Jonathan Parker v. Asplundh Tree Expert Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge With Supplemental Opinion)

**Injury No.:** 14-042039

**Employee:** Jonathan Parker

**Employer:** Asplundh Tree Expert Company (settled)

**Insurer:** Liberty Mutual Insurance Company (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental correcting opinion.

On page 7 of the administrative law judge's award, the fourth sentence in the first paragraph states:

> He was sent to Dr. Adrian Jackson and eventually had a cervical fusion at the C3-C4 level, which occurred in August of 2015 (emphasis added).

We delete this sentence and replace it with:

> He was sent to Dr. Adrian Jackson and eventually had a cervical fusion at the C3-C4 level, which occurred in September of 2015.

On page 10 of the ALJ's award, the first four sentences of the second paragraph state:

> It is interesting to note in the medical records, and especially in the reports of Dr. Stuckmeyer and Mr. Dreiling, as well as Mr. Dreiling's deposition, that there is much made of Dr. Stechschulte and Dr. Hess's restrictions. It is noted that neither Dr. Hess nor Dr. Stechschulte placed permanent restrictions on Employee. It is hard for this Court to understand how after shoulder surgery and especially cervical fusion at the high level of C3-C4 there would be no permanent restrictions of any kind. This Court does not take Dr. Stechschulte nor Dr. Hess's reports at face value (emphasis added).

We delete these sentences and replace them with:

> It is interesting to note in the medical records, and especially in the reports of Dr. Stuckmeyer and Mr. Dreiling, as well as Mr. Dreiling's deposition, that there is much made of Dr. Stechschulte and Dr. Jackson's

MNKOI 0001610423

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Injury No.: 14-042039

restrictions. It is noted that neither Dr. Jackson nor Dr. Stechschulte placed permanent restrictions on Employee. It is hard for this Court to understand how after shoulder surgery and especially cervical fusion at the high level of C3-C4 there would be no permanent restrictions of any kind. This Court does not take Dr. Stechschulte nor Dr. Jackson's reports at face value.¹

The above technical corrections to the administrative law judge's award do not detract from her legal reasoning or her correct analysis of the evidence in the record.

**Conclusion**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Emily S. Fowler, issued September 6, 2018, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

We approve and affirm 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 **26th** day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

[Signature]

Secretary

¹ We note that Dr. Jackson's office records include notes of his physician assistant, Derek W. Barnard, approved by Dr. Jackson. See transcript, 392,393,396,400,401, and 406.

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: June 12, 2014
5. State location where accident occurred or occupational disease was contracted: Independence, Jackson 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, Employee was driving a company truck when he turned his head and felt a sharp pain. This occurrence came after recurrent neck pain from his job duties which required him to do heavy lifting and repeatedly look up to trim trees.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

1. 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 as to the neck

1. Nature and extent of any permanent disability: permanent partial disability: 40% permanent partial disability to the body as a whole as settled with the employer. Permanent total disability as to the Second Injury Fund

1. Compensation paid to date for temporary total disability: $14,195.17

1. Value necessary medical aid paid to date by employer/insurer? $88,140.49

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 1,057.23

1. Weekly compensation rate: 704.82/$446.85

1. Method wages computation: by stipulation of the parties

Compensation payable

1. Amount of compensation payable: Employer and Employee settled the primary claim for 40% to the body as a whole.

1. Second Injury Fund liability: Second Injury Fund shall pay permanent total disability to Employee of $704.82 beginning November 25, 2015. The Second Injury Fund shall be given a credit of 446.85 per week for 160 weeks and thereafter shall pay to Employee 704.82 for as long as Employee remains permanently and totally disabled.

1. Future requirements awarded: N/A

The Court awards attorney fees in the sum of 25% of all benefits herein to Steffanie Stracke, attorney for Employee.

WC-32-R1 (6-81)

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On July 11, 2018, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, Jonathan Parker, appeared in person and was represented by his attorney Steffanie Stracke. The Employer/Insurer did not appear as they had previously settled the primary claim. The Second Injury Fund appeared through Counsel Mr. Eric Lowe.

STIPULATIONS

The parties stipulated to the following:

1. That the employer, Asplundh Tree Experts Co., was an employer operating subject to the provisions of the Missouri Workers' Compensation law on June 12, 2014, and was fully insured by Liberty Insurance Co.;
2. That Jonathan Parker was its Employee and he was working subject to the law in, Independence, Jackson County, Missouri;
3. That Employee sustained an accident by repetitive trauma arising out of and in the course of his employment;
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 Employee's average weekly wage is 1,057.23 resulting in a compensation rate of 704.82 for temporary total and permanent total disability and a permanent partial rate of $446.85;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

1. That the Employer has paid 14,195.17 in temporary total disability benefits and has paid 88,140.49 for medical care;

1. Employee reached maximum medical improvement on November 25, 2015;

1. Employer and Employee settled the primary claim for 40% permanent partial disability to the body as a whole.

ISSUES

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

1. Whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability

1. Whether the Second Injury Fund is liable to the Employee for any disability compensation.

FINDINGS

The Employee, Jonathan Parker, testified in person and offered the following exhibits, all of which were admitted into evidence:

- **Claimant's Exhibit A** - Sixty Day Submission, Dr. James Stuckmeyer's reports dated February 15, 2016 and July 3, 2016

- **Claimant's Exhibit B** - Sixty Day Submission, Dr. James Stuckmeyer's report dated January 12, 2018

- **Claimant's Exhibit C** - Deposition testimony of Michael Dreiling with attached exhibits

- **Claimant's Exhibit D** - Stipulation for Compromise Settlement, 14-042039 with the employer

- **Claimant's Exhibit E** - Stipulation for Compromise Settlement, 14-019448 with employer/insurer

The Second Injury Fund did not object to the reports of Dr. James Stuckmeyer contained in Claimant's Exhibits A and B but objected to the underlying medical records Dr. James Stuckmeyer reviewed because no affidavit was attached. §287.210.7 states that the "notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other healthcare providers...within ten days after receipt of such notice a party shall dispute whether a report meets the requirements of the complete medical report by providing written objections by the offering party stating the grounds for the dispute, and at the request of any party, the administrative law judge shall rule upon such objections upon pretrial hearing whether the report meets the requirements of a complete medical report and upon the admissibility of the report or portions thereof." Nothing in the statute requires that the underlying medical records have an affidavit and the Second Injury Fund failed to object within ten days of the dates each of the sixty-day exhibits were filed; therefore, the Second Injury Fund's objection is overruled and Claimant's Exhibits A and B are admitted into evidence.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

The Second Injury Fund did not call any witnesses or offer any exhibits.

Based on the above exhibits and the testimony of the Employee, I make the following findings:

Employee Jonathan Parker (hereinafter referred to as Employee) is a 46 year-old man at the time of hearing whose date of birth is March 8, 1972. He currently resides in Roscoe, Missouri. He testified he needed to move there because he needed to be closer to his family to help him out. He currently has one son, Seth, living with him who is 19. Employee never made it past the ninth grade in school as he married his pregnant girlfriend at the time. He was 16 years old when he dropped out of school. He attempted to obta