Larry Green v. State of Missouri, Department of Corrections

(Affirming Award and Decision of Administrative Law Judge with Correction)

Injury No.: 08-048193

Employee: Larry L. Green

Employer: State of Missouri, Department of Corrections

Insurer: C A R O

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo. We have read the briefs, reviewed the evidence and considered the whole record. We find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law, as corrected herein.

The administrative law judge's award misidentifies Dr. Koprivica as "Dr. Volarich" on two occasions. To correct these errors, we replace the paragraph starting at the bottom of page 16 of the administrative law judge's award (and ending on the top of page 17) with the paragraph below (corrections in bold):

Dr. Koprivica's opinions were premised on the actual fact that there was ether escaping into the cab of the vehicle while Claimant was operating the vehicle. I find there is insufficient evidence to prove that there was ether escaping into the truck cab prior to the accident. Claimant testified that he was traveling with no problems prior to the accident. Dr. Koprivica admitted that if ether was escaping into the cab of the truck, the odor would be recognizable. He also admitted that, even with Claimant's heart and pulmonary conditions, it would take some concentration of ether to cause unconsciousness. Dr. Koprivica admitted if there was no ether escaping into the cab of the truck prior to the accident, then it was his opinion that Claimant's heart condition caused the Claimant to become unconscious and to cause the ensuing accident.

In all other respects, we affirm the award of the administrative law judge. The award and decision of Administrative Law Judge David L. Zerrer, issued January 24, 2013, is attached hereto and incorporated herein by this reference.

Given at Jefferson City, State of Missouri, this $19^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Larry L. Green

Injury No. 08-048193

Dependents:

Employer: State of Missouri, Department of Corrections

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address: 20125, Missouri, Department of Corporate and

Address:

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 571.00
3. Weekly compensation rate: $\ 380.69
4. Method wages computation: Stipulation

1. Amount of compensation payable: None

Unpaid medical expenses: -0-

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

0 weeks of permanent partial disability from Employer

1. Second Injury Fund liability: Yes No X Open

TOTAL: NONE

1. Future requirements awarded: None

Employee: Larry L. Green

Employee: Larry L. Green

Departments:

Employer: State of Missouri, Department of Corrections

Additional Party: Second Injury Fund

Insurer: Self-insured through CARO

Injury No: 08-048193

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

On the $8^{\text {th }}$ day of November, 2012, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by his attorney, Michael Stang. The Employer appeared by its attorney, Assistant Attorney General Curtis Schube. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Eric Lowe. The record was ordered to be left open until 5:00 p.m. November 30, 2012.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the $29^{\text {th }}$ day of May, 2008, the State of Missouri, Department of Corrections, was an employer operating subject to the Missouri Workers' Compensation Law; the Employer's liability was fully self-insured through the Central Accident Reporting Office (CARO) of the State of Missouri; on the alleged injury date of May 29, 2008, Larry L. Green was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the accident occurred in Pettis County, Missouri, and the parties agree that Pettis County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average weekly wage was $\ 571.00, sufficient to allow a compensation rate of

Employee: Larry L. Green

Injury No. 08-048193

$\ 380.69 for temporary total disability, permanent partial disability, and permanent total disability; no temporary disability benefits have been paid prior to the date of this hearing; the Employer has paid medical benefits in the amount of $\ 2,516.00 prior to the date of this hearing; Claimant's attorney seeks approval of an attorney fee of 25 % of the amount of any award.

Whether the accident caused the injuries and disabilities for which benefits are now being claimed?

Whether the Employer is obligated to pay for past medical expenses?

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?

Whether temporary total benefits are owed to the Claimant?

The nature and extent of any permanent disabilities?

The liability of the Second Injury Fund for permanent total disability/enhanced permanent partial disability?

A legal file was established for this hearing which consisted of the following documents, to wit: Report of Injury; Claim for Compensation, filed with the Division July 7, 2008; Amended Claim for Compensation, filed with the Division October 22, 2008; Second Amended Claim for Compensation, filed with the Division February 14, 2011; Answer of Employer to Claim for Compensation, filed with the Division July 22, 2008; Answer of Employer to Amended Claim for Compensation, filed with the Division November 3, 2008; Answer of

Employee: Larry L. Green

Injury No. 08-048193

Employer to Second Amended Claim for Compensation, filed with the Division February 18, 2011; Answer of the Second Injury Fund to Claim for Compensation, filed with the Division November 3, 2008; Answer of the Second Injury Fund to Second Amended Claim for Compensation, filed with the Division February 18, 2011; Request for Final Hearing, filed with the Division July 13, 2012.

Claimant offered, and there was admitted into evidence without objection, Exhibits A, B, and C. Employer offered, and there was admitted into evidence without objection, Exhibits 1, 2, 3,4,5, and 6 .

Larry L. Green, claimant herein, testified in his own behalf. Claimant testified that he resides in Columbia, Missouri, and that his date of birth is January 12, 1946. Claimant testified that he became a truck driver during the later 1960's and also became a business agent for the Teamsters Union during the 1970's. Claimant continued to drive a truck for an occupation until about the year 2000, when he stopped driving a truck and also retired as a business agent for the union at about the same time.

Claimant testified that when he drove a truck, his job duties included loading cargo, securing cargo for travel, and unloading cargo, all of which could be strenuous, heavy labor, besides the actual task of operating a trucking vehicle.

Claimant testified that in 2004 he went to work for the Missouri Department of Corrections, employer herein, to do something different for an occupation. Claimant testified that when he started working for the Employer, he had already had a heart attack, had stents installed in his heart, and was diagnosed with chronic obstructive pulmonary disease (COPD).

Claimant testified that he could perform his job tasks at the Department of Corrections because the work involved mostly driving without the strenuous lifting. Claimant testified that

Employee: Larry L. Green

Injury No. 08-048193

He was diagnosed with throat cancer and placed on restrictions of no lifting and no loads except equipment.

Claimant testified that in 1995 he suffered a left shoulder dislocation. Claimant stated that for treatment the shoulder was put back in place, and he underwent physical therapy for a period of time. Claimant stated that his shoulder "pretty well" recovered from this injury.

Claimant testified that in 1997 he suffered a heart attack and was diagnosed with coronary artery disease. Claimant received five stents in his heart at that time. Claimant further testified that the heart disease caused him to fatigue easily and forced him to restrict his physical activities.

Claimant testified that for the past ten years, more or less, he has suffered from the disease of COPD which has affected his lung function and gives him shortness of breath when he does physical activity.

In 2007 Claimant was diagnosed with phalangeal cancer. Claimant received radiation treatment for the cancer and ultimately had to have his larynx removed. The surgery to remove Claimant's larynx occurred after the May 29, 2008, accident.

Claimant testified that at the time of his May 29, 2008, accident, he was receiving radiation treatments for his throat cancer, but that he felt "normal" on May 29, 2008, when he reported for work about 6 a.m. Claimant was scheduled to drive a Department of Corrections truck to Grandview, Missouri, from Jefferson City, Missouri, on that date. Claimant testified that he left Jefferson City, Missouri, traveling west on Highway 50 and continued on that highway until the accident occurred west of Sedalia, Missouri. Claimant stated that he does not remember what happened at the exact time of the accident, but he remembered looking in the rearview mirror and then waking up on the floor board of the truck with blood dripping fro