Patrick Benoist v. Anheuser Busch Companies, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-075046

Employee: Patrick Benoist

Employer: Anheuser Busch Companies, Inc.

Insurer: Self-Insured

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

On June 4, 2010, the administrative law judge denied employee's claim against the Second Injury Fund. On June 23, 2010, employee filed an Application for Review of the award by the Labor and Industrial Relations Commission (Commission) as provided by section 287.480 RSMo.

Having reviewed the evidence and considered the whole record, the Commission finds 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. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge and awards no compensation on employee's claim against the Second Injury Fund. The award and decision of Administrative Law Judge John Howard Percy, issued June 4, 2010, is attached and incorporated by this reference.

Employee's claim against the employer remains open.

Given at Jefferson City, State of Missouri, this $2^{\text {nd }}$ day of December 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? No
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: July 1, 2005
5. State location where accident occurred or occupational disease was contracted St. Louis City, 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? Self-insured
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Heavy overhead lifting, work with power and hand tools, and constant repetitive use of both of his upper extremities.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: bilateral upper extremities
3. Nature and extent of any permanent disability: None against the Second Injury Fund
4. Compensation paid to-date for temporary disability: None
5. Value necessary medical aid paid to date by employer/insurer? None

Employee: Patrick Benoist Injury No. 05-075046

1. Value necessary medical aid not furnished by employer/insurer? None claimed
2. Employee's average weekly wages: $>\ 1,045.46
3. Weekly compensation rate: $\ 696.97 PTD/TTD/ $\ 365.08 PPD
4. Method wages computation: Stipulation

1. Second Injury Fund liability: No

TOTAL: None

1. Future requirements awarded: None

Said payments to begin 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Claimant: Patrick Benoist

Injury No. 05-075046

Dependents: N/A

Before the

Enployer: Anheuser Busch Companies, Inc. (previously settled) Compensation

Department of Labor and Industrial

Additional Party: Second Injury Fund

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-insured

Checked by: JHP

A hearing in this proceeding was held on February 25, 2010. The record was left open for 30 days to allow the Second Injury Fund to submit the deposition testimony of Dr. James P. Emanuel. The deposition transcript was received and the record was closed on March 3, 2010. Both parties submitted proposed awards on March 25, 2010.

The parties stipulated that on or about July 1, 2005:

1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the employer's liability was self-insured;
3. the employee's average weekly wage exceeded $\ 1,045.46;
4. the rate of compensation for temporary total disability and permanent total disability was $\ 696.97 and the rate of compensation for permanent partial disability was $\ 365.08;
5. the employee developed the onset of an occupational diseases affecting his upper extremities arising out of and in the course of employee's employment in St. Louis City, Missouri; and
6. the employee reached maximum medical improvement with respect to the injuries from the July 1, 2005 occupational diseases on May 16, 2006.

The parties further stipulated that:

1. the employer had notice of the occupational diseases and a claim for compensation was filed within the time prescribed by law;
2. no compensation has been paid; and
3. the employer has not paid any medical expenses.

The issues to be resolved in this proceeding are ${ }^{1}$ :

1. the nature and extent of any permanent disability sustained as a result of the workrelated injury of July 1, 2005;
2. the nature and extent of any preexisting disabilities which employee had at the time of the work-related injury of July 1, 2005; and
3. whether and to what extent employee sustained any additional permanent total or permanent partial disability for which the Second Injury Fund would be liable pursuant to section 287.220 Mo. Rev. Stat. (2000) as a result of the combination of any preexisting disabilities with the disability from the primary injuries.

Having settled his/her claim against Employer/Insurer, Patrick Benoist, Employee herein, seeks an award under Section 287.220.1 Mo. Rev. Stat. (2000) for permanent total disability compensation against the Second Injury Fund. Employee claims that he is permanently and totally disabled as a result of the combination of the disabilities due to the occupational diseases affecting his upper extremities which developed around July 1, 2005 and the preexisting disabilities in his low back and both knees. The Second Injury Fund contends that Claimant was not rendered permanently and totally disabled by the combination of Claimant's primary injuries with his preexisting disabilities, and that if he was rendered permanently and totally disabled, it was due to the occupational diseases affecting his upper extremities alone and without regard to his preexisting disabilities.

Section 287.220.1 Mo. Rev. Stat. (2000) provides that where previous partial disability or disabilities, whether from a compensable injury or otherwise, and the last injury combine to result in total and permanent disability, the employer at the time of the last injury is liable only for the disability which results from the last injury considered by itself and the Second Injury Fund shall pay the remainder of the compensation that would be due for permanent total disability under Section 287.200. Grant v. Neal, 381 S.W.2d 838, 840 (Mo. 1964); Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 366 (Mo. App. 1992); Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo. App. 1990). The employee must prove that a prior permanent partial disability, whether from a compensable injury or not, combined with the subsequent compensable injury to result in total and permanent disability.

Obviously, where the disability caused by the primary injury is total disability, there can be no liability for the Second Injury Fund. For the Second Injury to be liable for permanent total

[^0]

[^0]: 1 At the beginning of the hearing, the parties agreed that there was a dispute as to whether the left elbow cubital tunnel syndrome was a compensable occupational disease. In their proposed awards, both parties agreed that Claimant's left cubital tunnel syndrome was a compensable occupational disease and part of the primary injury. (See Page 4 of Claimant's Proposed Award and Page 7 of the Second Injury Fund's Proposed Award.) Given the agreement of the parties, it will not be necessary to make findings as to whether the left cubital tunnel syndrome was part of the primary injury.

disability compensation, the total disability must result from the combination of the preexisting disabilities and the disability caused by the primary disability. If total disability is caused by the primary injury alone, there can no combination. The employee is not entitled to permanent total disability compensation from both the Second Injury Fund and the employer. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000); Vaught v. Vaughts Inc., 938 S.W.2d 931, 939 (Mo. App. 1997); Roller v. Treasurer of State of Mo., 935 S.W.2d 739, 740 (Mo. App. 1996).

Where the last injury alone causes the employee to become permanently and totally disabled, then the employer is liable for permanent disability compensation under Section 287.200. See Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 276 (Mo. App. 1996); Feldman v. Sterling Properties, 910 S.W.2d 808, 810 (Mo. App. 1995); Moorehead v. Lismark Distributing Co., 884 S.W.2d 416, 419 (Mo. App. 1994); Kern v. General Installation, 740 S.W.2d 691, 692 (Mo. App. 1987); see also Terrell v. Board of Education, City of St. Louis, 871 S.W.2d 20 (Mo. App. 1993); Reves v. Kindell's Mercantile Co., Inc., 793 S.W.2d 917 (Mo. App. 1990); Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987); Weinbauer v. Gray Eagle Distributors, 661 S.W.2d 652 (Mo. App. 1983); Fogelsong v. Banquet Foods Corporation, 526 S.W.2d 886 (Mo. App. 1975); Mashburn v. Chevrolet Kansas City Div., G.M. Corp., 397 S.W.2d 23 (Mo. App. 1965); Garrison v. Campbell "66" Express, 297 S.W.2d 22 (Mo. App. 1956).

On the other hand, where permanent and total disability results only from the combination of the disability from the primary injury with preexisting disabilities and with unrelated post-primary injury progression of preexisting disabilities, the Second Injury Fund is not liable for permanent and total disability. The Second Injury Fund is not liable for any postaccident worsening of an employee's preexisting disabilities which are not caused or aggravated by the last work-related injury or for any conditions which arise after the last work-related injury. Lammert v. Vess Beverages, Inc., 968 S.W.2d 720, 725 (Mo. App. 1998); Garcia v. St. Louis County, supra; Frazier v. Treasurer of Missouri, 869 S.W.2d 152 (Mo. App. 1994); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo. App. 1992); see also Wilhite v. Hurd, 411 S.W.2d 72 (Mo. 1967).

The first determination to be made is the extent compensation liability of the employer for the last injury, considered alone. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000); Vaught v. Vaughts Inc., 938 S.W.2d 931, 939 (Mo. App. 1997); Roller v. Treasurer of State of Mo., 935 S.W.2d 739, 740 (Mo. App. 1996). After that has been determined, then the extent of preexisting disabilities is to be determined. Lastly, the fact finder is determine whether the preexisting disabilities combine with disabilities from the primary injury to create permanent total disability. Where the combination of those disabilities causes permanent total disability, th