Ollie Hickmon v. Propak Logistics, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-024814

**Employee:** Ollie Hickmon

**Employer:** Propak Logistics, Inc.

**Insurer:** Liberty Mutual Insurance Corporation

**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. The award and decision of Administrative Law Judge Angela C. Heffner, issued June 29, 2018, 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 21st day of February 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- Robert W. Cornejo, Chairman

- Reid K. Forrester, Member

- Curtis E. Chick, Jr., Member

**Attest:**

- Secretary

Employer: Propak Logistics, Inc.

Insurer: Liberty Mutual Insurance Corporation

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

Hearing Date: April 26, 2018 Checked by: ACH/drl

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: April 10, 2013
5. State location where accident occurred or occupational disease contracted: Kansas City, Jackson County, Missouri
6. Was above employee in the 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 happened or occupational disease contracted: Employee was lifting a pallet he had just repaired and was moving it when the pallet got caught on a nail gun resulting in injury.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: Right hip, back, and body as a whole.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

1. Compensation paid to date for temporary disability: Approximately $55,700.26

1. Value necessary medical aid paid to date by employer/insurer? 156,915.90

1. Employee's average weekly wages: 751.59

1. Weekly compensation rate: $501.06/433.58

1. Method wages computation: Parties stipulate.

COMPENSATION PAYABLE

1. Amount of compensation payable:

From Employer and Insurer:

For past Temporary Total Disability

May 1, 2014 through January 25, 2015 at $501.06 per week.

For Permanent Total Disability

Beginning March 23, 2016 and continuing for the remainder of Claimant's lifetime,

Employer/Insurer shall pay Claimant permanent total disability at the weekly rate of $501.06.

1. Second Injury Fund liability: None.

1. Future requirements awarded:

Employer/Insurer shall be responsible for future medical to cure and relieve the effects of the work injury to Claimant's right hip and body as a whole, referable the low back.

This Award is subject to review and modification as provided by law. Interest shall accrue as provided by law.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Steffanie Stracke

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

Employee: Ollie Hickmon

Injury No.: 13-024814

Employer: Propak Logistics, Inc.

Insurer: Liberty Mutual Insurance Corporation

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

Hearing Date: April 26, 2018

Checked by: ACH/drl

On April 26, 2018, the Employee, Employer, and Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, Mr. Ollie Hickmon (Employee or Claimant), appeared in person and with counsel, Ms. Steffanie Stracke. The Employer, Propak Logistics, Inc. and Liberty Mutual Insurance Company, (Employer), appeared through counsel, Ms. Stephanie Warmund. The Second Injury Fund (SIF) appeared through counsel, Assistant Attorney General Alexandra Alpough.

The parties stipulated to the following:

1. That on or about April 10, 2013, Propak Logistics Inc. was an employer operating subject to Missouri Workers' Compensation law with its liability fully insured by Liberty Mutual Insurance Company;
2. Mr. Hickmon was its employee working subject to the law in Kansas City, Jackson County, Missouri;
3. That Mr. Hickmon sustained an injury arising out of the course and scope of employment.
4. Mr. Hickmon notified Employer of his injuries and filed his claim for compensation within the time allowed by law;
5. Mr. Hickmon earned an average weekly wage of 751.59 resulting in a compensation rate of 501.06 for temporary total disability, and $433.58 for permanent partial disability.

1. Whether the Employee is entitled to temporary total disability benefits from April 1, 2014 to January 25, 2015

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

1. Whether the Employer is entitled to reimbursement by the Employee of temporary total disability benefits from March 26, 2014 to March 31, 2014.
2. Whether Employer must provide the Employee with medical care in the future.
3. Whether Employee suffered any disability and, if so, the nature and extent of Employee's disability, and whether the Employee is permanently and totally disabled as to the Employer.
4. Whether the Second Injury Fund is liable to the Employee for any disability compensation.

Employee testified on his own behalf and offered the following exhibits which were admitted into evidence without objection.

- A Notice of Filing of Medical Reports of Dr. Stuckmeyer's Reports of September 3, 2014, August 28, 2016, and March 13, 2017 and attached Medical Records

- B Notice of Filing of Medical Reports of Dr. Stuckmeyer's Reports of January 10, 2018, and attached medical Records

- C Deposition Transcript of Terry Cordray

Employer offered the following exhibits which were admitted into evidence without objection.

- 1 Notice of Deposition of Dr. Krempec's Medical Report

- 2 Notice of Filing Dr. Ciccarelli's Medical Report

- 3 Deposition of Stella Doering

- 4 Video Moving Fridge

- 5 Video Playing with Kids

- 6 Release of all Claims

- 7 Facebook Photo 1/12/16

- 8 Facebook Photo 10/1/16

- 9 Photo in Car of Seat

- 10 Preferred Physical Therapy Records

- 11 Marvin's Midtown Chiropractic Clinic, LLC Records

- 12 Providence Medical Center dated 6/3/07

- 13 Providence Medical Center dated 11/6/07

- 14 Providence Medical Center dated 12/6/07

- 15 Providence Medical Center dated 5/5/10

- 16 Dr. Harding's Records

Second Injury Fund offered the following exhibits which were admitted into evidence without objection.

- 1 Claimant Deposition Volume 1

- 2 Claimant Deposition Volume 2

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

Claimant, Ollie Hickmon, testified credibly. He is presently 39 years old. At the time of his work-related accident on April 10, 2013, he had been employed at Propak Logistics for 13 months. He last worked for Employer on May 1, 2014 when he gave Employer a note from Dr. Harding stating he was unable to work indefinitely. He has not worked anywhere since May 1,2014.

Mr. Hickmon graduated from Turner High School. He testified that he struggled in school with reading, spelling, and math. Claimant was not in special education classes, however, he testified that he attended classes in a Learning Center and most of his classes were vocational and not academic in nature. Claimant has not received any formal training after high school graduation. He testified that he learned skills when he was on the job. Claimant does not have any computer or clerical skills.

After he graduated from high school, Claimant worked full time at Omega Concrete Company for approximately one and a half years. He would pick up concrete forms, guide them onto a trailer and unhook them from a crane. He walked around the yard a lot. This job required forceful pushing and pulling.

Claimant then worked for H\&H Auto Salvage, his father's auto repair and salvage company for three years. This position required heavy labor. He picked parts off of vehicles, removed transmissions, changed out motors and changed tires. No real automotive skills were required to do this position. Claimant supervised his younger brothers who also worked there but did not schedule their work days or have hiring or firing authority. He testified that his role as a supervisor was to make sure his brothers were doing the work assigned to them.

Mr. Hickmon then worked for Twin City Security as a guard at a UPS facility for two years. He checked identification numbers on trailers as the trucks arrived and departed the facility. He would climb a long ladder to get on top of a trailer to unlock it by breaking the seal requiring physical exertion. Claimant walked or biked the perimeter of the yard.

After leaving Twin City Security, Claimant worked for his brother's home remodeling company, J\&H Improvement, for one to two years. They performed a wide variety of tasks from full demolition and remodeling of rooms to roofing. This position required heavy lifting and strenuous physical exertion. Claimant did not handle the paperwork or any accounting related to the company.

Claimant then worked for Green Leaf Construction as a laborer cleaning up work sites, picking up materials, demolition, and climbing ladders to take tools to other employees. He testified that he was required to lift more than 35 pounds, bend, twist, and stand for a prolonged amount of time. Claimant moved into a site assistant supervisor position. Employee had a higherlevel supervisor; however, if he was not at the site, Claimant was in charge. He monitored what the subcontractors were doing to ensure they were performing the tasks assigned to them. If a crew needed help with a task, Claimant would help them. Mr. Hickmon was unable to continue his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

employment with Green Leaf because he was off of work for a long period of time recovering from a motor vehicle accident.

On June 3, 2007, Employee was injured in a motor vehicle accident resulting in an injury to his right shoulder that required surgical repair and an injury to his lower back. On December 6, 2007, Dr. Mark Maguire performed an arthroscopic debridement of a type 1 SLAP lesion with subacromial bursectomy. X-rays of Employee's lumbar spine revealed facet joint arthropathy with minimal spondylolisthesis at L5-S1. Mild degenerative disc disease was also detected in the x-rays.

Claimant te