Lester Taylor v. Penmac Personnel Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-089380

MFD No.: 08-01223

Employee: Lester Taylor

Employer: Penmac Personnel Services, Inc.

Insurer: Ace American Insurance Co.

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 $\S 287.480$ 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 December 19, 2012, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued December 19, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $16^{\text {th }}$ day of May 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Lester Taylor

Injury No. 08-089380

Dependents: N/A

MFD No. 08-01223

Employer: Penmac Personnel Services, Inc.

Insurer: Ace American Insurance Co.

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

Health Care Provider: Lester E. Cox Medical Center

Hearing Date: September 17, 2012 (Evidentiary Record Closed: October 16, 2012)

Checked by: LTW

1. Are any benefits awarded herein? No
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: August 29, 2008
5. State location where accident occurred or occupational disease was contracted: Greene 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: While engaged in employment with Employer, Employee was working with a co-worker, who was driving a bus and Employee was sitting in the front seat. As this co-worker made a turn, he cut the corner too tightly and caused the bus to travel into a ditch or culvert. Employee fell out of his seat and onto the floor. The co-worker continued to proceed uninterrupted to the destination. Upon arrival, Employee got off the bus and expressed concern that his feet had become numb and was experiencing pain in his low back.
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: Low Back (This injury was of a transient nature and did not result in any permanent injury.)
14. Nature and extent of any permanent disability: None
15. Compensation paid to-date for temporary disability: None

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Lester Taylor

1. Value necessary medical aid paid to date by employer/insurer? $\ 5,146.76
2. Value necessary medical aid not furnished by employer/insurer? None
3. Employee's average weekly wages: 165.87
4. Weekly compensation rate: $\ 200.00 (PPD / PTD) \& $\ 110.58 (TTD)
5. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: None

Weeks of temporary total disability (or temporary partial disability): None

Weeks of permanent partial disability from Employer / Insurer: None

Weeks of disfigurement from Employer / Insurer: N/A

Permanent total disability benefits from Employer beginning, for Claimant's lifetime: None

1. Second Injury Fund liability: None

TOTAL: None (See Award.)

1. Future requirements awarded: N/A

Employee: Lester Taylor

Injury No. 08-089380

Dependents: N/A

MFD No. 08-01223

Employer: Penmac Personnel Services, Inc.

Insurer: Ace American Insurance Co.

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

Health Care Provider: Lester E. Cox Medical Center

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on September 17, 2012. The evidentiary record was left open for 30 days in order to afford the parties opportunity to submit additional evidence. 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 October 16, 2012.

The employee appeared personally and through his attorney, Randy Alberhasky, Esq. The employer and insurer appeared through their attorney, Robin Bullock, Esq. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General. The Health Care Provider, Lester E. Cox Medical Center, appeared through its attorney, Jason Shaffer, Esq.

The Health Care Provider, Lester E. Cox Medical Center, filed an Application for Direct Payment with the Missouri Division of Workers' Compensation in regard to certain health care it provided for the employee, Lester Taylor, in regard to the above-referenced claim. The Division of Workers' Compensation assigned to this medical fee dispute file Medical Fee Dispute No. 0801223, and scheduled the medical fee dispute file for evidentiary hearing with the scheduling of the underlying claim, which resulted in the parties proceeding to evidentiary hearing on September 17, 2012.

On September 17, 2012, the Health Care Provider, Lester E. Cox Medical Center, by counsel, and prior to the commencement of the evidentiary hearing, filed a Request for Dismissal of Application for Direct Payment. Without objection, this request was filed on grounds that the health care provided by the Health Care Provider was not authorized by the employer and insurer. In light of the foregoing, Medical Fee Dispute No. 08-01223 is dismissed at the request of the Health Care Provider, Lester E. Cox Medical Center.

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

(1) On or about August 29, 2008, Penmac Personnel Services, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Ace American Insurance Co.

(2) On the alleged injury date of August 29, 2008, Lester Taylor was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about August 29, 2008, the employee, Lester Taylor, sustained an accident, which arose out of and in the course of his employment with the employer, Penmac Personnel Services, Inc.

(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.

(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) At the time of the alleged accident of August 29, 2008, the employee's average weekly wage was $\ 165.87, which is sufficient to allow a compensation rate of $\ 110.58 for temporary total disability compensation, and a compensation rate of $\ 200.00 for permanent partial/total disability compensation.

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

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 5,146.76 in medical expenses.

(10) The employee's prior attorney, E. Joseph Hosmer, Esq., possesses an attorney's lien in this case in the amount of $\ 1,638.58. Also, beyond this lien, the employee's present attorney asserts an attorney's fee or lien in the amount of 25 percent of all benefits ordered to be paid.

The issues to be resolved by hearing include:

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

(2) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(3) Whether the employee is entitled to temporary total disability compensation?

(4) Whether the employee sustained any permanent disability as a consequence of the alleged accident August 29, 2008; and, if so, what is the nature and extent of the disability?

(5) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of wage loss benefits, as allowed in Section 287.220.9, RSMo?

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of his daughter, Mary Jane Norstad. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical \& Billing Records from Back in Motion Exhibit B Medical Records from Branson West Medical Care Exhibit C Medical Records from Burrell Behavior Health Exhibit D Medical Records from Burrell Behavior Health Exhibit E Medical Records from Cox Medical Center (Certified 01-23-2006) Exhibit F Medical Records from Cox Medical Center (Certified 12-09-2010) Exhibit G Medical Records from Cox Medical Center (Certified 12-10-2010) Exhibit H Medical Records from Cox Medical Center (Certified 09-06-2011) Exhibit I Record from Missouri Division of Vocational Rehabilitation Exhibit J Medical Records from Peak Performance Exhibit K Medical Records from St. John's Clinic-Occupational Medicine Exhibit L Medical Records from St. John's Health Center Exhibit M Medical Records from Skaggs Community Health Center Exhibit N Medical Records from VA Medical Center-Fayetteville, Arkansas Exhibit O. Medical Records from Center for Advanced Pain Management Exhibit P. Pharmacy Records from Walgreen's Pharmacy Exhibit Q Medical Bills from Cox Medical Center Exhibit R Medical Bills from Ozarks Anesthesia Exhibit S. Medical Bills from RS Medical Exhibit T Psychological Report from Dale Halfaker, Ph.D. Exhibit U Claim for Compensation Exhibit V Answer of SIF to Claim for Compensation

Exhibit W ..................... Answer of Employer/Insurer to Claim for Compensation Exhibit X ................ Letter of Disclosure of Medical Records to SIF (12-22-2010) Exhibit Y ................ Letter of Disclosure of Medical Records to SIF (12-29-2010) Exhibit Z ................Letter of Disclosure of Medical Records to Opposing Counsel (02-08-2011)

Exhibit AA ............Letter of Disclosure of Medical Records to Opposing Counsel (12-19-2011)

Exhibit BB ............Letter of Disclosure of Medical Records to Opposing Counsel (07-23-2012)

Exhibit CC ............Letter of Disclosure of Medical Records to Opposing Counsel (07-27-2012)

Exhibit DD ............................................................... Deposition of Lester Taylor

Exhibit EE...............................................Deposition of P. Brent Koprivica, M.D.

Exhibit FF ............................................................................................Not Offered

Exhibit GG..........................................................................................Not Offered

Exhibit HH .........................................................................................Wage Statement

Exhibit II ....Stipulation for Compromise Settlement B/T Employee \& Employer / Insurer (Injury No. 05-102495)

Exhibit JJ....Stipulation for Compromise Settlement B/T Employee \& SIF (Injury No. 05-102495)

The exhibits were received and admitted into evidence.

The employ