Rodney Roberts v. Charter Communications, Inc.

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 02-023192

Employee: Rodney Roberts

Employer: Charter Communications, Inc.

Insurer: Lumbermens Mutual Casualty Co. (In Liquidation)

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read all briefs, reviewed the evidence, heard oral arguments, and considered the whole record, we find that the award and decision of the administrative law judge allowing 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 judge with this supplemental opinion.

After the Application for Review was filed with the Commission, the Circuit Court of Cook County, Illinois, entered an Order of Liquidation with Findings of Insolvency against Lumbermens Mutual Casualty Co. (insurer). On June 25, 2013, Missouri Property and Casualty Insurance Guarantee Association (MIGA) issued a determination finding that Charter Communications (employer) has a net worth of more than twentyfive million dollars, therefore MIGA will not cover claims for employer.

According to § 287.300 RSMo, "If the employer is not insured his liability hereunder shall be primary and direct." In its brief to the Commission, employer acknowledges its responsibility for all benefits awarded for injury 02-023192. Therefore, while we affirm the amounts of the benefits awarded by the administrative law judge, we find that employer is responsible for paying the benefits.

We affirm and adopt the award and decision of the administrative law judge, as supplemented herein.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued December 11, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $25^{\text {th }}$ day of April 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Rodney Roberts

Injury No. 02-023192

Dependents:

Before the

Employer: Charter Communications, Inc.

DIVISION OF WORKERS' COMPENSATION

Additional Party: None

Department of Labor and Industrial

Relations of Missouri

Insurer: Lumbermens Mutual Casualty Co.

Jefferson City, Missouri

Hearing Date: September 18, 2012

Checked by: RJD/cs

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: March 14, 2002.
5. State location where accident occurred or occupational disease was contracted: Boone 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: Employee was on a 6' stepladder putting an item on the top shelf in the warehouse when he fell from the ladder.
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: Ribs, lungs, psyche, body as a whole.
14. Nature and extent of any permanent disability: 22.5 % permanent partial disability of the body as a whole.
15. Compensation paid to-date for temporary disability: $\ 1,993.68.
16. Value necessary medical aid paid to date by employer/insurer? $\ 22,812.53.
17. Value necessary medical aid not furnished by employer/insurer? None.

Employee: Rodney Roberts

1. Employee's average weekly wages: $\ 410.18.
2. Weekly compensation rate: $\ 273.45.
3. Method wages computation: Stipulation.

1. From Employer:

90 weeks of permanent partial disability benefits

1. Second Injury Fund liability: None. No claim was filed.

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:

Roger Brown

The evidentiary hearing in these cases (02-023192 and 04-125727) was held on September 18, 2012 in Columbia. Claimant, Rodney Roberts, appeared personally and by counsel, Roger Brown; Employer, Charter Communications, Inc., and Insurer, Lumbermens Mutual Casualty Co., appeared by counsel, Betsy Willer; the Second Injury Fund appeared by Assistant Attorney General David Zugelter in Injury No. 04-125727 only. The parties requested leave to file post-hearing briefs, which leave was granted. The cases were submitted on November 5, 2012. In Injury No. 02-023192, the hearing was held to determine the liability, if any of Employer-Insurer for permanent partial disability benefits or permanent total disability benefits. In Injury No. 04-125727 the hearing was held to determine the following issues:

1. Whether Employee, Rodney Roberts, sustained an accident arising out of and in the course of his employment with Charter Communications, Inc. on September 28, 2004;
2. If found to have been sustained, whether the work-related accident of September 28, 2004 was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
3. Whether Employer-Insurer shall be ordered to reimburse Claimant for any or all of the medical charges in question;
4. Whether Employer-Insurer shall be ordered to provide Claimant with additional medical treatment pursuant to Section 287.140, RSMo;
5. The liability, if any, of Employer-Insurer for permanent partial disability benefits or permanent total disability benefits; and
6. The liability, if any of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over these cases;
2. That, in both cases, venue for the evidentiary hearing is proper in Boone County;
3. That, in both cases, the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That, in both cases, Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. In Injury No. 02-023192, that Claimant's average weekly wage is $\ 410.18, resulting in a compensation rate of $\ 273.45;
6. In Injury No. 04-125727, that Claimant's average weekly wage is $\ 525.87, resulting in a compensation rate of $\ 350.58;
7. In Injury No. 02-023192, that Claimant, Rodney Roberts, sustained an accident arising out of and in the course of his employment with Charter Communications, Inc. on March 14, 2002;
8. In Injury No. 02-023192, that Employer-Insurer paid medical benefits of \22,812.53 and temporary total disability benefits of \ 1,993.69;
9. In Injury No. 04-125727, that Employer-Insurer has paid no benefits;
10. That, in both cases, the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein; and
11. That Lumbermens Mutual Casualty Co. fully insured the Missouri Workers' Compensation liability of Charter Communications, Inc. at all relevant times.

The evidence consisted of the testimony of Rodney Roberts, as well as the deposition testimony of Rodney Roberts and a recorded statement of Rodney Roberts; the narrative report and addendum of certified vocational counselor Phillip Eldred, as well as the testimony of Phillip Eldred; the testimony of Katherine Roberts; multiple narrative reports of Dr. Preston Brent Koprivica, as well as the deposition testimony of Dr. Koprivica; the deposition testimony of Dr. John D. Pro; the deposition testimony of Dr. Robert Burger; narrative report and deposition testimony of Dr. Russell Cantrell; narrative report and deposition testimony of Dr. Wayne Stillings; narrative report and deposition testimony of James M. England, Jr.; medical records; medical bills; certified records of the Missouri Division of Workers' Compensation.

On January 25, 2005, Claimant filed his CLAIM FOR COMPENSATION in Injury No. 02-023192, alleging injury to "ribs, back, neck" and described the accident of March 14, 2002 as "employee was climbing on a ladder in the course of his employment and fell from the ladder". Claimant alleged no disability prior to March 14, 2002.

Also on January 25, 2005, Claimant filed his CLAIM FOR COMPENSATION in Injury No. 04-125727, alleging injury to "body as a whole, back, head, neck" and described the accident of September 28, 2004 as "employee was sitting at work, his left side felt paralyzed, he experienced a massive headache and confusion". This claim also included a claim against the Second Injury Fund alleging permanent partial disability or permanent total disability. No amended claim has been filed for the alleged accident of September 28, 2004.

Claimant testified that his health was excellent prior to March 14, 2002. Claimant testified that the work accident of March 14, 2002 occurred as he was on the "next-to-top step" of a 6' step-ladder putting an item on the top shelf in the warehouse when he fell from the ladder. Claimant stated: "next thing I know I'm laying across the ladder". Claimant understood that his left side hit the ladder and broke some ribs. Claimant had punctured his lungs and was bleeding internally. Claimant did not know if he lost consciousness in the fall. The medical records do not indicate any loss of consciousness. Dr. Pro, a psychiatrist, testified that he believed Claimant sustained a concussion in the March 14, 2002 accident; this belief was apparently based upon Claimant's claim of post-injury amnesia, and not upon a loss of consciousness. None of the other physicians who testified believed that Claimant struck his head in the fall or lost consciousness. Claimant was hospitalized at University Hospital in Columbia. Claimant complained of right elbow pain, pain in this thoracic spine and left paraspinal and left chest pain. Claimant was diagnosed with left rib fractures and left pneumothorax. Dr. Koprivica opined that

Claimant sustained a 15\% permanent partial disability of the body as a whole as a result of the injuries he sustained in the March 14, 2002 accident. Dr. Cantrell opined that Claimant sustained an 8 % permanent partial disability of the body as a whole as a result of the injuries he sustained in the March 14, 2002 accident. Dr. Pro testified to his belief that Claimant developed a postconcussion syndrome and a chronic pain disorder as a result of the March 14, 2002 accident and that Claimant thus sustained a 30\% permanent partial disability of the body as a whole as a result of the March 14, 2002 accident.

It is noted here that Claimant is a very poor and inconsistent historian. Claimant testified at trial that he continued to work for Employer after recovering from the pheumothorax caused by the March 14, 2002