George Sutton v. The Doe Run Company

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 this case, and thus it cannot be considered now.

We note that certain aspects of the January 2001 accident and injury raise the question whether it was a "natural consequence" of employee's right knee injury. See Cahall v. Riddle Trucking, 956 S.W.2d 315, 322 (Mo. App. 1997)("Where an employee sustains an injury arising out of and in the course of his employment, every natural consequence that flows from the injury, including a distinct disability in another area of the body, is compensable as a direct and natural result of the primary or original injury").

Specifically, it appears that employee's fall in January 2001 was at least partially the product of his slipping off the crutches he was using during his treatment for the right knee injury claimed herein.

But employee, in his brief, does not argue or ask us to consider a "natural consequence" theory, and the experts who testified did not identify the January 2001 injury as a natural consequence of the right knee injury. Given these circumstances, and because we agree with the administrative law judge's analysis and reading of the expert opinions, we conclude employee has failed to meet his burden of proving his entitlement to permanent total disability benefits from the Second Injury Fund in this matter.

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.

We approve and affirm 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.

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:

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.