Dean Vermillion v. The Layman Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-070639

Employee: Dean Vermillion

Employer: The Layman Company (Settled)

Insurer: American Interstate Insurance Company (Settled)

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 June 22, 2011. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued June 22, 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

Curtis E. Chick, Jr., Member

Attest:

Employee: Dean Vermillion

Injury No. 07-070639

Dependents: N/A

Employer: The Layman Company

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: American Interstate Insurance Company

Hearing Date: $\quad 3 / 15 / 11$

Checked by: MEH

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: $8 / 2 / 07$
5. State location where accident occurred or occupational disease was contracted: SHANNON COUNTY, MO
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 FELL.
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: BODY AS A WHOLE
14. Nature and extent of any permanent disability: 17.5 %
15. Compensation paid to-date for temporary disability: $\ 14,111.68
16. Value necessary medical aid paid to date by employer/insurer? $\ 48,291.16

Employee: Dean Vermillion

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,150.31
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: N/A

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

1. Second Injury Fund liability: Yes X No Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential (\$353.68) payable by SIF for 70weeks, beginning 2/14/08, and, $\ 742.72 thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded:

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:

JOHN WISE

Employee: Dean Vermillion

Injury No. 07-070639

Dependents: N/A

Employer: The Layman Company

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: American Interstate Insurance Company

Hearing Date: $\quad 3 / 15 / 11$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on March 15, 2011, for a final hearing. The claimant appeared in person represented by John Wise. The employer and insurer did not appear as the claim against the employer and insurer was previously settled. The Second Injury Fund appeared represented by Cara Harris and Eric Cummings.

The parties stipulated to the following facts: On or about August 2, 2007, The Layman Company was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by American Interstate Insurance Company. On the alleged injury date of August 2, 2007, Dean Vermillion was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about, August 2, 2007, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in Shannon County, Missouri. The parties agreed that the hearing would be held in Springfield, Missouri, which it was. The claimant notified the employer of his injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the accident, the claimant's average weekly wage was $\ 1,150.31, sufficient to allow a compensation rate of $\ 742.72 for temporary and permanent total disability compensation, and a compensation rate of $\ 389.04 for permanent partial disability compensation. Temporary disability benefits

Issued by DIVISION OF WORKERS' COMPENSATION Dean Vermillion

Injury No. 07-070639

have been paid by the employer and insurer to the claimant in the amount of 14,111.68. The

employer and insurer have paid medical benefits in the amount of 48,291.16. The attorney fee

being sought is 25%.

ISSUES:

1. The nature and extent of any permanent disabilities.

1. The liability of the Second Injury Fund for permanent total disability or enhanced

permanent partial disability.

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The claimant is 62 years old. He went to school until the 7th grade and does not have a

high school diploma. He has no other formal vocational training. He lives in Birch Tree,

Missouri.

The Layman Company operates a sawmill. The claimant operated saws as a sawyer.

This work was a heavy. He had worked as a sawyer for over 30 years prior to August 2, 2007.

Claimant testified that he was involved in an accident during his employment at The

Layman Company on August 2, 2007. At that time, he slipped while climbing down the steps of

a saw cab and fell approximately four feet to a concrete floor. He landed on his lower back and

shoulders and experienced an immediate onset of pain in his lower back and both shoulders.

Claimant received conservative treatment for his lower back complaints (including an MRI of the

lower back) but ultimately underwent surgery for his right shoulder injury on October 8, 2007.

That surgery was performed by Dr. David Rogers, at OSS Surgery Center. Claimant has never

returned to work since the surgery.

Both Dr. Rogers and Dr. Lennard released Mr. Vermillion from treatment in February

2008: Dr. Rogers with respect to the right shoulder and Dr. Lennard with respect to the lower

back. Dr. Rogers’ office note of February 13, 2008 indicates that Dr. Rogers intended to “release

WC-52-B1 (6-81)

Page 4

him to go back to work, and I think he is just going to have to be careful with how he uses the arm for awhile. I told him that it has been just a little over four months since his surgery, that many patients continue to see significant improvement in their arm for quite some time after the initial three or four month period, and hopefully he will continue to improve."

Dr. Lennard released claimant from treatment regarding his low back injury on February 4, 2008 and assessed disability ratings on September 9, 2008. Dr. Lennard assessed permanent partial disability of 15 % to the body as a whole with respect to the lower back, apportioning 5\% to the body as a whole to the work injury of August 2, 2007 and the remaining 10\% to his preexisting non-work related lumbar degenerative changes. Dr. Lennard also assessed disability of 20 % at the level of the right shoulder, apportioning that equally between the work related injury resulting in a rotator cuff tear and the remainder to his pre-existing degenerative changes. Dr. Lennard also assessed disability of 10 % at the level of the left shoulder, apportioning that equally between the work-related injury and the non-work related pre-existing degenerative changes. Dr. Lennard assessed permanent restrictions as follows: "permanent lifting restrictions of 40 lbs with occasional bending (low back) and should avoid prolonged and repetitious overhead use of the right upper extremity. He will have no limitations for his left shoulder."

Claimant described substantial problems with his lower back prior to August 2, 2007. He had treated for those complaints with his personal physician, Dr. Opinaldo, since February 2003. Dr. Opinaldo's treatment records reflected long term treatment for chronic low back pain and degenerative joint disease. Her record entries reflect prescriptions of pain medication, increasing in dosages, from 2003. The claimant described this back pain as a constant sharp pain in his lower back on the right side. He testified that he did not miss time from work because of his low back pain prior to August 2, 2007, because he took hydrocodone two times per day because of his back pain. He would take it once in the morning before work and again in the middle of the day.

He said that if he did not take the hydrocodone, he would have been unable to perform his job as a sawyer. His employer was aware he was taking the medication and allowed him to do this while working.

Claimant described that he presently has substantial ongoing complaints involving his lower back and right and left shoulders. He experiences sharp pains in both shoulders. The pain starts in his bicep and travels up to his shoulder and across his neck. This occurs two to three times a day and lasts for approximately 30 minutes at a time. He also has difficulty raising his arms above his head. He has a grinding sensation in each shoulder and also has problems reaching behind his back. He cannot lift over 20 pounds because of the problems with his shoulders, as well as his back.

With respect to his lower back, he experiences a constant pain, and sharp pains two to three times per day, which will sometimes last all day. The pain is located below his belt and to both sides of his back. Claimant can sit for 15 to 20 minutes, stand for 20 minutes, and walk for approximately 15 minutes before his back pain forces him to stop those activities. He is unable to do his yard work and must hire someone to do it for him and can perform little household functions. His girlfriend has to do his laundry. He also has had to give up hobbies of riding horses and hunting because of problems with his low back. Although claimant had to take two hydrocodone a day prior to August 2, 2007, he now takes four per day because of the pain in his low back and right and left shoulders.

Claimant has not worked since October 9, 2007 and felt he was unable to perform any job eight hours per day, five days per week, because of the pain and problems in his lower back and right and left shoulders.

On Apri