Eddie Thompson v. ICI American Holding f/k/a National Starch & Chemical

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-105836

Employee: Eddie L. Thompson

Employer: ICI American Holding f/k/a National Starch \& Chemical

Insurer: Old Republic Insurance Company

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund (Open)

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 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 Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 19, 2009. The award and decision of Administrative Law Judge Robert B. Miner, issued June 19, 2009, is attached and incorporated by this 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 $\qquad 16^{\text {th }}$ day of March 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: Eddie L. Thompson

Injury No.: 07-105836

Employer: ICI American Holding f/k/a National Starch \& Chemical

Insurer: Old Republic Insurance Company

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

Hearing Date: March 23, 2009

Checked by: RBM

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: October 20, 2007.
5. State location where accident occurred or occupational disease was contracted: North Kansas City, Clay 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 was putting a belt on a machine when his right hand was pulled between the belt and a pulley, causing injury to his right hand.

1. Did accident or occupational disease cause death? No.
2. Part(s) of body injured by accident or occupational disease: Right hand.
3. Nature and extent of any permanent disability: 55 % to the right upper extremity at the wrist ( 175 week level.)
4. Compensation paid to-date for temporary disability: $\ 11,372.76.
5. Value necessary medical aid paid to date by employer/insurer? $\ 13,991.90.
6. Value necessary medical aid not furnished by employer/insurer? None.
7. Employee's average weekly wages: An amount sufficient to result in maximum compensation rates.
8. Weekly compensation rate: $\ 742.72 per week for temporary total disability and $\ 389.04 per week for permanent partial disability.
9. Method wages computation: By agreement of the parties.

1. Amount of compensation payable from Employer:

Temporary total disability underpayment from Employer (see Award): $\ 728.01 after reduction of 37.5 % safety violation penalty.

96.25 weeks of permanent partial disability from Employer: $\ 23,403.19 after reduction of 37.5 % safety violation penalty.

4 weeks of disfigurement from Employer: $\ 972.60 after reduction of 37.5 % safety violation penalty.

Employer/Insurer has paid $\ 13,991.90 in medical aid. Employer/Insurer's liability for medical benefits should be reduced $\ 5,246.96 for the 37.5 % safety violation penalty. Employer/Insurer is awarded a credit of $\ 5,246.96 from the total additional benefits awarded. The total benefits awarded Claimant for temporary total disability, permanent partial disability, and disfigurement are $\ 25,403.80 after reduction of the 37.5 % safety violation penalty. Claimant's award is reduced by $\ 5,246.96 for the medical benefits credit, leaving a total net due Claimant from Employer of the sum of $\ 19,856.84.

1. Second Injury Fund liability: Not determined. Employee's claim against the Second Injury Fund remains open.
2. 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: Wilson Stafford.

Employee: Eddie L. Thompson

Injury No.: 07-105836

Employer: ICI American Holding f/k/a National Starch \& Chemical

Insurer: Old Republic Insurance Company

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

Hearing Date: March 23, 2009

Checked by: RBM

A final hearing was held in this case on Employee's claim against Employer on March 23, 2009 in Gladstone, Missouri. Employee, Eddie L. Thompson, appeared in person and by his attorney, Wilson Stafford. Employer, ICI American Holding f/k/a National Starch \& Chemical, and Insurer, Old Republic Insurance Company, appeared by their attorneys, Samantha Benjamin House and Lara Plaisance. The Second Injury Fund is a party to this case, but was not represented at the hearing since the parties agreed to leave the Second Injury Fund claim open. Wilson Stafford requested an attorney's fee of 25 % from all amounts awarded. It was agreed that Briefs would be due on April 6, 2009 .

At the time of the hearing, the parties stipulated to the following:

1. On or about October 20, 2007, Eddie L. Thompson ("Claimant") was an employee of ICI American Holding f/k/a National Starch \& Chemical ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about October 20, 2007, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was insured by Old Republic Insurance Company ("Insurer").
3. On or about October 20, 2007, Claimant sustained an injury by accident or occupational disease in North Kansas City, Clay County, Missouri, arising out of and in the course of his employment, and Claimant's injury was medically causally related to an accident or occupational disease on or about October 20, 2007.

1. Employer had notice of Claimant's alleged injury.
2. Claimant's Claim for Compensation was filed within the time allowed by law.
3. The average weekly wage was sufficient to result in maximum compensation rates, and the rate of compensation for temporary total disability is $\ 742.72 per week and the rate of compensation for permanent partial disability is $\ 389.04 per week.
4. Employer/Insurer had paid $\ 11,372.76 in temporary total disability. The first six weeks of temporary total disability benefits were paid at the rate of $\ 613.36 per week and the next 20.71 weeks of temporary total disability benefits were paid at the rate of $\ 371.36 per week after Employer/Insurer applied a 50 % penalty for an alleged safety violation.
5. Employer/Insurer had paid $\ 13,991.90 in medical aid. The Court notes that at the beginning of the hearing, the attorneys agreed to leave the record open to verify the amount of medical aid paid. On March 27, 2009, the Court received an email from Wilson Stafford (that was also shown sent to Employer's attorney, and that the Court has had marked "Court's Exhibit 1") stating: "Ms. Benjamin-House and I are now able to stipulate to a paid medical aid total of $\ 13,991.90."

The parties agreed that there were disputes on the following issues:

1. Employer's liability for permanent partial disability, including disfigurement.
2. Whether a penalty should be assessed against Claimant's benefits in this case for alleged safety violations, and if so, the extent of the penalty, and Employer's liability for interest on alleged underpaid temporary total disability benefits.

Claimant testified in person at the hearing. Ronald J. Walker, Richard K. Duran, Steven Willets, and Jim W. DeArmund also testified at the hearing. Claimant offered the following exhibits which were admitted in evidence without objection:

Exhibit A—Medical report of Dr. Bernard Abrams.

Exhibit B-Curriculum Vitae of Dr. Bernard Abrams.

Exhibit C—Global SSHE Performance System record.

Employer offered the following Exhibits that were admitted in evidence without objection:

Exhibit 1-Medical reports, records and Curriculum Vitae of Dr. Dana Towle. Exhibit 2-Job Function Analysis.

Exhibit 3-Maintenance Course Attendance Sheet and other records.

Exhibit 4-Schematic.

Exhibit 6-Record regarding training of Claimant.

Exhibit 7-Photographs.

Exhibit 8-Personnel document dated May 9, 2008.

Exhibit 9-Broom handle.

Employer also offered Exhibit 5, Investigation Report. Claimant's counsel objected to Exhibit 5. The objections were sustained, and Exhibit 5 was not admitted in evidence.

On May 6, 2009, the Court discovered that Exhibit 1 appeared to be incomplete and appeared to have missing pages. Attorneys for the parties agreed in conference calls with the Court on May 6, 2009 and May 7, 2009 that omitted pages of Exhibit 1 be sent to the Court and be inserted into Exhibit 1. By agreement of the parties, the record was reopened, and two omitted pages, they being page two of Dr. Towle's report pertaining to his August 11, 2008 examination of Claimant, and page two of Dr. Towle's Curriculum Vitae, were inserted into Exhibit 1 on May 7, 2009. The Fax Transmittal Sheet dated May 7, 2009 from Employer's attorney that accompanied the omitted pages has been marked "Court's Exhibit 2".

The Court observed Claimant's right hand at the trial and assesses four weeks disfigurement for the scarring on his right hand.

Based on a comprehensive review of the substantial and competent evidence, including the testimony of the witnesses, the expert medical opinions, the medical records, the exhibits admitted in evidence, the stipulations of the parties, and my personal observations of Claimant at the hearing, I find:

Claimant is 58 years old. He began working for Employer on May 5, 1969. Employer generates a starch product that is mixed in bins and moved by motorized blowers. Claimant usually worked as a mechanic, and had worked as a mechanic since the early 1970s.

On October 20, 2007, Claimant and a co-worker, Ron Walker, were assigned to replace three drive belts on a blending blower. Claimant had changed belts on blending blower motors several times before October 20, 2007. Claimant had the correct belts

when he arrived to do the work. Before they began to replace the belts, they went to the electric room and turned the power off to the electric motor. Mr. Walker put a lock on the device to prevent someone else from starting it up. Mr. Walker also put his tag on it. Claimant did not put his tag on the device when it was locked out.

They next went to where they were to install the new belts. The pulley, or sheave, on one of the blowers was moving. Claimant did not know why it was moving, and did not know if it was getting backflow air. He had not seen the fan blades turn like that before. Claimant testified he was not aware of how to stop the airflow at that time. Neither he nor Mr. Walker shut down the backflow air before the accident. Later, another mechanic told him he should have shut off the air valve. Claimant testified that before the a