Frank Starks v. Import Specialists, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-063148

**Employee:** Frank Starks

**Employer:** Import Specialists, Inc.

**Insurer:** United Fire & Casualty Co.

**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 September 17, 2019. The award and decision of Administrative Law Judge Victorine R. Mahon, issued September 17, 2019, 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 **23rd** day of June 2020.

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**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**S. Kiki Curls**

Shalonn K. Curls, Member

**Attest:**

**Secretary**

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Frank Starks

Injury No.: 15-063148

1. Employee's average weekly wages: 855.00.

1. Weekly compensation rate: 570.00 (TTD)/$464.58 (PPD)

1. Method wages computation: By agreement.

1. Amount of compensation payable:

- For unpaid temporary total disability: 26,544.90

- Unreimbursed medical expenses: 3,502.95

- Permanent total disability: (see below)

1. Second Injury Fund: None.

1. Future Requirements:

For permanent total disability, beginning October 10, 2018, and continuing for the remainder of Employee's lifetime, Employer/Insurer shall pay to Employee weekly benefits in the amount of $570.00.

Employer/Insurer shall provide future medical care to cure and relieve the effects of the work injury. Employer/Insurer shall name the health care provider who shall direct care consistent with the recommendations of Dr. Charapata. Its failure to do so shall be deemed a waiver of Employer/Insurer's right to select the healthcare provider, and Employee then shall have the right to select his own provider and shall be entitled to reimbursement of his related medical expenses.

Except as to future medical treatment, the compensation awarded herein shall be subject to a lien of 25 percent in favor of Attorney Patrick J. Platter of the law firm of Neale & Newman, LLP, as a fee for necessary and reasonable services provided to Employee. From the fee awarded, Neale & Newman, LLP, shall satisfy the lien filed on behalf of Hosmer & Wise, P.C., in the amount of 1,500 in fees and 482.08 in expenses.

This Award is subject to review and modification as provided by law. Interest shall be paid according to law.

The undersigned Administrative Law Judge conducted a final hearing, in Springfield, Greene County, Missouri. Employee, Frank Starks, appeared in person and with his attorney, Patrick Platter. Import Specialists, Inc., and its insurer, United Fire & Casualty Insurance Co., appeared by attorney Brian McBrearty. Anthony Garrels appeared as Employer's corporate representative. The Treasurer of Missouri, as Custodian of the Second Injury Fund, appeared by Assistant Attorney General Skyler Burks. The parties stipulated to certain facts and narrowed the issues, as follows:

1. Frank Starks worked as an employee for Import Specialists, Inc. (Employer).
2. Both Employee and Employer were subject to the Missouri Worker's Compensation Law.
3. Venue and jurisdiction is appropriate in Greene County, Springfield, Missouri.
4. Employer was fully insured by United Fire & Casualty Company.
5. Employee suffered an accident and was injured as a result of that accident on August 5, 2015.
6. These injuries arose out of and in the course of employment.
7. Notice was provided as required by § 287.420 RSMo.
8. The claim was filed timely.
9. The accident medically caused the conditions for which benefits are claimed.
10. The average weekly wage is 855.00, yielding compensation rates of 570 for temporary total and permanent total disability and $464.58 for permanent partial disability.
11. Employer/Insurer have paid medical expenses in the amount of $66,140.51.
12. Employer/Insurer paid temporary total disability benefits in the amount of 68,075.10. Of this amount, 40,000 was paid in a lump sum in 2018.
13. Counsel for Employee seeks an attorney's fee of 25 percent of all disability awarded.
14. Counsel for Employee agrees to satisfy the lien filed by the law firm of Hosmer and Wise, P.C., which includes 1,500 in attorney's fees of 482.08 in expenses.
15. As permitted by 8 CSR 50-2.060(2)(B)1B, due to the complexity of the issues involved and extraordinary circumstances requiring rebuttal expert testimony by deposition, the record remained open more than 30 days. This occurred at the request of Employee's counsel and without objection by any party.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Frank Starks

Injury No.: 15-063148

1. What is the nature and extent of any permanent disability?
2. Does Employer/Insurer have liability for any future medical treatment?
3. Does Employer/Insurer owe temporary disability benefits in the amount of $26,544.90?
4. Is Employer/Insurer owe medical expenses in the amount of $3,502.95?
5. What is the nature and extent of any liability of the Second Injury Fund?
6. Should future medical treatment be awarded, and does Employer/Insurer retain the right to select the medical providers?

The following exhibits were offered and admitted into evidence:² ³

1. Complete Medical Report of Dr. Steven Charapata.
2. Supplemental Complete Medical Report of Dr. Steven Charapata.
3. Medical records - Ferrell-Duncan Clinic.
4. Medical records - Springfield Neurological and Spine Institute.
5. Medical records - Cox Medical Center.
6. Medical records - Ozarks Community Hospital.
7. Medical records - Family Medical Walk-In Clinic.
8. Walgreens prescription records.
9. Medical report - Dr. Scott Wingerter dated December 12, 2017.
10. Medical report - Dr. Scott Wingerter dated March 22, 2018.
11. Timeline of medical treatment and medical examinations.
12. Motion for Production.
13. Amended Motion for Production.
14. Handicapped decal certificate.
15. Rebuttal deposition of Dr. Steve Charapata (with attached exhibits).

1. Deposition of Dr. Ted Lennard (with attached exhibits).
2. Letter dated May 12, 2016.
3. Job description dated 09/08/15.

No exhibits were admitted into evidence on behalf of the Second Injury Fund.

Upon notice to the parties, the Administrative Law Judge took official/administrative notice of the file of the Division of Workers' Compensation. It was not marked as an exhibit.

² The record remained open until the submission of Exhibit 15, which was received into evidence, without objection, on August 19, 2019.

³ All exhibits appear the same as when they were offered for admission. None of the highlighting or other marks in the exhibits were made by the Administrative Law Judge.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Frank Starks

Injury No.: 15-063148

Employee resides near Fair Grove, Missouri, with his wife of 41 years. Employee attended public schools through the 11th grade. He does not have a high school diploma or a GED. He has no formal vocational or technical education, no college credits, and no military experience.

Employee is slightly built, weighing approximately 125 pounds and stands five foot, six inches in height. Dr. David Hicks at Ferrell-Duncan mentioned in chart notes that Employee looked malnourished. At one point prior to surgery, Employee's weight had dropped to approximately 92 pounds.

Employee worked in automotive positions his entire adult life, last working for Import Specialists, Inc., from 2001 - 2015. During his first four years with the company, he was a parts specialist. When the service manager passed away in 2005, the owners - Anthony and Janet Garrels - offered Employee the position of service and parts manager. Employee and his wife also purchased a 10 percent share of the company by paying $25,000.00. The previous service manager similarly worked with the ownership share. Despite the ownership share, Mr. Starks still was considered an employee of the company.

Employee's desk was located in the garage. The garage had two floors. The second floor held parts of lighter weight. His desk was close to the adjacent office used by Mr. and Mrs. Garrels. There was also an 18 x 20 foot "showroom" that held the cars that had been repaired. The garage had ten stalls. The business typically employed four to five mechanics.

Employee's role as a service and parts manager requi