Michael Curbow v. Hillhouse Services, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-006952

Employee: Michael Curbow

Employer: Hillhouse Services, Inc. (Settled)

Insurer: Missouri Employers Mutual Insurance (Settled)

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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated December 5, 2013. The award and decision of Administrative Law Judge Karen Wells Fisher, issued December 5, 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 $3^{\text {rd }}$ day of July 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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: January 11, 2010.
5. State location where accident occurred or occupational disease was contracted: Verona, Lawrence County, Missouri.
6. Was above Claimant in the 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 Claimant was doing and how accident occurred or occupational disease contracted: Claimant slipped and fell on ice at work, sustaining an injury to his low back.
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: Low back (lumbar spine).
14. Nature and extent of any permanent disability: 12.5 % body as a whole (400-week level).
15. Compensation paid to-date for temporary disability: $\ 7,381.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 7,109.95
17. Value necessary medical aid not furnished by employer/insurer? N/A.
18. Claimant's average weekly wages: $\ 634.46

1. Weekly compensation rate: $423.50 / $422.97
2. Method wages computation: By agreement

1. Amount of compensation payable:

Employer previously settled.

1. Second Injury Fund liability: YES.

14.5 weeks of permanent partial disability from the Second Injury Fund

TOTAL: $6,133.07

1. Future requirements awarded: None.

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:

Larry Pitts

Claimant: Michael Curbow

Injury No. 10-006952

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Hillhouse Services, Inc.

Befor the

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: $\quad \mathrm{N} / \mathrm{A}

Jefferson City, Missouri

Hearing Date: July 25, 2013

Checked by: \qquad$

The parties presented evidence at a final hearing on July 25, 2013. Four issues were presented for determination:

1) Whether there was an "accident" under the Law on January 11, 2010.

2) Whether the claimed accident of January 11, 2010 caused Claimant to sustain an injury to his low back.

3) Whether Claimant sustained any permanent disability as a consequence of the claimed accident of January 11, 2010, and, if so, the nature and extent of any permanent disability.

4) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial or permanent total disability compensation.

Attorney Larry Pitts appeared for Claimant. Assistant Attorney General Stephen Freeland appeared for the Second Injury Fund. The employer, Hillhouse Services, Inc., previously settled with Claimant and did not participate in the hearing. The parties stipulated that the average weekly wage at the date of injury was sufficient to yield a compensation rate of $\ 422.97 for permanent partial disability and a compensation rate of $\ 423.50 for total disability benefits.

The evidence presented consisted of the hearing testimony of Claimant, Michael Curbow, along with the following exhibits that were received and admitted into evidence:

A. Report of Injury by Employer.

B. Notice of Termination of Compensation.

C. Claim for Compensation: Injury Number 10-006952.

D. Stipulation for Compromise Settlement with Employer/Insurer.

E. June 14, 2011 Deposition of Michael Curbow.

F.Certified Educational Records.

G. Deposition of Dr. Shane Bennoch (with associated exhibits).

H. Deposition of Phillip Aaron Eldred (with associated exhibits).

I. Certified Medical Records (Tabs 1-10).

J. Certified Medical Records--typed--from Dr. Watts' Office (January 11, 2010 visit).

Second Injury Fund Exhibit I: Deposition of Dr. Allen Parmet (with associated exhibits).

Claimant testified at the hearing. Claimant was born on June 21, 1961 and was 52 years old on the date of hearing. Claimant currently resides in Clever, Missouri, and is unemployed at present. Claimant's last job was for Hillhouse Services, Inc., the Employer in this case. Claimant's work duties consisted of operating a dump truck and pump truck. With the dump truck Claimant would haul dirt, gravel, and rock. With the pump truck Claimant would vacuum out cow lots, car washes, and septic tanks. This job required Claimant to routinely lift up to 80-90 pounds, particularly when removing sewer lids or dragging hoses from the pump truck. Claimant worked this job full-time, full-duty for approximately seven years prior to the claimed January 11, 2010 work injury.

Prior to working for Hillhouse, Claimant worked at Bailey's Billiards in Marionville, Missouri. Claimant was responsible for hand-sanding and staining billiard tables. Claimant said that the work was repetitive and hand-intensive. Claimant testified that he would normally lift between 50-60 pounds while moving items such as buckets of lacquer and pool table legs. Claimant testified that he was able to do this job full-time, full-duty for one year before leaving for better pay with Hillhouse.

Prior to working for Bailey's, Claimant worked for a powerline company for almost 15 years. In this job Claimant drove trucks and operated a digger to set powerline poles. Claimant testified that this was a physically-demanding job, stating that he would often lift up to 100 pounds. Claimant's work required him to sit down for extended periods of time to operate the trucks and machinery, but it also forced him to be on his feet a lot. Claimant further testified that, because this was dangerous work, he was required to have a good understanding of how the machinery worked. He left this powerline job for better pay with Bailey's.

Before joining the powerline company, Claimant was self-employed for a period of time. Claimant operated his own tree-topping/firewood-cutting business called Mike's Tree Service. This job required Claimant to both sit and be on his feet. The work was very strenuous, requiring him to lift between 125 and 150 pounds. Claimant would have three to four Claimants working under him, and he took responsibility for finding clients. He left this job for better pay with the powerline company.

Prior to his self-employment in the tree-topping/firewood cutting business, Claimant worked for his dad as a sawmill laborer, a job that he had done since high school. Claimant cut railroad ties, carried slabs, shoveled sawdust, operated chain saws, and moved logs and planks.

Claimant testified that this was a very physically-demanding job, which required lifting of upwards to 100 pounds. Claimant would sit to operate machinery, but the job also required him to be on his feet a lot.

Prior to January 11, 2010, Claimant suffered injuries and/or medical conditions that caused him to present with preexisting permanent partial disability, namely injuries to the following:

Left wrist: Claimant injured his left hand, which was his dominant upper extremity, when a horse that he was riding rolled on top of him and crushed his left hand under the saddle horn. As a result, Claimant required two surgeries to his left hand in 1988. Claimant testified that he has had left hand problems every day thereafter. Claimant testified that his left hand is sensitive to cold, that it becomes stiff and numb, and that it can ache to the point that he cannot use it for the rest of the day. Claimant testified that he avoids anything that would vibrate or jar the left hand.

Low back: Claimant testified that he had persistent low back pain prior to January 11, 2010. Although actual medical treatment started in 1989, Claimant testified that he had been experiencing low back pain for years prior to that time. In the years leading up to January 11, 2010, Claimant treated with multiple physicians for his low back. Claimant received injections into his low back, but these injections only provided minimal/temporary relief. Claimant underwent physical therapy, received shock treatment, and tried stretching and hot/cold packs. Claimant often treated with his personal chiropractor, Dr. John Watts. Claimant would stretch out on the chiropractic table and have a wheel run over his back. Claimant also tried whole body adjustments. At times, the pain in his back would cause him to miss one to two days of work at a time. Claimant said that it was difficult to lift heavy objects and that sometimes he would have to stop in the middle of lifting just to keep from falling over. Claimant testified at hearing that frequently he would have to get help at work to move heavier objects. Claimant underwent multiple MRIs prior to January 11, 2010, which repeatedly revealed bulges/herniations at L5-S1. Claimant received multiple surgical consultations, but was deemed not to be a surgical candidate due to his weight.

Claimant testified that on January 11, 2010 he sustained an injury by accident, which arose out of and in the course and scope of his employment with his employer, Hillhouse Services, Inc. Claimant testified that he arrived at work at 6:20 a.m. that morning to pick up his pump truck. From there he was supposed to drive his truck to a factory in Monett, Missouri. Claimant testified that while getting his truck he slipped on an icy concrete pad, his feet went out

from under him, and he landed on his tailbone. Claimant went ahead and took the truck out on the route but testified that, when he tried to back the truck up, he could not get his feet onto the peda