Eugene Price v. BMS Transportation Company, Inc.

Enployee: Eugene W. Price

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

Given at Jefferson City, State of Missouri, this 17TH day of February 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

AWARD

Employee: Eugene W. Price Injury No.: 12-096454

Employer: BMS Transportation Company, Inc. Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Before the Division of Workers’ Compensation Department of Labor and Industrial Relations of Missouri

Insurer: Praetorian Insurance Company, c/o Midwestern Insurance Alliance

Hearing Date: April 16, 2015

Date Record Closed: May 4, 2015 Checked by: RBM

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 7, 2012.
5. State location where accident occurred or occupational disease was contracted: St. Joseph, Buchanan 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.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee fell out of the cab of his truck while he was fueling the truck.
2. Did accident or occupational disease cause death? No.
3. Part(s) of body injured by accident or occupational disease: Right shoulder, right hip, and low back.
4. Nature and extent of any permanent disability: Permanent total disability as a result of Employee's August 7, 2012 injury considered alone.
5. Compensation paid to-date for temporary disability: None.
6. Value necessary medical aid paid to date by employer/insurer? None.
7. Value necessary medical aid not furnished by employer/insurer? $\ 2,887.00.
8. Employee's average weekly wages: $\ 1,016.68.
9. Weekly compensation rate: $\ 677.79 for temporary total disability and permanent total disability, and $\ 433.58 for permanent partial disability.
10. Method wages computation: By agreement of the parties.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 2,887.00

27 weeks of temporary total disability for the period August 7, 2012 through February 11, 2013 at the rate of $\ 677.79 per week $=\ 18,300.33.

Employer is directed to authorize and furnish additional medical treatment to cure and relieve Employee from the effects of his August 7, 2012 work injury, in accordance with section 287.140, RSMo.

Permanent total disability benefits from Employer beginning February 12, 2013, and thereafter, at the weekly rate of $\ 677.79 for claimant's lifetime.

1. Second Injury Fund liability: None. Employee's claim against the Second Injury Fund is denied.
2. Future requirements awarded: As awarded.

Said payments to begin immediately 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: John R. Campbell, Jr.

Employee: Eugene W. Price

Injury No.: 12-096454

Employer: BMS Transportation Company, Inc.

Additional Party: The Treasurer of the State of

Missouri as Custodian of the Second Injury Fund

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Insurer: Praetorian Insurance Company, c/o Midwestern

Insurance Alliance

Hearing Date: April 16, 2015

Date Record Closed: May 4, 2015.

Checked by: RBM

A final hearing was held in this case on Employee's claims against Employer and the Treasurer of the State of Missouri as Custodian of the Second Injury Fund on April 16, 2015 in St. Joseph, Missouri. Employee, Eugene W. Price, appeared in person and by his attorney, John R. Campbell, Jr. Employer, BMS Transportation Company, Inc., and Insurer, Praetorian Insurance Company, c/o Midwestern Insurance Alliance, appeared by their attorney, Amy L. Young. The Second Injury Fund appeared by Candace R. Cole.

At the time of the hearing, the parties stipulated to the following:

1. On or about August 7, 2012, Eugene W. Price ("Claimant") was an employee of Employer, BMS Transportation Company, Inc. ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about August 7, 2012, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by Praetorian Insurance Company, c/o Midwestern Insurance Alliance ("Insurer").
3. Claimant's Claim for Compensation was filed within the time allowed by law.
4. The average weekly wage was $\ 1,016.68, the rate of compensation for temporary total disability and permanent total disability is $\ 677.79 per week, and the rate of compensation for permanent partial disability is $\ 433.58 per week.

1. No compensation has been paid by Employer or Insurer for temporary disability.
2. No medical aid has been paid or furnished by Employer or Insurer.
3. Claimant and the Second Injury Fund stipulated that on or about August 7, 2012, Claimant sustained an injury by accident in St. Joseph, Buchanan County, Missouri arising out of and in the course of his employment. Employer did not stipulate that on or about August 7, 2012, Claimant sustained an injury by accident in St. Joseph, Buchanan County, Missouri arising out of and in the course of his employment.
4. Claimant and the Second Injury Fund stipulated that Employer had notice of Claimant's alleged injury. Employer did not stipulate that Employer had notice of Claimant's alleged injury.

Claimant and Employer agreed that there are disputes on the following issues:

1. Did Claimant provide notice of his alleged injury as required by law?
2. Did Claimant sustain an injury by accident arising out of and in the course of his employment for Employer on or about August 7, 2012?
3. Is Claimant's injury medically causally related to the alleged work injury of August 7, 2012?
4. What is Employer's liability, if any, for permanent partial disability benefits, or in the alternative, for permanent total disability benefits?
5. What is Employer's liability, if any, for past temporary total disability benefits?
6. What is Employer's liability, if any, for past medical expenses?
7. What is Employer's liability, if any, for future medical aid?

Claimant and the Second Injury Fund agreed there is a dispute on the following issue:

1. What is the liability, if any, of the Second Injury Fund for permanent partial disability benefits, or in the alternative, permanent total disability benefits?

Claimant testified in person. Helen Crawford testified on behalf of Claimant. Claimant offered the following exhibits at the hearing which were admitted in evidence without objection, except the depositions were admitted subject to any objections contained in the depositions:

A—Medical Records of Atchison Memorial Hospital

B—Medical Records of Everett Wilkinson

C—Medical Records of VA Hospital

D-Deposition of Dr. P. Brent Koprivica with deposition exhibits

E-Deposition of Michael Dreiling, with deposition exhibits

J—Hospital Bill of Atchison Hospital for \$2,667.00

K—Hospital Bill of Wilkinson Orthopaedic for \$200.00

L—Fuel Ticket of Wiedmaier's Truck Stop dated 8/7/12

M—Ambuck's Fuel Printout

N-Photograph of truck

O-Time Line

Q-Commercial Driver Fitness Determination

R-Return to Work Form of Dr. Wilkinson

S—Updated Medical Records of VA Hospital

T-Medical records emailed by Helen Crawford to BMS

Exhibit P was not offered in evidence. Exhibits F, G, H and I were offered in evidence. Employer's Objections to those Exhibits were sustained. Claimant's attorney withdrew Exhibits F, G, H and I.

Dave Webster, John Thornton, and Jimmy Henningsen testified on behalf of Employer. Employer offered the following exhibits at the hearing which were admitted in evidence without objection, except the depositions were admitted subject to any objections contained in the depositions:

1-Deposition of Brandi Webster

2-Police Report

3-Injured Employee Information Form

4-Notebook entries of Dave Webster

5-BMS Fuel Records

6-Deposition of Dr. Stephen Reintjes with deposition exhibits

7-Deposition of Stella Doering with deposition exhibits

The Second Injury Fund did not offer any exhibits.

The attorneys agreed at the hearing to leave the record open to permit Employer's attorney to offer VA records as Exhibit 8. Exhibit 8 was received by the Court on April 24, 2015 and was admitted in evidence on April 24, 2015.

John R. Campbell requested an attorney's fee of 25 % from all amounts awarded to Claimant pursuant to Request for Attorneys Fees received by the Court on April 27, 2015. The Request for Attorneys Fees has been mark