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Larry Voidanoff v. United Samsco Associates, Inc.

Decision date: January 13, 201411 pages

Summary

The Commission affirmed the administrative law judge's award allowing workers' compensation benefits for Larry Voidanoff's work-related injury to his right lower extremity sustained on May 19, 2005, when his shoe caught in a ladder grate while stocking shelves. The employee was awarded 75% permanent partial disability and permanent total disability benefits of $200.00 per week for life, with the Second Injury Fund assessed for liability.

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This archive contains published Missouri Labor and Industrial Relations Commission workers' compensation decisions reproduced for research convenience. Official source links remain authoritative where provided. Joseph Ott, Attorney 67889, Ott Law Firm - Constant Victory - Personal Injury and Litigation maintains these public legal archives to support Missouri case research and to help prospective clients connect that research to the firm's courtroom practice.

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This workers' comp decision may point to a separate injury claim.

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Caption

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-139313

Employee: Larry Voidanoff

Employer: United Samsco Associates, Inc. (Settled)

Insurer: Continental Casualty Co. (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 June 26, 2013. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued June 26, 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 10th day of January 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

AWARD

Employee: Larry Voidanoff

Injury No. 05-139313

Dependents:

Employer: United Samsco Associates, Inc. (settled)

Additional Party: Second Injury Fund

Insurer: Continental Casualty Co. (settled)

Hearing Date: May 16, 2013

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/njp

FINDINGS OF FACT AND RULINGS OF LAW

  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 19, 2005
  5. State location where accident occurred or occupational disease was contracted: Camden 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: Employee was on a ladder stocking shelves, he turned to descend when his shoe caught in the grate on the ladder's platform, causing injury to Employee's left knee and calf where his lower extremity articulated with his leg prosthesis.
  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: Right lower extremity.
  14. Nature and extent of any permanent disability: 75 % permanent partial disability of the body as a whole; permanent total disability assessed against the Second Injury Fund.
  15. Compensation paid to-date for temporary disability: Unknown.
  16. Value necessary medical aid paid to date by employer/insurer? Unknown.
  1. Value necessary medical aid not furnished by employer/insurer? Unknown.
  2. Employee's average weekly wages: $\ 300.00
  3. Weekly compensation rate: $\ 200.00 for permanent total disability benefits; $\ 200.00 for permanent partial disability benefits.
  4. Method wages computation: Based upon evidence adduced.

COMPENSATION PAYABLE

  1. Second Injury Fund liability:

Permanent total disability benefits of $\ 200.00 per week, beginning February 18, 2015, for Claimant's lifetime.

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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Thomas E. Loraine

FINDINGS OF FACT and RULINGS OF LAW:

Employee: Larry Voidanoff

Injury No. 05-139313

Dependents:

Employee: | | |

United Samsco Associates, Inc. (settled)

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Hearing Date: May 16, 2013

Checked by: RJD/njp

ISSUES DECIDED

The evidentiary hearing in this case was held on May 16, 2013 in Osage Beach, Camden County, on Claimant's claim against the Second Injury Fund. Claimant's claim for compensation against United Samsco Associates, Inc. ("Employer") and Continental Casualty Company ("Insurer") was previously settled by stipulation. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on June 11, 2013. The hearing was held to determine the following issues:

  1. Whether Larry Voidanoff ("Claimant") sustained an accident and injury arising out of and in the course of his employment with United Samsco Associates, Inc. ("Employer") on May 19, 2005;
  2. Employee's average weekly wage and resultant compensation rate; and
  3. The liability, if any, of the Second Injury Fund for permanent partial disability benefits.

STIPULATIONS

The parties stipulated as follows:

  1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
  2. That venue for the evidentiary hearing is proper in Camden County;
  3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo; and
  4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times.

EVIDENCE

The evidence consisted of the testimony of Claimant, Larry Voidanoff, and the following exhibits.

Employee's Exhibit 1: transcript of the deposition testimony of Wilbur Swearingin dated July 30, 2012 and attached exhibits.

Employee's Exhibit 2: transcript of the deposition testimony of Dr. David T. Volarich dated December 12, 2011 and attached exhibits.

Second Injury Fund's Exhibit A: transcript of the deposition testimony of Larry Voidanoff, dated September 16, 2008.

Court's Exhibit 1, consisting of records of the Missouri Division of Workers' Compensation.

DISCUSSION

Larry Voidanoff ("Claimant") was born on September 27, 1958. He is 54 years old and stayed through the $11^{\text {th }}$ grade in high school. He has some difficulty reading and writing and has few computer skills. Claimant's work history is in fast food retail as well as in stocking shelves with produce and hardware. He worked for three employers in the 6 years leading up to his work injury: Walmart, Captain D's and United Samsco, Inc. He worked for United Samsco in two Home Depot stores stocking the shelves. In all positions he worked physically demanding jobs where he was on his feet all shift carrying items. He was a full-time store manager of eight employees at Captain D's. He was the produce manager at Walmart where he stocked shelves and did all aspects the job required. Employee testified he worked for both Walmart and Captain D's at the same time for five years between approximately 2000 and 2005. He began his employment with United Samsco Inc in February 2005.

Claimant testified that while he worked for United Samsco, it was United Samsco which directed and controlled his work; however, he physically worked at two Home Depot stores, one in Osage Beach, Missouri and the other in Columbia, Missouri. The parties stipulated that Claimant was an employee of United Samsco and that United Samsco was subject to the Missouri Workers' Compensation Act.

Claimant testified regarding conditions he had prior to the injury of May 19, 2005. He testified that in 1981 while in the military he suffered a gunshot wound to his left ankle, but he had no permanent disability or ongoing problems from that condition. Claimant testified that in March 1996 he sustained an injury to his left ankle when he fell down some stairs shattering his talus bone. Following a failed fusion Claimant had the option of either living with the pain from his left ankle or having a below knee amputation. Claimant decided on the below knee amputation, which he had done in December 1996. He was fitted with a prosthetic and returned to the work force in 2000, working for both Walmart and Captain D's. Claimant described that with the prosthesis he wore special shoes which had extra grip on them. They gave him a little more stability but looked and performed like normal tennis shoes.

After returning back to the work force in 2000, Claimant worked two full-time jobs. He worked for Walmart as the produce manager, ten hours a day, 5-6 days a week, which Claimant described as a manual job. His shift ended about 12:30 a.m. or 1:00 a.m. He described lifting boxes which were fifty to sixty pounds all day long. During this time he also worked for Captain D's as the daytime manager working 8 hours a day usually about 5:30 a.m. to 1:00 p.m., Monday to Friday. At Captain D's he frequently lifted boxes weighing fifty pounds. In both jobs Claimant was on his feet most of the time. He testified he was able to do everything required of him at these jobs, and needed no accommodations or help to perform his work. Claimant stated at the hearing "Nobody gave any accommodations to help with anything I have done" when referring to his abilities before 2005.

In February 2005 Claimant began working for United Samsco ("Employer") stocking shelves in two Home Depot stores. He quit his jobs at Walmart and Captain D's to work for Employer. He worked 7 am to 3 pm , five days a week, Monday through Friday, two days in Osage Beach and three days in Columbia. He testified he occasionally worked overtime. At the Home Depot stores he was constantly on his feet stocking shelves, carrying items up and down ladders, carrying hardware, tools, lumber, etc. Claimant continued to climb ladders even with his prosthesis and that, indeed, at the time of the May 19, 2005, injury Claimant was on a ladder. Claimant described the ladders he used at Home Depot. They were platform ladders with wide steps, a platform measuring about two feet by three feet on the top, handrails on each side, a railing at the top, and metal grips on the steps and platform. He used these ladders daily while working for United Samsco at the Home Depot stores.

Claimant testified regarding the injury of May 19, 2005. He was on a ladder stocking some shelves. He turned to descend and his left foot caught on the grate at the top of the ladder. In particular he stated it was the special shoe on his prosthesis which caught on the ladder. He turned but his foot did not which caused the muscle to pull from the bone at the site of the amputation, right where the prosthetic met his leg. He reported the injury and went home where he discovered the prosthesis had broken piercing the back of his knee. A posttraumatic popliteal cyst developed, he eventually had an irrigation and debridement and was fitted for a new prosthesis. He had physical therapy for his episodes of low back pain in July 2005. An infection developed and he had a second irrigation and debridement. Continued infection led to an excision of the popliteal cyst in August 2005, and a second excision of the popliteal cyst in September 2005. By this time Claimant had not yet received his new prosthesis and was walking on crutches. Use of crutches led to pain in his low back and left elbow. Claimant eventually was referred to Dr. Matthew Concannon for continuing problems. In April 2006, Dr. Concannon performed an excision at the amputation site and covered it with a material called Integra. Once the Integra became fully incorporated the wound would be covered with a skin graft. Claimant has had no treatment since this procedure.

Claimant testified that since finishing treatment for his 2005 work injury he has ongoing pai

Full decision text continues in the plain-text archive copy.

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