Ray Taylor v. Labor Pros

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-132542

Employee: Ray Taylor

Employer: Labor Pros

Insurer: Continental Western Insurance Company

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 November 10, 2011. The award and decision of Administrative Law Judge Emily S. Fowler, issued November 10, 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: Ray Taylor

Injury No: 06-132542

Dependents: N/A

Employer: Labor Pros

Additional Party: N/A

Insurer: Continental Western Insurance Company

Hearing Date: September 21, 2011

Checked by: ESF/pd

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 or about November 3, 2006
5. State location where accident occurred or occupational disease was contracted: Independence, Jackson 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: Employee was struck in the left eye by a piece of wood that broke off a wooden block he was striking with a sledge hammer.
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: Left eye
14. Nature and extent of any permanent disability: Thirty percent (30\%) of left eye
15. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? N/A
2. Value necessary medical aid not furnished by employer/insurer? N/A
3. Employee's average weekly wages: $\ 320.00
4. Weekly compensation rate: $\ 213.33
5. Method wages computation: Stipulation.

Medical Expenses

None claimed for past

Temporary Disability

None claimed for past

Permanent Partial Disability

Permanent Partial Disability 30\% of left eye @ 140-week level........................................\8,959.86

Total Benefits Due: \ 8,959.86

Medical Care Needed to Cure \& Relieve Effects of Injury...........................................Indeterminate

Total Ongoing Benefits .................................................................................................Indeterminate

Total Award...............................................................................................................Indeterminate

Said payments are due and owing as of date of this award 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 twenty-five percent (25\%) lien totaling \$2,239.96 in favor of David Bony, Attorney, for necessary legal services plus expenses.

Employee: Ray Taylor

Injury No: 06-132542

Dependents: N/A

Employer: Labor Pros

Additional Party: N/A

Insurer: Continental Western Insurance Company

Hearing Date: September 21, 2011

Briefs Filed: October 12, 2011

On September 21, 2011, the employee and employer appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Mr. Ray Taylor, appeared in person and with counsel, David Bony. The employer appeared through Steven J. Quinn. The Second Injury Fund was not a party to the case. The primary issue the parties requested the Division to determine was whether Mr. Taylor sustained any disability, whether there was an ongoing need for medical treatment related to the injury, whether the employee should have to reimburse the employer for a medical cancellation fee, and whether the employee was entitled to a 15 % enhancement of his award under 287.120.4. For the reasons noted below, I find that Mr. Taylor sustained a compensable accident on or about November 3, 2006, and that his disability is thirty percent (30\%) of the left eye.

The parties stipulated that:

1. On or about November 3, 2006 ("the injury date"), Labor Pros was an employer working subject to Missouri's Workers' Compensation law with its liability fully insured by Western Continental Insurance Co.;
2. Mr. Taylor was its employee working subject to the law in Independence, Jackson County, Missouri; and
3. Mr. Taylor notified Labor Pros of his alleged injury and filed his claim within the time allowed by law.

The parties requested the Division to determine:

1. What is the nature and extent of Mr. Taylor's disability arising from the November 3, 2006 work accident?
2. Is Mr. Taylor entitled to future medical treatment?
3. Should Mr. Taylor be required to reimburse the respondent for a cancellation fee of $\ 550 for a medical examination?
4. Is Mr. Taylor entitled to a 15 % enhancement of any award under 287.120.4?

Mr. Taylor testified on his own behalf and presented the following exhibits, all of which were admitted into evidence:

Exhibit A - Claim for Compensation

Exhibit B - Letter from Division of Workers' Compensation - June 13, 2007

Exhibit C - Letter from Division of Workers' Compensation - July 20, 2007

Exhibit D - Dr. Becker report, redacted for percentage of disability (admitted over objection of respondent that evidence was tampered, i.e. redaction)

Exhibit E - Report of Injury

Exhibit F - Certified Medical record of Truman Medical Center - Hospital Hill

Although the employer did not call any witnesses, it did present the following exhibits, all of which were admitted into evidence:

Exhibit 1 - Rating Report, Dr. Rolfe Becker, with Physician's Report on Eye Injuries, January 31, 2011

Exhibit 2 - Certified Medical record of Truman Medical Center - Hospital Hill

Exhibit 3 - 60-day Submission of Dr. Becker's Medical Report from David Bony with cover letter of June 6, 2011

Exhibit 4 - 60-day Submission of Dr. Becker's Medical Report from Steven J. Quinn with cover letter dated April 25, 2011

Based on the above exhibits and the testimony of Mr. Taylor, I make the following findings.

Mr. Taylor is a 48-year old male, born on February 21, 1963.

On or about November 3, 2006, Mr. Taylor was working in Independence, Jackson County, Missouri for Labor Pros. In the course and scope of his employment, Mr. Taylor was

using a sledge hammer on wood, and a piece of wood broke off and struck him in the left eye. He did not sustain injury to any part of his body other than the left eye in this work accident.

The injury was timely reported to Labor Pros. The claimant was having problems with his left eye, and on November 3, 2006, he presented to the emergency room of Truman Medical Center with complaints of left eye pain and watering. He was transferred to the opthomology department, where an eye examination was performed. The exam notes from that visit describe subjective complaints of photophobia, swelling, pain and tearing, with some vision blurriness. Upon completion of the eye exam, the Truman doctor prescribed Mr. Taylor medication.

The next medical visit recorded in the Truman records occurred on July 9, 2007. At that time, Mr. Taylor presented with complaints of pain/ache, redness, tearing, and flashes but no floaters in the left eye. He was diagnosed at that time with vitreous prolapse and pigment present in the vitreous. He was recommended for follow up in one year and advised to use eye protection when working.

Nearly four years after the original injury, Mr. Taylor was seen for the first of two examinations by Dr. Rolfe Becker, the only medical opinion in the case regarding Mr. Taylor's degree of disability. Doctor Becker examined Mr. Taylor on August 31, 2010 and November 22, 2010. He completed the Physician's Report on Eye Injuries as outlined in 8 CSR 50-5.020, the regulation promulgated by Division of Workers' Compensation to govern the medical evaluation of eye injuries.

Dr. Becker opined in his report of January 31, 2011 that Mr. Taylor had a 30\% disability based upon a loss of visual efficiency. He noted that disability is based on 1) central visual acuity, 2) field of vision, and 3) muscle function. The doctor noted the claimant's left eye had 20/40 uncorrected vision but corrected to 20/20 with minimal myopic correction, within a normal physiologic variation not due to trauma. He noted the field of vision and muscle function were normal. The doctor did find abnormal functioning of the left pupil and a painful photophobic eye, the basis of the 30 % loss of visual efficiency.

Mr. Taylor testified that pain comes and goes in his left eye. He stated that he has trouble reading and the condition is not improving. He testified that his vision went from 20/20 to 20/40 in the left eye. The eye exams from Truman Medical Center note initial eye examinations of 20/20 in the right and 20/50 in the left on November 3, 2006. The July 2007 exam showed 20/25 in right eye and 20/30 in left. Doctor Becker's uncorrected exam showed 20/30 on right eye and 20/40 on left. I do note that Dr. Becker's report indicates correction to 20/20 vision "with correction only for natural presbyopia and other conditions clearly not the result of injury."

Mr. Taylor testified that he does not wear contacts or eyeglasses. He testified that he does not wear sunglasses on a regular basis, and he was not wearing sunglasses or otherwise demonstrating or testifying to any photophobia during the hearing. Mr. Taylor testified he is not using eye drops.

I will begin with questions three and four, regarding the cancellation fee and the alleged failure to provide safety glasses, as these issues require little explication. First, I find that Mr. Taylor is not required to reimburse the respondent for the medical exam cancellation fee. No evidence was presented regarding the cost of that cancellation fee, and, as such, the inquiry need not go further.

I find that the claimant is not entitled to an increase of 15 % due to the employer's alleged failure to provide safety glasses. Mr. Taylor did not plead or assert any statutory violation in the initial claim for compensation and did not amend the pleading to ever make this assertion, which was introduced for the first time on the date of final hearing. Over the respondent's objection, I did allow Mr. Taylor's attorney to present testimony on this new issue. The only evidence adduced was Mr. Taylor's own testimony that the employer did not provide him with safety glasses on the date of injury.

Missouri workers' compensation law provides that "[w]here the injury is caused by the failure of the employer to comply with any statute in this state or any lawful order of the division or the commission, the compensation...provided for under this chapter shall be increased by fifteen percent." RSMO 287.120