Donald Mayse v. Jeff Honer Roofing

Injury No.: 02-149305

Employee: Donald Mayse

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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 alone and of itself; except that if 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" ...

Under the foregoing section, the administrative law judge is tasked with determining the extent of compensation for which the employer is liable as a result of the last injury considered alone. In this case, the administrative law judge determined (and we agree) that employee sustained a total of 30% permanent partial disability of the body as a whole, which amounts to 120 weeks of compensation, as a result of the last injury considered alone. In a case such as the one at hand, where the employee is permanently and totally disabled due to a combination of the primary and preexisting injuries, the next step under § 287.220.1 is to subtract the rates for permanent total and permanent partial disability to determine the "differential rate," for which the Second Injury Fund is liable during the time period that employer pays the compensation for which it is liable as a result of the last injury. Here, the differential rate is $28.37. Under § 287.220.1, the Second Injury Fund is liable for the differential rate for each week that employer would theoretically pay permanent partial disability payments (120 weeks in this case), and thereafter for weekly payments at the full permanent total disability rate.

Rather than use the 120 weeks of compensation for which she found employer liable as a result of the last injury, the administrative law judge used the dollar amount of employee's settlement with employer ($60,000) to find that the Second Injury Fund must pay the differential rate for 176 and 3/7 weeks. Where the fact-finder has determined the liability of the employer for the last injury, the amount of employee's settlement with employer is irrelevant for purposes of § 287.220.1.

We conclude that the Second Injury Fund is liable to employee for permanent total disability benefits beginning November 7, 2003, at the rate of 28.37 for 120 weeks, and thereafter at the rate of 368.49 per week for employee's lifetime or until modified by law.

Conclusion

The Commission modifies that portion of the award of the administrative law judge with regard to calculation of Second Injury Fund liability.

The Second Injury Fund is ordered to pay employee permanent total disability benefits beginning November 7, 2003, at the differential rate of $\ 28.37 per week for 120 weeks. Thereafter, the Second Injury Fund is ordered to pay permanent total disability benefits at the rate of $\ 368.49 per week for employee's lifetime, or until modified by law.

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

The Commission approves and affirms the administrative law judge's allowance of attorney's fees 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 Rebecca S. Magruder, issued April 12, 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 $28^{\text {th }}$ day of January 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Donald Mayse

Injury No. 02-149305

Dependents: N/A

Employer: Jeff Honer Roofing

Insurer: Continental Western Insurance

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

Hearing Date: March 18, 2010

Checked by: RSM/pd

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: August 9, 2002
5. State location where accident occurred or occupational disease was contracted: Kansas
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 was rear-ended while stopped at a traffic signal in the course and scope of his employment.
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: Low back, psyche, body as a whole.

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Donald Mayse

1. Nature and extent of any permanent disability: 30 percent permanent partial disability to the body as a whole as to Employer/Insurer; permanent total disability as to the Second Injury Fund.
2. Compensation paid to-date for temporary disability: $\ 4,421.88
3. Value necessary medical aid paid to date by employer/insurer? $\ 9,943.49
4. Value necessary medical aid not furnished by employer/insurer? N/A
5. Employee's average weekly wages: $\ 552.74
6. Weekly compensation rate: $\$ 368.49 / \ 340.12
7. Method wages computation: By agreement.

1. Second Injury Fund liability: Yes.

Beginning November 7, 2003, $\ 28.37 per week (the difference between the permanent total disability rate of $\ 368.49 and the permanent partial disability rate of $\ 340.12 ) for 176-3/7ths weeks (the period of time the Employer would have paid permanent partial disability of $\ 340.12 under Missouri law as represented by their lump sum settlement of $\ 60,000 ) and thereafter $\ 368.49 per week for Claimant's lifetime.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of Mr. Frank Eppright, Employee's attorney, for necessary legal services rendered.

Employee: Donald Mayse

Injury No. 02-149305

Dependents: N/A

Employer: Jeff Honer Roofing

Insurer: Continental Western Insurance Company

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

Hearing Date: March 18, 2010

Checked by: RSM/pd

On March 18, 2010, the employee and the Second Injury Fund appeared for a hearing. The employee, Mr. Donald Mayse, appeared in person and with counsel, Mr. Frank Eppright. The Second Injury Fund appeared by counsel, Ms. Kimberley Fournier. At that hearing, the parties stipulated to the following:

1. that on or about August 9, 2002, Jeff Honer Roofing was an employer operating under the provisions of the Missouri Workers' Compensation Law and that its liability under said law was fully insured by Continental Western Insurance Company;
2. that on or August 9, 2002 Donald Mayse was an employee of Jeff Honer Roofing and was working under the provisions of the Missouri Workers' Compensation Law;
3. that on or about August 9, 2002, Donald Mayse sustained an injury by accident arising out of and in the course of his employment;
4. that the Employer had notice of the injury and that a claim for compensation was filed within the time prescribed by law;
5. that the average weekly wage was $\ 552.74 and that the applicable compensation rate is $\ 368.49 for permanent total and temporary total disability benefits and $\ 340.12 for permanent partial disability benefits;
6. that compensation has been paid by the employer under Kansas law, for temporary total disability, in the amount of $\ 4,421.88, which represents 12 weeks paid at the rate of $\ 368.49 per week;
7. that medical aid has been furnished by the employer in the amount of $\ 9,943.49;
8. that a Kansas settlement was entered into and approved between the Employee and the Employer on March 17, 2008 for $\ 60,000 representing approximately 39 perc