Chris Rigney v. Overhead Door Company

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 24, 2008, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued April 24, 2008, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 13th day of February 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Additional Party: Second Injury Fund

Insurer: Zurich American Insurance Co. (Settled)

Hearing Dates: December 3, 2007 and December 27, 2007 Checked by: JKO

1. Are any benefits awarded herein? No

- Was the injury or occupational disease compensable under Chapter 287? No

1. Was there an accident or incident of occupational disease under the Law? No

- Date of accident or onset of occupational disease: (allegedly) January 7, 2006

- State location where accident occurred or occupational disease was contracted: St. Louis County

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
2. Did employer receive proper notice? N/A
3. Did accident or occupational disease arise out of and in the course of the employment? No

- Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes
2. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was a parts salesman for Employer who allegedly injured his thoracic spine from cutting springs.

On December 3, 2007, the employee, Chris Rigney (Claimant), appeared in person and by his attorney, Mr. David J. Jerome, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Overhead Door Company (Employer), and its insurer, Zurich American Insurance Co., were not present or represented at the hearing since they had previously settled their risk of liability in this Claim. The Second Injury Fund was represented at the hearing by Assistant Attorney General Kristin Frazier.

On the original hearing date, the Second Injury Fund requested that the record be left open so that the transcript of the deposition of Dr. Bernard Randolph, which the parties had not yet received from the Court Reporter, could be admitted into evidence. The Second Injury Fund was given up to 30 days to submit Dr. Randolph's deposition transcript. The Second Injury Fund subsequently submitted the deposition transcript, which was admitted into evidence on December 27, 2007. The record in this matter then closed as of the submission of that Exhibit on December 27, 2007. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

- Claimant has alleged an accidental injury on or about January 7, 2006.

- Claimant was an employee of Employer.

- Venue is proper in the City of St. Louis.

- The Claim was filed within the time prescribed by law.

- At the relevant time, Claimant earned an average weekly wage of $\ 595.61, resulting in applicable rates of compensation of $\ 392.07 for total disability benefits and $\ 365.08 for permanent partial disability (PPD) benefits.

- Employer paid no temporary total disability (TTD) benefits.

- Employer paid medical benefits totaling $\ 2,734.25.

- Claimant reached the point of maximum medical improvement (MMI) from this injury on May 30, 2006.

- Did Claimant sustain an accident?

- Did the accident arise out of and in the course of employment?

- Are Claimant's injuries and continuing complaints medically causally connected to his alleged accident at work on January 7, 2006?

- Did Claimant provide proper notice of the accident to Employer as required by law?

- What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

- What is the liability of the Second Injury Fund?

The following exhibits were admitted into evidence:

A) Deposition of Dr. Barry I. Feinberg, with attachments, dated April 26, 2007

B) Deposition of Mr. Timothy G. Lalk, with attachments, dated October 4, 2007

C) Certified medical treatment records of Missouri Baptist Medical Center

D) Certified medical treatment records of O'Neal Family Practice Associates

E) Certified medical treatment records of St. Elizabeth's Hospital

I) Deposition of Ms. Delores E. Gonzalez, with attachments, dated November 28, 2007 II) Deposition of Dr. Bernard C. Randolph, with attachments, dated November 30, 2007

Notes: 1) Unless otherwise specifically noted below, any objections contained in these Exhibits are overruled and the testimony fully admitted into evidence. 2) Some of the records submitted at hearing contain handwritten remarks or other marks on the Exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on December 3, 2007 or December 27, 2007.

In the deposition of Dr. Feinberg (Exhibit A), the Second Injury Fund objected on page 38 at lines 6-7 and on page 39 at lines 16-17, that Claimant’s questions called for answers from the doctor that were beyond the scope of the doctor’s report. Both of these objections are OVERRULED, and the testimony and answers are fully admitted into evidence. Similarly, without further detailed analysis, the rest of the objections contained in the deposition transcript are also OVERRULED, or else the objectionable questions were cured by the questioning party and rephrased prior to obtaining an answer from the witness.

In the deposition of Mr. Lalk (Exhibit B), the Second Injury Fund objected on page 33 at lines 9-12 and on page 34 at lines 2-7 and line 21, based on the Seven Day Rule. The Second Injury Fund, however, proceeded with cross-examination of the vocational expert on that date, and never asked for a continuance, or any other remedy for the alleged Seven Day Rule violation. Although I question whether the Seven Day Rule is even applicable in this instance when the testifying expert is not an examining or treating physician, since the Second Injury Fund never requested a continuance, or any other remedy for the alleged violation, and proceeded with cross-examination, I find that that the Fund effectively waived their Seven Day Rule objection. Accordingly, the objections listed above are OVERRULED. Similarly, without further detailed analysis, the rest of the objections contained in the deposition transcript are also OVERRULED, or else the objectionable questions were cured by the questioning party and rephrased prior to obtaining an answer from the witness.

In the deposition of Ms. Gonzalez (SIF Exhibit I), Claimant objected on page 90 at lines 7-8 based on leading, and at lines 13-14 based on speculation. Claimant also moved to strike the answer on line 8. Claimant’s objections are SUSTAINED, and the motion to strike is granted. Without further detailed analysis, the rest of the objections contained in the deposition transcript are OVERRULED, or else the objectionable questions were cured by the questioning party and rephrased prior to obtaining an answer from the witness.

In the deposition of Dr. Randolph (SIF Exhibit II), Claimant objected to the doctor’s testimony on page 7 at line 25 through page 8 at line 7, and on page 14 at lines 1-3, on the grounds that the doctor did not issue a complete medical report since he had no examination results. Claimant’s objections are OVERRULED, and Dr. Randolph’s

testimony is fully admissible into evidence. The fact that he did not examine Claimant could certainly go to the weight of the evidence, but there is no reason under the statute to completely exclude this evidence in its entirety. However, Claimant also objected to a question on page 17 at lines 23-24 based on leading, mischaracterization and speculation. Claimant's objection there is SUSTAINED.

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational expert opinions and depositions, the medical records, and the Stipulation for Compromise Settlement for the primary injury, as well as based on my personal observations of Claimant at hearing, I find:

- Claimant is a 45-year-old, currently unemployed individual, who worked for Overhead Door of St. Louis in the Parts Department as a sal