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Murll Brown v. Strong Alarm Company

Decision date: September 3, 201037 pages

Summary

The Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits for Murl L. Brown's cervical spine injury sustained in a motor vehicle accident on November 16, 2000. The employee was awarded 15% permanent partial disability of the body as a whole, combining with preexisting disability to result in permanent and total disability.

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Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
  • The injury involved a vehicle, unsafe premises, defective equipment, or a non-employer vendor.
  • A serious injury or death may need both benefits review and civil-claim analysis.

Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 00-129041

Employee: Murl L. Brown

Employer: Strong Alarm Company (Dismissed)

Insurer: American Motorist Insurance Co. (Dismissed)

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 21, 2010. The award and decision of Administrative Law Judge Robert B. Miner, issued April 21, 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 $3^{\text {rd }}$ day of September 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Issued by DIVISION OF WORKERS' COMPENSATIONRe: Injury No.: 00-129041
Employee: Murl L. Brown

AWARD

Employee: Murl L. Brown Injury No.: 00-129041

Employer: Strong Alarm Company (Dismissed January 2, 2003) Issurer: American Motorist Insurance Co. (Dismissed January 2, 2003) Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Hearing Date: January 21, 2010 Checked by: RBM

FINDINGS OF FACT AND RULINGS OF LAW

  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: November 16, 2000.
  5. State location where accident occurred or occupational disease was contracted: 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.
  1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was injured when the pickup truck he was driving struck a deer.
  2. Did accident or occupational disease cause death? No.
  3. Part(s) of body injured by accident or occupational disease: Neck and body as a whole.
  4. Nature and extent of any permanent disability: 15 % permanent partial disability of the body as a whole ( 400 week level) referable to the cervical spine, combining with preexisting disability to result in permanent and total disability.
  5. Compensation paid to-date for temporary disability: $\ 14,156.95.
  6. Value necessary medical aid paid to date by employer/insurer? $\ 39,378.43.
  7. Value necessary medical aid not furnished by employer/insurer? None.
  8. Employee's average weekly wages: $\ 435.71.
  9. Weekly compensation rate: $\ 290.47 for temporary total disability, permanent partial disability, and permanent total disability.
  10. Method wages computation: By agreement of the parties.

COMPENSATION PAYABLE

  1. Amount of compensation payable: N/A as to Employer and Insurer. Employee's claim against Employer was dismissed on January 2, 2003.
  2. Second Injury Fund liability:

Permanent total disability benefits from Second Injury Fund in the sum of $\ 290.47 per week beginning on December 16, 2002, and, thereafter, for claimant's lifetime.

  1. Future requirements awarded: As awarded.

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: James E. Martin.

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Murl L. Brown

Employer: Strong Alarm Company

(Dismissed January 2, 2003)

Insurer: American Motorist Insurance Co.

(Dismissed January 2, 2003)

Injury No.: 00-129041

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

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

Hearing Date: January 21, 2010

Checked by: RBM

PRELIMINARIES

A final hearing was held in this case on Employee's claim against The Treasurer of the State of Missouri as Custodian of the Second Injury Fund on January 21, 2010 in Gladstone, Missouri. Employee, Murl L. Brown, appeared in person and by his attorney, James E. Martin. Employer and Insurer did not appear. Employee's claim against Employer was dismissed on January 2, 2003. The Second Injury Fund appeared by it attorney, Kimberly Fournier. James E. Martin requested an attorney's fee of 25 % from all amounts awarded.

STIPULATIONS

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

  1. On or about November 16, 2000, Murl L. Brown ("Claimant") was an employee of Strong Alarm Company ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
  2. On or about November 16, 2000, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by American Motorist Insurance Co. ("Insurer").
  3. On or about November 16, 2000, Claimant sustained an injury by accident in Excelsior Springs, Clay County, Missouri, arising out of and in the course of his employment.
  4. Employer had notice of Claimant's alleged injury.

Issued by DIVISION OF WORKERS' COMPENSATION

Re: Injury No.: 00-129041

Employee: Murl L. Brown

  1. Claimant's Claim for Compensation was filed within the time allowed by law.
  2. The average weekly wage was $\ 435.71, and the rate of compensation for temporary total disability, permanent total disability, and permanent partial disability is $\ 290.47.
  3. Employer/Insurer has paid $\ 14,156.95 in temporary total disability at the rate of $\ 293.60 per week for $481 / 7$ weeks from November 17, 2000.
  4. Employer/Insurer has paid $\ 39,378.43 in medical aid.

ISSUES

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

  1. Liability of the Second Injury Fund for permanent disability benefits, including permanent partial disability and permanent total disability.

Claimant testified in person. In addition, Claimant offered the following exhibits which were admitted in evidence:

A-Deposition of Dr. James Stuckmeyer with deposition exhibits (the deposition was admitted subject to objections contained in the deposition)

B-Deposition of Michael Dreiling with deposition exhibits (the deposition was admitted subject to objections contained in the deposition)

C-Deposition of Michael Dreiling with deposition exhibits (the deposition was admitted subject to objections contained in the deposition)

E-Driver's Program Discharge Summary

The Second Injury Fund offered the following exhibits which were admitted in evidence:

Second Injury Fund Exhibit 1—Kansas worker's compensation settlement documents

Second Injury Fund Exhibit 2-Deposition of Claimant (the deposition was admitted subject to objections contained in the deposition)

Prior to the introduction of evidence, Claimant's attorney orally moved to amend the Claim for Compensation to allege permanent total disability against the Second Injury Fund. The Second Injury Fund's attorney had no objection to the motion, and Claimant's motion was granted.

Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of the record, and were not placed thereon by the Administrative Law Judge.

The post-trial briefs have been considered.

Findings of Fact

Summary of the Evidence

Claimant testified at the hearing that he is 67 years old. In November 2000, he was employed by Strong Alarm Company. Employer was headquartered in Olathe, Kansas. Employer installed residential and commercial fire alarms. Claimant had worked for Employer on the alarm side of the business for three and one-half years. Claimant installed alarm systems for Employer. He pulled cables on tops of buildings and attics. Cables weighed between fifty and one hundred pounds. He mounted boxes on walls, and ran cables through ceilings and walls and into basements. He climbed ladders and carried boxes with alarms that weighed around forty-five pounds.

Claimant had also worked for Employer as a technician in a pawn shop repairing electronic devices including copy machines and air compressors. He worked on the pawn side for fifteen years and was then transferred to the alarm company side.

On November 16, 2000, while working for Employer, Claimant installed an alarm system in Liberty, Missouri. He finished that job and then began driving Employer's Nissan pickup truck to another job. Claimant was involved in a motor vehicle accident on Highway 52 in Clay County, Missouri while driving to the other job. He was traveling about seventy miles per hour when a large deer jumped out in front of him and his truck struck the deer. His truck came to rest in a ravine on the side of the road.

The pick-up Claimant was driving had a camper shell that held tools. The front end of the truck came off and the windshield came out as a result of the accident. Equipment from the back of the truck came inside the truck and struck Claimant. He was wearing his seat belt at the time of the accident. He was under the dash when the truck came to rest. Claimant said he hurt all over after the accident.

Claimant called 911 on his cell phone. Fire department personnel removed him from the vehicle. He was driven to North Kansas City Hospital where x-rays were taken and pain medication was prescribed. He did not stay at the hospital overnight.

Claimant was also injured on March 8, 2000 when he fell off a ladder while on the job. Claimant testified that he was injured on his right side above his waist in the March 2000 accident. Claimant's employer did not have worker's compensation when Claimant was injured in March 2000. Claimant went to Dr. Gamble on his own. He was already scheduled to see Dr. Reintjes when he had the accident on November 16, 2000.

Claimant said he had problems with his head, shoulders, and back after the accident of March 8, 2000. He was able to work, but he had problems. Claimant testified he did not miss work between March 2000 and November 2000. He agreed that in the thirteen weeks before his November 2000 accident, he worked one and a half hours overtime during one week and three overtime hours during two weeks. He had pain and issues after the March fall, but he did his job for Employer.

Claimant testified that he was not having any problems before the March 2000 ladder accident. He performed his job without difficulty. He was under no doctor's care and was under no doctor's restrictions before March 2000. He was not taking any medication at that time.

Claimant initially complained of problems with his right side after the March 2000 accident. He saw Dr. Gamble between the time of his fall and the time of his November 2000 automobile accident. Dr. Gamble prescribed medication. Claimant did not have physical therapy during that time. Dr. Gamble had not recommended surgery. Dr. Gamble recommended that he hav

Full decision text continues in the plain-text archive copy.

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