William Dobbs v. City of Oran

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-117042

Employee: William D. Dobbs

Employer: City of Oran (Settled)

Insurer: American Home Assurance Company (Settled)

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 January 24, 2011. The award and decision of Administrative Law Judge Gary L. Robbins, issued January 24, 2011, 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 $26^{\text {th }}$ day of July 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: William D. Dobbs

Injury No. 02-117042

Dependents: N/A

Employer: City of Oran

Additional Party: Second Injury Fund

Insurer: American Home Assurance Company

Hearing Date: October 20, 2010

Checked by: GLR/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? October 30, 2002.
5. State location where accident occurred or occupational disease contracted: Scott County, Missouri.
6. Was above employee in employ of above employers at time of alleged accident or occupational disease? Yes.
7. Did the employers receive proper notice? Yes.
8. Did the accidents or occupational diseases arise out of and in the course of the employment? Yes.
9. Were the claims for compensation filed within time required by law? Yes.
10. Were the employers insured by above insurers? Yes.

Employee: William D. Dobbs

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was moving a concrete slab when it fell and knocked a landscape timer into the employee's right knee causing injury.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Right knee.

1. Nature and extent of any permanent disability: See Award.

1. Compensation paid to date for temporary total disability: Not disclosed at trial.

1. Value necessary medical aid paid to date by employer-insurer: Not disclosed at trial.

1. Value necessary medical aid not furnished by employer-insurer: None.

1. Employee's average weekly wage: 413.64.

1. Weekly compensation rate: 275.76 for all purposes.

1. Method wages computation: By agreement.

1. Amount of compensation payable: See Award.

1. Second Injury Fund liability: See Award.

1. Future requirements awarded: None.

The Compensation awarded to the employee 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 employee: Stephen L. Taylor.

On October 20, 2010, the employee, William D. Dobbs, appeared in person and by his attorney, Stephen L. Taylor, for a final award. The employer-insurer was not represented at the hearing as they had settled their case with the employee prior t trial. Assistant Attorney General Frank A. Rodman represented the Second Injury Fund. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the facts that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by American Home Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of the City of Oran and was working under the Workers' Compensation Act.
3. On or about October 30, 2002 the employee sustained an accident or occupational disease that arose out of 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 is $\ 413.64. His rate for all other purposes is $\ 275.76 per week.
7. The employee's injury was medically causally related to his accident or occupational disease.
8. The parties did not disclose how much the employer-insurer paid in medical aid.
9. The parties did not disclose how much the employer-insurer paid in temporary disability benefits.
10. The employee had no claim for previously incurred medical bills or mileage or future medical care.
11. The employee had no claim for any temporary disability benefits.

1. Liability of the Second Injury Fund for permanent partial or permanent total disability.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical Records

B. Prior Medical Records

C. Deposition of Dr. Annamarie Guidos

D. Deposition of Susan Shea

E. Social Security Award

F. Deposition of Jerome Levy

G. Workers' Compensation File

Second Injury Fund Exhibits

None.

William D. Dobbs, the employee, was the only witness to provide live testimony in this case. All other evidence was presented in the form of written reports, medical records or deposition testimony.

A general chronology of some of the evidence in this case helps to gain an understanding of this case.

At the time of trial, the employee was about fifty-four years old.

1972 The employee began working doing general farm labor. He worked in this capacity for several years.

1976 - 1982 The employee served in the military.

1978 The employee worked as a laborer for Triangle Wire in Sikeston.

1979 The employee moved to Wisconsin and worked at a foundry that made caterpillar parts.

1979 The employee injured his right ankle due to an injury at National Guard training. The employee testified that he had surgery but filed no claim.

1979-1980 The employee moved back to Missouri and again worked as a farm hand.

1982 The employee moved to Texas for eight months and worked at a factory making seat covers.

1983 The employee returned to Missouri and work for Dollins erecting grain bins.

2000 The employee hurt his right knee and foot but filed no claim.

11-9-01 The employee was working for the City of Oran and injured his neck due to a twisting movement on a tractor.

1-10-02 The employee had neck fusion surgery. He filed a workers' compensation claim. Dr. Merkin returned the employee to full duty with no restrictions. The employee returned to work with the City of Oran.

11-12-02 The employee settled his neck fusion case with the employer-insurer for twenty percent permanent partial disability to his cervical spine.

10-23-03 The employee settled his neck fusion case with the Second Injury Fund claiming pre-existing injuries to both shoulders.

10-30-02 The employee injured his right knee while working for the City of Oran. This is the primary injury in this lawsuit. The employee received a substantial amount of conservative care prior to surgery in this case.

11-15-03 The employee was involved in an automobile accident.

11-28-03 Dr. Kreighouser performed arthroscopic right knee surgery. The employee did not return to work for the City of Oran. After surgery the employee again worked for Dollins and worked there for approximately three months.

1-9-04 Dr. Kreighouser let the employee return to a sit down job. He had been terminated by the City of Oran at that time.

3-4-04 Dr. Kreighouser released the employee at maximum medical improvement with permanent restriction of no repetitive squatting or kneeling.

3-05 The employee had his second stint/heart surgery.

5-05 The employee is being treated for persistent right knee pain.

8-21-06 The employee had his first back surgery with Dr. Gibbs. There was no known accident causing this surgery.

10-5-06 The employee was seen and evaluated by Dr. Levy.

2-26-07 The employee underwent back fusion surgery at L5-S1 by Dr. Gibbs.

5-29-07 The Social Security Administration found the employee to be permanently disabled effective October 30, 2002.

In addition to the portions of the award that were completely authored by the Court, the Court has copied and included the complete "Summary of the Evidence" that the employee prepared in their proposed findings as part of the Court's Statement of Facts found below: "William "Dwight" Dobbs testified that he resides in Oran, Missouri and was born October 4, 1956. He has been married to his wife, Connie, for 35 years. They ha