Martin Squires v. St. Louis County Government

Improvee: Martin R. Squires

- 2 -

diligently summarized all of the evidence as an impartial and uncritical scrivener. No doubt it was a useful reference tool for the ALJ's own use in understanding the facts. But because of the absence of findings (that is, the lack of critical evaluation and the failure to draw pertinent inferences from the evidence), the summaries, with all due respect, are of little value to this court. The summaries cannot substitute for factual findings (along with conclusions of law) in the opinion itself.

*Stegman v. Grand River Reg'l Ambulance Dist.,* 274 S.W.3d 529, 532 (Mo. App. 2008) (emphasis added).

Turning to the present case, after a careful review of the record, we ultimately agree with the result reached by the administrative law judge, and agree with the findings and conclusions she rendered in her well-reasoned award. However, we are concerned that by assigning the title "Summary of the Evidence" to the section of the award that begins on page 4 and extends to page 8, there arises a potential for confusion of the type identified by the court in *Stegman*. As the courts have consistently made clear over the years, affirmative findings are needed in these awards, and a summary of the evidence cannot substitute for them or fulfill the statutory mandate.

We believe that, here, this concern can be corrected by simply modifying the award to designate the section entitled "Summary of the Evidence" as "Findings of Fact," because the administrative law judge did, in that section of the award, make the requisite credibility determinations and rendered unequivocal findings derived from a critical analysis of the evidence.

Accordingly, in light of the foregoing considerations, we hereby modify the award of the administrative law judge as follows: the section beginning on page 4 and extending to page 8, entitled "Summary of the Evidence," is renamed "Findings of Fact."

On page 1 of the administrative law judge's award, in statement number 14, the award states that the nature and extent of employee's permanent disability is "30% PTD of the right wrist." This clearly was merely a clerical error, which we hereby correct as follows: on page 1, in statement number 14, the words "30% PTD" are replaced with the words "30% PPD."

Because we otherwise agree with the findings, conclusions, and analysis of the administrative law judge, we affirm and adopt the award in all other respects.

We modify the award of the administrative law judge as set forth herein.

The Commission 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 Suzette Carlisle, issued August 12, 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 ______ 19th ______ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Martin R. Squires

Departments: N/A

Employer: St. Louis County Government (Settled)

Additional : Second Injury Fund

Insurer: Self Insured (Settled)

Hearing Date: May 17, 2011

Injury No.: 07-105987

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: November 1, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 tripped and fell off the curb as he attempted to throw a bag of trash onto a dump truck, and fractured his right wrist.

1. Did accident or occupational disease cause death? No
2. Part(s) of body injured by accident or occupational disease: Right wrist
3. Nature and extent of any permanent disability: 30 % PTD of the right wrist (Settled)
4. Compensation paid to-date for temporary disability: $\ 627.60
5. Value necessary medical aid paid to date by employer/insurer? $\ 10,994.58

Employee: Martin Squires

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 549.15
3. Weekly compensation rate: $\$ 366.10 / 366.10$
4. Method wages computation: Stipulated

1. Amount of compensation payable:

52.5 weeks of permanent partial disability from Employer (Previously settled)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

beginning January 15, 2009 and, thereafter, for Claimant's lifetime

TOTAL:

INDETERMINATE

1. Future requirements awarded: N/A

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: Christopher Wagner

Employee: Martin R. Squires

Departments: N/A

Employer: St. Louis County Government (Settled)

Additional : Second Injury Fund

Insurer: Self Insured (Settled)

Injury No.: 07-105987

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The parties appeared before the undersigned administrative law judge on May 17, 2011 at the Division of Workers' Compensation (DWC), for a final hearing to determine the liability of the Second Injury Fund (SIF) at the request of Martin R. Squires (Claimant). Attorney Christopher Wagner represented Claimant. Assistant Attorney General Kristin Frazier represented the SIF. Venue is proper and jurisdiction lies with the DWC. The record closed after presentation of the evidence. Proposed awards were to be submitted by June 1, 2011.

The St. Louis County Government (Employer) is self-insured and previously settled the claim with Claimant for 30 % permanent partial disability (PPD) of the right wrist, and did not participate in this proceeding.

The parties stipulated that on or about November 1, 2007:

1. Claimant was employed by the Employer and sustained an accident which rose out of and in the course of employment in St. Louis County; Missouri;
2. The Employer and Claimant operated under the Missouri Workers' Compensation Law;
3. The Employer's liability was fully self-insured;
4. The Employer had notice of the injury;
5. The Claim for Compensation was timely filed;
6. Claimant's average weekly wage was $\ 549.15;
7. The rate of compensation is $\ 366.10 for temporary total disability (TTD), permanent total disability (PTD), and PPD;
8. The Employer paid TTD benefits totaling $\ 627.60 representing 1-5/7 weeks;
9. Employer paid medical benefits totaling $\ 10,994.58; and

1. Claimant achieved maximum medical improvement (MMI) on January 14, 2008

ISSUES

The issues to be determined are:

1. What is the nature and extent of permanent partial disability sustained by the Claimant from the primary injury, if any?
2. What is the nature and extent of SIF liability for PPD, if any?
3. What is the nature and extent of SIF liability for PTD, if any?

Claimant Exhibits A through D, and the SIF's Exhibit I were admitted without objection.

Only evidence necessary to support the award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent that there are marks and highlights contained in the exhibits, those markings were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

1. The Claimant testified live and his testimony was credible. At the time of the hearing, Claimant was 65 years old. Claimant dropped out of school in the ninth grade. At age 17, he joined the U.S. Navy and worked as a store keeper, then transferred to an aircraft carrier where he sailed to Vietnam. He earned a GED in the military, and received an honorable discharge after three years of service.
2. After discharge, Claimant worked at a packing house as a knocker for three years, where he killed cows and hung them up. For eleven years he drove a truck for Lakeshire Company. He worked as roofer for 5-1/2 years and as a bar tender for 10 to15 years. For three years Claimant worked maintenance at a banquet hall where he set up and cleaned for special occasions.
3. In April 1995 Employer hired Claimant as a seasonal maintenance man for the St. Louis County Parks Department. After two years he was promoted to a full-time maintenance position at Jefferson Barracks, where he worked eight hours per day, forty hours per week, and was responsible for the upkeep of 450 acres. Claimant had additional duties at Jefferson Barracks.
4. Claimant cut grass, trimmed trees