Barry Wimberly v. Western Fireproofing Company of Kansas, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-045401

Employee: Barry Wimberly

Employer: Western Fireproofing Company of Kansas, Inc.

Insurer: Liberty Insurance Corporation

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 November 30, 2012. The award and decision of Administrative Law Judge Emily S. Fowler, issued November 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 $10^{\text {th }}$ 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: Barry Wimberly

Injury No. 09-045401

Dependents: N/A

Employer: Western Fireproofing Company of Kansas, Inc.

Insurer: Liberty Insurance Corporation

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

Hearing Date: October 5, 2012

Checked by: ESF/pd

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 10, 2009
5. State location where accident occurred or occupational disease was contracted: Kansas City, Wyandotte County, Kansas. The parties stipulated that the contract of employment was created in Kansas City, Jackson 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: A fellow employee dropped a hose weighing between 100 and 200 pounds from a 25 to 30 foot roof onto claimant's head breaking claimant's neck resulting in permanent injury to the neck and body as a whole.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Barry Wimberly

1. Did accident or occupational disease cause death? No. Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Neck and body as a whole
3. Claimant is permanently and totally disabled as a result of the last accident alone.
4. Compensation paid to date for temporary disability: $\ 13,225.25 as of the date of hearing. Employer/Insurer stipulates that a $\ 6,088.25 in underpayment of temporary total disability benefits occurred.
5. Value necessary medical aid paid to date by employer/insurer? $\ 77,460.04
6. Value necessary medical aid not furnished by employer/insurer? $\ 4,975.42
7. Employee's average weekly wages: $\ 1,390.72
8. Weekly compensation rate: $\$ 772.53 / \ 404.66
9. Method wages computation: By stipulation

1. Amount of compensation payable: As stated above, the employer has agreed to pay $\ 6,088.25 in past due temporary total disability benefits plus the employer/insurer is ordered to pay past due permanent total disability benefits of $\ 120,956.13 as of November 2, 2012 and $\ 772.53 per week thereafter, for the remainder of claimant's life.
2. Future requirements awarded: Ongoing pain management plus any revision surgery necessary to cure the effects of the claimant's injury to his neck.

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 Keith V. Yarwood, Employee's attorney, for necessary legal services rendered.

On October 5, 2012, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110.2. The Employee, Barry Wimberly, appeared in person and with counsel, Keith V. Yarwood. The Second Injury Fund appeared through Assistant Attorney General, Andrew Dickson. The employer and insurer appeared through counsel, C. Anderson Russell.

The parties stipulated to the following:

1) that the Employer, Western Fireproofing of Kansas, Inc., was an employer operating under and subject to the provisions of Missouri Workers’ Compensation Law on June 10, 2009 and was fully insured by Liberty Insurance Corporation; 2) that Barry Wimberly was its employee and working subject to the law in Kansas City, Wyandotte County, Kansas; 3) Missouri’s jurisdiction to hear this case is pursuant to $\S 287.110 .1$ in that the contract of employment was created in Kansas City, Jackson County, Missouri; 4) the Employee sustained an accident or occupational disease arising out of and in the course and scope of his employment; 5) that Employee notified Employer of his injuries as required by law and his Claim was filed within the time allowed by law; 6) that Employee’s average weekly wage was $\ 1,390.72, resulting in a compensation rate of $\ 772.53 for temporary total disability and $\ 404.66 for permanent partial disability compensation; and 7) that the Employer has paid has paid medical care costing $\ 77,460.04 and temporary total disability compensation in the amount of $\ 13,225.25 and stipulates that that represents a temporary total disability benefits underpayment of $\ 6,088.25.

The issues to be resolved by this hearing are as follows:

1) The nature and extent of Claimant's disability;

2) Employer's liability;

3) Second Injury Fund liability; and

4) Unpaid medical expenses of $\ 4,975.42.

The Employee, Barry Wimberly, testified in person and offered the following exhibits, all of which were admitted into evidence without objection with the exception of Claimant's Exhibit E which was overruled:

Claimant's Exhibit A - Deposition of Dr. P. Brent Koprivica

Claimant's Exhibit B - Deposition of Dr. Stanley Butts, Ph.D.

Claimant's Exhibit $\boldsymbol{C}$ - Deposition of Michael Dreiling

Claimant's Exhibit D - Section 334.107 RSMo.

Claimant's Exhibit $\boldsymbol{E} - Healing Art website print-out

Claimant's Exhibit \boldsymbol{F} - Barry Wimberly's prescription records

Claimant's Exhibit \boldsymbol{G}$ - Drug Test post accident

Claimant's Exhibit H - TENS Unit expenses

The Second Injury Fund did not call any witnesses and offered no exhibits.

The Employer/Insurer offered the following exhibits without objection with the exception of Exhibit 6 which was overruled:

Employer/Insurer Exhibit 1 - Deposition of Dr. Halfaker

Employer/Insurer Exhibit 2 - Deposition of James England

Employer/Insurer Exhibit 3 - Deposition of Dr. Stephen Reintjes

Employer/Insurer Exhibit 4 - Deposition of Dr. Norbert Belz

Employer/Insurer Exhibit 5 - Deposition of Barry Gene Wimberly

Employer/Insurer Exhibit 6 - Prescription records of Barry Wimberly prior to reaching maximum medical improvement

Based on the above exhibits and the testimony of the Mr. Wimberly, I make the following findings:

Mr. Wimberly is a 54-year-old male who lives with his wife of more than 30 years in Bethany, Missouri. Western Fireproofing of Kansas, Inc. hired him as a laborer at the end of May, 2009. On June 10, 2009, he met with an accident that resulted in permanent injury while working in Kansas City, Wyandotte County, Kansas. At the time he had an average weekly wage of $\ 1,390.72 which entitles him to a permanent total disability rate of $\ 772.53 and a permanent partial disability rate of $\ 404.66.

I further find that prior to June 10, 2009 Mr. Wimberly suffered injuries which included a right rotator cuff tear, a low back strain, three broken ribs, a fractured vertebrae in the low back and a fractured right ring finger.

Mr. Wimberly dropped out of high school at the age of 16 and went to work at the General Motors plant in Fairfax, KS. He worked in various line positions as well as an employee representative while at GM. He eventually obtained his GED and obtained an Associates Degree from Park College. He obtained Employee's Assistant Certification. Mr. Wimberly worked as an employee assistance counselor at GM for about nine years but has not updated his credentials or received any continuing education in the area for more than a decade. He has masonry skills and utilized them periodically during plant shut-downs while working at General Motors. However, he has neither typing skills nor personal computer skills. (Claimant Exhibit C, pp. 6771). In the 1990's, he and his wife, Deborah Wimberly, purchased a 60 acre farm near Bethany, Missouri where they rehabilitated a 100 year old house and took care of a variety of animals including more than 20 cows and six horses.

Prior to June 10, 2009, Mr. Wimberly suffered several injuries however none of them resulted in any permanent industrial disability. In 2004, while on vacation with his family in Colorado, the horse he was riding threw him causing him to break three ribs, his right ring finger and to fracture a vertebra in his low back. Although doctors wanted to perform surgery on his finger Mr. Wimberly refused and he completely healed after a regimen of pain medication and physical therapy.

In December of 2006, Mr. Wimberly lost control of his vehicle while driving to work. He crossed the median and was struck by another vehicle. His car came to rest in a ditch. Mr. Wimberly complained of neck pain and diagnostic studies showed that he suffered from arthritis in his neck. He was provided some pain medication but fully recovered without any permanent disability.

In the summer of 2008, after retiring from General Motors, Mr. Wimberly tore his right rotator cuff while working on his farm. He delayed surgery on his shoulder for six months so that he could assist his siblings in caring for his dying father. Eventually, Mr. Wimberly did undergo a right rotator cuff repair with Dr. Vilkins. He was released from treatment in March of 2009. However, he continued to obtain pain medication from his private physician, Dr. Terry Hall. Mr. Wimberly took the medication periodically to relieve his shoulder pain so he could sleep.

Other pre-existing conditions of note include alcoholism and depression. Mr. Wimberly is a recovering alcoholic. However, his wife gave him an ultimatum in 1988 which resulted in Mr. Wimberly drinking his last alcoholic beverage on October $4^{\text {th }}$ of that year and entering into a 28 day rehabilitative program. Mr. Wimberly testified that giving up alcohol actually made him a better employee and he does not consider it a disability.

Mr. Wimberly was also diagnosed with a pre-existing depression. However, Mr. Wimberly was not aware of the diagnosis but admitted that he had sought counseling with a psychiatrist to help him stop smoking. The psychiatrists hired by Mr. Wimberly's counsel and by opposing counsel agreed that Mr. Wimberly suffered from depression prior t