Wayne Sanford v. ABC Moving & Storage

However, the simple sum is actually 141.5 weeks of disability, and utilizing the same enhancement factor of 15.5%, the Second Injury Fund is actually liable for 22 weeks of disability.

Accordingly, the Commission concludes that the competent and substantial evidence results in Second Injury Fund liability of 22 weeks of compensation at a rate of 347.05, or a lump sum amount due employee from the Second Injury Fund of 7,635.10 ($347.05 x 22 weeks).

All remaining findings of fact and conclusions of law found by the administrative law judge are affirmed. The award and decision of administrative law judge Paula A. McKeon, issued November 3, 2005, as modified, is attached and incorporated by 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 27th day of June 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Employee: Wayne Sanford

Injury No. 03-071105

Employer: ABC Moving & Storage

Insurer: Missouri Movers Risk Management

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

Hearing Date: September 23, 2005

Checked by: PAM/abj

FINDINGS OF FACT AND RULINGS OF LAW

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 18, 2003.

1. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
2. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
3. Did employer receive proper notice? Yes.
4. Did accident or occupational disease arise out of and in the course of the employment? Yes.
5. Was claim for compensation filed within time required by law? Yes.
6. Was employer insured by above insurer? Yes.
7. Describe work employee was doing and how accident occurred or occupational disease contracted: Wayne Sanford injured his left ankle while stepping off a curb in the course and scope of his employment with ABC Moving \& Storage.
8. Did accident or occupational disease cause death? No. Date of death? N/A
9. Part(s) of body injured by accident or occupational disease: Left ankle.
10. Nature and extent of any permanent disability: 30 % permanent partial disability, 155 -week level.
11. Compensation paid to date for temporary disability: $\ 16,210.82
12. Value necessary medical aid paid to date by employer/insurer? $\ 58,578.11
13. Value necessary medical aid not furnished by employer/insurer? None.
14. Employee's average weekly wages: N/A
15. Weekly compensation rate: $\$ 409.66 / \ 347.05
16. Method wages computation: By agreement.

1. Amount of compensation payable: N/A
2. Second Injury Fund liability: Yes. The Second Injury Fund shall pay 33 weeks of compensation, or $\ 11,452.65 (See Findings and Rulings).
3. Future requirements awarded: N/A

Said payments to begin as of the date of this Award and to be payable and 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 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Patrick Starke.

Employee: Wayne Sanford

Injury No. 03-071105

Employer: ABC Moving \& Storage

Insurer: Missouri Movers Risk Management

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

Hearing Date: September 23, 2005

Checked by: PAM/abj

The above-referenced matter was heard in the Division of Workers' Compensation on September 23, 2005. The Division had jurisdiction to hear the case pursuant to $\S 287.110$. Claimant, Wayne Sanford, appeared in person and with counsel, Patrick Starke. The employer, ABC Moving \& Storage, settled its claims prior to hearing. The Second Injury Fund appeared through Assistant Attorney General LaSandra F. Pearl.

At the hearing, the parties stipulated to the following:

1. On the date of injury, July 18, 2003, the employer, ABC Moving \& Storage, was operating under and subject to the Missouri workers' compensation laws;
2. on the date of injury, July 18, 2003, the employer, ABC Moving \& Storage, was fully insured for workers' compensation liability;
3. Wayne Sanford was an employee of ABC Moving \& Storage on July 18, 2003;
4. Wayne Sanford was injured on July 18, 2003, while in the course and scope of employment;
5. Wayne Sanford provided the employer timely notice of the injury and a timely claim for workers' compensation was filed pursuant to Missouri statute;
6. for the July 18, 2003, claim, the employer paid $\ 58,578.11 in medical benefits and $314 / 7$ ths weeks of temporary total benefits. Temporary total disability was paid by the employer at a rate of $\ 409.66; and
7. a Stipulation for Compromise Settlement was executed by both Wayne Sanford and the employer, ABC Moving \& Storage, and approved by the ALJ on July 21, 2004. The stipulation reflects a lump-sum settlement of $\ 16,137.83, which represents approximate disability of 30 percent of the left ankle ( 155 -week level) as full and final settlement of its claim against the employer.

The following issue is in dispute: Liability of the State Treasurer as Custodian of the Second Injury Fund.

Sanford is a 55-year-old gentleman who attended school through the $10^{\text {th }} grade. Sanford did not complete the 10^{\text {th }}$ grade, did not receive his GED, nor did he receive further academic training. Sanford has a work history including primarily heavy labor, including work on a sod farm as well as his last position as a loader/packer with ABC Moving \& Storage, for whom he had been employed eight years.

On or about July 18, 2003, Sanford sustained an injury to his left ankle that resulted in three surgeries. He was

initially taken to Lee's Summit Hospital where x-rays revealed a left ankle plafond/trimalleolar ankle fracture. He was then referred to an orthopedic specialist, Dr. Susan K. Bonar, who initially diagnosed a severe ankle fracture with evidence of fracture blisters. On July 29, 2003, Dr. Bonar performed a closed reduction and application of a left ankle external fixator. On August 22, 2003, Dr. Bonar removed the external fixator and performed an open reduction/internal fixation of the pilon fracture on the left. Sanford eventually underwent a third operation for removal of the hardware from his left ankle.

Prior to July 18, 2003, Sanford previously suffered a neck injury on or about June 1, 2002, while loading boxes weighing 75 to 100 pounds. Sanford complained of pain, numbness, and tingling in his left side from his shoulder to his long and ring fingers. Sanford was employed by the same employer, ABC Moving \& Storage, at the time of that injury.

An MRI of the cervical spine taken on October 17, 2002, revealed disc extrusion at C6-7 and an EMG revealed C8 radiculopathy. Sanford was initially treated conservatively with modification of his activities and medications and taken off work. On January 2, 2003, Sanford underwent an anterior cervical discectomy and fusion at the C5-6 and C6-7. Five months following the surgery, June 2, 2003, Sanford returned to Dr. Jackson, who stated, "He reports no discomfort in his neck, however, he continues to have numbness in his arm, has not improved remains stable. He denies any arm pain and feels that his strength is good." On this date, Dr. Jackson indicated his progress in work hardening paralleled the job demands of a driver for his employer; therefore, Sanford was allowed to return to work the following day without restrictions. The Work Hardening/Conditioning Progress/Discharge report prepared on May 28, 2003, indicated Sanford's exertional level began at light and had progressed to heavy, which is what was required of his employment. That same report indicated that Sanford reported "his pain is a non factor" but he continued to experience right forearm and fourth and fifth digit num