Dwight Cobb v. J.D. Crow & Associates, LLC

Employee: Dwight Cobb

Employer: J.D. Crow \& Associates, LLC (Settled)

Insurer: First Comp Insurance (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, reviewed the evidence, heard the parties' arguments, 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 correcting the 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.

We understand the ALJ's concern on sufficiency of evidence in this case. However, we believe there are numerous facts that support an award of permanent total disability against the Second Injury Fund. Claimant requires narcotic pain medications to ease his pain, which would cause concern to many employers. Dr. Marquis and Dr. Bridges both testified to the likelihood that claimant would frequently miss work due to pain from the combination of the work injury and his pre-existing conditions. Additionally, claimant is unable to sustain the level of activity from the FCE on a regular basis. Ultimately, we agree with the ALJ that claimant was a very credible witness, and based on his level of pain we believe he is no longer able to secure and sustain gainful employment. We agree with the ALJ that claimant's condition is from the combination of the work injury and his pre-existing back condition. Therefore, we find it is proper to award permanent total disability against the Second Injury Fund in this case.

In all other respects, we affirm the award of the ALJ.

We further approve and affirm 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.

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

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

Given at Jefferson City, State of Missouri, this $\qquad 13^{\text {th }}$ day of February 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

James G. Avery, Jr., Member

Employee: Dwight Cobb

Injury No. 08-009264

Dependents: N/A

Employer: J.D. Crow \& Associates, LLC

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

Insurer: First Comp Insurance

Hearing Date: $\quad 1 / 31 / 13$

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: $2 / 12 / 2008$
5. State location where accident occurred or occupational disease was contracted: CHRISTIAN 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: CLAIMANT SLIPPED ON ICE AND CAUGHT HIMSELF WITH HIS RIGHT ARM, INJURING HIS SHOULDER.
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: RIGHT SHOULDER
14. Nature and extent of any permanent disability: 30 %
15. Compensation paid to-date for temporary disability: $\ 33,285.10
16. Value necessary medical aid paid to date by employer/insurer? $\ 59,582.46

Employee: Dwight Cobb Injury No. 08-009264

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 835.74
3. Weekly compensation rate: $\$ 557.16 / \ 389.04
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

PREVIOUSLY SETTLED

1. Second Injury Fund liability: Yes X No Open

21.1625 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: N/A

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:

JONATHAN PITTS

Employee: Dwight Cobb

Injury No. 08-009264

Dependents: N/A

Employer: J.D. Crow \& Associates, LLC

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

Insurer: First Comp Insurance

Hearing Date: $\quad 1 / 31 / 13$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on January 31, 2013, for a final hearing. The claimant appeared in person represented by Jonathan Pitts. The employer and insurer did not appear as they had previously settled their claim with the claimant. The Second Injury Fund appeared represented by Barbara Bean. Memorandums of law were filed by February 28, 2013.

The parties stipulated to the following facts: On or about February 12, 2008, J.D. Crow \& Associates, LLC, was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by First Comp Insurance. On the alleged injury date of February 12, 2008, Dwight Cobb was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about February 12, 2008, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in Christian 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 $\ 835.74, which is sufficient to allow a compensation rate of $\ 557.16 for temporary total and permanent total disability and a compensation rate of $\ 389.04 for permanent partial disability compensation. Temporary

disability benefits have been paid to the claimant in the amount of $\ 33,285.10. The employer and insurer have paid medical benefits in the amount of $\ 59,582.46. The attorney fee being sought is 25 %. The parties agree that the claimant reached maximum medical improvement on August 5, 2009. The parties further agree that if the claimant is not found to be permanently and totally disabled, he has sustained a permanent partial disability of 30 % of the right shoulder as a result of the last injury and 25 % of the body as a whole referable to the back for a pre-existing condition, and a loading factor of 12.5 % is appropriate.

ISSUES:

1. The nature and extent of permanent disabilities.
2. 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 testified at the hearing. He was a very credible witness. He is currently 58 years old. He lives with his wife and grandchildren. He is a high school graduate although he testified that he made poor grades and received special education services. He applied to the service twice but was denied due to hearing problems and Osgood-Schlaughters disease which caused him to fail the physical both times.

All the work he had performed before working for the employer required heavy lifting. The longest period he was unemployed was a month. He was a hod carrier; worked at Meeks as a yard and delivery driver; he worked at a paper company in Colorado; was a warehouse department manager at Wal Mart; he worked for Wil Fisher Distributing and Coors of the Ozarks in their warehouses; was a mechanic for a year; worked at a machine shop; at Sparta Schools performing maintenance; and then had his own auto repair business from 2000-2002.

In 2002 claimant had a back injury resulting in a sacral fusion by Dr. Ferguson. He testified that after this, his back bothered him a lot. Dr. Ferguson told him that he would only perform the surgery if the claimant gave up mechanic work, so the claimant closed his shop. The doctor also warned him to be careful when pushing, pulling, lifting and long driving.

The claimant went to work for the employer, J.D. Crow \& Associates, in 2003. He initially worked in shipping and receiving, and was later promoted to running the machine shop. He did not handle any payroll or hiring or firing in this position. He was a working foreman who worked along with the other employees over 80 % of the time. He said he made sure the work was done. Between 2003 and 2008, claimant took no narcotic medications and had no medical treatment for his back.

After his back surgery, the claimant said that because his back continued to bother him, he regularly took 16-18 Ibeprofen a day, and would sit on a heating pad and take hot baths and showers at night. He also used a cane which he left in his car. He also had to make special arrangements with his employer. The employer allowed accommodations for claimant's back including raising his table, allowing him to sit and stand as needed, and allowing him help lifting. He said the heaviest he lifted was 120 pounds, but that he would regularly lift an average of 1015 pounds. He said before the back surgery he could have lifted the weights alone.

On February 12, 2008, the weather was bad. The claimant decided to start his vehicle in order to melt ice that had accumulated on it. He fell on the ice and caught the door with his right arm as he fell. He suffered a rotator cuff injury which was repaired by Dr. Clothiaux on March 12, 2008. After surgery he had physical therapy.

On September 16, 2008, claimant underwent a Functional Capacity Evaluation (FCE) performed by Brad Johnson. He concluded that the claimant would have no problem standing for an entire day and he could perform low level work. Lifting restrictions were imposed. Mr.

Johnson said claimant could frequently lift 33 pounds floor to knuckle and 23 pounds knuckle to above shoulder. He could occasionally lift floor to knuckle 60 pounds, knuckle to shoulder 30 pounds, shoulder to overhead 15 pounds, and he could carry 50 pounds. He concluded the claimant could not meet all the requirements to return to his previou