Kenneth Tilley v. USF Holland Incorporated

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-053994

Employee: Kenneth H. Tilley

Dependent: Linda Tilley

Employer: USF Holland Incorporated

Insurer: Self-Insured with Gallagher Bassett as a TPA

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 22, 2009. The award and decision of Administrative Law Judge Gary L. Robbins, issued May 22, 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 $21^{\text {st }}$ day of January 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Kenneth H. Tilley

Injury No. 03-053994

Dependents: Linda Tilley

Employer: USF Holland Incorporated

Additional Party: Second Injury Fund

Insurer: Self Insured with Gallagher Bassett as a TPA

Hearing Date: February 18, 2009

Checked by: GLR/kh

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? June 6, 2003
5. State location where accident occurred or occupational disease contracted: State of Kentucky
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 happened or occupational disease contracted: The employee was unloading rolls of canvas from a truck when he injured his back and body as a whole.

1. Did accident or occupational disease cause death? No
2. Parts of body injured by accident or occupational disease: Back and body as a whole.
3. Nature and extent of any permanent disability: Permanent total disability as to the employer-insurer.
4. Compensation paid to date for temporary total disability: 28,662.84
5. Value necessary medical aid paid to date by employer-insurer: 157,988.95
6. Value necessary medical aid not furnished by employer-insurer: $3,973.46
7. Employee’s average weekly wage: 1,100.00
8. Weekly compensation rate: 649.32 per week for temporary total, permanent total and death disability. $340.12 per week for permanent partial disability.
9. Method wages computation: By agreement
10. Amount of compensation payable: See Award
11. Second Injury Fund liability: None
12. Future requirements awarded: See Award

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: M. Mercedes Fort.

On, February 18, 2009, the employee, Kenneth H. Tilley, appeared in person and by his attorney, M. Mercedes Fort, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Stephen A. McManus. Assistant Attorney General Frank A. Rodman represented the Second Injury Fund. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of USF Holland Incorporated and was working under the Workers' Compensation Act.
3. On or about June 6, 2003 the employee sustained an accident or occupational disease arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's compensation rates were stipulated to by the parties. The employee's average weekly wage is $\ 1,100.00 per week. His rate for temporary total disability, permanent total disability and death is $\ 649.32 per week. His rate for permanent partial disability is $\ 340.12 per week.
7. The employee's injury was medically casually related to his accident or occupational disease.
8. The employer-insurer paid $\ 157,988.95 in medical aid.
9. The employer-insurer paid $\ 28,662.84 in temporary disability benefits.
10. The employee has no claim for mileage or other medical expenses under Section 287.140 RSMo.

1. Past Medical Bills-Whether the employer-insurer is responsible to pay $\ 3,973.46 in past medical bills?
2. Future Medical Care-Whether the employer-insurer is responsible to provide future medical care?
3. Additional Temporary Disability-Whether the employer-insurer is responsible to pay temporary disability benefits in the amount of $\ 48,699.00 for a period of seventy five weeks beginning on October 18, 2003 and ending on March 27, 2005?
4. Permanent Partial Disability-Whether the employer-insurer is responsible to pay permanent partial disability benefits?

1. Permanent Total Disability-Whether the employer-insurer is responsible to pay permanent total disability benefits?
2. Second Injury Fund Liability-Whether the Second Injury Fund is liable for either permanent partial or permanent total disability?
3. Dependency of Linda Tilley under the Schoemehl decision.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Original Claim for Compensation - Filed November 6, 2003

B. $1^{\text {st }} Amended Claim for Compensation - Filed July 21, 2004

C. 2^{\text {nd }}$ Amended Claim for Compensation - Filed November 1, 2007

D. Deposition of Raymond F. Cohen, D.O.

E. Raymond F. Cohen, D.O. - Medical Rating, Apr. 20, 2004

F. Raymond F. Cohen, D.O. - Medical Rating Supplement, March 30, 2006

G. Raymond F. Cohen, D.O. - Curriculum Vitae

H. Susan Shea, M.A. - Deposition

I. Susan Shea, M.A. - Vocational Assessment

J. Susan Shea, M.A. - Supplement to Vocational Assessment

K. Susan Shea, M.A. - Curriculum Vitae

L. Medical Records of Southeast Missouri Hospital

M. Medical Records of St. Francis Medical Center

N. Medical Records of Physicians Associates

O. Medical Records of Orthopaedic Associates (1)

P. Medical Records of Orthopaedic Associates (2)

R. Medical Expenses for Kenneth H. Tilley - Out of Pocket

Employer-Insurer's Exhibits

1. Deposition of James England Jr.
2. FCE Evaluation
3. August 21, 2008 letter regarding possible assessment for Catalyst program
4. August 22, 2008 letter regarding possible assessment for Catalyst program

Kenneth H. Tilley, the employee, testified personally at trial. In addition, Mr. Tilley's wife Linda Tilley also testified personally at trial. All other evidence was presented through written records, medical records or deposition testimony.

Kenneth Tilley testified that he was born on November 12, 1944 and that he is currently married to his wife, Linda Tilley. He testified that he has lived in Jackson, Missouri his entire life and has been married to his wife for twenty-eight years. Ms. Tilley retired from her job fourteen years ago. Mr. Tilley stated that he completed the tenth grade but did not complete high school as he began full-time work following the tenth grade.

When he was sixteen years old, the employee began working on the river as a deck hand. He worked there for about ten years until he started driving a truck in 1968 for Farrow Brothers Logging Company. He stated that he drove a truck for Farrow's until he joined the Teamsters Union and thereafter he worked through the union hall driving a truck. Mr. Tilley worked for various trucking companies until approximately 1997 when he went to work for USF Holland Incorporated (hereinafter referred to as Holland or employer).

Mr. Tilley testified that he was an over-the-road and then a local truck driver for Holland and did the same job for his entire employment. Overall, Mr. Tilley was employed as a truck driver for about 35 years. He explained that it was routine for him to load and unload his trucks and that he always worked overtime. He stated that he liked working at Holland and although he has had other medical problems, he had never had any permanent physical limitations prior to his accident on June 6, 2003. He testified that at the time of trial he weighed about 331 pounds. Before his injury he indicated that his weight for many years was between 310 and 320 pounds. He said his size had always helped him in terms of his strength.

Mr. Tilley had some other accidents/health concerns prior to June 6, 2003. As a deck hand he cracked a couple of ribs. He returned to work with no restrictions. He also indicated that he had a cyst removed from his lower back and had a broken nose. He stated that he takes medications for high blood pressure, diabetes and high cholesterol and that all of these conditions are controlled by the medications and that none of them had ever impeded his ability to work in any way. In addition Mr. Tilley testified that he had trouble with his knees which resulted in injections and left knee surgery in January 2003. He stated that he felt completely normal when he returned to work and that he could do his job with no restrictions or limitations. In addition he had bladder cancer that was treated in 2000-2001. Mr. Tilley testified that the urinary problems he now has are in no way similar to his prior bladder treatment.

Mr. Tilley explained that he worked for Holland until his work injury on June 6, 2003. He testified that on June 6, 2003, while unloading canvas rolls from his truck, he felt a pop in his low back and left hip area. The accident was immediately reported to his employer. After that accident he began a course of treatment that included a back surgery by Dr. K. Charles Cheung on June 24, 2003 and a second back fusion surgery with Dr. Kee B. Park on March 28, 2005. (See Medical Evidence for specific details).

Following his first back surgery, Mr. Tilley testified that his back never quit hurting although the surgery did help relieve some of the burning in his leg. The employee was released by Dr. Cheung on October 17, 2003 with a permanent weight restriction of 70 pounds. Mr. Tilley stated that although the pain continued at that time, he contacted his employer but was told that they would not let him work with restrictions. He said that his union hall representative said no one would hire him having had back surgery.

Mr. Tilley agreed that after his first back surgery no doctor indicated that he could not work, however he did not believe he could work in the period after his first back surgery and before his back fusion surgery. He indicated that he sought and received about 26 weeks of unemployment