Willard Haag v. Goodyear Tire & Rubber/Wingfoot Commercial Tire Systems, LLC

Having rendered the foregoing clarifications and comments, we attach and incorporate the award and decision of Administrative Law Judge Karen Wells Fisher, issued July 25, 2011, by this reference.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: Injury No. 03-042115 - May 12, 2003; Injury No. 03-125432 - August 22, 2003.
5. State location where accident occurred or occupational disease was contracted: Injury No. 03-042115 - Newton County, Missouri; Injury No. 03-125432 - Jasper County, Missouri.
6. Was above Employee in employ of above Employer at time of alleged accident or occupational disease? Injury No. 03-042115 - Yes; Injury No. 03-125432 - Yes.
7. Did Employer receive proper notice? Injury No. 03-042115 - Yes; Injury No. 03-125432 - Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Injury No. 03-042115 - Yes; Injury No. 03-125432 - Yes.
9. Was claim for compensation filed within time required by Law? Injury No. 03-042115 -

Yes; Injury No. 03-125432 - Yes.

1. Was Employer insured by above insurer? Injury No. 03-042115 - Yes; Injury No. 03125432 - Yes.
2. Describe work Employee was doing and how accident occurred or occupational disease contracted: Injury No. 03-042115 - Working to loosen bolts on tandem alignment; Injury No. 03-125432 - Moving tractor wheel from tractor to service truck.
3. Did accident or occupational disease cause death? No.
4. Part(s) of body injured by accident or occupational disease: Low back and hip.
5. Nature and extent of any permanent disability: Permanent total disability.
6. Compensation paid to date for temporary disability: Injury No. 03-042115 - \0; Injury No. 03-125432-\ 176,225.87.
7. Value necessary medical aid paid to date by Employer/insurer? \$227,824.96.
8. Value necessary medical aid not furnished by Employer/insurer? $\ 0.
9. Employee's average weekly wages: Injury No. 03-042115 - \$793.05; Injury No. 03125432 - \$904.24.
10. Weekly compensation rate: Injury No. 03-042115 - \$528.70 (TTD and PTD)/\$340.12 (PPD); Injury No. 03-125432 - \$602.83 (TTD and PTD)/\$347.05 (PPD).
11. Method wages computation: By stipulation.

1. Amount of compensation payable:

a. Unpaid medical expenses: $\ 0.

b. Employer and Insurer are ordered to provide future medical care (see award).

c. $\quad \ 602.83 per week to be paid by Employer and Insurer to Viola Louise Haag and

Brittney Michelle Haag, beginning June 2, 2009 and weekly thereafter for the lifetime of the longer to live of Viola Louise Haag or Brittney Michelle Haag.

1. Second Injury Fund liability: No
2. Future requirements awarded: See above.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. Any past due compensation shall bear interest as provided by law.

1. 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: Bruce A. Copeland

Employee: Willard R. Haag

Injury Numbers: 03-125432 and 03-042115

Dependents: Viola Louise Haag and Brittney Michelle Haag

Before the

Employer: Goodyear Tire \& Robber/Wingfoot

Commercial Tire Systems, LLC

Additional Party: Second Injury Fund

Insurer: Liberty Mutual Insurance Company

Hearing Date: March 29, 2011

The Court has considered and hereby adopts as its own the proposed award as submitted by claimant.

The above-referenced workers' compensation claims were consolidated for hearing and were heard before the undersigned Administrative Law Judge on March 29, 2011. Mr. Haag appeared in person and with his attorney, Bruce A. Copeland. Employer and Insurer appeared through their attorney, James K. Blickhan. The Second Injury Fund appeared through its attorney, Christina M. Hammers. Prior to going on the record the parties agreed that the following issues needed to be determined by this Court:

1. The nature and extent of Willard R. Haag's permanent disability resulting from both the May 12, 2003 and August 22, 2003 injuries.
2. Whether Willard R. Haag sustained injuries that will require additional or future medical care in order to cure and relieve him from the effects of such injuries, and if so, the Employer's and Insurer's obligations to provide and pay for same.

1. Whether the Treasurer of Missouri, as custodian of the Second Injury Fund, is liable for payment of disability compensation resulting from either the May 12, 2003 or the August 22, 2003 injury.
2. The dependency status, and resulting entitlement to disability benefits, of Viola Louise Haag and Brittney Michelle Haag under Schoemehl v. Treasurer, 217 S.W.3d 900 (Mo. banc. 2007).
3. Whether Employer/Insurer should be liable for the whole cost of proceedings under $\S 287.560$ and, if so, in what amount.
4. Whether the Employer/Insurer are entitled to a credit of $\ 20,956.19 as overpayment of TTD benefits.

The Parties stipulated to the following facts:

1. On both May 12, 2003, and August 22, 2003, Goodyear Tire \& Rubber/Wingfoot Commercial Tire Systems, LLC ("Employer") was an employer operating under and subject to the Missouri Workers' Compensation Law and on these dates was fully insured by Liberty Mutual Insurance Company ("Insurer").
2. On both May 12, 2003, and August 22, 2003, Willard R. Haag ("Haag") was an employee of the Employer and was working under and subject to the Missouri Workers' Compensation Law.
3. On both May 12, 2003, and August 22, 2003, Haag sustained injuries as a result of accidents which arose out of and in the course and scope of his employment with Employer.

1. The above-referenced employment was at Employer's 233 Glendale Road, Joplin, MO 64804 location. Haag's May 12, 2003, accident occurred at Employer's address. Haag's August 22, 2003, accident occurred on a service call in rural Jasper County, Missouri. The parties agree to venue in Newton County, Missouri. Venue is proper.
2. Employer was properly notified of Haag's May 12, 2003, and August 22, 2003, injuries as required by Section 287.420, RSMo.
3. Haag's claims for compensation for both accidents were filed within the time prescribed by Section 287.430, RSMo. Specifically:

a. Haag filed his Claim for Compensation (Claim \#03-125432) for the injuries he had sustained in the August 22, 2003, accident on December 16, 2003; and

b. Haag filed his Claim for Compensation (Claim \#03-042115) for the injuries he had sustained in the May 12, 2003, accident on April 20, 2005.

1. Both of Haag's claims (\#03-042115 and \#03-125432) have been pending before the Division continuously since the dates they were filed by Haag.
2. As a result of Haag's May 12, 2003, injuries, Employer and Insurer provided to Haag temporary total disability benefits in the total amount of $\ 0.00.
3. As a result of Haag's August 22, 2003, injuries, Employer and Insurer have provided to Haag temporary total disability benefits in the total amount of $\ 176,225.87, with the last payment being for the period of time ending June 1, 2009.

1. Employer and Insurer have provided medical treatment to Haag for the injuries sustained by Haag on May 12, 2003, and August 22, 2003. The value of the necessary medical aid paid to date by Employer/Insurer for such injury totals $\ 227,824.96.
2. Haag's average weekly wages prior to the May 12, 2003, injury date were $\ 793.05.
3. Haag's average weekly wages prior to the August 22, 2003, injury date were $\ 904.24.
4. The weekly compensation rates for Haag's May 12, 2003, injury date are: $\ 528.70 (TTD \& PTD) AND $\ 340.12 (PPD).
5. The weekly compensation rates for Haag's August 22, 2003, injury date are: $\ 602.83 (TTD \& PTD) and $\ 347.05 (PPD).
6. Haag makes no claim for unpaid past medical care or expenses.
7. Haag obtained maximum medical improvement on June 1, 2009.
8. Should permanent total disability benefits be ordered, they should commence retroactive to June 2, 2009.

Willard R. Haag testified in person at the hearing. I found his testimony to be both credible and persuasive and accept same as true and accurate. In addition to his testimony he offered the following exhibits which were admitted into evidence:

A. Norbert T. Belz, M.D. IME (including all records reviewed by Dr. Belz) and CV

B. Phil