James Demore v. Demore Enterprises, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-084991

Employee: James Hershel Demore

Employer: Demore Enterprises, Inc.

Insurer: America First 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 January 30, 2012. The award and decision of Administrative Law Judge L. Timothy Wilson, issued January 30, 2012, 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 $28^{\text {th }}$ 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:

Employee: James Hershel Demore

Injury No. 09-084991

Dependents: N/A

Employer: Demore Enterprises, Inc.

Insurer: America First Insurance Company

Hearing Date: November 9, 2011

Checked by: LTW

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: June 29, 2009
5. State location where accident occurred or occupational disease was contracted: Greene County, MO
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: While engaged in employment with the Employer, Employee was involved in a motor vehicle accident, which occurred while he was traveling from the Employer's office facility to the site of a reported vandalism to fencing owned by Employer and potential burglary of customers who leased property from Employer. As a consequence of this work incident Employee sustained multiple injuries to his body as a whole.
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: Head
14. Nature and extent of any permanent disability: N/A
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? $\ 7,426.77

1. Employee's average weekly wages: N/A
2. Weekly compensation rate: N/A
3. Method wages computation: N/A

1. Amount of compensation payable:

Unpaid medical expenses:

1. Second Injury Fund liability: N/A

TOTAL: $\quad \ 7,426.77

1. Future requirements awarded: N/A

Said payments to begin immediately 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 lien in the amount of 25 percent of all benefits awarded, except the cost of future medical treatment, in favor of the following attorney for necessary legal services rendered to the claimant: Patrick J. Platter, Esq. and the Law Firm of Neale \& Newman, LLP.

Employee: James Hershel Demore

Injury No. 09-084991

Dependents: N/A

Employer: Demore Enterprises, Inc.

Insurer: America First Insurance Company

Hearing Date: November 9, 2011

Checked by: LTW

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on November 9, 2011. ${ }^{1}$ The evidentiary record was left open for 30 days in order to afford the employer and insurer opportunity to present evidence rebutting the testimony of Carol Combs and the exhibits pertaining to her testimony. ${ }^{2}$ Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about December 19, 2011.

The employee, James Hershel Demore, appeared personally and through her attorney, Patrick J. Platter, Esq. The insurer, America First Insurance Company, appeared through its attorney, Jim Blickhan, Esq. The employer, Demore Enterprises, Inc., appeared through its attorney, Bruce Wendel, Esq.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about June 29, 2009, Demore Enterprises, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by America First Insurance Company.

(2) On the alleged injury date of June 29, 2009, James Hershel Demore was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about June 29, 2009, the employee, James Hershel Demore, sustained an accident.

(4) The above-referenced employment and accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

[^0]

[^0]: ${ }^{1}$ This claim was joined with claims filed by Doris Demore in Injury No. 09-084993 and Delores Demore in Injury No. 09-084992 for purposes of judicial economy. All three claims center upon the same accident because the three claimants were passengers in the same motor vehicle in the accident that occurred on June 29th, 2009.

${ }^{2}$ Although given opportunity to submit additional evidence, the employer and insurer elected to not present any additional evidence.

(5) The employee notified the employer of his injury as required by Section, 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) Temporary total disability compensation has not been provided to the employee.

(8) The employer and insurer have not provided medical treatment to the employee.

The issues to be resolved by hearing include:

(1) Whether the accident of June 29, 2009, arose out of and in the course of the employee's employment with the employer?

(2) Whether the alleged accident of June 29, 2009, caused the injuries and disabilities for which benefits are now being claimed?

(3) Whether the employer and insurer are obligated to pay for certain past medical care and expenses?

Four (4) witnesses testified at the hearing. These witnesses include Delores Demore, Doris Demore, Hershel Demore and Carol Combs. The testimony of Doris Demore and Carol Combs relate specifically to the claim filed by Doris Demore. In addition, the employee and the other claimants offered for admission several exhibits. These exhibits are identified below.

In re: Demore Enterprises, Inc. - Vandalism \& Repairs to Property:

Exhibit A Police Vandalism Report(s)

Exhibit B

Aerial Photo marked with cut fence locations

Exhibit C

Hershel's handwritten drawing of fence cuts

Exhibit D

Carnahan White fence repair documents

Exhibit E

Assessor's web-site documents

Exhibit F

Secretary of State, Articles of Incorporation

Exhibit G

Secretary of State, Amendment of Articles of Incorporation

Exhibit H

Secretary of State, Biennial Registration Report

In re: Motor Vehicle Collision:

Exhibit I Police Incident Report, MVA 06/29/09

Exhibit J ................MVA Police Photo - intersection of Division \& West Bypass

Exhibit K ................................MVA Police Photo - Demore vehicle, upside down

Exhibit L ................................MVA Police Photo - blocking up Demore vehicle

Exhibit M MVA Police Photo - interior of Demore vehicle

In re: Medical Records \& Medical Expenses for Hershel Demore:

Exhibit N Correspondence concerning denial of Claims Exhibit O Cox Medical Center - Hershel Demore Exhibit P Ferrell Duncan Clinic - Hershel Demore Exhibit Q St. John's EMS - Hershel Demore Exhibit R Hershel Demore Medical Expense Records

In re: Medical Records \& Medical Expenses for Doris Demore:

Exhibit S Cox Hospital - Doris Demore

Exhibit T Orthopaedic Specialists - Doris Demore

Exhibit U St. John's Health Systems - Doris Demore

Exhibit V Springfield Neurological \& Spine - Doris Demore

Exhibit W Integrity Home Health - Doris Demore

Exhibit X Ferrell Duncan Clinic - Doris Demore

Exhibit Y Quail Creek - Doris Demore

Exhibit Z The Diagnostic Clinic - Doris Demore

Exhibit AA Doris Demore Medical Expense Records

In re: Medical Records \& Medical Expenses for Delores Demore:

Exhibit BB The Neighborhoods at Quail Creek - Dolores Demore

Exhibit CC The Diagnostic Clinic - Dolores Demore

Exhibit DD Ferrell Duncan Clinic - Dolores Demore

Exhibit EE Cox Medical Center - Dolores Demore

Exhibit FF St. John's Hospital - Dolores Demore

Exhibit GG St. John's Orthopedic Specialists - Dolores Demore

Exhibit HH Dolores Demore Medical Expense Records

In re: Medical Reports - IME Physicians:

Exhibit II IME Report of Dr. Bernard Abrams

Exhibit JJ. IME Report of Dr. Ted Lennard

Exhibit KK Supplemental Report of Dr. Ted Lennard

In re: Carol Combs:

Exhibit LL CV of Carol Combs, MSW

Exhibit MM. Oxford Brochure - Services Offered

Exhibit NN Oxford Rate Sheet

Exhibit OO Oxford Lifeline Support pamphlet

Exhibit PP Report of Carol Combs, 10/19/11

Exhibit QQ Courtesy Medications List - Doris Demore

Exhibit RR Earnings history of the Employees for the calendar year 2009

Exhibits A - N inclusive and Exhibits II - KK inclusive and Exhibit RR were admitted without objection during the hearing. Exhibits LL - QQ were admitted over the objection of the Insurer, and the Insurer was granted thirty (30) days in which to respond to the testimony of Carol Combs and Exhibits LL - QQ. The Insurer objected to Exhibits O - HH inclusive at the hearing and those objections were taken under advisement. The objections have been considered and are overruled. Exhibits $\mathrm{O}-\mathrm{HH}$ inclusive are admitted.

The employer did not present any witnesses or offer any exhibits at the hearing of this case.

The insurer did not present any witnesses at the hearing of this case. However, the insurer offered for admission the following exhibits:

Exhibit 1

Deposition of Allan Parmet, M.D.

Exhibit 2

Medical Report of Edward Prostic, M.D.

Exhibit 3 Deposition of Doris Demore

Exhibit 4 Deposition of Hershel Demore

Exhibit 5 Deposition of Delores Demore

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

In re: Employee: Hershel Demore, Injury No. 09-084991:

- Notice of Hearing

- Request for Hearing-Final Award

- Order

- Answer of Employer/Insurer (Netherlands Insurance) to Claim for Compensation

- Answer of Insurer America First Insurance Company

- Claim for Compensation

- Report of Injury

In re: Employee: Delores Demore, Injury No. 09-084992:

- Notice of Hearing

- Request for Hearing-Final Award

- Order

- Answer of Employer/Insurer (Netherlands Insurance) to Claim for Compensation

- Answer of Insurer America First Insurance Company

- Claim for Compensation

- Report of Injury

In re: Employee: Doris Demore, Injury No. 09-084993:

- Notice of Hearing

- Request for Hearing-Final Award

- Order

- Answer of Employer/I