Herbert Robbins v. Webco, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-076338

Employee: Herbert Robbins

Employer: Webco, Inc.

Insurer: American International Insurance Co.

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 January 13, 2011, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued January 13, 2011, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $30^{\text {th }}$ day of August 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Herbert Robbins

Injury No. 08-076338

Dependents: N/A

Employer: Webco, Inc.

Insurer: American International Insurance Co.

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

Hearing Date: October 21, 2010 (Evidentiary Record Closed November 19, 2010)

Checked by: LTW

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged June 9, 2008
5. State location where accident occurred or occupational disease was contracted: Greene County, MO
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? No
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: While engaged in his employment with Employer, Employee proceeded to the supply area to obtain an electrical trough. He bent over to grab an electrical trough, stood up, and took a step and proceeded to carry the trough back to his workstation. However, as he proceeded to take a step, while carrying this electrical trough, the hydraulic pump unit snapped in half and began to leak oil. The work activity of the Employee was not the prevailing factor in causing Employee to suffer a prosthetic failure.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Alleged right lower extremity
14. Nature and extent of any permanent disability: N/A
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 504.19
3. Weekly compensation rate: $\$ 336.13 / \ 336.13
4. Method wages computation: Stipulation

1. Amount of compensation payable: None

The employee failed to sustain his burden of proof relative to establishing Employer / Insurer liability. The Claim for Compensation filed against Employer and Insurer is denied.

1. Second Injury Fund liability: No

The employee failed to sustain his burden of proof relative to establishing Second Injury Fund liability. The Claim for Compensation filed against the Second Injury Fund is denied.

TOTAL: NONE

1. Future requirements awarded: None

Employee: Herbert Robbins

Injury No. 08-076338

Dependents: N/A

Employer: Webco, Inc.

Insurer: American International Insurance Co.

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

The above-referenced workers' compensation claim, which involved the joining of two workers' compensation cases, was heard before the undersigned administrative law judge on October 21, 2010. ${ }^{1}$ The parties were afforded an opportunity to submit additional evidence, resulting in the evidentiary record being closed on November 19, 2010. Also, the parties were afforded an opportunity to submit proposed awards or briefs, resulting in the record being completed and submitted to the undersigned on or about November 24, 2010.

The employee, Herbert Robbins, appeared personally and through his attorney, Randy Alberhasky, Esq. The employer, Webco, Inc., and its insurer, American International Insurance Co., appeared through their attorney, William Love, Esq. The Second Injury Fund appeared through its attorney, Susan Colburn, Assistant Attorney General.

The parties entered into a stipulation of facts in Injury No. 08-076338. The stipulation is as follows:

(1) On or about June 9, 2008, Webco, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by American International Insurance Co. (TPA: Constitution States Service Company)

(2) On the alleged injury date of June 9, 2008, Herbert Robbins, was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The contract of employment between Herbert Robbins and Webco, Inc. was made in Missouri; the alleged accident or incident of occupational disease occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(4) The employee notified the employer of his injury as required by Section, 287.420, RSMo.

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[^0]: ${ }^{1}$ The workers' compensation cases that were joined for hearing include Injury Nos. 08-076338 and 08-121779.

(5) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(6) At the time of the alleged accident the employee's average weekly wage was $\ 504.19, which is sufficient to allow a compensation rate of $\ 336.13 for temporary total disability compensation and permanent partial disability compensation / permanent total disability compensation.

(7) Temporary disability benefits have not been provided to the employee.

(8) The employer and insurer have not provided medical treatment to the employee.

In Injury No. 08-76338 the parties further stipulated that the sole issues to be resolved by hearing include:

(1) Whether the claimant sustained an accident or incident of occupational disease on or about June 9, 2008; and, if so, whether the accident or occupational disease arose out of and in the course of employment?

(2) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed?

(3) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(4) Whether the employee is entitled to temporary total disability compensation? (The employee seeks payment of temporary total disability compensation for the period of December 5, 2008 to the present, and continuing indefinitely into the future.)

(5) Whether the employee sustained any permanent disability as a consequence of the alleged accident or occupational disease; and, if so, what is the nature and extent of the disability?

(6) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

In Injury No. 08-121779, the parties entered into a stipulation of facts, which is as follows:

(1) On or about December 1, 2008, Webco, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Travelers Casualty \& Surety Co. (TPA: Constitution States Service Company)

(2) On the alleged injury date of December 1, 2008, Herbert Robbins, was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) The contract of employment between Herbert Robbins and Webco, Inc. was made in Missouri; the alleged accident or incident of occupational disease occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(4) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(5) At the time of the alleged accident or incident of occupational disease the employee's average weekly wage was $\ 461.77, which is sufficient to allow a compensation rate of $\ 307.85 for temporary total disability compensation and permanent partial disability compensation / permanent total disability compensation.

(6) Temporary disability benefits have not been provided to the employee.

(7) The employer and insurer have not provided medical treatment to the employee.

In Injury No. 08-121779 the parties further stipulated that the sole issues to be resolved by hearing include:

(1) Whether the employee sustained an accident or incident of occupational disease on or about December 1, 2008; and, if so, whether the accident or occupational disease arose out of and in the course of employment?

(2) Whether the employee gave the employer proper notice of the injury?

(3) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed?

(4) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries?

(5) Whether the employee is entitled to temporary total disability compensation? (The employee seeks payment of temporary total disability compensation for the period of December 5, 2008 to the present, and continuing indefinitely into the future.)

(6) Whether the employee sustained any permanent disability as a consequence of the alleged accident or occupational disease; and, if so, what is the nature and extent of the disability?

(7) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee, Herbert Robbins, testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of his wife, Kristin Robbins. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical Records from Alpha Omega Prosthetic Exhibit B Medical Records and Bills from Jubilee Prosthetics Exhibit C Medical Records from Phelps County Regional Medical Center Exhibit D Medical Records from St. Louis University Hospital Exhibit E Claim for Compensation (Injury No. 08-076338)

Exhibit F Answer of Second Injury Fund to Claim for Compensation (Injury No. 08-076338)

Exhibit G Answer of Employer / Insurer to Claim for Compensation (Injury No. 08-076338)

Exhibit H Claim for Compensation (Injury No. 08-121779)

Exhibit I Answer of Second Injury Fund to Claim for Compensation (Injury No. 08-121779)

Exhibit J Answer of Employer / Insurer to Claim for Compensation (Injury No. 08-121779)

Exhibit K. Amended Claim for Compensation (Injury No. 08-121779)

Exhibit L Amended Claim for Compensation (Injury No. 08-076338)

Exhibit M Answer of Employer / Insurer to Amended Claim for Compensation (Injury No. 08-121779)

Exhibit N. Amended Claim for Compensation (Injury No. 08-121779)

Exhibit O Answer of Employer / Insurer to Amended Clai