Gary Page v. OCCI, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 11-001987

Employee: Gary Page

Employer: OCCI, Inc.

Insurer: Travelers Indemnity Company of America

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 July 11, 2017, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued July 11, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 30^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Gary Page

Injury No. 11-001987

Dependents:

$\begin{array}{ll}\text { Before the } & \\ \text { DIVISION OF WORKERS' } & \\ \text { COMPENSATION } & \\ \text { Department of Labor and Industrial } & \\ \text { Relations of Missouri } & \\ \text { Jefferson City, Missouri }\end{array}$

Employer: OCCI, Inc.

Add'l Party: Second Injury Fund

Insurer: Travelers Indemnity Company of America

Hearing Date: May 9, 2017

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: January 12, 2011.
5. State location where accident occurred or occupational disease was contracted: State of Texas
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: Prior to January 12, 2011, Claimant's left ankle was chronically painful and swollen; on January 12, 2011 Claimant "rolled" his left ankle while moving material on a skid.
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: None.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: $\ 4,569.60.

1. Value necessary medical aid paid to date by employer/insurer? $\ 2,036.90.
2. Value necessary medical aid not furnished by employer/insurer? None.
3. Employee's average weekly wages: $\ 921.00.
4. Weekly compensation rate: $\ 614.00 for temporary total disability and permanent total disability; $\ 418.58 for permanent partial disability.
5. Method wages computation: Stipulation.

None.

The claim against Employer and Insurer is denied in full.

The claim against the Second Injury Fund is denied in full.

Employee: Gary Page

Departments: OCCI, Inc.

Add'l Party: Second Injury Fund

Insurer: Travelers Indemnity Company of America

Hearing Date: May 9, 2017

These cases (Injury No. 08-096549 and Injury No. 11-001987) were consolidated for hearing. The evidentiary hearing was held in these cases on May 9, 2017, in Jefferson City. Gary Page ("Claimant") appeared personally and by counsel, Scott Holwitt. OCCI, Inc. ("Employer") appeared by counsel, Lynn Newmark. Travelers Indemnity Co. of America ("Insurer") appeared by counsel, Lynn Newmark. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by counsel, Eric Doner, Assistant Attorney General. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on June 16, 2017.

In Injury No. 08-096549, the hearing was held to determine the following issues:

1. Whether the work-related accident of October 3, 2008 is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
2. Employer-Insurer's liability, if any, for temporary total disability benefits;
3. Employer-Insurer's liability, if any, for permanent partial disability benefits or permanent total disability benefits;
4. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits; and
5. Employer-Insurer's liability, if any, to provide Claimant with future medical benefits pursuant to $\S 287.140$, RSMo.

In Injury No. 08-096549, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Callaway County and adjoining counties, including Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the average weekly wage is $\ 1,156.26, with compensation rates of $\ 770.84 for temporary total disability and permanent total disability and $\ 404.66 for permanent partial disability;
6. That Gary Page sustained an accident arising out of and in the course of his employment with OCCI, Inc. on October 3, 2008;
7. That Employer-Insurer has paid medical benefits in the amount of $\ 196,109.08;
8. That Employer-Insurer has paid temporary total disability benefits in the amount of $\ 107,619.58
9. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein; and
10. That Travelers Indemnity Co. of America fully insured the Missouri Workers' Compensation liability of OCCI, Inc. at all relevant times.

In Injury No. 11-001987, the hearing was held to determine the following issues:

1. Whether Gary Page sustained an accident arising out of and in the course of his employment with OCCI, Inc. on January 12, 2011;
2. If found to have been sustained, whether the January 12, 2011 work accident is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
3. Employer-Insurer's liability, if any, for temporary total disability benefits;

1. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits;
2. Employer-Insurer's liability, if any, for temporary total disability benefits; and
3. Employer-Insurer's liability, if any, to provide Claimant with future medical benefits pursuant to $\S 287.140$, RSMo.

In Injury No. 11-001987, the parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Callaway County and adjoining counties, including Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the average weekly wage is $\ 921.00, with compensation rates of $\ 614.00 for temporary total disability and permanent total disability and $\ 418.58 for permanent partial disability;
6. That Employer-Insurer has paid medical benefits in the amount of \$2,036.90;
7. That Employer-Insurer has paid temporary total disability benefits in the amount of $\ 4,569.60;
8. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein; and
9. That Travelers Indemnity Co. of America fully insured the Missouri Workers' Compensation liability of OCCI, Inc. at all relevant times.

Claimant's evidence at hearing consisted of his own live testimony, as well as the following exhibits:

Employer: Gary Page

Injury No. 11-001987

Exhibit 1 $\qquad Medical records from Boone County Hospital

Exhibit 2 \qquad Medical records from Iowa Methodist Medical Center

Exhibit 3 \qquad$ Medical records from Des Moines Orthopedic Surgeons (Dr. Stephen Taylor)

Exhibit 4 $\qquad Medical records from Columbia Orthopedic Group (Dr. Paul Shurnas)

Exhibit 5 \qquad WITHDRAWN

Exhibit 6 \qquad$ Medical records from Orthopedic Center of St. Louis (Dr. John Krause)

Exhibit 7 $\qquad Medical records from Advance Physical Therapy

Exhibit 8 \qquad$ Medical records from University Hospital \& Clinics (Dr. Joseph Burris)

Exhibit 9 $\qquad$ Medical records from Midwest Orthopedic Specialists (Dr. Curtis Burton)

Exhibit 10 $\qquad$ Deposition of Dr. Jerry Meyers (12/18/2012)

Exhibit 11 $\qquad$ Deposition of Dr. D. Wade Hammond (03/31/2015)

Exhibit 12 $\qquad$ Deposition of Gary Weimholt, MS, CDMS (05/15/2015)

Exhibit 13 $\qquad Photographs of feet, front view only (2011)

Exhibit 14 \qquad Photographs of feet, front and left side views (2011)

Exhibit 15 \qquad Photograph of feet (2017)

Exhibit 16 \qquad Photograph of feet (2017)

Exhibit 17 \qquad Photograph of feet (2017)

Exhibit 18 \qquad$ Job Log/Journal (2012-2017)

The Second Injury Fund did not object to the admission into evidence of Exhibits 1 through 4 and 6 through 18. Employer-Insurer did not object to the admission into evidence of Exhibits 1 through 4, 6, 7, and 9 through 17. Employer-Insurer objected to the admission of Exhibits 8 and 18. The objection to the admission of Exhibit 18 was overruled at the hearing. The objection to the admission of Exhibit 8, the certified medical records of Dr. Joseph Burris, was deferred at the hearing, and, upon further consideration and review of the evidence, is hereby overruled.

Employer-Insurer's evidence consisted of the following exhibits:

Exhibit A Deposition of Dr. John Krause (02/18/2013)

Exhibit B Deposition of Karen Kane-Thaler (11/09/2016)

Exhibit C Deposition of Gary Page (04/26/2017)

Exhibit D Deposition of Gary Page (07/11/2012)

Exhibit E Surveillance video footage

Exhibit F Surveillance video footage

Exhibit G Surveillance video footage

The Second Injury Fund stipulated to the admission into evidence of Exhibits A through G. Claimant stipulated to the admission into evidence of Exhibits A through B and E through G. Claimant objected to the admission into evidence of Exhibits C and D (the 2012 and 2017 depositions of Claimant) as cumulative and duplicative. Claimant's objections were overruled and Exhibits C and D were admitted into evidence.

The Second Injury Fund offered no evidence.

Gary Page ("Claimant") is forty-three years old and is currently unemployed, having last worked on January 12, 2011, for Employer. Claimant is a high school graduate, describing himself as an average student. He attended college in Utah for a short time in or around 1991, but left to return home to northeast Missouri before the end of the first year. In or around 1994, Claimant obtained vocational/technical training in welding from Hannibal Vocational-Technical School. Claimant has also received on-the-job training in heavy equipment operation. Much of Claimant's work history consists of construction labor, mainly as a welder or heavy equipment operator. He performed such duties for Employer for a few weeks before his injury of October 3, 2008. Claimant performed similar work for Schick Steel from early 2007 until late 2008, and performed welding/fabrication work for Knapheide in Quincy, Illinois