Delton Shepherd v. K & T Enterprises, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-033378

Employee: Delton D. Shepherd

Employer: K \& T Enterprises, Inc. (Settled)

Insurer: Missouri Employers Mutual Insurance Company (Settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated February 4, 2013. The award and decision of Administrative Law Judge L. Timothy Wilson, issued February 4, 2013, is attached and incorporated by this reference.

The Commission further approves and affirms 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 1st day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Delton D. Shepherd

Injury No. 09-033378

Dependents: N/A

Employer: K \& T Enterprises, Inc. (Settled)

Insurer: Missouri Employers Mutual Insurance Company (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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

Hearing Date: December 5, 2012

Checked by: LTW

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: May 14, 2009
5. State location where accident occurred or occupational disease was contracted: Morgan County, Missouri (The parties agree to venue lying in Greene 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: While engaged in employment with the Employer and attempting to remove guttering, Employee began to slip from the roof and fell approximately eight feet from the edge of the roof, landing on both feet. Although landing on both feet, he landed more on the left foot than the right foot. As a consequence of this work incident Employee sustained an injury to his left lower extremity, which involved a complex severely comminuted calcaneus fracture extending into the subtaler joint, with some minimal extension into the calcaneal joint without displacement.
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: Left Lower Extremity (BAW)
14. Nature and extent of any permanent disability: 33 % to BAW
15. Compensation paid to-date for temporary disability: $\ 10,754.82
16. Value necessary medical aid paid to date by employer/insurer? $\ 33,820.89

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Not Identified
3. Weekly compensation rate: $\ 252.63 (TTD / PTD / PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable: N/A (Employee and Employer / Insurer entered into a Stipulation for Compromise Settlement.)
2. Second Injury Fund liability: Yes

Weeks of permanent partial disability from Second Injury Fund: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: Yes.

Employee is entitled to permanent total disability benefits ( $\ 252.63 per week) for his lifetime. There is not a weekly differential between permanent partial disability compensation paid by Employer / Insurer and permanent total disability compensation paid by Second Injury Fund. Therefore, in light of Employee reaching maximum medical improvement on May 3, 2010, and Employer / Insurer responsible for 132 weeks of permanent partial disability compensation, payment of permanent total disability compensation by the Second Injury Fund shall take into consideration the 132 weeks of permanent partial disability compensation paid by the Employer. ${ }^{1}$

TOTAL: \$252.63 PER WEEK (LESS 132 WEEKS OF PPD OWED BY EMPLOYER/INSURER) FOR EMPLOYEE'S LIFETIME, EFFECTIVE AS OF MAY 3, 2010.

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Darren Morrison, Esq.

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[^0]: ${ }^{1}$ It is understood that the Employee and Employer / Insurer entered into a Stipulation for Compromise Settlement based upon a compromised settlement, wherein the parties agreed that the Employer / Insurer would pay 110.8 weeks of permanent partial disability compensation. However, the undersigned is not bound by this settlement agreement in the adjudication of this claim, and determined that the work injury caused the Employee to sustain 132 weeks of permanent partial disability.

Employee: Delton D. Shepherd

Injury No. 09-033378

Dependents: N/A

Employer: K \& T Enterprises, Inc. (Settled)

Insurer: Missouri Employers Mutual Insurance Company (Settled)

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on December 5, 2012.

The employee appeared personally and through his attorney, Darren Morrison, Esq. The employer and insurer were not part of the evidentiary hearing, having previously entered into a stipulation for compromise settlement with the employee, resulting in approval by an administrative law judge on or about September 19, 2011. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about May 14, 2009, K \& T Enterprises, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Missouri Employers Mutual Insurance Company.

(2) On the alleged injury date of May 14, 2009, Delton D. Shepherd was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about May 14, 2009, the employee sustained an accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced employment and accident occurred in Morgan County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident the employee's average weekly wage was sufficient to allow a compensation rate of $\ 252.63 for temporary total disability compensation, permanent partial disability compensation and permanent total disability compensation.

(8) Temporary disability benefits were provided to the employee in the amount of $\ 10,754.82.

(9) The employer and insurer provided medical treatment to the employee, having paid $\ 33,820.89 in medical expenses.

(10) The employee and employer / insurer entered into a stipulation for compromise lump sum settlement for $\ 28,000.00 based on approximate disability of 27.7 percent to the body as a whole, with the employer and insurer remaining responsible for future medical care. An administrative law judge with the Division of Workers' Compensation approved this Stipulation for Compromise Settlement on or about September 19, 2011, which resolved the underlying claim filed against the employer.

(11) The employee, Delton Shepherd, reached maximum medical improvement relative to this claim on May 3, 2010.

The sole issue to be resolved by hearing is as follows:

(1) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

The employee testified at the hearing in support of his claim. In addition, the employee offered for admission the following exhibits:

Exhibit A Medical Records

Exhibit B ...........Stipulation for Compromise Settlement in Injury No. 09-033378

Exhibit C Deposition of P. Brent Koprivica, M.D.

Exhibit D Deposition of Dale Halfaker, Ph.D.

Exhibit E Deposition of Michael K. Lala, M.A.

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses. However, the Second Injury Fund offered for admission the following exhibit:

Exhibit I Deposition of Delton Shepherd

The exhibit was received and admitted into evidence.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The workers' compensation law for the State of Missouri underwent substantial change on or about August 28, 2005. The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

Background

The employee, Delton Shepherd, is 53 years of age, having been born on January 19, 1960. Mr. Shepherd resides in Sunrise Beach, Missouri.

Mr. Shepherd graduated from high school in 1978. Although he graduated from high school, he received low grades, which he characterized as Ds and Fs. He noted that he was in special education classes from seventh grade to ninth grade. He was then mainstreamed into classes for "slow people" in high school. Also, Mr. Shepherd indicated that he has always had difficulty reading; he is not able to read a newspaper and not able to use a computer. His computer skills are marginal, at best.

As a child, Mr. Shepherd's family moved frequently, which caused him to relocate to different cities. In explaining his childhood, Mr. Shepherd noted that his father was a carpenter, and the family would move whenever his father needed to relocate in order to secure employment.

Mr. Shepherd's employment is varied, and relates primarily to working in labor oriented occupations. This employment history includes factory work as a production worker in an aluminum window and door factory; work as a stocking clerk in a grocery store; landscaping work as a sod layer; welding and fabricating work as a steel fabricator. Mr. Shepherd obtained certification as a welder, but it took him approximately six attempts in order to secure this certification because of his learning disability.

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