Jimmy Dotson v. Dotson Trucking, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-125071

Employee: Jimmy Dotson

Employer: Dotson Trucking, LLC (Settled)

Insurer: Missouri Employers Mutual (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 § 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 August 4, 2011. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued August 4, 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 $\qquad 30th \qquad$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Jimmy Dotson

Injury No. 07-125071

Dependents: N/A

Employer: Dotson Trucking, LLC (settled)

Additional Party: Second Injury Fund

Insurer: Missouri Employers Mutual (settled)

Appearances: Gary Matheny, attorney for employee.

Gregg Johnson, Assistant Attorney General for the Second Injury Fund.

Hearing Date: March 30, 2011(commenced) Checked by: LCK/rf May 3, 2011 (completed)

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? On December 28, 2007.
5. State location where accident occurred or occupational disease contracted: Iron 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.

1. Was employer insured by above insurer? Yes.
2. Describe work employee was doing and how accident happened or occupational disease contracted: The employee slipped, fell and injured his lower back.
3. Did accident or occupational disease cause death? No.
4. Parts of body injured by accident or occupational disease: Low back and body as a whole.
5. Nature and extent of any permanent disability: 20% permanent partial disability of the body as a whole referable to the low back.
6. Compensation paid to date for temporary total disability: 6,829.20
7. Value necessary medical aid paid to date by employer-insurer: 2,392.04
8. Value necessary medical aid not furnished by employer-insurer: N/A
9. Employee's average weekly wage: 3,000.00
10. Weekly compensation rate: 663.95 for temporary total and permanent total disability. $389.04 for permanent partial disability.
11. Method wages computation: By agreement.
12. Amount of compensation payable: Permanent total disability against the Second Injury Fund.
13. Second Injury Fund liability: Permanent total disability against the Second Injury Fund.
14. Future requirements awarded: See Rulings of Law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Gary Matheny.

On March 30, 2011, the employee, Jimmy Dotson, appeared in person and with his attorney, Gary Matheny, for a hearing for a final award. The Second Injury Fund was represented at the hearing by Assistant Attorney General Gregg Johnson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issue that was in dispute. These undisputed facts and issue, together with the findings of fact and rulings of law, are set forth below as follows:

1. Dotson Trucking, LLC was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was fully insured by Missouri Employers Mutual.
2. On December 28, 2007 Jimmy Dotson was an employee of Dotson Trucking, LLC and was working under the Workers' Compensation Act.
3. On December 28, 2007 the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 3,000.00. The rate of compensation for temporary total and permanent total disability is $\ 663.95 per week. The rate of compensation for permanent partial disability is $\ 389.04 per week.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid $\ 2,392.04 in medical aid.
9. The employer-insurer paid $\ 6,829.20 in temporary total disability benefits. The time period paid was 10 2/7 weeks from January 7, 2008 through March 18, 2008.

1. Liability of the Second Injury Fund for permanent total or permanent partial disability.

A. Medical records of Missouri Highlands Health Care.

B. Medical records of Cardiology Diagnostic.

C. Medical records of Dr. Daud.

D. Medical records of Open MRI.

E. Medical records of Barnes Jewish West County Hospital.

F. Medical records of Mineral Area Regional Medical Center.

G. Medical records of Dr. Bernardi.

H. Medical records of Dr. Bernardi.

I. Report of Dr. Berkin.

J. Deposition of Timothy Lalk with his CV and report.

K. Stipulation for Compromise Settlement in Injury Number 07-125071.

L. Medical records of Dr. Kunkel/Central Missouri Pain Management. (The record was left open for the submission of this exhibit. The exhibit was received and admitted into evidence on May 3, 2011 and the record was closed.)

I. Deposition of Sherry Browning including her CV and Vocational Report. (The record was left open for admission of this exhibit which was received and admitted into evidence on April 8, 2011.)

II. Page 41 of the employee's deposition taken on March 20, 2009.

Judicial notice of the contents of the Division's files for the employee was taken.

WITNESS: Jimmy Dotson.

BRIEFS: No briefs were filed.

The employee lives in Bixby Missouri. He operated Dotson Trucking LLC for about 15 years, and stopped operating the business in December of 2007. He was the owner/operator of a dump truck. He maintained the truck which included changing tires, motor, transmission, rear end, greasing, and oil changes. With heavy maintenance, his son George Dodson helped him. Over time, he needed more and more help from his son working on his truck due to his medical conditions and injuries prior to December 28, 2007.

The employee testified that he had injured his right arm while operating a saw mill. He cut it open from his elbow to his wrist, and has a surgical scar. His right arm, which is his dominate arm, is sensitive to cold, it falls asleep, and is weak. After the right arm injury, he changed the way he did maintenance and used his left arm most of the time. He had no strength in his right hand, loss of feeling and had problems with fine finger manipulation.

Approximately 8-10 years ago, Dr. VanNess performed left knee surgery. After the surgery, his knee was weak, he had pain, and it locked up. He had knee stiffness if he used it and it hurt to stretch it out all the way. His knee affected his lifting, and he put more weight on his right side. He had problems with squatting due to his knee not straightening up. His knee affected his ability to do his job.

The employee testified that in 2006, he had left arm pain which went up to his head and neck. He had a heart attack and was air evacuated to Cape Girardeau. He had two stents placed. Prior to December of 2007, he was weak and was tired all of the time. He had trouble working in the heat. Especially in hot weather, his son started helping more with truck maintenance including putting brakes on, changing tires, greasing and changing oil. Physically, the employee was not doing as much in hot weather like he used to. Since he was self employed, he worked

his own schedule. After his heart problems, he changed his schedule. When he got tired he would stop working and if he was driving, he would pull over, rest and take naps.

Prior to December 28, 2007, the employee had chronic obstructive pulmonary disease, and had problems with his lungs and ability to breath. The employee had shortness of breath and was short of wind if he did anything. He was on inhalers and a BiPap breathing machine that was prescribed by his family doctor. He used Albuterol an inhaler four times a day. Lifting a tire or motor caused him shortness of breath. The shortness of breath slowed him down at work, and caused him to take breaks and rely on his son for maintenance work. Since he was selfemployed, he could take longer to do something and could slow down,

Prior to the December of 2007, accident, he worked 8-12 hours which depended on how he felt each day. He drove five days a week and sometimes on Saturday. On Sunday, he did maintenance on his truck. His body was going downhill including his breathing and his heart. He slept a couple of hours around noon about three to four times a week. He started working around 4-5 a.m. and stopped working usually around 4 p.m. He made sure he was home at lunch to sleep. In his deposition, the employee stated that prior to December of 2007 he never had to take a nap a lot in the daytime. At the hearing, the employee testified that he could not remember that he said that in his deposition.

The employee had low back surgery about 20-25 years ago. After that he continued to have low back pain, and his back was never right. His back and ankle were weak which affected how many truck loads he did.

On December 28, 2007, the employee had an accident at work. He was greasing his truck and changing the oil. He slipped, fell and hit the ground and injured his lower back. He had pain and discomfort to the left side of the low back which radiated into the left leg to his foot.

The employee saw Dr. Trone on December 28, 2007 for an emergency room follow-up. The employee had gone to the emergency room and had a negative EKG and cardiac enzymes. He was treated for bronchitis and prescribed a Z-Pak but was no better. The employee had chest pain/discomfort and was feeling chest congestion. On examination, his lungs had wheezing with decreased breath sounds. Dr. Trone diagnosed acute bronchitis, lumbago, and disc degeneration.

On January 4, 2008 a lumbar MRI showed a disc herniation on the left at L4-5 and L5-S1 and also disc desiccation at L4-5 and L5-S1.

The employee saw Dr. Bernardi on January 15, 2008. In the medical information intake sheet, it was noted that the employee had prior surgeries on his left foot, right arm, back and heart. The employee had heart disease, arthritis, and asthma. With regard to present or past cardiac/pulmonary symptoms, the employee had chest pain, shortness of breath, wheezing and cough. Dr. Bernardi noted that the employee had two prior lumbar spine procedures about twenty five years ago; and was getting along very well with his back until December 28, 2007. On that date, the employee was coming down from the cab of his truck, lost his balance and lande