James Chambers v. City of Galena

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 15-088178

Employee: James Chambers

Employer: City of Galena (settled)

Insurer: Missouri Rural Services (settled)

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 April 15, 2020, and awards no

compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued

April 15, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______22nd ______ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

Employee: James Chambers

I disagree with the finding that employee is not permanently and totally disabled. The persuasive evidence shows that employee is not able to compete in the open labor market.

The administrative law judge concluded that employee was not permanently and totally disabled because employee had a regular job that was "not sporadic or part-time." Award, p. 11. The award continued, "[s]ince 2015, [employee] has demonstrated that he is able to maintain steady, full-time employment regardless of any physical impairments." Id. However, the test to show permanent and total disability is not whether employee had maintained steady employment, but whether employee is able to compete in the open labor market.

I find persuasive that employee was to follow Dr. William Hopkin's restrictions, including the need to lie down periodically. With these restrictions, employee was unable to compete in the open labor market. Mr. Benjamin Hughes opined, "[n]oting Dr. Hopkins' restrictions, [employee] would be unable to compete and especially with the needing the ability to periodically lie down and rest."Tr., p. 1747. Mr. Hughes further stated that employee's "current work at the campground would be considered seasonal, gainful employment in my opinion--however, [employee] is accommodated in order to maintain the position." Tr., p. 1748.

Mr. Hughes later appeared to change his opinion to conclude that employee could compete in the open labor market because of a short video that showed employee scooping dirt into a barrel that he placed in the back of his pickup truck. However, this video did not contradict Dr. Hopkins' restrictions to lay down periodically. Outside of possibly bending, ${ }^{1}$ the video did not appear to show employee standing or walking for more than 30 minutes at a time, lifting over 15 pounds on occasion, walking on uneven surfaces, climbing ladders, or walking up or down stairs/steps. In the video, employee further did not lift dirt over his head, but only to his shoulder level.

Accordingly, I conclude that employee met his burden to establish that he is permanently and totally disabled. I would further assess liability against the Second Injury Fund. Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1}$ Mr. Hughes indicated that employee was bending in the video, but I find that term vague. Accordingly, I do not find employee's actions in being able to "bend," while keeping in place the vast majority of Dr. Hopkins' restrictions, persuasive evidence that employee was able to compete in the open labor market. I am more persuaded that because employee needs to lie down periodically, employee is unable to compete in the open labor market.

1. Are any benefits awarded herein? No.
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 9, 2015.
5. State location where accident occurred or occupational disease was contracted: Nevada, 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 driving a truck with a loaded trailer that overturned after hitting a pothole.
12. Did accident or occupational disease cause death? No. Date of death? Not applicable.
13. Part(s) of body injured by accident or occupational disease: Body as a whole.
14. Nature and extent of any permanent disability: 29.6 percent to the body as a whole, as recited in the stipulation for compromise settlement in the primary case between Claimant and Employer/Insurer.

1. Compensation paid to-date for temporary disability: $\ 1,976.00.
2. Value necessary medical aid paid to date by employer/insurer? $\ 17,424.17.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Employee's average weekly wages: Sufficient to yield the following rate of compensation.
5. Weekly compensation rate: $\ 329.38 for all purposes.
6. Method of wage computation: By stipulation.

1. Amount of compensation payable: Settled as to Employer/Insurer.
2. Second Injury Fund liability: None.
3. Future requirements awarded: None.

James D. Chambers (Claimant) sustained work-related injuries on November 9, 2015. He settled his claim for the primary injury as against Employer/Insurer, which stipulation was approved on October 25, 2017. Claimant now seeks permanent total disability benefits against the Second Injury Fund. Claimant appeared personally and with his attorney, Scott R. Pettit and James Pettit. The Treasurer of the State of Missouri as Custodian of the Second Injury Fund appeared by Assistant Attorneys General Sheila Skulborstadt and Skyler Burks. The parties stipulated to certain facts and narrowed the issues, as follows:

(1) On November 9, 2015, the City of Galena, Missouri, was operating as a employer subject to the Missouri Workers' Compensation Law, and during this time was fully insured or self-insured. (2) At this same time, James D. Chambers was an employee of the above-named employer, and was working under and subject to The Missouri Workers' Compensation Law. (3) On November 9, 2015, Claimant sustained injuries by accident to his body as a whole, which arose out of and in the course and scope of employment. (4) The above-referenced employment and injuries occurred in Nevada, Missouri. The parties agreed to venue in Springfield, Greene County, Missouri. There is no challenge to jurisdiction or venue. (5) Claimant notified Employer of his injuries as required by $\S 287.420, RSMo. (6) The Claim for Compensation was filed within the time prescribed by \S 287.430, RSMo. (7) Claimant's average weekly wage \ 494.07, yielding a compensation rate of $\ 329.38 for all purposes. (8) Employer paid $\ 17,424.17 in medical aid. (9) Employer paid $\ 1,976.00 in temporary total disability. (10) Claimant reached maximum medical improvement on April 5, 2016.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: James Chambers

Injury No.: 15-088178

1. Nature and extent of permanent disability from the last injury.
2. Liability of the Second Injury Fund, if any.

The following exhibits were offered and admitted:

1. Report of Injury;
2. IME Report of Dr. William Hopkins dated July 19, 2016 and Addendum dated June 2, 2017;
3. Photos of Work Environment at James River Campground;
4. Dr. William Hopkins CV;
5. Deposition of Lance Clayton;
6. Deposition of Marcy Essary;
7. Vocational Evaluation Report of Phillip Eldred;
8. CV of Phillip Eldred;
9. Stipulation for Compromise Settlement 2006 injury with Employer, Stone County;
10. Stipulation for Compromise Settlement 2006 injury with Second Injury Fund;
11. Stipulation for Compromise Settlement 2015 injury with Employer, City of Galena, Missouri;
12. Medical Records of Peak Performance/Clay Therapy pages 100-164;
13. Medical Records of Mercy Hospital Aurora pages 165-201;
14. Medical Records of Nevada Regional Medical Center pages 202-234;
15. Medical Records of Springfield Neurological pages 235-530;
16. Medical Records of Cox Health pages 531-765;
17. Medical Records of Dr. Damon Thomas pages 766-820;
18. Medical Records of Dr. Damon Thomas/Crane Medical Care pages 821-1149;
19. MSHP Collision report for collision dated 11/09/2015;
20. Claimant's Worker's Compensation History;
21. City of Galena Employment file;
22. Claimant's Notes regarding Work Comp history (deposition Exhibit 1);
23. Claimant's list of Employment History (deposition Exhibit 2).
24. Dr. Lennard's rating of May 19, 2016;
25. Marionville School records;
26. Surveillance video from Employer;
27. OASYS report produced by Phil Eldred.

¹ The undersigned judge made no alteration or marks to any exhibit.

Page 4

I. Deposition of James Chambers on June 1, 2018 ..... AGO 001

II. C.V. - Benjamin Hughes, Rehabilitation Counselor ..... AGO 054

III. Benjamin Hughes' December 23, 2019 Report ..... AGO 056

IV. Deposition of Benjamin Hughes on January 3, 2020 ..... AGO 073

V. 2017 Form W-2 ..... AGO 168

VI. 2018 Form W-2c ..... AGO 169

VII. 2019 Form W-2 ..... AGO 170

VIII. Gateway Investigations Surveillance Video ..... AGO 171

IX. City of Galena Surveillance Video ..... AGO 172 (admitted over objection)

X. DORIR report certified on January 29, 2020 ..... AGO 173

XI. Dr. Lennard report of April 5, 2016 ..... AGO 175

XII. Eldred work history sheet

Claimant James D. Chambers is 51 years of age, had been married for 33 years, and has 3 grown children. He dropped out of high school before the $12^{\text {th }}$ grade. His academic skills are below high school level. He reads a newspaper. He has no GED. He is left hand dominant. He has no formal vocational training or military service, but holds a CDL passenger endorsement driver's license.

Most of Claimant's jobs have been labor intensive. In the 1980's Claimant worked part time as a farm laborer. In the early 1990's, he worked at Rantz Concrete painting, patching and loading/unloading yard ornaments. In the late 1990's, Claimant worked for Stone Co