Garry Moore v. ASARCO, Inc. and Doe Run Company

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury Nos.: 98-135078, 98-178503

01-053092, \& 99-180574

Employee: Garry Moore

Employers: 1) ASARCO, Inc.

2) Doe Run Company

Insurers: 1) Self-Insured

2) Pacific Employers Insurance Company

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

Dates of Accident: July 14, 1998; July 14, 1998; May 21, 2001; and October 13, 1999

Place and County of Accident: Reynolds County, 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 associate 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 associate administrative law judge dated November 24, 2004. The award and decision of Associate Administrative Law Judge Gary L. Robbins, issued November 24, 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 $4^{\text {th }}$ day of August 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

ISSUED BY DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid paid to date by employer-insurer: $\ 107,122.00
2. Value necessary medical aid not furnished by employer-insurer: None
3. Employee's average weekly wage: $\ 803.82
4. Weekly compensation rate: $\ 535.88 per week for temporary total disability and permanent total disability. $\ 294.73 per week for permanent partial disability.
5. Method wages computation: By agreement.
6. Amount of compensation payable: $\ 535.88 per week by employer for life effective July 14, 1998 with the employer getting credit for all benefits paid between July 14, 1998 and July 28, 2001. (See Award)
7. Second Injury Fund liability: None (See Award)
8. Future requirements awarded: Future medical care (See Award)

1. Are any benefits awarded herein? The employee entered into a compromise settlement with Doe Run. No (as to Second Injury Fund)
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? October 13, 1999
5. State location where accident occurred or occupational disease contracted: Reynolds County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes - Doe Run Company
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of 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 happened or occupational disease contracted: Employee injured both arms/wrist due to the repetitive gripping, etc., of the controls during the operation of an underground train.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Left and right arms
14. Nature and extent of any permanent disability: 15 % PPD of left wrist \& 7.5 % PPD of right wrist (The settlement was entered into between the employee and Doe Run Company prior to trial).
15. Compensation paid to date for temporary total disability: None

1. Value necessary medical aid not furnished by employer-insurer: N/A
2. Employee's average weekly wage: $\ 872.67
3. Weekly compensation rate: $\ 581.78 per week for temporary total disability and permanent total disability. $\ 314.26 per week for permanent partial disability.
4. Method wages computation: By agreement.
5. Amount of compensation payable: See the stipulation entered into by the Doe Run Company and the employee.
6. Second Injury Fund liability: None
7. Future requirements awarded: None

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

The compensation awarded to the employee shall be subject to a lien in favor of Ronald L. Little for legal services rendered.

On August 2, 2004, the employee, Garry Moore, appeared in person and by his attorney, Mr. Ronald L. Little, for a hearing for a final award. The employer, ASARCO, Inc. (hereinafter, ASARCO) was represented by Mr. Robert W. Haeckel. The employer, Doe Run Company (hereinafter, Doe Run) was represented by Mr. Robin E. Fulton. The Second Injury Fund (hereinafter, the Fund or SIF) was represented by Assistant Attorney General, Mr. Frank A. Rodman. While the hearing dealt with multiple separate claims, claims \#98-135078 and 98-178503 were consolidated for purposes of trial and combined as one claim of injury. The objections of Doe Run to consolidation are denied. At the time of the hearing, claims \#98-178504 and \#99-182695 were voluntarily dismissed with prejudice by the employee. It is agreed to by the parties that Doe Run purchased the mine where the employee worked from ASARCO. The parties agreed that the date of the purchase agreement was July 28, 1998, and the closing date for the transaction was September 1, 1998. The Court took judicial notice of all of the records contained within the files of the Division of Workers' Compensation. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues 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 as follows:

1. On or about July 14, 1998, ASARCO was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer.
2. On or about July 14, 1998, Garry Moore was an employee of ASARCO and was working under the provisions of the Missouri Workers' Compensation Act.
3. On or about July 14, 1998, Garry Moore sustained an accident(s) or occupational disease arising out of and in the course of his employment.
4. ASARCO had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 803.82 per week and his rate of compensation for temporary total disability and permanent total disability is $\ 535.88 per week. His rate of compensation for permanent partial disability is $\ 294.73 per week.
7. ASARCO furnished medical aid in the amount of $\ 107,122.00.
8. ASARCO paid temporary total disability benefits in the amount of $\ 36,439.84. These payments covered a total period of

68 weeks, covering the periods from July 29, 1998 to August 17, 1998; September 14, 1998 to November 2, 1998; April 23, 1999; April 27, 1999 to April 30, 1999; May 10, 1999 to August 15, 1999; September 15, 1999 to June 12, 2000; and July 31,2000 to August 30, 2000.

1. Whether the employee's injuries were medically casually related to his accident or occupational disease (medical causation)?
2. W