Johnny Kittrell v. Townsend Tree Service

The award and decision of Administrative Law Judge Maureen Tilley, issued April 5, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 10^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Johnny Kittrell

Injury No. 12-085091

Dependents: N/A

Employer: Townsend Tree Service

Additional Party: N/A

Insurer: Ace American Insurance Co. c/o Gallagher Bassett

Hearing Date: December 5, 2016

Checked by: MT/kg

1. Are any benefits awarded herein? Yes.
2. Was injury or occupational disease compensable under Section 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? October 30, 2012.
5. State location where accident occurred or occupational disease contracted: St. Francois County, Missouri.
6. Was above employee in the employment of above employer at the time of the alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of employment? Yes.
9. Was claim for compensation filed within time required by law? Yes.
10. Was the employer insured by above insurer? Yes.
11. Describe work Employee was doing and how accident happened or occupational disease contracted: Employee was working as a tree-trimming foreman for Townsend Tree Service. Employee was dragging brush. Employee tripped and fell onto his back and buttocks. Employee felt immediate pain in his low back and both legs.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease? Lumbar spine.
3. Nature and extent of any permanent disability: See Award.
4. Compensation paid to date for temporary total disability: $19,704.96 representing 66 weeks (some of the payment weeks were intermittent).
5. Value of necessary medical aid paid to date by Employer-Insurer: 134,738.28
6. Value of necessary medical aid not furnished by Employer-Insurer: 474.88
7. Employee's average weekly wage: 517.44.
8. Weekly compensation rate: 344.96 for both permanent partial disability and permanent total disability purposes.
9. Method of wage computation: By agreement.
10. Amount of compensation payable: See findings.
11. Second Injury Fund Liability: N/A
12. Future requirements awarded: Employer-Insurer are to provide Employee with future medical and psychiatric aid that flows from the injury of October 30, 2012.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Daniel J. Walkenhorst.

On December 5, 2016, Johnny Kittrell appeared in person for hearing on his claim against the employer Townsend Tree Service and its Insurer, Ace American Insurance c/o Gallagher Bassett. Employee was joined by his attorneys, Daniel J. Walkenhorst and Ellen E. Morgan. The employer-insurer was represented by William Lemp. The record was left open for thirty days from the date of the hearing, for admission of additional evidence. Therefore, the record was closed on January 4, 2017. At the time of the hearing the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: On or about October 30, 2012, Townsend Tree Service was the employer of Employee and was operating under and subject to the provisions of Missouri Workers' Compensation Act and its liability was insured by Ace American Insurance Company c/o Gallagher Bassett.
2. Covered Employee: On or about October 30, 2012, Employee was an employee of Townsend Tree Service and was working under and subject to the provisions of the Workers' Compensation Act.
3. Accident: On or about October 30, 2012, Employee sustained an accident arising out of and in the course of his employment.
4. Notice: The employer received notice pursuant to law.
5. Statute of Limitations: The employee's claim was filed within the time allowed by law.
6. Average Weekly Wage and Rate: The average weekly wage of the employee was $\ 517.44 and the rate for temporary total disability and permanent total disability was $\ 344.96 and the rate for permanent partial disability was $\ 344.96.
7. Medical causation: Employee's orthopedic injury was medically causally related to accident or occupational disease but Employer-Insurer deny medical causation for any psychiatric/psychology through the date of hearing or need for such care in the future.
8. Medical aid furnished by Employer-Insurer: The Employer-Insurer paid \$134,738.28 in medical aid.
9. Medical Aid Furnished by Employer-Insurer: The employer-insurer paid $\ 19,704.96 representing 66 weeks (some of the payment weeks were intermittent) from October 30, 2012 through February 4, 2014. The parties also stipulated that there was an underpayment of TTD of $\ 3,062.40.

1. Previously incurred medical aid: Employee made a claim for previously incurred medical aid. The employer-insurer is disputing this claim as to: authorization, necessity and causal relationship.

1. Future medical aid: Employee is making a claim for future medical aid.
2. Medical causation: The employer-insurer is disputing the issue of medical causation regarding the issue of whether Employee needed psychiatric care and treatment.
3. Nature and extent of liability of the employer-insurer: The employee is making a claim for permanent total disability or, in the alternative, permanent partial disability.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

1. Deposition Transcript of Dr. Dwight Woiteshek dated 3-4-15
2. Deposition Transcripts of Dr. Adam Sky dated 1-26-15 \& 12-4-15
3. Deposition Transcript of James England dated 3-10-15
4. Medical Records - Ste. Genevieve County Ambulance District
5. Certified Medical Records - Mineral Area Regional Medical Ct.
6. Certified Medical Records - Dr. James Coyle
7. Certified Medical Records - St. Luke's Hospital
8. Certified Medical Records - Neurological \& Electrodiagnostic Institute of St. Louis/Dr. Daniel Phillips
9. Certified Medical Records - Mercy Hospital/St. Louis
10. Certified Medical Records - Professional Imaging
11. Certified Medical Records - Farmington Sports \& Rehab Ctr.
12. Certified Medical Records - Parkland Health Center
13. Certified Medical Records - Dr. Andrew Wayne
14. Certified Medical Records - Advanced Ambulatory Surgical Care
15. Medical Records - B\&H Orthopedic Lab Inc.
16. Certified Medical Records - Iron County Medical Clinic
17. Certified Medical Records - MHHC
18. Certified Medical Records - Iron County Medical Center
19. Wal-Mart Pharmacy/prescription billing

Employer-Insurer Exhibits:

A. Deposition of Dr. James Coyle

B. Deposition of Dr. Robert Fucetola

C. Functional Capacity examination ordered by Dr. Coyle

D. Deposition of David Patsavas

As of the date of hearing, Employee was married to Misty Kittrell, and has three dependent children living at home, ages 20, 17 and 8. Employee was born on January 20, 1976, and was 40 years of age at the date of the hearing. He graduated from Caledonia High School in 1995, and while he was a star in physical activities, such as baseball and basketball, he described himself as a "poor" student in his academic classes. Employee has not received any vocational training or taken college courses.

When Employee first graduated from high school in 1995, he worked for a short time on the line at Little Tykes putting together plastic toys and later as a welder. He then worked for Botkin Lumber in Farmington, Missouri from the late part of 1995 through 2000, first as a laborer, and eventually working his way up to being a "working" supervisor. His duties at Botkin always involves handling lumber, including lifting 50 to 100 pounds on a frequent basis. He had no problems performing his duties at that job. In 2000, Employee went to work for Employer, Townsend Tree Service, as a tree trimmer, eventually rising to the position of foreman of a "crew." Townsend Tree Service contracted with utility companies to clear brush and tree limbs, etc. from utility lines, poles and right-of-ways.

For a period of about six months in 2006, when Employee was laid off from Employer, he worked for the Farmington Children's Home as an aide. His duties generally were to physically control and often restrain violent and out-of-control teenage children. He used his size and strength in this position to help maintain order when he had to, and did no teaching or counseling or other type of activity with the teenaged children. He was more of a "guard" than anything else. At the end of the approximately six month period, Employee was called back to work at Townsend and worked for the employer full-time until the date of