Daniel Payton v. Maryville RII School District

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 14-019253

Employee: Daniel Payton

Employer: Maryville RII School District

Insurer: Missouri Rural Services Workers' Compensation Insurance Trust

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 February 10, 2016. The award and decision of Administrative Law Judge Robert Miner, issued February 10, 2016, 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 $\qquad$ 17th day of August 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

**Employee:** Daniel L. Payton

**Employer:** Maryville RII School District

**Address:** 14-019253

**Address:** 14-019255

**Address:** 14-019253

**Address:** 14-019253

**Address:** 14-019253

**Address:** 14-019253

**Address:** 14-019255

**Address:** 14-019253

**Injury No.:** 14-019253

**Insurer:** Missouri Rural Services Workers’ Compensation Insurance Trust, c/o Cannon Cochran Management Services, Inc.

**Hearing Date:** November 13, 2015

**Checked by:** RBM

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: March 10, 2014.
5. State location where accident occurred or occupational disease was contracted: Maryville, Nodaway 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 injured his left shoulder when he and a co-worker were lifting a soccer goal that weighed approximately 200 pounds.
2. Did accident or occupational disease cause death? No.
3. Part(s) of body injured by accident or occupational disease: Left shoulder.
4. Nature and extent of any permanent disability: Permanent total disability as a result of Employee's March 10, 2014 injury considered alone.
5. Compensation paid to-date for temporary disability: None.
6. Value necessary medical aid paid to date by employer/insurer? $\ 204.00.
7. Value necessary medical aid not furnished by employer/insurer? $\ 35,048.30.
8. Employee's average weekly wages: $\ 649.20.
9. Weekly compensation rate: $\ 432.82 for temporary total disability, permanent partial disability, and permanent total disability.
10. Method wages computation: By agreement of the parties.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 35,048.30.

$272 / 7$ weeks of temporary total disability for the period March 11, 2014 through September 17, 2014 at the rate of $\ 432.82 per week $=\ 11,809.80.

Employer is directed to authorize and furnish additional medical treatment to cure and relieve Employee from the effects of his March 10, 2014 work injury, in accordance with section 287.140, RSMo.

Permanent total disability benefits from Employer beginning September 18, 2014, and thereafter, at the weekly rate of $\ 432.82 for claimant's lifetime.

1. Second Injury Fund liability: None. Employee's claim against the Second Injury Fund is denied.

1. 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 E. McKay.

Employee: Daniel L. Payton

Injury No.: 14-019253

Employer: Maryville RII School District

Additional Party: The Treasurer of the State of

Missouri as Custodian of the Second Injury Fund

Insumer: Missouri Rural Services Workers'

Compensation Insurance Trust, c/o Cannon

Cochran Management Services, Inc.

Hearing Date: November 13, 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 November 13, 2015 in St. Joseph, Missouri. Employee, Daniel L. Payton, appeared in person and by his attorney, John E. McKay. Employer, Maryville RII School District, and Insurer, Missouri Rural Services Workers' Compensation Insurance Trust, c/o Cannon Cochran Management Services, Inc., appeared by their attorney, Clinton D. Collier. The Second Injury Fund appeared by its attorney, Maureen T. Shine. John E. McKay requested an attorney's fee of 25 % from all amounts awarded. It was agreed that posthearing briefs/proposed awards would be due on December 14, 2015.

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

1. On or about March 10, 2014, Daniel L. Payton ("Claimant") was an employee of Maryville RII School District ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about March 10, 2014, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by Missouri Rural Services Workers' Compensation Insurance Trust, c/o Cannon Cochran Management Services, Inc., ("Insurer").

1. On or about March 10, 2014, Claimant sustained an accident in Maryville, Nodaway County, Missouri, arising out of and in the course of his employment.
2. Employer had notice of Claimant's alleged injury.
3. Claimant's Claim for Compensation was filed within the time allowed by law.
4. The average weekly wage was $\ 649.20, and the rate of compensation for temporary total disability, permanent partial disability, and permanent total disability is $\ 432.82 per week.
5. No compensation has been paid by Employer for temporary disability.
6. Employer/Insurer has paid $\ 204.00 in medical aid for treatment on March 11, 2014 at St. Francis Health Care.
7. The medical expenses incurred to treat Claimant's condition were fair and reasonable and usual and customary.
8. Claimant reached maximum medical improvement on September 17, 2014.

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

1. Was Claimant's March 10, 2014 accident the prevailing factor in causing an injury, and is Claimant's current condition medically causally related to the alleged work accident of March 10, 2014?
2. What is Employer's liability, if any, for permanent partial disability benefits, or in the alternative, permanent total disability benefits?
3. What is Employer's liability, if any, for past temporary total disability benefits from March 10, 2014 through and including September 17, 2014?
4. What is Employer's liability, if any, for past medical expenses in the claimed amount of $\ 35,048.30 ?
5. What is Employer's liability, if any, for future medical aid?

Claimant and the Second Injury Fund agreed there is a dispute on the issue of the Second Injury Fund's liability, if any, for permanent total disability benefits.

Claimant testified in person. Raymond Gebhart, Jr., Herb Andrews, Richard S. Payton, and Debbie Payton also testified on behalf of Claimant. In addition, Claimant offered the following exhibits which were admitted in evidence without objection (the depositions were admitted subject to any objections contained in the depositions):

A—Medical Records of Advanced Surgery Center

B—Records of Clarinda Regional Health Center

C—Records of St. Francis Hospital

D—Records of Orthopedics Sports Medicine

E—Records of Dr. Rodney Smith

F—Medical Bills of Clarinda Regional Health Center

G—Medical Bills of Advanced Surgery Center

H—Records of Miller Orthopedic - Dr. Thomas Atteberry

I—Records of Clarinda Regional Health Center - MRI Films

J—Bills of Miller Orthopedic

K-Deposition of Claimant taken November 17, 2014

M-Medical Report of Dr. P. Brent Koprivica dated January 12, 2015

N-Deposition of Dr. P. Brent Koprivica taken May 22, 2015

O-Report of Michael Dreiling dated May 8, 2015

P-Deposition of Michael Dreiling taken on July 21, 2015

Q-Deposition of Terry Cordray taken on September 14, 2015 with Deposition Exhibits

R—Attorney/Client Contract

S-Exhibit Index identifying Claimant's Exhibits

Exhibit L was not offered in evidence.

Employer offered the following exhibits which were admitted in evidence without objection:

1-Curriculum Vitae of Dr. Thomas DiStefano

2-Report of Dr. Thomas DiStefano dated March 11, 2014

3-Report of Dr. Thomas DiStefano dated June 1, 2015

4-Depostion of Terry Cordray taken on September 14, 2015 with Deposition Exhibits

The Second Injury Fund did not offer any exhibits.

Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those

markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

The Post-Hearing Briefs of Employer and the Second Injury Fund and the proposed Award of Claimant have been considered.

Claimant was employed by Employer on March 10, 2014 as Assistant Supervisor Building and Grounds. He worked for Employer continuously on March 10, 2014 until 2:00 p.m. when a co-worker asked Claimant for help lifting a soccer goal that weighed about 200 pounds. Claimant had been doing his regular work and had been lifting 50 pounds before 2:00 p.m. on March 10, 2014.

The soccer goal came in three pieces. The pieces had to be assembled on a field and were stored 40 to 50 yards away. Claimant and the co-worker picked up the pieces, one at a time, and put them in place to start putting the goal together. After the pieces had been moved and assembled, they used a Makita cordless vibrating drill to tighten bolts. The soccer goal was nine to ten feet high at the top.

Claimant and the co-worker then had to stand the goal upright in order to hang a net. The goal was lying in the grass on uneven ground. They each got on a side of the goal and raised it to the top of their heads. They had to push the goal over their heads. Claimant was not fully extended when he was lifting. He did not use his legs to lift.

When Claimant got the goal to the top of his head, he heard a loud pop and felt excruciating pain in his left shoulder. He intended to push the goal further when he felt the pain. He was pushing with his left hand when it happened.

Claimant then grabbed his left shoulder. He could not use his left arm or left shoulder after the incident occurred. He had no pain in his left shoulder immediately before the March 10, 2014 work injury. He was not in balance at the time he felt the pain. He believed he felt the pain because he was probably out of balance when he was lifting.

Clai