Daniel Gruendler v. Union Camp Corporation

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. We have reviewed the evidence, read the parties' briefs, heard oral arguments, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated January 21, 2010. This Commission adopts the findings, conclusions, decision and award of the administrative law judge to the extent that they are not inconsistent with the decision set forth below.

The issues stipulated in dispute at trial were the nature and extent of any permanent partial disability, whether employee was permanently and totally disabled, and the nature and extent of any Second Injury Fund liability.

The administrative law judge determined and concluded that employee was permanently and totally disabled on June 12, 2000, due to a combination of his primary and preexisting injuries, and that employee's dependent, Deborah Gruendler, is entitled to continuation of employee's permanent total disability benefits for her lifetime. The administrative law judge ordered the Second Injury Fund to pay permanent partial disability benefits at a differential rate of $\ 22.06 for 63 weeks beginning January 8, 2001, and thereafter $\ 325.07 per week for as long as provided by law.

We agree with the administrative law judge that employee was permanently and totally disabled due to a combination of his primary and preexisting injuries, and that employee's dependent is entitled to a continuation of employee's permanent total disability benefits for her lifetime. We disagree, however, with the administrative law judge's finding that employee was permanently and totally disabled on June 12, 2000. We must address this finding because of its bearing on the appropriate date of commencement of permanent total disability benefits from the Second Injury Fund.

Although the statutes involving temporary total disability and permanent disability do not set out a specific time line, there is an intended timing of benefits paid by employers. Temporary total disability benefits are due from the date of the injury through the date the condition has reached the point where further progress is not expected. Courts have used various terms to determine when an employee's condition has reached the point where further progress is not expected, including the term maximum medical improvement. Vinson v. Curators of the University of

Missouri, 822 S.W.2d 504, 508 (Mo. App. E.D. 1991)(interpreting a doctor's testimony of employee's maximum treatment potential to mean maximum medical improvement); Cooper, 955 S.W.2d at 575 (using the term maximum medical progress to define the point where no further progress is expected for an employee's condition).

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment. Furthermore, an employers' liability for permanent partial or permanent total disability does not run concurrently with their liability for temporary total disability.

Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.

Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008).

Employer's plant closed on June 12, 2000; there is no other significance to this date. The record reveals that employee continued to receive treatment related to his 1999 occupational disease until March 24, 2004. The parties, in fact, stipulated that employee reached maximum medical improvement on March 24, 2004, the date that Dr. Coin released employee following treatment for the occupational disease. As of June 12, 2000, employee had not even undergone carpal tunnel or trigger thumb surgeries and releases, so any determination of permanent disability related to the primary injury was clearly premature.

Given the foregoing, the administrative law judge's determination that employee was permanently and totally disabled as of June 12, 2000, is erroneous as contrary to the evidence and the stipulation of the parties regarding maximum medical improvement. We conclude that employee was permanently and totally disabled on March 24, 2004. Accordingly, permanent total disability payments should commence from the Second Injury Fund beginning March 24, 2004.

The Commission modifies that portion of the award of the administrative law judge concluding employee was permanently and totally disabled on June 12, 2000. The Commission concludes and determines that the competent and substantial evidence supports a finding that employee was permanently and totally disabled as of March 24, 2004.

The record reveals that employer paid 63 weeks of permanent partial disability benefits to employee's dependent at a rate of $\ 303.01 per week. The parties stipulated that employee's total disability rate is $\ 325.07. Accordingly, the Second Injury Fund is ordered to pay to dependent permanent total disability benefits beginning March 24, 2004, at the differential rate of $\ 22.06 for 63 weeks. Thereafter, the Second Injury Fund is ordered to pay permanent total disability benefits at the rate of $\ 325.07 per week for dependent's lifetime.

All remaining findings of fact and conclusions of law are affirmed.

The award and decision of Administrative Law Judge Kathleen M. Hart issued January 21, 2010, as modified, is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, award and decision herein.

Given at Jefferson City, State of Missouri, this $12^{\text {th }}$ day of August 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Daniel Gruendler (deceased)

Departments: Deborah Gruendler

Employer: Union Camp Corporation (previously settled)

Additional Party: Second Injury Fund (SIF)

Insurer: Liberty Mutual Insurance Company (previously settled)

Hearing Date: November 2, 2009

Injury No.: 99-125167

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: on or about September 17, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant injured his right and left hands as a result of repetitive activities at work.
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: right and left wrists and thumbs
14. Nature and extent of any permanent disability: 18 % right wrist, 18 % left wrist
15. Compensation paid to-date for temporary disability: $\ 9,752.05
16. Value necessary medical aid paid to date by employer/insurer? $\ 24,645.95

Employee: Daniel Gruendler (deceased)

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 325.07 / \ 303.01
4. Method wages computation: Stipulation

1. Amount of compensation payable:

63 weeks of permanent partial disability from Employer plus 6.3 weeks for multiplicity

(previously paid)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential of $\ 22.06 payable by SIF for 63 weeks beginning

January 8, 2001, and, thereafter, $\ 325.07 per week as provided by law

TOTAL:

TO BE DETERMINED

1. Future requirements awarded:

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:

Chris Wagner

Employee: Daniel Gruendler (deceased)

Dependents: Deborah Gruendler

Employer: Union Camp Corporation (previously settled)

Additional Party: SIF

Insurer: Liberty Mutual Insurance Company (previously settled)

Injury No.: 99-125167

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter November 2, 2009. Daniel Gruendler (Claimant) passed away December 26, 2004. His wife, Deborah, was represented by attorney Chris Wagner. The SIF was represented by Assistant Attorney General Karin Schute. Claimant previously settled his claim against Employer/Insurer.

All objections not expressly ruled upon in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant was injured in the course and scope of his employment for Employer on or about September 17, 1999.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was fully insured by Liberty Mutual Insurance Company.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage was sufficient to entitle him to rates of $\ 325.07 for TTD and $\ 303.01 for PPD.
6. On September 22, 2005, Claimant's wife and Employer/Insurer reached a compromise settlement of 18 % of each wrist plus a 10 % load factor.
7. Claimant reached maximum medical improvement from his primary injury March 24, 2004.

The parties stipulated the issues to be resolved are as follows:

1. PPD
2. PTD
3. Second Injury Fund liability

FINDINGS OF FACT

Based upon the competent and substantial evidence, my observations of witnesses at trial, and the reasonable inferences to be drawn therefrom, I find:

1. On the date of his work injury in 1999, Claimant was a 46 year old male. Claimant graduated from high school in 1972. During high school, he worked part time for Western Bowl. After graduation, he continued working part time for Western Bowl as an assistant mechanic until 1995.
2. When Claimant was five years old, he had a cardiac catheterization and was diagnosed with a defective aortic valve. He was not able to play most sports, and his condition was monitored throughout his life. In 1995, at the age of 42, Claimant had a heart attack and aortic valve replacement. After his recovery, he was only able to bowl one night a week, and he quit his job at Western Bowl. Clai