Frederick Monteil v. Arctic Slope Regional Corporation aka ASRC Management Services

1. Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid, the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total damages determined by the trier of fact if there is a finding of comparative fault on the part of the employee. Notwithstanding the foregoing provision, the balance of the recovery may be divided between the employer and the employee or his dependents as they may otherwise agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall be paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation in the following manner:

(1) The total amount paid to the employee or his dependents shall be treated as an advance payment if there is no finding of comparative fault on the part of the employee; or

(2) A percentage of the amount paid to the employee or his dependents equal to the percentage of fault assessed to the third person from whom recovery is made shall be treated as an advance payment if there is a finding of comparative fault on the part of the employee.

When a recovery is made against a third party, the distribution of the proceeds of that recovery is governed by the above provisions and by a formula set forth in Ruediger vs. Kallmeyer Bros. Service, 501 S.W.2d 56 (Mo. banc 1973). The rule is set forth as follows:

1. The expenses of the third party litigation are first deducted from the third party recovery.
2. The balance is apportioned in the same ratio that the amount paid by the employer at the time of the third party recovery bears to the total amount recovered from the third party.
3. The amount due each is paid.
4. The amount paid the employee is treated as an advance payment on account of any future installments of compensation.
5. The employee is entitled to future compensation benefits in the event that the amount paid to the employee as an advance is exhausted.

In the instant case, as stipulated by the parties, a third party settlement was effected on April 23, 2010, after a jury verdict. The proceeds of the third party recovery were distributed pursuant to the provisions of $\S 287.150$ RSMo and the Ruediger formula as outlined above. Without citation to authority, employee invites us to apply the

provisions § 287.150 RSMo, as if the amounts awarded herein had been paid at the time of the third party recovery. We decline to do so.

As stipulated by the parties, the amount distributed and paid the employee was $\ 324,625.23. This amount is treated as an advance payment on account of any future installments of compensation and operates as a credit in behalf of the employer until the amount paid the employee is exhausted.

The total compensation awarded to employee from employer/insurer is $\ 36,376.45. As stated above, the amount paid and distributed to the employee from the third party recovery is $\ 324,625.23. The amount of compensation awarded the employee does not exhaust the amount paid to the employee due to the third party recovery. Therefore, there is no amount of compensation payable the employee from the employer/insurer.

The Commission 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.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of December 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Frederick H. Monteil

Injury No.: 07-114438

Employer: Arctic Slope Regional Corporation, a/k/a ASRC Management Services

Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Insurer: Insurance Company of the State of Pennsylvania

Hearing Date: November 10, 2009

Checked by: RBM

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: November 1, 2007.
5. State location where accident occurred or occupational disease was contracted: Missouri Highway 92 in Platte 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 driving his truck and fifth-wheel on his way home to Colorado from a job-site in Illinois when he was involved in a motor vehicle accident.

1. Did accident or occupational disease cause death? No.
2. Part(s) of body injured by accident or occupational disease: Neck, head, and right upper extremity.
3. Nature and extent of any permanent disability: 20 % of the body as a whole (400 week level.)
4. Compensation paid to-date for temporary disability: $\ 37,878.72, representing 51 weeks at $\ 742.72 per week.
5. Value necessary medical aid paid to date by employer/insurer? $\ 94,114.79.
6. Value necessary medical aid not furnished by employer/insurer? $\ 5,253.25.
7. Employee's average weekly wages: Sufficient to result in maximum compensation rates.
8. Weekly compensation rate: $\ 742.72 for temporary total disability and $\ 389.04 for permanent partial disability.
9. Method wages computation: By agreement of the parties.

1. Amount of compensation payable:

Unpaid medical expenses: $\ 5,253.25

No weeks of temporary total disability (or temporary partial disability)

80 weeks of permanent partial disability from Employer (. 20 x 400): \31,123.20

No weeks of disfigurement from Employer

TOTAL FROM EMPLOYER: \ 36,376.45

1. Second Injury Fund liability: Not determined (remains open.)
2. Future requirements awarded: None.

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: Leah Brown Burkhead.

Employee: Frederick H. Monteil

Injury No.: 07-114438

Employer: Arctic Slope Regional Corporation, a/k/a ASRC Management Services

Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Insurer: Insurance Company of the State of Pennsylvania Checked by: RBM

A final hearing was held in this case on November 10, 2009 in St. Joseph, Missouri on Employee's claim against Employer/Insurer. Employee, Frederick H. Monteil ("Claimant") appeared by his attorney, Leah Brown Burkhead. Employer, Arctic Slope Regional Corporation, a/k/a ASRC Management Services ("Employer") and Insurer, Insurance Company of the State of Pennsylvania ("Insurer") appeared by their attorney, Thomas V. Clinkenbeard. No one appeared on behalf of the Second Injury Fund. The Second Injury Fund is a party to this case, but was not represented at the hearing since the parties agreed to leave the Second Injury Fund claim open. Claimant's attorney requested an attorney's fee of 25 %, and renewed her request for cost pursuant to Section 287.203, RSMo that she made in connection with the temporary hearing held in this case on June 12, 2008.

The Court previously entered its Temporary or Partial Award in this case on June 12, 2008 and found that Employee sustained a compensable accident and awarded medical and temporary disability benefits, and denied Employee's attorneys' request for costs. The Court takes judicial notice of the Temporary or Partial Award in this case entered on June 12, 2008.

At the time of the final hearing, the parties stipulated to the following:

1. On or about November 1, 2007, Frederick H. Monteil ("Claimant") was an employee of Arctic Slope Regional Corporation, a/k/a ASRC Management Services ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.

Issued by DIVISION OF WORKERS' COMPENSATION

1. On or about November 1, 2007, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law, and was duly insured by Insurance Company of the State of Pennsylvania ("Insurer").
2. Employer had notice of Claimant's alleged injury.
3. Claimant's Claim for Compensatio