Lewis Daniels v. R & S Electric

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 modified. I agree with the majority's conclusion that employee sustained a compensable repetitive use injury. I disagree with the majority's determination regarding employee's resultant disability. I also disagree with the majority's conclusion that employee is not entitled to benefits from the Second Injury Fund.

I believe the majority's conclusion that employee sustained only 10\% permanent partial disability due to his repetitive use condition is erroneous. Based upon employee's testimony regarding his pain and physical limitations and based upon the testimony of Dr. Koprivica regarding employee's physical restrictions, I believe employee sustained a 20\% permanent partial disability of the body as a whole as a result of his repetitive use injury.

I agree with the majority's conclusion that employee has not proven he is permanently and totally disabled. However, as to the majority's conclusion that employee's preexisting vascular condition did not meet the statutory threshold to trigger Second Injury Fund liability for permanent partial disability, I disagree. Dr. Koprivica testified that employee's preexisting vascular condition rendered employee 25 % permanently partially disabled of the body as a whole. Dr. Fevurly did not give a disability rating for the vascular condition but he twice referred to the condition as severe. I find credible Dr. Koprivica's opinion regarding employee's preexisting vascular condition. Employee's preexisting disability of 25 % of the body as a whole easily meets the statutory thresholds of section 287.220.1 RSMo. Further, a review of the medical restrictions resultant from the vascular condition makes plain that the condition is a hindrance or obstacle to reemployment.

Dr. Koprivica opined that when employee's disability from his repetitive use injury is combined with the disability from his preexisting vascular condition, the resulting overall disability to employee is greater than the simple sum of the two disabilities. Dr. Koprivica believes employee's disability is enhanced 10\% due to the combination of the disabilities. I would award to employee 18 weeks of enhanced permanent partial disability from the Second Injury Fund ( (80 weeks +100 weeks) $\times 10 \%)$.

I would modify the award of the administrative law judge as described above. For the foregoing reasons, I respectfully dissent from those portions of the majority decision with which I have expressed my disagreement.

Employee: LEWIS DANIELS

Injury No. 07-091724

Employer: $\quad \mathbf{R}$ \& S ELECTRIC

Additional Party: TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND

Insurer: TRAVELER'S INSURANCE COMPANY

Hearing Date: SEPTEMBER 8, 2009 Checked by: NGA

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? YES
2. Was the injury or occupational disease compensable under Chapter 287? NO
3. Was there an accident or incident of occupational disease under the Law? YES
4. Date of accident or onset of occupational disease: SEPTEMBER7, 2007
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: EMPLOYEE WAS AN ELECTRICIAN AND HAD TO PULL WIRE AND WORK ABOVE HIS HEAD FOR LONG PERIODS OF TIME.
12. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: NECK AND BODY AS A WHOLE
2. Nature and extent of any permanent disability: $\mathbf{1 0 \%}$ BODY AS A WHOLE
3. Compensation paid to-date for temporary disability: NONE
4. Value necessary medical aid paid to date by employer/insurer? NONE
5. Value necessary medical aid not furnished by employer/insurer? NONE
6. Employee's average weekly wages: NOT KNOWN
7. Weekly compensation rate: $\$ 742.72 / \ 389.04
8. Method wages computation: BY STIPULATION

1. Amount of compensation payable:

Unpaid medical expenses: N/A

40 weeks of permanent partial disability from Employer $\mathbf{X} \$ 389.04=\ 15,561.60

1. Second Injury Fund liability:

NONE

TOTAL: $\quad \ 15,561.60

1. Future requirements awarded: NONE

Said payments to begin SEPTEMBER 8, 2009 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 $\mathbf{2 4 \%}$ (AS REQUESTED BY CLAIMANT'S ATTORNEY) of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: KEITH YARWOOD.

Employee: LEWIS DANIELS

Injury No. 07-103060

Employer: $\quad \mathbf{R}$ \& S ELECTRIC

Additional Party: TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND

Insurer: TRAVELER'S INSURANCE COMPANY

Hearing Date: SEPTEMBER 8, 2009 Checked by: NGA

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? NO
2. Was the injury or occupational disease compensable under Chapter 287? NO
3. Was there an accident or incident of occupational disease under the Law? YES
4. Date of accident or onset of occupational disease: SEPTEMBER 7, 2007
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: EMPLOYEE WAS INSTALLING A SPEED CONTROL ON A CONVEYOR SYSTEM AND SLIPPED ON SOME SOY BEANS AND FELL.
12. Did accident or occupational disease cause death? NO Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: NECK, BACK, AND BODY AS A WHOLE
2. Nature and extent of any permanent disability: NONE
3. Compensation paid to-date for temporary disability: NONE
4. Value necessary medical aid paid to date by employer/insurer? $\ 571.47
5. Value necessary medical aid not furnished by employer/insurer? NONE
6. Employee's average weekly wages: N/A
7. Weekly compensation rate: $\$ 742.72 / \ 389.04
8. Method wages computation: BY STIPULATION

COMPENSATION PAYABLE

1. Amount of compensation payable: NONE
2. Second Injury Fund liability: NONE

TOTAL: NONE

1. Future requirements awarded: NONE

CLAIMANT'S CLAIM AGAINST THE EMPLOYER AND THE SECOND INJURY FUND IS DENIED.

Employee: LEWIS DANIELS Injury No. 07-103060

Employer: $\quad \mathbf{R}$ \& S ELECTRIC

Additional Party: TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND

Insurer: TRAVELER'S INSURANCE COMPANY

Hearing Date: SEPTEMBER 8, 2009 Checked by: NGA

Injury Numbers 07-091724 and 07-103060 were heard concurrently.

Prior to presenting evidence, the parties stipulated in Injury No. 07-103060 the following issues were to be determined by this hearing:

1. Was the claimant's accident the prevailing factor in claimant's medical condition?
2. Liability of employer for future medical treatment.
3. Nature and extent of claimant's disability.
4. Liability of the Second Injury Fund.
5. Whether claimant's wife, Linda Daniels, is entitled to benefits under Schoemehl vs. Treasurer of the State of Missouri, 217 SW2d 700 (Mo Banc 2007), should the claimant predecease her.

In Injury No. 07-091724, the parties stipulated the following issues were to be determined by the hearing:

1. Whether the claimant sustained an occupational injury on September 7, 2007.
2. Was the claimant's employment at R \& S Electric the prevailing factor in causing his occupational injury on September 7, 2007.
3. Did the employer have proper notice of claimant's alleged occupational disease?
4. Liability of the employer for future medical treatment.

Issued by DIVISION OF WORKERS' COMPENSATION

1. Nature and extent of claimant's disability.
2. Liability of the Second Injury Fund.
3. Whether claimant's wife, Linda Daniels, is entitled to benefits under Schoemehl vs. Treasurer of the State of Missouri, 217 SW2d 700 (Mo Banc 2007), should the claimant predecease her.

The parties agreed that on September 7, 2007, Lewis Daniels was an employee of R \& S Electric.

The employer was operating under the provisions of the Missouri Workers' Compensation Act and was fully insured by Travelers' Insurance Company.

In Injury No. 07-103060, the parties further agreed that on or about September 7, 2007, the claimant sustained an injury by accident arising out of and i