Gregory Miller v. Jack Cooper Transport

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 02-125272

Employee: Gregory Miller

Employer: Jack Cooper Transport (Settled)

Insurer: Liberty Mutual Insurance Co. (Settled)

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

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 30, 2015. The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued April 30, 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 $1^{\text {st }}$ day of December 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes (Settled)
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 31, 2002
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Claimant was loading cargo vans onto a truck when a chain released causing Claimant to fall landing on his right shoulder and back, in the course and scope of employment.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right Shoulder and low back
14. Nature and extent of any permanent disability: 25 % Right shoulder and 19.5 % low back (permanent and total disability)
15. Compensation paid to-date for temporary disability: $\ 32,929.80
16. Value necessary medical aid paid to date by employer/insurer? $\ 48,393.14

Employee: Gregory Miller Injury No. 02-125272

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 975.00
3. Weekly compensation rate: $\ 649.32 TTD (PTD)/ $\ 340.12 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable: $\ 46,250.00 from settlement with Employer
2. Second Injury Fund liability:

Permanent total disability benefits from Second Injury Fund:

Weekly differential (\$309.20) payable by SIF for 136 weeks beginning

January 25, 2007 and, thereafter, $\ 649.32 for Claimant's lifetime.

TOTAL: SEE AWARD

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:

Jonathan Isbell

Employee: Gregory Miller

Employee: Gregory Miller

Injury No: 02-125272

Dependents: None

Employer: Jack Cooper Transport (Settled)

Additional Party Second Injury Fund

Insurer: Liberty Mutual Insurance, Co.

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: GCG/kr

Hearing in the above referenced case was held August 20, 2014, in St. Charles County before the undersigned Administrative Law Judge. Gregory Miller (Claimant) was present and represented by attorney Jonathan Isbell. Employer/Insurer previously settled liability. The Second Injury Fund (SIF) was represented by Assistant Attorney General Jennifer Sommers. Mr. Isbell requested a lien for attorney fees in the amount of 25 %. The parties submitted post-trial briefs.

The parties entered into the following stipulations:

1. On or about October 31, 2002 Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The injury occurred in St. Charles County, Missouri.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Employer received proper notice.
4. The Claim was filed within the time prescribed by law.
5. Venue is proper in St. Charles County, Missouri.
6. Claimant earned an average weekly wage of $\ 975.00 resulting in applicable rates of compensation of $\ 649.32 for total disability (TTD) benefits and $\ 340.12 for permanent partial disability (PPD) benefits.
7. Employer paid TTD benefits of $\ 32,929.80 for a period of $505 / 7 weeks.
8. Employer paid \ 48,393.14 in medical benefits.

In addition, the Court took administrative judicial notice of the Claim filed, and Claimant withdrew his claim for repetitive trauma.

The following issues were presented for resolution in this hearing:

1. Nature and extent of Claimant's disability from the primary injury.
2. Permanent total disability.
3. Liability of the Second Injury Fund for permanent partial disability (PPD) or permanent total disability (PTD) benefits.
4. Date of maximum medical improvement.
5. Medical causation for shoulder injury.
6. Ruling regarding alleged typographical error in Stipulation for Compromise Settlement between Claimant and Employer as to whether the parties intended resolution of PPD to left shoulder or right shoulder.

Only evidence necessary to support this award will be summarized. Any objections not expressly ruled upon during the hearing or in this award are now overruled. Certain exhibits offered into evidence may contain handwritten markings, underlining and/or highlighting on portions of the documents. Any such markings on the exhibits were present at the time they were offered by the parties and had no impact on any ruling in this case.

Claimant offered the following Exhibits which were received into evidence without objection:

1. Deposition of David T. Volarich, D.O. taken June 18, 2013, including deposition exhibits:

Curriculum Vitae; Independent Medical Examination report.

1. Deposition of Delores E. Gonzalez taken June 17, 2013, including deposition exhibits:

Curriculum Vitae; Vocational Rehabilitation Evaluation.

1. Deposition of Terrence Piper, M.D. taken on August 14, 2007, including deposition exhibits.
2. Deposition of Mitchell B. Rotman, M.D. taken on May 21, 2009, including deposition exhibits.
3. Deposition of Theodore Rummel, M.D. taken on August 17, 2007, including deposition exhibits.
4. Deposition of William Wang, M.D. taken on July 10, 2007, including deposition exhibits.
5. St. Joseph Hospital West Medical Record- 3 pgs d/o/s 8/8/89.

1. Neurosurgical Associates, Inc. Medical Record. - 19 pgs d/o/s 8/30/88 to 12/6/02.
2. Professional Rehabilitation Services Medical Record - 13 pgs d/o/s 4/23/93 to 4/6/94.
3. Professional Rehabilitation Services Medical Record - 252 pgs d/o/s/ 1/20/98 to 7/20/04.
4. Tri-Co Occupational Health Services (Ronald L. Pearson, DO) Medical Record - 11 pgs d/o/s $11 / 15 / 02 to 1 / 8 / 03$.
5. NYDIC Open MRI of America-St. Peters Medical Record - 3 pgs d/o/s 11/15/02 \& $12 / 6 / 02$.
6. Northland Mid-America (Dr. Randall Roush )Medical Record)18 pgs d/o/s 11/19/02 to $12 / 9 / 03$.
7. SSM DePaul Ortho Bridge (Dr. Randall Roush) Medical Record - 22 pgs d/o/s 11/19/02 to $11 / 22 / 05$.
8. James Coyle, M.D. Medical Record - 23 pgs d/o/s 1/27/03 to 1/27/04.
9. Pain Treatment Center (Dr. John Graham) Medical Record - 55 pgs d/o/s/ 1/29/03 to $7 / 30 / 03$.
10. Aquatic Fitness, Inc. Medical Record - 32 pgs d/o/s 1/30/03 to 3/18/03.
11. St. Joseph Hospital West Medical Record - 26 pgs d/o/s 2/26/03.
12. St. Louis Orthopedic Institute, Inc. (Dr. Bernard Randolph) Medial Record - 9 pgs d/o/s 3/19/03 to 5/15/03.
13. The Work Performance Center, Inc. Medical Record - 20 pgs d/o/s 4/21/03 to 5/14/03.
14. St. Joseph Health Center Medical Record- 1 pg d/o/s 5/17/03.
15. St. Peters Bone \& Joint Surgery Medical Record - 93 pgs d/o/s 8/5/03 to 9/18/06.
16. Missouri Bone \& Joint Center Medical Record - 76 pgs d/o/s 8/26/03 to 10/24/03.
17. Excel Imaging Medical Record - 2 pgs d/o/s 10/28/03.
18. Benrus Surgical (Dr. Kenneth Hacker) Medical Record - 4 pgs d/o/s 1/16/04 to 4/14/04.
19. Barnes-Jewish St. Peters Hospital Medical Record - 127 pgs d/o/s 2/4/04 to 2/8/04.
20. Advance Physical Therapy Medical Record - 187 pgs d/o/s 8/2/04 to 10/13/06.
21. Timberlake Surgery Center Medical Record - 21 pgs d/o/s 11/1/06.

1. Advance Physical Therapy Supplemental Medical Record - 71 pgs d/o/s 11/28/06 to $6 / 23 / 08$.
2. Dr. Krishnan Medial Record- 108 pgs d/o/s 10/12/12 to 6/17/13.
3. Original Claim for Compensation; Two Amended Claims for Compensation - group.
4. Contract of Employment for Legal Services.
5. Approved Settlement Stipulation between Employee and Employer/Insurer in Injury Number 02-125272.

The Second Injury Fund offered the following Exhibits which were received into evidence. The objection by Claimant to the admission of SIF Exhibit II in its entirety, for the stated purpose of providing additional information to the ALJ, was overruled:

I. Deposition of James M. England, Jr., taken on November 19, 2013, including deposition exhibits: Curriculum Vitae and Vocational Rehabilitation Evaluation .

II. Deposition of Claimant Gregory Miller, taken on September 26, 2011.

At the commencement of the proceedings, counsel for Claimant announced that he was withdrawing all claims for repetitive trauma due to insufficient medical causation proof.

Claimant testified at trial. He testified that he has been a transport driver or car hauler, working out of the employer's Wentzville facility since 1985. Car haulers transport vehicles in tractor trailer rigs from the point of manufacture to dealerships. Claimant would make these deliveries, over the road, all around the country. Claimant testified that the most difficult aspect of his job was the loading and unloading of vehicles, which entailed a variety of strenuous activities including chaining down the vehicles tightly to the trailer using a winch-ratchet assembly and a winch bar. Heavy chains weighing up to 50 pounds had to be carried to each of the 4 attachments on the vehicle's frame to different levels of the unit. Both arms were used to pull the winch bar, one arm at a time or in combination, against the resistance of the vehicle's suspension system - to attach the vehicle tight to the trailer - sometimes exceeding 100 lbs . of pulling force. On October 31, 2002 the Claimant was in the "belly" of the trailer tying down a unit when the chain, which was wrapped around the barrel of the