Roy Gutting v. Campbell Trucking

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 07-115368

Employee: Roy W. Gutting

Employer: Campbell Trucking (Settled)

Insurer: Continental Western Insurance Company (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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 and supplemental briefs, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated March 19, 2010. The Commission adopts the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the supplemental opinion set forth below.

On May 18, 2007, employee suffered an injury by accident arising out of and in the course of his employment. Employee settled his claim against employer/insurer. The administrative law judge heard this matter to consider the nature and extent of permanent disability and the liability (if any) of the Second Injury Fund.

The administrative law judge determined and concluded that employee is permanently and totally disabled due to a combination of the work injury and his preexisting disabilities and conditions of ill. The administrative law judge ordered the Second Injury Fund to pay permanent total disability benefits at the rate of $\ 338.22 until employee's death. The administrative law judge also ordered the Second Injury Fund to pay $\ 34,789.31, with interest, for back payment of permanent total disability benefits for the time period December 24, 2007, through December 7, 2009.

We agree with the administrative law judge that employee is permanently and totally disabled due to a combination of his primary and preexisting injuries. We disagree, however, with the administrative law judge's findings regarding the timing and commencement of payments 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).

The administrative law judge made no finding as to when employee reached maximum medical improvement. It appears that the administrative law judge started with the date of the work injury (May 18, 2007) and then added the number of weeks that employer paid temporary total disability benefits ( 32.29 weeks, according to the award), and concluded that December 24, 2007, was the appropriate date to commence payment of permanent total disability benefits from the Second Injury Fund. This result is clearly erroneous given that employee's treatment for the primary work injury involved a cervical fusion on December 13, 2007 - employee was obviously not at maximum medical improvement for the primary injury a mere eleven days after undergoing surgery.

The records of employee's treating physician, Dr. Curtis Burton, indicate that on April 30, 2008, Dr. Burton approved employee to make a tentative return to work. Dr. Burton noted that he would see employee back in about six weeks for follow-up. Dr. Burton's treatment note for May 28, 2008, indicates that employee's restrictions could not be accommodated by the employer. Dr. Burton indicated he did not believe there was any surgery that could improve employee's condition or add much capacity to his working ability. The note indicates that Dr. Burton found employee to be at maximum medical improvement on that date. Accordingly, we conclude that employee reached maximum medical improvement on May 28, 2008. We further find that employee suffered a 25\% permanent partial disability of the body as a whole due to the primary injury. Employee would thus be entitled to permanent partial disability benefits at the rate of $\ 338.22 for 100 weeks after May 28, 2008, from the employer/insurer. Of course, employee has already settled his claim against employer/insurer, but the employer's theoretical liability is relevant for purposes of determining Second Injury Fund liability under section 287.220.1 RSMo:

[I]f the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" ...

The parties stipulated that employee's rates for permanent partial and permanent total disability benefits are equal at $\ 338.22 per week. Because the rates for permanent partial and permanent total disability are equal, the differential rate for which the Second Injury Fund would otherwise be liable for 100 weeks under the foregoing section is $\ 0. After 100 weeks, the employer's theoretical payments of compensation for the primary injury are completed, and the Second Injury Fund is

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: May 18, 2007.
5. State location where accident occurred or occupational disease was contracted: Lewis 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: Doing farm work and driving a truck in 2007.
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: Neck, back, knee, and body as a whole (BAW).
14. Nature and extent of any permanent disability: Permanent Total Disability.
15. Compensation paid to-date for temporary disability: $\ 10,949.36.
16. Value necessary medical aid paid to date by employer/insurer? $\ 65,383.15.

Employee: Roy Gutting

1. Value necessary medical aid not furnished by employer/insurer? N/A.
2. Employee's average weekly wages: $\ 507.33.
3. Permanent Partial Disability rate/Temporary Total Disability rate: \$338.22/\$338.22.
4. Method wages computation: By agreement.

1. Amount of compensation payable: $\quad \ 338.22 per week for life

$\ 34,798.30 back payments

1. Future requirements awarded: No.

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: Steven Effertz.

Employee: Roy Gutting

Injury No. 07-115368

Dependents: N/A

Employer: Campbell Trucking

Additional Party: Missouri State Treasurer

as Custodian of the Second Injury Fund

Insurer: Previously Settled

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: $\mathrm{HTH} / \mathrm{sb}$

The parties appeared before the undersigned Administrative Law Judge on December 17, 2009. The Division has jurisdiction to hear this case pursuant to $\S 287.110$ RSMo 2000. The parties provided briefs on the relevant issues on approximately January 8, 2010.

1. The employee and the employer were operating under the provisions of t