Linden Dauenbaugh v. Bobby Pankey & Sandra Pankey d/b/a West Plains Taxi

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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 31, 2009. The award and decision of Administrative Law Judge David L. Zerrer, issued March 31, 2009, 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 30th day of July 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: May 6, 2004
5. State location where accident occurred or occupational disease was contracted: Howell County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? No
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Motor vehicle accident
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Cervical/Body as a whole
14. Nature and extent of any permanent disability: 35 % Body as a whole; 10 % at the 207 -week level
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None
17. Value necessary medical aid not furnished by employer/insurer? \46,673.41
18. Employee's average weekly wages: \ 350.35

1. Weekly compensation rate: $\ 233.56
2. Method wages computation: Employer agree

1. Amount of compensation payable: None

Unpaid medical expenses: $\ 44,886.41

6 weeks of temporary total disability (or temporary partial disability) - \$1,401.36

160.7 weeks of permanent partial disability from Employer - \$37,533.09

-0- weeks of disfigurement from Employer

1. Second Injury Fund liability: Yes: X No Open

28.0425 weeks of permanent partial disability from Second Injury Fund - \$6,549.60

Uninsured medical/death benefits $\ 44,886.41

Total: $\ 90,370.46

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: Randy C. Alberhasky

Employee: Linden Dauenbaugh

Injury No: 04-148632

Dependents:

Employer: Bobby Pankey \& Sandra Pankey d/b/a West Plains Taxi

Department of Labor and Industrial

Additional Party:

Industrial Party, Missouri

Insurer: Uninsured

Checked by: DLZ

On the 24th day of April, 2008, the date specifically set for final hearing of this claim, the Claimant and the Second Injury Fund appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by his attorney, Randy C. Alberhasky. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General, Cara Harris. Neither Bobby Pankey nor Sandra Pankey d/b/a West Plains Taxi, hereafter referred to as Employer, nor Employer's attorney appeared at the hearing. Employer's counsel, after being contacted by telephone, stated that neither he nor the Employer would appear and that the hearing may proceed in abstentia.

Following the hearing, on or about April 24, 2008, Employer filed for relief pursuant to the Federal Bankruptcy Law; and a stay order was entered staying any proceedings which may attempt to collect any debt from the Employer. The bankruptcy proceedings were dismissed by the United States Bankruptcy Court, Western District of Missouri, on the 28th day of January, 2009, Arthur B. Freeman, Judge. The Division of Workers' Compensation was notified of the bankruptcy dismissal on February 13, 2009.

The parties appearing for the hearing stipulated to certain facts which are not at issue in this claim, as follows, to wit: The Employer's liability was uninsured; on the alleged injury date of May 6, 2004, Linden Dauenbaugh was an employee of the Employer; the parties agree that on or about May 6, 2004, Claimant sustained a motor vehicle accident; the employment occurred in Howell County, Missouri, and the parties agree that Howell County, Missouri, is the proper venue for this hearing; at the time of the claimed accident, Claimant's average weekly wage was $\ 350.35, sufficient to allow a compensation rate of $\ 233.56 for temporary total disability, permanent partial disability; no temporary disability benefits have been paid prior to the date of this hearing; no medical benefits have been paid prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

Whether on or about May 6, 2004, the Employer was operating subject to the Missouri Workers' Compensation Law. Whether the Claimant gave proper notice.

Whether the accident arose out of the course of and scope of employment.

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 expenses.

Any temporary total benefits owed to the Claimant.

The nature and extent of any permanent disabilities.

The liability of the Second Injury Fund for enhanced permanent partial disability, and whether the Second Injury Fund is liable for the reasonable and necessary medical expense of the Claimant.

Whether the Claim was filed within the time prescribed by Section 287.430

Claimant testified on his own behalf. Claimant was 60 years of age at the date of the hearing. He has been married for 25 years and has two adult, emancipated children. Claimant did not graduate from high school, but did obtain his GED and attended college for two years.

Claimant testified that he began employment in medical transportation in October 2003 when employed by Employer at a time when Employer operated a taxi business, a medical transportation business, and a pest control business. Employer had four taxis and about eight medical transport vehicles. Claimant testified that in May 2004 Employer had four or five drivers who worked sporadic hours, as did the Claimant depending on assignments. Claimant was on call every day for emergency transportation services.

Claimant testified that Sandra Pankey scheduled assignment of drivers. Claimant further testified that vehicles were owned by Employer, and the Employer provided insurance on the vehicles. Claimant was responsible for keeping a log book for each transportation service provided, and the log book was turned into Sandra Pankey. Claimant testified that his work hours varied, depending on assignment, but on some days he worked as much as sixteen hours in one workday. Claimant was paid once per month on the basis of the log book.

Claimant testified that for a time he was paid in cash for his employment, but that, at the time of the accident, he was paid by check drawn on Bobby D. Pankey and Sandra C. Pankey d/b/a West Plains Taxi and B \& B Pest Control.

Claimant testified that the physical requirements of his job were not demanding unless he would have to assist a patient into and out of the vehicle, and sometimes he would have to lift and/or carry a wheelchair.

Claimant testified regarding the accident of May 4, 2004. Claimant had completed a medical transport assignment and was returning to West Plains. While traveling on Highway 17 at about 9:15 p.m., a bull entered the roadway in front of Claimant's vehicle, and Claimant struck the bull with sufficient force that the animal came over the hood and through the windshield of Claimant's vehicle. Claimant testified that he called the dispatcher, using his cell phone, and reported what had occurred. Claimant testified that Bobby Pankey came out to the scene of the accident. Bobby Pankey asked Claimant if he was okay, and Pankey placed Claimant into Pankey's vehicle and brought Claimant back to West Plains. After Claimant returned to his home on the night of the accident, he began to experience pain from a headache, he had stiffness in his neck, and his left hip felt sore.

Claimant testified that he sought treatment the next day following the accident, complaining of headache and neck pain. Claimant testified that both Bobby Pankey and Sandra Pankey authorized Claimant to go to the doctor; however, Bobby Pankey told Claimant at that time that they did not have insurance on the drivers. Claimant testified that he contacted the insurance carrier for the farmer who owned the bull, but that there was no liability coverage for this accident on behalf of the farmer.

Claimant testified that he continued to experience pain continually until November 2004 and that the pain grew worse with time. Claimant was referred to Dr. Vicker who scheduled an MRI. Claimant testified that he thought Employer paid the bill for the MRI treatment. Claimant testified that he next saw Dr. Martin for the pain being experienced in Claimant's neck and that he was eventually referred on to Dr. Kelly Green who performed surgery on Claimant's neck.

Claimant testified that after the surgery he was off work for about eight weeks and that he returned to work after the surgery in May 2005.

Claimant identified that Exhibits A, B, C, D, E, F, and G set out treatment records for treatment administered as a result of the May 6, 2004, accident. Exhibits G, I, J, K, and L, set out copies of billing statements attributable to treatment provided to the Claimant as a result of the May 6, 2004, accident. Claimant testified that he was reimbursed $\ 77.00 by Employer for one medical bill. Claimant was aware that Employer paid the bill set out in Exhibit G, in the amount of $\ 1,710.00.

Claimant testified that his current complaints as a result of the accident of May 6, 2004, are that he suffers from chronic headaches; dizziness if he looks up too much; cannot sleep on stomach because of neck pain; and reduced range of motion in the neck. Claimant is not on any medication at the date of the hearing.

Claimant testified that he did not have any trouble with his neck prior to May 2004. He further testified that he had a previous history of right-shoulder s