Bobby Daniels v. Noranda Aluminum, Inc.

Converting employee's preexisting disabilities into weeks of compensation yields the following results: 31 weeks for the right ankle, 21.875 weeks for the left wrist, and 21.875 for the right wrist. The sum of employee's preexisting disabilities is 74.75 weeks. Employee has met the 50-week threshold.

We agree that a 10\% load factor is appropriate to represent the synergistic combination of employee's preexisting and primary disabilities. Employee's primary injury resulted in 30\% permanent partial disability of the left foot at the 110-week level, or 33 weeks of permanent partial disability. The sum of preexisting and primary permanent partial disability is 107.75 weeks. When we multiply the sum by the 10 % load factor, the result is 10.775 weeks.

We conclude that the Second Injury Fund is liable for 10.775 weeks of permanent partial disability benefits.

We modify the award of the administrative law judge as to the extent of Second Injury Fund liability.

The stipulated rate of compensation is $\ 213.57. The Second Injury Fund is liable to employee for $\ 2,301.22 in permanent partial disability benefits.

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 Maureen Tilley, issued April 7, 2011, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of March 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Bobby D. Daniels

Injury No. 92-047005 \&

98-176977

Dependents: N/A

Employer: Noranda Aluminum, Inc.

Additional Party: Second Injury Fund

Insurer: Self

Hearing Date: January 31, 2011

Checked by: MT/rf

1. Are any benefits awarded herein?

Injury No. 92-047005 - Yes.

Injury No. 98-176977 - Yes.

1. Was the injury or occupational disease compensable under Chapter 287?

Injury No. 92-047005 - Yes.

Injury No. 98-176977 - Yes.

1. Was there an accident or incident of occupational disease under the law?

Injury No. 92-047005 - Yes.

Injury No. 98-176977 - Yes.

1. Date of accident or onset of occupational disease?

Injury No. 92-047005 - April 23, 1992

Injury No. 98-176977 - February 26, 1998

1. State location where accident occurred or occupational disease contracted:

Injury No. 92-047005 - New Madrid County, Missouri

Injury No. 98-176977 - New Madrid County, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease?

Injury No. 92-047005 - Yes.

Injury No. 98-176977 - Yes.

1. Did Employer receive proper notice?

Injury No. 92-047005 - Yes.

Injury No. 98-176977 - Yes.

1. Did the accident or occupational disease arise out of and in the course of the employment?

Injury No. 92-047005 - Yes.

Injury No. 98-176977 - Yes.

1. Was claim for compensation filed within the time required by law?

Injury No. 92-047005 - Yes.

Injury No. 98-176977 - Yes.

1. Was the employer insured by the above insurer?

Injury No. 92-047005 - Yes.

Injury No. 98-176977 - Yes.

1. Describe work employee was doing and how the accident happened or occupational disease contracted:

Injury No. 92-047005 - Employee was attempting to move a large electric motor from its base and drove a fiberglass rod through his left foot.

Injury No. 98-176977 - The employee developed bilateral carpal tunnel syndrome as a result of repetitive work as an electrician.

1. Did the accident or occupational disease cause death?

Injury No. 92-047005 - No.

Injury No. 98-176977 - No.

1. Parts of body injured by accident or occupational disease:

Injury No. 92-047005 - Left foot.

Injury No. 98-176977 - Right and Left upper extremities.

1. Nature and extent of any permanent disability:

Injury No. 92-047005 - See findings.

Injury No. 98-176977 - See findings.

1. Compensation paid to date for temporary total disability:

Injury No. 92-047005 - None.

Injury No. 98-176977 - None.

1. Value necessary medical aid paid to date by employer-insurer:

Injury No. 92-047005 - $\ 823.90

Injury No. 98-176977 - \$2,041.27

1. Value necessary medical aid not furnished by employer-insurer: N/A

18: Employee's Average Weekly Wage:

Injury No. 92-047005 - $\ 320.36

Injury No. 98-176977 - $\ 688.80

19: Weekly compensation rate:

Injury No. 92-047005 - $\ 213.57 for permanent partial disability.

Injury No. 98-176977 - $\ 459.20 for permanent total disability and $\ 278.42 for permanent partial disability.

20: Method wages computation: By agreement.

1. Amount of compensation payable: See findings.
2. Second Injury Fund liability: See findings.
3. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Robert Butler.

On January 31, 2011, the employee, Bobby Daniels, appeared in person and by his attorney, Robert Butler, for a hearing for a final award on the two above listed claims. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Jon Lintner. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, for both cases are set forth below as follows.

1. On or about April 23, 1992, Noranda Aluminum, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a self-insured employer with a third party administrator of Sedgwick Claims Management Services.
2. On or about April 23, 1992, the employee was an employee of Noranda Aluminum Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about April 23, 1992, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was in excess of that required to reach the maximum PPD rate of $\ 213.57.
7. The employee's injury is medically causally related to the work injury on or about April 23, 1992.
8. The employer has furnished $\ 823.90 in medical aid to employee.
9. The employer paid no temporary total disability benefits.

1. Liability of the Second Injury Fund for permanent partial disability.

1. On or about February 26, 1998, Noranda Aluminum, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a self-insured employer with a third party administrator of Sedgwick Claims Management Services.
2. On or about February 26, 1998, the employee was an employee of Noranda Aluminum Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about February 26, 1998, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.

1. The employee's average weekly wage was $\ 688.80, and his rate of compensation is $\ 459.20 for temporary total disability/permanent total disability and $\ 278.42 for permanent partial disability.
2. The employee's injury is medically causally related to the work injury on or about February 26, 1998.
3. No medical was furnished by the employer.
4. The employer paid no temporary total disability benefits.

1. Liability of the Second Injury Fund for Permanent total disability or in the alternative, permanent partial disability

The following Employee Exhibits were offered and admitted into evidence for both cases:

A. Certified copy of Division of Workers' Compensation Records, including final award regarding primary injury;

B. Exhibits from primary trial for claim No. 92-047005;

a) Emergency Room Records Missouri Delta Medical Center

b) Office Notes Ferguson Medical Center

c) Dr. Raymond F. Cohen Rating report

C. Certified medical records of Veterans Affairs Medical Center.

D. Certified copy of Division of Workers' Compensation records, including Final Award.

E. Exhibits from primary trial for claim No. 98-176977;

a) 8/25/05 Deposition of Dr. Bruce Schlafly.

b) Dr. Rickey L. Lents Operative report

c) Orthopedic Associates medical Records

d) Medical Bills

ER1 Job Description

ER2 Are