Ben Jones v. Mark Wallace Incorporated, d/b/a Dumplins of Poplar Bluff

Employee: Ben W. Jones

Injury No. 04-050098

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

Employer: Mark Wallace Incorporated, dba Dumplins of Poplar Bluff

Additional Party: Second Injury Fund

Insurer: Sagamore Insurance Company

Hearing Date: August 4, 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? March 20, 2004.
5. State location where accident occurred or occupational disease contracted: Butler 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? No, the employer was uninsured.
11. Describe work employee was doing and how accident happened or occupational disease contracted: The employee emptying a trash container into a dumpster and injured his back.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Back and body as a whole.
3. Nature and extent of any permanent disability: Twenty-five percent permanent partial disability to the back and body as a whole.
4. Compensation paid to date for temporary total disability: $\ 0.
5. Value necessary medical aid paid to date by employer-insurer: $\ 0.
6. Value necessary medical aid not furnished by employer-insurer: $\ 83,660.01.
7. Employee's average weekly wage: $\ 251.01.
8. Weekly compensation rate: $\ 167.42 for all purposes.
9. Method wages computation: By agreement.
10. Amount of compensation payable: See Award.
11. Second Injury Fund liability: See Award.
12. Future requirements awarded: See. Award.

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: Ronald L. Little.

On August 4, 2010, Ben W. Jones, the employee, appeared in person and by his attorney, Ronald L. Little, for a hearing for a final award. Sagamore Insurance Company, also referred to as the employer-insurer was represented at trial by Dennis R. Lassa. The Second Injury Fund was represented by Assistant Injury General Frank A. Rodman. Mark Wallace Incorporated dba Dumplins of Poplar Bluff, hereinafter referred to as "Dumplins" was represented by Matthew D. Leonard. At the time of trial, Mr. Wallace was deceased and Dumplins had ceased to operate as a business. 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 issues that were in dispute. These undisputed facts and issues, together with the statement of the findings of fact and rulings of law, are set forth below as follows:

1. On or about the date of the alleged accident or occupational disease the employee was an employee of Dumplins and was working under the Workers' Compensation Act.
2. The employee's claim was filed within the time allowed by law.
3. The employee's average weekly wage is $\ 251.01 per week. His compensation rate for all purposes is $\ 167.42 per week.
4. The parties agreed that the employer-insurer paid $\ 0 in medical aid.
5. The parties agreed that the employer-insurer paid $\ 0 in temporary disability benefits.

1. Employer - Whether the employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and whether Sagamore Insurance Company provided any insurance coverage at the time of the accident?
2. Accident - Whether on or about March 20, 2004 the employee sustained an accident or occupational disease that arose out of and in the course of his employment?
3. Notice - Whether the employer had notice of the employee's accident?
4. Medical Causation - Whether the employee's injury was medically causally related to his accident or occupational disease?
5. Prior Medical Bills - Whether the employer-insurer is responsible to pay $\ 83,660.01 in previously incurred medical bills?
6. Mileage - Whether the employer-insurer is responsible to pay the employee $\ 506.28 as reimbursement for mileage?
7. Future or Additional Medical Care - Whether the employer-insurer is responsible to provide additional or future medical care?
8. Temporary Disability - Whether the employer-insurer is responsible to pay the employee $\ 7,031.66 in temporary total disability compensation covering the period from April 20, 2004 to February 7, 2005?
9. Permanent Partial Disability - Whether the employer-insurer is responsible for permanent partial disability compensation?

1. Permanent Total Disability - Whether the employer-insurer is responsible for permanent total disability compensation?
2. Liability of the Second Injury Fund for either Permanent Partial or Permanent Total Disability - Whether the Second Injury Fund has any liability for either permanent partial or permanent total disability compensation?
3. Liability of the Second Injury Fund due to the employers status as an uninsured employer - Whether the Second Injury Fund has any liability for unpaid medical bills due to the employer not having workers' compensation insurance at the time of the accident?

The following exhibits were offered and admitted into evidence:

Exhibit A Medical records of Raymond F. Cohen, D.O.

Exhibit B Deposition of Raymond F. Cohen, D.O.

Exhibit C Report of James M. England, Jr.

Exhibit D Deposition of James M. England, Jr.

Exhibit E Medical records and bills from Poplar Bluff Regional Medical Center.

Exhibit F Medical records and bills from Cape Neurological Surgeons.

Exhibit G Medical records and bills from Southeast Missouri Hospital.

Exhibit H Medical records and bills from Plunkett Family Care.

Exhibit I Medical records and bills from Bluff Radiology Group.

Exhibit J Medical records and bills from Poplar Bluff Neurology Center.

Exhibit K Medical records and bills from Advanced Pain Center.

Exhibit L Medical bills from Cape Radiology Group.

Exhibit M Medical bills from K-Mart Pharmacy.

Exhibit N Medical bills from Super D Drugs.

Exhibit O Paycheck stubs and compensation rate calculations.

Exhibit $P \quad$ Attorney contract.

Exhibit Q Offer of Proof of items removed from Employee Exhibit H.

Exhibit 1 Deposition of Robert Bernardi, M.D.

Exhibit 2 not admitted

Exhibit 3 Medical record of Naushad dated 4/22/04.

Exhibit 4 Excerpt from Employee Deposition.

Exhibit Q Items removed from Employee Exhibit H.

Exhibit I Deposition Charles Hadley with Exhibits 1, 2 \& 3.

Exhibit II Documentation from the records of the Division of Workers' Compensation.

Exhibit III Medical records from Cape Neurological Surgeons, P.C.

During the pretrial conference the employer-insurer marked the deposition testimony of Charles Hadley as Employer-Insurer Exhibit I and offered it as an exhibit. The attachments to the exhibit contained documentation including the insurance papers between Sagamore Insurance Company and Mark Wallace dba Dumplins. The employee filed a twenty-two page document entitled "Employee's Objections To Deposition Testimony of Charles Hadley". Mr. Hadley lived in Indianapolis, Indiana when his deposition was taken. The deposition of Mr. Hadley was taken on September 18, 2008. During the deposition the parties agreed that the deposition of Mr. Hadley could be used in lieu of his live testimony at trial. At the request of the employer-insurer the records were left open so they could respond to the written motion of the employee as it came as a complete surprise on the morning of trial. On August 11, 2010, the employer-insurer filed a document entitled "Insurer Sagamore Insurance Company's Motion To Strike Employee's Objections And Response To Employee's Objections To The Testimony Of Charles Hadley".

The Court has reviewed the materials offered by the parties and finds that the employee's objections are not well founded. The Court specifically overrules and denies the employee's written and oral objections to Employer-Insurer's Exhibit I and said attachments and admits same into evidence.

Other objections made by the parties were taken under advisement by the Court. The Court overrules these objections with the intent of letting in those exhibits that the Court did not admit at the time of trial.

Ben W. Jones, the employee and Mike Moss testified personally at trial. All other evidence was presented in written form either by various medical records, written records and contracts or deposition testimony.

Mr. Moss met Mr. Jones through his father and has been his friend for seventeen to eighteen years. Mr. Moss indicated that he has been a close friend of Mr. Jones for the past twelve years. In addition to their friendship, they have worked together woodcutting, scrap ironing and tearing down houses. Mr. Moss testified that Mr. Jones had physical problems that prevented him from doing any heavy work; therefore he did the heavy work. He indicated that the employee had

trouble with his hands and could not use them real well. In addition, there were problems with the employee's neck and he was not able to lift things above his head very well. Mr. M