Kim Feld v. King O Tile

Decision date: May 9, 20072 pages

Summary

The Commission affirmed the Missouri Court of Appeals mandate that the employee's permanent total disability resulted from a combination of the 1994 primary back injury and preexisting disabilities of the ankle, neck, and back, rather than being caused exclusively by the 1994 injury. The Second Injury Fund was found liable for permanent total disability benefits following the employer's obligation for permanent partial disability benefits.

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Workers' Compensation

Caption

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION
FINAL AWARD ALLOWING COMPENSATION(Pursuant to the Mandate of the Missouri Court of Appeals, Eastern District)
Injury No.: 94-199907
Employee:	Kim Feld
Employer:	King O Tile (Settled)
Insurer:	Hartford Insurance Company (Settled)
Additional Party:	Treasurer of Missouri as Custodian of Second Injury Fund
Date of Accident:	December 2, 1994
Place and County of Accident:	St. Louis County, Missouri
On September 5, 2006, the Missouri Court of Appeals for the Eastern District (Court) issued an opinion reversing the December 21, 2005, Final Award of the Labor and Industrial Relations Commission (Commission) in the above-referenced case. In particular, the Court held that the Commission’s conclusion that employee’s permanent total disability was caused exclusively by the 1994 injury (primary injury) was not warranted by substantial competent evidence in the record. By mandate issued November 2, 2006, the Court remanded this matter to the Commission for entry of an award in accordance with the Court’s opinion delivered September 5, 2006.Feld v. Treasurer of Mo., 203 S.W.3d 230 (Mo. App. E.D. 2006).The parties filed post-mandate briefs and presented their oral arguments to the Commission.Pursuant to the Court’s opinion and mandate, we issue this award.
DiscussionDr. Hanaway’s report stated that employee has permanent total disability "mainly because of the low back trauma . . . [in] 1994" and that his total disability was "just based on his back, most of which is based on the 1994 accident." As concluded by the Court, Dr. Hanaway's statements alone do not establish that the last injury in and of itself must have rendered the employee permanently and totally disabled. To state that a condition was "mainly" or "most[ly]" caused by one factor necessarily implies that other factors also caused it, and that the primary factor did not act alone and of itself. Drs. Schoedinger and Feinberg both testified that employee’s permanent total disability was a combination of previous injuries and the latest injury. SeeFeld, 203 S.W.3d at 233-234. Based upon the foregoing, we conclude that employee’s permanent total disability is the result of the disability he suffered by the primary injury combined with the preexisting disabilities of his ankle, neck, and back.Based upon the medical records and employee’s testimony, we conclude that employee’s preexisting disabilities constituted a hindrance or obstacle to employment. Accordingly, the Second Injury Fund is liable for the payment of permanent total disability benefits to employee after the payment of employer’s obligation for permanent partial disability benefits. § 287.220.1 RSMo.

The parties stipulate that employee reached maximum medical improvement on February 23, 1999.

Award

Beginning February 24, 1999, the Second Injury Fund is liable for 320 weekly installments of the $\ 226.90 differential between the permanent total disability rate ( $\ 476.38 ) and the permanent partial disability rate (\$249.48). Thereafter, the Second Injury Fund shall pay to employee weekly payments of $\ 476.38 for her permanent total disability benefit for her lifetime or until modified by law.

John D. Schneider, Attorney at Law, is allowed a fee of 25 % of the benefits awarded for necessary legal services rendered to employee, which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 9^{\text {th }} \qquad$ day of May 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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