Fonda Allen Brandt v. Cardinal Scale Manufacturing Company

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 05-066070

Employee: Fonda Allen Brandt

Employer: Cardinal Scale Manufacturing Company (Settled)

Insurer: Travelers Property Casualty Company (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. ${ }^{1} Pursuant to \S 286.090$ RSMo, we issue this final award and decision modifying the April 13, 2011, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

Rate of compensation

The Second Injury Fund's Application for Review raises the sole issue of the administrative law judge's application of $\S 287.120 .4$ RSMo to increase the rate of compensation applicable to the award of permanent total disability benefits to employee. The facts are not in dispute and the parties agree that employee's injuries were caused by her employer's violation of a safety statute and that $\S 287.120 .4$ RSMo is thereby implicated in this matter. The parties dispute whether the terms of that provision operate to increase employee's award as against the Second Injury Fund.

In Terry Hornbeck v. Spectra Painting, Inc., and Treasurer of the State of Missouri As Custodian of the Second Injury Fund, No. SC92116 (July 31, 2012), the Supreme Court of Missouri held that the 15\% enhancement under § 287.120.4 RSMo is inapplicable to an award of compensation against the Second Injury Fund. We believe this holding is determinative of the sole issue before us in this case.

For this reason, we modify the award of the administrative law judge. Discounting the 15 % enhancement the administrative law judge applied to the permanent total disability rate results in a rate of $\ 233.00 per week. Accordingly, we conclude that the rate of compensation for permanent total disability benefits is $\ 233.00 per week.

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[^0]: ${ }^{1}$ In addition, oral arguments in this matter were heard on September 28, 2011, before former Commissioners William F. Ringer and Alice A. Bartlett. Commissioner Curtis E. Chick, Jr., did not participate in oral arguments. James Avery has since been appointed to the Commission, and Chairman William F. Ringer has retired.

We modify the award of the administrative law judge on the issue of compensation rate. We find the appropriate rate of compensation for permanent total disability benefits is $\ 233.00 per week. In all other respects, we affirm the award of the administrative law judge.

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 L. Timothy Wilson, issued April 13, 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 $29^{\text {th }}$ day of August 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Fonda Allen Brandt

Injury No. 05-066070

Dependents: N/A

Employer: Cardinal Scale Manufacturing Company

Insurer: Travelers Property Casualty Company

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

Hearing Date: February 1, 2011

Checked by: LTW

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: July 18, 2005
5. State location where accident occurred or occupational disease was contracted: Jasper County, Missouri (The parties agreed to a change in venue to Springfield, Greene 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: While engaged in her employment as a punch press operator at the Employer's (Cardinal Scale Manufacturing) Webb City plant, Employee's hand became caught in a punch press that she operated and it crushed her left hand. The accident injured all four fingers. Orthopedic surgeons eventually surgically amputated the long, ring and little fingers of her left hand.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left Hand
14. Nature and extent of any permanent disability: 70 percent to left hand ( 122.5 weeks)
15. Compensation paid to-date for temporary disability: $\ 5,710.08
16. Value necessary medical aid paid to date by employer/insurer? $\ 151,166.99

Employee: Fonda Allen Brandt

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 350.00
3. Weekly compensation rate: $\$ 233.00 / \ 233.00
4. Method wages computation: Stipulation

1. Amount of compensation payable:

The Employee and Employer / Insurer entered into a Stipulation for Compromise Settlement for \$105,000, wherein the parties disputed among other things the percentage of permanent disability and disfigurement, and the Employer and Insurer agreed to leave open future medical care. This stipulation compromised and resolved the claim filed against the Employer and Insurer.

1. Second Injury Fund liability: Yes

Weeks of permanent partial disability from Second Injury Fund: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: Yes.

Employee is entitled to permanent total disability benefits ( $\ 233.00 per week) for his lifetime. In addition, Employee is entitled to additional compensation in the amount of 15 percent of the compensation owed under Chapter 287, RSMo, premised on the employer committing a safety penalty violation under Section 287.120.4, RSMo. Accordingly, Employee is entitled to permanent total disability compensation in the amount of $\ 267.95 per week for Employee's lifetime ( $\ 233.00+15 % or $\$ 34.95=\ 267.95 ).

There is not a weekly differential between permanent partial disability compensation paid by Employer / Insurer and permanent total disability compensation to be paid by Second Injury Fund. Accordingly, in light of Employee reaching maximum medical improvement on April 15, 2008, and responsible for payment of 122.5 weeks of permanent partial disability compensation, the payment of permanent total disability compensation by the Second Injury Fund is effective as of April 15, 2008, and shall take into consideration 122.5 weeks of permanent partial disability, which is attributable to the Employer. (April 15, 2008, to August 21, 2010, is 122.5 weeks.) Therefore, responsibility for payment of $\ 267.95 per week for Employee's lifetime by the Second Injury Fund began on August 21, 2010.

TOTAL: \$267.95 PER WEEK (LESS 122.5 WEEKS OF PPD PAID BY EMPLOYER \& INSURER) FOR EMPLOYEE'S LIFETIME, EFFECTIVE AS OF APRIL 15, 2008.

1. Future requirements awarded: Yes (See Award)

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: John Cowherd, Esq. and Patrick J. Platter, Esq.

Employee: Fonda Allen Brandt

Injury No. 05-066070

Dependents: N/A

Employer: Cardinal Scale Manufacturing Company

Insurer: Travelers Property Casualty Company

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on February 1, 2011. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about March 18, 2011.

The employee appeared personally and through her legal counsel, John Cowherd, Esq. and Patrick J. Platter, Esq. The employer and insurer were not part of the evidentiary hearing, having previously entered into a stipulation for compromise settlement with the employee, resulting in approval by an administrative law judge on or about January 12, 2011. The Second Injury Fund appeared through its attorney, Christina Hammers, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about July 18, 2005, Cardinal Scale Manufacturing Company was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Travelers Property Casualty Company.

(2) On the alleged injury date of July 18, 2005, Fonda Allen Brandt was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about July 18, 2005, the employee sustained an accident, which arose out of and in the course of her employment with the employer.

(4) The above-referenced employment and accident occurred in Jasper County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section, 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident the employee's average weekly wage was $\ 350.00, which is sufficient to allow a compensation rate of $\ 233.00 for temporary total disability compensation, and a compensation rate of $\ 233.00 for permanent disability compensation.

(8) Temporary disability benefits have been provided to the employee in the amount of $\ 5,710.08, representing $24 \frac{1}{2}$ weeks in disability benefits, payable for the period of July 19, 2005 to January 14, 2006.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 151,166.99 in medical expenses.

The sole issues to be resolved by hearing include:

(1) When did the employee reach maximum medical improvement relative to the work injury of July 18, 2005?

(2) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

(3) Whether the employer committed a safety penalty violation under Section 287.120.4, RSMo relative to the work injury of July 18, 2005 and an alleged violation of Section 292.020, RSMo; and if so, whether the employee is entitled to payment by the Treasurer of Missouri, as the Custodian of the Second Injury Fund, of the penalty amount of 15 percent of the compensation due and owing to the employee?

The employee testified at the hearing in support of her claim. Also, the employee presented at the hearing of this case an additional witness, Wilbur Swearingin, CRC. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical Report of Roger W. Cameron, D.O. Exhibit B CV of Wilbur Swearingin, CRC Exhibit C. Vocational Report of Wilbur Swearingin,