James Haag v. Terry Snelling Construction

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-041850

**Employee:** James K. Haag

**Employer:** Terry Snelling Construction

**Insurer:** Depositors Insurance Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated May 10, 2018.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued May 10, 2018, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 10th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Employee: James K. Haag

Injury No: 17-041850

Employer: Terry Snelling Construction

Insurer: Depositors Insurance Company

Hearing Date: April 3, 2018

Checked By: MSS/drl

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287 RSMo? Yes
3. Was there an accident or incident of occupational disease under the law? Yes.
4. Date of Accident of onset of occupational disease? March 17, 2017.
5. State location where accident occurred or occupational disease was contracted: Cass 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 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: Claimant was lifting pieces of concrete and suffered injury to his back.
12. Did accident or occupational disease cause death? No. Date of Death? N/A.
13. Part(s) of body injured by accident of occupational disease: Back, body as a whole.
14. Nature and extent of any permanent disability: To be determined

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No. 17-041850

1. Compensation paid to date for temporary disability? $0.00

1. Value necessary medial aid paid to date by employer/insurer? $0.00

1. Value necessary medial aid not furnished by employer/insurer? To be determined

1. Employee's average weekly wage: 927.65

1. Weekly compensation rate: 618.43

1. Method wages computation: By agreement of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable: Weekly benefits at $618.43 per week beginning October 20, 2017, and to continue until Claimant at maximum medical improvement.

Temporary total disability benefits: $618.43

Medical costs: To be determined

1. Employer liability: To be determined

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No: 17-041850

Employer: Terry Snelling Construction

Insurer: Depositors Insurance Company

Hearing Date: April 3, 2018

Checked By: MSS/drl

This case comes on for hearing before Administrative Law Judge Siedlik on April 3, 2018. The Claimant James Haag was present with his counsel, Mr. Mark Kolich. The Employer and Insurer were represented by their counsel, Ms. Shannon Moore.

The case involves injuries alleged on or about March 17, 2017, while the Claimant was in the employ of Terry Snelling Construction and allegedly sustained injuries by accident arising out of and in the course and scope of employment in Cass County, Missouri. At the time of the injuries, the parties were subject to the Missouri Workers' Compensation law and the employer's liability insured by Nationwide Insurance. The Employer had allegedly been provided notice of an injury and claims were timely filed.

The average weekly wage is agreed to be 927.65 and the compensate rate agreed to be 618.43. There have been no weekly benefits or medical expenses paid to date.

The issues to be taken up include:

1. Accident;
2. Notice;
3. Whether the accident arose out of the course and scope of employment;
4. Medical causation;
5. Need for future medical care;
6. Nature and extent of temporary total disability.

EVIDENCE PRESENTED

The employee testified at the hearing in person and, additionally, the employee offered Exhibits A through M, which were received into evidence.

Exhibit A Curriculum Vitae of Harold A. Hess, M.D.

Exhibit B Medical Report of Harold A. Hess, M.D. dated 10/20/17

Exhibit C Medical Records from Schroeder Chiropractic

The employer and insurer offered no live testimony and offered Exhibits 1 through 14. Counsel for the Claimant objected to the admission of Employer/Insurer Exhibit No. 1, the medical report of Dr. Robert Ebelke on the basis of hearsay statements within the body of the doctor's report. After reviewing the medical report of Dr. Ebelke, I find no basis to exclude the medical report of the doctor based on the doctor's passing reference to a statement made by the Claimant's prior employer regarding the Claimant's work history. I, therefore, find the Claimant's objection to Employer/Insurer No. 1 is overruled and that exhibit is admitted as well as the remaining Employer/Insurer Exhibits 2 through 8. There was an objection to Employer/Insurer Exhibit No. 9 and that exhibit was not admitted into evidence. Employer/Insurer Exhibits 10 through 14 were admitted.

The Claimant, James Haag, testified in person that at the time of trial he is 39 years old, born June 22, 1979, and had worked as a concrete finisher for Terry Snelling Construction. The Claimant testified he sustained an injury sometime in March of 2017 while lifting a piece of

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No. 17-041850

concrete weighing approximately 25 pounds after which he twisted and felt an immediate pop in his back. The Claimant stated he had a pain immediately in his low back and into his right leg and foot as well as pain down his left leg to the knee. The Claimant stated he immediately reported his accident to his supervisor, Glenn, at the time of its occurrence. The Claimant stated his supervisor asked if he could finish the day, to which the Claimant replied in the affirmative and finished that day's shift. The Claimant believed the pain would resolve and did not request treatment that day. The Claimant continued to work for approximately two weeks in increasingly greater pain to the point where at the end of a period of approximately two weeks after the lifting incident, he informed his supervisor, Glenn, that he did not believe he could carry on with his duties for the remainder of that day. The Claimant testified Glenn asked him to finish the day and let him do broom work to finish out that day's shift. The Claimant again did not specifically request treatment that day and none was provided. The Claimant testified he was instructed that the following day, a Saturday, was a mandatory work day and testified that, even though his supervisor knew of his inability to do the normal job duties, he was instructed to show up the following day. Upon returning to work the following day as ordered, the Claimant was sent home because of other related issues which cancelled the concrete work for that day. The Claimant did not return to that employer and has not worked for that employer since.

The Claimant testified he contacted his supervisor, Glenn, later to request treatment and was told by Glenn to go see someone about his medical care. The Claimant sought chiropractic care from Schroeder Chiropractic. The Claimant again requested medical treatment from Glenn and was told that the employer was too busy to discuss this matter and the Claimant was thereafter discharged.

The Claimant testified he was able to find work with Mike Jones in Pleasant Hill and recalls working for approximately one month driving a skid steer. The Claimant testified that job lasted approximately one month with rarely a full week worked. The Claimant testified that that employment ended when the portion of the project to which he was able to participate had ended.

The Claimant testified between March and September of 2017, he sought out and obtained chiropractic treatment on a number of occasions at different providers, including Schroeder and Hampton Chiropractic, Lee's Summit Medical Center, Research Medical Center, and Truman Medical Center.

The Claimant first sought treatment on March 20, 2017, from Dr. Sarah Sharp, the chiropractor, wherein a history of accident included "hurt when getting back to work pouring concrete, has worked hurt the last week or so. Pain down both legs, worse with extension and work." The Claimant sought follow-up care with Dr. Sharp where some improvement was noted.

The Claimant next sought treatment on April 5, 2017, at the Lee's Summit Medical Center emergency room. Claimant reported a three-week history of back pain after twisting and lifting concrete at work. The Claimant thereafter sought treatment on May 23, 2017, from

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James K. Haag

Injury No. 17-041850

Dr. Hampton, a chiropractor, who recorded back and leg pain since onset at work lifting a heavy rock. That treatment note also referenced chronic low back pain for almost 13 months, which the Claimant denies and believes the reference is a typographical error and the correct number would have been 3 months of prior back pain. The Claimant was seen again by Dr. Hampton in June of 2017 with a slight reduction in pain from the initial visit. The Claimant was seen in the emergency room on June 3, 2017, at the Truman Medical Center. The history was of a work-re