Ricky Cantrell v. L. Krupp Construction, Inc.

(Affirming the Award and Decision of Administrative Law Judge

With Supplemental Opinion)

Injury No.: 06-099227

Employee: Ricky Cantrell

Employer: L. Krupp Construction, Inc.

Insurer: Auto Owners Insurance Co.

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 $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence, read the briefs and heard the arguments of the parties. We find 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 § 286.090 RSMo, we affirm the award and decision of the administrative law judge dated February 22, 2012, as supplemented herein. The award and decision of Administrative Law Judge Vicky Ruth is attached and incorporated to the extent it is not inconsistent with our findings, conclusions, award and decision herein.

We supplement the administrative law judge's award and decision solely to address an argument raised in employer/insurer's brief.

Employer/insurer argues, without citation to legal authority, that we should start our analysis of employer's liability in this claim in § 287.220.1, the statutory subsection laying out Second Injury Fund liability. Employer/insurer's argument fails. A proper analysis of every claim begins by considering employer/insurer's liability for the injury that is the subject of the claim - commonly referred to as the "primary injury." Where the fact finder has found that the primary injury, standing alone, has rendered a claimant permanently and totally disabled - as we do in this case - there is no occasion to consider § 287.220.1. Section 287.220.1 is only implicated if the primary injury results in permanent partial disability.

We affirm the award and decision of the administrative law judge, as supplemented herein.

B. Michael Korte, Attorney at Law, is allowed a fee of 25 % of the benefits awarded for necessary legal services rendered to employee, which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $31^{\text {st }}$ day of October 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2006, unless otherwise indicated.

Employee: Ricky J. Cantrell

Injury No. 06-099227

Dependents: N/A

Before the

Employer: L. Krupp Construction, Inc.

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: Auto Owners Insurance Co.

Jefferson City, Missouri

Hearing Date: November 21, 2011

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: October 18, 2006.
5. State location where accident occurred or occupational disease was contracted: Douglas 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 was hit by falling lumber.
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: Body as a whole/back and left lower extremity at the level of the ankle.
14. Nature and extent of any permanent disability: Permanent and total disability.
15. Compensation paid to-date for temporary disability: $\ 43,132.20.
16. Value necessary medical aid paid to date by employer/insurer? $\ 144,983.14.
17. Value necessary medical aid not furnished by employer/insurer? None.

1. Employee's average weekly wages: $\ 1,201.53.
2. Weekly compensation rate: $\ 376.55 PPD / $\ 718.87 PTD.
3. Method of wages computation: By agreement.

1. Amount of compensation payable from employer:

Permanent and total disability benefits of $\$ 718.87 /$ week from December 13, 2007 through October 20, 2008, and from February 24, 2009 forward for claimant's lifetime as provided by law.

1. Second Injury Fund liability: None.
2. Future medical awarded: Yes.

Said payments to begin immediately and to be payable and 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: B. Michael Korte.

Employee: Ricky J. Cantrell

Injury No. 06-099227

Dependents: N/A

Employer: L. Krupp Construction, Inc.

Additional Party: Second Injury Fund

Insurer: Auto Owners Insurance Co.

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On November 21, 2011, Ricky J. Cantrell, L. Krupp Construction, Inc., Auto Owners Insurance Co., and the Second Injury Fund appeared for a final award hearing. This case was tried at the same time as Injury No. 07-040226. ${ }^{1}$ Ricky Cantrell (the claimant) was represented by attorney B. Michael Korte. L. Krupp Construction, Inc. (the employer) and Auto Owners Insurance (the insurer) were represented by attorney Brandy L. Johnson. The Second Injury Fund was represented by attorney Cara Harris. Claimant testified in person at the trial. Dr. David Volarich, Dr. Ted Lennard, Dr. David Dale, Mr. James England, and Mr. Gary Weimholt testified by deposition. Claimant, the employer/insurer, and the Second Injury Fund submitted briefs on December 19, 2011, and the record closed at that time.

The parties stipulated to the following:

1. On October 18, 2006, claimant sustained injuries by accident when lumber fell on him. The parties agree that the claimant's thoracic spine and left ankle were injured in that accident; causation of any other injury is disputed. The parties agree that the injuries to claimant's thoracic spine and left ankle arose out of and in the course of his employment with L. Krupp Construction, Inc. (the employer). The injuries associated with that accident were assigned Injury No. 06-099227.
2. Claimant alleges that on May 1, 2007, he sustained injuries to both upper extremities at the level of the wrist. The employer/insurer agrees that claimant sustained repetitive motion injuries to both upper extremities at the level of the wrists, but the date of those injuries is disputed. The parties, however, agree that the injuries to claimant's wrists arose out of and in the course of his employment with the employer. These bilateral wrist injuries were assigned Injury No. 07-040226.
3. The employer was operating subject to the provisions of Missouri Workers' Compensation Law.

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[^0]: ${ }^{1}$ Although a separate award will be issued in that case, the timelines, the treatment, and the issues are largely intertwined and both cases will be discussed in this Award.

1. The employer's liability for workers' compensation was insured by Auto Owners Insurance Company (the insurer).
2. The Missouri Division of Workers' Compensation has jurisdiction, and venue in Phelps County is proper and was agreed upon by the parties.
3. The employer had proper notice of the claimant's injuries.
4. Claimant filed Claims for Compensation within the time prescribed by law.
5. Claimant's average weekly wage was $\ 1,201.53, yielding a weekly compensation rate of $\ 376.55 for permanent partial disability benefits and $\ 718.87 permanent total disability benefits.
6. In Injury No. 06-099227, the employer paid temporary total disability benefits in the amount of $\ 43,132.20, for the period of October 19, 2006 through December 12, 2007 (a total of 60 weeks).
7. In Injury No. 06-099227, the employer/insurer paid medical benefits in the amount of $\ 144,983.14.
8. In Injury No. 07-040226, the employer paid temporary total disability benefits in the amount of $\ 12,939.66, for the period of October 21, 2008 through February 23, 2009 (a total of 18 weeks).
9. In Injury No. 07-040226, the employer/insurer paid medical benefits in the amount of $\ 16,479.32.

The parties agreed that the issues to be resolved in this proceeding Injury No. 06-099227, are as follows:

1. Medical causation of any injuries to claimant other than his left ankle and back.
2. Nature and extent of permanent partial disability or permanent total disability.
3. Second Injury Fund liability.
4. Liability of the employer/insurer for payment of past medical expenses.
5. Liability for future medical treatment.

The issues to be resolved in Injury No. 07-040226 are as follows:

1. The date of claimant's injury by occupational disease.
2. Nature and extent of permanent partial disability or permanent total disability.
3. Second Injury Fund liability.
4. Liability of the employer/insurer for payment for future medical treatment.
5. Whether the employer is entitled to a credit of the temporary total disability benefits paid to claimant in the amount of $\ 12,939.66, for the 18 week period beginning October 21, 2008 and ending February 23, 2009.

On behalf of the claimant, the following exhibits were entered into evidence:

On behalf of the employer/insurer, the following exhibits were admitted into the record:

Exhibit 1 Report of Air Evac EMS, Inc.

Exhibit 2 Deposition of Dr. Donald Pruitt and exhibits.

Exhibit 3 Reports (1/08/08, 1/26/08, and 7/12/11) of Dr. Ted Lennard.

Exhibit 4 Deposition (with exhibits) of Dr. Lennard.

Exhibit 5 Reports (12/12/08 and 4/25/11) of James England.

Exhibit 6 Depositions (1/05/09 and 5/20/11) and exhibits of James England.

The following exhibit was admitted on behalf of the Second Injury Fund (SIF):

Exhibit I Deposition of claimant.

On behalf of the parties, the following joint exhibits were entered into evidence:

Exhibit AA Records of Air Evac EMS.

Exhibit BB Records of Baxter Regional.

Exhibit CC Records of St. Anthony's Medical Center.

Exhibit DD Records of Signature Health.

Exhibit EE Records of Springfield Neurological and Spine Institute, LLC.

Exhibit FF Records of Advanced Care Physical Therapy, LLC.

Exhibit GG Records of Orthopedic Specialists of Springfield.

Exhibit HH Records of Springfield Surgical Specialists, ASC.

Exhibit II Records of WEEA.

Exhibit JJ Records of St. Louis Orthopedic, Inc.

Exhibit KK Records of St. John's Health Center.

Exhibit LL Records of Phelps County Regional Medical Center.

Exhibit MM Records of Dr. David's Family Clinic.

Exhibit NN Records of Dr. Theodore Koreckij.

Exhibit OO Records of Jefferson Memorial Hospital.

Exhibit PP Records of Tesson Heights.

Exhibit QQ R