William Hogan v. Jadwin Canoe Rental

(Affirming Award and Decision of Administrative Law Judge)

**CORRECTED**

Injury No. 00-174497

Employee:

William Hogan, dec.

Spouse:

Sharon Hogan

Employer:

Jadwin Canoe Rental (settled)

Insurer:

MO Employers Mutual Insurance Company (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 August 12, 2021, and awards no

compensation in the above-captioned case.

The award and decision of Administrative Law Judge Bruce Farmer, issued August 12,

2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 30th day of March, 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Reid K. Forrester, Chairman

Shalonn K. Curls, Member

VACANT

Member

Attest:

Secretary

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 526-8983

www.labor.mo.gov/DWC

AUGUST 12, 2021

00-174497

Scan Copy

*Employee . . . . WILLIAM O HOGAN (DECEASED) 13317985 8 800 MCGRATH LN APT A SALEM, MO 65560-3001* Employee Attorney: MELVIN G FRANKE PO BOX 188 GRAY SUMMIT, MO 63039* *Employee Attorney: J D ROHRER 211 MAIN STREET PO BOX 1070 STEELVILLE, MO 65565* Asst Atty General: ATTY GENERAL ERIC SCHMITT 13317984 1 PO BOX 899 SUPREME COURT BLDG JEFFERSON CITY, MO 65102

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

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

WCC-142 (05-21) AWARD ON HEARING NLP Relay Missouri: 800-735-2966

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

Employee: William Hogan (deceased)

Sharon Hogan (surviving spouse)

Employer: Jadwin Canoe (settled)

Additional Party: Second Injury Fund

Insurer: Missouri Employers Mutual (settled)

Hearing Date: May 10, 2021

Briefs submitted: June 24, 2021

Injury No.: 00-174497

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? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: August 5, 2000.
5. State location where accident occurred: Shannon 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 fell backwards over a trailer hitch.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Low back.
14. Nature and extent of any permanent disability: PPD 28.5\% low back per Stipulation with Employer/Insurer.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer: None.

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: $\ 394.73.
3. Weekly compensation rate: $\ 263.15.
4. Method wages computation: Stipulation.

COMPENSATION PAYABLE

1. Second Injury Fund liability: None.

Issued by DIVISION OF WORKERS' COMPENSATION

On May 10, 2021, the parties appeared for a final hearing in Rolla, Missouri. Sharon Hogan, William Hogan's widow, ("Claimant") appeared personally and by counsel, Melvin Franke. The Treasurer of Missouri, as the Custodian of the Second Injury Fund, appeared by counsel, Deidre Wood, Assistant Attorney General. The parties requested an opportunity to file post-hearing briefs. The record was completed and submitted on June 24, 2021.

The parties stipulated to the following facts:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Phelps County;
3. That the claim for compensation was timely filed and proper notice was given;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That on or about August 5, 2000, Employee sustained an accident, which arose out of the course and scope of employment;
6. That at the time of the accident, Employee's average weekly wage was 394.73 and his PTD and PPD rate was 263.15.

1. The liability of the Second Injury Fund for permanent total disability or permanent partial disability.

Claimant testified at the hearing in support of the claim. I take administrative notice of the division's files related to William Hogan. Claimant offered the following exhibits, which were admitted without objection:

A. Stipulation for Compromise Settlement executed by the widow Sharon Hogan dated 1/28/2011

B. Certified Copy of Judgment Determining Heirship in Circuit Court of Dent County, Probate Division in case 17DE-PR00073 entered on 4/25/18 - 2 pages

C. Certificate of Death of William Oscar Hogan, DOB 4/28/55;

D. Birth Certificate of Joshua Scott Hogan - 2 pages

E. Marriage License of William Oscar Hogan and Sharon Kay Dilport; dated 7/2/03 - 2 pages

F. Deposition of William Oscar Hogan 11/26/01

G. Deposition of William Oscar Hogan 9/26/08

H. Finding of Social Security Administration dated 1/29/13 found disabled as of 6/9/01 - 8 pages

I. Order of Substitution of Party entered by ALJ Vicky Ruth on 1/8/11 - 1 Page

J. Salem Memorial District Hospital Records 5/9/05 - 5/11/08 - 204 pages

K. St. Louis University Hospital records 12/22/05 - 1/13/06 - 342 pages

L. St. Louis University Health Sciences Center - Doctors Office Building 11/29/05 - 11/7/05

M. University of Missouri Orthopedic Clinic Note 2/10/03 - 9/24/01 (Dr. Alander) - 17 Pages

WC-32A

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

N. St. Louis University Health Sciences Center - Orthopedic Rehabilitation Center 1/17/05 - 11/29/05 - 17 Pages

O. St. John's Clinic - Salem 5/19/06 - 4/25/03 (Dr. Bob Carnett) - 95 Pages

P. McCoy Vision Clinic 3/26/04 - 6 Pages

Q. St. Louis University Health Services Center - Des Peres 7/14/05 - 1/9/06 - 19 Pages

R. Midwest Endoscopy Consultants 12/4/04 - 10/17/06 (Dr. Guiseppe Aliporti - Barnes Jewish West County) - 84 Pages

S. Dr Kaczmarek - Central M0. Urology Clinic 2/15/05 - 9/11/06 - 9 pages

T. Gray Family Chiropractic 1/6/88 - 7/15/92 - 5 Pages

U. Phelps County Regional Medical Center (Dr. Dana Voight) 11/23/04 - 11/29/04 - 2 Pages

V. Dr Thomas Satterly 7/31/01 - 3/5/04 - 7 Pages

W. Powell Chiropractic Center 11/10/99 - 11/15/99 - 1 Page

X. Contract between Sharon Hogan and Melvin G. Franke - 2 Pages

Y. Contract between Joshua Hogan and Melvin G Franke - 2 Pages

Z. Deposition of Dr. Jeffery Magrowski, PHD 10/18/19 - 26 Pages

AA. Deposition of Dr. Alan Umbright 12/18/19 - 15 Pages

BB. Attorney's Itemization of Costs and Expenses - 1 Page

CC. Exhibit List - 1 Page

DD. Records from Dr. Hess at St. Joseph Hospital 4/2606, 7/14/05, 4/14/05, 1/13/05 - 10 Pages

EE. Records from Powell Chiropractic Center 11/399 - 11/10/99 - 10 Pages

FF. Original Claim for Compensation filed August 2001 - 2 Pages

GG. Answer to claim filed by Attorney General's Office 8/21/2001 - 2 Pages

HH. Notice of Deposition by Vickey Anthony on behalf of Employer/Insurer 9/13/01

II. Amended Claim for Compensation filed by Melvin G Franke 9/7/10

The Second Injury Fund offered the following exhibit, which was admitted without objection:

i. Claimant's deposition 11/26/01.

DISCUSSION

William Hogan ("Employee") was 44 years old on the day of the accident. He died on November 15, 2010, from causes unrelated to the work accident. Employee died from a presumed myocardial infarction survived by his wife, Sharon Hogan, and his son, Joshua Hogan. Ex. C.

During a work span of 21 years for Jadwin Canoe, Employee loaded canoes, shuttled patrons, and performed grounds keeping work. On August 5, 2000, while loading canoes onto a trailer, Employee fell backwards over a trailer hitch. For the next two months, he finished the fall season as a canoe hauler. During the following season, Employee worked from March 2001 until June 9, 2001. He relied upon his coworkers to help him load canoes.

After a denial of medical treatment by the employer, he sought treatment from a chiropractor, Dr. Powell. After three unsuccessful chiropractic sessions, Employee began receiving treatment from his primary care physician, Dr. Carnett, on January 19, 2001. An x-ray revealed mild degenerative changes and narrowing at L4-5. Dr. Carnett treated Employee with Naprosyn and Flexeril. After no significant improvement, Dr. Carnett referred Employee to orthopedic physician, Dr. Satterly.

WC-32A

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Initially, Dr. Satterly felt that Employee exacerbated his underlying lumbar degenerative arthritis and treated Employee with Indocin and a back belt. An MRI on September 24, 2001, revealed degenerative changes at L4-5 with protrusion along the left lateral L4-5 area. He recommended Employee undergo an L4-5 laminectomy.

After four additional years of conservative treatment, on December 15, 2005, Dr. Alander performed a two-level lumbar fusion at L3-4 and L4-5. Ex. K, p. 39. He diagnosed Employee with "severe disk degeneration L3-4 and L4-5 level with left leg radicular pain." Id. On January 3, 2006, Dr. Alander debrided the iliac crest graft site after an infection. Ex. N, p. 5. He placed Employee at maximum medical improvement (MMI) on July 14, 2006. Dr. Alander indicated that "[w]ork status at this point, it is extremely unlikely given his history, education level, and overall situation for him to be able to return to work as a truck driver. At best, he would be able to do some very sedentary work with ability to sit and stand at his option." Ex. Q, p. 2.

After his release from Dr. Alander, Employee continued to complain of a constant severe burning sensation and pain down the back of his left leg. During an evaluation with Dr. Umbright, Employee indicated that while sitting, he exp