Larry Underwood v. High Road Industries, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-125665

Employee: Larry Underwood

Employer: High Road Industries, LLC

Insurer: Firstcomp Insurance

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 May 24, 2011. The award and decision of Administrative Law Judge Victorine Mahon, issued May 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 $10^{\text {th }}$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I write separately to disclose the fact that I did not participate in the October 26, 2011, oral argument in this matter. I have reviewed the evidence, read the briefs of the parties, and considered the whole record. I concur with the decision of the majority of the Commission.

Curtis E. Chick, Jr., Member

Employee: Larry Underwood

Injury No. 05-125665

Dependents: N/A

Employer: High Road Industries, LLC

Additional Party: N/A

Insurer: Firstcomp Insurance

Hearing Date: March 24, 2011

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: VRM/dlb

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: November 28, 2005.
5. State location where accident occurred or occupational disease was contracted: Taney 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was installing a radiator in a cement truck when he fell from a ladder.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Low back.
14. Nature and extent of any permanent disability: Permanent Total Disability.
15. Compensation paid to-date for temporary disability: $\ 32,337.50.

Employee: Larry Underwood

Injury No. 05-125665

Dependents: N/A

Employer: High Road Industries, LLC

Additional Party: N/A

Insurer: Firstcomp Insurance

Hearing Date: March 24, 2011

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The undersigned Administrative Law Judge conducted a hearing in this case on March 24, 2011. Larry Underwood (Claimant) appeared with his legal counsel, John Wise. High Road Industries, LLC, and its insurer, First Insurance (Employer/Insurer), appeared by Attorney Joseph Ebbert. The Second Injury Fund is not a party.

1. On November 28, 2005, Claimant sustained an accident in Taney County, Missouri that arose out of and in the course of his employment with High Road Industries, LLC. On that date, Claimant was a covered by, and High Road Industries, LLC, was subject to, the Missouri Workers' Compensation Law.
2. High Road Industries, LLC, was fully insured by First Insurance.
3. The claim was filed timely, jurisdiction is appropriate, Employer received notice, and the parties consent to venue in Springfield, Missouri.
4. Employer paid medical benefits in the amount of $\ 118,158.92 and temporary total disability in the amount of $\ 32,337.50.
5. Claimant's average weekly wage was $\ 832.22, yielding a PPD rate of $\ 365.08 and a PTD and TTD rate of $\ 554.81.
6. If there is any outstanding balance for mileage expenses and prescription drugs, as reflected in Exhibits K and L, Employer/Insurer will pay the balance.

The parties stipulated that the following were the sole issues for this hearing:

1. Is Claimant's current condition medically and causally related to the work accident?
2. What is the nature and extent of any permanent disability?
3. Is Claimant entitled to future medical treatment?

The following exhibits were offered by Claimant and admitted:

A. Report of Injury

B. Medical Records - Cox Medical Center

C. Medical Records - Orthopaedic Specialists of Springfield, P.C.

D. Medical Records - Work Evaluations and Ergonomic Assessments, Inc.

E. Medical Records - Skaggs Clinics

F. Medical Records - St. John's Clinic

G. Medical Records - Tri Lakes Diagnostic Technologies

H. Curriculum Vitae - Phillip Aaron Eldred

I. Vocational Evaluation - Phillip Eldred

J. Addendum Report - Phillip Eldred

K. Mileage Expenses

L. Prescription Drug Expenses

The following exhibits were offered by Employer and admitted:

1. Deposition - Dr. Paul Olive, with attachments
2. Deposition - Terry Cordray, with attachments
3. Deposition - Larry Underwood
4. Certified Records - Tri-Lakes Diagnostic Technologies

The only live witnesses at the hearing were Claimant and Phillip Eldred, a vocational consultant. All other testimony was offered through deposition.

Claimant was born on June 22, 1959. He is currently 51 years old. He has a limited educational background and work history. Claimant finished the $10^{\text {th }}$ grade. He never obtained a

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[^0]: ${ }^{1}$ All objections not previously ruled upon are now overruled. Any marks in the exhibits were made prior to their receipt into evidence and were not made by the Administrative Law Judge.

GED because prescreening tests determined that he would need significant remedial instruction in math, history and spelling. Claimant did not believe he could accomplish such remedial education. His only formal vocational training was as a diesel mechanic in the U.S. Army.

Both vocational experts in this case administered vocational testing (WRAT-3 test) to Claimant. His test scores generally were consistent with his educational background. Claimant has a below-average Intelligence Quotient of 81.

Following his military service, Claimant worked from 1983 through 1994 at Shadd Trucking, in Florida. He worked as a truck mechanic and as a local delivery driver. Eighty percent of his time was spent as a mechanic. The remainder of his time he worked as a delivery driver. His mechanic work was heavy, requiring him to lift tires weighing up to 120 pounds.

Claimant next worked at Pride Trucking, from 1994 to 1999, in Florida. Claimant again worked as a mechanic and local delivery driver, with similar heavy lifting duties.

Claimant then moved to Missouri. He began working for White River Ready Mix (High Road Industries) in 1999, located in Branson. This was work similar to that performed at Shadd Trucking and Pride Trucking. In 2001, he began working part-time for the Branson School District at the bus barn, while also continuing his full-time job at White River Ready Mix. He worked 10 to 12 hours per week as a mechanic and occasional bus driver for the bus barn. In March 2005, he left employment at Branson bus barn and worked exclusively at White River Ready Mix through December 2005.

On November 28, 2005, while standing on a ladder to install a radiator in a truck at White River Ready Mix, the step on which Claimant was standing broke. Claimant fell, landing on a concrete surface on his right side and right hip. He experienced immediate pain, burning and

throbbing in his low back and right hip. He had radicular complaints into his right foot. He subsequently received a substantial course of treatment through his employer and its insurer.

This was not the first time that Claimant had experienced low back complaints. In 2003, Claimant received treatment from Dr. Diane Cornelison, including an MRI of the lumbar spine and epidural steroid injections. Claimant maintained he had a complete recovery from those complaints. He described the period from March 2005 and leading up to November 28, 2005 as follows: he had no problems in his lower back, was taking no medications for lower back complaints, and had no problems performing his job at White River Ready Mix.

On cross-examination, Claimant was asked about a record entry of December 8, 2005 from St. John's Urgent Care. That entry contained the following history: "fell off a ladder in the shop twisted and caught himself before hitting the ground, fell off steps at work one month prior." Claimant explained that about one month prior to the December accident, Claimant was descending some steps at work when a step collapsed, causing his leg to go through the step. The incident resulted in no low back complaints at the time and no medical attention was needed.

Dr. Olive first examined Claimant on March 7, 2006, recording this history:

[Claimant] "relates that on 11/28/05 he fell off of a ladder. He was standing on approximately the third step. This occurred while he was at work for Superior Ready Mix. Since that time, he has been having right leg pain, numbness and tingling into his foot. This continues to get worse for him . . . . He relates that his pain begins in his right hip and buttock area and extends down the posterior aspect of his right leg into his ankle. He has numbness and tingling on the lateral side of his foot . . . . It is bothering him to the point where this is causing him problems with his sleep. He is also having difficulty with walking and feels like his right