Texas Martin v. Workforce, Inc.

The award and decision of Administrative Law Judge Maureen Tilley, issued March 21, 2011, 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 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 $17^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Texas Martin

Injury No. 05-089922

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Workforce, Inc. (settled)

Ceramo (dismissed)

Additional Party: Second Injury Fund

Insurer: ALEA North America c/o Gallagher Bassett (settled)

Liberty Mutual (dismissed)

Hearing Date: January 12, 2011 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: September 7, 2005.
5. State location where accident occurred or occupational disease was contracted: Cape Girardeau 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. Were employers insured by above insurers? Yes.

1. Describe work employee was doing and how accident occurred: The employee strained his back while he was moving propane tanks.
2. Did accident or occupational disease cause death? No.
3. Part(s) of body injured by accident or occupational disease: low back, spine and body as a whole.
4. Nature and extent of any permanent disability: 9.5% of the body as a whole at the level of the lumbar spine.
5. Compensation paid to-date for temporary disability: None.
6. Value necessary medical aid paid to date by employer/insurer? $453.00
7. Value necessary medical aid not furnished by employer/insurer? N/A
8. Employee's average weekly wages: 476.60
9. Weekly compensation rate: 317.74
10. Method wages computation: Stipulation.
11. Amount of compensation payable: N/A
12. Second Injury Fund liability: See findings.
13. Future requirements awarded: See findings.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Michael Korte.

On January 12, 2011, the employee, Texas Martin, appeared in person and with his attorney, B. Michael Korte, for a hearing for a final award against the Second Injury Fund. The Employee had previously settled a claim for compensation with Workforce, Inc., and had dismissed an alleged employer, Ceramo, Inc. The Second Injury Fund was represented at the hearing by its 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. Employer Workforce was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was insured by ALEA North American Ins. Co. c/o Gallagher Bassett.
2. Employer Ceramo was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was insured by Liberty Mutual.
3. On September 7, 2005, Claimant was an employee of Workforce and/or Ceramo working under the Missouri Workers' Compensation Act.
4. Both Employers had notice of Claimant's accident.
5. The claim was filed within the time allowed by law.
6. Claimant's average weekly wage was $\ 476.60. The rate of compensation for permanent total disability is $\ 317.74 per week.
7. Claimant's injury was medically causally related to the accident.
8. Employers previously furnished medical aid in the amount of $\ 453.00.
9. No temporary total disability benefits were paid.
10. The primary injury date was September 7, 2005.

The following issue was identified:

1. Liability of the Fund for permanent total disability.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A Curriculum Vitae of Dr. David T. Volarich

B March 13, 2009 complete medical report of Dr. David T. Volarich

C Curriculum Vitae of Gary Weimholt, M. S. CDMS

D June 8, 2009 report of Gary Weimholt, M. S. CDMS

E March 11, 2010 Deposition of Dr. David T. Volarich

F June 22, 2010 Deposition of Gary Weimholt

G Certified records of Baylor Dept. Of Orthopaedic Surgery

H Certified records of Fannin Street Imaging

The Second Injury Fund did not offer any exhibits.

Employee submitted exhibits A through P. Exhibits A through K, O and P were admitted. Exhibits L, M, and N were uncertified records and were objected to as to their hearsay nature. Based on the evidence presented, I find that Exhibits L, M, and N are hearsay will not be admitted into evidence.

On September 7, 2005 the employee as working at Ceramo. He obtained the job through Workforce, a temporary employment agency. On that day, he operated a forklift to move dumpsters and pallets of ceramic pots. He was required to change out the propane fuel tank on the forklift as part of the job. He disconnected an empty tank from the forklift and took it across the work area. He put down the empty tank and picked up a full tank which weighed approximately 40 to 60 pounds. While placing the filled tank on the forklift, he twisted his low back.

On September 8, 2005, the employee presented with pain complaints in his posterior left shoulder and low back pain on the right side with no radiculopathy. Dr. Straubinger took a history from the employee of extensive prior low back treatment which included multiple surgeries. Dr. Straubinger also noted the employee had chronic low back pain which existed prior to the primary injury and employee told him of a previously scheduled appointment with the Veteran's Administration (VA) facility in St. Louis. Employee told him he was routinely seen at the Marion, Illinois VA facility leading up to the work injury. Employee was taking prescribed narcotic pain medication at the time of the primary injury.

On September 9, 2005, employee returned to Dr. Straubinger. Dr. Straubinger compared prior VA x-rays to the ones from the day before and no differences were noted. Dr. Straubinger diagnosed a low back strain, superimposed on significant pre-existing degenerative disc disease, which was stable and resolving. He recommended the employee continue with his treatment regimen through the VA and found no need for further treatment for the primary work injury.

The employee settled the primary work injury claim at 9.5 % of the body as a whole (BAW) for his low back.

The employee stated he had been treating with the VA for an extended period of time leading up to the primary work injury. The employee stated he underwent a lumbar fusion in 1979 by Dr. Czerlip and a 1981 revision surgery. He thought he received a lifting restriction, but was unsure whether it was temporary or permanent. He said he received Social Security Disability for 11 years (1979-1990) and returned to work in 1990 for an oil field company owned by Bill Whitfield. He worked for that company for 14 years and served as a "gofer" for the owner, picking up his laundry and delivering paperwork to various people. He stated he always had low back pain and used a heating pad, took hot showers, and was able to lie down as needed.

Other pre-existing conditions involved his neck, bilateral knees, and right shoulder. He said he underwent neck fusion surgeries in 1974 and 1976, right shoulder surgeries in 2003 and 2004, and surgeries on his right knee in the 1980s. He submitted various pre-existing medical records which reflected some of that treatment. However, he did not submit any VA medical records.

The employee never returned to work after the work-related accident and did not claim unemployment benefits or look for work. He is currently receiving social security disability benefits.

The employee has never worked in an office, has no typing or keyboarding skills, and has no experience using a computer or other office machines. His education ended in the $11^{\text {th }}$ grade; he tried and failed to obtain a GED.

The employee does not believe that he is able to return to any of his former occupations, to any l