Edward Burkman v. Marquand Pallet Stock, Inc.

(Modifying Award and Decision of Administrative Law Judge by Separate Opinion)

Injury No.: 08-058245

Employee: Edward Burkman

Employer: Marquand Pallet Stock, Inc.

Insurer: Missouri Wood Industry Insurance Trust c/o CCMSI

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, heard oral argument and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this temporary award modifying the March 28, 2011, temporary or partial award of the administrative law judge (ALJ). We adopt the findings, conclusions, decision and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision and modifications set forth below.

We agree with the ALJ's conclusion that employee established through the medical opinions of Dr. Vaught and Dr. Hogan that he is in need of additional medical treatment to cure and relieve him from the effects of his June 9, 2008, work-related injury. However, we find that the ALJ erred in finding that employer has waived its right to direct employee's medical treatment and ordering that said treatment be provided by a specific doctor.

First of all, we find that employee failed to prove under $\S 287.140 .2$ RSMo that his health and recovery has been endangered by the medical treatment provided by employer. Further, even if employee met this burden, the only relief provided under § 287.140.2 RSMo is that "the [D]ivision or the [C]ommission may order a change in the physician, surgeon, hospital or other requirement." (Emphasis added). Section 287.140.2 RSMo does not authorize the Division or the Commission to appoint a specific doctor to provide the employee's medical treatment. For the foregoing reasons, we find that the ALJ erred in ordering employee's additional medical treatment be provided specifically by Dr. Vaught.

We conclude that employee has established he is entitled to additional medical treatment to cure and relieve him of the effects of his work-related injury and we order employer to provide the same. Employer has not waived its right to select the physician to provide said treatment.

The award and decision of Administrative Law Judge Maureen Tilley issued March 28, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this temporary award.

This award is only temporary or partial. It is subject to further order, and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007 unless otherwise indicated.

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 $30^{\text {th }}$ 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: Edward Burkman Injury No. 08-058245

Injury Date: $\quad 6 / 9 / 08$

Employer: Marquand Pallet Stock, Inc.

Insurer: Missouri Wood Industry Insurance Trust c/o CCMSI

Hearing Date: $\quad 1 / 27 / 11 \quad$ Checked by: MT/rf

1. Are benefits awarded herein? Yes.
2. Was the injury compensable under Chapter 287? Yes.
3. Was there an accident under the Law? Yes.
4. Date of Accident: June 9, 2008.
5. Was Employee employed by Employer on the date of accident? Yes.
6. Location where accident occurred: Madison County, Missouri.
7. Did Employee receive proper Notice? Yes.
8. Did accident arise out of and in the course of employment? Yes.
9. Was Claim For Compensation filed within the time allowed by law? Yes.
10. Was Employer insured by above Insurer? Yes.
11. Describe what Employee was doing and how accident happened: Employee was cutting timber and stepped into a hole and fell.
12. Did accident cause death? No.
13. Part(s) of body injured in accident: Back, left lower extremity, body as a whole.

1. Compensation paid to date for Temporary Total Disability and/or Temporary Partial Disability: None.
2. Value necessary medical aid paid to date by Employer/Insurer: $\ 1,052.47
3. Value necessary medical aid not paid to date by Employer/Insurer: None.
4. Employee's Average Weekly Wage: $\ 368.03
5. Weekly compensation rate: $\ 245.35
6. Method wages computed: See findings.
7. Compensation payable: See findings.

This award is only temporary and partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

On January 27, 2011, Edward Burkman appeared in person and with his attorney, Boyd Green, for a hearing for Temporary Award. The Employer/Insurer was represented at the hearing by its attorney, Paul Huck. 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 a summary of the evidence and the Findings of Fact and Rulings of Law, are set forth below as follows:

1. On or about 6/9/08, Marquand Pallet Stock, Inc. was a covered Employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully covered by Missouri Wood Industry Insurance Trust.
2. Employer/Insurer received timely and proper notice of Employee's accident.
3. Employee's claim was filed within the time allowed by law.
4. Employer/Insurer has paid medical expenses to date in the amount of $\ 1,052.47.
5. Employer/Insurer has paid no Temporary Total Disability to date.

1. Covered Employee.
2. Accident.
3. Average Weekly Wage and rate.
4. Medical causation.
5. Claim for additional or future medical aid.
6. Claim for past due TTD. Employee seeks TTD for a total of 136 and $6 / 7 weeks, for the time period of 6 / 13 / 08$ through the date of hearing (1/27/11), in the amount of $\ 35,533.29, and ongoing TTD benefits past the date of hearing until medically capable of returning to work.

The following exhibits were offered into evidence:

Employee's Exhibits

A. Medical Records packet, with subsections as follows:

1. Wills Chiropractic Center
2. Cross Trails Medical Center (Dr. Doyle)
3. Clinical Neurology, Inc. (Dr. Hogan)
4. Cardinal Neurosurgery \& Spine, Inc. (Dr. Kitchens)
5. Brain \& Neurospine Clinic of Missouri (Dr. Vaught)
6. St. Francis Medical Center (1998 MVA)
7. Jefferson Memorial Hospital (2003)

B. Dr. Vaught deposition with attachments

C. Photocopies of paystubs of Employee Edward Burkman

D. Wage rate calculation sheet

Employer's Exhibits

1. Form 1- Report of Injury dated 7/7/08
2. Marquand Pallet Stock, Inc. payroll summary dated 3/9/08 to 6/8/08
3. IRS Notice of Levy on Wages for period ending 12/31/03 for \$9,976.19
4. Medical records-St. Francis Medical Center 8/5/98-8/7/98
5. Medical records-Jefferson Memorial Hospital 6/6/03-8/5/03
6. Medical records-Wills Chiropractic Center 6/10/08-6/20/08
7. Medical records-Dr. Doyle/Cross Trails Medical Center 6/19/08-9/10/09
8. Medical records-Dr. Patrick Hogan 11/2/09-11/23/09
9. Medical records-Hampton Open MRI 11/12/09
10. Deposition of Dr. Daniel Kitchens with attachments
11. Tree count calculation sheet
12. Affidavit of Dwayne Gipson

All exhibits were admitted without objection.

Edward Burkman, the employee is a resident of Lowndes, Missouri. He is 42 years old. He lives with his fiancé Carmen Foster. He has five children. He pays child support for two of his daughters. He is not currently employed as he has not been physically able to work since his work injury of 6/9/08.

The employee grew up in the Zalma, Missouri area. He graduated from Zalma High School. After high school he entered the work force. Most of his work career has been spent in the logger/timber cutting trade. His first job after school was with Central Pallet Mills Inc. in Wappapello, Missouri. Following that job, he spent some time as a journeyman painter. He then returned to logging and worked for Tim Burchett in Marble Hill, Missouri for several years. He then spent some time as a sheet metal worker through the union in Poplar Bluff and later in St. Louis. He wearied of city life and returned to Southeast Missouri and the logging trade. He worked for Jones Logging in Puxico, Missouri for a year or two. After that he hired on with Marquand Pallet Stock, Inc.

The employee was hired by Marquand Pallet Stock in June 2007. He interviewed with the owner, Dwayne Gipson, about hiring on as a log cutter. Mr. Gipson and the employee discussed the terms of employment, including job duties and amount and calculation of wages. The employee testified he was hired on as a full-time employee. His wages were calculated based on production, at the rate of $\ 2.75 per tree cut. The owner Dwayne Gipson was to supply

all the necessary tools and materials necessary for the job. At the time of hire, the employee was furnished with a company-owned chainsaw and tool packet for saw maintenance.

The employee was paid his employee wages weekly, each Friday. The employee stated that when he was hired, the owner, Dwayne Gipson, explained that the total weekly compensation was based on the amount of trees cut per the piecemeal rate. However, it was the company's policy to divide the total amount in half, and issue two separate checks. One check was deemed the payroll check, and the other check was designated as reimbursement of expenses. Since it was a straight 50/50 division of the overall amount, each of the two weekly checks was for the same amount (within a penny occasionally). The check deemed as payroll wages had withholdings deducted weekly, consisting of Social Security withholdings, Medicare withholdings, state of Missouri tax withholdings, and child support withholdings. The second check, deemed reimbursement of expenses, included no withholdings (Employee's Exhibit C). The employee testified that he had no choice in this arrangement, that this was the company's policy. The employee testified that this arrangement, characterizing one half of each week's pay as "expense reimbursement", was purely a fiction created by the Employer, since the actual amount of incurred expenses each week was much less. The employee testified that on average, his incurred weekly expenses were about $\ 30 per week. These actually incurred expenses usually consisted of expenses for chainsaw gasoline, chainsaw files, bar oil, and also purchasing replacement saw chains every couple weeks. To demonstrate the fact that the expense arrangement was a fiction, the employee testified that the skidder driver, Lonnie Frymire, also had his weekly wages divided in half, with half designated as expense reimbursement, even though, since his only duty was to operate the skidder, he had no actual expenses at all on a weekly basis.

The employee's job was to cut down trees. The usual operation involved a two to three man team. The employee testified that he typically worked with a co-employee named Lonnie Frymire, who operated the log skidder. In addition to the chainsaw used by the employee, there was other, large equipment used for the log-cutting operation. One large vehicle was called a log skidder, which was a large tractor-like vehicle that was used to go through the woods and pull the cut trees out of the woods and up to a landing. Another piece of equipment called a loader, then picked up the cut logs with a long arm and pulled the logs into a slas