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James DeWald v. Select Motors, Inc. d/b/a Select Transport

Decision date: October 8, 2015Injury #12-06712811 pages

Summary

The Commission affirmed the administrative law judge's award of workers' compensation benefits to James DeWald for injuries sustained on August 24, 2012, when he jumped into a rolling tele loader to stop it. The claimant was awarded $21,679.00 in permanent partial disability compensation for permanent injuries to his neck (5% BAW) and low back (7.5% BAW).

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Third-Party Injury Check

This workers' comp decision may point to a separate injury claim.

  • A driver, contractor, property owner, or equipment company may share fault.
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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 12-067128

Employee: James DeWald

Employer: Select Motors, Inc.

d/b/a Select Transport

Insurer: Missouri Employers Mutual

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 23, 2015. The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued April 23, 2015, 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 $8^{\text {th }}$ day of October 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee:James DeWaldInjury No. 12-067128
Dependents:NoneBefore the
Employer:Select Motors, Inc. D/B/A Select TransportDIVISION OF WORKERS' <br> COMPENSATION
Additional Party:NoneDepartment of Labor and Industrial
Insurer:Missouri Employers MutualRelations of Missouri
Jefferson City, Missouri
Hearing Date:August 14, 2014Checked by: GCG/kr

FINDINGS OF FACT AND RULINGS OF LAW

  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 24, 2012
  5. State location where accident occurred or occupational disease was contracted: Franklin 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: Ran after a rolling tele loader and jumped in to stop it and suffered a jarring impact.
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: Ribs, neck, and low back.
  14. Nature and extent of any permanent disability: 5\% BAW for neck and 7.5\% BAW for low back.
  15. Compensation paid to-date for temporary disability: $\ 11,827.01
  16. Value necessary medical aid paid to date by employer/insurer? $\ 12,519.98

Employee: James DeWald Injury No. 12-067128

  1. Value necessary medical aid not furnished by employer/insurer? None
  2. Employee's average weekly wages: $\ 906.44
  3. Weekly compensation rate: $\ 604.29 TTD/\$433.58 PPD
  4. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable: $\ 21,679.00

50 weeks of permanent partial disability from Employer

  1. Second Injury Fund liability: No

TOTAL: $\ 21,679.00

  1. Future requirements awarded: None

Said payments to begin as of the date of this Award and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant 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 claimant:

Michael Warner

Employee: James DeWald

FINDINGS OF FACT and RULINGS OF LAW:

Employee:James DeWaldInjury No: 12-067128
Dependents:NoneBefore the <br> DIVISION OF WORKERS' <br> COMPENSATION <br> Department of Labor and Industrial <br> Relations of Missouri <br> Jefferson City, Missouri
Employer:Select Motors, Inc. D/B/A Select Transport
Additional PartyNone
Insurer:Missouri Employers MutualChecked by: GCG/kr

PRELIMINARY STATEMENT

A Hearing was held on August 14, 2014. The claimant was represented by attorney Michael Warner. The employer and insurer were represented by attorney Patrick N. McHugh. Claimant is seeking a final award for workers' compensation benefits associated with his Claim for Compensation. Mr. Warner is seeking attorney's fees in the amount of 25 % of any benefits awarded.

STIPULATIONS

The parties entered into the following stipulations:

  1. That claimant was employed by Select Motors, Inc. a/k/a Select Transport (herein after referred to as "Select Transport") on the date of accident.
  2. That Missouri Employers Mutual Insurance Company insured the employer's workers' compensation risk at the time and date of the alleged accident and that the employer was operating under and subject to the terms and provisions of the Missouri Workers' Compensation Law. The accident occurred in Franklin County, Missouri.
  3. That on August 24, 2012, claimant sustained an accident arising out of and in the course of his employment with Select Transport.
  4. That venue is proper in the St. Charles County, Missouri.
  5. That timely notice of the injury was provided to the employer and a Claim for Compensation was filed within the time prescribed by statute.
  6. That claimant's average weekly wage was $\ 906.44, resulting in applicable compensation rates of $\ 604.29 for temporary total disability benefits and $\ 433.58 for permanent partial disability benefits.
  1. That the employer has provided temporary total disability benefits in the amount of $\ 11,827.01 for the periods of time of $8 / 25 / 12 through 1 / 8 / 13, representing 194 / 7$ weeks of benefits.
  2. That the employer has provided medical treatment in the amount of $\ 12,519.98.

ISSUES

  1. The nature and extent of any permanent disability.
  2. The employee's entitlement to future medical care.

EXHIBITS

The following exhibits were offered and admitted into evidence:

A. Employee's Exhibits

  1. Medical records from SSM St. Clare Health Center - 8/24/12 and 8/30/12.
  2. Medical records from BarnesCare Westport - 8/27/12 through 9/12/12.
  3. Medical records from Russell Cantrell, M.D. - 9/18/12 through 1/8/13.
  4. Medical records from St. Luke's CDI Chesterfield - MRI of lumbar spine 12/19/12.
  5. Medical records from Eureka Physical Therapy - 10/22/12 through 12/17/12.
  6. Medical records from Aquatic Fitness, Inc. 9/20/12 through 10/11/12.
  7. Report of Dwight Woiteshek, M.D. of 2/7/13 and CV.

B. Employer/Insurer's Exhibits

A. Medical report of Russell Cantrell, M.D. - 9/24/13.

I. Testimony of James DeWald

Employee, James DeWald, (claimant) currently lives in Kendallville, Indiana. He is not married and has one 20-year-old child dependent child. An outstanding child support lien was acknowledged. The claimant completed the $10^{\text {th }}$ grade. He is currently employed as a truck driver for Evans Trucking.

Claimant testified he worked for Select Transport for two years prior to the accident. He had worked for this employer on and off in the past on two or three separate occasions. He worked as a truck driver involved in moving heavy equipment.

Claimant testified the accident occurred while he was attempting to unload a truck off the bed of a trailer. The truck began to roll backwards and towards a tele handler (forklift). Claimant jumped in the cab of the truck to stop it. Claimant stated the truck ran into the forks of the

telehandler, which came through the windshield. Claimant was sitting in the driver's seat when this occurred with his foot on the brake. He said he had immediate symptoms of a loss of breath, as if he had been punched in the stomach. He also stated the blade of the telehandler struck his left upper arm. He went on to make his normal delivery and returned to the terminal about 4:00 a.m. He reported this to his boss and his boss told him to go home and take the day off. He testified his symptoms at that point were shortness of breath and a "massive" headache.

Claimant testified he went home and went to bed. He then went to SSM St. Clare Health Center and was told he had sprained his ribs. He testified his boss yelled at him for going to the hospital and acknowledged this was because he had not notified him before this visit. The employer then sent him to BarnesCare for further treatment. Claimant explained his symptoms during this course of treatment included left arm pain, numbness and tingling in his right hand and right foot, and rib pain. He also complained of pain in his neck and back. He returned to SSM St. Clare Health Center a week later $(8 / 30 / 12)$ because he still had a headache and had trouble breathing. He stated he was given a full work up on this examination. He then continued treating with BarnesCare and was eventually referred to Dr. Russell Cantrell for further evaluation and treatment.

Claimant testified his treatment through Dr. Cantrell included a course of aquatic physical therapy (Aquatic Fitness, Inc.) followed by therapy at Eureka Physical Therapy. He stated the aquatic physical therapy did not help his condition. He acknowledged the therapy through Eureka Physical Therapy helped a little bit with his ribs but that he continued to have head, neck, and back pain. He testified it was his understanding he had a bulging disc at L5-6. He last saw Dr. Cantrell on 1/8/13 and he reported he was still having problems with his neck, back, arm, and right foot. He explained his neck would make a cracking noise when he turned his head and that he was still experiencing pain. He also said he was still having headaches. His low back pain also persisted. He complained of right hand numbness that went into his forearm. He was also experiencing numbness in his right foot to his calf that would occur "every now and then."

Claimant testified he was next evaluated by Dr. Woiteshek on 2/7/13. He stated he told Dr. Woiteshek he was continuing to have neck pain with popping and grinding noises, and low back with pain shooting down his leg. He stated Dr. Woiteshek did not suggest any additional medical treatment.

Claimant testified with regard to his current symptoms and restrictions. He stated he cannot sit in his driver's seat for long periods of time as his foot will go numb if he sits for more than one hour. He also experiences numbness in his leg. He testified his neck pops all of the time and his low back hurts him all of the time. He experiences numbness in his right hand, especially if he has to shift gears.

Claimant testified his only prior injury to his neck occurred when he was in a motor vehicle accident at age 14 or 15 . He described the injury as "whiplash." He said he only had symptoms for about a week. He stated he never had any prior low back pain, symptoms of pain or numbness in his right hand or forearm, right foot or leg. He also denied prior headaches, other than sinus problems every now and then.

Claimant stated he has not seen any doctors since his evaluation with Dr. Woiteshek. He said he has tried to get in to see at least ten doctors but none of them will take him because this is a workers' compensation case and he has no insurance.

Claimant testified on cross-examination that he is currently taking no prescription medications for his injuries. He does take Tylenol for pain.

Claimant testified he collected unemployment compensation for a short period of time after he was released from care by Dr. Cantrell. He then began working as an over-the-road truck driver for SDX beginning in February of 2013. He recalled having to pass a DOT physical prior to beginning work. He drove 40 to 60 hours per week for this employer and confirmed

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