Douglas Murray v. Hampton's Trenching, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 98-019746

Employee: Douglas E. Murray

Employer: Hampton's Trenching, LLC

Insurer: One Beacon Insurance Group

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 April 15, 2009. The award and decision of Administrative Law Judge Robert B. Miner, issued April 15, 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: Douglas R. Murray

Injury No.: 98-019746

Employer: Hampton's Trenching, LLC

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

Insurer: One Beacon Insurance Group

Hearing Date: January 26, 2009

Checked by: RBM

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: February 4, 1998.
5. State location where accident occurred or occupational disease was contracted: Excelsior Springs, Clay 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? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was pulling on a spade that was stuck in the ground when he injured his back.

Issued by DIVISION OF WORKERS' COMPENSATION

Re: Injury No.: 98-019746

Employee: Douglas R. Murray

1. Did accident or occupational disease cause death? No.

1. Part(s) of body injured by accident or occupational disease: Back and body as a whole.

1. Nature and extent of any permanent disability: 17.5% of the body as a whole.

1. Compensation paid to-date for temporary disability: 8,536.98, representing 44.71 weeks at the rate of 190.92 per week.

1. Value necessary medical aid paid to date by employer/insurer? $15,413.53.

1. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: 465.34.

1. Weekly compensation rate: 310.23 for temporary total disability and permanent total disability, and $278.42 for permanent partial disability.

1. Method wages computation: Section 287.250, RSMo.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: None.

Temporary total disability: The underpayment of temporary total disability benefits for the period February 4, 1998 through December 10, 1998 in the amount of 5,201.78.

70 weeks of permanent partial disability from Employer (70 x 278.42): 19,489.40.

No weeks of disfigurement from Employer.

TOTAL FROM EMPLOYER: 24,691.18.

WC-32-R1 (6-81)

Robert B. Miner, ALJ

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Re: Injury No.: 98-019746

Employee: Douglas R. Murray

1. Second Injury Fund liability:

19 weeks of permanent partial disability from Second Injury Fund: $\ 5,289.98.

TOTAL FROM SECOND INJURY FUND: \$5,289.98.

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: Frank D. Eppright.

Employee: Douglas R. Murray

Injury No.: 98-019746

Employer: Hampton's Trenching, LLC

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

Insurer: One Beacon Insurance Group

Hearing Date: January 26, 2009

Checked by: RBM

A final hearing was held in this case on Employee's claim against Employer and The Treasurer of the State of Missouri as Custodian of the Second Injury Fund ("The Second Injury Fund") on January 26, 2009 in Gladstone, Missouri. Employee, Douglas R. Murray, ("Claimant") appeared in person and by his attorney, Frank D. Eppright. Employer, Hampton's Trenching, LLC, ("Employer") and Insurer, One Beacon Insurance Group, ("Insurer") appeared by their attorney, Kip A. Kubin. The Second Injury Fund appeared by its attorney, Kimberly R. Fournier. Frank D. Eppright requested an attorney's fee of 25 % from all amounts awarded. It was agreed that proposed Findings of Fact and Conclusions of Law would be due on February 20, 2009.

At the time of the hearing, the parties stipulated to the following issues:

1. On or about February 4, 1998, Douglas R. Murray ("Claimant") was an employee of Hampton's Trenching, LLC ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about February 4, 1998, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was insured by One Beacon Insurance Group ("Insurer).
3. On or about February 4, 1998, Claimant sustained an injury by accident or occupational disease in Excelsior Springs, Clay County, Missouri, arising out of and in the course of his employment.

Issued by DIVISION OF WORKERS' COMPENSATION

Re: Injury No.: 98-019746

Employee: Douglas R. Murray

1. Employer had notice of Claimant's alleged injury.
2. Claimant's Claim for Compensation was filed within the time allowed by law.
3. Employer/Insurer had paid $\ 8,536.98 in temporary total disability at the rate of $\ 190.92 per week for the period February 4, 1998 through December 13, 1998.
4. Employer/Insurer had paid $\ 15,413.53 in medical aid.

The parties agreed that there were disputes on the following issues:

1. Liability of Employer for permanent disability.
2. Liability of the Second Injury Fund for permanent disability.
3. Average weekly wage and compensation rates.
4. Liability of Employer for past temporary total disability benefits.
5. Liability of Employer for past medical aid.
6. Liability of Employer for future medical expenses?

Claimant testified in person. In addition, Claimant offered the following exhibits that were admitted in evidence without objection:

A-Deposition of Dr. P. Brent Koprivica taken January 15, 2008 with Deposition Exhibits 1-4 (\#1-68).

B-Deposition of Allan D. Schmidt, PhD taken November 27, 2007 with Deposition Exhibits 1-6 (\#1-790).

C-Deposition of Mary Titterington taken December 5, 2007 (\#1-43).

D-Deposition of Mary Titterington taken January 22, 2009 (\#1-25).

E-Report of Dr. John D. Pro dated December 12, 2001 (\#1-4).

F-Addendum Report of Dr. John D. Pro dated January 10, 2002 (\#1).

Employer/Insurer offered the following exhibits that were admitted in evidence without objection:

1-MRI Report dated February 28, 1998.

2-MRI Report dated July 23, 1998.

3-Curriculum Vitae of Dr. Roger Jackson.

4-Dr. Roger Jackson Medical Note dated October 9, 1998.

5-Curriculum Vitae of Dr. Ira Fischman.

6-Dr. Fischman's Medical Records-October 14, 1998-May 4, 1999.

7-Functional Capacity Evaluation dated December 9, 1998.

8-EMG Testing Report dated November 25, 1998.

9-Curriculum Vitae of Dr. David Ebelke.

10-Dr. Ebelke Medical Note dated August 17, 1999.

11-Excelsior Springs Hospital ER Record dated December 30, 2000.

12-MRI Report dated July 17, 2003.

13-Wage Records on Douglas Murray.

The Second Injury Fund offered SIF Exhibit 1, the deposition of Claimant taken on January 22, 2008 that was admitted in evidence without objection.

Court's Exhibit 1, Medicaid lien in the amount of $\ 5,028.50, was admitted in evidence without objection.

Based on a comprehensive review of the substantial and competent evidence, including the testimony of Claimant, the expert medical opinions and depositions, the medical records, the vocational evidence, the exhibits admitted in evidence, the stipulations of the parties, and my personal observations of Claimant at the hearing, I find:

Claimant was born on May 22, 1961 and was 47 years old at the time of the hearing. He is divorced. He lives with a minor daughter and an adult daughter.

Claimant did not finish high school. He dropped out in the $11^{\text {th }}$ grade. He took special education classes. He got mostly F's in school. He said he cannot read or write and his math skills are poor. He has been diagnosed as mentally retarded.

Claimant was working for Employer on April 4, 1998. He had worked for Employer off and on for twenty years. He worked on equipment and put cables and pipes underground. On April 4, 1998 he was putting in a 500 pound telephone cable with a spade. He pulled hard on the spade and felt his back snap. He told his supervisor about the injury and was sent to the company doctor in Liberty.

Claimant saw a doctor at Seaport on February 5, 1998 and was given medication. He went back to Seaport on February 10, 1998 because of pain in his low back, thigh and left knee. He was referred to physical therapy at Liberty Hospital. He had physical therapy six to seven times. It did not help. He returned to Seaport on February 24, 1998 and an MRI was recommended. An MRI was done on February 20, 1998. He had three steroid injections in his back.

Claimant saw Dr. Gall on April 16, 1998 because he was still having pain. He saw Dr. Gall again on July 15, 1998 because of back and left leg pain. He had another MRI in Liberty on July 23, 1998.

Claimant testified he had pain every day in October 1998, but it was not constant. It was extremely severe and disabling. Claimant was sent to Dr. Roger Jackson by Employer/Insurer on October 9, 1998. Dr. Jackson recommended he see a physiatrist. He was seen by Dr. Ira Fishman on October 14, 1998 for persistent aching low back pain and was prescribed Ultram and Naprosyn.

Claimant had an EMG on November 25, 1998. He saw Dr. Fishman on December 10, 1998 and was released by Dr. Fishman at that time. He did not have radiation or paresthesia when he saw Dr. Fishman.

Claimant began to see Dr. Manoch Kuangparichat on his own. He went back to Dr. Fishman on May 4, 1999 and had occasional radiation down both legs.

Claimant testified the insurance company sent him to Dr. David Ebelke on August 17, 1999 for back pain. Dr. Ebelke felt that he would not be a good candidate for surgery. Claimant had unauthorized medical treatment at Truman. Claimant testified that he went to Truman Medical Center on his own.

The insurance company sent Claimant to Dr. Edward Wilson on November 6, 2002. Dr. Wilson recommended the spinal fusion, but Claimant never had that surgery or any surgery. Claimant did not want surgery. He said it was scary.

Claimant stated his current problems are dull achy low back pain that becomes a sharp pain two to three times per week. It lasts a couple of minutes to hours when it is sharp. When the pain is sharp, Claimant tries to relax and rearrange himself. When he has