Terry McCoy v. Metaltek International

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 04-085399

Employee: Terry M. McCoy

Employer: Metaltek International (Settled)

Insurer: Wausau Business Insurance Company (Settled)

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 $\S 287.480 RSMo. { }^{1}$ Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated November 22, 2011, as supplemented herein.

On August 13, 2004, employee injured his left shoulder when he was moving file boxes at work. Employee settled his claim against employer, but proceeded to final hearing of his claim against the Second Injury Fund.

The ALJ denied employee's claim for benefits against the Second Injury Fund. Employee appealed to the Commission alleging that the ALJ erred in becoming an advocate for the Second Injury Fund and that there was not sufficient, competent evidence in the record to warrant the making of the award under § 287.495 RSMo.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are adopted and incorporated by the Commission herein.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." In order to trigger liability of the Second Injury Fund, employee must show the presence of an actual and measurable disability at the time the work injury is sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed. E. W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo. App. W.D. 2002), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2003 unless otherwise indicated.

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We find, as did the ALJ, that employee failed to prove he suffered from an actual and measureable disability of such seriousness as to constitute a hindrance or obstacle to his employment at the time the work injury was sustained. Therefore, we find that Second Injury Fund liability is not triggered and no further analysis is needed.

We also find that the ALJ did not become an advocate for the Second Injury Fund and his award and decision is fully supported by competent and substantial evidence.

**Award**

We affirm the award of the ALJ as supplemented herein. Employee’s claim against the Second Injury Fund is denied.

The award and decision of Administrative Law Judge Gary L. Robbins, issued November 22, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this _______ 25th_____ day of April 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Terry M. McCoy

Injury No. 04-085399 \&

08-122038

Dependents: N/A

Employer: Metaltek International

Additional Party: Second Injury Fund

Insurer: Wausau Business Insurance Company

Hearing Date: August 15, 2011

Checked by: GLR/rf

1. Are any benefits awarded herein? Only in 08-122038.
2. Was the injury or occupational disease compensable under Chapter 287? Yes, the parties stipulated to accident and/or occupational disease and medical causation in both cases.
3. Was there an accident or incident of occupational disease under the Law? Yes, the parties stipulated to accident and/or occupational disease in both cases.
4. Date of accident or onset of occupational disease? August 13, 2004 in 04-085399. The employee claimed the period of February 2003 to May 2008 in 08-122038.
5. State location where accident occurred or occupational disease contracted: Jefferson County, Missouri in each case.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes, in both cases.
7. Did employer receive proper notice? Yes, in both cases.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes, the parties stipulated to accident or occupational disease in both cases.
9. Was claim for compensation filed within time required by law? Yes, in both cases.

The Compensation awarded to the employee 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 employee: Ray A. Gerritzen.

On August 15, 2011, the employee, Terry M. McCoy, appeared in person and with his attorney, Roy A. Gerritzen, for a hearing for a final award in two cases that were combined for trial. The employer-insurer was not present at trial as they had already settled with the employee. Assistant Attorney General Eileen R. Krispin represented the Second Injury Fund. The Court took judicial notice of all records contained within the files of the Division of Workers' Compensation. 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 statement of the findings of fact and rulings of law, are set forth below as follows:

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Wausau Business Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Metaltek Incorporated and was working under the Workers' Compensation Act.
3. On or about August 13, 2004 the employee sustained an accident or occupational disease that arose 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 is $\ 369.54. The parties agreed that his compensation rate for all issues is $\ 246.37 per week.
7. The employee's injury was medically causally related to his accident or occupational disease.
8. The parties agreed that the employer-insurer paid $\ 14,948.81 in medical aid.
9. The parties agreed that the employer-insurer paid $\ 175.98 in temporary disability benefits.
10. The employee has no claim for previously incurred medical bills.
11. The employee has no claim for mileage or future medical care.
12. The employee has no claim for additional temporary disability benefits.
13. The employee has no claim for either permanent partial or permanent total disability as to the employer-insurer.

1. The employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Wausau Business Insurance Company.
2. On or about the date of the alleged accident or occupational disease the employee was an employee of Metaltek Incorporated and was working under the Workers' Compensation Act.
3. On or about February 2003 to May 2008 the employee sustained an accident or occupational disease that arose out of and in the course of his employment.

1. The employer had notice of the employee's accident.
2. The employee's claim was filed within the time allowed by law.
3. The employee's average weekly wage is $\ 414.78. The parties agree that his compensation rate for issues is $\ 276.52.
4. The employee's injury was medically causally related to his accident or occupational disease.
5. The parties agreed that the employer-insurer paid $\ 0 in medical aid.
6. The parties agreed that the employer-insurer paid $\ 0 in temporary disability benefits.
7. The employee has no claim for previously incurred medical bills.
8. The employee has no claim for mileage or future medical care.
9. The employee has no claim for additional temporary disability benefits.
10. The employee has no claim for either permanent partial or permanent total disability as to the employer-insurer.

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

1. Liability of the Second Injury Fund for permanent partial or permanent total disability.
2. Whether occupational disease is compensable against the Second Injury Fund under Chapter 287.

The following exhibits were offered and admitted into evidence:

A1. April 28, 2008 deposition of Robert P. Poetz, D.O.

A2. December 16, 2010 deposition of Robert P. Poetz, D.O.

B. Deposition of James M. England, Jr.

C. Building Blocks for Success.

D. Medical records of Patricia Allen, FNP.

E. Medical records of John P. Hess, M.D.

F. Medical records from Jefferson County Rehab

G1. Medical records from Farmington Sports and Rehab Center.

G2. Account history from Farmington Sports and Rehab Center.

H. Medical records from Vista Imaging of Jefferson County.

I. Medical record of Robert I. Markenson, M.D.

J. Medical records of Laurence Lum, D.O.

K. Stipulation for Compromise Settlement in Case 04-085399.

L. Stipulation for Compromise Settlement in Case 08-122038.

M. Deposition of Matt Gardiner.

N. Deposition of Al Blume.

O. Medical records from Metropolitan Occu