Gregory Pulliam v. RPCS, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-056403

Employee: Gregory Pulliam

Employer: RPCS, Inc.

Insurer: Fuel Marketers 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 September 1, 2016. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued September 1, 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 $\qquad 28^{\text {th }} \qquad$ day of April 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Gregory J. Pulliam

Injury No. 11-056403

Dependents: N/A

Employer: RPCS, Inc.

Insurer: Fuel Marketers Insurance Trust

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

Hearing Date: June 10, 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: July 4, 2011
5. State location where accident occurred or occupational disease was contracted: Yes
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: While engaged in employment with Employer and performing his work duties, Employee lifted a box of meat, weighing approximately 70 pounds, from a shelf about 1 to $11 / 2$ feet off the floor. As he lifted the box up to approximately chest-level, in order to place it on a shelf, he felt a sharp pain and an "electrode" sensation in his middle back, resulting in Employee sustaining a physical injury in the nature of a herniated disc of the thoracic spine at the level of T7 - T8 with the development of thoracic myelopathy for which employee required a surgical decompression with fusion from T7 - T9. Further, as a consequence of this work injury, Employee sustained a psychological injury in the nature of psychological overlay.
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: Back \& BAW
14. Nature and extent of any permanent disability: Permanent Total Disability

Employee: Gregory J. Pulliam

Injury No. 11-056403

Dependents: N/A

Employer: RPCS, Inc.

Insurer: Fuel Marketers Insurance Trust

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 10, 2016. The parties were afforded opportunity to submit briefs or proposed awards, resulting in the record being complete and submitted to the undersigned for issuance of a decision on or about July 11, 2016.

The employee appeared personally and through his attorney, John Wise, Esq. The employer and insurer appeared through their attorney, Steven Marsh, Esq. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

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

(1) On or about July 4, 2011, RPCS, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Fuel Marketers Insurance Trust.

(2) On the alleged injury date of July 4, 2011, Gregory Pulliam was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about July 4, 2011, 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 Greene 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 claimed accident the employee's average weekly wage was $\ 580.65, which is sufficient to allow a compensation rate of $\ 387.10 for temporary total disability compensation, and a compensation rate of $\ 387.10 for permanent partial and permanent total disability compensation.

(8) Temporary disability benefits were provided to the employee in the amount of $\ 13,435.12. (It is noted that the employee reached maximum medical improvement on or about March 19, 2012. However, the employer and insurer paid additional temporary disability compensation in the mount of \$5,297.43 from March 19, 2012 to October 12, 2012.)

(9) The employer and insurer provided medical treatment to the employee, having paid $\ 122,307.41 in medical expenses.

(10) The employee reached maximum medical improvement as of March 19, 2012.

(11) Employee's attorney, John Wise, seeks an attorney's fee of 25 percent and acknowledges an attorney lien in favor of Mark \& Burkhead in the amount of $\ 660.59.

The issues to be resolved by hearing are as follows:

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

(2) Whether employee sustained any permanent disability as a consequence of the accident of July 4, 2011; and, if so, what is the nature and extent of the permanent disability?

(3) 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?

(4) Whether the employer and insurer are entitled to a credit for overpayment of temporary total disability benefits in the amount of $\ 5,297.43, representing benefits paid for the period of March 19, 2012 through October 12, 2012?

The employee testified at the evidentiary hearing in support of his case. Also, the employee presented at the hearing of his case one additional witness - Phillip Eldred, CRC, a vocational consultant. In addition, the employee offered for admission the following exhibits:

Exhibit 1. Deposition - Dr. Brent KoprivicaExhibit 2. Deposition - Dr. Dale HalfakerExhibit 3. Medical Records - Dr. Samuel SandersExhibit 4. Medical Records - Dr. BrockmanExhibit 5. Medical Records - ConcentraExhibit 6. Medical Records - Mercy Spine CenterExhibit 7. Medical Records - Dr. HopkinsExhibit 8. Medical Records - Mercy Clinic (Dr. Corsolini)Exhibit 9. Medical Records - Mercy HospitalExhibit 10. Medical Records - Work Evaluations \& Ergonomic AssessmentsExhibit 11. Medical Records - Dr. LilyExhibit 12 Curriculum Vitae - Phillip EldredExhibit 13. Vocational Report - Phillip Eldred

The exhibits were received and admitted into evidence.

The employer and insurer presented one witness at the hearing of this case - Randy Dallen Gettling. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit A. Deposition of Employee - Gregory PulliamExhibit B. Medical Report and Curriculum Vitae - Susan McKenna, Ph.D. Exhibit C. Printout reflecting TTD benefits paid by employer/insurer Exhibit D. Reports and surveillance video from Blue Eagle Investigations Exhibit E. Reports and surveillance video from Blue Eagle InvestigationsExhibit F. Report of Investigation (November 2 - 9, 2015)Exhibit G. Report of Investigation (April 7, 2016)Exhibit H. Report of Investigation (April 21, 2016)

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 administrative law judge took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Entry of Appearance by Attorney John Wise

- Motion \& Order Granting Leave to Withdraw as Attorney for Employee by Attorney Leah B. Burkhead

- Attorney Lien by Leah B. Burkhead

- Answer of Second Injury Fund to Claim for Compensation

- Answer of Employer/Insurer to Claim f