Ricky Haskins v. Board of Police Commissioners of Kansas City, Missouri

Nature and extent of permanent disability resulting from the August 2006 work injury

The administrative law judge determined that employee is permanently and totally disabled as a result of the work injury he sustained on August 21, 2006. We disagree. There is no expert medical or vocational testimony on this record assigning permanent total disability to the August 2006 work injury, nor did any of the treating physicians opine that employee's August 2006 work injury, considered in isolation, render employee unable to work. After that injury, the treating physicians returned employee to full duty work without any physical restrictions. Employee's supervisor assigned him to a patrol car rather than a motorcycle, but otherwise, employee performed his normal duties as a traffic police officer for employer after returning to work.

The administrative law judge made a factual finding that employee took a number of sick days after the August 2006 work injury, relying upon notes to that effect by the treating physicians, Drs. Wheeler and Cantrell. But at the hearing before the administrative law judge, employee did not provide any testimony to establish the timing or extent of the sick time he took after the August 2006 injury, nor did he provide any testimony to explain why he took sick time. Obviously, an employee may take sick time for many reasons that have little or nothing to do with whether the employee is capable of competing for work in the open labor market. We do not find the comments regarding sick time in the medical records to be sufficiently specific or persuasive for purposes of supporting any factual findings regarding the timing or extent of sick time employee took following the August 2006 work injury, nor do we find the comments particularly persuasive with regard to the issue of the nature and extent of permanent disability employee sustained as a result of that injury.

The courts have consistently declared that the question of the nature and extent of permanent disability resulting from a work injury is a factual one within the "unique province" of this Commission to decide. See, e.g., ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007). We find that the nature and extent of employee's permanent disability resulting from the work injury of August 21, 2006, amounts to a 15\% permanent partial disability of the left shoulder at the 232-week level, and a 15\% permanent partial disability of the body as a whole referable to the cervical spine. This amounts to 94.8 weeks of permanent partial disability. At the stipulated rate of $\ 376.55, we conclude that employer is liable for $\ 35,696.94 in permanent partial disability benefits.

We modify the award of the administrative law judge as to the issue of the nature and extent of permanent disability employee sustained as a result of the work injury on August 21, 2006. Employer is not liable for permanent total disability benefits. Rather, employer is liable for $\ 35,696.94 in permanent partial disability benefits.

The award and decision of Administrative Law Judge Lawrence Rebman, issued April 15, 2014, is attached hereto and incorporated by this reference to the extent not inconsistent with our findings, conclusions, decision, and modifications herein.

This award is subject to a lien in favor of Jerry Kenter, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of December 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Ricky Haskins

Injury No: 06-077052

Dependents: N/A

Employer: Board of Police Commissioners of Kansas City, Missouri

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

Insurer: Self-Insured

Hearing Date: November 21, 2013

Checked by: LGB/pd

Briefs Submitted: January 13, 2014

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: August 21, 2006
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: Mr. Haskins was riding a police motorcycle near the Crown Center Hotel and shopping area in Kansas City when a driver unexpectedly made a left turn in front of him resulting in a collision and throwing the employee off the motorcycle.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Ricky Haskins

1. Did accident or occupational disease cause death? No
2. Part(s) of body injured by accident or occupational disease: Body as a whole referencing the cervical spine and left shoulder
3. Nature and extent of any permanent disability: 15 % to the left shoulder, and permanent total to the body as a whole, referencing the cervical spine
4. Compensation paid to date for temporary total disability: $\ 14,377.43
5. Value necessary medical aid paid to date by employer/insurer? $\ 51,075
6. Value necessary medical aid not furnished by employer/insurer? $\ 0
7. Employee's average weekly wages: $\ 1,099.16
8. Weekly compensation rate: $\$ 718.87 / 376.55$
9. Method wages computation: By stipulation

1. Second Injury Fund liability: None
2. By the Employer:

Permanent total Disability at $\ 718.87 per week commencing August 21, 2006 and continuing for the remainder of Mr. Haskins life.

To pay for medical bills incurred in the amount of $\ 7,805.43.

1. Future requirements awarded:

The Employer shall provide such medical care as may be reasonably required in order to cure and relieve Mr. Haskins from the effects of his injuries pursuant to Sec. 287.140 R.S.Mo.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of Jerry Kenter for necessary legal services rendered to the claimant:

Employee: Ricky Haskins Injury No: 06-077052 Dependents: $\quad \mathrm{N} / \mathrm{A}$ Employer: Board of Police Commissioners of Kansas City, Missouri Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund Insurer: Self-Insured Hearing Date: November 21, 2013 Checked by: LGB/pd Briefs Submitted: January 13, 2014

On November 21, 2013, the Parties appeared for a hearing for a permanent partial disability award. The case was tried with Injury Number 07-094608 for an accident of September 27, 2007 wherein the employee seeks permanent total disability payments. Separate opinion are entered in each case. The Division had jurisdiction to hear this case pursuant to Sec. 287.110 R.S.Mo. The employee, Ricky Haskins, appeared in person and with counsel, Jerry Kenter. The employer appeared with counsel, Assistant City Attorney, Anthony Bush, the Second Injury Fund appeared with counsel, Assistant Attorney General Richard Wiles.

The parties stipulated that on or about August 21, 2006, the parties were operating subject to the Missouri Workers’ Compensation Law and:

1) That both Employer and Employee were operating under and subject to the Missouri Workers’ Compensation Law; 2) That Ricky Haskins was an employee of the Kansas City, Missouri Police Department; 3) That Ricky Haskins sustained an accident arising out of and in the course of his employment on August 21, 2006; 4) That a timely Claim for Compensation was filed; 5) That the Employer had notice of the injury; 6) That the Claim for Compensation was filed within the time prescribed by law; 7) That the Claimant’s average weekly wage was $\ 1,099.16, resulting in a temporary total disability rate of $\ 718.87 and a permanent partial disability rate of $\ 376.55. 8) That temporary total disability benefits have been paid by the Employer in the amount of $\ 14,377.43 representing 8 weeks; and

9) That medical aid has been furnished by the Employer in the amount of $\ 51,075.00.

The parties requested the Division determine:

1. The nature and extent of any permanent partial disability sustained by the injured employee;
2. The liability of the Second Injury Fund; and
3. The employer's liability for unpaid medical bills.

Claimant testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

Exhibit No. A - Medical Records -Vol I tabs 1-2; Vol 2 Tabs 3-10; Vol 3 Tabs 11-23

Exhibit No. B - Report of James Stuckmeyer, M.D. dated 2/12/2012

Exhibit No. C - Report of James Stuckmeyer, M.D. dated 5/21/2012

Exhibit No. D - Reports of Terry Cordray - Rehabilitation Expertise LLC dated 04/ 21/2011 and 08/15/2012

Exhibit No. E - Report of Michelle Sprecker dated 7202011

Exhibit No. F - Deposition of Michelle Sprecker wi