Phil Maez v. {"Maez Engineering, LLC","Anderson Construction Co.",Wildeck,"Siemens Dematic"}

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. We have reviewed the evidence, read the briefs of the parties, and considered the relevant portions of the record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated September 22, 2006.

The issue on appeal is whether or not Second Injury Fund liability was placed in issue for the July 6 and 7, 2006, hearing in this matter and, if so whether or not the Second Injury Fund has any liability to employee.

The administrative law judge denied employee compensation from the Second Injury Fund because employee failed to specifically raise Second Injury Fund liability as an issue for the hearing. This was because Second Injury Fund liability was not listed separately in the parties stipulated issues.

Employee filed an Application for Review with the Commission alleging the administrative law judge erred by denying an award against the Second Injury Fund for permanent partial disability or, in the alternative, by failing to qualify the Award as a Partial Final Award given that the issue of SIF liability for permanent disability was not addressed.

The Commission, as discussed below, finds that Second Injury Fund liability was placed in issue for the hearing, and furthermore, that employee is entitled to permanent partial disability benefits from the Second Injury Fund. Consequently, that part of the administrative law judge's award denying employee Second Injury Fund benefits is reversed.

In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence all material elements of his claim, including Second Injury Fund liability. *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1968). The employee must prove the nature and extent of any disability by a reasonable degree of certainty. *Downing v. Willamette Industries, Inc.*, 895 S.W.2d 650, 655 (Mo.App. 1995).

Section 287.220 RSMo provides that in a case of permanent partial disability under section 287.220 RSMo, there must be a finding that there was a pre-existing permanent disability that was a hindrance or obstacle to employment or reemployment.

In considering Second Injury Fund liability, and paraphrasing the language of the Missouri Court of Appeals, Eastern District, in the case of *Messex v. Sachs Electric Company*, 989 S.W.2d 206, 214 (Mo.App. E.D. 1999), the Commission must decide if there is competent and substantial evidence of a preexisting disability and if there is a failure of proof, any claim against the fund must fail. As succinctly stated by the court at pages 214 and 215:

"When a claim is made against the Fund for permanent disability compensation, statutory language and case law make it mandatory that the claimant provide evidence to support a finding, among other elements, that he had a preexisting permanent 'disability'. Section 287.220.1; Leutzinger v. Treasurer of Missouri, Custodian of Second Injury Fund, 895 S.W.2d 591 (Mo.App. E.D.1995) (emphasis added). The disability, whether known or unknown, must exist at the time the work-related injury was sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed. Id.; Garcia v. St. Louis County, 916 S.W.2d 263, 266 (Mo.App. E.D.1995).

. . . Fund liability is only triggered by a finding of the presence of an actual and measurable disability at the time the work injury is sustained."

In both his March 10, 2003, original Claim for Compensation and his February 14, 2005, Amended Claim for Compensation, employee asserted a claim against the Second Injury Fund based on injuries to his neck and right arm that occurred prior to the work accident on

October 17, 2002. Additionally, one of the stipulated issues at the hearing was "the nature and extent of the disability sustained by the Employee." One category of Second Injury Fund liability is permanent disability. RSMo. 287.220. The afore-quoted issue does not restrict the disability determination to employer's liability.

At the hearing, employee presented evidence regarding his prior disabilities. The Second Injury Fund made no objection to the presentation of this evidence. Employee also offered the deposition testimony of his medical expert Dr. Koprivica. Dr. Koprivica testified at his deposition as to employee's primary work injury and prior disabilities. He assigned ratings to all of these injuries and disabilities, including the combination effect of them, and assigned an enhancement value of 20 %. The Second Injury Fund did not object to the introduction of this evidence.

Based upon the foregoing the Commission concludes that Second Injury Fund liability was an issue at the hearing. Therefore, we will next look to see if the Second Injury Fund is liable to employee for benefits.

The only expert medical evidence in the record regarding employee's prior disabilities is that of Dr. Koprivica. Dr. Koprivica assigned preexisting disability ratings of 25 % of the body as a whole referable to employee's neck and 15 % for a prior right elbow fracture at the 210 week level. He testified that employee sustained a 30\% permanent partial disability of his left elbow at the 210 week level. Dr. Koprivica further testified that the combination of employee's work injury and prior disabilities further enhanced employee's overall disability by 20\%. Based upon this evidence, employee is entitled to 38.9 weeks of permanent partial disability from the Second Injury Fund. ${ }^{[1]}$

The Commission determines and concludes that Second Injury Fund liability was properly placed in issue for the hearing on July 6 and 7, 2006. The Commission further finds that the Second Injury Fund is liable to employee for 38.9 weeks of permanent partial disability benefits as a result of the combination of his primary work injury and preexisting injuries.

The portion of the administrative law judge's September 22, 2006, award and decision denying benefits to employee against the Second Injury Fund is reversed; employee is entitled to 38.9 weeks of permanent partial disability compensation from the Second Injury Fund based on the synergistic effect of the combination of his primary injury and preexisting disabilities. In all other respects, the award and decision of the administrative law judge is affirmed.

The award and decision of Administrative Law Judge Kenneth Cain, issued September 22, 2006, 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 $\qquad$ 19th day of July 2007.

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

$[1] \quad 25 \% \times 400=100 weeks

+15 \% \times 210=31.5 weeks

+30 \% \times 210=\underline{63 \text { weeks }}

194.5 weeks \times 20 \%=38.9$ weeks

Employee: Phil Maez

Injury No. 02-148680

Dependents: N/A

Employer: Alleged: (1) Maez Engineering, LLC; (2) Anderson Construction Company;

(3) Wildeck; (4) Siemens Dematic.

Insurer: (1) Uninsured; (2) Uninsured; (3) Sentry Insurance Co.; (4) Unknown.

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

Hearing Date: July 6 and July 7, 2006

Briefs: Initial briefs filed August 6, 2006; subsequent suggestions filed. Checked by: KJC/dc

1. Are any benefits awarded herein? Yes.

1. Was the injury or occupational disease compensable under Chapter 287? Yes.
2. Was there an accident or incident of occupational disease under the Law? Yes.
3. Date of accident or onset of occupational disease: October 17, 2002.
4. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
5. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
6. Did employer receive proper notice? Yes.
7. Did accident or occupational disease arise out of and in the course of the employment? Yes.
8. Was claim for compensation filed within time required by Law? Yes.
9. Was employer insured by above insurer? Yes.
10. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of his employment as a self-employed consultant/construction laborer for Maez Engineering, LLC, sustained an accident when he fell 15 feet from a mezzanine under construction. He was working as a subcontractor for Anderson Construction Company, which was a subcontractor for Wildeck when the accident occurred.
11. Did accident or occupational disease cause death? No. Date of death? N/A
12. Part(s) of body injured by accident or occupational disease: left elbow, forearm, hand and upper extremity.
13. Nature and extent of any permanent disability: Complex laceration of the flexor compartment of the left forearm, chronic bursitis of the left elbow, and complex injuries requiring surgical repair of the left thumb, left index, left little and ring fingers of the left hand.
14. Compensation paid to-date for temporary disability: None.
15. Value necessary medical aid paid to date by employer/insurer? None.
16. Value necessary medical aid not furnished by employer/insurer? $\ 38,048.77
17. Employee's average weekly wages: $\ 464.24
18. Weekly compensation rate: $\ 309.49 per week.
19. Method of wages computation: $\S 287.250$.

Employee: Phil Maez Injury No: 02-148680

Dependents: N/A

Employer: (1) Maez Engineering, LLC; (2) Anderson Construction Co.; (3) Wildeck; (4) Siemens-Dematic

Insurer: (1) Uninsured; (2) Uninsured; (3) Sentry; (4) Unknown

Additional Party: State Treasurer as Custodian of Second Injury Fund

Hearing Date: July 6 and July 7, 2006

Briefs: Initial briefs filed August 6, 2006, suggestions filed later Checked by: KJC/dc

Notice of the hearing set for July 6, 2006, was sent to all the parties at the last known addresses. The alleged Employer, Anderson Construction Company, failed to appear at the hearing. The notice was sent by certified mail. Thus, Anderson Construction Company was in default.

The remaining parties appeared at the hearing and entered into various admissions and stipulations. The remaining

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