Sylvester Lewis v. National Vendors/Crane Co.

(Affirming Award and Decision of the Administrative Law Judge with Supplemental Opinion)

Injury No.: 07-133175

Employee: Sylvester Lewis

Employer: National Vendors/Crane Co. (Settled)

Insurer: Ace American Insurance Co. (Settled)

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 $\S 287.480 RSMo. { }^{1}$ We have read the briefs, heard the parties' arguments, reviewed the evidence, and considered the whole record. We find 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, we affirm the award and decision of the administrative law judge by this supplemental opinion.

The Second Injury Fund urges us to grant to it a credit against its permanent total disability liability for periods during which employee was receiving unemployment compensation. The Second Injury Fund argues that allowing an individual to receive unemployment compensation benefits and permanent total disability benefits for the same period is not good public policy. We are not unsympathetic to the Second Injury Fund's argument. However, we are bound to apply the law as the legislature enacted it. To that end we must construe the provisions of the Workers' Compensation Law (Law) strictly. ${ }^{2}$

"Strict construction means that a statute can be given no broader application than is warranted by its plain and unambiguous terms. The operation of the statute must be confined to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. A strict construction of a statute presumes nothing that is not expressed." ${ }^{3}$

We find no language in the Law that allows us to deny permanent total disability benefits for periods during which employee received unemployment compensation. If we were to apply the Law as if it contained such language as urged by the Second Injury Fund, we would be extending the Law to matters not affirmatively pointed out by its terms in violation of the legislature's mandate that we construe the statute strictly.

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

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri (2007), unless otherwise indicated.

${ }^{2}$ See § 287.800 RSMo ("Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly.").

${ }^{3}$ Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App. 2010) (internal citations omitted).

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.

The March 29, 2013, award and decision of Administrative Law Judge Linda J. Wenman is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $26^{\text {th }}$ 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:

Secretary

I write this concurring opinion to voice my concerns with the outcome required in this case.

Section 287.170.3 states that "An employee is disqualified from receiving temporary total disability during any period of time in which the claimant applies and receives unemployment compensation." This is consistent with the definition of total disability (the "inability to return to any employment") ${ }^{4}$ and the requirements under the Missouri Employment Security Law for receipt of unemployment benefits (claimant must be "able and available" to work). ${ }^{5}$ Quizzically, the Missouri Workers' Compensation Law only prevents this double-dipping of benefits for temporary total disability (TTD) and unemployment compensation. No statutory provisions exist to address an employee's simultaneous receipt of permanent total disability benefits (PTD) and unemployment compensation.

Based on my understanding of the Workers' Compensation Law, I can see no reason why the legislature would have intended to allow a claimant PTD benefits and unemployment compensation for the same time period. Just like TTD, PTD is also awarded when an employee is unable to return to any employment. The major difference between the two is that TTD is awarded when the disability is temporary or up until the employee reaches maximum medical improvement, whereas PTD is awarded after the employee reaches maximum medical improvement. ${ }^{6}$ It does not logically follow that an employee with an injury so disabling as to prevent them from working, with no reasonable expectation for improvement, should receive a full PTD award for the same period of time that claimant previously claimed they were able to work and received unemployment benefits.

This is not to say that I believe an employee in a case like this is necessarily trying to commit fraud by collecting both PTD and unemployment compensation. I recognize that in many cases, while a workers' compensation claim is pending, the claimant may still be earnestly trying to obtain employment. In fact, failed attempts to seek a job may contribute to an eventual finding of PTD which includes the time period for which the claimant received unemployment benefits. ${ }^{7}$ However, it still does not follow that the claimant should receive the full amount of both benefits for the same time period.

In summary, I strongly believe the legislature should have included a provision similar to that in § 287.170.3 to address the simultaneous receipt of PTD and unemployment benefits. It is not good public policy to allow administrative determinations to be so

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[^0]: ${ }^{4}$ RSMo § 287.020.6

${ }^{5}$ RSMo § 288.040.1(2)

6 "Medical maximum improvement" is a term used to describe "when an employee's condition has reached the point where further progress is not expected." Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 910 (Mo. App. E.D. 2008).

${ }^{7}$ See Palmentere Bros. Cartage Service v. Wright, --- S.W.3d ---, 2013 WL 4714307 *6 (Mo. App. W.D. 2013); Reeves v. Midwestern Mortg. Co., 929 S.W.2d 293, 297 (Mo. App. E.D. 1996) (The fact that claimant tried to resume work after her injury "does not mitigate against finding that she was totally disabled".).

opposite from each other, such as when the Division of Employment Security finds a claimant/employee to be able and available to work while the Division of Workers' Compensation finds a claimant/employee to be permanently unable to work.

However, I reluctantly agree with the majority that under strict construction ${ }^{8}$ and the Workers' Compensation Law as it stands today, the Commission does not have the authority to deny a PTD award during a time when the injured employee received unemployment compensation. Therefore, I must join in the decision to affirm the administrative law judge's award.

James G. Avery, Jr., Member

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[^0]: ${ }^{8}$ See Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App. 2010).

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: November 7, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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: Due to the repetitive nature of his work, Employee developed a right trigger thumb.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right thumb
14. Nature and extent of any permanent disability: 15 % PPD referable to the right thumb at the 60 week level previously paid by Employer. PTD benefits from SIF.
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer? \$5,247.13 previously paid by Employer.

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Sufficient to produce rates listed below.
3. Weekly compensation rate: $\$ 400.00 / \ 389.04
4. Method wages computation: Stipulated

1. Amount of compensation payable:

9 weeks of permanent partial disability from Employer

Previously paid by Employer

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential of $\ 10.96 payable by SIF for 9 weeks beginning

March 5, 2010, and $\ 400.00 thereafter for Claimant's lifetime

TOTAL:

TO BE DETERMINED

1. Future requirements awarded: N/A

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 % of all payments in favor of the following attorney for necessary legal services rendered to the claimant: David Plufka

Employee: Sylvester Lewis

Dependents: N/A

Employer: National Vendors / Crane Co. (settled)

Additional Party: Second Injury Fund

Insurer: Ace American Insurance Co. (settled)

Injury No.: 07-133175

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: LJW

A Second Injury Fund hearing for final award was held regarding the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on January 29, 2013. The case was taken under submission with receipt of post-trial briefs on March 8, 2013. Attorney David Plufka represented Sylvester Lewis (Claimant). Assistant Attorney General Dustin Mayer represented the Second Injury Fund (SIF).

On April 28, 2010, Claimant and National Vendors / Crane Company (Employer) reached a settlement regarding the issue of Employer's liability for permanent partial disability. The stipulation represented 15 % PPD referable to the right thumb at the 60 week level.

Prior to the start of the hearing the parties identified the issues for disposition in this case as the liability of SIF for permanent total disability (PTD) or permanent partial disability (PPD) benefits. ${ }^{1}$ The parties stipulated Claimant reached maximum medical improvement (MMI) for his right thumb injury on September 11, 2008, and Claimant last worked for Employer on November 6, 2009. Claimant offered Exhibits A-P, and SIF offered no exhibits. SIF's objection to Exhibit P was overruled. The remaining exhibits were admitted into the record without objection. Any markings contained within any exhibit were present when received, and the ma