Landon Sterling v. Mid America Car, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-098440

Employee: Landon Sterling

Employer: Mid America Car, Inc.

Insurer: Missouri Employers Mutual Insurance Company

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 April 7, 2014. The award and decision of Administrative Law Judge Lawrence G. Rebman, issued April 7, 2014, 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 $16^{\text {th }}$ 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:

Employee: Landon Sterling

Injury No. 11-098440

Employer: Mid America Car, Inc.

Insurer: Missouri Employers Mutual Insurance Company

Additional Party: N/A

Hearing Date: February 6, 2014

Checked by: LGR/pd

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: May 12, 2011
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson 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 welding and burned his elbow.
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 upper extremity
14. Nature and extent of any permanent disability: 15 % permanent partial disability body to the right elbow at the 210 -week level

1. Compensation paid to date for temporary disability: None
2. Value necessary temporary disability not furnished by Employer/Insurer: 4 weeks $x \$ 562.24= \ 2,248.97
3. Value necessary medical aid paid to date by Employer/Insurer: $\ 18,953.16
4. Value necessary medical aid not furnished by Employer/Insurer: $\ 0
5. Value for disfigurement: 4 weeks $x \$ 418.58=\ 1,674.32
6. Employee's average weekly wages: $\ 843.32
7. Weekly compensation rate: $\$ 562.24 / \ 418.58
8. Method wages computation: By stipulation

1. Amount of compensation payable:

Permanent partial disability compensation payable: 15 percent permanent partial disability body to the right elbow at the 210 -week level -31.5 weeks $x \$ 418.58=\ 13,185.27.

Temporary total disability payable: 4 weeks $x \$ 562.24=\ 2,248.97

Disfigurement: 4 weeks $x \$ 418.58=\ 1,674.32

1. Future requirements awarded: N/A

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent in favor of John McKay, Claimant's attorney, for necessary legal services rendered.

On February 6, 2014, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, Landon Sterling, appeared in person and with counsel, John McKay. The Employer and its Insurer appeared through counsel, Jeff Stigall.

The parties stipulated to the following:

1) that the Employer, Mid America Car, Inc., was an employer operating under and subject to the provisions of Missouri Workers’ Compensation Law on May 12, 2011 and was fully insured by Missouri Employers Mutual Insurance Company; 2) that Landon Sterling was its employee and working subject to the law in Kansas City, Jackson County, Missouri; 3) that Employee sustained an accident or occupational disease arising out of and in the course and scope of his employment; 4) that Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law; 5) that Employee’s average weekly wage was $\ 843.32 resulting in a compensation rate of $\ 562.24 for temporary total disability and $\ 418.58 for permanent partial disability compensation; 6) that the Employer has paid no temporary total disability compensation but subsequent to the filing of the claim paid medical of $\ 18,953.16 and agrees to hold harmless Claimant for any unpaid medical bills.

The issues to be resolved by this hearing are as follows:

1) Whether the Employer and its Insurer are liable for permanent partial disability; 2) Whether the Employer and Insurer are liable for unpaid temporary total disability; 3) Whether the Employer and Insurer are liable for disfigurement; and

4) Whether the Employer and Insurer are liable for the attorney lien and attorney's fees for the medical bills which were denied and unpaid at the time the Claim for Compensation was filed.

The following Claimant's exhibits were admitted into evidence without objection:

Exhibit A North Kansas City Hospital records

Exhibit B Centerpoint Medical Center records

Exhibit C North Kansas City Hospital bills (5/17/11 to 5/25/11): \35,715.07

Exhibit D Northland Hospital bills: \quad \ 1,010.00

Exhibit E St. Luke's Hospital Physician bills: $\quad \ 826.00

Exhibit F Northland Anesthesiology bills: $\quad \ 680.00

Exhibit G Northland Radiology bills: $\quad \ 231.00

Exhibit H Dr. Koprivica May 7, 2012 medical report

Exhibit I Claim for Compensation filed December 13, 2011

Exhibit J Answer filed 1/4/12

Exhibit K 1/10/12 certified mail letter with return receipt for delivery 1/13/12 to counsel for employer and insurer

Exhibit L 1/13/12 Deposition Notice

Exhibit M 2/15/12 letter to counsel for employer and insurer

Exhibit N 3/9/12 certified mail letter with return receipt for delivery 3/13/12 to counsel for employer and insurer

Exhibit O Employer and insurer proof of payment of $\ 38,462.07 work comp bills for the discounted amount of $\ 18,953.16 with dates of payment from 3/30/12 to $7 / 31 / 12$ as listed in the exhibit

Exhibit P Stipulation: 11/8/12 and 1/8/13 letters

Exhibit Q Attorney-Client Contract

Exhibit R Claimant Counsel's Affidavit and Trial Brief

Exhibit S 6/19/12 certified letter to counsel for employer/insurer

Exhibit T 6/25/12 file-stamped Notice of Report

Exhibit U 9/29/11 North Kansas City Hospital collection letter

Exhibit V 2/7/12 Executive Financial Consultants, Inc. collection fax.

The Employer and Insurer did not call any witnesses and did not offer any exhibits.

Based on the above exhibits and the testimony of the witness, this division makes the following findings:

Mr. Sterling testified to the following facts:

On May 12, 2011 during the course and scope of his employment by Mid America Car, Inc., Landon Sterling was welding when he burned his arm on some hot welding material called slag. Mr. Sterling did not think much of the burn and reported the burn to his employer. He was treated with peroxide and continued working.

Mr. Sterling testified that at the burn site he developed a blister and popped it. Then a few days later he developed swelling and thought that his symptoms was similar to a spider bite he had had years earlier. On May 17, 2011, he was having difficulty working because his arm swelled up so much that he could hardly bend it. He again reported his condition to his employer, and was instructed to keeping working. Mr. Sterling condition deteriorated to the point where he began to vomit, Mr. Sterling was then seen in the Emergency room at North Kansas City Hospital. He was treated for an infection including surgical aspiration of the elbow infection 9 days with IV antibiotics (Ex. A, pp. 20, 44). The medical bills total \$38,462.07.

Mr. Sterling testified that before the burn injuries to his right upper extremity that he did not have any disabilities or restrictions. He testified that he missed work for a combined total of 4 weeks from mid-May until mid-June 2011. He requested an early release from his doctors to go back to work. Landon Sterling testified that presently the right arm and elbow is extremely sensitive. At times a gentle bump feels like he has hit his crazy bone. At other times he experiences intermittent sharp stabbing pain. The right upper extremity is weaker than before the burn injuries and hospitalization. There is a disfiguring scar that makes the skin and tissue in the elbow tighter.

Dr. Brent Koprivica medical report dated May 7, 2012 was admitted into evidence. Dr. Koprivica rated the right upper extremity at 15 % permanent partial disability at the elbow or 210-week level. Ex. H, p. 10. Dr. Koprivica further opined that the burn injury of May, 2011 was the direct, proximate, and prevailing factor in Mr. Sterling's development of severe cellulitis of the right elbow along with secondary infected olecranon bursitis which required a surgical olecranon bursectomy (Ex. H, p. 8). Dr. Koprivica's medical examination found ongoing residual dysesthesias in the right elbow area from scaring along with loss of strength (Ex. H, p. 8). Dr. Koprivica reports that both the medical care and treatment were reasonable, necessary and the direct result of the burn injury of May, 2011 and that the medical bills of $\ 38,462.07 were medically reasonable and a direct necessity of the burn injuries at work (Ex. H, p. 9). Dr. Koprivica further opined that Mr. Sterling was temporarily totally disabled for 4 weeks from approximately May 17, 2011 until mid-June of 2011 due to the burn injuries at work (Ex. H, p. 9).

North Kansas City contacted the employer May 23, 2011 and requested payment for the medical treatment, including the future surgery (Ex. A, pp. 169, 170). The employer and insurer denied the claim (Ex. A, pp. 169, 170). Accordingly, Landon Sterling retained counsel (Ex. Q). A Claim for Compensation was filed December 13, 2011 alleging unpaid medical bills (Ex. I).

January 4, 2012 the employer and insurer filed an answer in which they denied liability for the claim including the medical bills (Ex. J).

January 10, 2012 by certified mail, counsel for claimant provided copies of over $\ 35,000.00 in unpaid bills (Ex. K).

January 31, 2012, the employer and insurer deposed Mr. Sterling (Ex. L).

February 15, 2012, Mr. Sterling offered a compromise settlement of $\ 46,053.60 on the condition that the case was settled by April 16, 2012 before expert witness fees were incurred (Ex. M).

March 7, 2012, by phone, counsel for claimant verbally confirmed with Jeff Stigall that counsel for claimant was claiming a 25 % attorney's lien on the $\ 38,462.07 unpaid medical bills for Mr. Sterling's work injuries (Ex. R, p. 2).

March 9, 2012, by certified letter to Jeff Stigall, counsel for claimant gave formal written notice pursuant to R.S.MO. 484.140 that he was claiming a 25 % lien on all sums paid including payment for the unpaid medical bills (Ex. N; Ex. R, p. 2).

April 16, 2012, the