Jeffrey Hampton v. Randy Hampton

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-017199

Employee: Jeffrey Hampton

Employer: Randy Hampton

Insurer: Travelers Commercial Casualty

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 13, 2011. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued April 13, 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 $2^{\text {nd }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Jeffrey Hampton

Injury No. 05-017199

Dependents: N/A

Employer: Randy Hampton

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

Insurer: Travelers Commercial Casualty

Hearing Date: $\quad 12 / 13 / 10 \& 1 / 12 / 11$

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: $2 / 10 / 05$
5. State location where accident occurred or occupational disease was contracted: GREENE 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: LIFTING A PATIO DOOR WHEN THE OTHER PERSON LIFTING IT DROPPED IT.
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: BACK AND BODY AS WHOLE
14. Nature and extent of any permanent disability: 10 %
15. Compensation paid to-date for temporary disability: $\ 14,277.25
16. Value necessary medical aid paid to date by employer/insurer? $\ 13,752.58

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 680
3. Weekly compensation rate: $\$ 453.33 / \ 354.05
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: NONE

56 3/7weeks of temporary total disability (or temporary partial disability) AT \$200.44 PER WEEK FOR AN UNDERPAYMENT

40 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 No X 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 (0) payable by SIF for 0weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded: NONE

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:

MARK MORELAND

Employee: Jeffrey Hampton

Injury No. 05-017199

Dependents: N/A

Employer: Randy Hampton

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

Insurer: Travelers Commercial Casualty

Hearing Date: $\quad 12 / 13 / 10 \& 1 / 12 / 11$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on December 13, 2011, for a final hearing. The record was left open for 30 days and closed on January 12, 2011. The claimant appeared in person represented by Mark Moreland. The employer and insurer appeared represented by Jeffrey Deane and Douglas O’Neill. Memorandums of law were filed by February 15, 2011.

The parties stipulated to the following facts: On or about February 10, 2005, Randy Hampton was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Travelers Commercial Casualty. On the alleged injury date of February 10, 2005, Jeffrey Hampton was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about February 10, 2005, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in Greene County, Missouri. 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 alleged accident, the claimant's average weekly wage was $\ 680, which is sufficient to allow a compensation rate of $\ 453.33 for temporary total disability compensation, and a compensation rate of $\ 354.05 for permanent partial disability compensation. Temporary disability benefits

have been paid to the claimant in the amount of $\ 14,277.25, representing $563 / 7 weeks in disability benefits, at the rate of \ 252.89. The employer and insurer have paid medical benefits in the amount of $\ 13,752.58. The attorney fee being sought is 25 %.

1. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
2. Any temporary total benefits owed to the claimant.
3. The nature and extent of permanent disabilities.

The claimant is 53 years old. He graduated from high school in 1975. He did not attend college or take any vocational training except auto body classes in high school. During the course of his life he has had on the job training in carpentry. He does not know how to use a computer and does not have one in his home. He is divorced with two children. He lives alone in a trailer outside of Fulton, Missouri.

The claimant has worked off and on during the past 20 years for his brother, Randy Hampton, the employer in this claim. Randy Hampton performs construction work consisting of remodeling or building new homes. Claimant has also worked as self employed contractor; for Sinclair Science doing maintenance work; he performed various construction jobs including building patios, pouring concrete; and for Grime Busters cleaning hoods and vents in restaurants.

Prior to February 10, 2005, the claimant would have occasional pain in his back, neck, and shoulders. He testified that he would get chiropractic manipulations and these problems would resolve. He said he went to Dr. Donald Shoup, an osteopath, and Dr. Roger Morrison, a chiropractor.

On February 10, 2005, claimant and his brother were lifting a large patio door. As they were completing the lift, his brother dropped his side of the door. The claimant was still holding his side of the door. The claimant testified that when the door hit the ground he felt his left hip give and snap back. He felt a pop in his low back and pain radiating from it. He could not continue working and his brother took him to Dr. McDonnell, a chiropractor in Springfield, Missouri. The claimant returned home to Fulton, Missouri and contacted Dr. Morrison, his chiropractor.

Claimant saw Dr. Morrison on February 18, 2005, at which time he was having low back pain with pain radiating into his left leg. He had six to seven treatments with Dr. Morrison. On February 21, 2005, he went to the University of Missouri Emergency Room where he was prescribed over the counter NSAIDs, Flexeril, and instructed to follow up with his doctor. On February 22, 2005, he went to Boone Hospital Center with back pain. He was prescribed Vicodin and Flexeril by Dr. Larry Scroggins who ordered an MRI on March 7, 2005, which showed a central disc herniation at L5-S1.

The workers' compensation insurance company referred him to Dr. Matt Thornburg at Columbia Orthopedic Group. He prescribed physical therapy for approximately three to three and one half weeks. Dr. Thornburg returned him to work with restrictions of limited bending, stooping, and alternate sit and stand. The claimant did not return to work with these restrictions. Dr. Thornburg ordered work hardening. The claimant stopped after two days because of back pain. On August 9, 2005, Dr. Thornburg notes that he had treated the claimant conservatively and "I had a lengthy discussion with Mr. Hampton. This is a fairly difficult situation. He has been fairly non-compliant with my recommendations. He is not interested in an epidural steroid injection. His story has seemed somewhat inconsistent throughout treatment. With all this, I

believe I've done everything I can for him. I would recommend that he be rated and released today." Dr. Thornburg released him from treatment.

Claimant on his own then went to Dr. David Robson, an orthopedic surgeon, in September 2005. Dr. Robson diagnosed internal disc derangement at L5-S1. He recommended a disc replacement. He thought this was a better option than a fusion because the claimant worked as a laborer. This surgery was not performed because claimant had an abscess of his tooth, then he next developed some intestinal disease, and in the end the claimant decided he did not want the surgery performed. Dr. Robson released the claimant on June 13, 2007. He imposed a 30 pound weight limit with no repetitive bending, stooping, twisting, or awkward positions. Dr. Robson imposed a 10\% permanent partial disability. Dr. Robson testified that he kept the claimant off work while the surgery was pending and until he released him from treatment. Dr. Robson testified that the claimant was able to work under the restrictions he imposed. Regarding the time he had him off work, Dr. Robson testified: "I would have kept him off work until surgical decisions were clear, you know, which would be March of '06. So when I saw him September of '05 to March of '06, when I was working him up, I probably would have him off work unless there was desk work. But once the decision was made not to have surgery, then I had to come up with some parameters that I think he could function in and that is when I did the restrictions." He said that things were not happening very quickly with the claimant and that "he would disappear for like three months and then come back on my door step, so to speak. So taking care of him was a little different than a person I say we need surgery and I'll just keep you off until I do it in a couple weeks."

Dr. Thomas Musich examined the claimant at his request in November 2007. Dr. Musich noted paresthesia to light touch and pin prick over the L5-S1 dermatome on the left side, a positive Faber test and a positive left pyriformis test. Dr. Musich did not believe the claimant

was at maximum medical improvement and also recommended surgery. He also recommended a nerve conduction test and a discography. Dr. Musich testified that he believed if surgery was not performed he would do pain management as an alternative. He did say tha