Brian Guyer v. Express Pet Ford Company, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-079265

Employee: Brian Guyer

Employer: Express Pet Ford Company, Inc.

Insurer: Hartford Underwriters Insurance Company

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. 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 dated October 18, 2010. The award and decision of Chief Administrative Law Judge Nelson G. Allen, issued October 18, 2010, is attached and incorporated by this reference.

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.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Employee: BRIAN GUYER

Injury No. 07-079265

Employer: EXPRESS PET FORD COMPANY, INC.

Insurer: HARTFORD UNDERWRITERS INSURANCE COMPANY

Add'l Party: TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND

Hearing Date: AUGUST 17, 2010

Checked by: NGA

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 16, 2007
5. State location where accident occurred or occupational disease was contracted: Buchanan 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 unloading a tanker-truck when a high pressure valve exploded hitting employee in the head and knocking him off the truck.
12. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Head, left thumb and body as a whole.
2. Nature and extent of any permanent disability: Employee is permanently totally disabled.
3. Compensation paid to-date for temporary disability: $\mathbf{\$ 6 , 4 3 1 . 7 3}$.
4. Value necessary medical aid paid to date by employer/insurer? $\mathbf{\$ 2 2 , 1 8 4 . 4 5}$.
5. Value necessary medical aid not furnished by employer/insurer? None.
6. Employee's average weekly wages: N/A
7. Weekly compensation rate: $\$ 357.32 / \ 357.32
8. Method wages computation: By Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

None

1-4/7 Weeks of temporary total disability (or temporary partial disability) $\mathbf{x} \$ 357.32=\ 510.45

Permanent total disability benefits from Employer beginning September 26, 2008 x $\mathbf{\$ 3 5 7 . 3 2}$ per week for claimant's lifetime.

1. Second Injury Fund Liability:

None

1. Future requirements awarded: Such medical treatment as may be reasonable and necessary to cure and relieve the condition caused by claimant's injury of August 16, 2007.

Each of said payments to begin September 26, 2007 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 $\mathbf{2 5 \%}$ of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Michael A. Knepper.

Employee: BRIAN GUYER

Injury No. 07-079265

Employer: EXPRESS PET FORD COMPANY, INC.

Insurer: HARTFORD UNDERWRITERS INSURANCE COMPANY

Add'l Party: TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND

Hearing Date: AUGUST 17, 2010

Checked by: NGA

Prior to presenting evidence, the parties stipulated the issues to be determined by this hearing are:

1. Are the conditions the claimant is complaining of medically causally related to claimant's accident;
2. Liability of the employer for future medical aid;
3. Nature and extent of claimant's disability;
4. Is claimant subject to a penalty for a safety rule violation under Section 287.120.5;
5. Liability of the Second Injury Fund.

The parties stipulated that the agreed date of injury was August 16, 2007, not August 27, 2007.

The parties agreed that on August 16, 2007, Brian Guyer was an employee of Express Pet Food Company, Inc. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Law and was fully insured by Hartford Underwriters Insurance Company.

The parties also agreed that on August 16, 2007, the claimant sustained an injury by accident arising out of and in the course of his employment. The parties further agreed that the correct rate of compensation is $\ 357.32 per week for temporary total disability, permanent partial disability, and permanent total disability. Compensation has been paid in the amount of $\ 6,431.73 representing a period of time from August 27, 2007 through September 9, 2007 and June 6, 2008 through September 25, 2008 for a period of 18 weeks. Medical aid has been furnished in the amount of $\ 22,184.45. The claimant is not asking for any additional past medical aid.

The parties also agreed that the employer had proper notice of claimant's injury and that the claimant has filed a timely claim for compensation.

Claimant offered the following exhibits which were admitted in evidence without objection, provided the depositions were admitted subject to objections contained in the depositions:

A. Dr. Michael DePriest, MD, 12/93-11/18/01

B. Dr. Thomas DiStefano, MD, 12/8/05-4/21/06

C. Family Guidance Center, 2/10/09-4/28/09

D. Family Guidance Center, 4/29/09-4/15/10

E. Family Guidance Center, 4/29/10-5/3/10

F. Heartland Health, 8/7/95-8/17/07

G. Greg Horton, MD, 9/4/08-11/6/08

H. KU Medical Center, 9/4/08-11-6-08

I. MedClinic, 10/14/93-7/18/02

J. Occupational Health Services, 8/21/07-9/28/07

K. Occupational Health Services, 10/15/03-5/24/04

L. Open MRI of St. Joseph, 1/31/05

M. Orthopedic \& Sports Medicine (Dr. Trease) 3/20/08-10/28/08

N. Patee Market Health Center, 3/22/94-1/14/10

O. Patee Market Health Center, 4/24/98-7/8/10

P. P.T. Midwest Rehabilitation, 12/14/05-2/7/06

Q. St. Francis Hospital, 1/11/06

R. St. Joseph Foot Clinic (Dr. Larry Piper) 9/27/05-10/17/05

S. C. Daniel Smith, DO, 1/4/94-9/27/05

T. Cory Trease, MD, 1/14/94-3/20/08

U. Deposition-Dr. P. Brent Koprivica 2/8/10 w/Exhibits

V Deposition-Dr. Allan Schmidt 11/5/09 w/Exhibits

W Deposition-Michael Dreiling 2/23/10 w/Exhibits

X 60 Day Submission-Dr. Sheldon Fleischman, DO, 8/26/09

Y Sheldon Fleischman, DO, Report 1/15/08

Z C.V. of Sheldon Fleischman, DO

AA Sheldon Fleischman, DO, Report 12/22/07

BB Claim for Compensation

CC Amended Claim for Compensation

DD Vocational Rehabilitation Records 2/7/02-11/7/05

EE Vocational Rehabilitation Records 7/28/08-12/23/09

FF School Records, Benton High School

GG School Records, Missouri Western University

HH Accommodations from Missouri Western University

Employer/Insurer offered the following exhibits which were admitted into evidence without objection:

1 Dr. Corey A. Trease 60 Day Submission

2 Deposition - Dr. Patrick Hughes 7/6/10

3 Deposition - Terry L. Cordray 7/12/10

4 ER Basic Safety Rules for Production Area

5 ER Employee Warning Notice

6 ER/EE Infraction/Violation Notice

The Second Injury Fund offered the following exhibits which were admitted into evidence without objection:

1 Employee 2/4/10 Deposition

2 Employee 9/19/08 Deposition

All objections contained in the admitted depositions are overruled unless otherwise noted.

The claimant testified in person. He is 36 years old. He is married and has three children. He and his family live with his parents. I found him to be a believable witness.

Mr. Guyer testified that he has a learning disability that stops him from learning how to read and following written instructions. He said this was an obstacle to him receiving employment. It severely limited his employment opportunities.

I agree with the claimant that he did have a pre-existing industrial disability but I do not believe it is necessary to assign a percentage of permanent partial disability as a result of the learning disability.

Terry L. Cordray, M.S., a vocational expert for the employer, tested the claimant and found that his IQ was 78, 3 points above being labeled "retarded". He said the claimant was qualified for a sheltered workshop. This is not gainful employment.

The claimant is taking classes at Missouri Western University but Mr. Cordray says he does this with special assistance in taking notes and with special assistance in taking his tests. Mr. Cordray said "It is not realistic for the claimant to receive a degree. He has a high school degree but it is for special education. He had taken special education classes."

Mr. Guyer testified that his accident actually occurred on August 16, 2007 not August 27, 2007. On that date, the claimant was operating a machine. He noticed that there was a tanker that needed to be unloaded. He attempted to unload this tanker. He said he had done this many times previously and that no one had told him not to unload it.

There was a pin that became unlocked that was under considerable air pressure. A hose struck the claimant above his right eye. This caused him to fall backward hitting his head on the dock. He was knocked unconscious and did not regain consciousness until later that day when he was

in the hospital. He suffered a closed head injury along with a right eyebrow laceration and a scalp laceration. The fall also caused him to break his right thumb.

The claimant alleges that he is permanently and totally disabled. However, to show that the disability constitutes a permanent and total disability under the Missouri workers' compensation law, the claimant must show that, given the employee's situation and condition, he or she is not competent to compete in the open labor market. Under the Missouri Worker=s Compensation Act Atotal disability@ is defined as the inability to return to any employment. Messex v. Sachs Elec. Co., 989 S.W. 2d 206, 210 (Mo. App. E.D. 1999). The words Ainability to return to any employment@ mean that Athe employee is unable to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment.@ Kowalski v. M-G Metals and Sale, 631 S.W.2d 919, 922 (Mo.App. S.D. 1982). The primary determination for permanent total disability is whether the employee is able to compete in the open labor market. Messex, 989 S.W.2d at 210. A determination of permanent total disability focuses on the ability or inability of the employee to perform the usual duties of various employments in the manner that such duties are customarily performed by the average person engaged in such employment Gordon v. Tri-State Motor Transit, 980 SW 2d 849, (Mo. App. 1995). There are many factors that may be considered in this assessment including a claimant=s physical and mental condition, age, education, job experience and skills in order to determine whether a claimant is