Robert Thornsberry v. Thornsberry Investments, Inc./Lebanon Livestock Auctions, LLC

The parties stipulated to certain facts during the hearing before the administrative law judge. Among other things, the parties stipulated that employee had not received any temporary benefits as of the date of the hearing and that his compensation rate for temporary total disability benefits was $340.46. The administrative law judge awarded employee temporary total disability benefits from January 14, 2006 to June 2, 2006, totaling $7,003.74.

Thornsberry Investments appealed to the Commission alleging the administrative law judge erred in several respects, including an allegation that there was no evidence to support an award of temporary total disability benefits to employee.

An employee is entitled to temporary total disability benefits to cover healing periods to be paid until the time when the employee can return to work, his condition stabilizes, or his condition has reached a point of maximum medical progress. Schuster v. Division of Employment Security, 972 S.W.2d 377, 381 (Mo.App. E.D. 1998). [T]he term "total disability" is "defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo.App. 2001); § 287.020.7. "It does not require that the claimant be completely inactive or inert." Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo.App. 1995); see also Brookman v. Henry Transp., 924 S.W.2d 286, 290 (Mo.App. 1996); Reiner v. Treasurer, State of Missouri, 837 S.W.2d 363, 367 (Mo.App. 1992). Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo.App. 2003). Discussion

The administrative law judge found that employee was entitled to temporary total disability benefits between January 14, 2006, the date of employee's accident, and June 2, 2006, when employee was released from physical therapy.

The Commission majority disagrees with this determination. The medical records in evidence only show that employee was released from physical therapy on June 2, 2006, because he had not been seen for treatment since May 1, 2006. There is no indication that this date coincided with employee's maximum medical improvement, ability to return to work or the stabilization of his condition.

Additionally, there is no testimony in the record regarding employee's entitlement to temporary total disability benefits. There is no evidence that employee was totally disabled for any period of time after his work accident. Therefore, employee has failed to sustain his burden to show by competent and substantial evidence that he is entitled to temporary total disability benefits.

We reverse the administrative law judge's award of temporary total disability benefits. In all other respects, we affirm the award.

The award and decision of Administrative Law Judge David L. Zerrer, issued October 17, 2007, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 21st day of August 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers'

Compensation Law, I disagree with the majority's decision to deny employee temporary total disability benefits, and believe the decision of the administrative law judge should be affirmed in its entirety.

"[T]emporary total disability" is a judicial creation that is defined by case law and not by statute. Cooper v. Medical Center of Independence, 955 S.W.2d 570, 575 (Mo.App. W.D. 1997). The purpose of temporary total disability benefits is to cover the employee's healing period, so the award should cover only the time before the employee can return to work. Id. at 575; Seeley v Anchor Fence Co., 96 S.W.3d 809, 821 (Mo.App. S.D. 2002). Temporary total disability benefits are owed until the employee can find employment or the condition has reached the point of "maximum medical progress." Id. Thus, temporary total disability benefits are not intended to encompass disability after the condition has reached the point where further progress is not expected. Id.; Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 764 (Mo.App. E.D. 2002).

Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 909 (Mo.App. E.D. 2008).

[T]he Commission does not have to make its decision only upon testimony from physicians; it can make its findings based on the entire evidence. Smith, 32 S.W.3d at 573; see Eimer, 895 S.W.2d at 120.

Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo.App. 2003). (citing Smith v. Richardson Bros. Roofing, 32 S.W.3d 568 (Mo.App. 2000)).

The evidence in the record shows that as a result of his work accident on January 14, 2006, employee's left hand suffered full amputation of the second digit, partial amputation of the left thumb, ruptured flexor tendon of the third digit, and significant trauma to the fourth and fifth digits. Clearly, even to a lay person, this was a devastating and debilitating injury.

The medical records of Dr. Perez, dated February 17, 2006, set forth that employee is "significantly limited in his activities and has had to place his veterinary practice on hold." Additionally, the discharge records from the University of Kansas Hospital show that employee was not to return to work, resume normal activity, resume strenuous activity or lift any weight. I believe this evidence is sufficient to show that after employee's accident, he was unable to return not only to his employment, but to any employment, and therefore, was totally disabled.

The next issue then is to determine when employee's healing period ended. As the administrative law judge correctly pointed out in his award, employee was released from care on June 2, 2006. There is no evidence that any further care was given to employee after June 2, 2006. It is reasonable to infer that employee did not feel he needed further treatment at that time because his condition had stabilized or reached maximum medical improvement. Therefore, I believe employee's total disability ended on June 2, 2006, when he was discharged from further care.

Based on the above, I believe there is competent and substantial evidence in the record to demonstrate that employee was temporarily and totally disabled from January 14, 2006 to June 2, 2006. Therefore, employee is entitled to temporary total disability benefits for that period, totaling $\ 7,003.74. For this reason, I would affirm the award of the administrative law judge in its entirety.

John J. Hickey, Member

1. Value necessary medical aid paid to date by employer/insurer? None
2. Value necessary medical aid not furnished by employer/insurer?
3. Employee's average weekly wages: $\ 510.69
4. Weekly compensation rate: $\ 340.46

- Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses: $\ 64,733.71 - $\$ 13,525.16=57,208.35$

20-4/7 weeks of temporary total disability (or temporary partial disability): \$7,003.74

87.5 weeks of permanent partial disability from Employer: \29,790.25

20 weeks of disfigurement from Employer: \ 6,809.20

1. Second Injury Fund liability: Yes No X Open

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential () payable by SIF for weeks beginning

and, thereafter, for Claimant's lifetime

Total: $\ 94,002.34

1. 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: Steven Rives

Employer: Thornsberry Investments, Inc./ Lebanon Livestock Auction, LLC

Additional Party

Insurer: Grinnell Mutual Reinsurance/AIG Claim Service

Checked by: DLZ

On the 21st day of August, 2007, the parties appeared before the undersigned Administrative Law Judge for final hearing. The Claimant appeared in person and by his attorney, Steven Rives. Alleged Employer, Thornsberry Investments, Inc. appeared by its corporate representative, Brenda Thornsberry and by attorney Patrick J. Platter. Alleged Employer, Lebanon Livestock Auction, LLC, appeared by its corporate representative, Robert Haynes, and by attorney, Karen Johnson. Healthcare provider, L.E. Cox Medical Center appears by its attorney, Jason Shafer. Healthcare provider, Kelly Holtkamp M.D. and/or Orthopedic Specialists of Springfield, although