William Johnson v. RBJ Investments

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-098241

Employee: William R. Johnson

Employer: RBJ Investments (Settled)

Insurer: Accident Fund Insurance Co. of America (Settled)

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 August 24, 2017. The award and decision of Administrative Law Judge Emily S. Fowler, issued August 24, 2017, 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 $\qquad 23rd \qquad$ day of February 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: William R. Johnson

Injury No: 13-098241

Dependents: N/A

Employer: RBJ Investments (settled)

Insurer: Accident Fund Insurance Co. of America (Settled)

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

Hearing Date: July 19, 2017

Checked by: ESF/1h

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: December 12, 2013
5. State location where accident occurred or occupational disease was contracted: Holden, Johnson County, Missouri.
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 in the course and scope of his employment, he was loading firewood when he felt a sharp pain in his back.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Body as a whole
2. Nature and extent of any permanent disability: 15 % permanent partial disability to the body as a whole as settled between the employer and Employee
3. Compensation paid to date for temporary total disability: $\ 0
4. Value necessary medical aid paid to date by employer/insurer? Approximately \$52,057.00
5. Value necessary medical aid not furnished by employer/insurer? n/a
6. Employee's average weekly wages: $\ 936.36
7. Weekly compensation rate: $\$ 624.24 / \ 446.85
8. Method wages computation: By stipulation

1. Amount of compensation payable: the claim between employer and Employee was settled for 15 % permanent partial disability to the body as a whole.
2. Second Injury Fund liability: The Second Injury Fund shall pay to Employee the sum of $\ 624.24 per week beginning April 4, 2014, for permanent total disability payments for as long as Employee remains permanently and totally disabled. The Second Injury Fund shall be given a credit of $\ 446.85 for the first 60 weeks and thereafter shall pay the full amount of $\ 624.24 per week for as long as Employee remains permanently and totally disabled
3. Future requirements awarded: N/A

This Court awards attorney fees in the sum of 25 % of all benefits herein to Mr. James Martin, attorney for Employee.

Employee: William R. Johnson

Injury No: 13-098241

Dependents: N/A

Employer: RBJ Investments (settled)

Insurer: Accident Fund Insurance Co. of America (Settled)

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

Hearing Date: July 19, 2017

Checked by: EF/lh

On July 19, 2017 the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, William Johnson, appeared in person and with counsel, James Martin. The Second Injury Fund appeared through Assistant Attorney General Kim Fournier. The Employer/Insurer appeared not having previously settled their claim with the Employee.

The parties stipulated to the following:

1. That the employer, RBJ Investments, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on December 12, 2013, and was fully insured by Accident Fund Insurance Company of America;
2. That William Johnson was its Employee and he was working subject to the law in Holden, Johnson County, Missouri;
3. That Missouri has jurisdiction to hear this claim;
4. That the Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;
5. That the Employee's average weekly wage was $\ 936.36 resulting in a compensation rate of $\ 624.24 for temporary total and permanent total disability compensation and $\ 446.85 for permanent partial disability compensation;

Issued by DIVISION OF WORKERS' COMPENSATION Employee: William R. Johnson

1. That the Employer has paid no temporary total disability but has paid approximately $\ 52,057.00 for medical care.

The issues to be resolved by this hearing are as follows:

1. Whether Employee sustained an accident arising out of and in the course of his employment;
2. What date Employee reached maximum medical improvement;
3. Whether the Employee suffered any disability from the last accident; and, if so, the nature and extent of such disability;
4. Whether the Second Injury Fund is liable to the Employee for any disability compensation herein.

The Employee, William Johnson, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit A - Stipulation for compromise settlement with the employer

Exhibit B - Deposition of James A. Stuckmeyer, M.D.

Exhibit C - Deposition of Michael J. Dreiling

The Second Injury Fund did not call any witnesses and did not offer any exhibits into evidence.

Based on the above exhibits and the testimony of Mr. Johnson, I make the following findings:

William Johnson (hereinafter referred to as Employee) is a 52 year old man at the time of hearing. He graduated high school in 1983 and spent a short time at Bailey Tech studying HVAC but dropped out early. He also spent three days at Longview College. His only other job training was on-the-job training. His employment history is as set out in Mr. Dreiling's deposition. Basically he worked at a filling station changing tires and pumping gas. He worked at Payless Cashways as a lumber loader and driving a forklift. Since then he has been self employed. His self employment work has always been manual labor. He has done landscaping work including building walls, running a bobcat and doing hardscapes. He did this work for 12 years. He identified it as very physical. He then bought a nursery where he continued to do work that included selling and loading topsoil, dirt, paving stones, bricks, and mulch. This was also very physical. He did this work for 8 to 10 years. During this time he had approximately 15 employees. His last employment was with RBJ Investments which was a company he owned. He sold rock, firewood and second-hand materials out of a warehouse. He also sold unclaimed freight.

On December 12, 2013, he was selling firewood. A customer with an SUV asked him if he would load the firewood into his vehicle. He was picking up firewood when he felt a

sensation in his back. This caused severe pain and he fell to the ground. The coworker finished the job and Employee went to a hospital in Lee's Summit that evening where they did a sonogram of his legs, gave him narcotics for pain, then released him to see his own doctor. He then went to Saint Luke's East and was there for nine days for pain management. He was given an MRI which showed he had a disk herniation. He was scheduled for surgery but on the day of surgery he was about to take a shower and sat on the shower chair which collapsed under him. At that time his hips were x-rayed. He was given a pelvic injection. He was released from Saint Luke's and went to see Dr. Clough who eventually performed surgery at Menorah Medical Center on January 23, 2014.

Prior to the surgery with Dr. Clough, he could not bear weight on his left leg. His foot hurt so bad he scratched it until it bled. After the surgery, he did get some relief to his leg. His current symptoms include pain in his low back, inability to bend, and severe pain down the left foot and leg. He has trouble putting on his shoes or the brace that he has on his left leg. He now has severe pain in his groin area if he walks very far and numbness in his butt cheeks. He can no longer take long car rides and has had to sell his property on Table Rock Lake due to lack of income. He has done no work since his accident. He has more severe pain when the weather changes and he uses more narcotics for pain relief at those times. Dr. Clough released Employee on April 4, 2014 to be seen as needed. He had gone back to see the nurse practitioner at Dr. Clough's a few times since then. Prior to this last accident he was only wearing one AFO on his left ankle due to foot drop. Now because his foot is even worse he wears another AFO to keep his foot from moving side to side. The pain goes up his left leg to his groin and into the right side of his groin. This all started approximately two months after his last surgery.

Employee went to see a number of doctors after he was released by Dr. Clough. He saw Dr. Clymer who gave him an injection in his back which he states did not help him. In fact, the pain really has not changed since April 2014. He still takes medication including OxyContin six times a day, Klonopin two times a day, Zoloft once a day and ibuprofen. The medication makes him tired and irritable. He has been hospitalized for stomach problems due to these medications. He sleeps approximately 3 to 4 hours a night off and on. He now sleeps in a different bed from his wife as he would keep getting up at night and wake her up. He has had to get up at night to use a hairdryer or Jacuzzi in order to get heat into his leg which is very cold. He has no income and no social life. He has sold off properties and equipment since his accident due to lack of income. Prior to the accident, he would go on vacations and trips with his family sometimes 4 to 5 trips to the condo in Table Rock Lake each year. They would also try to go to Florida every other year. Since the accident they have not been on any vacations. He stated that there were no jobs he could do due to his injuries.

Prior to his accident, Employee was injured in 1993 when he was working as a landscaper at Payless Cashways. He was at the service counter when a ceiling tile fell and hit him on the back. The ceiling tile weighed several hundred pounds. He sustained injury to his low back and head, suffering a herniated disc. After he was released from medical care, he returned to work on a light-duty basis but slowly got back to his previous duties. As time went on he believes arthritis set in and he started having pain in his left leg. Employee had another accident in 2004. He does not recall the specific incident but started having radiating pain down his l