Charles Miller v. Cornerstone Services Group

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-049839

Employee: Charles C. Miller

Employer: Cornerstone Services Group

Insurer: Liberty Mutual Insurance/New Hampshire Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by section 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated May 18, 2010.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of section 287.510 RSMo.

The award and decision of Administrative Law Judge Emily Fowler, issued May 18, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of September 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Charles C. Miller

Injury No.: 09-049839

Dependents: N/A

Employer: CORNERSTONE SERVICES GROUP

Additional Party: N/A

Insurer: LIBERTY MUTUAL INS. CO. / NEW HAMPSHIRE INS. CO.

Hearing Date: April 22, 2010

Checked by: ESF/cy

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: series to $5 / 4 / 09$
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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: repetitive lifting, pulling and carrying of building materials and equipment.
12. Did accident or occupational disease cause death? No

Date of death? N/A

Issued By DIVISION OF WORKERS’ COMPENSATION

Employee: Charles C. Miller

Injury No. 09-049839

1. Part(s) of body injured by accident or occupational disease: back and left leg
2. Nature and extent of any permanent disability: N/A
3. Compensation paid to date for temporary disability: 0
4. Value necessary medical aid paid to date by employer/insurer? N/A
5. Value necessary medical aid not furnished by employer/insurer? To be determined.
6. Employee's average weekly wages: sufficient for maximum
7. Weekly compensation rate: TTD 772.53; PPD 404.66
8. Method wages computation: Agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable: Temporary total disability payments in the sum of

$772.53 per week beginning May 5, 2009 and continuing each week until released from

treatment or returned to work.

1. Second Injury Fund liability: to be determined at a later date.
2. Future requirements awarded: Employer is to provide Employee with medical care to cure or

relieve the symptoms from which he suffers due to the injury of May 4, 2009. Further

Employer is ordered to authorize Dr. John Clough to administer such treatment.

The compensation awarded to the employee 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 employee: Michael H. Stang

Employee: Charles C. Miller

Injury No.: 09-049839

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: CORNERSTONE SERVICES GROUP

Additional Party: N/A

Insurer: LIBERTY MUTUAL INS. CO. / NEW HAMPSHIRE INS. CO.

Hearing Date: April 22, 2010

Checked by: ESF/cy

On April 22, 2010, the employee and employer appeared for a hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Charles Miller, appeared in person and with counsel, Michael H. Stang. The employer, Cornerstone Services Group (Cornerstone) appeared through attorney, John D. Jurcyk. The employer and alternate insurer, New Hampshire Insurance Company, were represented by Thomas Clinkenbeard.

The parties stipulated that:

1. The Employer and Employee were operating under and subject to the provisions of the Missouri Workers' Compensation law at all times relevant hereto;
2. The Employer's liability under said law was fully insured by Liberty Mutual Insurance Company;
3. An employer/employee relationship existed on or about May 4, 2009 between the Employer and Employee;
4. A Claim for Compensation was filed within the time prescribed by law;
5. That venue is proper;
6. The Employee's average weekly wage was sufficient for the maximum rates, resulting in a TTD rate of $\ 772.53 and a PPD rate of $\ 404.66;
7. Compensation has not been paid by the employer/insurer as a result of the alleged injury of May 4, 2009.

The issues to be resolved in this proceeding are as follows:

1. Whether Employee met his burden of proving that he sustained a compensable injury arising out of and in the course of his employment with Cornerstone;
2. Whether Employee provided timely notice of his alleged injury as required by Missouri law;
3. Whether Employee established that he was entitled to temporary total disability benefits after May 5, 2009;
4. Whether Employee is entitled to receive additional medical treatment with John Clough.

The Employee testified in person at the hearing. In addition, the following exhibits were offered and admitted into evidence:

1. Dr. Poppa Report dated July 21, 2009

a. Lundin Chiropractic Medical Records

b. Dr. Lopez Medical Records

c. Magnetic Resonance Imaging Records

1. Transcript of Dr. Lopez Deposition

Employee is alleging a series of accidents arising out of his employment with the employer, Cornerstone Services Group. Employee testified that his job with employer was insulation installation for heating and cooling systems. Employee had previously worked for employer for approximately 12 years leading up to his accident date. With the exception of a brief episode of back pain in 2005 for which employee received some chiropractic treatment, employee testified that he has never had any back injuries while working for the employer.

During the week prior to Saturday, April 11, 2009, employee had been working on a job at the construction site of St. Luke's East Hospital. During that week, employee testified that he began feeling pain in his low back and into his left leg as a result of his work activities. Specifically, employee testified that the St. Luke's East job was distinct from any other job he had ever performed while working for employer due to the fact that no stairs had yet been installed and, as such, employee had to "rope" all of his materials from floor to floor, essentially tying 40 pound boxes to a rope and hoisting them onto whatever floor he was working. Employee testified that, prior to the St. Luke's East job, he had never been required to perform that type of labor. In

addition, because of the lack of stairs, the use of large ladders was much more prevalent and he was required to personally and repeatedly carry those ladders around the job site.

Starting in the week prior to April 11, 2009, employee began to feel the onset of pain in the aforementioned body parts. By Saturday, April 11, 2009, claimant testified that he woke up in severe pain and decided to consult a chiropractor on April 15, 2009.

Employee received limited benefit from his chiropractic visits. He testified that immediately after consulting with the chiropractor, employee notified his employer of the onset of pain and the fact that he believed the roping activities and the ladder carrying activities were the cause of his problems. He testified that he told his boss Alex Stanwalski this information but was not offered any medical care. He further testified that he kept his employer apprised of the progress of his medical care and turned in his work status slips as well.

Employee continued to work full duty at the St. Luke's East job site and was next seen by his chiropractor's referral, pain management specialist Dr. Melvin Lopez. Employee first saw Dr. Lopez on April 23, 2010. At that first appointment, employee filled out a pain diagram form in which he indicated his symptoms were exacerbated by his work activities. He also indicated that sitting alleviated his symptoms. Dr. Lopez provided conservative treatment to employee until May 4, 2009 when he took the employee off of work entirely. Since that time, employee has received no authorized treatment nor has he received any lost time benefits including temporary total disability and/or unemployment. He has received additional unauthorized treatment with Dr. Lopez who ultimately recommended a neurosurgical referral.

On July 21, 2009, employee was seen by Dr. Michael Poppa who reiterated the work status imposed by Dr. Lopez and also recommended a neurosurgeon. Dr. Poppa specifically found that employee's diagnosis of chronic musculoligamentous sprain with left paracentric disk extrusion at L5-S1 with lower extremity radiculopathy was a direct result of employee's work, specifically noting that employee's work was the "prevailing factor" causing both the work related conditions and disability.

Section 287.800.1 RSMo (2005) provides that, "[a]ministrative law judges, associate administrative law judges, legal advisers, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly."

Section 287.020.10 RSMo provides that, "[i]n applying the provisions of this chapter, it is the intent of the legislature to reject and abrogate earlier case law interpretations on the meaning of or definition of "accident," "occupational disease," "arising out of," and "in the course of the employment" to include, but not be limited to, holdings in: Bennett v. Columbia Health Care and Rehabilitation, 80 S.W. 3d 524 (Mo.App. W.D. 2002); Kasl v. Bristol Care, Inc., 984 S.W. 2d 852 (Mo.banc 1999); and Drewes v. TWA, 984 S.W. 2d 512 (Mo.banc 1999) and all cases citing, interpreting, applying, or following those cases."

"The language in section 287.020.10 ... serves as clarification of the fact that any construction of the previous definitions by the courts was rejected by the amended definitions contained in section 287.020... [I]t appears from the plain language of the statute, the legislature...intended to clarify its intent to amend the definitions and apply those definitions prospectively." Lawson v. Ford Motor Co., 217 S.W. 3d 345, 349 (Mo.App. 2007).

In light of the directives of $\S 287.800$ and the Missouri Supreme Court, the fact finder's primary role is to strictly construe the Workers' Compensation Act giving the words and phrases their ordinary and usual meaning.

Section 287.120.1 R.S.Mo provides:

Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment, and shall be released from all other liability therefor whatsoeve