Richard Sanders v. Advanced Logistics, LLC

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 08-045994

Employee: Richard D. Sanders

Employer: Advanced Logistics, LLC (Settled)

Insurer: American Home Assurance Company

c/o Chartis Claims, Inc. (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 for review as provided by $\S 287.480 RSMo. Pursuant to \S 286.090$ RSMo, we issue this final award and decision modifying the April 30, 2012, 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.

The parties stipulate that we modify the administrative law judge's award by the inclusion of the following language:

Employee's wife, Judith Sanders, is entitled to receive Employee's Permanent

Total Disability benefits in the event she remains married to Employee and

Employee predeceases her while they remain married. Her entitlement to

Permanent Total Disability benefits shall cease upon her death or remarriage.

We accept the stipulation and we modify the award accordingly.

We approve and affirm the administrative law judge's allowance of attorney's fee as being fair and reasonable.

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

The award and decision of Administrative Law Judge Maureen Tilley, issued April 30, 2012, is attached and incorporated by this reference except to the extent modified herein.

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:

Employee: Richard D. Sanders

Injury No.: 08-045994

Employer: Advanced Logistics, LLC - (settled)

Insurer: American Home Assurance Company c/o Chartis Claims, Inc. - (settled)

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

Hearing Date: February 1, 2012

Checked by: MT/kb

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? June 3, 2008.
5. State location where accident occurred or occupational disease contracted: Jackson, Cape Girardeau 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 happened or occupational disease contracted: The employee was struck and twisted by a forklift causing injury to his low back and right lower extremity.

issues that were in dispute. These undisputed facts and issues, together with a Summary of the Evidence and the Findings of Fact and Rulings of Law, are set forth below as follows:

1. Covered Employer - On or about June 3, 2008, Advanced Logistics, LLC was operating under and subject to the provisions of the Missouri Workers' Compensation Act and their liability was fully insured by American Home Assurance Company c/o Chartis Claims, Inc.
2. Covered Employee - On or about June 3, 2008, Richard D. Sanders was an employee of Advanced Logistics, LLC and was working under the Missouri Workers' Compensation Act.
3. Accident - On or about June 3, 2008, the employee sustained an accident arising out of and in the course of his employment.
4. Notice - Employer had notice of Employee's accident.
5. Statute of Limitations - Employee's claim was filed within the time allowed by law.
6. Average Weekly Wage and Rate - The employee's Average Weekly Wage is $\ 700.00 per week. The employee's rate for permanent total disability is $\ 466.67 per week and the employee's rate for permanent partial disability is $\ 389.04.
7. Medical Causation - The employee's injuries were medically causally related to the work accident.
8. Medical Aid Furnished - Employer furnished $\ 10,320.17 in medical aid to Employee.
9. Temporary Disability Paid by employer/insurer - Employer paid \$3,733.36 in temporary total disability benefits to Employee for a period of 8 weeks from June 3, 2008 through July 29, 2008.
10. Maximum Medical Improvement - The employee reached maximum medical improvement for his work related injuries on February 18, 2010.

1. Second Injury Fund Liability - Whether the Second Injury Fund is liable for either permanent partial or permanent total disability.
2. Dependency of Employee's spouse and applicability of Schoemel decision - Whether the employee's spouse, Judith A. Sanders, is a dependent within the meaning of Mo. Rev. Stat. §287.240 and whether Judith A. Sanders would be entitled to Permanent Total Disability Benefits in the event that Judith A. Sanders were to survive the employee?

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Copy of Approved Stipulation for Compromise Settlement for Injury No. 08045994 .

B. Medical Records from St. Francis Medical Center.

C. Medical Records from Heartland Spine.

D. Medical Records from Orthopaedic Associates - Dr. Michael Trueblood.

E. Medical Records from Southeast Missouri Hospital.

F. Medical Records from Dr. Craig Aubuchon.

G. Medical Records from Mid-America Rehabilitation.

H. Medical Records from Select Physical Therapy.

I. Photographs.

J. Deposition of Dr. Annamaria Guidos.

K. Deposition of Dr. Dwight Woiteshek.

L. Deposition of Dr. Jeff Magrowski.

Second Injury Fund Exhibits:

None

Employee's Witnesses:

- Richard D. Sanders, Injured Employee

- Judith A. Sanders, Injured Employee's Spouse

Second Injury Fund's Witnesses:

None

- Burden of Proof - An Employee has the burden of proving all the essential elements of a claim for workers' compensation benefits by reasonable probability, not absolute certainty. McDermott v. City of Northwoods Police Dep't, 103 S.W.3d 134, 138 (Mo.App. E.D. 2002).

- Second Injury Fund Liability for Permanent Partial Disability - Mo. Rev. Stat. $\S 287.220 .1$ sets forth the following test for finding whether the Second Injury Fund is liable for permanent partial disability benefits:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity

injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for.

- Permanent Total Disability - Mo. Rev. Stat. §287.020.6 (2005) states that the term "total disability" means an inability to return to any employment and not merely mean the inability to return to the employment in which the employee was engaged at the time of the accident. The phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo. App. S.D. 1982). The test for permanent total disability is given the employee's situation and condition, whether he is competent to compete in the open labor market. Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo.App.E.D. 1992). Total disability means the "inability to return to any reasonable or normal employment." Brown v. Treasurer of Mo., 795 S