William Hockersmith v. Medlin Transport, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-098904

Employee: William Hockersmith

Employer: Medlin Transport, Inc.

Insurer: None

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

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 May 18, 2009. The award and decision of Administrative Law Judge Victorine R. Mahon, issued May 18, 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 $17^{\text {th }}$ day of November 2009.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: William Hockersmith

Injury No. 07-098904

Dependents: N/A

Employer: Medlin Transport, Inc.

Additional Party: Treasurer of Missouri, as custodian of the Second Injury Fund

Insurer: None

Hearing Date: April 9, 2009

Checked by: VRM/db

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: August 22, 2007.
5. State location where accident occurred or occupational disease was contracted: Near Rolla, 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? Uninsured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant slipped and fell onto a cement wall.
12. Did accident or occupational disease cause death? No. Date of death? N/A

Issued by the Division of Workers' Compensation

Employee: William Hockersmith Injury No.07-098904

1. Part(s) of body injured by accident or occupational disease:
2. Nature and extent of any permanent disability: 5 % to the body as a whole, 5 % to right knee at the 160 week level, 5 % to right ankle at the 155 week level.
3. Compensation paid to-date for temporary disability: $\ 0.
4. Value necessary medical aid paid to date by employer/insurer: $\ 0.
5. Value of necessary medial aid not furnished by employer/insurer: $\ 5,438.00.
6. Employee's average weekly wages: $\ 1500.00.
7. Weekly compensation rate: $\$ 742.72 / \ 389.04.
8. Method of wage computation: Agreement.

1. Amount of compensation payable:

For Permanent Partial Disability: $\mathbf{\$ 1 3 , 9 0 8 . 1 8}$

20.00 weeks ( 5 % body as a whole for the neck) at $\ 389.04 per week.

8.00 weeks ( 5 % of the right knee at the 160 week level) at $\ 389.04 per week.

7.75 weeks ( 5 % of the right ankle at the 155 week level) at $\ 389.04 per week.

For Past Temporary Total Disability: $\mathbf{\$ 7 , 1 0 8 . 8 9}.

9 and 4 / 7$ weeks of Temporary Total Disability from 8/22/07 to 10/28/07 at $\ 742.72 per week.

For Unpaid Medical Expenses: $\mathbf{\$ 5 , 4 3 8 . 0 0}

TOTAL: \mathbf{\$ 2 6 , 4 5 5 . 0 7 .}$

1. Second Injury Fund liability:

Payment for above-referenced unpaid medical bills $\mathbf{\$ 5 , 4 3 8 . 0 0}$.

1. Future requirements awarded: None.

The compensation awarded to the claimant shall be subject to a lien of 25 percent of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Becky Dias.

Employee: William Hockersmith

Injury No. 07-098904

Dependents: N/A

Employer: Medlin Transport, Inc.

Additional Party: Treasurer of Missouri, as custodian of the Second Injury Fund

Insurer: None

Hearing Date: April 9, 2009

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/db

The undersigned Administrative Law Judge conducted the final hearing in this case, on April 9, 2009 in Rolla, Missouri. Attorney Becky Dias represented William Hockersmith. Medlin Transport, Inc. (Employer) did not appear, despite having been provided with certified notice. Division records fail to show any insurance for Medlin Transport, Inc. Assistant Attorney General Heather C. Rowe appeared for the Treasurer of Missouri, as custodian of the Second Injury Fund.

Twenty-six exhibits were offered and admitted. The sole witness at the hearing was Claimant William Hockersmith.

The Second Injury Fund and Claimant stipulate to all issues except future medical and the amount of past bills for which the Second Injury Fund has liability. Based on stipulations between the parties present at the hearing, the admissions, the exhibits and testimony admitted, and administrative notice of the Division's records, I make the following Findings.

1. The Division of Workers' Compensation provided separate notices to the last known addresses of Medlin Transport, Inc., Ted and Connie Medlin, and Duane Medlin. Each of these notices was mailed certified on March 18, 2009 for the final hearing in this case set at 10:30 a.m. on Thursday, April 9, 2009, Rolla, Missouri. The notices were returned to the Division as unclaimed.
2. Medlin Transport, Inc. failed to file an answer to the claim for compensation, which claim was filed timely on October 5, 2007.
3. Claimant Hockersmith was employed as a truck driver for Medlin Transport, Inc., on August 22, 2007. Claimant was paid by check on a Medlin Transportation account. Claimant said occasionally he received a check written by Ted and Connie Medlin. Taxes were withheld from his paycheck. Claimant's average weekly wage was $\ 1,500, yielding a compensation rate for Permanent Partial Disability at the maximum rate of $\ 389.04 and a Temporary Total Disability rate of $\ 742.72.
4. While working within the course and scope of his employment with Medlin Transportation, Inc., on that date, Claimant sustained injuries by accident when he slipped on animal fat that had accumulated on the ladder of his truck. He then fell on a concrete wall.
5. The accident occurred in Rolla, Missouri, the location where the final hearing was held. Jurisdiction and venue are proper.
6. After the fall, Claimant returned to Springfield, Missouri and advised Employer through his dispatcher, Duane, that he needed medical attention. At that time, Duane advised Claimant that Employer had let his workers' compensation coverage lapse. Claimant was instructed to put the medical care on his health insurance and Employer would pay his deductible. When Claimant went to the hospital, he learned that Medlin Transport had also allowed its employee health insurance policy lapse, even though premiums had been deducted from Claimant's paycheck. There is no evidence indicating that Employer was an authorized selfinsurer. Claimant gave timely actual notice of the injuries by accident. There is no evidence that Employer was prejudiced by the lack of written notice.
7. On the date of the accident, all parties were subject to the Missouri Workers' Compensation Law. Medlin Transportation, Inc. was an employer within the meaning of the Workers' Compensation Law, having employed the requisite number of employees on that date. Claimant credibly testified that Medlin Transportation had 25 to 30 employee truck drivers as well as office staff. Duane Medlin was the dispatcher who directed Claimant's work.
8. As a result of the accident, Claimant suffered injuries to his neck, right knee, and right ankle. Claimant sought treatment from St. John's Emergency Room on August 22, 2007. He obtained follow-up care with various physicians.

Issued by the Division of Workers' Compensation

Employee: William Hockersmith

Injury No.07-098904

1. Claimant was unable to work from the date of the accident until October 28, 2007. He requested that his physician release him to return to work because he had no income. Claimant made a demand on Employer for Temporary Total Disability, but received none.
2. Medical providers billed Claimant $\ 5,438.00 to cure and relieve the effects of these workrelated injuries. Employer has paid no medical bills.
3. Dr. Habiger billed $\ 1,456.00 for services performed on September 24, 2007 (EE's Ex. V). The statement of account for physician services contains an entry under "payment activity" dated January 31, 2008, which states: "collection agency write offs...\$1456." Claimant was not aware of any collection activity. The remainder of the unpaid medical bills totals $\ 3,501.36.
4. Claimant's average weekly wage was $\ 1,500.00 per week, yielding the following rates: $\ 742.72 for Temporary Total Disability and $\ 389.04 for Permanent Partial Disability.
5. Dr. P. Brent Koprivica examined Claimant and credibly opined that the work-related fall was the prevailing factor necessitating the care and treatment of Claimant's injuries.
6. Dr. Koprivica further credibly opined that as a direct result of the fall on August 22, 2007, Claimant was temporarily and totally disabled until he returned to work in October 2007.
7. Dr. Koprivica further credibly opined that Claimant has reached maximum medical improvement as a result of the August 22, 2007 work accident, and suffered the following permanent and partial disabilities as a result of that accident: five percent to the body as a whole due to a neck injury, a five percent to the right ankle at the 155 week level, and a five percent to the right knee at the 160 week level.
8. Dr. Koprivica said the work injuries did not combine with any preexisting disabilities to create liability by the Second Injury Fund for Permanent Partial Disability.
9. Claimant continues to have aching in his neck, right knee and right ankle, and takes hydrocodone as needed. Claimant admitted, however, that he began taking prescribed pain medication for preexisting condition(s) prior to accident that is the subject of this case.
10. Dr. Koprivica made no statement suggesting that Claimant required future medical care for these work-related injuries.
11. Claimant believed Employer ceased operation subsequent to his work accident.

The fact finder is not bound by the exact percentages of any expert witness and has authority to find another percentage of disability supported by the record. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo. App. W.D. 2000) overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). In this case, Dr Koprivica's ratings appear reasonable. Absent contrary evidence, I conclude that Claimant suffered Permanent Partial Disability as outlined in Dr. Koprivica's report. Employer is liable for a total $\ 13,908.18, representing 35.75 weeks of Permanent Partial Disability at the weekly rate of $\ 389.04. This Permanent Partial Disability is for five percent to the body as a whole, attributable to the neck; five percent to the right ankle at the 155 week level, and five percent to the right knee at the 160 week level.

The record as a whole substantiates that Claimant was unable to work for a period of nine weeks and $4 / 7$ weeks, from the accident date until he returned to work on October 28, 2007. Employer is liable for n