Lonnie Jones v. Laclede County

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-020145

Employee: Lonnie Jones

Employer: Laclede County

Insurer: Missouri Association of Counties

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 March 9, 2010. The award and decision of Administrative Law Judge L. Timothy Wilson, issued March 9, 2010, 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 $\qquad 15 1^{\text {th }}$ day of July 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Lonnie Jones

Injury No. 08-020145

Dependents: N/A

Employer: Laclede County

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

Insurer: Missouri Association of Counties

Hearing Date: January 22, 2010

Checked by: LTW

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: March 7, 2008
5. State location where accident occurred or occupational disease was contracted: Laclede 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 in a dump truck and was going to unload a load of gravel. The hydraulic cylinder blew out. This caused the bed of the dump truck, which was raised, to crash to the frame, which produced a violent force, injuring the claimant.
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: Low back
14. Nature and extent of any permanent disability: Total disability
15. Compensation paid to-date for temporary disability: $\ 4,037.67
16. Value necessary medical aid paid to date by employer/insurer? $\ 30,272.58

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 510.00
3. Weekly compensation rate: $\ 340.53 TTD/PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Future medical is awarded (See Award.)

Permanent total disability benefits from Employer beginning October 13, 2008, at the rate of $\ 340.53 per week.

1. Second Injury Fund liability: No

TOTAL:

1. Future requirements awarded: Future medical and permanent total disability benefits

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Paul Reichert, Esq.

Employee: Lonnie Jones

Injury No. 08-020145

Dependents: N/A

Employer: Laclede County

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

Insurer: Missouri Association of Counties

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on January 22, 2010. The record was left open for the submission of additional evidence, and the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about February 21, 2010.

The employee appeared personally and through his attorney, Paul Reichert, Esq. The employer and insurer appeared through their attorneys, Dave Weidner, Esq., and Jared Vessell, Esq. The Second Injury Fund appeared through its attorney, Heather Rowe, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about March 7, 2008, Laclede County (a governmental entity in Missouri) was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Association of Counties.

(2) On the alleged injury date of March 7, 2008, Lonnie Jones was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about March 7, 2008, the employee sustained an accident which arose out of and in the course and scope of his employment with the employer.

(4) The above-referenced employment and accident occurred in Laclede County, Missouri. Additionally, the contract of employment was made in Missouri. The parties agree to venue lying in Greene County, Missouri. Jurisdiction is proper. Similarly, venue is proper.

(5) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident, the employee's average weekly wage was $\ 510.00, which is sufficient to allow a compensation rate of $\ 340.53 for both temporary total disability compensation and permanent disability compensation.

(8) Temporary disability benefits have been provided to the employee in the amount of $\ 4,037.67, representing $116 / 7$ weeks in disability benefits.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 30,272.58 in medical expenses.

The sole issues to be resolved by hearing include:

(1) Whether the accident of March 7, 2008, caused the injuries and disabilities for which benefits are now being claimed?

(2) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee of the effects of the injuries?

(3) Whether the employee sustained any permanent disability as a consequence of the accident of March 7, 2008; and, if so, what is the nature and extent of the disability?

(4) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of four additional witnesses - Timmy Jennings, Lowell Morgan, Gerald Lindsey ${ }^{1}$, and Phillip Eldred, M.S., C.R.C. In addition, the employee offered for admission the following exhibits:

Exhibit A........ Deposition of Shane Bennoch, M.D. (including attached exhibits)

Exhibit B ........... Vocational Evaluation Report from Phillip Eldred, M.S., C.R.C.

Exhibit C ...................... Supplemental Report from Phillip Eldred, M.S., C.R.C.

Exhibit D..........................................................CV of Phillip Eldred, M.S., C.R.C.

The exhibits were received and admitted into evidence.

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[^0]: ${ }^{1}$ The testimony of Gerald Lindsey is stricken and not admitted into evidence.

The employer and insurer objected to the testimony of Gerald Lindsey, asserting that Mr. Lindsey is a client of the employer and insurer, insofar as Mr. Lindsey was the direct supervisor of the employee at the time of the accident, although he is no longer an employee of Laclede County. The employer and insurer, by counsel, further assert that the employee's attorney contacted and met personally with Gerald Lindsey, and during this meeting discussed Mr. Lindsey's testimony, without first contacting and proceeding through legal counsel for the employer and insurer, and without affording legal counsel for the employer and insurer an opportunity to be present for the meeting between Mr. Lindsey and the employee's attorney. (It is not disputed that the employee's attorney contacted and met personally with Gerald Lindsey, and during this meeting discussed Mr. Lindsey's testimony, without first contacting and proceeding through legal counsel for the employer and insurer, and without affording legal counsel for the employer and insurer an opportunity to be present.)

In light of the objections of the employer and insurer, the undersigned reserved ruling on the admission of Mr. Lindsey's testimony and afforded the employee an opportunity to present said testimony as an offer of proof, and similarly afforded the employer and insurer, and the Second Injury Fund, opportunity to cross-examine Mr. Lindsey under the offer of proof. The parties have been afforded an opportunity to brief this issue. Having now considered the arguments of counsel, the objections of the employer and insurer are sustained. In light of the employer being a governmental entity and Mr. Lindsey no longer being an employee of the employer, it is understandable that the employee's attorney did not necessarily view Mr. Lindsey as a client of the employer and insurer; I do not believe the contact was made with improper intent. Yet, I am persuaded that Mr. Lindsey should be recognized as an employee of the employer for purpose of this litigation, and the employer's attorney was entitled to be present during any such meeting between Mr. Lindsey and Mr. Jones' attorney. Therefore, the testimony of Gerald Lindsey is stricken and not admitted into evidence

The employer and insurer presented two witnesses at the hearing of this case - Danny Rhoades and James England, M.Ed., C.R.C. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit 1 $\qquad Medical Records from St. John's Lebanon Family Practice Exhibit 2 \qquad$ Medical Records from St. John's Hospital - Lebanon Exhibit 3 Deposition of Lonnie Jones Exhibit 4 Deposition of Thomas Corsolini, M.D. Exhibit 5 $\qquad Medical Report from Thomas Corsolini, M.D. Exhibit 6. \qquad Vocational Evaluation Report from James England, M.Ed., C.R.C. Exhibit 7. \qquad Employer's Personnel File of Lonnie Jones Exhibit 8 \qquad Medical Records from St. John's Regional Health Center Exhibit 9 \qquad Medical Report from John C. Tabb, D.O. Exhibit 10 \qquad Medical Records and Report from Todd J. Harbach, M.D. Exhibit 11 \qquad Medical Records from St. John's - Lebanon Physical Therapy Exhibit 12 \qquad$ CV of James England, M.Ed., C.R.C.

The Second Injury Fund did not present any witnesses or offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Request for Hearing-Final Award

- Minute Entry - Approval of Request for Hearing \& Change of Venue to Springfield

- Notice of Commencement / Termination of Compensation

- Report of Injury

- Claim for Compensation

- Answer of Employer/Insurer to Claim for Comp