James Truelove v. FAG Bearing

(Affirming Award and Decision of Administrative Law Judge)

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 entire 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 of the administrative law judge dated January 20, 2009.

We note, though, that during oral arguments before the Commission, counsel for employer raised an issue regarding employee's compensation rate. Our review of the transcript shows that the parties stipulated to employee's average weekly wage and temporary total and permanent total disability rates. We will not disturb those stipulated rates.

The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued January 20, 2009, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 10th day of September 2009. LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Secretary

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: MARCH 18, 1995
5. State location where accident occurred or occupational disease was contracted: JASPER 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: EXPOSURE TO TCE WHILE PERFORMING WORK FOR THE EMPLOYER
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease: DEMENTIA
14. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY
15. Compensation paid to-date for temporary disability: -0 -
16. Value necessary medical aid paid to date by employer/insurer? -0 -
17. Value necessary medical aid not furnished by employer/insurer? N/A

Employee: James Truelove Injury No. 95-102424

1. Employee's average weekly wages: $\ 558.56
2. Weekly compensation rate: $\$ 372.33 / \ 249.48
3. Method wages computation: STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: -0 -

22 4/7 weeks of temporary total disability (or temporary partial disability): $\ 8.404 .06

weeks of permanent partial disability from Employer: N/A

-0- weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning August 24, 1995, for claimant's lifetime

1. Second Injury Fund liability: NO

TOTAL: UNDETERMINED

1. Future requirements awarded: Payment of Permanent Total Disability Compensation Only

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 PERCENT of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

JOHN WISE

Employee: James Truelove

Dependents: N/A

Employer: FAG Bearing

Injury No: 95-102424

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 14, 2008. The parties were afforded an opportunity to submit briefs, resulting in the record being completed and submitted to the undersigned on or about October 28, 2008.

The employee James Truelove appeared personally and by his attorney, John Wise, Esq. The employer FAG Bearing, and its insurer Liberty Mutual Insurance Co. appeared through their legal counsel James Blickhan, Esq.

Prior to commencement of the evidentiary hearing, the employee, by counsel, moved to consolidate Injury Nos. 95-102424 \& 95-110449 into Injury No. 95-102424 as a single file; and, the employee, by counsel, further moved to consolidate all pleadings filed in the abovereferenced two files into Injury No. 95-102424. Without objection, the motion is sustained. The file, Injury No. 95-110449, including all pleadings, shall be consolidated into Injury No. 95102424, and all reference to Injury No. 95-110449 shall relate to and be part of Injury No. 95102424 .

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

(1) On or about March 18, 1995 FAG Bearing was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Liberty Mutual Insurance Co.

(2) On the alleged injury date of March 18, 1995 James Truelove was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The above-referenced employment and alleged incident of occupational disease occurred in Jasper County, Missouri. The parties agree to venue lying in Newton County, Missouri. Venue is proper.

(4) At the time of the alleged incident of occupational disease the claimant's average weekly wage was $\ 558.56, which is sufficient to allow a compensation rate of $\ 372.33 for temporary total or permanent total disability compensation, and a compensation rate of $\ 249.48 for permanent partial disability compensation.

(5) Temporary disability benefits have not been provided to the employee.

(6) The employer and insurer have not provided medical treatment to the employee.

(7) The employee's last date of employment with the employer was March 18, 1995.

(8) The employer (FAG Bearing) paid $\ 7,800.00 to the employee under a self-insured employment short-term disability policy.

The sole issues to be resolved by hearing include:

(1) Whether the claimant sustained an incident of occupational disease on or about March 18, 1995; and, if so, whether the incident of occupational disease arose out of and in the course of Mr. Truelove's employment with FAG Bearing?

(2) Whether the Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo?

(3) Whether the alleged incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed?

(4) Whether the claimant has sustained injuries that will require additional or future medical care in order to cure and relieve the claimant of the effects of the injuries?

(5) Whether the claimant is entitled to temporary disability benefits? (The employee seeks temporary total disability compensation, payable for the period of March 18, 1995 to the point of being determined to be at maximum medical improvement and entitled to receipt of permanent total disability compensation.)

(6) Whether the claimant sustained any permanent disability as a consequence of the alleged incident of occupational disease; and, if so, what is the nature and extent of the disability?

(7) Whether the employer and insurer are entitled to a credit and reimbursement of the monies $(\ 7,800.00) paid to the employee under an employment disability policy?

The employee, James Truelove, did not testify at the evidentiary hearing, although he did present testimony through the parties taking of his deposition. Nor did Mr. Truelove present any

witnesses appearing in person at the evidentiary hearing. In addition, the employee offered for admission the following exhibits:

Exhibit A Deposition of James Truelove

Exhibit B Deposition of Craig Steven Heligman, M.D.

(with attached medical records)

Exhibit C Deposition of P. Brent Koprivica, M.D.

(with attached medical records)

The exhibits were received and admitted into evidence.

The employer and insurer did not present any witnesses at the hearing of this case. The employer and insurer, however, offered for admission the following exhibits:

Exhibit 1 Deposition of Allen J. Parmet, M.D.

Exhibit 2 Short-term Disability Statement

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 or judicial notice of the documents contained in the Legal File, which include:

- Minute Entries (Injury No. 95-102424)

- Notice of Hearing (Injury No. 95-102424)

- Request for Hearing-Final Award (Injury No. 95-102424)

- Answer of Employer \& Insurer to Claim for Compensation (Injury No. 95-102424)

- Claim for Compensation (Injury No. 95-102424)

- Report of Injury (Injury No. 95-102424)

- Minute Entries (formerly Injury No. 95-110449 / now Injury No. 95-102424)

- Notice of Hearing (formerly Injury No. 95-110449 / now Injury No. 95-102424)

- Request for Hearing-Final Award (formerly Injury No. 95-110449 / now Injury No. 95102424 )

- Answer of Employer \& Insurer to Claim for Compensation (formerly Injury No. 95110449 / now Injury No. 95-102424)

- Claim for Compensation (formerly Injury No. 95-110449 / now Injury No. 95-102424)

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The employee, James Truelove, is 62 years of age, having been born on October 30, 1947. Mr. Truelove resides with his wife in Duenweg, Missouri.

Mr. Truelove enjoys limited post-secondary education. Although Mr. Truelove did not graduate from high school, he received a GED, and later obtained an Associate Arts degree from Columbia College. In addition, prior to engaging in employment with FAG Bearing, Mr. Truelove joined the Air Force, and served the military as a classified mail carrier. Following his tenure with the military, Mr. Truelove took machinist training at Franklin Technical School.

Mr. Truelove is not presently engaged in any employment, and has not engaged in any employment since terminating his employment with FAG Bearing. Mr. Truelove's employment with FAG Bearing began in May 1972 and continued without interruption until he separated from the company on March 18, 1995.

Initially, Mr. Truelove worked for FAG Bearing as a Grade I employee, ${ }^{1}$ working in the heat department. Notably, as an employee working in the heat department, Mr. Truelove loaded and unloaded baskets, which contained spindles for water pumps. Later, in or around 1974, Mr. Truelove transferred from the heat department, and began working in the grinding department, which involved running various machines. In the gr