Jimmie Alston v. Dish Network

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-022783

Employee: Jimmie Alston

Employer: Dish Network

Insurer: Ace American Insurance Company

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 April 18, 2012. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued April 18, 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 $23^{\text {rd }}$ day of January 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Jimmie Alston

Injury No. 08-022783

Dependents:

Before the

DIVISION OF WORKERS' COMPENSATION

Employer: Dish Network

Department of Labor and Industrial

Relationships of Missouri

Department of Missouri

Jefferson City, Missouri

Industrial Party: Second Injury Fund

Insurer: Ace American Insurance Company

Hearing Date: January 30, 2012

Checked by: RJD/ga

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: March 17, 2008
5. State location where accident occurred or occupational disease was contracted: Randolph 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 carrying a 16' ladder, slipped in mud and fell backwards landing on his back, with immediate pain in his low back.
12. Did accident or occupational disease cause death? No. Date of death? N/A

Employee: Jimmie Alston Injury No. 08-022783

1. Part(s) of body injured by accident or occupational disease: Low back, body as a whole.
2. Nature and extent of any permanent disability: 25 % permanent partial disability of the body as a whole.
3. Compensation paid to-date for temporary disability: unknown
4. Value necessary medical aid paid to date by employer/insurer? unknown
5. Value necessary medical aid not furnished by employer/insurer? None.
6. Employee's average weekly wages: $\ 768.80
7. Weekly compensation rate: $\ 512.58 for temporary total disability benefits; $\ 389.04 for permanent partial disability benefits
8. Method wages computation: Stipulation

1. From Employer/Insurer:

100 weeks of permanent partial disability benefits $\ 38,904.00

1. From the Second Injury Fund:

24 weeks of permanent partial disability benefits $\ 9,336.96

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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Scott Wilson

Checked by: RJD/ga

These cases (Injury No. 08-022783 and Injury No. 08-084032) were consolidated for hearing. The hearing was held on January 30, 2012 in Jefferson City. The parties requested leave to file post-hearing briefs, which leave was granted, and the cases were submitted on February 21, 2012.

The hearing was held to determine the following issues in Injury No. 08-022783:

1. The nature and extent of permanent partial disability, if any, in reference to Claimant's low back;
2. Whether the work injury of March 17, 2008, was the cause of any or all of the injuries and conditions alleged by Claimant;
3. Whether Employer shall be ordered to pay temporary total disability ("TTD") benefits, and, if so, for what period(s) of time;
4. The liability, if any, of the Second Injury Fund for permanent partial disability benefits;
5. Whether Employer shall be ordered to provide future medical benefits; and
6. Whether Employer shall be ordered to reimburse Claimant for medical expenses incurred.

The hearing was held to determine the following issues in Injury No. 08-084032:

1. Whether Claimant, Jimmie Alston, sustained an accident arising out of and in the course of his employment with Dish Network Corporation on August 6, 2008;
2. Whether the work accident of August 6, 2008 (if found to have been sustained) was the cause of any or all of the injuries and conditions alleged by Claimant;
3. Whether Employer shall be ordered to pay temporary total disability ("TTD") benefits, and, if so, for what period(s) of time;
4. The nature and extent of Claimant's permanent partial disability, if any;

1. Whether Employer shall be ordered to provide future medical benefits; and
2. Whether Employer shall be ordered to reimburse Claimant for medical expenses incurred.

In Injury No. 08-022783, the parties stipulated as follows:

1. The Missouri Division of Workers' Compensation has jurisdiction over this case;
2. Venue for the evidentiary hearing is proper in Randolph County and adjoining counties; the parties agreed, on the record, to a change of venue to Cole County for purposes of the evidentiary hearing;
3. The claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. Both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. The average weekly wage is $\ 768.80, resulting in compensation rates of $\$ 512.58 / \ 389.04;
6. Jimmie Alston, Claimant, sustained an accident arising out of and in the course of his employment with Dish Network Corporation, on March 17, 2008;
7. The notice requirement of Section 287.420, RSMo, is not a bar to the claim for compensation herein; and
8. Ace American Insurance Company fully insured the Missouri Workers' Compensation liability of Dish Network Corporation at all relevant times.

In Injury No. 08-084032, the parties stipulated as follows:

1. The Missouri Division of Workers' Compensation has jurisdiction over this case;
2. Venue for the evidentiary hearing is proper in Cole County;
3. The claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. Both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. The average weekly wage is $\ 768.80, resulting in compensation rates of $\$ 512.58 / \ 404.66
6. The notice requirement of Section 287.420, RSMo, is not a bar to the claim for compensation herein; and
7. Ace American Insurance Company fully insured the Missouri Workers' Compensation liability of Dish Network Corporation at all relevant times.

The evidence consisted of the testimony of Jimmie L. Alston, Jr. ("Claimant"), as well as Claimant's deposition testimony; the narrative reports and deposition testimony of Dr. Eli

Shuter; medical records; medical bills; Claim for Compensation and Answer filed in Injury No. 08-084032; official notice was also taken of the Division of Workers' Compensation's file in Injury No. 08-084032, which showed that Employer-Insurer's Answer was not timely filed.

Jimmie Alston ("Claimant") was born on September 4, 1967. As stipulated, Claimant was injured on March 17, 2008 while in the course and scope of his employment with Dish Network ("Employer"), a satellite television provider. Claimant began working for Employer in 2007. He worked four days a week; he testified that it was not unusual to work fifteen hours or more in a day. On March 17, 2008, Claimant was working as a "Field Service Specialist II" (satellite dish system installer) for Dish Network and was at a customer's residence in Higbee, Missouri during a rain storm. As Claimant was carrying a 16' ladder (called a "Little Giant") back to the company van he slipped in mud and fell backwards onto a rock/gravel flowerbed, landing on his back, with immediate pain in his low back. Claimant notified his supervisor, Robert Wilson, of the injury that same day, who asked him to first go to see a chiropractor for his pain. Claimant went to Pressley Chiropractic for three visits for treatment, but with no improvement of his low back pain. He filled out a written report of injury for Employer, and the Employer/Insurer authorized treatment at Urgent Care at University Hospital, where he received treatment by Dr. Tran on March 24, 2008, for low back pain and pain down his left leg. Claimant was taken off work, and was treated conservatively and then referred to the University's orthopedic clinic. Claimant was then seen by Dr. Joel Jeffries on May 7, 2008, who ordered an MRI. The MRI of May 14, 2008 showed a large central extruded disc fragment at S1. Dr. Jeffries told Claimant he had a herniated or "blown disc" and referred him to Dr. Theodore Choma, an orthopedic surgeon at University Hospital, who recommended surgery on the disc. The surgery was authorized and Dr. Choma performed an L5-S1 laminotomy and microdiscectomy on May 27, 2008.

After the surgery, Claimant followed up with Dr. Choma, but had a lot of fluid draining from the wound and possible infection. Dr. Choma released Claimant to light duty work on June 11, 2008. Employer had Claimant working light duty assembling satellite dishes, sitting in a plastic chair which aggravated his back pain, which he reported and was told by a company nurse to buy a "donut" for his chair. Although the surgery did improve his back pain, Claimant continued to have numbness radiating into right his buttock, and he noticed that his right calf was still weak.

Dr. Choma released Claimant back to full duty work as a dish installer as of August 4, 2008. Claimant was sent back to work on three or four "big jobs" (bigger houses, requiring more wiring work) when on August 6, 2008, he claims he sustained another work-related back injury. Claimant testified that he was working on a house in Jefferson City that had not been "pre-wired" and was carrying a 28 foot ladder weighing 85 pounds back to the van, and as he twisted to swing the ladder he felt increased pain in his low back. Claimant testified that he finished the day although his back was hurting, and later that evening he drove his daughter to college in Tulsa, Oklahoma, and stayed overnight at his parents' house in Tulsa. Claimant testified that the next morning when he woke up, he went to get coffee in the kitchen and as he

was standing at the kitchen counter he instantly felt severe pain in his low back and right leg, and that he "knew right away" that he had re-injured th