Troy Hudson v. Steel Constructors, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-139020

Employee: Troy L. Hudson

Employer: Steel Constructors, Inc.

Insurer: Continental Casualty Company

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 17, 2010. The award and decision of Chief Administrative Law Judge Paula McKeon, issued March 17, 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 $29^{\text {th }}$ day of July 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Troy L. Hudson

Injury Nos. 04-130020

04-139022

Dependents: N/A

Employer: Steel Constructors, Inc.

Insurer: Continental Casualty Company

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

Hearing Date: January 26, 2010

Checked by: PAM/pd

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: May, 21, 2004 and December 29, 2004
5. State location where accident occurred or occupational disease was contracted: 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: On May 21, 2004, Hudson was standing on a trailer, unloading steel, and fell to the ground injuring his head, neck and shoulders. On December 29, 2004, Hudson was bending rebar with a hickey bar when he injured his low back.
12. Did accident or occupational disease cause death? No. Date of death? N/A

Employee: Troy L. Hudson

Injury No. 04-139020

Injury No. 04-139022

Dependents: N/A

Employer: Steel Constructors, Inc.

Insurer: Continental Casualty Company

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

Hearing Date: January 26, 2010

Checked by: PAM/pd

On January 26, 2010, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The Claimant, Troy L. Hudson, appears in person and with Counsel Richard Scaletty. The Employer, Steel Constructors, Inc., and its insurer, Continental Casualty Company, appeared through Counsel James Hess. The Second Injury Fund appeared through Assistant Attorney General Richard Wiles.

The parties stipulated to the following:

1) that on May 21, 2004 and on December 29, 2004, Steel Constructors, Inc., was an employer operating under the provisions of the Missouri Workers' Compensation Law and that its liability was fully insured by Continental Casualty Company;

2) that on May 21, 2004 and on December 29, 2004, Troy L. Hudson was an employee of Steel Constructors, Inc., working under the provisions of the Missouri Workers' Compensation Law;

3) that on May 21, 2004, Hudson sustained an injury by accident arising out of and in the scope of his employment;

4) that on December 29, 2004, Hudson sustained another injury by accident arising out of and in the course and scope of his employment;

5) that Hudson gave timely notice of both of the above-referenced injuries to the Employer;

6) that Hudson filed a timely claim for compensation for both the above-referenced injuries;

7) that at the time of the injury of May 21, 2004, Hudson had an average weekly wage of $\ 582.37 resulting in a weekly compensation rate for temporary total disability/permanent partial disability in the amount of $\$ 388.26 / \ 347.05;

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Troy L. Hudson

Injury Nos. 04-139020 and 04-139022

8) that at the time of the injury of December 29, 2004, Hudson had a weekly wage of $\ 561.28 resulting in a compensation rate of temporary total disability/permanent partial disability in the amount of $\$ 374.21 / \ 354.05;

9) that for the May 21, 2004 injury, Hudson has been paid temporary total disability benefits of 78 weeks at a rate of $\ 366.96 for a total of $\ 28,409;

10) that Hudson was underpaid temporary total disability benefits for the May 21, 2004 injury in the amount of $\ 19.30 for 78 weeks and is therefore entitled to additional temporary total disability benefits of $\ 1,505.49;

11) that as a result of the December 29, 2004 injury, Hudson was paid a total of 133 weeks of temporary total disability benefits at a rate of $\ 368 per week for a total amount of $\ 49,071.68;

12) that Hudson was underpaid 133 weeks of temporary total disability benefits in the amount of $\ 5.25 and is therefore entitled to additional temporary total disability benefits in the amount of $\ 692.25 referable to the December 29, 2004 injury;

13) that the last day Hudson received any temporary total disability benefits was January 7, 2009;

14) that the Employer and its Insurer have provided medical care in the amount of $\ 68,689.35 for the injury of May 21, 2004 and $\ 189,144.69 for the injury of December 29; 2004;

15) that future medical care for Hudson relating to both injuries shall remain open and is to be provided by the Employer.

The parties request the Division to determine:

1) the nature and extent of disability from the injury of May 21, 2004;

2) the nature and extent of disability for the injury of December 29, 2009;

3) whether Hudson is permanently and totally disabled and, if so, whether the permanent total disability arises from the injury of May 21, 2004 or from the second injury of December 29, 2004 or from a combination of disability;

4) whether Hudson is entitled to reimbursement for out-of-pocket medical expenses incurred while being treated at MCI Hospital, Liberty Hospital and ongoing medications for pain management;

5) whether Hudson should have the right to control his future and ongoing medical care and treatment;

6) whether the Second Injury Fund is liable to Hudson for permanent total disability benefits.

Hudson's evidence consisted of his testimony, the testimony of his wife and testimony from several lay witnesses; deposition testimony from James Stuckmeyer, M.D.; Steven Simon, M.D.; Mary Titterington, vocational expert; and Dawn Uhter, Hudson's nurse case manager employed by the insurer; the medical records; medical bills; medical reports; various

Employee: Troy L. Hudson

Injury No. 04-139020 and 04-139022

photographs; a rebar sample and Hudson's attorney's case expenses. The Employer's evidence consisted of the deposition of Alexander Bailey, M.D., the deposition of Troy Hudson, and various attorney letters generated in the course of this matter. The Second Injury Fund offered no evidence at the hearing.

There was no dispute that on May 21, 2004, Troy Hudson, while employed as an ironworker, sustained an injury when he fell off a truck while unloading steel bars, injuring his head, shoulders and upper back. Hudson was taken by his Employer to the Hickman Mills Clinic for immediate medical attention. Hudson testified that the clinic told him he needed additional treatment and should go to the emergency room. Hudson went to Medical Center of Independence where he received medical treatment and seeks reimbursement in the amount of $\ 1,843 for this treatment. Hudson stayed home for a few days before returning to work. Hudson also testified that he missed between 30 and 40 days of work between May 21, 2004 and December 29, 2004, the date of his second injury, due to severe pain. When at work, Hudson sought assistance from co-workers. Hudson carried less weight, shifted carrying loads to his other shoulder, and spent more time reading blueprints and supervising other employees compared to doing heavy work before his May 21, 2004 injury. After May 21, 2004, Hudson was no longer able to enjoy many outside activities including hunting, fly-fishing, playing softball and horseback riding. The medical evidence reveals that Hudson suffered an injury to his cervical spine and shoulder which ultimately required a surgical fusion at levels C5-C6 and C6-C7 on November 27, 2007. However, the surgical intervention for the cervical spine injury did not occur until after Hudson had received extensive medical care and treatment for his second injury of December 29, 2004.

There is no dispute that on December 29, 2004 Hudson sustained an injury to his low back and lumbar spine arising out of and in the course and scope of his employment with the Employer. At the time of that injury, Hudson was using a hickey bar to bend rebar when he felt something pop in his back and felt immediate pain in his low back shooting down his legs. Hudson was diagnosed with a herniated di