Jeffrey Gilman v. Missouri American Water Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 11-020246

**Employee:** Jeffrey Gilman

**Employer:** Missouri American Water Company

**Insurer:** Travelers Indemnity Company of America

**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 December 17, 2019. The award and decision of Administrative Law Judge Victorine R. Mahon, issued December 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 3rd day of September 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Improve: Jeffrey Gilman

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

I find that employee was not permanently or totally disabled due to the primary injury alone, but only in combination with his preexisting pulmonary condition. Employee did not return to work after the 2011 injury, due to not only the work injury, but also due to his asthma and pulmonary issues. When he filed for disability benefits through the Social Security office, he included his asthma as one of the reasons he could not work.

Also, the persuasive opinions from the experts show that the primary injury alone only rendered employee partially disabled at a rating ranging from 5% to 40% body as a whole regarding employee's physical injury to the lower back and 15% body as a whole regarding the psychological injury from the primary injury.¹ These combined percentages do not render employee totally disabled due to the primary injury alone. I find most persuasive the opinion of Dr. Rosenthal that employee only sustained a 30% permanent partial disability from the 2011 injury.

However, when combined with employee's preexisting pulmonary condition, I am persuaded that employee is permanently and totally disabled. Accordingly, pursuant to § 287.220 RSMo, the Second Injury Fund is liable for employee's permanent and total disability benefits, not employer.

I would modify the administrative law judge's award allowing benefits and hold the Second Injury Fund liable for employee's permanent total disability benefits. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

¹ I agree with the administrative law judge and do not find Dr. James Jackson's opinion persuasive.

Injury No.: 11-020246

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: March 16, 2011.
5. State location where accident occurred or occupational disease was contracted: Joplin, Newton 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: Employee was walking through a field at night while working on a water line when he stepped into a hole with his right foot causing him to fall.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Body as a whole referable to the lumbar spine and psyche.
14. Nature and extent of any permanent disability: Permanent Total Disability.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

1. Compensation paid to-date for temporary disability: $12,373.53.

1. Value necessary medical aid paid to date by employer/insurer: $17,936.77.

1. Value necessary medical aid not furnished by employer/insurer: Not in issue.

1. Employee's average weekly wages: 1,087.35.

1. Weekly compensation rate: 724.90 for Permanent Total Disability and Temporary Total Disability; $418.58 for Permanent Partial Disability.

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

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

See below

For past due Permanent Total Disability:

417 weeks at the rate of $724.90 per week

(November 8, 2011 to November 5, 2019 = 417 weeks)

**TOTAL:** $302,283.30

1. Second Injury Fund liability: None.

1. Future requirements awarded:

Beginning November 8, 2011, and continuing for the remainder of Employee's lifetime, Employer/Insurer shall pay $724.90 each week for permanent total disability, subject to review and modification as provided by law.

Interest shall be due as provided by law.

Employer/Insurer shall provide future medical treatment to cure and relieve the effects of the work injury consistent with the opinion of Dr. Koprivica.

The compensation awarded to Employee 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 Employee: William E. Peterson.

Employee: Jeffrey Lynn Gilman

Injury No. 11-020246

Dependents: Not Applicable

Employer: Missouri American Water Co.

Insurer: Travelers Indemnity Co. of America

Additional Party: Treasurer of Missouri as

Custodian of the Second Injury Fund

Hearing Date: October 1, 2019

On October 1, 2019, the undersigned administrative law judge conducted a final hearing in this case in Joplin, Missouri. Jeffrey Lynn Gilman (Employee) appeared in person and with his attorney, William E. Peterson. Missouri American Water Co. (Employer) and Travelers Indemnity Co. of America (Insurer) appeared through attorney Greg Carter. The Second Injury Fund (Fund) appeared through Assistant Attorney General Michael Bang. The parties reached stipulations of fact and narrowed the issues, as follows:

1. On March 16, 2011, Employer Missouri American Water Co. was operating subject to the Missouri Workers' Compensation Law and was fully insured by Travelers Indemnity Co. of America.
2. On March 16, 2011, Jeffrey Lynn Gilman was an employee of Employer, working subject to the Missouri Workers' Compensation Law.
3. On March 16, 2011, Employee sustained injuries to his back and psyche which arose out of and in the course of his employment with Employer.
4. The injury occurred in Newton County, Missouri. Jurisdiction and venue are appropriate.
5. Employee provided notice as required by $\S 287.420 RSMo.
6. The Claim for Compensation was filed within the time prescribed by \S 287.430 RSMo.
7. The average weekly wage was \ 1,087.35, yielding compensation rates of $\ 724.90 for permanent total and temporary total disability, and $\ 418.58 for permanent partial disability.
8. Employer/Insurer paid $\ 12,373.53 in temporary total disability and $\ 17,936.77 in medical benefits.
9. Employee reached maximum medical improvement on November 7, 2011.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

1. What is the nature and extent of permanent disability solely from the March 16, 2011 work injury?
2. If Employee is not permanently totally disabled from the March 16, 2011 work injury alone, then what is the extent of any permanent disability existing prior to March 16, 2011?
3. What, if any, is the liability of the Second Injury Fund?
4. Is Employee entitled to future medical care to cure or relieve the effects of the work injury?

The following exhibits were admitted without objection. No alterations of the exhibits were made since their admission.

1. Amended Claim for Compensation, Injury No. 11-020246;
2. Medical records - Freeman Health System (53 pages), certified November 4, 2011;
3. Medical records - Integris Baptist Regional Health Center, (6 pages), certified November 8, 2011;
4. Medical records - Integris Baptist Regional Health Center (72 pages) beginning with MRI Report dated January 4, 2012;
5. Medical records - SNSI (49 pages), certified November 8, 2011;
6. Medical records - Dr. Bradford Stephens (10 pages), certified November 11, 2011;
7. Medical records - St. John's Regional Medical Center (74 pages), certified November 22, 2011;
8. Medical records of Dr. Yasser Mokhtar, consisting of 28 pages, certified November 29, 2011;
9. Medical records of Dr. Bradford Stephens, consisting of 17 pages, certified February 1, 2012;
10. Medical records - Dr. John R. Smithson, Jr., (8 pages), certified February 13, 2012;
11. Medical records - Dr. Bradford Stephens (26 pages), certified April 13, 2012;
12. Medical records - Integris Baptist Regional Health Center (49 pages), certified December 26, 2012;
13. Medical records - Integris Baptist Regional Health Center (109 pages), beginning with medical request letter dated January 10, 2017 from William Peterson;
14. Medical records - Dr. Bradford Stephens (25 pages), certified January 17, 2013;
15. Medical records - Dr. Bradford Stephens (64 pages), beginning with medical request letter dated January 10, 2017 from William Peterson;
16. Medical records - Dr. Bradford Stephens (7 pages), beginning with fax cover sheet dated April 2, 2013 to Andrew Wood from Melissa;
17. Medical records - Dr. Bradford Stephens (6 pages), beginning with fax cover sheet dated September 12, 2012 to Andrew Wood from Melissa;
18. Medical records - Dr. John R. Smithson, Jr., (3 pages), certified July 14, 2013;
19. Medical records - Ortho 4 States (34 pages), certified February 2, 2015;
20. Medical records - Mercy McCune Brooks (94 pages), certified January 19, 2017;
21. Medical records - SNSI (21 pages), certified January 23, 2017;
22. Medical records - Walmart Pharmacy (14 pages), certified March 1, 2017;
23. Medical records - Walgreen Pharmacy (17 pages), certified March 3, 2017;

¹ Post hearing, Counsel for Employer/Insurer and Employee advised the Administrative Law Judge that reimbursement for past medical bills no longer was at issue.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

1. Medical records of Ortho 4 States (96 pages), certified April 28, 2017;

1. Medical records of Integr