William Maxwell v. Three Rivers Travel

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-078049

Employee: William Maxwell

Employer: Three Rivers Travel

Insurer: Great American Insurance Co.

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 May 25, 2010. The award and decision of Administrative Law Judge Maureen Tilley, issued May 25, 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 $\qquad 25 ^{\text {th }} \qquad$ day of January 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: William Maxwell

Injury No. 04-078049

Dependents: N/A

Employer: Three Rivers Travel

Additional Party: Second Injury Fund

Insurer: Great American Insurance Co.

Hearing Date: 12-15-2009 and 2-19-2010

Checked by: MT/rf

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 10, 2004.
5. State location where accident occurred or occupational disease contracted: Butler County.
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 happened or occupational disease contracted: The employee was washing a bus and moving a bucket when he slipped on a wet, soapy floor and felt a sudden onset of right groin pain and presentation of obvious bulge. The employee was eventually diagnosed with an inguinal hernia.

On December 15, 2009 and February 19, 2010, the employee, William Maxwell, appeared in person and with his attorney, Ron Little, for a hearing for a final award. The employer was represented at the hearing by its attorney, Bob Evans. The Second Injury Fund was represented by attorney, Frank Rodman. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers Compensation Act, and liability was fully insured by Great American Insurance Company.
2. Covered Employee: On or about April 10, 2004, William Maxwell was an employee of Donna Brooks d/b/a Three Rivers Travel and was working under the Workers' Compensation Act.
3. Accident: On or about April 10, 2004, the employee sustained an accident out of and in the course of his employment.
4. Notice: Employer had notice of employee's accident.
5. Statute of Limitations: Employee's claim was filed within the time allowed by law.
6. Average Weekly Wage and Rate: Employee's average weekly wage calculated from the average of his actual earning in the 13 weeks immediately preceding the April 10, 2004 injury was $\ 148.56 resulting in a weekly compensation rate for TTD of $\ 99.04. Employee's average weekly wage, calculated under the applicable 30 -hour rule is $\ 240.00 resulting in a weekly compensation rate for PTD and PPD of $\ 160.00.
7. Medical Aid furnished by Employer/Insurer: Amount paid: \$21,984.25
8. Temporary Disability paid by Employer/Insurer: Employer/Insurer paid approximately 7.83 weeks or $\ 775.86.
9. Employer/Insurer owes Employee the amount of $\ 2,126.38 for additional temporary total disability for the period 9/20/2005 to 2/17/2006 (approximately 21-4/7 weeks).
10. Employer/Insurer owes Employee the amount of $\ 264.19 for previously incurred medical aid.
11. Employer/Insurer owes Employee the amount of $\ 600.00 for mileage reimbursement under Section 287.140 RSMo.

1. Medical Causation
2. Additional Future Medical Aid
3. Permanent Total Disability
4. Permanent Partial Disability
5. Second Injury Fund Liability

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

Exhibit A Records - Ricky Lents, M.D. (2/16/98 to 8/3/98)

Exhibit B Records - Physicians Alliance Surgery Center (10/11/00)

Exhibit C Records - James Wilkerson, M.D. (7/12/02 to 2/21/07)

Exhibit D Records - Edward Bender, M.D. (7/16/02 to 8/6/02)

Exhibit E Records - St. Francis Medical Center (7/16/02 to 8/6/02)

Exhibit F Records - Carl Bosley, M.D. (10/7/02 to 8/9/07 \& 12/23/02 to 5/5/03)

Exhibit G Records - Kneibert Clinic (8/19/03 to 10/11/06; 11/29/06 to 7/19/07 \& 7/19/07 to 9/25/09)

Exhibit H Withdrawn

Exhibit I Records - Poplar Bluff Regional Medical Center (5/6/04 to 5/11/04)

Exhibit J Withdrawn

Exhibit K Records - Missouri Delta Medical Center (8/2/05 to 9/20/05)

Exhibit L Records - Missouri Delta Physicians (6/20/05 to 2/17/06)

Exhibit M Records- The Surgery Center of Poplar Bluff (3/24/06 to 7/10/07)(bills withdrawn)

Exhibit N Records - Cape Urology Associates (2/13/07)

Exhibit O Withdrawn

Exhibit P Withdrawn

Exhibit Q Dr. Raymond Cohen Deposition \& Exhibits

Exhibit R Mr. Jim England Deposition \& Exhibits

Exhibit S Dr. John McKinney Deposition \& Exhibits

Exhibit T Report of Injury (Claim No.:04-078049)

Exhibit U Withdrawn

Exhibit V Attorney Contract

Exhibit W Stipulation for Compromise Settlement (Claim No: 03-147913)

Exhibits Q and R were objected to at the hearing and taken under advisement. After considering the objections, these exhibits were admitted into evidence after the hearing.

Exhibit 1 Deposition of Dr. Cantrell with attached Exhibits.

Exhibit 2 Not admitted after SIF objections.

Exhibit 3 Deposition of Employee dated 3/27/09

Exhibit 4 Not admitted after SIF objections.

Exhibit 5 Time records

Exhibit 6 Time records (payroll summary)

Exhibit 7 Time card of Employee for 6/23/05

Exhibit 8 Nordyne employment records

Employer-insurer's Exhibit 2 was not admitted into evidence. However, the employer/insurer made an offer of proof and requested that the exhibit be retained with the file for appellate purposes. Therefore, the exhibit has been retained with the file.

The Second Injury Fund did not offer any exhibits.

- At the time of trial, the employee, William Maxwell was 68 years old and had been married for more than 30 years. He and his wife had seven children, four of which were under the age of 21 and living at home: Sara, age 20; Matthew, age 19; Aaron, age 16 and Rachel, age 14.

- The employee testified that during the 1940's and 1950's when he was growing up, he lived in what he described as "labor camps" where the group harvested fruit/vegetables and picked cotton on farms in southern California. He attended 8th grade and started the 9th but didn't really go to school that much, did not make passing grades, and did not learn to read as a result of his schooling. His was taught to read by his wife when he was an adult. He stated that he does not read "real good." He estimated his math skills to be at the 4th or 5th grade level.

- He served in the military, completed welding school and also had some training on diesel engines.

- Farming Operations: As a youth and into early adulthood, the employee worked as a farm hand harvesting produce for a number of years.

- BF Chemical: The employee worked for some period for this fertilizer company. This job required that he secure a commercial driver's license. As a part of his job, he drove a tanker truck and fertilizer spreader rig.

- Flying M. Cattle Ranch: The employee testified that his work on this ranch involved raising alfalfa. He operated a tractor some, dug ditches and directed Mexican farm laborers on what to do in the alfalfa fields. During this employment he fell off a ladder and hurt his tailbone. He sought medical treatment and his tailbone pain cleared up after a few months. He was not having tailbone pain in April 2004. He also sustained an injury to his ribs when he fell and struck his ribs on a tractor. He saw a doctor and was given one prescription of pain pills. He had no other treatment for his rib contusion. He had no knowledge of any work restrictions imposed due to the tailbone injury or rib injury.

- Crystal Ice: During the late 1970's, the employee worked in this cooling plant as a setup and line worker. In 1979, while loading lettuce for Crystal Ice, the employee sustained an injury which resulted in neck surgery by Dr. Joseph Miller in Memphis, Tennessee. He has no memory of permanent work restrictions from Dr. Miller after the neck surgery although he continued to have neck pain and problems especially when looking up and

when moving his head from side to side. In the many years since this neck injury, the employee has worked through his neck problems and pain.

- Madera Disposal: At this landfill, the employee operated a scraper used to move dirt and directed trash dumping traffic at the landfill.

- Royal Oaks: For seven or eight years, the employee worked for this Elsinore, Missouri charcoal factory in the maintenance department and as a supervisor in the packing department. The employee's work at the factory was physically demanding and required repetitive heavy lifting using huge chains and guards. A small part of his job required that he complete certain forms with a pencil by filling in tonnage amounts. During the employee's first five years at Royal Oaks, no hearing protection devices were recommended for or provided to factory employees. T