He stated that the van rolled over and slipped off the road. He stated that he was taken by ambulance to the hospital.

Claimant testified that he sustained various injuries in the accident. He stated that he broke his left leg and fractured his left hip socket and that metal plates were inserted in both. He stated that he fractured his pelvis. He stated that he broke his right and left kneecaps. He stated that he could see the bones coming out of his skin in his left leg. He also stated that he broke his false teeth, cut his lip, cut the inside of his mouth, broke his eyeglasses, and sustained scars on his lower lip. He stated that his Employer replaced his false teeth but not his eyeglasses.

Claimant testified that he had physical therapy in Wichita, Kansas. He stated that in September 2007 he had surgery on his left knee.

Claimant testified that he still had constant pain in his left knee, hip and low back. He stated that his right knee was painful but not constantly so. He stated that he experienced back pain with standing and walking for more than 10 to 15 minutes. He stated that he was on morphine and other medications due to his pain and his inability to sleep. He stated that he was depressed.

Claimant testified that his medications affected his concentration and made him "groggy" and tired. He stated that he was "miserable most of the time."

Claimant testified that he had to lie down during the day to relieve his pain. He stated that during a typical

day he had to lie down five to six times. He stated that he could walk about 100 feet. He stated that if he walked any further he used a cane. He stated that he required a cane to go up and down steps. He stated that he could not go grocery shopping. He stated that if he walked he experienced a burning, stabbing pain in his left hip.

Claimant testified that he had never experienced any back problems until his injury at work. He stated he could only drive 30 to 40 miles. He stated that that he did not do laundry, mow the lawn or shovel snow. He stated that he did wash dishes.

Claimant admitted that he had sustained a war injury in 1969 while he was in Vietnam. He stated that his injury occurred during a mine mishap and that he lost the three middle fingers on his left hand. He stated that his left hand injury had never interfered with his ability to do any job. He stated that he was right-hand dominant.

Claimant testified that now he was not sure if he could do any jobs. He stated that he did not try vocational rehabilitation