Dennis Leonard v. Branson Granite & Marble, LLC

This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ We have read the briefs, reviewed the evidence, and considered the whole record. We find that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers’ Compensation Law, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision affirming the January 25, 2013, award and decision of the ALJ as modified herein. We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge awarded future medical care to be directed by employee’s primary care physician, Dr. Salmon. We believe that such an award is contrary to § 297.140.10 RSMo, which provides, in relevant part:

The employer shall have the right to select the licensed treating physician, surgeon, chiropractic physician, or other health care provider; provided, however, that such physicians, surgeons or other health care providers shall offer only those services authorized within the scope of their licenses. For purposes of this subsection, subsection 2 of section 287.030 shall not apply.

We agree with the ALJ’s finding that “employee is entitled to future medical care to cure and relieve him of the effects of the injury he sustained on July 9, 2008.” But we are not permitted to order future medical care to be directed or provided by a specific physician, unless an issue is presented under § 298.140.2 RSMo as to whether employee’s life, health, or recovery is endangered such that an administrative law judge or this Commission may order a change in the physician, surgeon, hospital, etc. See, e.g., *Noel v. ABB Combustion Eng’g*, 383 S.W.3d 480, 485 (Mo. App. 2012). Because the parties have not presented any issue indicating § 287.140.2, an award of future medical care directed by Dr. Salmon would be inappropriate, as it would contravene employer’s statutory right to direct treatment.

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri (2007), unless otherwise indicated.

Accordingly, we modify the ALJ's award of future medical treatment as follows. We conclude that employer has the right to direct future medical treatment. In all other respects, we affirm the award of the ALJ.

The Commission further approves and affirms the ALJ's allowance of attorney's fees herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Margaret Ellis Holden, issued January 25, 2013, is attached and incorporated by reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $29^{\text {th }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Dennis Leonard

Injury No. 08-058428

Dependents: N/A

Employer: Branson Granite \& Marble, LLC

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

Insurer: Guarantee Insurance Company

Hearing Date: $\quad 10 / 24 / 12$

Checked by: MEH

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: 7/9/08
5. State location where accident occurred or occupational disease was contracted: TANEY 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: FELT PAIN IN HIS LOW BACK WHILE LIFTING A PIECE OF GRANITE.
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: BODY AS A WHOLE
14. Nature and extent of any permanent disability: PERMANENT AND TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: $\ 17,333.46
16. Value necessary medical aid paid to date by employer/insurer? $\ 23,417.02

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 700
3. Weekly compensation rate: $\$ 466.66 / \ 404.66
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: N/A

2 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning 4/9/09, for Claimant's lifetime

1. Second Injury Fund liability: Yes No X Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential (0) payable by SIF for 0weeks, beginning N/A

and, thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded:

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:

ROBERT BEEZLEY

Employee: Dennis Leonard

Injury No. 08-058428

Dependents: N/A

Employer: Branson Granite \& Marble, LLC

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

Insurer: Guarantee Insurance Company

Hearing Date: 10/24/12

Checked by: MEH

The parties appeared before the undersigned administrative law judge on October 24, 2012, for a final hearing. The claimant appeared in person represented by Robert Beezley. The employer and insurer appeared represented by Chris Moberg and Tymon Bay. The Second Injury Fund appeared represented by Barbara Bean. Memorandums of law were filed by November 23, 2012.

The parties stipulated to the following facts: On or about July 9, 2008, Branson Granite \& Marble, LLC was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by Guarantee Insurance Company. On the alleged injury date of July 9, 2008, Dennis Leonard was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about July 9, 2008, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in Taney County, Missouri. The claimant notified the employer of his injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the alleged accident, the

Claimant's average weekly wage was 700.00, which is sufficient to allow a compensation rate of 466.66 for temporary total and permanent total disability compensation, and a compensation rate of $404.66 for permanent partial disability compensation. Temporary disability benefits have been paid to the claimant in the amount of $17,333.46, representing 37 1/7 weeks in disability benefits, ending on March 26, 2009. The employer and insurer have paid medical benefits in the amount of $23,417.02. The attorney fee being sought is 25%.

ISSUES:

1. Whether the claimant has sustained injuries that will require future medical care in order to cure and relieve the claimant of the effects of the injuries.
2. Any temporary total benefits owed to the claimant from March 26, 2009, to April 2, 2010.
3. The nature and extent of permanent disabilities.
4. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The claimant is 47 years old. He is a high school graduate and also attended trade school to learn bricklaying. He has worked in the construction industry his entire career, going to work with his father as a hod carrier at age of 12. Claimant worked as a bricklayer from 1984 to 1998. Claimant is six foot four inches tall and weighs approximately 290 pounds.

Claimant had sustained other injuries before 2008. In 1993, claimant had a work-related injury while stacking blocks. He was picking them up and turning to set them down and felt pain in his low back. He settled this case for 9% of the body as a whole referencing the low back. In 1995 he was involved in an auto accident in which he broke his neck. As a result of this injury he had two fusion surgeries. The first did not properly fuse, requiring a second surgery using

hardware. The claimant testified that after this injury he was off work for 11 months. When he returned as a bricklayer he found he could not work as fast and keep up. Therefore he became self employed where he could work at a slower pace. He performed smaller jobs such as mailboxes and entry ways.

In 2000 he had a work-related injury when he fell from a ladder and injured his ribs, low back, left shoulder and left knee. He received 17.5 % permanent partial disability to the body as a whole referenced to the back and 5 % of the left shoulder and 5 % of the left knee. In 2001 he had a work-related injury and injured his shoulder when a truck struck a mixer full of cement and he reached with his left hand to grab the mixer and felt a pop in his left shoulder. He received 15 % permanent partial disability for this injury.

In 2001 the claimant's parents opened Branson Granite and Marble in Branson, Missouri, and asked him to run this business for them. His duties included acting as a shop supervisor but he was also involved on a day-to-day basis of measuring, cutting, fabricating, and installing granite and marble. He testified that in this position he had people working under him. He said he could run the saw but could not pick up items without others helping him. He could also carry with help. He could bend and squat but not for long periods of time. He could not do overhead work. He worked forty plus hour weeks. Also he could go home and rest if he needed to, which he did once or twice a month. He took over the counter pain medication when needed.

Claimant testified that in spite of these prior injuries and conditions, however, he was very athletic. He exercised daily including riding a bike, doing a lot of walking, and he played golf, half court basketball, softball, and touch football. His mother testified at the hearing that between 2002 and 2003 she built a home. She said the claimant laid thousands of square feet of

stone in the house by himself in the year and a half it took to build. She also said that he worked 8-10 hours a day and did not complain.

On July 9, 2008, claimant was injured in an occurrence while working within the course and scope of his employment at a home in Branson, Taney County, Missouri. The claimant was helping three others carry a large piece of granite up the stairs in a home. The claimant testified it was a large L shaped piece. It was in a clamp which they rolled onto a stair