Robert Cox v. Richard Collins Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 95-100975

Employee: Robert Cox

Employer: Richard Collins Construction

Insurer: Granite State Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: July 8, 1995

Place and County of Accident: Sedalia, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 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 Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated November 2, 2004. The award and decision of Administrative Law Judge Emily S. Fowler, issued November 2, 2004, 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 $\qquad 25 25^{\text {th }} \qquad$ day of March 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest: John J. Hickey, Member

Secretary

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: July 8, 1995.
5. State location where accident occurred or occupational disease was contracted: Ten miles south of Sedalia, 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 off a ladder, fracturing his spine at T6-T7, requiring a fusion at T1-T9 and rendering him a paraplegic.
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: Back, body as a whole.
14. Nature and extent of any permanent disability: Claimant has been rendered permanently and totally disabled.
15. Compensation paid to date for temporary disability: The respondent has paid 30,076.53, including 16,500.00 in advances toward permanent benefits. The Second Injury Fund has not made any payments.
16. Value necessary medical aid paid to date by employer/insurer? Medical expenses totaling $661,625.05 have been paid by the respondent as of the date of the hearing.
17. Value necessary medical aid not furnished by employer/insurer? Undetermined.
18. Employee's average weekly wages: For the respondent, the employee had an average weekly wage of 85.00 for temporary benefits and 150.00 for permanent benefits. For the second employer wages (Wal-Mart) the claimant had an average weekly wage of $252.28.
19. Weekly compensation rate: For the wages the employee earned at the respondent, he has a compensation rate of 56.67 for temporary benefits and 100.00 for permanent benefits. For the wages the employee earned at Wal-Mart (second employer wages), he has a compensation rate of $168.20 for both permanent and temporary benefits.
20. Method wages computation: By agreement of all parties.

1. Amount of compensation payable: The employee is entitled to permanent total disability in the amount of 100.00 per week for life from the respondent and 168.20 for life from the Second Injury Fund. As of the date of hearing, the respondent owes 198.286 weeks of temporary total disability benefits payable at a rate of $56.67, followed by 281.286 weeks of permanent total disability benefits payable at a rate of 100.00 per week for a total of 39,365.47 less the $30,076.53 previously paid. The Second Injury Fund owes, at the time of the hearing, 198.286 weeks in temporary total disability benefits and 281.286 weeks of permanent total disability benefits payable at a rate of $168.20 for a total

On September 15, 2004, the employee, Robert Cox, appeared through his attorney, Ms. Lisa McWilliams, for a hearing for a final award. The employer was represented at the hearing by Mr. John R. Emerson. The Second Injury Fund appeared telephonically by its attorney, Christina Hammers. At the time of the hearing the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a summary of the evidence and the Findings of Fact and Rulings of Law, are set forth below as follows:

1. On or about July 8, 1995, Richard Collins Construction was a covered employer operating under and subject to the provisions of the Missouri Workers’ Compensation Act and was fully insured by Granite State Insurance Company.
2. On or about July 8, 1995, Robert Cox was an employee of Richard Collins Construction and was working under the provisions of the Missouri Workers’ Compensation Act.
3. The employer had notice of the employee’s alleged accident.
4. The employee’s claim for compensation was filed within the time allowed by law.
5. The employee’s average weekly wage at Richard Collins Construction qualified him for a compensation rate of 56.67 per week for temporary total disability and 100.00 per week for permanent total disability. The employee’s compensation rate for wages he earned at Wal-Mart is $168.20.
6. Medical aid has been furnished by the employer or insurer.
7. Temporary total disability benefits were paid only by the employer or insurer. The Second Injury Fund has not paid any temporary total disability benefits.

1. Whether the Second Injury Fund or the respondent is responsible for the employee’s wages attributed to his work for Wal-Mart, the second employer?

The employee, Robert Cox, was 34 years old at the time of hearing, with a date of birth September 25, 1969. He is a high-school graduate. He was employed part-time at Richard Collins Construction as a laborer. While working on a roof he hit his hand and became dizzy. While descending the ladder, claimant lost consciousness and fell about 10 feet to the ground. He was unable to get up and was transported to the hospital. He was diagnosed with a facture dislocation at T6-T7. He underwent surgery and had a T1-T9 fusion using Isola Rods. The fall rendered the employee a paraplegic and left him in a wheelchair.

At the time of his injury, Claimant was also employed as a mechanic at Wal-Mart. Following his medical treatment, Claimant underwent vocational retraining, which proved unsuccessful. He was unable to return to work as a laborer or as a mechanic. Ultimately, in August 1999, Claimant returned to Wal-Mart to work as a greeter. Wal-Mart made accommodations to his work after the accident. Claimant remained at his job as a door greeter until May 16, 2001. From May 16, 2001, until August 25, 2001, Claimant was unable to work as a door greeter because he had developed decubitus ulcers from sitting in his wheelchair too long. He returned to Wal-Mart but redeveloped the ulcers and was unable to work from November 16, 2001, until October 2, 2002. He returned to an accommodated work schedule, working four days a week on two shifts per day of three hours each. He worked three hours in the morning and then went home for a couple of hours to lie down and get out of the wheelchair and returned to work for another three hours. Claimant was terminated from the Wal-Mart job in April 2004 for reasons unrelated to his injury.

Claimant is permanently and totally disabled due to his work-related accident with the employer. The parties agree that his compensation rate for permanent total disability benefits are $\ 100.00 per week for his wages from the employer. The employer is ordered to pay weekly benefits of $\ 100.00 from March 1, 1998, and continuing for the remainder of his life.

The claimant held another job at the time of his injury. All the parties agree that his compensation rate for all benefits from the wages he earned at Wal-Mart is $\ 168.20. The employer contends that the wages Claimant earned at Wal-Mart, the second employer, should be the responsibility of the Second Injury Fund. The Second Injury Fund argues that it is only responsible for the Wal-Mart wages for the period of time Claimant was temporarily and totally disabled.

The Missouri Workers' Compensation Act states that the Second Injury Fund is responsible for all wage loss benefits attributed to a second employer's wages. The employer argues that permanent total disability is a wage loss benefit as its purpose is to compensate the injured employee on a lifetime basis, for his inability to engage in any employment. Moreover, permanent total disability benefits have the same statutory maximum as temporary total disability benefits.

The Fund argues that it is not responsible for the permanent total benefits of the second employer and cites in support of its position Ristau v. DMAPZ, 130 S.W.3d 602, 605 (Mo. App. W.D. 2004) and Hillyard v. Hutter Oil Co., 978 S.W. 2d 75 (Mo. App. S.D. 1998). It argues that Ristau holds that the Fund is only responsible for the payment of multiple employer wages for temporary total disability benefits and argues that Hillyard stands for the proposition that only the employer is responsible for the multiple employer wages for all permanent benefits. Its argument is without merit.

RSMo 287.250.8 addresses multiple employer wages. The statute concerning multiple employer wages in effect in July 1995 was substantially different from its current version. In 1995, RSMo 287.250.8 read as follows:

For an employee with multiple employments, the employee's total average weekly wage shall be equal to the sum of the total average weekly wage computed separately for each employment pursuant to the provisions of this section to which the employee is unable to return because of his injury.

This statutory language clearly provides that the wages Claimant earned at Wal-Mart should be included in his average weekly wage and that such is to occur without limitations or restrictions.

The Second Injury Fund argues that Ristau holds that a claimant may not receive an award for multiple employer wages for any purpose other than temporary benefits. In Ristau, the claimant was a part-time employee at a bar and a full-time employee at Ford. He was killed in the course and scope of his employment with the bar. The court in Ristau held that the Fund was not liable for the second empl