Tommie Cohu v. Earth Grains Bread Company

purposes of $\S 287.220$. Rather, the courts have instructed that an occupational disease does not become a compensable injury until the disease becomes disabling. Garrone v. Treasurer of State, 157 S.W.3d 237, 242 (Mo. App. 2004). As the Garrone court explained:

An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability. An employee can be diagnosed with an occupational disease and experience symptoms of the disease prior to the time that it becomes disabling.

Id. (citations omitted).

Here, employee twisted his left knee on October 10, 2000, but received only conservative treatment and went back to work without restrictions. (Employee worked light duty when he went back to work for employer, but the record does not show this was due to employee's knee condition, but rather suggests the light duty was related to employee's left shoulder, for which he underwent surgery in November 2000). After reviewing the medical record related to employee's bilateral knee conditions, we find the date of disability for the primary occupational disease to be July 5, 2006, the date employee underwent a left total knee replacement surgery, and the first time employee's earning ability was clearly and adversely impacted by his bilateral knee condition. Accordingly, for purposes of Second Injury Fund liability, we look at employee's preexisting conditions of ill on July 5, 2006, rather than October 10, 2000.

Employee underwent his last significant treatment for the bilateral shoulder condition in 2002. In our award in employee's claim for Injury No. 00-140019 (employee's claim for his bilateral shoulder condition), we have found that employee sustained a 40 % permanent partial disability of the left shoulder and a 25 % permanent partial disability of the right shoulder. We find that employee suffered these preexisting permanent partial disabilities and that they were serious enough to constitute hindrances or obstacles to employment on July 5, 2006.

Employee reached maximum medical improvement from the primary bilateral knee injuries on January 19, 2007, the last date he received treatment from Dr. Browne. We adopt the administrative law judge's ratings of 40 % permanent partial disability of each knee as our findings as to the nature and extent of disability resulting from the primary injury. Because we agree that employee is permanently and totally disabled as a result of the combination of his preexisting bilateral shoulder conditions and the primary injury in this matter, we affirm the award of permanent total disability benefits against the Second Injury Fund.

We modify the analysis and the award of the administrative law judge on the issue of Second Injury Fund liability. The Second Injury Fund is ordered to pay to employee weekly payments of $\ 225.67, the difference between employee's permanent total disability rate

$(\ 539.93) and employee's permanent partial disability rate $(\ 314.26) for 128 weeks (the extent of employer's liability for the primary injury) beginning January 19, 2007. Thereafter, the Second Injury Fund is liable to employee for weekly permanent total disability benefits in the amount of $\ 539.93 for his lifetime, or until modified by law.

The award and decision of Administrative Law Judge Lisa Meiners, issued August 20, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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 $14^{\text {th }}$ day of October 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

VACANT

Member

Attest:

Secretary

Employee: Tommie Cohu

Injury No: 00-112184

Dependents: N/A

Employer: Earth Grains Bread Company

Insurer: Pacific Employer's Insurance Co.

Helmsman Management Services

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

Hearing Date: June 9, 2010

Checked by: LM/cy

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: Through October 10, 2000
5. State location where accident occurred or occupational disease was contracted: Price Chopper, Blue Springs, Jackson 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: Claimant sustained bilateral knee injuries due to cumulative trauma from work activities.
12. Did accident or occupational disease cause death? No

Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Tommie Cohu

Injury No. 00-112184

1. Part(s) of body injured by accident or occupational disease: Bilateral knees
2. Nature and extent of any permanent disability:
3. Compensation paid to-date for temporary disability: $\ 0
4. Value necessary medical aid paid to date by employer/insurer? $\ 2,576.18
5. Value necessary medical aid not furnished by employer/insurer? $\ 72,591.00
6. Employee's average weekly wages: $\ 809.86
7. Weekly compensation rate: $\$ 539.93 / \ 314.26
8. Method wages computation: Stipulation

1. Amount of compensation payable:

Medical expenses owing $\ 72,591.00

Total TTD Owing. $\ 37,719.97

1. Second Injury Fund liability: Yes. The Second Injury Fund is liable to Claimant for permanent total disability benefits for Claimant's lifetime.

TOTAL: Unknown

1. Future requirements awarded: Yes. The employer is liable to employee for future medical care in order to cure and relieve effects of employee's bilateral knee conditions.

Said payments to begin upon receipt of Award 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: Michael Knepper.

Employee: Tommie Cohu

Injury No: 00-112184

Dependents: N/A

Employer: Earth Grains Bread Company

Insurer: Pacific Employer's Insurance Co.

Helmsman Management Services

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

Hearing Date: June 9, 2010

Checked by: LM/cy

This case was set for hearing before Administrative Law Judge Meiners, in Kansas City, Missouri on June 9, 2010. Claimant, Tommie Cohu, was represented by his counsel, Mr. Michael A. Knepper. The Employer and Self-Insurer were represented by their counsel, Mr. Bart Eisfelder. The State Treasurer as Custodian of the Second Injury Fund was represented by its counsel, Assistant Attorney General, Mr. Andrew Dickson.

The parties stipulated to the following:

1) That the employee and employer were operating subject to the Missouri Workers' Compensation statute;

2) That proper notice was given;

3) That Claimant filed his claim within the time allowed by law;

4) That Claimant's average weekly wage was $\ 809.86 per week with a comp rate of $\ 539.93 for PTD and $\ 314.26 per week for PPD. (No TTD has been paid.);

5) That the employer has paid $\ 2,576.18 in medical expenses and no temporary total disability benefits.

The issues to be resolved by this hearing are as follows:

1) Whether employee sustained an accident or occupational disease arising out of and in the course of his employment up to and including October 10, 2000;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Tommie Cohu

Injury No. 00-112184

2) Whether the employer is liable to employee for past temporary total disability benefits from July 5, 2006 through November 6, 2007;

3) Whether the employer is liable to the employee for past medical expenses in the amount of $72,591.00;

4) Whether employer is liable to employee for future medical care as a result of the October 10, 2000 accident;

5) Whether the Second Injury Fund is liable to Claimant.

Claimant is a 68-year-old man with a Bachelor’s degree from Kansas City College and Bible School with several credit hours toward a Master’s degree from the University of Missouri at Kansas City. Claimant has work experience in the areas of teaching/coaching and bread truck driver. Although Claimant taught school from 1970 to 1976 and 1985 to 1987, he does not have a state teaching certificate.