Albert Brown v. City of Columbia

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-049932

Employee: | Albert Brown |

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 October 30, 2014, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued October 30, 2014, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $17^{\text {th }}$ day of June 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Albert Brown

Injury No. 11-049932

Dependents:

Employer: City of Columbia

Insurer: (Self-insured)

Additional Party: Second Injury Fund

Hearing Date: August 18, 2014

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/njp

1. Are any benefits awarded herein? No.
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: Alleged as June 4, 2011.
5. State location where accident occurred or occupational disease was contracted: Alleged as Boone 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? No.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee alleges he sustained an episode of heat exhaustion.
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: N/A.
14. Nature and extent of any permanent disability: N/A.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? $\ 70.00.
17. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: N/A.
2. Weekly compensation rate: N/A.
3. Method wages computation: N/A.

Employer liability:

No benefits awarded. The claim against Employer is denied in full.

Second Injury Fund liability:

No benefits awarded. The claim against the Second Injury Fund is denied in full.

Employee: Albert Brown

Injury No. 11-049932

Dependents:

Employer: City of Columbia

Insurer: (Self-insured)

Additional Party: Second Injury Fund

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

These three cases (Injury Nos. 09-046265, 10-063415, and 11-049932) were consolidated for evidentiary hearing. The evidentiary hearing was held in these cases on August 18, 2014 in Columbia. Claimant, Albert Brown, appeared personally and by counsel, Todd Werts. Employer, City of Columbia, appeared by counsel, Amanda Pope. The Second Injury Fund appeared by counsel, Assistant Attorney General Brian Herman. The parties requested leave to file posthearing briefs, which leave was granted, and the case was submitted on September 12, 2014.

In Injury No 09-046265, the hearing was held to determine the following issues:

1. Whether the accident or occupational disease of June 23, 2009 was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. Employer's liability, if any, for permanent partial disability benefits; and
3. Second Injury Fund's liability, if any, for permanent partial disability benefits.

In Injury No. 09-046265, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over the case;
2. That venue for the hearing is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, $\S 287.430$;

1. That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;
2. That Employee Albert Brown sustained an accident or occupational disease arising out of and in the course of his employment with the City of Columbia on June 23, 2009;
3. That Claimant's average weekly wage is $\ 359.09, and compensation rate is $\ 239.39
4. That the notice requirement of $\S 287.420$ is not a bar to the claim for compensation;
5. That the City of Columbia was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times; and
6. That Employer paid $\ 1882.75 in medical benefits and $\ 118.15 in temporary total disability benefits.

In Injury No 10-063415, the hearing was held to determine the following issues:

1. Whether the accident or occupational disease of August 10, 2010 was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. Claimant's average weekly wage and compensation rate;
3. Employer's liability, if any, for permanent partial disability benefits; and
4. Second Injury Fund's liability, if any, for permanent partial disability benefits.

In Injury No. 10-063415, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over the case;
2. That venue for the hearing is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, $\S 287.430$;
4. That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;

1. That Employee Albert Brown sustained an accident or occupational disease arising out of and in the course of his employment with the City of Columbia on August 10, 2010;
2. That the notice requirement of $\S 287.420$ is not a bar to the claim for compensation;
3. That the City of Columbia was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times; and
4. That Employer paid $\ 5779.45 in medical benefits and $\ 794.29 in temporary total disability benefits.

In Injury No 11-049932, the hearing was held to determine the following issues:

1. Claimant's average weekly wage and compensation rate;
2. Whether Claimant sustained an accident or occupational disease arising out of and in the course of his employment with the City of Columbia on June 4, 2011;
3. If found to have been sustained, whether the accident or occupational disease of June 4, 2011 was the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
4. Whether Employer shall be responsible for the payment of any or all of the charges for past medical services to the Veterans' Administration in the claimed amount of $\ 752.04;
5. The liability, if any of Employer for permanent partial disability benefits or permanent total disability benefits; and
6. Second Injury Fund's liability, if any, for permanent partial disability benefits or permanent total disability benefits.

In Injury No. 11-049932, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over the case;
2. That venue for the hearing is proper in Boone County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, $\S 287.430$;

1. That both Employer and Employee were covered by the Missouri Workers' Compensation Law at all relevant times;
2. That the notice requirement of $\S 287.420$ is not a bar to the claim for compensation;
3. That the City of Columbia was an authorized self-insured for Missouri Workers' Compensation purposes at all relevant times; and
4. That Employer paid $\ 70.00 in medical benefits and no temporary disability benefits.

The evidence consisted of the testimony of Claimant, Albert Brown, and the following exhibits:

A. Curriculum Vitae of Dr. David Volarich;

B. July 12, 2011 Report of Dr. David Volarich;

C. February 21, 2012 Addendum Report of Dr. David Volarich;

D. Deposition of Dr. David Volarich;

E. Curriculum Vitae of Phillip Eldred;

F. March 25, 2013 Report of Phillip Eldred;

G. Deposition of Phillip Eldred;

H. Medical Records from Boone Hospital Center;

I. Medical Records from the Work Center;

J. Medical Records from University Hospital and Clinics;

K. Medical Records from University Hospital provided by Employer/Insurer;

L. Occupational Medicine of Mid-Missouri provided by Employer/Insurer;

M. Medical Records from Boone Hospital Center provided by Employer/Insurer;

N. Medical Records from Department of Veterans Affairs I;

O. Medical Records from Department of Veteran Affairs II;

P. Medical Records from Department of Veterans Affairs.

1. Curriculum Vitae of Dr. Russell Cantrell;
2. Report dated July 17, 2013 of Dr. Russell Cantrell;
3. Report dated August 30, 2013 of Dr. Russell Cantrell;
4. Deposition of Dr. Russell Cantrell with attached exhibits;
5. Deposition of Albert Brown, pp 1- 16, 36-104;
6. Wage information for Date of Injury June 23, 2009;
7. Wage information for Date of Injury August 10, 2010;
8. Wage information for Date of Injury June 4, 2011.

These cases all involve alleged incidents of heat exhaustion.

Albert Brown ("Claimant") was born on August 27, 1955 in Newport, Arkansas. He graduated from Soldan High School in St. Louis in 1973. He was in the USMC for over two years and was honorably discharged. Claimant worked in a GM auto assembly plant in St. Louis for 5-7 years, then worked for ten years at the U.S. Army Publication Center in St. Louis. After relocating to Columbia, Claimant worked for two years at Textron assembling dashboards, then worked at Uponor, a sewer pipe manufacturer. After going to truck-driving school, Claimant worked briefly as an over-the-road driver; this career was cut short when his cancerous kidney was removed. Claimant then worked several years for private trash-hauling firms. In 2009, Claimant began working for the City of Columbia ("Employer") as a driver of a trash truck; after about six weeks he became a recycling truck driver.

It is also important to note that Claimant's recycling truck did not have air conditioning. Claimant would drive the truck, but would also be in and out of the truck more than 200 times per day, retrieving and throwing bags filled with recyclables. Claimant testified that each bag weighed around 50 pounds. It is also important to note that Claimant would often work on Saturdays at the hazardous materials disposal center. This would require Claimant to wear a "haz-mat" suit for four hours or longer.

As noted above, Claimant had a kidney removed in 2002. Claimant also has a history of tobacco use, episodic cocaine abuse, episodic cannabis abuse and alcohol abuse. There is little question that Claimant was using cocaine during his period of employment with Employer.

As stipulated, Claimant sustained an episode of heat exhaustion on June 23, 2009 while driving the recycling truck and performing his regular duties of retrieving and throwing bags filled with recyclables. The temperatur