Michael Starks v. Conway Central Express, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-037128

Employee: Michael Starks

Employer: Conway Central Express, Inc.

Insurer: Indemnity Insurance Company of North America

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 21, 2011. The award and decision of Administrative Law Judge Karla Ogrodnik Boresi, issued January 21, 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 $\qquad 8^{\text {th }} \qquad$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

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: May 2, 2008
5. State location where accident occurred or occupational disease was contracted: Indianapolis, IN
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
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While exiting a forklift, Claimant caught his foot, twisted his ankle, and fell.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left ankle and leg
14. Nature and extent of any permanent disability: 110 % of the left lower extremity at the 155 level.
15. Compensation paid to-date for temporary disability: $\ 80,198.16
16. Value necessary medical aid paid to date by employer/insurer? $\ 211,445.75

1. Value necessary medical aid not furnished by employer/insurer? $\mathrm{n} / \mathrm{a}
2. Employee's average weekly wages: \ 1,500.00
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: By agreement

1. Amount of compensation payable:

$170.4 / 7 weeks of permanent partial disability from Employer: \ 66,359.11

Less credit for overpayment of $695 / 7 weeks TTD

for period from MMI to the date of hearing - (\ 51,778.19)

0 weeks of disfigurement from Employer: $\ 0.00

TOTAL FROM EMPLOYER: $\underline{\$ 14,580.92}$

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential (\$353.68) payable by SIF for 170 4/7 weeks beginning

June 18, 2009 to and, thereafter, $\ 742.72 weekly for Claimant's lifetime:

As of date of trial, differential due is: $\ 24,656.55

Remaining differential and future permanent total benefits due: Indeterminate

TOTAL FROM SECOND INJURY FUND: Indeterminate

1. Future requirements awarded: Medical treatment from Employer as described in the Award.

Said payments to begin immediately and to be payable and 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: Paul Horgan, 34 N .

Brentwood Blvd, Suite 7, Clayton, Mo, 63105

Employee: Michael Starks

Injury No.: 08-037128

Dependents: N/A

Employer: Conway Central Express Inc.

Additional Party: Second Injury Fund

Insurer: Indemnity Insurance Co. of North America C/O Constitution State Services

Hearing Date: October 19, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KOB:dwp

The matter of Michael Starks ("Claimant") proceeded to hearing to determine the nature and extent of Claimant's disability. Attorney Paul Horgan represented Claimant. Attorney Reid Highlander represented Conway Central Express ("Employer") and Indemnity Insurance Company of North America c/o Constitution States Services ("Insurer"). Assistant Attorney General Kristen Frazier represented the Second Injury Fund.

The parties stipulated that on or about May 2, 2008, Claimant had an accident that arose out of and in the course of employment with an Employer subject to the Missouri Workers' Compensation Act. The parties further stipulated that venue was proper in the City of St. Louis, Employer received proper notice, and Claimant filed his claim within the time required by law. At the time of the accident, Claimant earned an average weekly wage in excess of $\ 1,500.00, which corresponds to a rate of compensation of $\ 742.72 for temporary total disability ("TTD") and permanent total disability ("PTD") benefits. The rate for permanent partial disability ("PPD") benefits is $\ 389.04. The parties stipulated as of the date of the hearing, Employer paid weekly benefits to Claimant for 106 4/7ths weeks at the rate for TTD, or \80,198.16, and \ 1,046.42, for a few days of temporary partial disability benefits at the end of June and July, 2008. ${ }^{1} Employer paid \ 211,445.75 in medical expenses thus far, and stipulated that if a finding is made connecting the accident to the need for a prosthetic leg, Employer will provide all future medical care related to the reasonable and necessary treatment, and management of the device.

Issues to be determined by way of hearing are: 1) Are the events of May 2, 2008 the prevailing factor in Claimant's current medical condition; 2) What is the nature and extent of Claimant's permanent disability; 3) What is the liability of the Second Injury Fund; 4) Is Claimant entitled to disfigurement, and if so, in what amount?

[^0]

[^0]: ${ }^{1}$ These are the figures stipulated to by the parties. While the monetary and week totals do not seem to add up to the 128 3/7 weeks between the date of injury and hearing, I am bound by the stipulated facts. Stipulations are controlling and conclusive, and the courts are bound to enforce them. Spacewalker, Inc. v. American Family, 954 S.W.2d 420, 424 (Mo.App. E.D.1997).

All testimony and evidence has been considered, but only the evidence necessary to support the award will be reviewed and summarized. To the extent any documents contain marks, such were made prior to being received into evidence.

Claimant is a 59 year old married man who was employed with Employer from 1995 through April 2010 as a truck driver. His last assignment was to deliver a set of trailers to Indiana, unload, and reload for the return trip. In May 2008, he generally worked from 6:00 or 7:00 in the evening until 6:00 or 7:00 in the morning five days a week. During a single shift he was able to make a round trip.

Despite a strong work history, Claimant had several preexisting injuries that constitute a hindrance or obstacle to employment. Claimant was born with spina bifida and underwent surgery shortly after birth to address the defect. As a result of his congenital condition, Claimant has had problems, including back pain, periodic bladder control problems, pain, sensation disturbance, leg length discrepancy, altered gait, and balance problems. In 1998, another back surgery was recommended, but he had a heart attack and never underwent the surgery. Claimant has missed work over the years due to his congenital back condition.

In the early 1960's, a car door slammed on Claimant's left foot, and the toes on his left foot were amputated. He played sports and engaged in other high school activities, although he did limp as a result of his toe amputation. Over the years, Claimant modified his activities to account for the loss of his toes. Later in his career, Claimant had a metal plate inserted in his shoe to substitute for the missing toes so he was able to drive a truck.

In the late 1990's, Claimant had a heart attack and underwent a triple bypass surgery to address his coronary artery disease. Because of his coronary artery disease, Claimant had decreased endurance and trouble functioning in temperature extremes. Claimant returned to work after his heart attack. He was on blood pressure medication and had difficulties with unusually cold days or in hot temperatures.

In 2005, Claimant injured his right bicep when he was closing the roll down door, which he settled for 20 % permanent partial disability. As a result, Claimant is weaker and less flexible, has had to modify the way he lifts, requires more trips, and has had to ask for assistance.

In 2006, Claimant was diagnosed with avascular necrosis of the left medial femoral condyle, and underwent total knee replacement, which was subsequently revised. As a result, he was slower, he could not lift as much, and he had trouble walking.

On May 2, 2008, Claimant drove from St. Louis to Indianapolis. While exiting a forklift in Indiana, he caught his foot stepping out of the fork lift, fell, heard a pop, and hit the ground on his left shoulder. Immediately his left ankle hurt and began to swell. Claimant reported the incident to the sector desk and continued to work, hooking a trailer to his truck and beginning the return trip to St. Louis. After a stop in Salem, Illinois, where he switched the back trailer, Claimant returned his truck to Employer's location. At that time, Claimant's foot was swollen and painful, and his boot was tight. His shoulder was fine. Claimant reported the accident to Doug Demage, who indicated he would fill out the necessary paperwork. Claimant went home, showered, and went to bed. At that time he noticed his leg was swollen and red.

The next morning, Claimant dressed, left for work, and stopped at Target to pick up cold medicine. Crossing the parking lot, Claimant experienced a rolling sensation of his left lower extremity, and despite adjusting his boot, his foot continued to feel unsteady and painful. Therefore, he returned to his car without making his purchase. When he looked down, he realized he was standing in a pool of blood, and had a complex fracture of his left ankle.

Claimant drove himself to the DePaul Hospital emergency room, and ultimately underwent surgery by Dr. Shore, who had previously performed Claimant's left knee replacement. Employer then authorized Dr. Krause to provide treatment. Dr. Krause removed the hardware and performed several surgeries to address the infection which occurred from the complex fracture. Claimant's leg never properly healed, and after significant treatment attempts, his left leg was amputated below the knee to prevent the spread of a potentially fatal infection.

Claimant wa