Edward Burns v. Associated Electric Cooperative, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 17-091892**

**Employee:** Edward Burns

**Employer:** Associated Electric Cooperative, Inc.

**Insurer:** Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated December 9, 2019.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of § 287.510 RSMo.

The award and decision of Administrative Law Judge Maureen Tilley, issued December 9, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **27th** day of October 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Edward Burns

Injury No. 17-091892

ISSUED BY DIVISION OF WORKERS' COMPENSATION

Employee: Edward E. Burns

Injury No. 17-091892

Dependents: N/A

Employer: Associated Electric Cooperative, Inc.

Additional Party: N/A

Insurer: (Self Insured) TPA: Cannon Cochran Management Services

Hearing Date: September 9, 2019

Checked by: MT/kg

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the law? Yes

1. Date of accident or onset of occupational disease? 11-29-2017

1. State location where accident occurred or occupational disease contracted: New Madrid County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was repairing a lance which slipped off of a cart. This jerked Employee's left upper extremity. This resulted in an injury to Employee's left upper extremity, left shoulder, neck.

Page 1

Employee: Edward Burns

Injury No. 17-091892

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident or occupational disease: Left upper extremity, left shoulder, and neck.

1. Compensation paid-to date for temporary total disability: 0.00

1. Value necessary medical aid paid to date by Employer-Insurer? 12,076.20

1. Value necessary medical aid not furnished by Employer-Insurer? See findings

1. Employee's average weekly wage: 2,889.86

1. Weekly compensation rate: Temporary Total Disability: 926.01

Permanent Partial Disability: $483.48

1. Method wages computation: By agreement

1. Amount of compensation payable:

Unpaid medical expenses: N/A

Additional Medical Aid: See findings

TTD: N/A

This award is only temporary and partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

IF THIS AWARD IS NOT COMPLIED WITH, THE AMOUNT AWARDED HEREIN MAY BE DOUBLED IN THE FINAL AWARD, IF SUCH FINAL AWARD IS IN ACCORDANCE WITH THIS TEMPORARY AWARD.

Page 2

**Injury No. 17-091892**

On September 9, 2019, the employee, Edward E. Burns, appeared in person and by his attorney, Stephen L. Taylor, for a temporary or partial award. The employer-insurer was represented at the hearing by their attorney, Christiaan D. Horton. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the facts that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. **Covered Employer:** The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was self-insured. The third party administrator was Cannon Cochran Management Services.

1. **Covered Employee:** On or about the date of the alleged accident or occupational disease the employee was an employee of Associated Electric Cooperative, Inc. and was working under the Workers' Compensation Act.

1. **Accident:** On or about November 29, 2017, the employee had an accident or occupational disease arising out of and in the course of employment.

1. **Notice:** The employer had notice of the employee's claim.

1. **Statute of limitations:** The employee's claim was filed within the time allowed by law.

1. **Average weekly wage and rate:** The employee's average weekly wage was 2,889.86 per week. His compensation rate for temporary total disability was 926.01 per week. His compensation rate of permanent partial disability was $483.48.

1. **The employer-insurer paid $12,076.20 in medical aid.**

1. **The employer-insurer paid $0.00 in temporary total disability benefits.**

1. **Medical causation:** Whether Employee's injury was medically causally related to accident or occupational disease.

1. **Additional medical aid:** Employee is making a claim for additional medical aid.

The following exhibits were offered and admitted into evidence:

#### Employee's Exhibits:

1. **Medical Records**

- A. Dr. Mark Austin

- B. Focus Physical Therapy

- C. Dr. James Doll

- D. Dr. Daniel Phillips

Page 3

**Injury No. 17-091892**

E. Dr. Michael Smock

F. Poplar Bluff Regional Medical Center

1. Independent Medical Evaluation of Dr. David Robson dated 12/19/2018

1. IME Addendum of Dr. David Robson dated 3/19/2019

1. Deposition of Edward E. Burns

**Employer-Insurer's Exhibits:**

**A. Report of Injury**

B. Deposition of Dr. James T. Doll (page 26, line 17 through page 41 line 2, are excluded)

C. Dr. James T. Doll Addendum Report dated 8/28/2019 (not admitted)

D. Deposition of Dr. Robert Bernardi

E. Dr. Robert Bernardi, Independent Medical Evaluation Addendum dated 8/5/19 (not admitted)

F. Tests conducted on Employee by Auburn Park Imaging (MRI), Neurological Electro Diagnostic Institute, Inc. (Nerve Study), and St. Luke's CDI: Frontenac (Cervical Myelogram and CT Cervical Spine Post-Myelogram).

G. Dr. Michael Smock Records

All Exhibits of Employee were admitted without objection.

Employer's Exhibits A, D, F, and G were admitted without objection.

Employee made a "Seven-Day Rule" objection to Employer's Exhibit B, the Deposition of Dr. Doll, commencing on Page 26 of the Deposition. This objection was taken under advisement. After further reviewing the objection, page 26, line 17 through page 41 line 2, are excluded and not admitted into evidence. Employee's objection is sustained.

Employee objected to Exhibit "C", the Dr. Doll addendum, dated 8/28/2019, which was received by Employee on 8/29/2019, as it violates section 287.210 (7) RSMo. Employee was not given the report sixty (60) days before the hearing. Employee had no opportunity to cross examine the doctors. Employee objections were made on the basis of Hearsay, Improper Foundation, and being Prejudicial to Employee. This objection was taken under advisement. After further reviewing the objection, ALJ sustained Employee's objection. Therefore, the addendum to Exhibit "C" is not admitted into evidence.

Employee also objected to Exhibit "E", the Addendum Report of Dr. Bernardi dated 8/5/2019, sent to employee and received 8/13/2019. Employee's objection stated that the Addendum violated section 287.210 (7) RSMo as there was no notice of it being submitted in accordance with that section of law. Therefore, Employee objected based upon Hearsay, Improper Foundation and being Prejudicial to Employee. Employee objected stating that there was "No reasonable opportunity" given to cross examine the Doctor as Employer failed to submit the Dr. Bernardi addendum under 287.210 (7) RSMo. This objection was taken under advisement. After further reviewing the objection, ALJ sustained Employee's objection. Therefore, Exhibit "E" is not admitted into evidence.

Page 4

Employee: Edward Burns

Injury No. 17-091892

The Court also took administrative notice of the Division file in this matter.

Employee testified that he was a resident of Poplar Bluff, Missouri. He is married and is currently residing with his wife, Kim, and his 12 year-old daughter, Gracie. His testimony was that he has two emancipated children: Keith, 27; and Hunter, 21.

He graduated from Senath Hornersville High School in 1990 and that he attended two years of trade school while still in high school. He testified that he received on-the-job certifications, including one in pipe welding.

The Employee testified that he was hired by Presto Light as a general laborer to cut wires. He testified that he next worked at FARR Co. as a welder and recalls getting something in his eye while on the job there but no other injuries. He denied having any workers' compensation claims there.

Maverick Tube is the next place of employment recalled by Employee; he was in quality control where he inspected the threads on pipes. He stated that he was a welder and a pipe fitter and that the job entailed tacking and welding pipe fittings together and that he had no injuries there.

Employee said that from around 2006-2007 he worked at Mid Continent Nail for around 2-3 months where he was the "set up man", which he described involving setting up punch presses and had no injuries there.

Employee testified that he thereafter went to work from around 2007 through about 2010 at Zachary Construction as a pipe fitter. He stated that he had no injuries at this job.

Employee testified that he began working at Associated Electric (Employer) in 2010 and that he remains employed there. He stated he was hired in to be a journeyman working on high pressure welders as a mechanic. Employee testified that being a journeyman involves replacing boiler tubes, pumps and valves as well as performing other miscellaneous welding and mechanic work.

Employee testified that the Associated Electric job is physically strenuous, requiring him to descend into manholes by hanging down on one arm then twisting and turning simultaneously to perform the welding jobs required of him.

Employee said that prior to the November 29, 2017 injury at Associated Electric he had no family doctors, as he was not under a doctor's care for any condition. He said that the job for Employer was a 40 hour a week job but that in addition to those 40 hours he typically would work overtime hours. For example, Employee testified that in the week before the hearing he worked 76 hours.

Page 5

**Injury No. 17-091892**

When asked if he had had any complaints of his left upper extremity prior to November 29, 2017 he replied "no". He stated that prior to the injury that he had used his left upper extremity constantly. He was asked if he had ever seen a doctor regarding his left upper extremity, left arm or neck prior to the date of injury to which he replied "no."

Employee stated that he had seen a chiropractor, Dr. Smock, for low back and mid back pain. He said that he