Russell Beisner v. Home Depot USA, Inc.

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.

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ 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:

Secretary

Employee: Russell Beisner

Injury No. 07-016046

Dependents: N/A

Employer: Home Depot USA Inc.

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Company

Hearing Date: April 15, 2013

Checked by: CS/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? January 19, 2007.
5. State location where accident occurred or occupational disease contracted: Jefferson 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 happened or occupational disease contracted: Employee was moving a pipe threader and injured his low back.
12. Did accident or occupational disease cause death? N/A.

1. Parts of body injured by accident or occupational disease: Low back.
2. Nature and extent of any permanent disability: 25 % permanent partial disability of the body as a whole referable to the low back.
3. Compensation paid to date for temporary total disability: N/A.
4. Value necessary medical aid paid to date by employer-insurer: N/A.
5. Value necessary medical aid not furnished by employer-insurer: N/A.
6. Employee's average weekly wage: $\ 747.77.
7. Weekly compensation rate:

$\ 498.51 for temporary total disability and permanent total disability; and $\ 376.55 for permanent partial disability.

1. Method wages computation: By Agreement.
2. Amount of compensation payable:

a. Employee's request for permanent total disability benefits from the Second Injury Fund has been denied (See Findings).

b. Employee awarded permanent partial disability benefits from Second Injury Fund in the amount of $\ 13,103.94 (See Findings).

1. Second Injury Fund liability: Yes (See Findings).
2. Future requirements awarded: N/A.

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 costs plus 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the employee: Paul Hetterman.

On April 15, 2013, the employee, Russell Beisner, appeared in person and by his attorney, Paul Hetterman, for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General, Kevin Nelson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about January 19, 2007, Home Depot USA Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by New Hampshire Insurance Company.
2. On or about January 19, 2007, the employee was an employee of Home Depot USA Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about January 19, 2007, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 747.77, his rate for temporary total disability and permanent total disability is $\ 498.51, and his rate for permanent partial disability is $\ 376.55.
7. The employee's injury is medically causally related to the work injury occurring on or about January 19, 2007.
8. Employee reached maximum medical improvement on November 29, 2007.

1. Nature and Extent of Disability
2. Liability of the Second Injury Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Medical records of Premier Care;

B. Medical records of St. Louis Orthopedic Institute, Inc.;

C. Medical records of Orthopedic and Sports Medicine;

D. Medical records of SSM Corporate Health;

E. Medical records of Concentra Medical Centers;

F. Medical records of Signature Healthcare;

G. Medical records of Pro-Rehab;

H. Medical records of South County Open MRI;

I. Medical records of St. Anthony's Medical Center;

J. Medical records of St. Anthony's Medical Center;

K. Medical records of St. Alexius Hospital;

L. Stipulation for Compromise Settlement Injury No. 04-051897;

M. Stipulation for Compromise Settlement Injury No. 05-090797;

N. Stipulation for Compromise Settlement Injury No. 07-016046;

O. Deposition of Dr. Dr. David Volarich; and

P. Deposition of Gary Weimholt.

Second Injury Fund Exhibits:

I. Deposition of James England.

- The burden is still on the claimant to prove all material elements of his claim. Melvies v Morris, 422 S.W.2d 335 (Mo. App.1968), and Marcus v Steel Constructors, Inc., 434 S.W.2d 475 (Mo.App.1968). Therefore the employee has the burden of proving not only that he sustained an accident, which arose out of and in the course of his employment, but also that there is a medical causal relationship between his accident and the injuries and the medical treatment for which he is seeking compensation. Griggs v A. B. Chance Company, 503 S.W.2d 697 (Mo.App.1973).

- The test for finding the Second Injury Fund liable for permanent partial disability benefits is set forth in Section 287.220.1 RSMo as follows:

"All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a pre-existing permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment if the employee becomes unemployed, and the pre-existing permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no pre-existing disability. After the

compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for."

- The test for finding the Second Injury Fund liable for permanent total disability is set forth in Section 287.220.1 RSMo., as follows:

If the previous disability or disabilities, whether from compensable injuries or otherwise, and the last injury together result in permanent total disability, the minimum standards under this subsection for a body as a whole injury or a major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employee at the time of the last injury is l