James Morris v. Captain D's

Employee: James Morris

Injury No. 07-000330

Dependents: N/A

Employer: Captain D's

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

Insurer: Federal Insurance Co. c/o Broadspire (TPA)

Hearing Date: February 24, 2016 (record closed March 23, 2016)

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The undersigned Administrative Law Judge conducted a Final Hearing on February 24, 2016, in two cases involving the same parties: Injury Number 07-000330 with an injury date of January 3, 2007 and Injury Number 07-001298 with an injury date of January 14, 2007. James Morris (Claimant) appeared personally and through his attorney, John Newman. Greg Pearman appeared on behalf of Captain D's (Employer), Federal Insurance Co. (Insurer), and Broadspire (Third Party Administrator). The Treasurer of Missouri, as custodian of the Second Injury Fund, appeared by Assistant Attorney General Catherine Goodnight. Upon Claimant's request, and hearing no objection, the record remained open 30 days for the receipt of Wilbur Swearingin's deposition. Claimant submitted the deposition timely. It was marked as Exhibit 4 and received into evidence. The Administrative Law Judge thereafter closed the record. The parties were afforded the opportunity to submit written suggestions or briefs. The parties agreed to the following stipulations of fact and issues:

1. On January 3, 2007 and January 14, 2007, Captain D's was an employer operating under and subject to the Missouri Workers Compensation Law, and during this time was fully insured by Federal Insurance Company in care of its third party administrator, Broadspire Services, Inc.
2. On January 3, 2007 and January 14, 2007, James Morris was an employee of Employer and working under and subject to the Missouri Workers' Compensation Law.
3. On the above dates, Claimant was injured in separate accidents that occurred in the course and scope of employment with Captain D's.
4. The accidents occurred in Laclede County, Missouri; however, parties agreed to venue in Greene County, Missouri. Venue and jurisdiction are proper.

5 Notice was proper and the claim was filed timely.

1. Claimant's average weekly wage in both cases was $\ 1,487.08, yielding a temporary total disability and permanent total disability rate of $\ 718.87, and a permanent partial disability rate of $\ 376.55.

1. Employer/Insurer paid $\ 280 in medical treatment in relation to Injury Number 07-000330. Employer/Insurer paid no medical treatment in relation to Injury Number 07-001298.
2. Employer/Insurer has paid no temporary total disability with respect to either injury.
3. The parties agree that the following issues are to be resolved by the hearing:

1. Are Claimant's injuries and disability medically and causally related to one or both of the work accidents occurring on January 3, 2007 and January 14, 2007?
2. Is Claimant entitled to permanent partial disability or permanent total disability compensation?
3. Is Claimant entitled to future medical treatment?
4. Is Claimant entitled to reimbursement of approximately $\ 9,617.99 in past medical expenses?
5. What is the date of maximum medical improvement?
6. What, if any, is the liability of the Second Injury Fund?
7. Counsel for employee seeks an attorney fee of 25 percent.

The only exhibits offered were as follows:

Claimant's Exhibit 1. Medical Records - various providers

Claimant's Exhibit 2. Deposition - Dr. David Volarich, with exhibits

Claimant's Exhibit 3. Deposition - Dr. David Volarich, with exhibits

Claimant's Exhibit 4. Deposition - Mr. Wilbur Swearingin, with exhibits

Employer's Exhibit A. Report - Dr. Ted Lennard

Employer's Exhibit B. Deposition - James Morris (June 11, 2008)

Employer's Exhibit C. Withdrawn

Employer's Exhibit D. Medical Record - St. John's, Lebanon, Missouri (January 3, 2007)

Employer's Exhibit E. Medical Report - Dr. Bernie Parrish

Employer's Exhibit F. Medical Record - St. John's, Lebanon, Missouri (January 6, 2007)

The Second Injury Fund offered no exhibits or testimony.

James Morris (Claimant), born January 27, 1962, is 54 years old, and resides in Lebanon, Missouri. He attended schools in Fair Grove and Springfield, but he dropped out after the tenth grade. He has no GED or formal vocational training. Despite this limited education and training, he has done remarkably well for himself, which is a testament to his strong work ethic.

While in his teens, Claimant hauled hay. He also worked at restaurants washing dishes, cooking, and cleaning. In 1978 or 1979, he began working for Captain D's as a cook. He quit that company, trying alternative employment in bricklaying and house building. He then returned to Captain D's, and gradually assumed greater responsibilities. He later became a store manager, and eventually was promoted to the position of regional manager over several stores in a multiple state area. In all, Claimant worked 21 years for Captain D's. Even though he spent most of his career in supervisory positions, the work was physically and mentally taxing. In addition to any paperwork, he was responsible for inspections, staffing and maintenance. The job required extensive standing, walking, driving, and some lifting. Claimant performed these job duties despite multiple preexisting and symptomatic conditions. Following the two work accidents that are the subject of this hearing, Claimant was forced to quit his job with Captain D's, last working in May 2007. He qualified for Social Security Disability in October 2007.

Right Knee - In the 1970s, Claimant suffered a right tibial plateau fracture in a motorcycle accident. He underwent an open reduction and internal fixation. He was immobile for several months. He could not serve in the military because of this knee injury. Claimant said the right leg was stiff by the end of the day and he would get off his feet as soon as possible after the workday. Claimant said the right leg worsened through the years. It stopped him from running. It "hurt like hell," but it did not stop him from performing his job. As noted in his deposition, "it's something I've been dealing with for 30 years, so I mean, it's not new to me to feel pain in that leg, you know....I don't gripe about it." (Exhibit D, p. 49).

Lumbar Spine - In 1999, while working for Captain D's, Claimant was helping to close a store in Olathe, Kansas. He fell out of the back of a store truck, hurting his back. He was diagnosed with a herniated disc at L4-5 on the left and a bulging disc at L5-S1. He underwent surgery on January 4, 1999, which included left L4-5 laminotomy and foraminotomy and removal of the herniated disc at L4-5