Dmitri Chergibayev v. Horstmann Brothers

Injury No.: 06-132234

Employee: Dmitri Chergibayev

Employer: Horstmann Brothers (Settled)

Insurer: Westport Insurance (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and considered the whole record and we find 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, except as modified herein. Pursuant to § 286.090 RSMo, we issue this final award and decision affirming the March 21, 2011, award and decision of the administrative law judge, as corrected herein. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge ruled that employee sustained a 25\% permanent partial disability measured at the level of each foot. Pursuant to § 287.190 RSMo, the foot is assigned 150 weeks of permanent partial disability. The administrative law judge erroneously calculated employee's permanent partial disability at each ankle or 155week level.

We affirm the administrative law judge's finding that employee sustained a 25\% permanent partial disability measured at the 150-week level. We affirm the administrative law judge's finding that a loading factor of 25 % is appropriate to reflect the enhanced disability attributable to the synergistic manner in which employee's foot disabilities combine with his preexisting knee disability. We correct the calculations of the administrative law judge. The Second Injury Fund is liable for enhanced permanent partial disability benefits to employee as set forth below:

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2006, unless otherwise indicated.

Employee: Dmitri Chergibayev

- 2 -

Employee's weekly permanent partial disability rate is 345.87. The Second Injury Fund liability totals 12,710.72 ($345.87 X 36.75 weeks).

In all other respects, we affirm and adopt the award and decision of the administrative law judge.

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.

The award and decision of Administrative Law Judge Matthew D. Vacca, issued March 21, 2011, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this 14th day of July 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Dmitri Chergibayev

Injury No.: 06-132234

Dependents: N/A

Employer: Horstmann Brothers (Settled)

Additional Party: Second Injury Fund

Insurer: Westport Insurance

Hearing Date: March 3, 2011

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDV

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: St. Louis County
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Repetitive trauma to feet.
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: Both lower extremities
14. Nature and extent of any permanent disability: 25 % each foot at 155 level, 7.3 % of right knee
15. Compensation paid to-date for temporary disability: $\ 16,156.97
16. Value necessary medical aid paid to date by employer/insurer? $\ 30,434.05

Employee: Dmitri Chergibayev Injury No.: 06-132234

1. Value necessary medical aid not furnished by employer/insurer? -0-
2. Employee's average weekly wages: $\ 518.80
3. Weekly compensation rate: $\$ 345.87 / \ 345.87
4. Method wages computation: Agreed

1. Amount of compensation payable:

(Settled)

1. Second Injury Fund liability: Yes

37.375 weeks of permanent partial disability from Second Injury Fund

TOTAL:

$\ 12,926.89

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Chris Wagner

Employee: Dmitri Chergibayev

Departments: N/A

Employer: Horstmann Brothers (Settled)

Additional Party: Second Injury Fund

Insurer: Westport Insurance Company

Injury No.: 06-132234

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDV

The issues presented for resolution by way of this hearing are the nature and extent of any Second Injury Fund liability.

1. Claimant works as a landscape technician for Horstmann Brothers. In that capacity he would maintain commercial and residential properties, apply fertilizers, take care of trees and shrubs and perform all necessary maintenance as directed by his employer.
2. The employer provided Claimant with a set of work boots that caused him some difficulties. As a result of being on his feet and performing many of the tasks associated with his occupation, Claimant developed bilateral lower extremity occupational disease which resulted in bilateral plantar fasciitis and bilateral tarsal tunnel syndrome which were treated surgically. Dr. Musich believed that Claimant suffered from a 25 % pre-existing disability to his right knee and that he suffered a 40 % permanent partial disability measured at the level of the ankles as a result of the occupational disease which developed while working for the employer.
3. Claimant settled the prior knee claim for 27.5 % of the right knee.
4. He also settled the primary portions of the instant claim for 25 % of each foot at the 150 week level and another 7.3 % of the right knee.
5. Claimant has continuing problems with stiffness, soreness, numbness and pain his heels in the bottoms of his feet. Claimant has continuing right knee pain and discomfort, popping and locking as a result of the injury when he fell as a landscape operator for TruGreen in November of 2002. As a result of that injury, he underwent right surgery in 2002. Again in 2004, Claimant injured his right

knee when he slipped and underwent surgery on May 28, 2004. As a result of that injury, he continues to have popping and locking, difficulty with range of motion and instability.

1. Claimant has now taken a job with T-mobile in retail sales because his body is too worn out and he found the landscape operator positions too hard to continue with his injuries.

1. Claimant sustained 25 % permanent partial disability measured at the level of each foot. This is the amount Claimant settled for and while the settlement is not dispositive of the actual disability I find it reasonable under the circumstances of this case ( 77.5 weeks).
2. Pre-existing the foot injuries Claimant suffered from a 45 % permanent partial disability measured at the level of the right knee ( 72 weeks).
3. These two injuries are working together in a synergistic fashion to produce previously uncompensated disability best represented by a loading factor of .25 .

A true copy: Attest:

Naomi Pearson

Division of Workers' Compensation

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 06-135616