Richard Gilpin v. Advantech Solutions

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-055474

Employee: Richard Gilpin

Employer: Advantech Solutions

Insurer: National Union Fire Insurance Company of Pittsburgh

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 January 22, 2013. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued January 22, 2013, 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 $10^{\text {th }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Richard Gilpin

Injury No. 09-055474

Dependents:

Employer: Advantech Solutions

Additional Party: Second Injury Fund

Insurer: National Union Fire Insurance Company

Hearing Date: October 29, 2012

Before the<br>DIVISION OF WORKERS' COMPENSATION<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: RJD/cs

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 13, 2009.
5. State location where accident occurred or occupational disease was contracted: Boone 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 pushing a cart containing demolished sheetrock up an inclining sidewalk when he felt a sharp stabbing pain in his back and knees, causing him to fall. As the cart came rolling back towards him, Employee was able to catch the cart and again felt the sharp, stabbing pain.
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.
14. Nature and extent of any permanent disability: permanent total disability.
15. Compensation paid to-date for temporary disability: $\ 63,878.87.
16. Value necessary medical aid paid to date by employer/insurer? \$201,190.33.

Employee: Richard Gilpin

1. Value necessary medical aid not furnished by employer/insurer? Unknown.
2. Employee's average weekly wages: $\ 967.85.
3. Weekly compensation rate: $\ 645.23 for temporary total disability and permanent total disability; $\ 422.97 for permanent partial disability.
4. Method wages computation: Stipulation.

1. From Employer:

Employer and Insurer are ordered to pay Claimant weekly permanent total disability benefits of $\ 645.23 per week beginning June 24, 2011 for Claimant's lifetime.

Employer and Insurer are also ordered to provide Claimant with future medical benefits to cure and relieve Claimant from the effects of the work-related injury, pursuant to Section 287.140. RSMo.

1. Second Injury Fund liability:

None.

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:

Van Camp Law Firm LLC

Employee: Richard Gilpin

Injury No. 09-055474

Dependents:

Employer: Advantech Solutions

Additional Party: Second Injury Fund

Insurer: National Union Fire Insurance Company

Hearing Date: October 29, 2012

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The evidentiary hearing in this case was held on October 29, 2012 in Columbia. Claimant, Richard Gilpin, appeared personally and by counsel, Douglas Van Camp and Elizabeth Skinner; Employer, Advantech Solutions, and Insurer, National Union Fire Insurance Company, appeared by counsel, George Floros; the Second Injury Fund appeared by counsel, Assistant Attorney General Curtis Schube. The parties requested leave to file post-hearing briefs, which leave was granted. The case was submitted on December 4, 2012. The hearing was held to determine the following issues:

1. The liability, if any, of Employer-Insurer for permanent partial disability benefits or permanent total disability benefits; and
2. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits; and
3. The liability, if any, of Employer-Insurer for future medical benefits pursuant to $\S 287.140$, RSMo.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Boone County;

1. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
2. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
3. That Claimant's average weekly wage is $\ 967.85, resulting in compensation rates of $\ 645.23 for temporary total disability and permanent total disability and $\ 422.97 for permanent partial disability;
4. That Claimant, Richard Gilpin, sustained an accident arising out of and in the course of his employment with Advantech Solutions on July 13, 2009 in Boone County;
5. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein;
6. That National Union Fire Insurance Company fully insured the Missouri Workers' Compensation liability of Advantech Solutions at all relevant times;
7. That Employer-Insurer paid $\ 201,190.33 in medical benefits and $\ 63,878.87 in temporary total disability ("TTD") benefits.

The evidence consisted of the testimony of Claimant, Richard Gilpin; the testimony of Gary Weimholt, a vocational rehabilitation consultant; extensive medical records; the deposition testimony and narrative report of Phillip Eldred, a vocational rehabilitation consultant; the narrative report of Dr. David T. Volarich; the narrative report of Dr. Donald DeGrange; and certain records of the Missouri Division of Workers' Compensation.

Richard Gilpin ("Claimant") was born March 5, 1958. Claimant currently resides with his sister in Columbia, Missouri. He previously resided in an apartment on Waugh Street in Columbia which had been provided to him by his employer as a condition and benefit of employment. At the time of his accident, Claimant was employed by Advantech Solutions (hereinafter "Employer") which was known to Claimant as Premier Property Service. Claimant

was employed in the position of caring for and maintaining apartment buildings on the Stephens College Campus in Columbia. In approximately September 2009, while Claimant was treating for his injuries, he was asked by Employer to leave the apartment and has since resided with his sister.

Claimant graduated from high school in 1976 and also accumulated several hours of college level credit during three to four attempts to obtain a college degree over the last 15 to 20 years. Following high school, Claimant enlisted in the Marine Corps in 1979 and continued to serve until 1987, when he received an honorable discharge.

While in the Marine Corps, Claimant served as a supply clerk, a fiscal clerk, a recruiter and an interior guard. He began working for the Boone County Sheriff's Department following the Marine Corps and worked as both a patrol officer and a corrections officer during his three years of employment. Claimant was then employed at Heilig-Meyers Furniture Store where he began as a part-time warehouse clerk and worked his way up through delivery, collections, and on to a management position. He then went to work at Blattner Furniture in a similar capacity.

Following his employment at Blattner Furniture, Claimant began working at Harry S. Truman Veterans Hospital in Columbia as a purchase and hire manager with responsibilities in the construction and remodeling of the facilities. He worked in that capacity for five years before beginning as a project superintendent for Boone Construction, a company involved in commercial construction. In addition to bidding and supervising the jobs, Claimant was also responsible for working directly on the projects. After that employment, he then held down a similar job at Keith Contracting before becoming employed at Boone Hospital in Columbia, with job duties of monitoring and installing HVAC and large power equipment. Claimant worked at Boone Hospital Center for almost three years before going to work at Lowe's Home Improvement store to be a project manager in the plumbing department. As project manager, Claimant was still required to lift products from shelves, operate heavy equipment and be in high areas. He worked at Lowe's for approximately two years before going to work for Employer.

In 2003 and 2004, Claimant sustained work-related motor vehicle accidents when he was twice rear-ended while stopped at stop-lights, which accidents caused pain and injury to his neck, shoulder, lower back and legs. Claimant treated for a period of time continuing through 2007, but then experienced a cessation of symptoms enabling him to train for the Senior Olympics and run three miles in twenty-four minutes. He testified that while he had suffered muscle spasms and minor pains following the car accidents, he had an absence of pain for the 12 to 18 months prior to July of 2009.

Claimant began working for Employer in January of 2008. Claimant's duties included trash collection, helping move students in and out of the buildings, maintaining the physical aspects of the building, along with the HVAC, plumbing and electrical systems, providing

security, and also serving as a liaison with the parents. Although hired in January, the apartment was not provided until May or June of 2008 and included paid utilities.

As stipulated, Claimant sustained a work-related accident while working for Employer on July 13, 2009. The accident occurred as Claimant was pushing a cart containing demolished sheetrock up an inclining sidewalk when he felt a sharp stabbing pain in his back and knees, causing him to fall. As the cart came rolling back towards him, Claimant was able to catch the cart and again felt the sharp, stabbing pain. He reported the injury to Employer.

Claimant testified that he eventually underwent several surgeries due to his injuries. Although there were only three occasions upon which surgery performed, the first two being done by Dr. Abernathie and last performed by Dr. DeGrange, Claimant testified that he considered himself to have undergone four procedures due to the third surgery being two connected p