Susan Barton v. Green Acres Home of West Plains & Newton Group Home

a reasonable effort to cause its employees to obey such a rule, and hereby disclaim the administrative law judge's additional findings, analysis, and conclusions on that topic.

The administrative law judge determined employee is not employable in the open labor market; we agree. We note that in assigning liability for employee's permanent total disability to the employer, the administrative law judge questioned whether employee's preexisting morbid obesity could properly be considered a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment for purposes of $\S 287.220$ RSMo. In determining that employee's preexisting morbid obesity could not be considered a preexisting permanent partial disability, the administrative law judge relied on the decision of Loven v. Greene County, 63 S.W.3d 278 (Mo. App. 2001).

While we appreciate the administrative law judge's careful and thorough analysis with respect to this issue, we question whether the Loven decision is dispositive, as it would seem the issue whether employee's preexisting morbid obesity constituted a permanent partial disability is a purely factual one that would fall within the "unique province" of the administrative law judge or this Commission to decide. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007). We note also that the Loven court's focus on the extent to which the employee's obesity caused him difficulty in the past contrasts with a number of other Missouri cases cautioning that for purposes of triggering Second Injury Fund liability under § 287.220, "the proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition." Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted), see also Concepcion v. Lear Corp., 173 S.W.3d 368, 371 (Mo. App. 2005); E.W. v. Kan. City Sch. Dist., 89 S.W.3d 527, 538 (Mo. App. 2002); and Carlson v. Plant Farm, 952 S.W.2d 369, 373 (Mo. App. 1997).

With that said, we note that employer's Application for Review filed with the Commission does not challenge the administrative law judge's determination that employer is liable for permanent total disability benefits, and that in employer's brief, employer affirmatively states that it is not challenging that determination, but rather requests that we confine our review solely to the issue of the safety penalty under $\S 287.120 .5$. For this reason, we will not further consider the issue of employee's permanent total disability or whether liability properly lies with the Second Injury Fund in this case.

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

The award and decision of Administrative Law Judge L. Timothy Wilson, issued November 7, 2013, is attached and incorporated by this reference.

The Commission approves and affirms the administrative law judge's allowance of an 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 $7^{\text {th }}$ day of March 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Susan Barton

Injury No. 09-063719

Employee: Susan Barton

Injury No. 09-063719

Dependents: N/A

Employer: Green Acres Home of West Plains \& Newton Group Home

Insurer: Guaranty Insurance Company

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

Hearing Date: August 15, 2013

Checked by: LTW

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: August 24, 2009
5. State location where accident occurred or occupational disease was contracted: Howell 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: While engaged in employment with the Employer, which included operating a motor vehicle while transporting a special needs person to a store, Employee suffered a motor vehicle accident. As a consequence of this work incident Employee sustained injuries to her upper and lower extremities, and body as a whole.
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: Left Upper Extremity, Right Lower Extremity, Left Lower Extremity (BAW)
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 10,859.94

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Susan Barton

1. Value necessary medical aid paid to date by employer/insurer? $\ 439,615.38
2. Value necessary medical aid not furnished by employer/insurer? $\ 8,251.39

(\424.25 represents out-of-pocket expenses to be paid directly to employee, while \ 7,827.14 represents payment of Medicaid / Medicare expenses.)

1. Employee's average weekly wages: $\ 385.49
2. Weekly compensation rate: $\ 257.00
3. Method wages computation: Stipulation

1. Amount of compensation payable:

Unpaid medical expenses:

$\ 8,251.39

Future medical care:

(See Award)

(Employee is entitled to future medical care from Employers and Insurer.)

Weeks of temporary total disability (or temporary partial disability):

$\ 12,894.19

(The sum of $\ 12,894.19 represents payment of temporary total disability compensation at the applicable compensation rate of $\ 257 per week for the period of August 24, 2009, to June 2, 2011 (92 3/7 weeks), less credit of $\$ 10,859.94 . \ 23,754.13 - $\$ 10,859.94=\ 12,894.19 )

Weeks of permanent partial disability from Employer / Insurer:

Weeks of disfigurement from Employer / Insurer:

Permanent total disability benefits from Employer / Insurer:

(See Award)

(Employee is entitled to permanent total disability benefits from Employers and Insurer beginning June 2, 2011, at the rate of $\ 257.00 per week, for Employee's lifetime.)

1. Second Injury Fund liability: No

TOTAL: \$257.00 PER WEEK, EFFECTIVE JUNE 2, 2011, AND CONTINUING FOR EMPLOYEE'S LIFETIME, PLUS FUTURE MEDICAL CARE

1. Future requirements awarded: Future medical care and permanent total disability compensation (See Award)

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Randy Alberhasky, Esq.

Employee: Susan Barton

Injury No. 09-063719

Dependents: N/A

Employer: Green Acres Home of West Plains \& Newton Group Home

Insurer: Guaranty Insurance Company

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on August 15, 2013. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about September 16, 2013.

The employee appeared personally and through her attorney Randy Alberhasky, Esq. The employer and insurer appeared through their attorney, Christopher Moberg. The Treasurer of Missouri, as the Custodian of the Second Injury Fund, appeared through its attorneys, Cara Harris and Catherine Goodnight, Assistant Attorneys General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about August 24, 2009, Green Acres Home of West Plains and Newton Group Home were employers operating under and subject to The Missouri Workers' Compensation Law and during this time were fully insured by Guaranty Insurance Company.

(2) On the alleged injury date of August 24, 2009, Susan Barton was an employee of the employers, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about August 24, 2009, the employee, Susan Barton, sustained an accident, which resulted in her suffering certain injuries to her body as a whole.

(4) The above-referenced employment and accident occurred in Howell County, Missouri. The parties agree to venue lying in Howell County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident of August 24, 2009, the employee's average weekly wage was $\ 385.49, which is sufficient to allow a compensation rate of $\ 257.00 for temporary total disability compensation / permanent total disability compensation, and permane