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Kenneth Allison v. Stephen Vincel Honda

Decision date: September 19, 20075 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award allowing workers' compensation benefits for Kenneth Allison's work-related injury on January 29, 2004, in St. Louis County, Missouri. The claimant sustained injuries to both knees and low back from a fall and was awarded permanent total disability benefits with the Second Injury Fund providing ongoing compensation.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-007832

Employee: Kenneth Allison

Employer: Stephen Vincel Honda (Settled)

Insurer: Missouri Chamber of Commerce Group Self-Insurer's Trust Fund c/o CCMSI (Settled)

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

Date of Accident: January 29, 2004

Place and County of Accident: St. Louis 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 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 administrative law judge dated May 16, 2007. The award and decision of Administrative Law Judge Cornelius T. Lane, issued May 16, 2007, 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 $\qquad 19th \qquad$ day of September 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

AWARD

Dependents:N/ABefore the
Division of Workers’
Employer:Stephen Vincel HondaCompensation
Department of Labor and Industrial
Additional Party:Second Injury FundRelations of Missouri
Jefferson City, Missouri
Insurer:Missouri Chamber of Commerce Group
Hearing Date:April 16, 2007Checked by: CTL:tr

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: January 29, 2004
  5. State location where accident occurred or occupational disease was contracted: St. Louis County, Mo.
  6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
  7. Did employer receive proper notice? Yes
  8. Did accident or occupational disease arise out of and in the course of the 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 occurred or occupational disease contracted:

Claimant fell injuring his knees and low back in the accident of January 29, 2004. 12. Did accident or occupational disease cause death? No Date of death? N/A 13. Part(s) of body injured by accident or occupational disease: Left knee, right knee and low back 14. Nature and extent of any permanent disability: Permanent and total disability as a result of the primary injury and the prior existing injuries and disabilities. 15. Compensation paid to-date for temporary disability: $\ 6,377.03 16. Value necessary medical aid paid to date by employer/insurer? $\ 21,403.91

Employee: Kenneth Allison Injury No.: 04-007832 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\$ 19. Weekly compensation rate: \$ 245.65 / \ 245.65 20. Method wages computation: Stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable: 109.2 weeks of permanent partial disability from Employer (Settled)
  1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund: $\ 245.65 payable by SIF for weeks beginning July 19, 2006 and thereafter for Claimant's lifetime as provided by law (109.2 weeks from the date Claimant reached maximum medical improvement on June 16, 2004).

TOTAL: *

  1. Future requirements awarded:

Said payments to begin immediately and to be payable and be 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 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Brian Stokes

FINDINGS OF FACT and RULINGS OF LAW:

Employee:Kenneth AllisonInjury No.: 04-007832
Dependents:N/ABefore the
Employer:Stephen Vincel HondaDivision of Workers'
Additional Party:Second Injury FundCompensation
Department of Labor and Industrial
Relations of Missouri
Jefferson City, Missouri
Insurer:Missouri Chamber of Commerce GroupChecked by: CTL:tr

PREFACE

A hearing was held in the above-mentioned matter on April 16, 2007. Kenneth Allison, Claimant, was represented by Attorney Brian Stokes. Attorney Karietha Osborne represented the Second Injury Fund.

ISSUE

  1. Second Injury Fund liability.

STIPULATIONS

  1. The Claimant's rate of compensation for permanent partial disability is $\ 245.65 and temporary total disability
is $245.65.
2.On January 29, 2004, the Claimant sustained an accidental injury in his employment.
3.Claimant reached maximum medical improvement on June 16, 2004.
4.A Stipulation for Compromise Settlement of the primary case, Exhibit A, and the facts therein were stipulated. It should be noted that Claimant’s Exhibit A, onparagraph 5, should have been 26 weeks for temporary total disability rather than 16 weeks.
EXHIBITS
Claimant offered the following exhibits which where accepted into evidence:
Exhibit A.Stipulation for Compromise Settlement for Primary Injury.
Exhibit B.13 Week Wage Statement.
Exhibit C.SIF Medical Records Internal Medicine.
Exhibit D.Primary Injury Treatment Records.
Exhibit E.Deposition of James Israel.
Exhibit F.Deposition of Shawn Berkin, D.O.
Exhibit G.List of Medications.
The Second Injury Fund offered no exhibits.
FINDINGS OF FACT
1.Claimant, Kenneth Allison, at the time of the hearing was 59 years of age. Claimant completed the ninth grade and from all of the exhibits and testimony it seems Claimant possesses limited reading andwriting skills.
2.Claimant sustained his primary injury on January 29, 2004, when he was working as a truck driver and fell and sustained injuries to his low back and both knees.
3.In accordance with Claimant’s Exhibit A, his primary case against the Employer was settled for 22.5% of the left leg at the knee, 22.5% of the right leg at the knee, 7.5% of the body as a whole referable to thelow back, and a 10% load factor with regard to the knees.
4.Prior to Claimant’s primary injury of January 29, 2004, Claimant suffered from preexisting disabilities including hypertension, sclerotic heart disease, gastroesophogeal reflux disease, migraine headaches,neuropathy of the hands and feet and emphysema.
5.Claimant had worked as a mechanic but because of his preexisting disabilities he had to have people assist him at work and as a result had to go to obtain a job as a truck driver.
6.Claimant was examined by Dr. Berkin on behalf of the Claimant and he testified very credibly. He was of the opinion that the Claimant could not continue in the work that he had normally performedbecause of preexisting as well as the primary injury.
7.Claimant was seen by certified vocational expert, Mr. James Israel, who testified very credibly that Claimant is permanently and totally disabled and unable to compete in the open labor marketbecause of his primary injury as well as his preexisting injuries and taking into consideration Claimant’s age and limited education.
CONCLUSIONS OF LAW
1.Claimant is permanently and totally disabled and unable to compete in the open labor market as a result of his primary injury combined with his preexisting injuries anddisabilities.
2.Claimant is permanently and totally disabled and is entitled to permanent and total disability benefits from the Second Injury Fund for the Claimant’s lifetime as provided bylaw.

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

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