Alice McPherson v. New Prime, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 01-004755

Employee: Alice McPherson

Employer: New Prime, Inc.

Insurer: Self-Insured

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 December 8, 2010. The award and decision of Administrative Law Judge L. Timothy Wilson, issued December 8, 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 $\qquad 9^{\text {th }} \qquad$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Alice McPherson

Injury No. 01-004755

Dependents: N/A

Employer: New Prime, Inc.

Insurer: N/A (Self-insured Employer)

Additional Party: N/A

Hearing Date: October 6, 2010

Checked by: LTW

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: January 22, 2001
5. State location where accident occurred or occupational disease was contracted: Maryville, Illinois (The contract of employment between the employee and employer was made in 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: As a Bseat driver, Employee was sleeping unrestrained in the bunk of a low 2' tall sleeper berth. While Employee was situated in the sleeper berth and sleeping, the other team driver caused the brakes to be sharply applied, resulting in Employee being thrown out of the sleeper berth and to strike her head and chest against the Quallcom partition.
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: Lumbar spine, cervical spine, head, upper extremities, lower extremities, and body as a whole.
14. Nature and extent of any permanent disability: 10 % BAW
15. Compensation paid to-date for temporary disability: $\ 17,758.14
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,896.91

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 450.89
3. Weekly compensation rate: $\ 300.59 for TTD \& PPD/PTD
4. Method wages computation: Adjudication

1. Amount of compensation payable:

Unpaid medical expenses: N/A

85 2/7 weeks of temporary total disability (or temporary partial disability):

$\ 25,636.03

- TTD paid by ER

$\ 17,758.14

- Unpaid TTD owed to EE

$\ 7,877.89

NOTE: EE was temporarily and totally disabled for the period of January 23, 2001, to September 12, 2002 (85 2/7 weeks). ER has paid to EE temporary total disability compensation in the amount of $\ 17,758.14. Accordingly, EE is entitled to $\ 7,877.89 in additional temporary total disability compensation.

40 weeks of permanent partial disability compensation from Employer:

$\ 12,023.60

Weeks of disfigurement from Employer: None

1. Second Injury Fund liability: N/A

TOTAL:

$\ 19,901.49

1. Future requirements awarded: None

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Pitts Law Office, P.C.

Employee: Alice McPherson

Injury No. 01-004755

Dependents: N/A

Employer: New Prime, Inc.

Insurer: N/A (Self-insured Employer)

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 6, 2010. The evidentiary record remained open for 30 days, resulting in the record being closed on November 5, 2010. ${ }^{1}$ Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about November 5, 2010.

The employee appeared personally and through her attorney Jonathan Pitts, Esq. The employer appeared through its attorney, Kevin Fitzgerald, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about January 22, 2001, New Prime, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully self-insured.

(2) On the alleged injury date of January 22, 2001, Alice McPherson was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about January 22, 2001, the employee sustained an accident, which arose out of and in the course of her employment with the employer.

(4) The above-referenced accident occurred in or near Maryville, Illinois. However, the contract of employment between the employee and employer was made in Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

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[^0]: ${ }^{1}$ Subsequent to the hearing, the employer filed a Motion to File Additional Evidence, which resulted in the undersigned holding a conference call with the parties by and through their legal counsel. After consideration of arguments of counsel, and for good cause shown, the undersigned sustained the Motion to File Additional Evidence, and ordered the evidentiary record be reopened and to remain open for 30 days, effective from the date of hearing. This order is included in and made part of the Legal File.

(5) The employee notified the employer of her injury as required by Section, 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) Temporary disability benefits have been provided to the employee in the amount of $\ 17,758.14, payable for the period of January 23, 2001 through September 14, 2002, payable at the rate of $\ 206.49 per week.

(8) The employer has provided medical treatment to the employee, having paid $\ 15,896.91 in medical expenses.

(9) The employee reached maximum medical improvement on September 14, 2002.

(10) The attorney fee being sought is 25 percent.

The sole issues to be resolved by hearing include:

(1) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(2) What is the applicable compensation rate?

(3) Whether the claimant is entitled to additional temporary disability benefits? (The employee contends there is an underpayment of temporary total disability compensation. The employee is seeking additional temporary total disability compensation, contending that the employer paid the temporary total disability at a rate less than the applicable compensation rate.)

(4) Whether the employee has sustained any permanent disability as a consequence of the accident of January 22, 2001; and, if so, what is the nature and extent of the disability?

The employee, Alice McPherson, testified at the hearing in support of her claim. Also, Ms. McPherson offered for admission the following exhibits:

Exhibit A. Report of Injury

Exhibit B Claim for Compensation

Exhibit C Employee's W-2 (2001)

Exhibit D Notice of Commencement / Termination of Compensation

Exhibit E ... Deposition of Robert E. Paul, M.D. (Inclusive of IME Report, CV, \& Functional Ability Statement from Dr. Paul, and Social Security Decision) Exhibit F ....................Notice of Intent to Rely Upon Medical Report of Dr. Paul Exhibit G......................................................................................Medical Records Exhibit H................Department of Transportation - Medical Examiner Certificate

The exhibits were received and admitted into evidence. The employer objected to the admission of Exhibit E relative to Dr. Paul's opinion that the employee is unemployable on grounds that Dr. Paul is not competent to render such an opinion. This objection has now been considered and the objection is overruled.

The employer did not present any witnesses at the hearing of this case. The employer, however, offered for admission the following exhibits:

Exhibit 1........................................................Average Weekly Wage Calculation

Exhibit 2.................................................................... CV of Ted Lennard, M.D.

Exhibit 3......................................................Medical Report of Ted Lennard, M.D.

Exhibit 4........................................................Deposition of Ted Lennard, M.D.

Exhibit 5................ Employer's Post-hearing Submission of Additional Evidence

(Inclusive of Employer/Insurer's Offer of Settlement Statement for Bonus And

Settlement Statement for Settlement / Compensation Payment)

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Cover Letter Dated October 26, 2010

- Order (Reopening of Evidentiary Record)

- Employer's Motion to File Additional Evidence (with Cover Letter)

- Notice of Hearing

- Request for Hearing-Final Award

- Notice of Commencement of Compensation Payments

- Answer of Employer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Alice McPherson, is 60 years of age, having born on June 18, 1950. Ms. McPherson is divorced; she has five children, one of whom is deceased.

Ms. McPherson attended high school through the tenth grade, but did not graduate from high school. However, she obtained a GED certificate, and then later enrolled in college and obtained a Bachelor Degree in Industrial Technology. Ms. McPherson's employment history is varied and includes working as an over-the-road truck driver, working in construction, working as a cook, and working in a nursing home.

On or about January 17, 2001, Ms. McPherson obtained employment with the employer, New Prime, Inc., to work as an over-the-road driver. In this employment, Ms. McPherson agreed to work as a team driver (B-seat driver), partnering with another company driver. In entering into this employment agreement the parties did not agree to a specific salary amount. Rather, the parties agreed to an income based on mileage per trip. In this context, Ms. McPherson indicated that while her earnings were to be based on mileage, the employer guaranteed