Ronald Cox v. Missouri Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-015561

**Employee:** Ronald Cox

**Employer:** Missouri Department of Corrections

**Insurer:** Central Accident Reporting Office (CARO)

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 April 30, 2020. The award and decision of Administrative Law Judge Bruce Farmer, issued April 30, 2020, 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 ______ 19th ______ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls, Member

**Attest:**

Secretary

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.

The objective evidence in the record demonstrates that employee only had a 4\% permanent partial disability, B.A.W., as found by Dr. Todd Silverman. Dr. Silverman persuasively opined that employee's work-related symptoms were "mild and not limiting at this time." ${ }^{1}$

Dr. Silverman also opined that employee still had a significant activity level that indicated his ability to compete in the open labor market. Dr. Silverman stated:

[Employee's] level of activity includes independence with ADLs, woodworking, driving, hiking, hunting, taking trips, and watching a lot of You Tube videos and being quite conversant on political topics. I agree with the opinion of the vocational specialist [Mr. Terry Cordray] that Mr. Cox is capable of working.

I would modify the administrative law judge's award allowing benefits etc., at a level of a 4 % permanent partial disability, B.A.W. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

[^0]

[^0]: ${ }^{1}$ Dr. Silverman considered employee's "ongoing subjective symptoms of headache, dizziness and shortterm memory loss."

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 751-4231 FAX: (573) 751-2012

www.labor.mo.gov/DWC

APRIL 30, 2020

15-015561

Scan Copy

*Employee : RONALD L COX 08777835 7 4319 STATE ROAD H FULTON, MO 65251*Employer : DEPT OF CORRECTIONS PO BOX 236 JEFFERSON CITY, MO 65102-0236*Insurer Attorney : ATTY GENERAL ERIC SCHMITT PO BOX 899 SUPREME COURT BLDG JEFFERSON CITY, MO 65102

LIEN - DOUGLAS L VAN CAMP 714 W HIGH STREET JEFFERSON CITY MO 65101-1526

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

AWARD ON HEARING HLP

Please visit our website at www.labor.mo.gov/DWC


Employee: Ronald Cox

Injury No.: 15-015561

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Injury: Central Accident Reporting Office (CARO)

Hearing Date: February 3, 2020

Briefs filed: March 16, 2020

Checked by:

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 13, 2015
5. State location where accident occurred or occupational disease was contracted: Fulton, Callaway County
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: Claimant was assaulted by an inmate while working as a corrections officer.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Head, neck
14. Nature and extent of any permanent disability: See Award
15. Compensation paid to-date for temporary disability: $\ 43,644.16
16. Value necessary medical aid paid to date by employer/insurer: $\ 124,214.04

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: $\ 669.98
3. Weekly compensation rate: $\ 446.65 for TTD, PPD and PTD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Claimant last worked on March 13, 2015 and was paid TTD through the MMI date of November 30, 2016. He is owed from December 1, 2016 to the date of the hearing, February 3, 2020 in the amount of 165 weeks and 5 days, or $\ 74,016.29 and weekly benefits of $\ 446.65 per week for the remainder of Claimant's lifetime.

1. Future requirements awarded: Claimant is entitled to future medical treatment and the employer is ordered to provide the prescription of Cymbalta or other headache medication. The employer retains to right to designate the authorized treating physician.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % for all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Kiefer Law Office, LLC. The lien held by Van Camp Law Firm LLC to be satisfied by Kiefer Law Office, LLC.

Employee: Ronald Cox

Injury No. 15-015561

Dependents: N/A

Employer: Missouri Department of Corrections

Insurer: Central Accident Reporting Office (CARO)

Hearing Date: February 3, 2020

On February 3, 2020, the parties appeared for a final hearing. Ronald Cox ("Claimant") appeared in person and with counsel, Christine Kiefer. The Missouri Department of Corrections and CARO appeared through their attorney, Assistant Attorney General Erika Eliason. The parties requested the opportunity to submit post-hearing briefs and the case was submitted on March 16, 2020.

The parties agree that the issues in dispute are the nature and extent of Claimant's disability and future medical treatment.

The parties stipulated to the following facts:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this claim;
2. That venue for the evidentiary hearing is proper in Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, RSMO $\S 287,430$;
4. That both the Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant's average weekly wage is $\ 669.98 with compensation rates of $\ 446.65 for TTD, PTD, and PPD.
6. That Employee sustained an accident arising out of and in the course of his employment with The State of Missouri- Department of Corrections on March 13, 2015;
7. That the notice requirement of RSMO $\S 287.420$ does not serve as a bar to the claim for compensation;
8. That Employer paid medical benefits in the amount of $\ 124,214.04;
9. That Employer paid temporary disability benefits of $\ 43,644.16;
10. That Central Accident Reporting Office fully insured the Missouri Workers Compensation liability of The State of Missouri- Department of Corrections;
11. That the date of MMI is November 30, 2016.

Claimant offered Exhibits 1-23, which were admitted into evidence (below). The Employer offered Exhibit A, Deposition of Ronald Cox, Exhibit B, Report and IME of Dr. Silverman, and Exhibit C, Deposition and report of Terry Cordray. All exhibits were admitted without objection. Claimant testified on his behalf along with Carol Mobley and Mary Humphries.

Claimant was 59 years old at the time of the hearing. He has a high school diploma. He worked at the Department of Corrections as a Corrections Officer I for 30 years. Claimant's work history consisted of heavy machine operator, construction, and selling items he made at a woodworking shop.

Claimant's job as a utility officer required him to perform heavy lifting and the testing required him to drag a 150 -pound dummy after completing other physical tasks like running an obstacle course and doing pushups and pull-ups. The job required him to bend, stoop, walk, run, navigate stairs, perform CPR, clean or pack up cells, and qualify with a weapon. He testified that he had no problem quali