Donald Davis v. Ozarks Coca-Cola/Dr. Pepper Bottling Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-050555

Employee: Donald Davis

Employer: Ozarks Coca-Cola/Dr. Pepper Bottling Company

Insurer: Self-Insured

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 September 20, 2016. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued September 20, 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 $6^{\text {th }}$ day of April 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Donald Davis

Injury No. 07-050555

Dependents: N/A

Employer: Ozarks Coca-Cola / Dr. Pepper Bottling Company

Insurer: Self-insured / Corporate Claims Management, Inc. (TPA)

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

Hearing Date: June 22, 2016

Checked by: LTW

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: June 6, 2007
5. State location where accident occurred or occupational disease was contracted: Taney County, Missouri (The parties agree to venue lying in Greene County, Misouri.)
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? N/A (Self-insured Employer)
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While engaged in employment with Employer, and while Employee and a co-worker were removing a 600-pound vending machine from a motel complex with a two-wheel dolly, Employee and his co-worker maneuvered the machine and dolly over a coarse aggregate driveway. As Employee attempted to place the front wheels of the dolly on the lift gate of his truck, one of the rear wheels caught, allowing the full weight of the machine to tip back on him, causing Employee to twist and struggle to protect himself from the weight of the machine. As a consequence of this accident, Employee experienced a popping sensation and sustained an injury to his low back.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low Back
14. Nature and extent of any permanent disability: 20 % BAW - Low Back
15. Compensation paid to-date for temporary disability: None

Employee: Donald Davis

Injury No. 07-050555

Dependents: N/A

Employer: Ozarks Coca-Cola / Dr. Pepper Bottling Company

Insurer: Self-insured / Corporate Claims Management, Inc. (TPA)

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on June 22, 2016. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about August 1, 2016.

The employee appeared personally and through his attorney Paul Reichert, Esq. The employer and insurer appeared through their attorney, Jerry Harmison, Esq. The Second Injury Fund appeared through its attorney, Catherine Goodnight, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about June 6, 2007, Ozarks Coca-Cola / Dr. Pepper Bottling Company was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully self-insured as required by Chapter 287, RSMo. (At all times relevant to this case the employer utilized Corporate Claims Management as a third-party administrator.)

(2) On the alleged injury date of June 6, 2007, Donald ("Brad") Davis was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about June 6, 2007, the employee sustained an accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced employment and accident occurred in Taney County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of June 6, 2007, the employee's average weekly wage was $\ 559.80, which is sufficient to allow a compensation rate of $\ 373.20 for temporary total disability compensation, permanent total disability compensation, and permanent partial disability compensation.

(8) Temporary total disability compensation has not been provided to the employee.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 5,002.32 in medical expenses.

(10) In regard to the accident and injury of June 6, 2007, the employee reached maximum medical improvement on May 26, 2009.

The issues to be resolved by hearing include:

(1) Whether the employer and insurer are obligated to pay for certain past medical care and expenses?

(2) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(3) Whether the employee sustained any permanent disability as a consequence of the claimed accident of June 6, 2007; and, if so, what is the nature and extent of the disability?

(4) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of his case the testimony of his significant other, Amanda Dawn Seaton and his neighbor, Rachael Shaw. In addition, the employee offered for admission the following Exhibits:

Exhibit 1 Medical Report of Shane Bennoch, M.D.

(Dated May 7, 2008)

Exhibit 2 Medical Reports of Shane Bennoch, M.D.

(Dated October 10, 2012 \& November 5, 2012)

Exhibit 3 Medical Report of Mitch Mullins, D.O.

(Dated March 4, 2014)

Exhibit 4 Medical Records

Exhibit 5. Vocational Report of Wilbur Swearingin, CRC

(Dated November 11, 2013)

Exhibit 6. Medical Expenses

Exhibit 7. Photograph

Exhibit 8. Photograph

Exhibit 9. Photograph

Exhibit 10. CV of Wilbur Swearingin, CRC

Exhibit 11. Letter from Employer (Dated November 27, 2009)

Exhibit 12. Patient Retrieval Form (Dated March 23, 2009)

The exhibits were received and admitted into evidence.

The employer did not present any witnesses at the hearing of this case. However, the employer offered for admission the following exhibits:

Exhibit A Deposition of Donald Brad Davis

(Dated December 5, 2012)

Exhibit B Deposition of James M. England, CRC

(Dated October 31, 2014)

Exhibit C Medical Report of Jeffrey Woodward, M.D.

(Dated May 22, 2012)

Exhibit D Supplemental Medical Report of Jeffrey Woodward, M.D.

(Dated May 14, 2014)

Exhibit E Addendum to Medical Report of Jeffrey Woodward, M.D.

(Dated October 31, 2014)

Exhibit F Video Surveillance - Three DVDs of Midwest Intelligence, Inc.

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses or offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Receipt for Compensation in Injury No. 88-129654

- Transcript of Compromise Settlement in Injury No. 88-129654

- Entry of Appearance of Jerry Harmison, Esq. in Injury No. 07-050555

- Answer of Second Injury Fund to Claim for Compensation

- Answer of Employer/Insurer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, Donald Brad Davis, is 62 years of age; he was born on May 6, 1954. Mr. Davis resides in his family home with acreage near the northwestern edge of Springfield, Greene County, Mis