David Elrod v. Curators of the University of Missouri

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 07-065997

Employee: David Elrod

Employer: Curators of the University of Missouri

Insurer: Self-Insured c/o Corporate Claims Management, Inc.

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

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs and have considered the whole record. Pursuant to § 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge (ALJ) dated March 16, 2012.

The ALJ found that as a result of the July 10, 2007, work injury, employee sustained a permanent partial disability of 25 % of the body as a whole referable to the cervical spine, and 5 % of the right shoulder. We affirm the ALJ's award of permanent partial disability benefits. However, as argued by employer, we note that the ALJ failed to account for a stipulation between the parties that employer be entitled to a credit of $\ 2,500.00 against any permanent partial disability benefits awarded.

On page 10 of the December 14, 2011, hearing transcript, the ALJ recited the parties' stipulation as follows:

The employee was provided an advance of $\ 2,500.00 against any permanent partial disability he might get in an award. And the parties agree that if an award is issued in favor of the claimant that the employer/insurer should receive a credit for that $\ 2,500.00.

In addition, employee's attorney agreed that he was not seeking an attorney's fee on the aforementioned $\ 2,500.00 credit.

Based upon the foregoing, we find that employer is granted a $\ 2,500.00 credit against the permanent partial disability benefits awarded for the July 10, 2007, work-related injury. All other aspects of the award are affirmed.

The award and decision of Administrative Law Judge Vicky Ruth, dated March 16, 2012, as modified, is attached hereto, and its findings and conclusions are incorporated to the extent they are not inconsistent with our findings and conclusions herein.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2006 unless otherwise indicated.

The Commission further approves and affirms the ALJ's allowance of attorney's fee as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of September 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: David Elrod

Injury No. 07-065997

Dependents: N/A

Employer: Curators of the University of Missouri

Additional Party: Second Injury Fund

Insurer: Self-insured c/o Corporate Claims Management, Inc.

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: December 14, 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: July 10, 2007.
5. State location where accident occurred or occupational disease was contracted: Phelps Country, 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 sustained an injury to his cervical spine while attempting to lift a hanging double door.
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: Right shoulder and body as a whole referable to the cervical spine.
14. Nature and extent of any permanent disability: 5 % of the right shoulder and 25 % of the body as a whole referable to the cervical spine.
15. Compensation paid to-date for temporary disability: $\ 7,080.79 for TTD and $\ 1,440.42 for TPD.
16. Value necessary medical aid paid to date by employer/insurer? $\ 66,277.03.
17. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wage: $\ 688.40.
2. Weekly compensation rate: $\$ 458.94 / \ 389.04.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer:

PPD of 111.6 weeks $\times \$ 389.04=\ 43,416.86.

1. Second Injury Fund liability:

23.7 weeks $\times \$ 389.04=\ 9,220.25.

1. Future medical awarded: See Award.

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 (excluding payment of future medical treatment) in favor of the following attorney for necessary legal services rendered to the claimant: Gary Matheny.

Employee: David Elrod

Injury No: 07-065997

Dependents: N/A

Employer: Curators of the University of Missouri.

Additional Party: Second Injury Fund

Insurer: Self-insured c/o Corporate Claims Management, Inc.

Before the DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On December 14, 2011, David Elrod, the Curators of the University of Missouri/Corporate Claims Management, Inc., and the Second Injury Fund appeared for a final award hearing. This case was tried at the same time as Injury No. 08-108953; however, a separate award will be issued in that case. David Elrod, the claimant, was represented by attorney Gary Matheny. The Curators of the University of Missouri/Corporate Claims Management, Inc. (the employer/insurer) were represented by attorney Mark Kornblum. Counsel for the Second Injury Fund was Cara Harris. Claimant testified at the trial. Dr. Shawn Berkin, Dr. James Coyle, Dr. Mitchell Rotman, Dr. Peter Mirkin, and Tim Lalk testified by depositions. Claimant submitted a brief/proposed award on January 9, 2012. The employer/insurer submitted a brief/proposed award on January 10, 2012, and the record closed at that time. The Second Injury Fund elected not to submit a brief.

The parties stipulated to the following:

1. On or about July 10, 2007, David Elrod (the claimant) was an employee of the Curators of the University of Missouri (the employer) when he sustained an injury by accident to his body as a whole/neck and right shoulder. The accident arose out of and in the course of his employment.
2. Claimant's average weekly wage was $\ 688.40, yielding weekly compensation rates of $\ 458.94 (TTD) and $\ 389.04 (PPD).
3. The employer/insurer paid temporary total disability benefits to claimant in the amount of $\ 7,080.79, with those payments representing 15 and $3 / 7$ weeks of benefits for the period of December 14, 2007 through March 30, 2008.
4. The employer/insurer paid temporary partial disability benefits to claimant in the amount of $\ 1,440.42, with those payments representing 5 weeks of benefits for the period of March 31, 2008 through May 6, 2008.
5. The employer/insurer provided medical aid in the amount of $\ 66,277.03.

1. On or about December 9, 2008, claimant was an employee of the employer when he sustained an injury by accident to his body as a whole/low back. The accident arose out of and in the course of employment.
2. Claimant's average weekly wage was $\ 749.31, yielding weekly compensation rates of $\ 499.53 (TTD) and $\ 404.66 (PPD).
3. The employer/insurer paid temporary total disability benefits to claimant in the amount of $\ 71.36, with that payment representing 1 day of benefits (February 26, 2009).
4. The employer/insurer paid temporary partial disability benefits to claimant in the amount of $\ 152.34, with that payment representing one week of benefits for the period of February 1, 2009 through February 7, 2009.
5. The employer/insurer provided medical aid in the amount of $\ 11,872.16.

1. Employer and claimant were operating subject to the provisions of Missouri Workers' Compensation Law.
2. The employer's liability for workers' compensation was self-insured in care of Corporate Claims Management, Inc.
3. The Missouri Division of Workers' Compensation has jurisdiction.
4. The accidents occurred in Phelps County and venue in Phelps County is proper.
5. Claims for Compensation within the time prescribed by law.

At the hearing, the parties agreed that the issues to be resolved in this proceeding are as follows:

1. Nature and extent of permanent partial disability benefits.
2. Unpaid medical bills - VA lien in the amount of $\ 309.35.
3. Future medical benefits.
4. Liability of the Second Injury Fund.

On behalf of the claimant, the following exhibits were entered into evidence:

Exhibit A Medical records from Harry S. Truman Veterans' Hospital.

Exhibit B Medical records from St. John's Clinic-Rolla.

Exhibit C Medical records from Dr. James Coyle.

Exhibit D Medical records from Pain Management Services.

Exhibit E Medical records from Phelps County Regional Medical Center.

Exhibit F Medical records from Dr. Thomas Forget.

Exhibit G Medical records from St. John's Mercy Medical Center.

Exhibit H Medical records from Professional Imaging.

Exhibit I Medical records from ProRehab.

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

Exhibit 1 Records from the Division of Workers' Compensation.

Exhibit 2 Records regarding right shoulder claim.

Exhibit 3 Deposition of Dr. James Coyle.

Exhibit 4 Deposition of Dr. Mitchell Rotman.

Exhibit 5 Deposition of Dr. Peter Mirkin.

The Second Injury Fund did not offer any exhibits.

Note: All marks, handwritten notations, highlighting, and tabs on the exhibits were present at the time the documents were admitted into evidence. Some of the depositions were admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled.

Based on the above exhibits and the testimony presented at the hearing, I make the following findings in addition to the facts stipulated by the parties:

1. David Elrod (claimant) was born on September 27, 1953; at the time of the hearing he was 58 years old. He lives in Vichy, Missouri. He is unemployed, having last worked on or about March 26, 2009, for the employer ( $\mathrm{a} / \mathrm{k} / \mathrm{a}$ the Curators of the University of Missouri, a/k/a Missouri Science and Technology, a/k/a the University of MissouriRolla).
2. Claimant began employment with the employer on or about February 3, 2003, as a laborer in a temporary position. He later secured the permanent position of a carpenter on a construction crew, mainly performing remodeling type work. After about two years he moved to maintenance work, which was l