Joe Lacy v. Ken-Mo Agric Center

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-129301

Employee: Joe Lacy, deceased

Dependent: Shirley Lacy, widow

Employer: Ken-Mo Agric Center (Settled)

Insurer: Travelers 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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated March 25, 2013. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued March 25, 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 $6^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

CONCURRING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

I write this concurring opinion to voice my disagreement with the outcome of Schoemehl v. Treasurer of State of Missouri, 217 S.W.3d 900 (Mo. en banc 2007) and the cases that have followed.

In cases where the ruling of Schoemehl applies, "when an injured employee dies from causes unrelated to the work injury, the employee's dependents assume his or her place to become the 'employee' for purposes of receiving permanent total disability benefits." Spradling v. Treasurer of State of Missouri, No. SD 31907 (Mo. App. S.D. 2013); citing Schoemehl at 901-902. This ruling creates what I agree is "the unreasonable result of awarding lifetime benefits to surviving dependents where the employee's death was unrelated to the work injury, when the surviving dependents would have only received benefits during the time of their dependency if the employee's death had been caused by the work injury." Spradling (Lynch, P.J., concurring). Not only does this create a windfall to dependents of employees whose deaths are unrelated to the work injury compared to the dependents of employees whose deaths are caused by the work injuries, but this also creates an undue burden on industries for deaths resulting from natural causes.

I believe that Schoemehl and its progeny are dispositive on this issue, and I lament that it is our constitutional obligation to follow its ruling. Mo. Const. Art. V, § 2 (1945). Therefore, I must reluctantly join in the decision to affirm the administrative law judge's award of lifetime permanent total disability benefits to employee's dependent, Shirley Lacy, subject to the conditions of $\S 287.240(4)$.

Employee: Joe Lacy (deceased) Injury No. 03-129301

Dependents: Shirley Lacy

Employer: Ken-MO Agric Center (settled)

Additional Party: Second Injury Fund

Insurer: Travelers (settled)

Appearances: James Turnbow, attorney for the claimant, employee's widow Shirley Lacy. Jon Lintner, attorney for Second Injury Fund.

Hearing Date: December 20, 2012

Checked by: LCK/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? On or about December 1, 2003.
5. State location where accident occurred or occupational disease contracted: Dunklin 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. Describe work employee was doing and how accident happened or occupational disease contracted: The employee breathed chemicals, fertilizer and grain dust while performing his job related duties.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Body as a whole referable to the lungs.
4. Nature and extent of any permanent disability: 49% permanent partial disability of the body as a whole referable to the lungs.
5. Compensation paid to date for temporary total disability: Undetermined.
6. Value necessary medical aid paid to date by employer-insurer: Undetermined.
7. Value necessary medical aid not furnished by employer-insurer: N/A.
8. Employee's average weekly wage: 324.00.
9. Weekly compensation rate: 216.00.
10. Method wages computation: By agreement.
11. Amount of compensation payable: Permanent total disability against the Second Injury Fund.
12. Second Injury Fund liability: Permanent total disability.
13. Future requirements awarded: See Rulings of Law.

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: James M. Turnbow.

On December 20, 2012, the claimant, Shirley Lacy, who is the employee's widow, appeared in person and with her attorney, James M. Turnbow for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General, Jon Lintner. 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. Ken-MO Agric Center was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Travelers.
2. On or about December 1, 2003, Joe Lacy, was an employee of Ken-MO Agric Center and was working under the Workers' Compensation Act.
3. On or about December 1, 2003, the employee sustained an occupational disease arising out of and in the course of his employment.
4. The employer had notice of the employee's occupational disease.
5. The employee's claim for compensation was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 324.00. The rate of compensation for permanent partial disability is $\ 216.00 per week.
7. The employee's injury was medically causally related to the occupational disease.
8. The employer-insurer furnished and paid an undetermined amount of medical aid.
9. The employer-insurer paid an undetermined amount of temporary disability benefits. The date of the employee's maximum medical improvement was January 25, 2006.
10. The parties stipulated that the employee's death on January 25, 2006, was caused by a medical condition unrelated to the compensable occupational disease.

1. Liability of the Second Injury Fund for permanent total disability or permanent partial disability.
2. Dependency under Schomehl v. Treasurer of the State of Missouri.
3. Distribution of permanent total disability benefits under Schomehl v. Treasurer of the State of Missouri or permanent partial disability benefits under Section 287.230 RSMo.

A. Death Certificate of the employee.

B. Deposition of Dr. Volarich including his curriculum vitae and medical report.

C. Deposition of James England including his vocational rehabilitation evaluation and curriculum vitae.

D. Deposition of Hubert Snipes.

E. Medical records of Dr. Hussain.

F. Medical reports of Dr. Jacobs.

G. Medical records of Dr. Quenan.

H. Medical records of Northeast Arkansas Clinic.

I. Medical records of Dr. Smith.

J. Medical records of Regional Medical Center of Northeast Arkansas.

K. Medical records of St. Bernard's Medical Center.

L. Medical records of Dr. Sinasa.

M. Medical records of Twin Rivers Medical Center.

Second Injury Fund Exhibits:

1. Deposition of Joe Lacy.

Judicial Notice of the contents of the Division's file for the employee was taken.

WITNESS: Shirley Lacy.

BRIEFS: The claimant filed her brief on January 22, 2013. The Second Injury Fund filed its brief on February 7, 2013.

Shirley Lacy, the employee's widow, testified that she lives in Kennett, and has lived there for 40 years. She was born on August 30, 1938. The employee was born in 1934. The employee graduated from high school, was in the Army and served in France for about a year. He was honorably discharged. She was married to the employee for 53 years. They had one child, a daughter, who is now 50 years old. Her daughter is married with three children. The employee was the breadwinner for his family and worked for one company for a number of years. Ms. Lacy did not work outside of the home while they were married. Shirley Lacy was married to and lived with the employee up until his death on January 25, 2006. She was dependent upon the employee and was his only dependent. Ms. Lacy is now working full time and receives social security benefits based upon employee's employment. The employee was the only person she has been married to. The employee's hobbies included hunting and fishing. He was a full time preacher on Sunday morning, Sunday evening, and Wednesday evening.

The employee's deposition testimony was taken on November 18, 2004. The employee lived with his wife, Shirley Lacy. He was a warehouse manager at the employer the whole time he was there and worked until he had to stop due to his age, heart and lung problems. His major health conditions were his heart, his lungs and being a diabetic.

Mrs. Lacy testified that the employee started working for Ken Mo Ag Center in 1963. The employee worked there for about 40 years until he stopped working in November of 2003 due to his health. He became warehouse manager and was a working manager. He worked with fertilizer including mixing it, cleaning wheat and rice, and cleaning and loading seed. His job

Enployee: Joe Lacy (deceased)

Injury No. 03-129301

involved some lifting. The employee was exposed to dust and chemicals the whole time he worked at the employer. Most days when he got home he was covered from head to toe with dust. The dust got into his throat and lungs, and at times he nearly choked to death coughing things up. The employee had several heart attacks and the first one was around 1990. The employee was treated by Dr. White.

On August 25, 1990, the employee was admitted to St. Bernard’s Regional Medical Center. A cardiac catheterization showed a severe 95-99% lesion in the LAD and a 35-40% right coronary circumflex disease. The 99% LAD lesion was reduced to 30-40% residual. The overall ejection fraction was estimated to be 40-45%. He was discharged on September 5 with a diagnosis of anterior myocardial infarction, hypertension and hyperlipidemia.

On December 11, 1990, the employee told Dr. White that he had returned to work and was driving his fork lift, but not performing any lifting. The employee’s wife felt like he had some chest pain and shortness of breath that he was not reporting. Dr. White stated his right ventricular function was impaired and prescribed medications.

Mrs. Lacy testified that the employee missed about four months from work after the heart attack and when he returned to work he had trouble breathing after walking about 100 yards. He just performed light work. His breathing got worse from 1990 on.

In his d