Ozie Prier v. Doe Run Company

Enployee: Ozie C. Prier

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reached MMI was October 13, 2009. Employee and the Second Injury Fund further argue that employer/insurer's attorney stipulated to an MMI date of October 13, 2009, at the July 11, 2011, hearing. As evidence of the alleged MMI date stipulation, employee and the Second Injury Fund point to pages 11-12 of the transcript, on which the following statements appear:

ALJ Robbins: I have been advised by the employer/insurer that they think max medical improvement is October 13th, 2009, as that is contained in the medical of Dr. Emanuel. (Tr. 11, Lines 20-22).

Second Injury Fund Attorney, Gregg N. Johnson: [Employee's attorney] said earlier that the [MMI] date he believed (sic) July 6th, 2010. [Employer/insurer's attorney] said he thought the date was October 13th, 2009, (sic) he had been paid through December 9th of 2009, (sic) it sounds like a reasonable division of the decisions if the Court finds that December 9th, 2009.

ALJ Robbins: [Employer/insurer's attorney], do you have anything to add on that?

Employer/insurer attorney, Jay Lory: No, Your Honor. (Tr. 12, Lines 17-24).

Despite the foregoing, when issues were later recited by the ALJ on page 15 of the transcript, the ALJ noted that issue number two was temporary total disability and stated that, "this is an issue that if it is developing further other than the evidence today, that [employee's attorney], you will address that in your proposed award...." (Tr. 15, Lines 9-12).

After a thorough reading of the ALJ's recitation of the stipulations and issues to be decided at the July 11, 2011, hearing, we do not find that employer/insurer stipulated to an MMI date of October 13, 2009. The ALJ and the Second Injury Fund's attorney may have stated that employer/insurer's attorney thought the MMI date was October 13, 2009, and employer/insurer's attorney may, in fact, have stated off the record that he thought employee's MMI date was October 13, 2009, but there was no definitive stipulation by employer/insurer that employee reached MMI on that date. Further, the ALJ cleared up any ambiguity as to whether an MMI date was stipulated to by unmistakably listing temporary total disability as an issue to be decided. Lastly, we find that the ALJ thoroughly reviewed and weighed the evidence regarding employee's MMI date and properly came to the conclusion that employee reached MMI on December 20, 2007.

**Award**

We affirm the amended award of the ALJ, as supplemented herein.

The amended award and decision of Administrative Law Judge Gary L. Robbins, issued November 22, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the ALJ'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 $\qquad 27^{\text {th }} \qquad$ day of September 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

James Avery, Member

Attest:

Employee: Ozie C. Prier

Injury No. 05-058991

Dependents: N/A

Employer: Doe Run Company

Additional Party: Second Injury Fund

Insurer: American Home Assurance Company

Hearing Date: July 11, 2011

Checked by: GLR/rf

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? May 25, 2005.
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.
10. Was employer insured by above insurer? Yes.

Employee: Ozie C. Prier

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee was driving a scaler when he struck a large boulder causing him to be jerked around the cab of the scaler and injured. The boulder was hidden in a pool of water and was not seen prior to the impact.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Neck, right arm and right shoulder.

1. Nature and extent of any permanent disability: Permanent partial disability as to the employer-insurer. See. Award.

1. Compensation paid to date for temporary total disability: 70,390.24.

1. Value necessary medical aid paid to date by employer-insurer: 134,267.92.

1. Value necessary medical aid not furnished by employer-insurer: 0.

1. Employee's average weekly wage: 610.32.

1. Weekly compensation rate: 406.88 per week for temporary total and permanent total disability. 354.05 per week for permanent partial disability.

1. Method wages computation: By agreement.

1. Amount of compensation payable: See Award.

1. Second Injury Fund liability: Permanent total disability. See Award.

1. Future requirements awarded: At trial the parties advised the Court that the employer-insurer has agreed to provide future medical care.

The Compensation awarded to the employee 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 employee: Kenneth A. Seufert.

On July 11, 2011 the employee, Ozie C. Prier appeared in person and with his attorney, Kenneth A. Seufert for a hearing for a final award. The record was left open after trial and was closed on August 9, 2011. The employer-insurer was represented at the hearing by its attorney, Jay C. Lory. Assistant Attorney General Gregg N. Johnson represented the Second Injury Fund. The Court took judicial notice of all records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the statement of the findings of fact and rulings of law, are set forth below:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by American Home Assurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Doe Run Company and was working under the Workers' Compensation Act. The parties agree that the employer in this case is Doe Run Company a/k/a Doe Run Resources Corporation even though in some of the documentation it might have been referred as to another name, but they are all the same entities.
3. On or about May 25, 2005 the employee sustained an accident or occupational disease 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 parties agree that the average weekly wage is $\ 610.32, giving a rate for temporary and permanent total disability of $\ 406.88 and a rate for permanent partial disability of $\ 354.05.
7. The employee's injury was medically causally related to his accident or occupational disease.
8. The employer-insurer paid $\ 134,267.92 in medical aid.
9. The employer-insurer has paid temporary disability in the amount of $\ 70,390.24, which has been identified as a period of 173 weeks beginning on June 27, 2006 and ending on through December 9, 2009.
10. The employee made no specific claim for prior medical bills.
11. The parties agreed that the employer is responsible to provide future medical care for the employee that is reasonably necessary to cure and relieve the employee's injuries from the May 25, 2005 work accident. It is agreed this future medical care includes pain management as is presently being provided by Dr. Guarino.
12. The parties agreed that the employer-insurer will be responsible for the medical expenses incurred by the employee for pain management by Dr. Guarino, including treatment provided, ordered or directed by him including treatment at any other medical facility or by any other medical care provider as well as pharmacy expenses.
13. After the close of the evidence, the employee filed written Stipulation of the Parties concerning the employee's pre-existing medical condition to his right and left knee. By

mistake, the employee's attorney forgot to question the employee concerning the same. In lieu of re-opening the case the parties agreed that the employee would testify in conformance with his statements to Dr. Volarich. Specifically, the employee would testify as follows:

His knee difficulties began sometime in 2004 when he experienced pain and swelling in both of his knees, right greater than left, with prolonged walking on concrete. He treated himself with over-thecounter medications and knee wraps.

He was seen at Medical Arts Clinic by nurse practitioner, Pat Koppeis, on 4/12/05. X-rays of his knees were normal. An MRI of his right knee on 5/17/05 demonstrated degenerative changes and he was prescribed Mobic.

Leading up to and continuing beyond 5/25/05, he experienced intermittent soreness in his right knee when walking on concrete floors for longer than five hours and had t