Edward McNamee v. K. York Electric, Inc.

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: May 2, 2003.
5. State location where accident occurred or occupational disease was contracted: Laclede County, Missouri.
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: Employee cut his finger while performing electrical work and the cut became infected.
12. Did accident or occupational disease cause death? Yes. Date of death? 5/17/2003.
13. Part(s) of body injured by accident or occupational disease: Left ring finger/death.
14. Nature and extent of any permanent disability: Death.
15. Compensation paid to-date for temporary disability: 0 .
16. Value of necessary medical aid paid to date by employer/insurer? $\ 127.00.
17. Value necessary medical aid not furnished by employer/insurer? $\ 90,915.34.
18. Employee's average weekly wages: $\ 675.70
19. Weekly compensation rate: $\ 450.47.
20. Method wages computation: By agreement.

COMPENSATION PAYABLE

Employee: Edward McNamee (Deceased) Injury No. 03-043156 Dependents: Denise McNamee (Widow) Employer: K. York Electric, Inc. Additional Party: Treasurer of Missouri, as custodian of the Second Injury Fund

Before the DIVISION OF WORKERS' COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri Medical Fee Disputes: Lake Regional Hospital, MFD 300907; University of Missouri Hospitals and Clinics, MFD 301182; University Physicians. MFD 301236. Insurer: Federated Mutual Insurance Co. Hearing Date: March 30, 2007 Checked by: VRM/meb

The undersigned Administrative Law Judge conducted a Final Hearing in Lebanon, Missouri, on March 30, 2007. Attorney Deborah A. Malkmus represented Denise McNamee, the widow and sole dependent of the deceased employee, Edward McNamee (Claimant). Susan Turner represented K. York Electric, Inc., and its insurer, Federated Mutual Insurance Co. (Employer). Assistant Attorney General Andrew Lyskowski appeared on behalf of the Treasurer of the State of Missouri, as custodian of the Second Injury Fund.

Employer's motion to leave open the record to submit an additional deposition was denied on the record. To elaborate, the motion was denied for the following reasons:

The Claim for Compensation was filed on August 20, 2003. On September 13, 2006, the Division of Workers' Compensation received Claimant's request for Final Hearing. Employer filed no timely objection to the request for hearing. Consistent with the Division's practice, this matter was set for hearing within 120 days.

The original hearing date of January 8, 2007, was continued upon the agreement of the parties due to the serious illness of Employer's counsel. A new hearing date was set for February 14, 2007. That hearing date was continued upon agreement of the parties due to the illness of Claimant's counsel. The hearing was again reset and notice was forwarded for March 30, 2007.

On March 30, 2007, Employer's counsel for the first time advised the Administrative Law Judge that a deposition of a physician was scheduled, but not yet taken. Employer's counsel requested that the record be left open for the submission of the deposition. Counsel for both Claimant and the Second Injury Fund objected, suggesting that the deposition could spur the need for yet additional discovery.

All parties had sufficient notice of the hearing and ample time to prepare. The death had occurred more than three years ago. The request for hearing had been made six months earlier. Two continuances already had been granted. The third request for continuance was not made until the date of hearing, after all discovery was to have been completed. Employer did have at least one expert opinion to submit into evidence. Thus, mindful of the Division's desire to expeditiously resolve pending cases, recognizing the objection of the opposing parties, finding no extraordinary circumstances to further delay resolution of the case, and finding no undue prejudice to the Employer, the undersigned Administrative Law Judge denied the request to leave open the record for additional evidence.

The parties stipulated that Edward McNamee was an employee of K. York Electric, Inc., on or about May 2, 2003. K. York Electric, Inc., was an employer subject to the Missouri Workers' Compensation Law and was fully insured by Federated Mutual Insurance Company. Employee's average weekly wage at the time of the alleged accident was $\ 675.70 per week, yielding a rate of $\ 450.47 for both Temporary Total Disability and Death benefits. Employer does not contest notice or statute of limitations. Except for one medical bill, no benefits have been paid. Parties agree that venue in Lebanon, Missouri, was proper.

1. Did Employee Edward McNamee sustain an accident and injury arising out of and in the course and scope of his employment with K. York Electric, Inc., on May 2, 2003?
2. Is the condition for which benefits are being sought medically and causally related to Employee's employment of K. York Electric, Inc.?
3. Is Employer liable for medical expenses in the amount of $\ 90,915.34 ?
4. Is Employer liable for death benefits?

The following exhibits were offered on behalf of Claimant and admitted:

A. Marriage License

the job.

On Friday, May 2, 2003, while working at Brown Beverage, Mr. McNamee cut his left ring finger. On the way home from work that evening, Mr. McNamee mentioned the cut to his wife. Claimant said her husband told her that he nicked his finger on a nail. Claimant observed the cut on her husband's finger. Mr. York, the employer's chief executive, said there were no nails or wood on the project as the beer distributorship was housed in a steel and masonry building. I find credible Claimant's testimony that her husband told her he cut his finger at work and that she personally observed the cut.

Over the