George Sutton v. The Doe Run Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge denying compensation 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 with this supplemental opinion.

Affirmative credibility findings Employee, in his brief, notes that the administrative law judge summarized the evidence, but declined to state which (if any) medical or vocational opinions he found to be credible.

Section 287.460.1 mandates that an award in a contested workers' compensation case be accompanied by findings of fact and conclusions of law. The Missouri Supreme Court has declared that such statutory requirements contemplate an unequivocal affirmative finding as to what the pertinent facts are.

Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529, 533 (Mo. App. 2008) (citations omitted).

We find persuasive the opinions from Dr. Margolis and the vocational expert Timothy Lalk (and we so find) that employee's permanent and total disability results from the effects of the injuries employee sustained on January 28, 2001, in combination with employee's preexisting conditions of ill.

We agree with the administrative law judge that, although employee is permanently and totally disabled, employee is unable to meet his burden in this case of proving the Second Injury Fund is liable for permanent total disability benefits. This is because each of the experts to address the topic included the effects of a subsequent January 28, 2001, injury in their opinions finding employee to be permanently and totally disabled. As the administrative law judge noted, employee voluntarily dismissed his claim against the

Second Injury Fund referable to the January 2001 injury as part of his settlement with employer in Injury No. 99-175488, and thus it cannot be considered now.

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

The award and decision of Administrative Law Judge Gary L. Robbins, issued October 22, 2012, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $3^{\text {rd }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: | George T. Sutton |

Employer: The Doe Run Company

Additional Party: Second Injury Fund

Insurer: Pacific Employers Insurance Company

Appearances: Robert W. Meyers, attorney for employee.

Gregg N. Johnson, attorney for Second Injury Fund.

Hearing Date: July 18, 2012 Checked by: GLR/rm

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? February 3, 1999.
5. State location where accident occurred or occupational disease contracted: Iron 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.

1. Was there an accident or incident of occupational disease under the Law? Yes.
2. Date of accident or onset of occupational disease? December 19, 2000.
3. State location where accident occurred or occupational disease contracted: Iron County, Missouri.
4. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
5. Did employer receive proper notice? Yes.
6. Did accident or occupational disease arise out of and in the course of the employment? Yes.
7. Was claim for compensation filed within time required by law? Yes.
8. Was employer insured by above insurer? Yes.
9. Describe work employee was doing and how accident happened or occupational disease contracted: The employee developed bilateral wrist problems due to the requirements of his job.
10. Did accident or occupational disease cause death? No.
11. Parts of body injured by accident or occupational disease: Bilateral wrists.
12. Nature and extent of any permanent disability: The employee settled his claim with the employer-insurer for 20 % permanent partial disability of each wrist.
13. Compensation paid to date for temporary total disability: $\ 0.
14. Value necessary medical aid paid to date by employer-insurer: $\ 0.
15. Value necessary medical aid not furnished by employer-insurer: $\ 0.
16. Employee's average weekly wage: $\ 569.18.
17. Weekly compensation rate: The employee's rate for temporary total and permanent total disability is $\ 379.45 per week. His rate for permanent partial disability is $\ 314.26 per week.
18. Method wages computation: By agreement.
19. Amount of compensation payable: See Award.

1. Second Injury Fund liability: See Award.
2. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: Robert W. Meyers.

1. Are any benefits awarded herein? No.
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? January 28, 2001.
5. State location where accident occurred or occupational disease contracted: Iron 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 developed hearing loss due to noise exposure at his workplace.
12. Did accident or occupational disease cause death? No.
13. Parts of body injured by accident or occupational disease: Hearing loss.

On July 18, 2012, the employee, George T. Sutton, appeared in person and with his attorney, Robert W. Meyers for a hearing for final awards. The employer-insurer was not present at trial as they already settled their cases with the employee. Assistant Attorney General Gregg N. Johnson represented the Second Injury Fund. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The Doe Run Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Pacific Employers Insurance Company.
2. On February 3, 1999, George T. Sutton was an employee of The Doe Run Company and was working under the Workers' Compensation Act.
3. On February 3, 1999, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 569.18. His rate for temporary total and permanent total disability is $\ 379.45 per week. His rate for permanent partial disability is $\ 294.73 per week.
7. The employee's injury was medically causally related to the accident of occupational disease.

8.