Ricky Aufdenberg v. Drury Inns, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 08-115098

Employee: Ricky Aufdenberg

Employer: Drury Inns, Inc.

Insurer: Self-Insured

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 July 16, 2014. The award and decision of Administrative Law Judge Maureen Tilley, issued July 16, 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 $\qquad 19^{\text {th }} \qquad$ 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:

Employee: Ricky Aufdenberg

Injury No. 08-115098

Dependents: N/A

Employer: Drury Inns Inc.

Additional Party: Second Injury Fund (left open)

Insurer: TPA Gallagher Bassett Services

Hearing Date: April 16, 2014

Checked by: MT/rmm

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Section 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? December 16, 2008.
5. State location where accident occurred or occupational disease contracted: Atlanta, GA.
6. Was the above Employee an employee 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 employment? Yes.
9. Was Claim for Compensation filed within time required by law? Yes.
10. Was the employer insured by above insurer? Yes.
11. Describe work Employee was doing and how accident happened or occupational disease contracted: Employee was in the process of unloading a tractor trailer truck in Atlanta, Georgia, when he reached overhead to grab a box. A board on a pallet on which he was standing broke causing the Employee to fall backwards and strike his left shoulder on the side of the tractor trailer truck injuring his left shoulder.

1. The accident or occupational diseased cause death? No.
2. Parts of body injured by accident or occupational disease: Left shoulder.
3. Nature and extent of any permanent disability? See findings.
4. Compensation paid to date for temporary total disability: 4,292.81, representing 3 weeks of TTD at a rate of 700.77, for the period of December 23, 2008 through January 12, 2009. There was also 2,102.31 paid for 5 weeks of TPD at the rate of 438.10, for a total of $2,190.50 for the time period of January 13, 2009 through February 16, 2009.
5. Value of necessary medical aid paid to date by Employer-Insurer: $12,285.18.
6. Value of necessary medical aid not furnished by Employer/Insurer? 32,356.62.
7. Employee's average weekly wage: 1,077.05.
8. Weekly compensation rate: 717.32 for TTD and 404.66 for PPD.
9. Method of wage computation: By Stipulation.
10. Amount of compensation payable: See findings.
11. Second Injury Fund liability? N/A.
12. Future requirements awarded? None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: Chris Weiss.

A hearing was held in this case on the Employee's claim against Employer/Insurer on April 16, 2014. Employee, Ricky Aufdenberg ("Employee"), appeared in person and by his attorney, Chris N. Weiss. Employer, Drury Inns Inc., and Insurer, TPA/Gallagher Bassett Services, appeared by their attorney, Mark M. Anson. The Second Injury Fund is a party to this case but was not represented at the hearing and the claim against the Second Injury Fund is left open.

1. The Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was fully insured by TPA/Gallagher Bassett Services.
2. On or about the date of the alleged accident, the Employee was an employee of Drury Inns Inc., and was working under the Workers' Compensation Act.
3. On or about December 16, 2008, the Employee sustained an accident arising out of and in the course of his employment.
4. The Employer had notice of the Employee's claim.
5. The Employee's claim was filed within the time allowed by law.
6. The Employee's average weekly wage is $\ 1,077.05. His compensation rate for temporary total disability is $\ 717.32 and the compensation rate for permanent partial disability is $\ 404.66 and the compensation rate for temporary partial disability is $\ 438.10.
7. The Employer/Insurer provided medical aid at a cost of $\ 12,285.18.
8. The Employer/Insurer paid temporary total disability benefits from December 23, 2008 through January 12, 2009 in the amount of $\ 2,102.31 and temporary partial disability benefits from January 13, 2009 through February 16, 2009 in the amount of \$2,190.50.

1. Medical causation: Whether Employee's injury was medically causally related to accident or occupational disease.
2. Previously incurred Medical Aid: Whether the Employee incurred medical aid that was causally related to the accident of December 16, 2008, whether or not such medical aid was authorized, whether or not such medical aid was reasonable and whether or not such medical aid was necessary.
3. Mileage: There is an issue as to whether Employee is entitled to mileage under Section 287.140 RSMo in the amount of $\ 812.00 for 1,624 miles for his seven trips to see Dr. Mark Miller.
4. Temporary total disability: Whether Employee is entitled to additional temporary total disability benefits of $\ 19,367.64 representing January 10, 2012 through July 17, 2012. (27 weeks $\times 717.32=19,367.64$ )
5. Permanent partial disability.

The following exhibits were offered and admitted into evidence:

A. Medical records of Dr. Ira Scott Taylor - 12/19/08 - 02/13/09 and DOT Physical of 02/27/09 by Richard Kinsey, FNP.

B. St. Francis Medical Center Records - Physical Therapy records 01/06/09 - 02/23/09.

C. Cape Imaging MRI w/o contrast 01/02/09.

D. Professional Imaging MRI with contrast 12/30/10.

E. Deposition of Dr. Shawn Berkin.

F. The Orthopedic Center of St. Louis bill (Dr. Mark Miller - \$25,463.37).

G. Timberlake Surgery Center Records and bill (01/10/12 - \$24,213.73).

H. Premier Anesthesia bill (\$1,620.00).

I. Southeast Missouri Hospital Healthpoint Rehab (Physical Therapy Evaluation 01/12/12).

J. Southeast Missouri Hospital Healthpoint Rehab (Physical Therapy records 01/12/12 06/26/12).

K. Southeast Missouri Hospital bill for physical therapy of (01/12/12 - 06/26/12

L. Deposition of Dr. Mark Miller.

1. Report of injury to employer.
2. RTW report from Regional Primary Care.
3. Certified records of Dr. Miller.
4. Deposition of Dr. Lehman.
5. Deposition of Dr. Nogalski.
6. Records of Anthem - Blue Cross.
7. Deposition of custodian of records of Anthem - Blue Cross.
8. Certified copy of e-magazine article 1.
9. Certified copy of e-magazine article 2.
10. Certified copy of e-magazine article 3.
11. Surveillance video on DVD.
12. Written surveillance report of investigator.
13. D.O.T. Exam.
14. H.R. - Employment Forms.

The Employee is 55 years of age, married for 34 years and has 3 sons. He graduated from high school in 1976 and had no further education or training after that. Following graduation from

high school he worked on the family farm with his father. The family farm at that time consisted of approximately 3000 acres and included grain and cattle farming. The family farm is listed as a Century Farm which is recognized by the University of Missouri Extension as a farm that has been in the family for more than 100 years.

The Employee's father was killed in 1999 in a farm accident. Following that the Employee lost focus in regard to his farming and was referred to Drury Inns Inc. by a brother-in-law to possibly drive a truck. He had not ever driven a tractor trailer truck before but took the tests and passed them and started to work for the Employer in March of 2003. He was employed as a truck driver who made deliveries to different properties including hotels owned by his employer in the midwest. Depending on where the delivery was he would make two to three trips per week. He was paid based upon an hourly rate, plus mileage and by the drop. A drop at a hotel paid more than a drop at a construction site for the reason that the workers at the construction site unloaded the tractor trailer truck for the Employee. His gross pay at the time of the date of accident was approximately $\ 1,100.00 per week.

The Employee hauled supplies for the different hotels owned by the Employer. This could include heavy items such as 70 pound soap pails or light items such as boxes of light bulbs. The loads could include furniture, mattresses, carpet or anything else needed by a motel. All of the boxes or items were marked with a number and sticker and as the Employee unloaded the truck those items were checked off. Employee drove approximately 80,000 to 100,000 miles per year. He took short trips such as to St. Louis or across the country.

The Employee received annual raises after his annual reviews. The Employee testified that the last page of Employer's Exhibit \#16 was a copy of his 2008 Annual Review indicating that he performed at a level 3 on a scale of 1 to 4 which indicates that the Employee achieved excellent results in many areas of his position and had a few areas that he was considered as meeting expectations but overall performs at an above-average level. The Employee was not aware if any truck driver had ever achieved a 4 rating. The Employee testified that during his employment he never received any speeding tickets, traffic citations, log book violations and all of his physicals for his D.O.T. examinations were okay.

The Employee remained involved in farming after going to work with Drury. He testified that the farm that he lives on consists of approximately 340 acres and that he had within the last year or two picked up an additional 400 to 500 acres so that he was farming roughly 900 to 1000 acres. His sons assist on the farm. Employee testified that his farming over the years had incorporated the latest technology when it was available to lessen the load and physical demands of farming. When the Employee first started farming the heaviest items that they would pick up and/or carry would be a hay bale. They no longer carry hay bales, but farm the hay field and produce big round bales which are mechanically hauled by a tractor. The Employee's current heaviest load is picking up sacks of seed corn, but he testified that he has gotten away from that by purchasing a bulk seed container to load his planter. A lot of his farming is done mechanically or by pushing buttons.

The Employee testified he was never considered an athlete and is right-handed.

Employee testified in regard to Employer's Exhibits \#10, 11 and 12. Employer's Exhibit 10 is a copy of an article from Commercial Agriculture in the summer of 2