Wilson Turner v. Turner Excavating

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-031872

Employee: Wilson F. Turner

Employer: Turner Excavating

Insurer: Missouri Employers Mutual 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 January 18, 2013. The award and decision of Administrative Law Judge L. Timothy Wilson, issued January 18, 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: Wilson F. Turner

Injury No. 99-031872

Dependents: N/A

Employer: Turner Excavating

Insurer: Missouri Employers Mutual Insurance Company

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

Hearing Date: November 13, 2012

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: January 1, 1999
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, which included performing maintenance on various machines, Employee was standing on the tracks of one of his excavators. As he turned, he slipped, and fell toward the ground and ended up doing a split with his left foot in front of him and the right foot behind him. He fell with the full weight of his body on the perineal or groin area. As a consequence of this work incident Employee sustained injuries to his lumbar, thoracic and cervical spine, groin and mental health.
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: BAW (Lumbar Spine, Thoracic Spine, Cervical Spine, Groin Area, Mental Health)
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 95,975.42
16. Value necessary medical aid paid to date by employer/insurer? $\ 116,260.67

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 921.25
3. Weekly compensation rate: $\ 562.67 (TTD / PTD) / \$294.73 (PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

N/A

Future medical care:

(See Award)

(Employee is entitled to future medical care from Employer and Insurer.)

Weeks of temporary total disability (or temporary partial disability):

N/A

Weeks of permanent partial disability from Employer / Insurer:

N/A

Weeks of disfigurement from Employer / Insurer:

N/A

Permanent total disability benefits from Employer / Insurer: (See Award)

(Employee is entitled to permanent total disability benefits from Employer and Insurer beginning December 30, 2004, at the rate of $\ 562.67 per week, for Employee's lifetime.)

1. Second Injury Fund liability: No

TOTAL: \$562.67 PER WEEK, EFFECTIVE DECEMBER 30, 2004, AND CONTINUING FOR EMPLOYEE'S LIFETIME, PLUS FUTURE MEDICAL CARE

1. Future requirements awarded: Future medical and permanent total disability benefits

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 payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Paul F. Reichert, Esq.

Employee: Wilson F. Turner

Injury No. 99-031872

Dependents: N/A

Employer: Turner Excavating

Insurer: Missouri Employers Mutual Insurance Company

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on November 13, 2012. 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 17, 2012.

The employee appeared personally and through his attorney Paul Reichert, Esq. The employer and insurer appeared through their attorneys, Brandon C. Potter, Esq. and Raymond E. Whiteaker, Esq. The Second Injury Fund appeared through its attorneys, Cara Harris, Assistant Attorney General and Skyler Burks, Assistant Attorney General.

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

(1) On or about January 1, 1999, Turner Excavating was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Employers Mutual Insurance Company.

(2) On the alleged injury date of January 1, 1999, Wilson F. Turner was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about January 1, 1999, the employee, Wilson F. Turner, sustained an accident, which arose out of and in the course of his employment with the employer, Turner Excavating.

(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 January 1, 1999, the employee's average weekly wage was $\ 921.25, which is sufficient to allow a compensation rate of $\ 562.67 for temporary total disability compensation / permanent total disability compensation, and a compensation rate of $\ 294.73 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to the employee in the amount of $\ 95,975.42, payable for the periods of January 2, 1999 to January 17, 1999, and October 9, 2001 to December 29, 2004.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 116,260.67 in medical expenses.

(10) The employee reached maximum medical improvement on December 30, 2004, relative to the work injury of January 1, 1999.

The issues to be resolved by hearing include:

(1) 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?

(2) Whether the employee sustained any permanent disability as a consequence of the claimed accident of January 1, 1999; and, if so, what is the nature and extent of the disability?

(3) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of four additional witnesses: Shane Bennoch, M.D., Dale A. Halfaker, Ph.D., Wilbur Swearingin, CRC and Sandra Kay Holt. In addition, the employee offered for admission the following exhibits:

Exhibit A. CV of Shane Bennoch, M.D.

Exhibit B Deposition of Shane Bennoch, M.D.

Exhibit C Life Care Plan of Missouri, LLC dated August 21, 2012

Exhibit D Life Care Plan of Missouri, LLC dated November 5, 2012

Exhibit E .CV of Dale Halfaker, Ph.D.

Exhibit F Functional Ability Statement

Exhibit G 1998 Income Tax Return

Exhibit H. $\qquad Report of Wilbur Swearingin, CRC

Exhibit I \qquad Medical Report of Norbert Belz, M.D.

Exhibit J \qquad$ CV of Wilbur Swearingin, CRC

The exhibits were received and admitted into evidence. (Exhibit I was not admitted as to the Second Injury Fund.)

The employer and insurer presented no witnesses at the hearing of this case; however the employer and insurer offered for admission the following exhibits:

Exhibit 1 $\qquad Deposition of Dale Halfaker, Ph.D.

Exhibit 2 \qquad Deposition of Frank Turner dated May 12, 2004

Exhibit 3 \qquad Psychological Evaluation

Exhibit 4 \qquad Deposition of Ted Lennard, M.D.

Exhibit 5 \qquad Medical Report of Thomas Corsolini, M.D.

Exhibit 6 \qquad Deposition of Jeffrey Woodward, M.D.

Exhibit 7 \qquad$ Deposition of Wilson Turner dated January 7, 2011

Exhibits 1, 2, 3, 4, 6, and 7 were received and admitted into evidence. (Exhibit 5 was denied admission. Exhibit 6 was not admitted as to the Second Injury Fund.)

The Second Injury Fund did not present any witnesses at the hearing. In addition, the Second Injury Fund offered for admission the following exhibits:

Exhibit I $\qquad$ Deposition of James England, Jr.

The exhibit was 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:

- Order \& Notice of Hearing

- Request for Hearing-Final Award

- Answer of Second Injury Fund to Amended Claim for Compensation

- Answer of Employer/Insurer to Amended Claim for Compensation

- Amended Claim for Compensation

- Answer of Employer/Insurer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The Claimant, Wilson Frank Turner, is 63 years of age, having been born on May 27, 1949. Mr. Turner resides in Strafford, Missouri with his friend, Sandra Kay Holt. Mr. Turner has no dependent children since all are emancipated.

Mr. Turner has a high school diploma but suffers from limited ability to read and write. In school, he achieved poor academic performance. In discussing this concern, Mr. Turner noted that he did not learn to read; rather, he was simply passed from grade to grade, given a high school diploma but without requiring basic academic skills. While in high school he attended a two year vocational technical training program at Graff Vocational Technical School in sheet metal work.

After graduation from high school, Mr. Turner participated in the apprenticeship program of the sheet metal workers' union, Local 36, which he completed. However, it took him 6 years to complete the normal 4 year apprenticeship program.

Mr. Turner received an honorable d