Robbie Gower v. Technical Plastics

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 05-135562

Employee: Robby Gower

Employer: Technical Plastics

Insurer: Fidelity \& Guaranty Insurance Co.

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 19, 2014, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Maureen Tilley, issued May 19, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of October 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Robby Gower

Injury No. 05-135562

Dependents: N/A

Employer: Technical Plastics

Additional Party: N/A

Insurer: Fidelity \& Guaranty Ins. Co.

Hearing Date: February 19, 2014

Checked by: MT/rmm

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of alleged accident or onset of alleged occupational disease? December 1, 2005.
5. State location where alleged accident occurred or alleged occupational disease contracted: Butler 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? See findings.
8. Did alleged accident or alleged occupational disease arise out of and in the course of the employment? No.
9. Was claim for compensation filed within time required by law? Yes.
10. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee testified that he was pushing a 1,500-pound Gaylord (a large container) when he slipped and fell to the ground. He stated he injured his back from this incident.
2. Did accident or occupational disease cause death? No.
3. Parts of body alleged to be injured by accident or occupational disease: Lumbar spine.
4. Nature and extent of any permanent disability: None.
5. Compensation paid to-date for temporary total disability: None.
6. Value necessary medical aid paid to-date by employer-insurer: None.
7. Value necessary medical aid not furnished by employer-insurer: See findings.
8. Employee's average weekly wage: $\ 429.29.
9. Weekly compensation rate: $\ 286.19.
10. Method wages computation: By agreement.
11. Amount of compensation payable: None.
12. Second Injury Fund liability: None.
13. Future requirements awarded: See findings.

On February 19, 2014, the employee, Robby Gower, appeared in person and with his attorney, Ronald Little, for a hearing for a final award. The employer was represented at the hearing by its attorney, Shelly Wilson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Employer was operating under and subject to the provisions of the Missouri Workers Compensation Act and liability was fully insured by Fidelity \& Guaranty Insurance Co.
2. Covered Employee: On or about December 1, 2005, Robby L. Gower was an Employee of Technical Plastics and was working under the Workers' Compensation Act.
3. Statute of Limitations: Employee's claim was filed within the time allowed by law.
4. Average Weekly Wage and Rate: Employee's average weekly wage was $\ 429.29 resulting in a weekly compensation rate for all purposes of $\ 286.19.
5. Medical Aid furnished by Employer/Insurer: None.
6. Temporary Disability paid by Employer/Insurer: None.

1. Accident: Did Employee sustain an accident arising out of and in the course of his employment on or about December 1, 2005?
2. Notice: Did Employer have notice of Employee's accident?
3. Medical Causation: Was Employee's injury medically causally related to his work accident?
4. Previously Incurred Medical Aid: Is Employee entitled to be reimbursed for the expense of his previously incurred medical aid in the total amount of $\ 201,894.80 ? Employer/Insurer dispute the authorization, reasonableness, necessity and causal relationship of this previously incurred medical a
5. Mileage under Section 287.140 RSMo.: Is Employee entitled to be reimbursed for his medical miles traveled in the total amount of $\ 301.39 ?

1. Future Medical Aid: Is Employee entitled to an award of future medical aid?
2. TTD: Is Employee entitled to temporary total disability benefits for the period December 23, 2005 - December 29, 2007 (105.29 weeks) for a total of \$30,131.71?
3. Permanent Disability: What is the nature and extent of Employee's disability?

Employee's Exhibits: The following exhibits were admitted into evidence, without objection, on behalf of Employee:

Exhibit A - 10/09/2012 IME Report from Dr. Thomas Musich (offered under Section 287.210.7 RSMo).

Exhibit B - Missouri Department of Corrections - Medical Records: 2/22/90 to 4/26/05.

Exhibit C - Haven Hills Medical Clinic - Medical Records: 10/31/05.

Exhibit D - Dr. Kimberly Schisler - Medical Records and Bills: 12/7/05 to 7/12/06.

Exhibit E - Poplar Bluff Regional Medical Center - Medical Records and Bills: 12/28/05 to 10/19/11.

Exhibit F - Bluff Radiology Group/Cape Radiology Group - Medical Records and Bills: 12/29/05 to 1/7/08.

Exhibit G - Dr. Kee Park - Medical Records and Bills: 12/29/05 to 3/16/06.

Exhibit H - St. Francis Medical Center - Medical Records and Bills: 12/29/05 to 1/2/06.

Exhibit I - St. Francis Home Medical Equipment - Medical Records and Bills: 1/2/06 to 10/26/06.

Exhibit J - Kneibert Clinic/Dr. W.H. Elliot - Medical Records and Bills: 10/31/06 to 9/5/08.

Exhibit K - Advanced Healthcare /Dr. Davis - Medical Records and Bills: 5/5/06 to 12/11/06.

Exhibit L - Tinsley Medical Clinic - Medical Records: 12/12/07.

Exhibit M - Cape Anesthesia Group - Medical Bills: 12/30/05.

Exhibit N - Letassy Pharmacy - Medical Bills: 3/13/06 to 4/12/06.

Exhibit O - East Side Discount Pharmacy - Medical Bills: 5/5/06 to 3/30/11.

Exhibit P - Key Drugs - Medical Bills: 4/8/06 to 12/11/07.

Exhibit Q - Kneibert Clinic Pharmacy - Medical Bills: 1/2/08 to 9/30/08.

Exhibit R - Unpaid Temporary Total Disability (chart).

Exhibit S - Unpaid Mileage (chart).

Exhibit T - Wage Statement.

Exhibit U - Attorney Contract.

Employer/Insurer Exhibits: The following exhibit was admitted into evidence, without objection, on behalf of Employer/Insurer:

Exhibit 1 - Deposition of David Lange, M.D. w/medical report and CV.

Employee testified that he is 45 years old. He attended high school through the $10^{\text {th }}$ grade and obtained his GED in 1988. Employee stated that he attended vocational school for hydraulics through the Missouri Department of Corrections. He also attended vocational school to obtain his CDL, which he obtained approximately 5 months ago. Employee testified that he was in the Coast Guard for one year, but was ultimately discharged due to his inability to adapt to life on a boat.

On direct examination, Employee testified that he was incarcerated from May 1998 through April, 2005 for distribution, delivery, and manufacture of a controlled substance. He also testified to serving $11 / 2$ years in prison in approximately 1990 or 1991 for auto theft. Further, Employee testified on direct examination that he has been incarcerated twice since December 2005. In late 2006 or early 2007, he was incarcerated for 30 to 40 days for parole violations. Employee was again incarcerated for 14 months in 2009 for parole violations due to noncompliance with his conditions of parole.

On cross examination, Employee testified that he was incarcerated in 1988 or 1989 for stealing. He admitted serving three years at that time. He further testified that he was incarcerated in the early 1990's for driving without a license.

Employee testified that he began working for Employer in May 2005. He denied any physical limitations at the time.

Employee testified that he experienced prior complaints with his back, including soreness and stiffness. He testified on direct examination that these complaints began in 2000 or 2001, when he was jumped in prison. He stated that, following that altercation, he experienced stiffness and soreness in his back, but never experienced any complaints of radiating pain. Employee testified that he did not receive medical treatment following the altercation. After the altercation, he would occasionally seek medical treatment in prison for complaints of stiffness and soreness in his back. He estimated that he sought treatment in prison for back complaints 5 to 10 times. He stated that he would be provided with Motrin and anti-inflammatory medication and that he would receive a "lay in" so that he could rest. He stated that his back always responded positively to this treatment.

On direct examination, Employee denied any problems with his back prior to his prison altercation. However, on cross examination, Employee testified that he had a back injury in 1994. He stated that he was helping his father build a house when he was struck in the back by a two-by-four. He admitted to wearing a brace for two to three months. He claimed to be unable to recall whether he saw a physician for this injury.

Employee testified on direct examination that he began working for Employer through a temporary service called Pro Staff, and then was hired directly by Employer. Employee testified

**Injury No. 05-135562**

He last worked on December 23, 2005. Employee described his work as heavy pushing and pulling, with heavy lifting. He claimed he was able to perform this work, including lifting up to 75 pounds, alone. He indicated that he never asked for help due to back complaints.

Employee testified that, in late September 2005 or early October 2005, he sought treatment with Dr. Varma due to stiffness in his back. He also complained of soreness in his back at that time. He was provided with pain medication and his symptoms resolved. He indicated that he never followed up with Dr. Varma.

Employee testified that he was injured at work on December 1, 2005. He described pushing a 1,500 pound Gaylord (a large container) when he slipped and fell to the ground. Employee speculated that he slipped in oil leaking from a machine. Employee testified he experienced immediate pain in his left hip, low back, and left leg. He indicated that none of his co-workers saw him fall. He testified that both of his supervisors asked him why he was limping and he advised them of his work injury, but that he finished his shift.

Employee further testified that, the day following his alleged injury, his pain complaints continued and he asked for a substitute to perform his job. At that point, he testified he was put in a lighter position by Employer.

Employee testified that he made an appointment to see Dr. Schisler the following week. Employee selected Dr. Schisler on his own. He stated that Dr. Schisler was not selected for him by Employer. He explained the delay in seeking treatment by stating that he thought he was experiencing his "usual symptoms" and did not know that he had injured himself "that badly." On direct examination, Employee testified that he advised Dr. Schisler about his fall at work as