James Blanton v. American Airlines

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-006737

Employee: James M. Blanton

Employer: American Airlines

Insurer: New Hampshire 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 § 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated October 27, 2011. The award and decision of Administrative Law Judge Robert B. Miner, issued October 27, 2011, is attached and incorporated by this reference.

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 $24^{\text {th }}$ day of May 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: James M. Blanton

Employer: American Airlines Additional Party: The Treasurer of the State of Missouri as Custodian of the Second Injury Fund

Injury No.: 10-006737

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri

Insurer: New Hampshire Insurance Co.

Hearing Date: September 15, 2011 Checked by: RBM

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: Cumulative to January 30, 2010.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte 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: Employee repetitively used his right upper extremity repairing airplanes in the course of his employment as a mechanic for Employer that resulted in injury to the right upper extremity.

Issued by DIVISION OF WORKERS' COMPENSATION

Re: Injury No.: 10-006737

Employee: James M. Blanton

1. Did accident or occupational disease cause death? No.

1. Part(s) of body injured by accident or occupational disease: Right upper extremity.

1. Nature and extent of any permanent disability: 20% of the right upper extremity at the 210 week level combining with preexisting disability to result in Second Injury Fund permanent partial disability as described in Award.

1. Compensation paid to-date for temporary disability: $11,598.84.

1. Value necessary medical aid paid to date by employer/insurer? $7,395.55.

1. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: 1,318.25.

1. Weekly compensation rate: 807.48 for temporary total disability and $422.97 for permanent partial disability.

1. Method wages computation: By agreement of the parties.

COMPENSATION PAYABLE

1. Amount of compensation payable:

42 weeks of permanent partial disability from Employer at the rate of $422.97 per week = 17,764.74

2 weeks of disfigurement from Employer at the rate of 422.97 per week = 845.94

TOTAL FROM EMPLOYER: 18,610.68

1. Second Injury Fund liability:

24.6 weeks of permanent partial disability from Second Injury Fund at the rate of $422.97 per week = 10,405.06

TOTAL FROM SECOND INJURY FUND: 10,405.06

1. Future requirements awarded: None.

WC-32-R1 (6-81)

Robert B. Miner, ALJ

Page 2

Said payments to begin immediately 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: Gary R. Bradley.

Employee: James M. Blanton

Employer: American Airlines

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

Injury No.: 09-044464

Before the Division of Workers' Compensation Department of Labor and Industrial Relations of Missouri

Insurer: New Hampshire Insurance Co.

Hearing Date: September 15, 2011

Checked by: RBM

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: Cumulative to June 12, 2009.
5. State location where accident occurred or occupational disease was contracted: Kansas City, Platte 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: Employee repetitively used his left upper extremity repairing airplanes in the course of his employment for Employer that resulted in injury to the left upper extremity.

1. Did accident or occupational disease cause death? No.
2. Part(s) of body injured by accident or occupational disease: Left upper extremity.
3. Nature and extent of any permanent disability:
4. Compensation paid to-date for temporary disability:
5. Value necessary medical aid paid to date by employer/insurer?
6. Value necessary medical aid not furnished by employer/insurer?
7. Employee's average weekly wages:
8. Weekly compensation rate:
9. Method wages computation:

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses:

weeks of temporary total disability (or temporary partial disability)

weeks of permanent partial disability from Employer

weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning for claimant's lifetime.

1. Second Injury Fund liability:

weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits

Permanent total disability benefits from Second Injury Fund:

weekly differential

beginning

payable by SIF for weeks

and, thereafter, for claimant's lifetime.

TOTAL:

1. Future requirements awarded:

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:

Employee: James M. Blanton

Employer: American Airlines

Additional Party: The Treasurer of the State of

Missouri as Custodian of the Second Injury Fund

Insurer: New Hampshire Insurance Co.

Hearing Date: September 15, 2011

10-006737

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Checked by: RBM

A final hearing was held in these cases on Employee's claims against Employer and the Treasurer of the State of Missouri as Custodian of the Second Injury Fund on September 15, 2011 in Riverside, Missouri. Employee, James M. Blanton, appeared in person and by his attorney, Gary R. Bradley. Employer, American Airlines, and Insurer, New Hampshire Insurance Co., appeared by their attorney, David F. Menghini. The Second Injury Fund appeared by its attorney, Benita Seliga. Gary R. Bradley requested an attorney's fee of 25 % from all amounts awarded.

At the time of the hearing, the parties stipulated to the following:

1. On or about June 12, 2009 and January 30, 2010, James M. Blanton ("Claimant") was an employee of American Airlines ("Employer") and was working under the provisions of the Missouri Workers' Compensation Law.
2. On or about June 12, 2009 and January 30, 2010, Employer was an employer operating under the provisions of the Missouri Workers' Compensation Law and was fully insured by New Hampshire Insurance Co. ("Insurer").
3. Claimant and Employer/Insurer agreed that on or about June 12, 2009 and January 30, 2010, Claimant sustained injuries by accident or occupational disease in Kansas City, Platte County, Missouri, arising out of and in the course of his employment. The Second Injury Fund denied that on or about June 12, 2009 and January 30, 2010, Claimant sustained injuries by accident or occupational disease arising out of and in the course of his employment.

Issued by DIVISION OF WORKERS' COMPENSATION

Re: Injury No.: 10-006737

Employee: James M. Blanton

1. Employer had notice of Claimant's alleged injuries.

1. Claimant's Claims for Compensation were filed within the time allowed by law.

1. The average weekly wage was $1,318.25 in both cases. In Injury Number 09-0444464, the rate of compensation for temporary total disability is $772.53 per week and the rate of compensation for permanent partial disability is $404.66 per week. In Injury Number 10-006737, the rate of compensation for temporary total disability is $807.48 per week and the rate of compensation for permanent partial disability is $422.97 per week.

1. Employer/Insurer has paid $17,187.78 in temporary total disability in Injury Number 09-044464, and Employer/Insurer has paid $11,598.84 in temporary total disability in Injury Number 10-006737.

1. Employer/Insurer has paid $33,584.45 in medical aid in Injury Number 09-044464, and Employer/Insurer has paid $7,395.55 in medical aid in Injury Number 10-006737.

1. Claimant and Employer/Insurer agreed that Claimant be awarded permanent partial disability of 20% of the left upper extremity at the 210 week level and 4 weeks of disfigurement in Injury Number 09-044464. Claimant and Employer/Insurer agreed that Claimant be awarded permanent partial disability of 20% of the right upper extremity at the 210 week level and 2 weeks of disfigurement in Injury Number 10-006737. The Second Injury Fund did not join in this agreement in this paragraph.

1. Claimant is seeking permanent partial disability benefits only from the Second Injury Fund, and is not seeking permanent total disability benefits from the Second Injury Fund.

ISSUES

Claimant and Employer/Insurer agreed that there is a dispute between them on the issue of Employer/Insurer's liability for future medical aid.

Claimant and the Second Injury Fund agreed that there are disputes between them on the following issues:

1. Whether on or about June 12, 2009 and January 30, 2010, Claimant sustained injuries by accident or occupational disease arising out of and in the course of his employment for Employer.

WC-32-R1 (6-81)

Robert B. Miner, ALJ

Page 8

1. Nature and extent of permanent partial disability.
2. Liability of the Second Injury Fund for permanent partial disability