Wayne Knepper v. Midwest Coating of Mid Missouri

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-045414

Employee: Wayne Knepper

Employer: Midwest Coating of Mid Missouri

Insurer: The Netherlands Insurance Company

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 May 14, 2013. The award and decision of Administrative Law Judge Victorine R. Mahon, issued May 14, 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 $21^{\text {st }}$ day of November 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced the administrative law judge erred in concluding that employee is permanently and totally disabled as a result of his 2006 work injury.

Employee was 56 years old at the time of the hearing before the administrative law judge. Employee has a robust work history which includes experience in meat cutting, carpentry, baking, and heavy labor jobs. In May 2006, employee developed dermatitis in his right hand as a result of his work for employer involving the use of sprayers to stain wood. Employee underwent surgery and suffered an infection while in the hospital. Employee continues to suffer from some pain, swelling, and loss of sensation in his right hand, and must avoid contact with any industrial chemicals.

In his testimony, employee admitted that he suffers from a number of other disabling conditions which are completely unrelated to the 2006 work injury. Employee has emphysema, which significantly limits his stamina and ability to perform physical tasks. Employee also suffers from congestive heart failure which makes him dizzy and leads to shortness of breath. Employee no longer does any yard work and will not even run a vacuum in his home because of his heart condition. Finally, employee has neuropathy in both feet which produces a constant burning sensation. Employee explained that this condition is so severe at times that he feels unable to walk.

The vocational expert, Terry Cordray, evaluated employee and opined that he is not permanently and totally disabled. Mr. Cordray explained that based on employee's work history and medical restrictions, there are a number of jobs employee can perform, and identified job listings in employee's area for such positions. Mr. Cordray credibly opined that employee could work in the food industry, as a cashier, in small engine repair, or provide locksmith services. Even employee's vocational expert, Wilbur Swearingin, admitted that there are a number of sedentary jobs which employee could perform. Mr. Swearingin did offer the ultimate opinion that employee is permanently and totally disabled, but unlike Mr. Cordray, who considered the restrictions imposed by all of the doctors, Mr. Swearingin wholly ignored the restrictions from Dr. Parmet. It should be noted that out of two evaluating doctors and two vocational experts, Mr. Swearingin provides the only expert opinion on this record that employee is permanently and totally disabled as a result of the work injury.

Employee's disability resulting from the work injury is solely limited to his right hand. I am convinced that Mr. Cordray offered the more credible and persuasive testimony in this matter when he opined that employee's work injury does not render him permanently and totally disabled. I believe the evidence best supports a finding that employee suffered 37.5 % permanent partial disability of the right upper extremity at the 175-week level, with an additional 10 weeks for disfigurement. If employee is permanently and totally disabled, it is only after factoring in the numerous other disabling conditions from which he suffers, including congestive heart failure, emphysema, and neuropathy of the lower extremities.

Enployee: Wayne Knepper

- 2 -

For the foregoing reasons, I would modify the award of the administrative law judge and award permanent partial rather than permanent total disability benefits to employee. Because the majority has determined otherwise, I respectfully dissent.

James G. Avery, Jr., Member

1. Part(s) of body injured by accident or occupational disease: Bilateral upper extremities at the 175 -week level.
2. Nature and extent of any permanent disability: Permanent Total Disability.
3. Compensation paid to-date for temporary disability: $\ 20,675.04.
4. Value necessary medical aid paid to date by employer/insurer? $\ 25,770.76.
5. Value necessary medical aid not furnished by employer/insurer? None.
6. Average Weekly Wage: $\ 727.52.
7. Weekly Compensation Rate: $\ 485.01 (PTD) / \$365.08 (PPD)
8. Method wages computation: Stipulation.

1. Amount of compensation payable:

(See below)

1. Second Injury Fund liability: No.
2. Future requirements of the award:

Beginning January 22, 2007, and continuing for the remainder of Claimant's lifetime, Employer/Insurer shall pay to Claimant the weekly sum of $\ 485.01, for permanent total disability arising from the work related injuries Claimant sustained on or about May 9, 2006, subject to review and modification as provided by law.

Employer/Insurer shall provide future medical to Claimant to cure and relieve the effects of the work injury.

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: John Newman, Esq.

Employee: Wayne Knepper

Injury No. 06-045414

Dependents: N/A

Employer: Midwest Coating of Mid Missouri

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

Insurer: The Netherlands Insurance Company

Hearing Date: March 20, 2013

VRM/ps

The parties appeared before the undersigned administrative law judge for a final hearing to determine the liability of Midwest Coating of Mid Missouri (Employer) and The Netherlands Insurance Company (Insurer), as well as the Second Injury Fund (the Fund). Wayne Knepper (Claimant) appeared with his attorney of record, John Newman. James Blickhan appeared on behalf of Employer/Insurer. Assistant Attorney General Skyler Burks represented the Second Injury Fund. Mr. Knepper alleges two injuries from exposure to chemicals at work. Both cases were tried together. Injury No. 06-045414 pertains to an injury date of May 9, 2006. The second claim - Injury No. 07-135626 - is to have occurred on or about July 16, 2007. A briefing scheduled was supplied to the parties.

The parties stipulated to the following facts and limited the issues as follows:

1. On May 9, 2006 and July 16, 2007, the parties were protected by and subject to the Missouri Workers' Compensation Laws. Employer was fully insured by The Netherlands Insurance Company.
2. On or about May 9, 2006, Claimant sustained an injury through an exposure to chemicals that is medically and causally related to his work with Employer. The injury arose out of and was within the course of Claimant's employment with Employer. Employer/Insurer accepts compensability for the May 9, 2006 injury, but denies any and all liability for any subsequent injury which is alleged to have occurred on or about July 16, 2007.

1. Claimant's average weekly wage is sufficient to yield a permanent total disability and temporary total disability rate of $\ 485.01. The applicable permanent partial disability rates are the statutory maximum for each injury date. ${ }^{1}$
2. Employer/Insurer paid medical care in conjunction with Injury No. 06-045414 in the amount of $\ 25,770.76, and temporary total disability payments totaling $\ 20,675.04. Employer/Insurer paid nothing with respect to the alleged 2007 injury.
3. The alleged injury of May 9, 2006 occurred in Ozark, Christian County, Missouri. The parties agree that venue and jurisdiction is appropriate in Springfield, Greene County, Missouri, as to both cases. There also is no dispute as to statute of limitations in either case.
4. There is no dispute as to notice with respect to Injury No. 06-045414.

1. What is the nature and extent of Claimant's disability?
2. What is the liability of Employer/Insurer for Claimant's disability?
3. What is the liability of the Second Injury Fund for the Claimant's disability?
4. What is Employer/Insurer's liability for future medical treatment?
5. What, if any, is the extent of disfigurement from the primary injury?
6. Claimant's attorney also seeks a 25 percent fee of any amounts awarded.

1. Did Claimant sustain an injury by accident or occupational disease on or about July 16, 2007?
2. Did the alleged injury arise out of and within the course of employment with Midwest Coating of Mid Missouri?
3. Is the alleged injury medically and causally related to the work at Midwest Coating of Mid Missouri?
4. Did Claimant provide notice of the injury to Employer, as required by law?
5. What is the nature and extent of Claimant's disability?
6. What is the liability of Employer/Insurer for Claimant's disability?
7. What is the liability of the Second Injury Fund for the Claimant's disability?
8. What is Employer/Insurer's liability for future medical treatment?
9. What, if any, is the extent of disfigurement from the alleged primary injury?
10. Claimant's attorney also seeks a 25 percent fee of any amounts awarded.

[^0]

[^0]: ${ }^{1} The statutory maximum rate for permanent partial disability is \ 389.04 for the July 2007 injury, and $\ 365.08 for the May 2006 injury. The maximum permanent partial disability rate for the May 2006 injury was erroneously recited on the record as being $\ 376.55.

Claimant offered the following exhibits which were received into evidence:

A. Medical Records - various providers

B. Curriculum Vitae - Dr. David Volarich

C. Report - Dr. David Volarich

D. Deposition - Dr. David Volarich

E. Curriculum Vitae - Mr. Wilbur Swearingin (vocational expert)

F. Report - Mr. Wilbur Swearingin

Employer/Insurer offered the following exhibit which was received into evidence:

1. Deposition - Dr. Allen Parmet, with attached exhibits
2. Deposition - Mr. Terry Cordray (vocational expert),