Lester Barker v. Laclede County

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-026305

Employee: Lester Barker

Employer: Laclede County

Insurer: Missouri Association of Counties

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 3, 2013. The award and decision of Administrative Law Judge L. Timothy Wilson, issued June 3, 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 $6^{\text {th }}$ day of December 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Lester Barker

Injury No. 10-026305

Dependents: N/A

Employer: Laclede County (a governmental entity)

Insurer: Missouri Association of Counties

Additional Party: N/A

Hearing Date: March 19, 2013

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: April 5, 2010
5. State location where accident occurred or occupational disease was contracted: Laclede 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: While engaged in employment with the Employer, and while the Employee was attempting to attach two large drain pipes that were approximately two feet in diameter and weighed approximately 150 pounds, Employee bent over and lifted the pipe, twisting it to the right in order to fit it to the connecting pipe. Upon doing so, Employee experienced an immediate, severe knife like pain in his low back that radiated into his right hip. As a consequence of this work incident Employee sustained injuries to his lumbar spine, which caused him to be governed by permanent work restrictions. These permanent work restrictions, in combination with the limitations caused by his illiteracy, render the Employee permanently and totally disabled.
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)
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? $\ 4,305.48
2. Value necessary medical aid not furnished by employer/insurer? None
3. Employee's average weekly wages: $\ 510.80
4. Weekly compensation rate: $\ 340.55 (TTD / PTD / PPD)
5. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

Denied

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):

$\mathrm{N} / \mathrm{A}$

Weeks of permanent partial disability from Employer / Insurer:

$\mathrm{N} / \mathrm{A}$

Weeks of disfigurement from Employer / Insurer:

$\mathrm{N} / \mathrm{A}$

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

(Employee is entitled to permanent total disability benefits from Employer and Insurer beginning May 5, 2011, at the rate of $\ 340.55 per week, for Employee's lifetime.)

1. Second Injury Fund liability: N/A

TOTAL: \$340.55 PER WEEK, EFFECTIVE MAY 5, 2011, 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: Ryan Murphy, Esq.

Employee: Lester Barker

Injury No. 10-026305

Dependents: N/A

Employer: Laclede County (a governmental entity)

Insurer: Missouri Association of Counties

Additional Party: N/A

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on March 19, 2013. 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 April 16, 2013.

The employee appeared personally and through his attorney Ryan Murphy, Esq. The employer and insurer appeared through their attorney, Matt Barnhart, Esq.

Prior to commencement of the hearing the employee, by counsel, orally moved to dismiss without prejudice the claim filed in Injury No. 10-050269, which references a date of injury of June 29, 2010. Without objection, the claim filed in Injury No. 10-050269 is dismissed without prejudice.

The parties entered into a stipulation of facts in Injury No. 10-026305. The stipulation is as follows:

(1) On or about April 5, 2010, Laclede County, Missouri (a governmental entity), was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Association of Counties.

(2) On the alleged injury date of April 5, 2010, Lester Barker was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about April 5, 2010, the employee, Lester Barker, sustained an accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced employment and accident occurred in Laclede County, Missouri. The parties agree to venue lying in Laclede 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 accident of April 5, 2010, the employee's average weekly wage was $\ 510.80, which is sufficient to allow a compensation rate of $\ 340.55 for temporary total disability compensation / permanent total disability compensation, and permanent partial disability compensation.

(8) Temporary total disability compensation has not been provided to the employee.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 4,305.48 in medical expenses.

The issues to be resolved by hearing include:

(1) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\ 250.00 ?

(2) 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?

(3) Whether the employee sustained any permanent disability as a consequence of the accident of April 5, 2010; and, if so, what is the nature and extent of the disability?

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of his wife, Becky Barker. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical Report of David Volarich, M.D.

Exhibit B Deposition of Phillip Eldred, C.R.C.

(Inclusive of Deposition Exhibits)

Exhibit C

Vocational Report of Phillip Eldred, C.R.C.

Exhibit D..Medical Records from St. John's Hospital, Lebanon Physical Therapy

Exhibit E Medical Records from St. John's Clinic, Agape

Exhibit F. Medical Records from St. John's Clinic, Lebanon Family Exhibit G Medical Records from Bays Chiropractic Clinic Exhibit H Medical Records from Springfield Neurological \& Spine Institute Exhibit I Medical Records from St. John's Clinic Exhibit J Medical Records from St. John's Health Center Exhibit K Medical Bills from St. John's Health Center

The exhibits were received and admitted into evidence.

The employer and insurer presented three witnesses at the hearing of this case - Linda Cansler, Danny Rhoades, and Danny Dismang. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit 1.....Medical Record from Fred Mcqueary, M.D. (In Re: Return to Work)

Exhibit 2 Letter Dated March 31, 2011

Exhibit 3 Statement of Benefit Charges

Exhibit 4 Deposition of James England, Jr., L.R.C.

(Inclusive of Deposition Exhibits)

Exhibits 1, 3 and 4 were received and admitted into evidence. The employer and insurer offered for admission Exhibit 2, but the employee objected to its admission on grounds that it constituted a statement of employee not provided pursuant to a certified request submitted to the employer under Section 287.215, RSMo. In light of this objection, the undersigned determined that Exhibit 2 constituted a statement of the employee, and the employer had failed to comply with the requirements of Section 287.215, RSMo. Consequently, the objection was sustained and Exhibit 2 was denied admission.

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:

- Notice of Hearing

- 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 employee, Lester Barker, is 62 years of age, having been born on September 8, 1950. Mr. Barker resides in Lebanon, Missouri with his wife, Becky Barker. He and his wife have been married for 38 years.

Mr. Barker enjoys limited education. He quit elementary school at an early age, during in or around the $6^{\text {th }}$ grade at the direction of his father, who required assistance supporting the 16 children in the family. Apparently, Mr. Barker's parents did not place an emphasis on the children's education, and Mr. Barker never learned to read or write. And he never obtained a GED or other educational training.

Mr. Barker's employment history relates to labor oriented or physically demanding work. Subsequent to quitting school, he performed work for his father, including farm work. At the age of 17 he entered the work force and engaged in employment as a wage earner. He later obtained employment assembling boats at a factory in Lebanon, Missouri. Other employment includes work as a truck driver and heavy equipment operator.

In or around 1992 Mr. Barker obtained employment with the employer, Laclede County, Missouri (a governmental entity), working in the Road and Bridge department as a truck driver and backhoe operator. In this employment Mr. Barker performed a variety work, which included the following: driving a dump truc