Jeffrey Ross v. Mike Brooke Drywall, Inc.

Mary Titterington is a vocational expert. Ms. Titterington carefully considered the restrictions imposed upon employee by the physicians who have treated and evaluated employee. Ms. Titterington believes that employee is not employable in the open labor market because there are no jobs that fit within the physical restrictions recommended as a result of the work injury. Ms. Titterington singled out employee's need to elevate his leg as a restriction an employer would not reasonably be expected to accommodate. We find the testimony of Ms. Titterington the most credible and persuasive testimony on the issue of employee's ability to compete in the open labor market.

We believe employee is unable to compete in the open labor market due to the restrictions imposed due to the April 17, 2000, work injury. We conclude that employee was rendered permanently and totally disabled by the last injury alone. Accordingly, we affirm the award and decision of the administrative law judge, as supplemented herein.

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 October 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Jeffery Ross

Injury No. 00-039698

Dependents:

Before the

Employer: Mike Brooke Drywall, Inc.

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: Truck Insurance Exchange

Jefferson City, Missouri

Hearing Date: October 13, 2009

Checked by: DLZ

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: April 17, 2000
5. State location where accident occurred or occupational disease was contracted: Chillicothe, Livingston 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: Claimant slipped from scaffolding causing knee to twist
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: Left lower extremity at the knee
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 27,932.32
16. Value necessary medical aid paid to date by employer/insurer? $\ 68,456.14

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 883.20
3. Weekly compensation rate: $\$ 578.48 / 303.01$
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Unpaid medical expenses: -0 -

-0- weeks of temporary total disability (or temporary partial disability)

Permanent total disability benefits from Employer beginning March 22, 2001, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

TOTAL: $\ 258,415.23

1. Future requirements awarded: As provided for in this award

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: Michael Knepper

Employee: Jeffery Ross

Employee: Jeffery Ross

Dependents:

Employment: Mike Brooke Drywall, Inc.

Additional Party Second Injury Fund

Insurer: Truck Insurance Exchange

Checked by: DLZ

On October 13, 2009, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by his attorney, Michael Knepper. The Employer appeared by attorney, Catherine Salmon. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Jacinda Thudium.

The parties stipulated to certain facts which are not at issue in the claim as follows, to wit: On or about the $17^{\text {th }}$ day of April, 2000, Mike Brooke Drywall, Inc. was an employer, operating subject to the Workers' Compensation Law; the Employer's liability was fully insured by Truck Insurance Exchange; on the alleged injury date of April 17, 2000, Jeffery Ross was an employee of the Employer; the Claimant was working subject to the Workers' Compensation Law; the parties agree that on or about April 17, 2000, Claimant sustained an accident which arose out of the course of and scope of employment; the employment occurred in Boone County, Missouri, and the parties agree that Boone County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was $\ 883.20, sufficient to allow the following compensation rates: $\ 578.48 for temporary total disability and permanent total disability and

Employee: Jeffery Ross

Injury No. 00-039698

$\ 303.01 for permanent partial disability; temporary disability benefits have been paid in the amount of $\ 27,932.32 prior to the date of this hearing, which represents $48-2 / 7 weeks of benefits; the Employer has paid medical benefits in the amount of \ 68,456.14 prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

Whether the accident caused the injuries and disabilities for which benefits are now being claimed.

Whether the Claimant has sustained injuries that will require future medical care in order to cure and relieve the Claimant of the effects of the injuries.

The nature and extent of any permanent disabilities.

The liability of the Second Injury Fund for permanent total disability or permanent partial disability.

A legal file was established for this hearing consisting of the following documents, to wit: Claim for Compensation filed by the Claimant with the Division; Answer to Claim for Compensation filed by the Employer with the Division; Answer to Claim for Compensation filed by the Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, with the Division; Amended Claim for Compensation filed by the Claimant with the Division; Answer to Amended Claim for Compensation filed by the Employer with the Division; Answer to Amended

Claim for Compensation filed by the Treasurer with the Division; Request for Final Hearing filed by the Claimant with the Division.

Claimant offered into evidence, and there were admitted, Claimant's Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, and Z. Employer offered, and there were admitted, Employer's Exhibits 1 and 2.

Jeffery Ross, claimant herein, testified on his own behalf. Claimant testified that he was 48 years of age at the date of hearing. Claimant lives in Callao, Missouri, where he has lived for about 16 years. Claimant attended 12 years of school and received a high school diploma.

Claimant testified that he was working in Chillicothe, Missouri, at the high school installing ceiling grids as part of an acoustical ceiling installation on April 17, 2000, when he inadvertently stepped off of scaffolding which was about two and one-half feet off the floor of the room where he was working. Claimant's left foot hit the floor while his right leg stayed on the scaffolding. The scaffolding was a platform on wheels. Claimant testified that he did not fall all the way to the floor, but when his left leg hit the floor, Claimant felt immediate pain in the left knee and he felt a "pop." The incident occurred about 3:20 in the afternoon near the end of the workday.

Claimant testified that the pain did not let up and that he hobbled around on the floor trying to walk off the pain but nothing worked, so Claimant then left the workplace and went to his home. Claimant testified that several other people were working in the same area when the incident occurred. Claimant testified that people came into the room where the incident occurred to see what the matter was. When Claimant left the job site, he was with Larry Close, a friend and co-worker. Claimant further testified t