Douglas Kaempfer v. G. A. Rich & Sons, Inc.

Enployee: Douglas Kaempfer

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For the foregoing reasons, we conclude that employee has established he is entitled to future medical care to cure and relieve him of the effects of his work-related injury and we direct employer to provide the same.

During the June 17, 2009, hearing, employer offered into evidence as Exhibit 25, the certified and sealed record of the Social Security Administration for employee. The Second Injury Fund objected to the admittance of Exhibit 25 because it argued that the information was irrelevant and immaterial. The ALJ sustained the Second Injury Fund's objection and found that Exhibit 25 was not admitted into the record. We disagree with the ALJ's sustaining of this objection.

The Second Injury Fund's objection was based on the argument that the criteria by which the Social Security Administration finds one to be totally disabled, is different than that for a finding of permanent total disability under Missouri Workers' Compensation Law. We agree that there are different standards; however, the Social Security Administration records were being offered as relevant and material evidence that employee's injuries were disabling to some extent. Therefore, we disagree that the Social Security Administration records were irrelevant and immaterial and find that the ALJ erred in sustaining the Second Injury Fund's objection.

For the foregoing reasons, we find that Exhibit 25 is admitted because it was relevant and material evidence of employee's nature and extent of disability.

Also, during the June 17, 2009, hearing, employer offered into evidence as Exhibit 29, the deposition of employee. Employee objected to the admission of Exhibit 29. Specifically, employee objected to the use of Exhibit 29 for anything other than crossexamination purposes. The ALJ sustained the objection. On appeal, both employer and employee argue that Exhibit 29 should have been admitted.

Section 287.560 RSMo provides that "any party shall be entitled ... to take and use depositions in like manner as in civil cases in circuit court...." The use of depositions in court proceedings is covered by Missouri Supreme Court Rule 57.07, which provides, "[a]ny part of a deposition that is admissible under the rules of evidence applied as though the deponent were testifying in court may be used against any party who is present or represented at the taking of the deposition, or who had proper notice thereof. Depositions may be used in court for any purpose." The deposition of an opponent may be introduced as an admission even if the opponent has also testified in person. Still v. Ahnemann, 984 S.W.2d 568 (Mo. App. 1999).

Based upon the foregoing, we find that the ALJ erred in sustaining employee's objection. Exhibit 29 is admitted.

We modify the award of the ALJ as provided herein. In all other respects, we affirm the award.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten issued April 15, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Douglas Kaempfer

Injury No. 01-057079

Employer: G. A. Rich \& Sons, Inc.

Additional Party: Second Injury Fund

Insurer: Travelers Indemnity Company of Connecticut

Appearances: Robert W. Meyers, Attorney for Employee, Steve Prosperi, Attorney for Employer-Insurer, and Frank Rodman, Attorney for the Second Injury Fund

Hearing Date: June 17, 2009 (commenced)

Checked by: LCK/rf

August 26, 2009 (completed)

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? March 16, 2001.
5. State location where accident occurred or occupational disease contracted: Mississippi 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.

On June 17, 2009, the employee, Douglas Kaempfer, appeared in person and with his attorney, Robert W. Meyers, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Steve Prosperi. The Second Injury Fund was represented by Assistant Attorney General 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. G. A. Rich \& Sons, Inc. was operating under and subject to the provisions of the Workers' Compensation Act and its liability was fully insured by Travelers Indemnity Company.
2. On or about March 16, 2001, Douglas Kaempfer was an employee of G. A. Rich \& Sons, Inc. and was working under the Workers' Compensation Act.
3. On or about March 16, 2001, the employee sustained an accident arising out and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 1,164.20 per week. The rate of compensation for temporary total and permanent total disability is $\ 599.96 per week. The rate of compensation for permanent partial disability is $\ 314.26 per week.
7. The employee's injury and treatment through April 15, 2002 was medically causally related to the accident.
8. The employer-insurer paid $\ 195,207.40 in medical aid.
9. The employer-insurer paid $\ 33,855.74 in temporary total disability beginning on March 17, 2001 and continuing through April 16, 2002.

1. Medical causation after April 15, 2002.
2. Claim for previously incurred medical.
3. Claim for additional or future medical aid.
4. The nature and extent of disability concerning the employer-insurer.
5. The liability of the Second Injury Fund for permanent partial disability or permanent total disability.

The following exhibits were offered and admitted into evidence:

Employee and Employer-Insurer Joint Exhibits

A-1. Medical records of Dr. Chaudhari including A-1a, A-1b, A-1c, and A1-d.

B-2. Medical records of Southeast Missouri Hospital including B-2a and B2-b.

C-3. Medical records of Southeast Missouri Hospital including C-3a and C-3b.

D-4. Medical records of Cape Imaging.

E-5. Medical records of Jackson Physical Therapy (The Second Injury Fund's objection to this exhibit was sustained based on lack of