Howard Turner v. Turnpike Transit, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-143339

Employee: Howard Turner

Employer: Turnpike Transit, Inc.

Insurer: National Interstate Insurance

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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 21, 2013. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued May 21, 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: Howard Turner

Injury No. 04-143339

Dependents: N/A

Employer: Turnpike Transit Inc.

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

Insurer: National Interstate Insurance

Hearing Date: $\quad 2 / 14 / 13$

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: $8 / 3 / 2004$
5. State location where accident occurred or occupational disease was contracted: OKLAHOMA
6. Was above employee in employ of above employer at the 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 FORKLIFT RAN OVER HIS LEFT FOOT CAUSING FRACTURES.
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: LEFT ANKLE AND BODY AS A WHOLE
14. Nature and extent of any permanent disability: $90 \% 155$-WEEK LEVEL AND 10 % BODY AS A WHOLE
15. Compensation paid to-date for temporary disability: $\ 21,629.94
16. Value necessary medical aid paid to date by employer/insurer? $\ 38,964.12

1. Value necessary medical aid not furnished by employer/insurer? $\ 4,974.97
2. Employee's average weekly wages: $\ 564.93
3. Weekly compensation rate: $\$ 376.04 / \ 354.05
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: $\ 4,974.97

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

179.5 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, 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: FUTURE MEDICAL TREATMENT

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:

JIM CORBETT AND DAVID TUNNELL

Employee: Howard Turner

Injury No. 04-143339

Dependents: N/A

Employer: Turnpike Transit Inc.

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

Insurer: National Interstate Insurance

Hearing Date: 2/14/13

Checked by: MEH

The parties appeared before the undersigned administrative law judge on February 13, 2013, for a final hearing. The claimant appeared in person represented by James Corbett and David Tunnell. The employer and insurer appeared represented by Kevin Leahy. The Second Injury Fund appeared represented by Skyler Burks. Memorandums of law were filed by March 11, 2013.

The parties stipulated to the following facts: On or about August 3, 2004, Turnpike Transit Inc., was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by National Interstate Insurance. On the alleged injury date of August 3, 2004, Howard Turner was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about August 3, 2004, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in the state of Oklahoma. The parties agree that the employee's contract of employment was made in 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 $\ 564.93, which is sufficient to allow a compensation

rate of $\ 376.04 for temporary total disability compensation, and a compensation rate of $\ 354.05 for permanent partial disability compensation. Temporary disability benefits have been paid to the claimant in the amount of $\ 21,629.94, from August 4, 2004, to September 10, 2005. The employer and insurer have paid medical benefits in the amount of $\ 38,964.12. The parties agree that the claimant reached maximum medical improvement on September 10, 2005. The attorney fee being sought is 25 %.

1. Whether the accident caused the injuries and disabilities for which benefits are being claimed.
2. Whether the employer is obligated to pay past medical expenses, including a Medicaid lien.
3. 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.
4. The nature and extent of permanent disabilities.
5. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.
6. Whether the claimant is responsible for a missed doctor's appointment fee of $\ 600.

The following exhibits were entered into evidence:

Claimant's Exhibits:

A Curriculum Vitae of Shane L. Bennoch, MD

B Independent Medical Evaluation of Shane

L. Bennoch, M.D, Dated October 27, 2005

C Independent Medical Evaluation of Shane

L. Bennoch, M.D, Dated March 5, 2010

D Independent Medical Evaluation of Shane

L. Bennoch, M.C., Dated January 9, 2013

E Medical Records of Howard Turner

Tab 1 Agape Primary Care 7/2/03; 7/11/03; 9/30/03

Tab 2 Murrell Counseling Service (Clayton Pettipiece, MD) 7/23/03-9/12/05

Tab 3 St. Johns Regional Health Center Ambulance $11 / 13 / 2003$

Tab 4 Cox Health Systems

Emergency Room (Martin R. Jones MD) 11/13/03

Emergency Room (Mark Brady MD) 11/16/03

David Hicks, MD 8/20/04-9/17/04

Thomas Brooks, MD 3/22/05; 3/31/05; 4/08/05

William Sharpe, MD (stress test) 2/16/06

Stephen Holmes MD 2/20/06; 3/10/06

Emergency Room (R. Scott Kensel, MD) (SOB, dizzy) $5 / 10 / 06$

Tab 5 Radiology

CT scan of head, 11/13/03

X-ray cervical spine, 11/16/03

MRI cervical spine, 7/29/04

MRI Left Foot, 8/19/04

CT left foot, 9/13/04

X ray L foot, 11/2/04, 11/30/04, 12/30/04, 4/26/05

X ray L foot 9/8/05

X ray L foot 12/20/05

Tab 6 St. John's Occupational Medicine 11/17/03-12/8/03

Tab 7 St. John's Outpatient Physical Therapy

$11 / 19 / 03-12 / 8 / 03$

Tab 8 Springfield Physical Medicine 6/23/04, 8/18/04

Tab 9 Hillcrest Medical Center (Tulsa OK) 8/3/04

Tab 10 Concentra Medical Centers 08/03/04

Tab 11 Orthopedic Specialists of Springfield

(David Hicks MD) 08/10/04-05/05/05

Tab 12 Ozark Magnetic Imaging MRI of cervical spine 07/29/04

Tab 13 MRI of Springfield MRI of L foot 08/19/04

Tab 14 Litton and Giddings Radiological Associates CT scan L foot 09/10/2004

Tab 15 Springfield Neurological and Spine Institute Dr. Jeffrey Woodward 05/05/05-05/11/06

Tab 16 Peak Performance Physical Therapy \& Rehab. Jon Hathcock, PT 1/12/05-3/21/05

Tab 17 Neuropsychological Associates of SW Mo. Dale A. Halfaker, Ph.D. Shea Stillwell, Psy.D. 05/09/05-08/05/05

Tab 18 Ozark Prosthetics \& Orthotics 02/21/05-6/8/05

Tab 19 Doctors Hospital—Nixa Clinic

Rana Mauldin, MD 10/24/06-8/22/07

Tab 20 Doctors Hospital of Springfield 11/3/06-6/14/07

Tab 21 St. John's Regional Health Center 9/12/07-8/19/10

Tab 22 St. John's Regional Health Center

Physical Therapy

1/17/08; 7/20/09-8/14/09; 2/15/10-3/18/10

Tab 24 Physical Therapy Clinic

Debbie Young-Tolliver, P.T.

Functional Capacity Evaluation 10/7/08

F Medical Records

Ozarks Community Hospital

MRI Left foot 02/04/13

G Medical Records

Ozarks Community Hospital 3/27/07-1/24/03

I Notice of Amended Lien for Mo HealthNet Payments

Employer and Insurer's Exhibits:

Second Injury Fund's Exhibits:

I Deposition of Howard Turner, August 31, 2006

II Deposition of Howard Turner, January 4, 2007

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

Mr. Turner; his fiancée, Tricia Callahan; and his mother, Patricia Davis, testified live at the hearing. Dr. Shane Bennoch, who did an independent medical evaluation, also testified live at the hearing on behalf of Mr. Turner.

Mr. Turner is 43 years old, and currently lives in Ozark, Missouri. He grew up in Michigan, and testified he did not do well in school. He quit in the $11^{\text {th }}$ grade because he testified he was "no good at it." He was having a hard time and was taking learning disability classes. He said he had trouble reading but was very good mechanically. He decided to just go to work. The claimant has worked since high school doing such things as delivering pizza and working at McDonalds. He next went to work for an electrical company handling heavy equipment. He worked for a mobile home business performing set up. Mr. Turner has had various jobs in his life.

Mr. Turner began his over-the-road trucking career at C.R. England, and he continued to be an over-the-road trucker most of his adult life. Mr. Turner was the owner of multiple semitrucks at one point in his career, and had multiple drivers working for him. He kept the b