Jason Dodson v. Von Hoffmann Press, Inc.

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 and considered the whole record and we find 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, except as modified herein. Pursuant to section 286.090 RSMo, we issue this final award and decision modifying the November 6, 2009, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

We modify the award solely to increase the permanent partial disability award against the Second Injury Fund.

In calculating the Second Injury Fund's liability for enhanced permanent partial disability, the administrative law judge factored in employee's preexisting disabilities to his left knee, left wrist and right shoulder. As to all other alleged preexisting disabilities, the administrative law judge vaguely stated that they were either too minimal to combine with employee's injuries to his feet or they did not pre-exist the injuries to employee's feet.

We believe the administrative law judge erred by excluding three preexisting disabilities from her calculation of Second Injury Fund liability. In addition to the preexisting disabilities found relevant by the administrative law judge in reaching her Second Injury Fund conclusion, we find the following permanent partial disabilities preexisted the work injury, constituted hindrances or obstacles to employment or reemployment, and met the thresholds for inclusion set forth in § 287.220 RSMo: 15% of the body as a whole due to employee's psychiatric disorder; 15% of the body as a whole due to employee's chronic sinusitis; and, 15% of the body as a whole due to employee's asthma.

Based upon the testimony of employee and Dr. Lichtenfeld, we conclude that employee's overall disability as a result of all includible disabilities exceeds the simple sum of those disabilities by a factor of 20%. Our disability findings and calculations are summarized below.

We award to employee from the Second Injury Fund permanent partial disability benefits in the amount of $\ 23,539.33 ( 77.685 weeks $X \ 303.01 ).

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.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued November 6, 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 September 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: February 1, 2000.
5. State location where accident occurred or occupational disease was contracted: Cole 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? N/A.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See award.
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: Both feet.
14. Nature and extent of any permanent disability: 25 % right foot, 22.5 % left foot.
15. Compensation paid to-date for temporary disability: N/A.
16. Value necessary medical aid paid to date by employer/insurer? N/A.
17. Value necessary medical aid not furnished by employer/insurer? N/A.
18. Employee's average weekly wages: N/A.

Employee: Jason Dodson Injury No. 00-180012

1. Weekly compensation rate: $\$ 578.48 / \ 303.01.
2. Method wages computation: By agreement.

1. Second Injury Fund liability: 15 % body, 60 weeks - $\ 18,180.60.

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: Dean Christiansen

Employee: Jason Dodson

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on August 25, 2009, and the record was left open until September 9, 2009. Memoranda were submitted by September 11, 2009.

The parties stipulated that on or about February 1, 2000, the claimant was in the employment of Von Hoffmann Press, Inc. All issues related to compensability of the underlying workers' compensation claim were stipulated between the parties to this claim against the Second Injury Fund. The compensation rate applicable to this claim is $\ 578.48 per week for permanent total disability benefits and $\ 303.01 per week for permanent partial benefits.

The issue to be resolved by hearing is the liability of the Second Injury Fund.

The claimant, Jason Dodson, 38 years old as of the date of the hearing of this claim, is a high school graduate with some additional vocational training in diesel mechanics and completion of two college courses in the early 2000s.

Mr. Dodson injured his feet while working for Von Hoffmann Press, Inc. (Von Hoffmann), in 2000 as the result of standing and walking on concrete. The ensuing workers' compensation claim, which is the foundation of this Second Injury Fund claim, settled for \$23,000.00, reflecting permanent partial disability of 25 percent of the right foot, 22.5 percent of the left foot and an additional ten percent of the total amount.

Relevant pre-existing disabilities include a settlement of a 1998 workers' compensation claim based on 25 percent of the left knee and a settlement of a 1999 workers' compensation claim based on 15 percent of the left wrist. Mr. Dodson also had a right shoulder injury in 1989, which caused Dr. Lichtenfeld to opine to a 27.5 percent permanent partial disability of the right shoulder. Mr. Dodson testified to his difficulty in walking, lifting, standing on a hard surface, and lack of strength in the left hand.

While Mr. Dodson claimed additional pre-existing disabilities, including tinnitus, hypertension, premature heart beat, damage to the blood vessels of the eyes, injury to the left small finger, gastric issues, sinus problems, asthma, epididymitis, and psychiatric problems, these disabilities are found to either be too minimal to combine with Mr. Dodson's injuries to his feet or to not pre-exist the 2000 injuries to the feet and, therefore, not to implicate the Second Injury Fund.

Dr. Lichtenfeld testified that the sum of Mr. Dodson's disabilities is less than the combined disability.

RSMo, Section 287.220. 1. All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered a