James Merkerson v. TAP Enterprises, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-122640

Employee: James Merkerson

Employer: TAP Enterprises, Inc.

Insurer: Self-Insured - TPA: Alternative Risk Services, Inc.

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 November 4, 2009. The award and decision of Administrative Law Judge Victorine R. Mahon, issued November 4, 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 $28^{\text {th }}$ day of April 2010.

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: August 9, 2006.
5. State location where accident occurred or occupational disease contracted: State of Pennsylvania.
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: Vehicular accident.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Parts of body injured by accident or occupational disease: Multiple body parts.
14. Compensation paid to-date for temporary disability: $\ 15,805.14.
15. Value necessary medical aid paid to date by employer/insurer? $\ 213,103.22.

The parties appeared before the undersigned Administrative Law Judge for a Final Hearing on September 23, 2009 in Springfield, Greene County, Missouri. The parties stipulated to venue in Greene County. Randy Alberhasky represented James Merkerson (Claimant). Greg Carter represented TAP Enterprises, Inc., a self-insured entity (Employer).

On August 9, 2006, Claimant sustained injuries due to a vehicular accident near Clarion, Pennsylvania. At the time of the accident, Claimant was an employee of TAP Enterprises, Inc., and covered under the Missouri Workers’ Compensation Law. Employer was self-insured and subject to the Missouri Workers’ Compensation Law. The parties do not dispute notice. There is no issue with the statute of limitations. Temporary Total Disability was paid in the amount of 15,805.14. Employer overpaid Temporary Total Disability in the amount of 3,757.28. Employer furnished 213,103.22 in medical benefits. Employer is entitled to 3,757.28 as a credit for excess Temporary Total Disability. If Employer is entitled to subrogation as a result of a third party recovery, the parties agree that the subrogation amount is 17,870.65. There are unpaid medical expenses in the amount of 14,542.00.

1. Is there jurisdiction under the Missouri Workers' Compensation Law?
2. What is the Permanent Partial Disability rate?
3. Did Claimant's injuries arise out of employment?

4 Did Claimant's injuries occur within the course of employment?

1. What is the nature and extend of Claimant's permanent disability?
2. Is Claimant entitled to reimbursement of $\ 14,542.00 in medical bills?
3. Are Claimant's benefits subject to a 50 percent penalty due to a violation of Employer's policy regarding the use of alcohol?
4. Is Employer subject to a penalty for a safety violation?
5. Is $\S 287.120$ RSMo, unconstitutional in that the penalties disproportionate affect employees?
6. Is Employer entitled to subrogation?

Findings of Fact and Conclusions of Law

I adopt the Findings of Fact and Conclusions of Law set forth in the Temporary Award I issued on September 11, 2007. In that Award, I found that Claimant was hired while he was in the State of Missouri. He subsequently was injured while he was traveling for Employer in the State of Pennsylvania. I concluded that jurisdiction is appropriate in Missouri. Employer continues to dispute jurisdiction.

The only new evidence presented on the issue of jurisdiction is the deposition testimony of Claimant's former supervisor, Mike Smithson. He denied having called Claimant to offer him a job while Claimant was in Missouri. Smithson recalled calling TAP Enterprises for a replacement employee. TAP Enterprises thereafter sent Claimant to him by bus while Smithson was working in Minnesota. Smithson testified, however, that Claimant "was already hired on with the company." (Ex. BB, pp. 94-95).

Smithson's recollection relates to the first time Claimant went to work for Smithson during Claimant's first stint with TAP Enterprises, Inc. Smithson only vaguely recalled that Claimant had a break in service with Employer. Finding no new evidence suggesting that Claimant was hired anywhere except in Missouri, my conclusion of law on the issue of jurisdiction does not change. Jurisdiction is appropriate in Missouri.

Likewise, I adopt the Findings of Fact and Conclusions of Law set forth in the Temporary Award on this issue. No new evidence was presented that would alter the calculation of Claimant's average weekly wage. Claimant's daily wage of $\ 80 was paid in two parts. He received $\ 20 as an advance while on the road and $\ 60 was paid through a payroll check or deposit. Exhibits P and 5 reveal that from April 8, 2006, through August 12, 2006, Claimant earned wages in the amount of $\ 4,700. This was paid in seven pay periods. Each pay period was two weeks in length. Neither party presented documentation of a payroll check having been issued for the second pay period in May 2006 or the last pay period in July 2006. Claimant presented no evidence that he performed any work during the weeks for which no payroll checks were issued. Therefore, the last two weeks of May and the last two weeks of July were not considered in any wage calculation. In addition, Claimant received $\ 129.06 in commission.

Claimant's earnings over a 14-week period immediately preceding Claimant's accident was $\ 4,829.06 ( $\$ 4700+\ 129.06 in commission). I continue to rely on Adamson v. DTC Calhoun Trucking, Inc., 212 S.W.3d 207 (Mo. App. S.D. 2007) in determining the days that are to be included in the calculation. I continue to rely on § 287.250.4, RSMo 2000. It provides that if the average weekly wage cannot fairly and justly be determined by the formulas provided in § 287.250.1 through 3, RSMo, the Division may determine the average weekly wage in any fair manner based on the exceptional facts presented. The fairest method in this case is to divide Claimant's wages and commission in the amount of $\ 4829.06 by 14 weeks to yield an average

At the hardship hearing, Claimant offered uncontradicted evidence that he had been asked by his supervisor, Mike Smithson, to assist in running an errand to Wal-Mart to retrieve some supplies for the following day's tool sale. Claimant further testified that the two men also may have gone to a fast food restaurant for their evening meal. The deposition of Mike Smithson introduced at the final hearing substantiates Claimant's testimony that the men were performing job duties at a time and place that was reasonable. Nothing at the final hearing suggests that the two men were on a mere frolic rather than on a business errand. I continue to rely on Shinn v. General Binding Corp, Koelling Mentals Div., 789 S.W.2d 230, 233-234 (Mo. App. E.D. 199), and Cowick v. Gibbs Beauty Supplies, 430 S.W.2d 626 (Mo.App. K.C.D. 1968). I conclude that Claimant's injuries arose out of and within the course and scope of his employment with TAP Enterprises.

I have accepted as credible the opinion of Dr. Paff who unequivocally drew the causal connection between the work accident and Claimant's need for medical treatment. Dr. Paff opined that Claimant had suffered a ruptured spleen, compound fracture of the left forearm, depressed skull fracture, sprain of the right ankle, brain injury with speech and memory problems, and depression. He had recommended that Claimant be evaluated for additional treatment. Because Claimant had moved to Arizona, Employer had Claimant seen there.

Dr. J. Michael Powers, M.D., Affiliated Neurologists, LTD, noted that Claimant had an MRI on January 22, 2008, a neurological consultation with Nicholas Theodore on April 22, 2008, and a neuropsychological evaluation of Dr. Youngjohn on January 7, 2008. Based on the

reports from these evaluations or tests and his own examination, Dr. Powers diagnosed Claimant with the following:

a. Closed head injury with "very mild" residual cognitive sequelae.

b. Depressed left parietal skull fracture, healed.

c. Fracture of left ulna, resolved.

d. Temporal bone fracture without identifiable residual hearing loss.

e. Status post splenectomy.

f. Lumbar transverse process fractures, asymptomatic.

Dr. Powers believed Claimant had made an excellent recovery with minimal cognitive sequelae. He said Claimant neede