Jonathan Sage v. Talbot Industries/Leggett & Platt, Inc.

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 04-148860

Employee: Jonathan Sage

Employers: Talbot Industries/Leggett \& Platt, Inc.

Insurers: Fidelity \& Guaranty Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we modify the 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.

In White v. Univ. of Mo., 375 S.W.3d 908 (Mo. App. 2012), the court held that the Commission exceeded its powers in declaring that a dependent's claim for permanent total disability benefits "qualifies for application of the Schoemehl case," because the employee was still living at the time the Commission issued its award. Id. at 910, 913. The White decision makes clear that the Commission is limited to making a finding of dependency where the employee is still living.

Pursuant to White, we must modify the award of the administrative law judge as to the issue whether employee's wife will be entitled to receive his permanent total disability benefits under Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007).

Accordingly, we vacate the administrative law judge's findings that "[I]n the event of death of Claimant, Jonathan Todd Sage, that Lynne Sage shall be entitled to the benefits for permanent total disability until her death," and "[I]n the event of the death of the claimant, claimant's wife Lynn Sage shall be entitled to the benefits of permanent total disability until her death." See Award, page 7. Instead, we find that on June 21, 1991, employee was married to Lynn Sage, and that the two remained married through the date of hearing in this matter on February 2, 2012. We conclude that Lynn Sage was employee's "dependent," as that term is defined in § 287.240(4)(a) RSMo, at the relevant time for purposes of Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007). But because employee is still living, Lynn Sage's right to receive benefits pursuant to Schoemehl "remains contingent, and cannot be adjudicated at this time." White, 375 S.W.3d at 912.

We modify the award of the administrative law judge as to the issue whether employee's wife will be entitled to receive permanent total disability benefits under Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo. 2007).

The award and decision of Administrative Law Judge Karen Wells Fisher, issued September 19, 2012, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $9^{\text {th }}$ 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:

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: FEBRUARY 2004 AND DECEMBER 16, 2005
5. State location where accident occurred or occupational disease was contracted: NEWTON COUNTY, MO
6. Was the above employee in employ of above employer at the 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 insured? YES
11. Describe work employee was doing and how accident occurred or occupational disease contracted. PULLING WIRE PULLED HIS BACK ; FELL FOUR FEET INTO A PIT ANDLANDED ON HIS BACK ON A BEAM
12. Did accident or occupational disease cause death? NO
13. Part(s) of body injured by accident or occupational disease BACK AND BODY AS A WHOLE
14. Nature and extent of any permanent partial disability: N/A
15. Compensation paid to date for temporary disability : 2004 case -- $\ 0.00

2005 case -- $\ 27,301.93

1. Value of necessary medical aid paid to date by employer/insurer? 2004 case -- \$16,322.53

2005 case -- \$95,782.98

1. Value of necessary medical aid not furnished by employer/insurer? $\ 11,209.45

The above cases were presented for final hearing on February 2, 2012. The claimant, Jonathan Todd Sage, appeared in person and by his attorney, Charles Buchanan. The employer and insurer appeared by their attorney, Ronald G. Sparlin. The Second Injury Fund appeared by Assistant Attorney General Todd T. Smith.

The parties narrowed the issues presented for determination by stipulating to the following facts:

- Talbot Industries was an employer under the workers' compensation law at the time of both alleged accidents;

- The claimant was an employee of Talbot Industries on both alleged dates of injury;

- Both of claimant's alleged accidents occurred in Newton County, Missouri;

- On December 16, 2005 the claimant sustained an accident arising out of and in the course of his employment;

- The claimant gave proper notice for the alleged 2005 injury;

- Both claims for compensation were timely filed;

- For the 2004 claim the temporary total disability/permanent total disability rate is $\ 527.42 and the permanent partial disability rate is $\ 347.05;

- For the 2005 claim the temporary total disability/permanent total disability rate is $\ 529.40 and the permanent partial disability rate is $\ 365.08;

- The employer paid medical expenses on the 2004 case of $\ 16,322.53 and $\ 0 in temporary benefits;

- The employer paid medical expenses on the 2005 case of $\ 95,782.98 and $\ 27,301.93 in temporary benefits.

The issues to be determined were as follows:

- Whether, regarding the 2004 claim, the claimant sustained an injury by accident arising out of and in the course of his employment;

- Whether, regarding the 2004 claim, the claimant gave the employer notice as required by the statute;

- Whether the 2004 and/or 2005 alleged claims caused the injuries and medical conditions complained of;

- Whether the employer is liable for certain past medical expenses;

- Whether the claimant is entitled to past temporary total disability benefits;

- The nature and extent of any permanent partial disability sustained as a result of the 2004 and 2005 claims;

- Whether the claimant is permanently and totally disabled, and if he is, whether that results from the last injury alone or a combination of the last injury and prior disabilities;

- Whether the claimant is entitled to future medical treatment;

- The liability of the Second Injury Fund;

- The entitlement of claimant's spouse to benefits under the provisions of the Schoemehl decision.

Claimant offered the following exhibits at trial which were admitted into evidence. Claimant also testified on his own behalf and called the following witnesses to testify: Eric Thurmond, Ron Bowen, Jared Sage, Toney Sage, Barry Bowen, Lynn Sage.

Exhibit A Claims for Compensation

Exhibit B1 4/29/10 deposition of Dr. Koprivica

Exhibit B2 11/21/11 deposition of Dr. Koprivica

Exhibit C Wilbur Swearingin deposition

Exhibit D Dr. Parmet deposition

Exhibit E Dr. Paul deposition

Exhibit F Dr. Adams records

Exhibit G Dr. Karges records

Exhibit H Dr. Lampert records

Exhibit I Freeman Health System (Joplin) records

Claimant identified Exhibit CC as the itemization of benefits he is seeking. It includes $\ 2043.75 in past TTD for the period June 30, 2006-July 27, 2006; \$45,207.28 in past TTD for the period January 11, 2007-September 4, 2008; past permanent total disability benefits of $\ 93,202.50 from the date of the hearing back to September 5, 2008; past medical bills of $\ 11,591.71; open future medical treatment; and future permanent total disability benefits.

Employer/insurer offered the following exhibits at trial which were admitted into evidence.