Melvin Stark v. Thomas Construction, Inc.

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 05-040898

Employee: Melvin Stark

Employer: Thomas Construction, Inc.

Insurer: Westport Insurance Corporation

c/o Gallagher Basset Services, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the briefs, 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 13, 2010, as supplemented herein.

In his award on pages 16 and 19, the administrative law judge refers to Dr. Koprivica's opinion and findings. Dr. Koprivica was not involved in this case. It's clear from the context of the administrative law judge's comments that he was, in fact, referring to Dr. Volarich's opinions and findings whenever he referred to Dr. Koprivica. We acknowledge this error and correct it with this supplemental opinion.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued September 13, 2010, is affirmed, and is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $17^{\text {th }}$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Melvin Stark

Injury No. 05-040898

Dependents: N/A

Employer: Thomas Construction, Inc.

Insurer: Westport Insurance Corporation

Additional Party: N/A

Hearing Date: August 10, 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: May 10, 2005
5. State location where accident occurred or occupational disease was contracted: Pulaski 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: While engaged in his employment with Employer, installing a galvanized steel laundry chute with a coworker, the steel laundry chute slipped out of the coworker's hands, resulting in Employee holding the weight of the entire piece of metal, as well as being jerked forward, downward and against a wall to the right. Employee attempted to keep the laundry chute from falling to the ground and hitting a worker below by holding on to it. As he held the chute, it pulled Employee to his knees, and eventually he had to let go. This incident caused Employee to sustain an injury to his low back.
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: Low Back
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 2,487.10
16. Value necessary medical aid paid to date by employer/insurer? $\ 7,446.73

Employee: Melvin Stark

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: See Award
3. Weekly compensation rate: $\ 355.30 for TTD \& PTD / $\ 354.05 for PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: N/A

Weeks of temporary total disability (or temporary partial disability): N/A

Weeks of permanent partial disability from Employer: N/A

Weeks of disfigurement from Employer: N/A

Permanent total disability benefits from Employer \& Insurer beginning March 30, 2007, for Employee's lifetime

1. Second Injury Fund liability: N/A

TOTAL: $\ 355.30 per week beginning March 30, 2007, for Employee's lifetime

1. Future requirements awarded: Yes (See 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 percent of all payments hereunder in favor of the following attorneys for necessary legal services rendered to the claimant: VAN CAMP LAW FIRM, L.L.C.

Employee: Melvin Stark

Injury No. 05-040898

Dependents: N/A

Employer: Thomas Construction, Inc.

Insurer: Westport Insurance Corporation

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on August 10, 2010. 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 August 24, 2010.

The employee, Melvin Stark, appeared personally and through his attorney Christine M. Kiefer, Esq. The employer, Thomas Construction, Inc., and its insurer, Westport Insurance Corporation, appeared through their attorney, Michael Mayes, Esq.

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

(1) On or about May 10, 2005, Thomas Construction, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Westport Insurance Corporation.

(2) On the alleged injury date of May 10, 2005, Melvin Stark was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about May 10, 2005, the employee sustained an accident, which arose out of and in the course and scope of his employment with the employer.

(4) The above-referenced employment and accident occurred in Pulaski County, Missouri. The parties agree to venue lying in Laclede County, Missouri. Venue is proper.

(5) The employee notified the employer of his 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) At the time of the claimed accident the employee's average weekly wage was sufficient to allow a compensation rate of $\ 355.30 for temporary total disability compensation and permanent total disability compensation, and a compensation rate of $\ 354.05 for permanent partial disability compensation.

(8) Temporary disability benefits have been provided to the employee in the amount of $\ 2,487.10, payable for the period of May 11, 2005 to June 29, 2005 .

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 7,446.73 in medical expenses.

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) Whether the employee sustained any permanent disability as a consequence of the alleged accident; and, if so, what is the nature and extent of the disability?

The employee testified at the hearing in support of his claim. Also, the employee offered for admission the following exhibits:

Exhibit A Medical Records from Capital Region Corporate Health Exhibit B Educational Records from Miller County R-III School District Exhibit C Medical Records from Lake Region Health System Exhibit D Medical Records from Springfield Neurological \& Spine Institute Exhibit E Medical Records from Lake Regional Medical Management Exhibit F Deposition of David Volarich, D.O. Exhibit G Deposition of James England, CRC

The exhibits were received and admitted into evidence.

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

Exhibit 1 Deposition of Ted Lennard, M.D.

Exhibit 2 Deposition of Mary Welch Titterington, M.S., C.D.M.S., L.P.C.

Exhibit 3

Payroll Records

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:

- Notice of Hearing

- Request for Hearing-Final Award

- Answer of Employer and Insurer to Amended Claim for Compensation

- Amended Claim for Compensation

- Answer of Employer and Insurer 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, Melvin Stark, is 61 years of age, having been born on March 6, 1949. Mr. Stark is single, and resides alone in Tuscumbia, Missouri without any dependents. Mr. Stark described his home as a trailer, situated on a one acre lot. Also, Mr. Stark's brother is his immediate neighbor, who lives next door.

Mr. Stark enjoys limited education. He attended high school, reaching the $11^{\text {th }}$ grade, but he did not graduate. Also, Mr. Stark has not obtained a GED. Nor has he received other formal education or training, and enjoys no certifications or degrees. In describing his education, Mr. Stark noted that he received poor grades in school, and he experienced problems with reading and math. And while in school, he was assigned to special education classes.

Mr. Stark is not presently employed. However, he is receiving social security disability compensation.

Mr. Stark's employment history relates primarily to work involving physical labor. Upon quitting high school, Mr. Stark obtained employment on a Turkey farm. He then obtained employment with Montgomery Ward in Jefferson City, Missouri, working in the automotive department. In this employment he changed tires, and performed other labor type work. He worked for Montgomery Ward for two to three years.

Subsequent to being employed by Montgomery Ward, Mr. Stark obtained employment with Tennyson's Furniture Store, delivering furniture to customers. He engaged in this employment for three to four years. He later obtained employment in construction.

Mr. Stark's employment in construction includes operating a tractor, as well as a Bobcat and a backhoe. He is familiar with a variety of hand tools and has driven trucks up through tandem axle flatbeds. However, he has not driven tractor trailer units. Additionally, he is familiar

with a wide variety of hand and power tools, as well as methods and materials used in the construction industry. And he is familiar with basic plumbing.

Mr. Stark does not have experience with office machines. Similarly, he does not have any experience in bookkeeping or performing inside office work. Nor does Mr. Stark have experience in inventory control, shipping and receiving, scheduling or supervising, or working with computers.

Eventually, in or around 1975, Mr. Stark obtained employment with the employer, Thomas Construction, Inc., working as a carpenter engaged in general construction involving residential and commercial construction projects. Mr. Stark continued in this employment for approximately 21 years, until on or