Gary Fuwell v. Missouri Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-087198

**Employee:** Gary Fuwell

**Employer:** Missouri Department of Corrections

**Insurer:** Central Accident Reporting Office

**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 October 16, 2019. The award and decision of Administrative Law Judge, Victorine R. Mahon, issued October 16, 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 **10th** day of August 2020.

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**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**S. Viki Curls**

Shalonn K. Curls, Member

**Attest:**

**Secretary**

Injury No.: 13-087198

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: VRM/ps

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: November 21, 2013.
5. State location where accident occurred or occupational disease was contracted: Licking, Texas County.
6. Was above claimant 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 claimant was doing and how accident occurred or occupational disease contracted: During the course and scope of employment, while checking an unsecured area at the prison, claimant fell down a flight of stairs.
12. Did accident or occupational disease cause death? No. Date of death? N/A.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary Fuwell

Injury No.: 13-087198

1. Part(s) of body injured by accident or occupational disease: Lumbar spine.

1. Nature and extent of any permanent disability: See below.

1. Compensation paid to-date for temporary disability: 35,659.45, with a credit due Employer in the amount of 2,793.91 (by agreement).

1. Value necessary medical aid paid to date by employer/insurer? 107,969.33.

1. Claimant's average weekly wages: 566.89.

1. Weekly compensation rate: $377.92.

1. Method wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Beginning September 28, 2016, and continuing for the remainder of Claimant's lifetime, Employer shall pay to Claimant weekly benefits in the amount of $377.92 for permanent total disability. Employer is entitled to a credit in the amount of $2,793.91.

1. Second Injury Fund liability: None.

1. Future requirements awarded:

In addition to permanent total disability, Employer is liable for future medical treatment to cure and relieve the effects of the work-related injury of November 21, 2013.

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

The compensation awarded to 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: Van Camp Law Firm, LLC.

This case was heard by the undersigned Administrative Law Judge on August 13, 2019. The parties were afforded an opportunity to submit briefs or proposed awards on or before August 30, 2019. Gary L. Fuwell (Claimant) appeared personally and with his attorney Kevin V. Spear of the Van Camp Law Firm. Employer appeared by Assistant Attorney General Cara Harris. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund (SIF) appeared by Assistant Attorney General Keyla Rhoades. The parties agreed to certain facts and narrowed the issues, as follows:

1. On November 21, 2013, the Missouri Department of Corrections was a self-insured employer operating under and subject to The Missouri Workers' Compensation Law.
2. On that same date, Claimant Gary L. Fuwell was an employee of Employer and was working under and subject to The Missouri Workers' Compensation Law.
3. On that same date, Claimant sustained an injury by accident, which arose out of and in the course of his employment with Employer.
4. The employment and accident occurred in Licking, Texas County, Missouri. The hearing was held in West Plains, Missouri, in adjoining Howell County. Jurisdiction and venue are proper.
5. Claimant notified Employer of his injury as required by § 287.420 RSMo.
6. The Claim for Compensation was filed within the time prescribed by § 287.430 RSMo.
7. On November 21, 2013, Claimant's average weekly wage was 566.89, yielding a compensation rate of 377.92 for all purposes.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

(8) Employer paid $35,659.45 to Claimant for 94 weeks, 2.5 days of temporary total disability. The parties agree that Employer is entitled to a credit against permanent disability in the amount of 2,793.91.

(9) Employer paid 107,969.33 for Claimant's medical treatment.

(10) Claimant reached maximum medical improvement on September 27, 2016.

ISSUES

1) Is Employer liable for future medical treatment?

2) What is the nature and extent of disability against Employer?

3) What is the nature and extent of disability against the Second Injury Fund, if any?

EXHIBITS

Claimant offered the following exhibits, which were admitted into evidence without objection:

1. Deposition, Report and CV of Dr. David Robson
2. Medical Records - Texas County Memorial Hospital
3. Medical Records - The Orthopedic Center of St. Louis
4. Medical Records - Advanced Care Physical Therapy
5. Medical Records - Advanced Care Physical Therapy
6. Medical Records - Work Evaluations and Ergonomics Assessment, Inc.
7. Medical Records - Mercy Clinic, Inc.
8. Medical Records - Springfield Neurological and Spine Institute, LLC
9. Medical Records - Neurological and Electrodiagnostic Institute of St. Louis
10. Medical Records - Pain and Rehabilitation Specialist of St. Louis
11. Records - Missouri Division of Workers' Compensation
12. Van Camp Law Firm Expenses
13. Van Camp Law Firm Agreement
14. Dr. David Volarich Reports dated February 8, 2017, May 1, 2019 and CV
15. Deposition, Report and CV of Mr. Phillip Eldred
16. Medical Records - Texas County Memorial Hospital
17. Medical Records - Texas County Memorial Hospital
18. Medical Records - Advanced Care Physical Therapy
19. Medical Records - Neuro Spinal Surgery
20. Medical Records - Deborah Belt-Kell
21. Medical Records - Comprehensive Spine Care
22. Medical Records - Advanced Spine Institute
23. Van Camp Law Firm Expenses

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

A. Deposition - Dr. Herbert Mark Crabtree

B. Report - Dr. Ted Lennard, SNSI

C. Report - Dr. Brett Taylor, Orthopedic Center of St. Louis

D. Report - Dr. P. Brent Koprivica

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

E. Deposition - Mr. Benjamin Hughes

The Second Injury Fund did not offer any exhibits.

Claimant testified credibly. At the time of the hearing, he was 62 years old and resided with his wife and one of his sons. He had lived in Houston, Missouri, a rural town with less than 2,000 people, for the last 25 years.

Claimant graduated high school in 1976. He received some training and certificates in "Information Processing" and "Medical Assistant" approximately 20 years ago. The Information Processing is out of date. The medical assistant training was for his personal enrichment to help take care of children that he and his wife fostered.

From 1976 until 1979, Claimant served in the Air Force from 1976 until 1979. Following his discharge, he worked for a local factory and did construction work off and on. He started at Durham Metal Fabricating, a factory in Houston, Missouri, in 1992. He started on the fabrication line and then was promoted to supervisor. His job was physically demanding, even as a supervisor, requiring him to lift sheet metal weighing 70-100 pounds. After leaving his job at Durham, he did some construction work again until he was hired by the Department of Corrections in 2002.

Claimant worked as a Correctional Officer for 13 years. He began his career in Corrections at the Algoa facility and later transferred to the South Central Correctional Center ("SCCC") in Licking, Missouri. Claimant worked in a Housing Unit at the time of his injury. This was a physically demanding position. Claimant's job required that he monitor inmates, perform hourly walks through the yard, conduct searches, and provide breaks to other Correctional Officers as needed.

**Right Knee** - Claimant injured his right knee at work in 1979 or 1980, which required surgery. Following that accident, Claimant's right knee would get stiff and ache, which was exacerbated by cold or wet weather, climbing stairs, and running. Consequently, his right knee is weaker than his left. He wore an elastic over-the-counter knee brace.

**Neck** - In 2004, Claimant suffered a work-related injury to his neck resulting in C5-6 and C6-7 allograft fusions reinforced with anterior spinal plate instrumentation. Following this injury, Claimant was careful with his neck. Rotation of the neck can initiate headaches with radiating pain which can last one or two days, requiring an extensive amount of over-the-counter medication. He has ongoing radiating pain, weakness, and numbness in his right arm into his fingers. These symptoms increase with cold weather.

Claimant has suffered numerous prior injuries to his back. In 1998, he suffered a back injury after a lifting incident. He was diagnosed with a low back strain and returned to work. In 2000, he again injured his back while lifting and twisting. He was treated conservatively and settled a workers' compensation case for 10-percent permanent partial disability to the whole body. In 2008, Claimant suffered a strain in his lower back on the right side when he was dragging a locker from underneath a bunk while working at SCCC in Licking. In 2009, Claimant hurt his back in a non-work-related accident when he stepped on a nail and fel