Jamie Overstreet v. TAMKO Building Products

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 18-009989**

**Employee:** Jamie E. Overstreet

**Employer:** TAMKO Building Products

**Insurer:** ACE American Insurance Company

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 July 14, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karen Wells Fisher, issued July 14, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 8th ______ day of June 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence within the 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 award of the administrative law judge should be reversed.

I find that employee's February 12, 2018 primary injury arose out of his employment with employer. I also find that employer should have been found liable for employee's temporary total disability (TTD), permanent partial disability (PPD), and future medical benefits.

Unlike the claimant in Miller v. Mo. Highway \& Transp. Comm'n, ${ }^{1}$ employee was required to think and operate at a faster pace during his job at employer than he did in normal, nonemployment life. Moreover, employee's case is different from that in Annayeva v. SAB of the TSD of the City of St. Louis ${ }^{2}$ because of employee's increased risk of injury caused by the cracked, uneven, inclined, low-lit, asphalt surface where semi-trucks pull through where employee was injured, as proven by the testimony and exhibits in this case. The circumstances in employee's case are also different from those present in Johme v. St. John's Mercy Healthcare ${ }^{3}$ because of the substantial evidence of employee's unequal exposure at work to the cause of his injury and the hazards of the walking surface where his injury occurred. Employee's February 12, 2018 primary injury is compensable because it arose out of and in the course of his employment. As a result, I believe that employee is entitled to TTD benefits from February 13, 2018 through March 5, 2018 and again from April 2, 2018 through April 12, 2018. This represents a total of $42 / 7 weeks. Based on his maximum compensation rate of \$ 923.01 / week, he is entitled to \ 3,955.76 in TTD benefits from employer.

Additionally, Dr. Preston Brent Koprivica opined that employee's February 12, 2018 primary injury was the direct, proximate and prevailing factor in his left knee injury. Dr. Koprivicia also felt there was compensatory pain within employee's right knee "from overuse and noted altered mechanics." ${ }^{4}$ Dr. Koprivica opined that employee was 20\% PPD at the left knee, and that he was likely to need "ongoing, indefinite treatment

[^0]

[^0]: ${ }^{1} 287$ S.W.3d 671, 674 (Mo. Banc 2009). In Miller, the employee "experienced a "popping" of his knee, followed by pain, while walking briskly at work." Id. at 672 . Strictly construing $\S 287.020$, the Court in Miller determined that the employee's injury arose during the course of employment, but did not arise out of employment. Under $\S \S 287.020 .2,287.020 .3$ and 287.020 .10 , the court found that to be insufficient to find the injury to be compensable. Id. at 674 .

${ }^{2}$ No. SC98122. In Annayeva, the employee was a high school teacher. At some time during her walk into the high school, the employee slipped on the school's linoleum floor which caused her to fall forward and land on her hands and knees. Id. at 1. The court in Annayeva determined that the employee's injury was not compensable, because "[j]ust like the claimants in Miller and Johme, [the employee] failed to prove her injury arose out of and in the course of her employment because the hazard or risk involved was one [the employee] was equally exposed to in her normal, nonemployment life." Id. at 8 .

${ }^{3} 366$ S.W.3d 504, 509-10 (Mo. Banc 2012). In Johme, the employee twisted her angle and fell after making coffee in the office kitchen at her employer. Citing to Miller, the court determined that the employee did not suffer a compensable injury, because "no evidence showed that she was not equally exposed to the cause of her injuryturning, twisting her ankle, or falling off her shoe-while in her workplace making coffee than she would have been when she was outside of her workplace in her 'normal nonemployment life.'" Id. at 511.

${ }^{4}$ See Transcript at 442 .

Employee: Jamie E. Overstreet

needs" due to his primary injury. ${ }^{5}$ He further opined that employee was 10\% PPD at the right knee for the compensatory pain.

For these reasons, I would find employer to be liable for employee's TTD, PPD, and future medical benefits. Because the majority of the Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Jamie E. Overstreet

Injury No. 18-009989

Dependents: N/A

Employer: TAMKO Building Products

Additional Party: N/A

Insurer: ACE American Insurance Co.

Hearing Date: March 12, 2020

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: February 12, 2018
5. State location where accident occurred or occupational disease was contracted: Joplin, Jasper 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? No
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: While walking on level ground Employee made a "plant and twist" movement to turn around, thereby injuring his left knee.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left knee

1. Nature and extent of any permanent disability: N/A
2. Compensation paid to-date for temporary disability: None
3. Value necessary medical aid paid to date by employer/insurer? $\ 2326.14
4. Value necessary medical aid not furnished by employer/insurer? None
5. Employee's average weekly wages:
6. Weekly compensation rate: $\ 923.01 for Permanent Total Disability (PTD)/Temporary Total Disability (TTD) benefits and $\ 483.48 for Permanent Disability (PPD) benefits.
7. Method wages computation: Statutory

1. Amount of compensation payable: None ordered

Unpaid medical expenses: 0

weeks of temporary total disability (or temporary partial disability) 0

weeks of permanent partial disability from Employer 0

weeks of disfigurement from Employer 0

1. Second Injury Fund liability: None

TOTAL:

1. Future requirements awarded: N/A

Said payments to begin

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 of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

The final hearing in this matter was held by Administrative Law Judge Karen W. Fisher on March 12, 2020. The employee appeared in person and by his attorney, Will Peterson. The employer appeared by its authorized representative, Josh Marsh, and its attorney, Ron Sparlin.

The parties were able to stipulate to numerous matters, set forth as follows: On February 12, 2018, TAMKO was an employer operating subject to the Missouri Workers' Compensation Law;

On February 12, 2018, Employer's liability was fully insured by ACE American Insurance Company;

On February 12, 2018, Jamie E. Overstreet was an employee of Employer; On February 12, 2018, Employee was working subject to the Missouri Workers' Compensation Law;

On February 12, 2018, Employee sustained an alleged work related injury to his left knee; Employee alleges that the injury of February 12, 2018, arose out of and in the course of his employment with Employer, but this allegation is denied by Employer/Insurer;

Employee's alleged injury of February 12, 2018, occurred in Jasper County, Missouri; Employee notified Employer of his alleged injury as required by Section 287.420, R.S.Mo., although Employer/Insurer dispute the injury is compensable under Chapter 287;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jamie E. Overstreet

Injury No. 18-009989

Employee filed a Claim for Compensation arising from the alleged February 12, 2018, injury that was assigned Injury No. 18-009989;

Employee's Claim for Compensation was filed within the time prescribed by Section 287.430, R.S.Mo.;

At the time of the alleged February 12, 2018, injury, the employee's average weekly wage of 1461.37 was sufficient to allow a compensation rate of 923.01 for temporary total disability and $483.48 for permanent partial disability;

As a result of the alleged February 12, 2018, injury, temporary total disability benefits have been paid by Employer/Insurer of $0.00.

As a result of the alleged injury of February 12, 2018, Employer/Insurer have paid medical benefits in the amount of $2326.14;

As a result of the alleged injury of February 12, 2018, Employee reached maximum medical improvement on April 24, 2018.

The issues that were presented for determination at the hearing were:

1. Whether the employee's alleged injury of February 12, 2018, is compensable under Chapter 287, R.S.Mo., including whether the employee sustained an accident, whether the alleged accident arose out of and in the course of employee's employment, and whether work was the prevailing factor in causing employee's alleged injury.

a. If not compensable, then there are no further issues.

1. If the alleged injury is compensable, then:

a. Whether the employee is entitled to temporary total disability;

b. Whether the employee is entitled to reimbursement for unauthorized medical treatment in the amount of $1676.13;

c. The nature and extent of any permanent partial disability resulting from the alleged injury of February 12, 2018;

d. Whether the employee is entitled to future medical care to help cure and/or relieve the effects of the alleged injury of February 12, 2018.

Both the employee and the employer offered multiple exhibits into evidence, all of which were received without objection by either side.

4

The employee testified in the p