Ross Stillwell v. Knapheide Truck Equipment Company

If there were any doubt about whether medical expenses are compensation, the legislature eliminated it in 1986 when it enacted § 287.260.2 RSMo. ${ }^{1}$ Section 287.260.2 specifically states that the Workers' Compensation Law provides "compensation for medical expenses."

Notwithstanding subsection 1 of this section, the compensation payable under this chapter other than compensation for medical expenses and therapy under section 287.141, shall be assignable for the purpose of satisfying child support obligations, shall be subject to attachment, garnishment and execution for the purpose of collecting and satisfying unpaid and delinquent child support obligations, and shall be subject to the lien provided for in section 454.517, RSMo. (Emphasis added).

We think the administrative law judge discounts the value of Martin v. Star Cooler Corp., 484 S.W.2d 32 (Mo. App. 1972) in her analysis. The legislature added § 287.260.2 well after the decision in Martin was issued. "The legislature is presumed to know the existing case law when it enacts a statute." Hudson v. Dir. of Revenue, 216 S.W.3d 216, 222-223 (Mo. App. 2007) (citation omitted). We must presume the legislature was aware of the Martin holding when it enacted language in § 287.260.2 consistent with the holding.

We reverse the administrative law judge's conclusion that the penalty of $\S 287.120(5)$ does not operate to reduce employee's medical expenses.

Employee argues that we must reconsider the penalty percentage to apply because we expanded the compensation to which the penalty is being applied beyond the compensation used by the administrative law judge. We disagree. The administrative law judge determined the appropriate penalty percentage before she considered whether or not the penalty applied to medical expenses. We find that the 30 % penalty used by the administrative law judge is appropriate and we find no reason to disturb the administrative law judge's finding regarding the penalty percentage.

For the foregoing reason, in addition to the 30 % reduction in temporary total disability benefits, permanent partial disability benefits, and disfigurement benefits ordered by the administrative law judge, employee's medical benefit award is also reduced by 30 % due to employee's violation of employer's safety rules and his failure to use safety devices provided by employer. In all other respects, we affirm the award of the administrative law judge.

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.

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[^0]: ${ }^{1}$ A.L. 1986 H.B. 1479.

The award and decision of Administrative Law Judge Lisa Meiners, issued July 23, 2009, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of March 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING 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 believe the decision of the administrative law judge should be affirmed. I respectfully dissent from the decision of the majority of the Commission to modify the award of the administrative law judge in this case.

John J. Hickey, Member

Employee: Ross Stillwell

Injury No. 06-002402

Employer: Knapheide Truck Equipment Company

Insurer: Travelers Commercial Casualty

Hearing Date: June 22, 2009

Checked by: $\mathrm{LM} / \mathrm{cg}$

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: January 5, 2006
5. State location where accident occurred or occupational disease was contracted: 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: While in the course and scope of Employee's work, a truck body fell on Claimant's upper extremities causing severe crush injuries.
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Upper extremities.
14. Nature and extent of any permanent disability: Permanent total disability.
15. Compensation paid to-date for temporary disability: $\ 51,345.58
16. Value necessary medical aid paid to date by employer/insurer? $\ 168,967.89
17. Value necessary medical aid not furnished by employer/insurer? $\ 0

1. Employee's average weekly wages: $\ 829.36
2. Weekly compensation rate: $\$ 552.92 / \ 365.08
3. Method wages computation: By stipulation
4. Amount of compensation payable: Unknown

The Employer is liable to Employee for permanent total benefits in the amount of $\ 552.92 per week, as well as 21 weeks of disfigurement. The Employer is entitled to a 30 % reduction of compensation pursuant to $\S 287.120(5)$.

1. Second Injury Fund Liability: No
2. Employer is to provide Employee with additional medical care as required to cure and relieve the symptoms related to the injury of January $5^{\text {th }}, 2006$.

The compensation awarded to the Claimant shall be subjected to a lien in the amount of 24 % by Employee's attorney, Steffanie Stracke, for services rendered.

Employee: Ross Stillwell

Injury No. 06-002402

Employer: Knapheide Truck Equipment Company

Insurer: Travelers Commercial Casualty

Hearing Date: June 22, 2009

Checked by: $\mathrm{LM} / \mathrm{cg}$

The parties appeared for hearing on June 22, 2009. Ross Stillwell, the Employee, appeared in person and with counsel Steffanie Stracke. The employer, Knapheide Truck Equipment Company, through its insurer, Travelers Commercial Casualty, was represented by Shelly Naughtin. The Second Injury Fund was also present and represented by Benita Seliga.

The parties stipulated to the following:

1) that Claimant was an employee working subject to Missouri Workers' Compensation Law;

2) that the employer was operating subject to the Workers' Compensation Act;

3) that Claimant sustained an injury by accident that arose out of and in the course of his employment on January $5^{\text {th }}, 2006$;

4) that notice was given and a claim filed within the time allowed by law;

5) that the average weekly wage was $\ 829.36, which makes the compensation rate $\$ 552.92 / \ 365.08

6) that the injury by accident occurred in Clay County, Missouri;

7) that the employer has paid $\ 168,967.89 in medical expenses and $\ 51,345.58 in temporary total disability benefits that were paid until October $18^{\text {th }}, 2007$.

The parties requested the Division to determine the following issues:

1) whether the Claimant sustained any disability and, if so, the nature and extent of that disability as a result of the January $5^{\text {th }}, 2006$ accident;

2) the liability of the Second Injury Fund;

3) whether the Claimant sustained any disfigurement under $\S 287.190$ (4);

4) whether the employer is liable to the employee for future medical care as a result of the January 2006 accident;

5) whether the employer is liable to the employee for past temporary total disability benefits between October $19^{\text {th }}, 2007 through December 31^{\text {st }}, 2007 in the amount of \ 4,933.30 and;

6) whether a safety penalty should be assessed against the employee pursuant to 287.120 (5).

Claimant, a 58-year-old high school graduate, has worked as a heavy mechanic for 25 years, with the last 13 years at Knapheide Trucking. On January $5^{\text {th }}$, 2006, Claimant lifted a heavy truck body using a chain hooked to the tailgate of a truck. Claimant lifted the truck body 18 inches off the ground in order to work under it. Additionally, Claimant did not place supports under the dump body even though there is a safety rule to use them when a truck body is elevated.

At some point, the tailgate opened and the truck body, without a support device, hit the floor. As a result, Claimant's forearms were crushed under the truck body. (See Employer's Exhibits 7 through 9.) Claimant was rushed to the hospital where he remained until midJanuary. Ultimately, Claimant underwent approximately three to four surgeries of the left hand and forearm as a result of the traumatic accident of January of 2006. Claimant also underwent approximately four to five surgeries of the right hand and forearm due to the January 2006 accident. Claimant was found to be at maximum medical improvement on October 19 ${ }^{\t