Ralph Honer v. Lange Stegmann Company

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. We have reviewed the evidence and briefs, and we have considered the whole record. Further, we have heard the oral arguments of the parties.

Pursuant to section 286.090 RSMo, we issue this final award and decision modifying the October 13, 2004 award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Employee filed two claims alleging work injury. The first claim, Injury No. 01-097613, alleged an August 23, 2001, accident resulting in leg and back injuries. The second claim, Injury No. 02-149555, alleged an occupational disease resulting in carpal tunnel syndrome with an accident or occupational disease date of March 15, 2002.

On February 24, 2004, employee settled both claims with employer/insurer. Employee and employer/insurer settled the first claim for permanent partial disability of 17.23% of the body as a whole, referable to the low back. Employee and employer/insurer settled the second claim for permanent partial disability of 15% of each hand at the wrist.

The claims proceeded to trial against the Second Injury Fund (SIF). The claims were consolidated for hearing. The administrative law judge found that before the injuries relevant herein, employee suffered from diabetes, glaucoma, and hypertension. The administrative law judge concluded that employee’s preexisting illnesses resulted in a 20% permanent partial disability of the body as a whole. No party appealed these determinations.

For the first injury, the administrative law judge found the primary injury resulted in 68.92 weeks permanent partial disability (17.23% of the body as a whole). Based upon a finding that employee’s preexisting and primary disabilities combined synergistically, the administrative law judge awarded 22.338 weeks of permanent partial disability against the SIF (15% load).

For the second injury, the administrative law judge implicitly finds that the primary injuries resulted in 52 weeks permanent partial disability. The administrative law judge found that employee was rendered permanently and totally disabled as a result of the primary wrist injuries combined with employee’s preexisting low back, glaucoma, morbid obesity and diabetes. The administrative law judge awarded permanent total disability against the SIF with payment as follows: for 52 weeks (March 15, 2002, through March 15, 2003) the SIF shall pay $183.77, the difference between the permanent partial disability rate and the permanent total disability rate. Thereafter, the SIF

shall pay the full permanent total disability rate of $\ 513.19.

The SIF filed an Application for Review from the award of the administrative law judge in Injury No. 02-149555. The SIF alleges that the administrative law judge benefit payment timeline is contrary to section 287.220.4 RSMo. Specifically, SIF argues that the three permanent partial disability payment periods must run consecutively and not concurrently. Employee counters that section 287.220 .4 does not apply to these claims because the second injury resulted in permanent total disability payments from the SIF.

Did the 2002 injury cause permanent partial disability?

Section 287.220.1 reads, in part:

If the previous disability or disabilities . . .and the last injury together result in total and permanent disability, . . . the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself. . .

Section 287.220.4 explains the timing of SIF payments in the event of successive work-related permanent disabilities:

If more than one injury in the same employment causes concurrent and consecutive permanent partial disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability.

There is no dispute that employee suffered more than one injury in the same employment and that he thereby suffered concurrent and consecutive permanent disabilities. The question before us is did employee's second injury cause a permanent partial disability? If so, section 287.220.4 applies.

The parties implicitly assert two possible interpretations of the phrase "causes concurrent and consecutive permanent partial disability." Employee asserts that the phrase refers to the extent of the permanent disability owed by the SIF as a result of the second injury. The SIF asserts the phrase refers to the extent of disability resulting from the last injury alone. We agree with the SIF.

The basis for our conclusion is found in the Missouri Supreme Court's opinion in Stewart v. Johnson, 398 S.W.2d 850 (Mo. banc 1966). The employee in Stewart suffered a work injury that combined with preexisting disabilities to render him permanently and totally disabled. The Stewart court explained the proper application of section 287.220.1 RSMo for apportioning liability between employer and the SIF. The court ruled it must "first consider only the disability resulting from the last injury; otherwise the words 'considered alone and of itself' are meaningless." Id., at 854 (emphasis added). Applying this rule, the court found that "the disability resulting from the last injury alone was a permanent partial disability." Id. The court then concluded that employer's liability is calculated with reference to section 287.190 RSMo, the permanent partial disability statute. Then, the remainder that would be due for permanent total disability is apportioned to the SIF.

We are convinced the same reasoning applies to the interpretation of section 287.220.4. The subsection refers to the extent of disability suffered in successive individual injuries. We conclude that the plain language of section 287.220.4 requires that we consider the disability caused by each injury alone to determine if that subsection applies.

The employee in the instant case, like the employee in Stewart, suffered a work injury that combined with preexisting disabilities to render him permanently and totally disabled. The administrative law judge properly applied the rule enunciated in Stewart and found that the second injury, alone and of itself, caused a permanent partial disability of 52 weeks.

Based upon the foregoing, we conclude that employee suffered more than one injury in the same employment that caused concurrent and consecutive permanent partial disability. Therefore, section 287.220.4 applies to determine

the timing of the compensation payments in this case.

According to section 287.220.4, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability. Further, SIF payment for permanent partial disability is not due until the employer has completed its permanent partial disability payments. Section 287.220.1 RSMo.

Applying the above rules, the employer's permanent partial disability period for the first injury ran from November 1, 2001, for 68.92 weeks until February 24, 2003. Beginning on February 25, 2003, the SIF permanent partial disability period for the first injury ran for 22.33 weeks until July 31, 2003. Beginning on August 1, 2003, the employer's permanent partial disability period for the second injury began to run and extended for 52 weeks until July 31, 2004.

Employee is permanently and totally disabled as of March 15, 2002. According to section 287.220.1 RSMo, when a combination of the primary injury and preexisting disabilities renders the employee permanently and totally disabled, the SIF liability is determined as follows:

[I]f the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund. . .

SIF is liable for the remainder of the compensation that would be due for permanent total disability under section 287.200 after subtracting employer's payment. See Laturno v. Carnahan, 640 S.W. 2d 470 (Mo. App. 1982), Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919 (Mo. App. 1982). For the period from March 15, 2002, through February 24, 2003, the remainder is $\$ 183.77 .{ }^{[1]} For the period from February 25, 2003, through July 31, 2003, the remainder is \ 513.19. ${ }^{[2]} For the period August 1, 2003, through July 31, 2004, the remainder is \$ 183.77 .{ }^{[3]}$ Beginning August 1, 2004, and continuing for employee's lifetime or until modified by law, the remainder is $\$ 513.19 .{ }^{[4]}$

The result of our conclusions is that employee never receives more than the statutory maximum weekly benefit for permanent total disability. See section 287.200 RSMo. This result is in accord with the majority view.

There is both a theoretical and a practical reason for the holding that awards for successive or concurrent permanent injuries should not take the form of weekly payments higher than the weekly maxima for total disability. The theoretical reason is that, at a given moment in time, a person can be no more than totally disabled. The practical reason is that if the worker is allowed to draw weekly benefits simultaneously from a permanent total and a permanent partial award, it may be more profitable for him or her to be disabled than to be well--a situation which compensation law studiously avoids in order to prevent inducement to malingering.

5-92 Larson's Workers' Compensation Law section 92.01.

The Second Injury Fund shall pay to employee:

- $\quad \ 183.77 per week for the period March 15, 2002 through February 24, 2003;

- $\quad \ 513.19 per week for the period February 25, 2003, through July 31, 2003;

- $\quad \ 183.77 per week for the period August 1, 2003 through July 31, 2004; and,

- $\quad \ 513.19 per week beginning August 1, 2004, and continuing for employee's lifetime or until modified by law.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued October 13, 2004, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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 $28^{\text {th }}$ day of September 2005.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I must respectfully dissent from the decision of the majority of the Commission. I would affirm the payment timeline determined by the administrative law judge.

By its terms, § 287.220.4 RSMo does not apply to the injuries in this case. Employee suffered successive injuries in t