Ray Vincent v. Barton Lumber

Injury No.: 00-172368

Employee: Ray Vincent

Employer: Barton Lumber

Insurer: Indiana Lumbermens Mutual Insurance

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

Date of Accident: November 14, 2000

On October 22, 2008, the Labor and Industrial Relations Commission issued a Final Award Allowing Compensation (Affirming Award and Decision of Administrative Law Judge).

The issue date incorrectly stated November 22, 2008. This is corrected to read:

Given at Jefferson City, State of Missouri, this 22nd day of October 2008.

Given at Jefferson City, State of Missouri, this 22nd day of October 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest:

John J. Hickey, Member

Secretary

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ 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 §286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 22, 2008, subject to the modification herein. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued April 22, 2008, is attached and incorporated by this reference.

On page 17 of the administrative law judge award, under the heading "Settlement Hearing" the administrative law judge states that the settlement hearing was held on November 9, 2004. We modify the award to clarify that the settlement hearing to which the administrative law judge refers was held on September 9, 2004 (Tr. 2177 - 2180). In all other respects, the administrative law judge's award is affirmed.

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 22nd day of November 2008. LABOR AND INDUSTRIAL RELATIONS COMMISSION William F. Ringer, Chairman Alice A. Bartlett, Member John J. Hickey, Member

Employee: Ray Vincent

Injury No. 00-172368

Dependents: N/A

Employer: Barton Lumber

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

Insurer: Indiana Lumbermens Mutual Ins.

Hearing Date: February 5, 2008

Checked by: LTW

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: NOVEMBER 14,2000
5. State location where accident occurred or occupational disease was contracted: BARRY 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: LIFTING ROOFING MATERIALS
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: LOW BACK
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: $\ 3,138.89
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,086.61

Value necessary medical aid not furnished by employer/insurer? -0-

1. Employee's average weekly wages: $\ 387.77
2. Weekly compensation rate: $\ 258.51
3. Method wages computation: STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: -0-

N/A weeks of temporary total disability (or temporary partial disability)

N/A weeks of permanent partial disability from Employer

N/A weeks of disfigurement from Employer

1. Second Injury Fund liability: YES - PERMANENT TOTAL DISABILITY

The payment of permanent total disability compensation by the Second Injury Fund is effective as of October 8, 2002 (when Mr. Vincent terminated his employment with Barton Lumber Company and ceased to engage in any employment), and shall take into consideration 60 weeks of permanent partial disability, which is attributable to the employer and insurer

Total: UNKNOWN

1. Future requirements awarded: YES

Said payments to begin OCTOBER 8, 2002 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 PERCENT of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Attorney Frank Eppright

Employee: Ray Vincent

Injury No. 00-172368

Dependents: N/A

Employer: Barton Lumber

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

Insurer: Indiana Lumbermens Mutual Ins.

Hearing Date: February 5, 2008

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on February 5, 2008. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about March 7, 2008.

The employee appeared personally and through his attorney Frank Eppright, Esq. The Second Injury Fund appeared through its attorney, Christina Hammers, Assistant Attorney General. (The employer and insurer were not

part of this litigation, insofar as the employee and employer / insurer previously entered into a Stipulation for Compromise Settlement on or about May 14, 2003, which the Honorable Robert House approved on June 6, 2003.)

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about November 14, 2000 Barton Lumber was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Indiana Lumbermens Mutual Insurance Co.

(2) On the alleged injury date of November 14, 2000 Ray Vincent was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about November 14, 2000 the employee sustained an accident, which arose out of and in the course and scope of his employment with Barton Lumber.

(4) The above-referenced employment and accident occurred in Barry County, Missouri. The parties agree to venue lying in Newton County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section, 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident the claimant's average weekly wage was $\ 387.77, which is sufficient to allow a compensation rate of $\ 258.51 for both temporary total disability compensation, and permanent disability compensation.

(8) Temporary disability benefits have been provided to the claimant in the amount of $\ 3,138.89, representing 12 $1 / 7$ weeks in disability benefits. (The employee last engaged in employment on or about October 8, 2002.)

(9) The employer and insurer have provided medical treatment to the employee, having paid \$5,086.61 in medical expenses.

The sole issues to be resolved by hearing include:

(1) Whether the accident or incident of occupational disease of November 14, 2000 causedthe injuries and disabilities for which benefits are now being claimed?

(2) Whether the claimant sustained any permanent disability as a consequence of the claimed accident or occupational disease of November 14, 2000; and, if so, what is the nature and extent of the disability?

(3) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

(4) Whether the employee and the Treasurer of Missouri, as the Custodian of the Second Injury Fund, previously entered into a Stipulation for Compromise Settlement Agreement; and, if so, whether the agreement is now binding on the parties and the employee is estopped from pursuing this action? (This issue appears to present as an underlying issue whether the Division of Workers' Compensation is without jurisdiction to adjudicate the substantive issues presented in the case, thus requiring the Second Injury Fund to seek enforcement of the settlement agreement in the applicable Circuit Court.)

The claimant testified at the hearing in support of his claim. In addition, the claimant offered for admission the following exhibits:

Exhibit A Deposition of P. Brent Koprivica, M.D. (with attached exhibits to the deposition)

Exhibit B Deposition of Mary Titterington, M.S., C.D.M.S., L.P.C. (with attached exhibits to the deposition)

Exhibit C .Stipulation for Compromise Settlement (between employee and employer / insurer)

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses at the hearing of this case. The Second Injury Fund, however, offered for admission the following exhibits:

Exhibit I Vocational Rehabilitation Evaluation Report from James M. England, Jr., Vocational Rehabilitation Counselor

Exhibit II.......... Division of Vocational Rehabilitation Records for Ray Vincent

Exhibit III.........Transcript of Proceedings before the Honorable Karen Fisher (September 9, 2004)

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took official notice of the documents contained in the Legal File, which include:

- Minute Entries

- Notice of Hearing (February 5, 2008 Hearing before Judge Wilson)

- Order Sustaining Change of Administrative Law Judge

- Notice of Hearing

- Request for Hearing-Final Award

- Stipulation for Compromise Settlement (between employee and employer / insurer)

- Answer of Second Injury Fund to Third Amended Claim for Compensation (filed August 29, 2006)

- Third Amended Claim for Compensation (filed August 3, 2006)

- Answer of Second Injury Fund to Second Amended Claim for Compensation (filed August 27, 2002)

- Answer of Employer/Insurer to Second Amended Claim for Compensation (filed August 5, 2002)

- Second Amended Claim for Compensation (filed July 26, 2002)

- Answer of Second Injury Fund to First Amended Claim for Compensation (filed April 22, 2002)

- Answer of Employer / Insurer to First Amended Claim for Compensation (filed April 22, 2002)

- First Amended Claim for Compensation (filed April 10, 2002)

- Answer of Second Injury Fund to Original Claim for Compensation (filed June 15, 2001)

- Answer of Employer / Insurer to Original Claim for Compensation (filed June 7, 2001)

- Original Claim for Compensation (filed May 2, 2001)

- Assertion of Attorney's Lien (filed by John C. Banning, Esq., dated October 15, 2004)

- Assertion of Attorney's Lien (filed by William E. Lawrence, Esq., dated May 5, 2003)

- Notice of Hearing (September 9, 2004 Hearing before Judge Fisher)

- Report of Injury

All exhibits appear as the exhibits were