Jimmie Stanford v. Audrain County Road District

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-134487

Employee: Jimmie Stanford

Employer: Audrain County Road District

Insurer: Missouri Association of Counties

c/o Gallagher Bassett Services, Inc.

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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated October 19, 2011. The award and decision of Administrative Law Judge Vicky Ruth, issued October 19, 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 $15^{\text {th }}$ day of August 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Jimmie Stanford

Injury No. 06-134487

Dependents: N/A

Employer: Audrain County Road District

Additional Party: Second Injury Fund

Insurer: Missouri Association of Counties

c/o Gallagher Bassett Service, Inc.

Hearing Date: July 19, 2011

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Hearing Date: July 19, 2011

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: September 1, 2006.
5. State location where accident occurred or occupational disease was contracted: Audrain 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: The employee injured his right shoulder while operating a chainsaw.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Right shoulder.
14. Nature and extent of any permanent disability: 45 % of the right shoulder.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? None.
17. Value necessary medical aid not furnished by employer/insurer? See Award.

1. Employee's average weekly wages: $\ 458.08.
2. Weekly compensation rate: $\ 305.39.
3. Method of wages computation: By Award.

1. Amount of compensation payable from employer:

PPD (104.4 weeks x \$305.39): \$31,882.72

TTD (7 weeks x \$305.39): \ 2,137.73

Unpaid medical bills: \quad \ 44,330.36

TOTAL: $\mathbf{\$ 7 8 , 3 5 0 . 8 1}$

1. Second Injury Fund liability: N/A.
2. Future medical awarded: No.

Said payments to begin immediately and to be payable and 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: Jimmie Stanford

Injury No: 06-134487

Dependents: N/A

Employer: Audrain County Road District

Additional Party: Second Injury Fund

Insurer: Missouri Association of Counties, c/o Gallagher Bassett Service, Inc.

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On July 19, 2011, Jimmie Stanford, the Audrain County Road District, Missouri Association of Counties, and the Second Injury Fund appeared for a final award hearing. This case was tried at the same time as Injury No. 06-132821; however, a separate award will be issued in that case. Jimmie Stanford, the claimant, was represented by attorney Mark Moreland. Attorney Kelly Mills represented Audrain County Road District/Missouri Association of Counties, the employer/insurer. The Second Injury Fund elected not to participate in the hearing. The claimant testified in person at the hearing and by deposition. Dr. Thomas Musich and Dr. Michael Nogalski testified by deposition. The Administrative Law Judge set a deadline of August 16, 2011, for the filing of briefs or proposed awards. At the parties' request, the deadline was extended to August 18, 2011; claimant and the employer/insurer submitted briefs/proposed awards on that date and the record closed at that time.

The parties stipulated to the following:

1. On or about September 1, 2006, Jimmie Stanford, the claimant, was an employee of the Audrain County Road District, the employer (Injury No. 06-134487).
2. On or about December 6, 2006, claimant was an employee of the employer (Injury No. 06-132821).
3. The parties were operating subject to the provisions of Missouri Workers' Compensation Law.
4. The employer's liability for workers' compensation was fully insured by Missouri Association of Counties and administered by Gallagher Bassett Services, Inc.
5. The Missouri Division of Workers' Compensation has jurisdiction, and venue in Audrain County is proper.
6. A Claim for Compensation was timely filed in each case.
7. No temporary disability benefits have been paid to claimant.
8. In the September 2006 case (Inj. No. 06-134487), the employer/insurer did not provide any medical care.

1. In the December 2006 case (Inj. No. 06-132821), the employer/insurer provided medical care in the amount of $\ 600.00.
2. No party indicated that notice is an issue.

The parties agreed that the following issues were to be resolved in this proceeding:

1. Accident arising out of and in the course of employment.
2. Medical causation.
3. Nature and extent of permanent partial disability.
4. Compensation rate.
5. Non-payment of temporary total disability benefits.
6. Unpaid medical bills.
7. Future medical benefits.
8. Request for continuance/request to leave the record open.

On behalf of the claimant, the following exhibits were entered into evidence ${ }^{1}$ :

Exhibit A Deposition of Dr. Thomas Musich.

Exhibit B Medical records from Health Works/Audrain Medical Center.

Exhibit C Medical records from Medical Imagining/Audrain Medical Center.

Exhibit D Medical bills from Audrain Medical Center.

Exhibit E Medical records and bill from Mid Missouri Anesthesiologists.

Exhibit F Medical records from Columbia Orthopaedic Group.

Exhibit G Medical bills from Columbia Orthopaedic Group.

Exhibit H Medical records from Institute for Outpatient Surgery, LLC.

Exhibit I Medical bills from Institute for Outpatient Surgery, LLC

Exhibit J Medical records from Dr. H. Peter Ekern.

Exhibit K Medical bill from Audrain Medical Center. ${ }^{2}$

On behalf of the employer/insurer, the following exhibits were admitted into the record:

Exhibit 1 Wage statement.

Exhibit 2 Statement of claimant. ${ }^{3}$

Exhibit 3 Deposition of Jimmie Stanford.

Exhibit 4 Division of Workers' Compensation Records.

Exhibit 5 Medical records and letter from Orthopedic Associates, LLC.

Exhibit 6 Deposition of Dr. Michael Nogalski.

[^0]

[^0]: ${ }^{1} All depositions were received subject to the objections contained therein.

{ }^{2}$ Exhibit K was received over the objections of the employer/insurer.

${ }^{3}$ Exhibit 2 was admitted over the objections of claimant.

Note: All marks, handwritten notations, highlighting, or tabs on the exhibits were present at the time the documents were admitted into evidence.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings:

1. Claimant was born on March 18, 1939; at the time of the hearing he was 72 years old. He currently lives in Laddonia, Missouri. Claimant completed the $8^{\text {th }} grade but does not have a G.E.D. { }^{4}$
2. Throughout the years, claimant has worked as a truck driver, an electrician, and a heavy equipment operator.
3. Claimant began employment with the Audrain County Road District (the employer) in approximately 1988. He retired in November 2009. While working for the employer, claimant ran a motor grader. His typical day consisted of keeping the roads and ditches maintained and clearing the roads of ice, snow, and debris. Claimant typically worked from 7:00 a.m. until 3:30 p.m., five days per week. He testified that he made about $\ 1,985 per month.
4. On September 1, 2006, claimant was working to clear the roads of debris following a wind storm. Claimant testified that he was operating a chainsaw to remove a fallen tree when the chainsaw became stuck in a tree limb. He jerked on the chainsaw to try to dislodge it, causing pain in his right shoulder. Claimant is right handed.
5. Claimant testified that he did this in front of his supervisor, Glenn Higgenbotham, and a co-worker, Chad Isgrig. He testified that he told his supervisor that he was going to have to sit down because of his shoulder hurt. He noted that Mr. Isgrig may have seen him sitting down and may have heard him tell his supervisor that he hurt his shoulder. Claimant did finish his work day.
6. Claimant testified that a few days later he asked Mr. Higgenbotham if he had told the County Commissioners about his shoulder injury; he was told that Mr. Higgenbotham had not done so but would soon. Claimant testified that he later told one of the Commissioners about his upcoming surgery.
7. After the September 2006 injury, claimant testified that he went to his personal physician, Dr. Peter Ekern. On October 9, 2006, Dr. Ekern prescribed a Metrol dose pack for right shoulder pain. The doctor ordered x-rays of the right shoulder on October 27, 2010, and gave him a steroid injection in his shoulder. Claimant indicated that he felt that he

[^0]

[^0]: ${ }^{4} At trial, claimant indicated that he went to school until or through 10^{\text {th }} grade. In his deposition, he indicated that he quit school after the 8^{\text {th }}$ grade.

improved following the injection and so he did not seek further treatment until he had a fall from a road grader in December 2010.

1. On December 6, 2006, claimant was working at an equipment shed outside of Martinsburg. He was to obtain and operate a road grader. He put his lunch in the grader and went inside the shed. Claimant testified that there was some ice on the road and he decided that he would not take the grader out. He went back to the grader to retrieve his lunch, and while doing so, slipped and fell from the steps of the road grader. He landed on his left side. He drove from Martinsburg to Mexico, Missouri, where he immediately told one of the Commissioners about the accident.
2. After the December 2006 fall from the road grader, claimant again saw Dr. Ekern. The doctor's records indicate that claimant was sore on the left side over the $7^{\text {th }} and 8^{\text {th }}$ ribs. The x-rays taken at Audrain Medical Center showed that he had fractured the $7^{\text {th }} and 8^{\text {th }}$ ribs. Dr. Ekern prescribed Vicodin and recommended that claimant use ice.
3. In March 2007, claimant returned to Dr. Ekern, complaining of right shoulder problems. He was