| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION |
| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Injury No.: 05-046880 |
| Employee: | William Blakely |
| Employer: | Solomon Contracting |
| Insurer: | Uninsured |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| Date of Accident: | February 9, 2005 |
| 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 bysection 287.480 RSMo. Pursuant to section 286.090 RSMo, subsequent to reviewing the evidence and considering the entire record, the Commission modifies the award and decision of theadministrative law judge dated July 18, 2007. |
| I. Preliminary Matters |
| The Commission affirms all findings and conclusions of the administrative law judge except for the liability determination of the SecondInjury Fund for permanent partial disability benefits in the amount of $7,318.21. The Commission modifies that determination by concluding that the proper rate of preexisting disability for employee’s left ankle is 75% at the 155 week level rather than 35% at the 155 week level. As such, the SecondInjury Fund is liable to employee for $9,515.09 in permanent partial disability benefits. |
| II. Preexisting Disability of Employee’s Left Ankle |
| In his award, the administrative law judge determined that employee had a 35% preexisting disability of his left ankle. However, based on employee’s prior injuries, the Commission does not agree with this finding. In 1997, employee’s left foot was crushed by a forklift which required surgery to release his left tarsal tunnel and deep peroneal nerve. On October 11, 2001, employee fell off a ladder and injured his left foot again, this time requiring a left medial foot fusion. Employee also developed an infection in his foot and ankle which required several surgeries and placement of a plate and screws in employee’s left ankle. Finally, in November of 2002, employee again fell off a ladder, this time suffering a comminuted fracture of the posterior and inferior calcaneus of the left heel. |
| Employee testified that as a result of these injuries, he has persistent pain when standing, walking or climbing stairs, and limps. He also testified that his left ankle gives out three to four times a week, causing him to fall down. Employee also stated that he constantly feels “pressure” pain regardless of his level of activity, and described this level of pain as 7 or 8 on a scale of 10. Additionally, in the Stipulation for Compromise Settlement for injury 03-026563, employee was assessed a 75% disability rating of the left ankle at the 155 week level. |
| Based on the above, the Commission finds that employee has a preexisting disability of his left ankle of 75% at the 155 week level. As such, the Commission calculates the Second Injury Fund’s liability for permanent partial disability benefits as follows: |
| Preexisting Disabilities |
75% of employee's left ankle at the 155 week level = 116.25
30% of employee's right wrist at the 175 week level = 52.50
25% of employee's right shoulder at the 232 week level = 58.00
226.75
Primary
20% of employee's right elbow at the 210 week level = 42.00
226.75 + 42.00 = 268.75(10% enhancement) = 26.875($354.05) = $9,515.09
Based on the above modification, the Commission ascertains and determines the Second Injury Fund is liable to
employee for $9,515.09 in permanent partial disability benefits.
The award and decision of Administrative Law Judge Cornelius T. Lane, issued July 18, 2007, as modified
herein, 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 19th day of November 2007.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
John J. Hickey, Member
Attest:
Secretary
AWARD
Employee: William Blakely Injury No.: 05-046880
Dependents: N/A Before the
Division of Workers'
Employer: Solomon Contracting Compensation
Department of Labor and Industrial
Additional Party: Second Injury Fund Relations of Missouri
Jefferson City, Missouri
Insurer: Uninsured
Hearing Date: June 13, 2007 Checked by: CTL:tr
FINDINGS OF FACT AND RULINGS OF LAW
- 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: February 9, 2005 |
| 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?Uninsured |
| 11. | Describe work employee was doing and how accident occurred or occupational diseasecontracted: Claimant fell off of a ladder. |
| 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:Right elbow |
| 14. | Nature and extent of any permanent disability: 20% of the right elbow at the 210 weeklevel for a total of 42 weeks |
| 15. | Compensation paid to-date for temporary disability:None |
| 16. | Value necessary medical aid paid to date by employer/insurer?None |
| Employee: | William Blakely Injury No.: 05-046880 |
| 17. | Value necessary medical aid not furnished by employer/insurer?$2,381.50 |
| 18. | Employee’s average weekly wages: $1,160.50 |
| 19. | Weekly compensation rate: $675.90/$354.05 |
| 20. | Method wages computation: Workers’ Compensation Tables |
| COMPENSATION PAYABLE |
| 21. | Amount of compensation payable: |
| Unpaid medical expenses: | $2,381.50 |
| 42 weeks of permanent partial disability from Employer | $14,870.10 |
| 22. | Second Injury Fund liability:Yes |
| The combination of the primary injury and Claimant’s prior injuries |
amount to 206.75 weeks with a 10\% load factor for 20.67 weeks at $\ 354.05 per week or $\ 7,318.21
Uninsured medical/death benefits: $\quad \ 2,381.50
TOTAL: $\quad \ 26,951.31
- Future requirements awarded: None
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:
Dean Christianson