Robert Graham v. LATCO Contractors Incorporated

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-178620

Employee: Robert A. Graham

Employer: LATCO Contractors Incorporated (Settled)

Insurer: Missouri Property and Casualty Insurance Guaranty Association (MIGA) (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 § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated July 8, 2013. The award and decision of Administrative Law Judge Gary L. Robbins, issued July 8, 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 $11^{\text {th }}$ day of April 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes, in each case.
3. Was there an accident or incident of occupational disease under the Law? Yes, in each case.
4. Date of accident or onset of occupational disease? July 30, 1999 in 99-178620. July 5, 2000 in 00-081838.
5. State location where accident occurred or occupational disease contracted: Stoddard County, Missouri in both cases.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes, in both cases.
7. Did employer receive proper notice? Yes, in both cases.

1. Did accident or occupational disease arise out of and in the course of the employment? Yes, in both cases.
2. Was claim for compensation filed within time required by law? Yes, in both cases.
3. Was employer insured by above insurer? Yes, in both cases.
4. Describe work employee was doing and how accident happened or occupational disease contracted: In 99-178620 the employee claimed that he injured his right shoulder while carrying a fan motor. He claimed that he was permanently and totally disabled. In 00081838 the employee claimed that he was exposed to noxious materials while working. He claimed that he is permanently and totally disabled.
5. Did accident or occupational disease cause death? No, in either case.
6. Parts of body injured by accident or occupational disease: Right shoulder in 99-178620. Body as a whole in 00-081838.
7. Nature and extent of any permanent disability: In 99-178620 the employee settled his case with the employer-insurer for 10 % permanent partial disability of the right shoulder$\ 7,029.83. In 00-081838 the employee initiated a third party claim and settled it with Tyson Foods for $\ 730,000.00 on September 26, 2005.
8. Compensation paid to date for temporary total disability: $\ 1,604.40 in 99-178620. $\ 20,449.80 in 00-081838.
9. Value necessary medical aid paid to date by employer-insurer: $\ 2,308.66 in 99-178260. At issue in 00-081838. The employer-insurer reported $\ 51,688.75 in medical payments.
10. Value necessary medical aid not furnished by employer-insurer: $\ 0 in 99-178620. In 00081838 the employee is claiming the amount paid by the Veterans' Administration that the employee says is unknown.
11. Employee's average weekly wage: Not disclosed in 99-178620. \$568.05 in 00-081838.
12. Weekly compensation rate: In 99-178620 the employee's rate for temporary total and permanent total disability is $\ 374.37 per week. His rate for permanent partial disability is $\ 303.01 per week. In 00-081838 the employee's rate for temporary total and permanent total disability is $\ 378.70 per week. His rate for permanent partial disability is $\ 314.26 per week.
13. Method wages computation: By agreement.
14. Amount of compensation payable: See Award.

1. Second Injury Fund liability: None. See Award.
2. Future requirements awarded: See Award.

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Daniel H. Rau.

On April 18, 2012, the employee, Robert A. Graham, appeared in person and with his attorney, Daniel H. Rau for hearings for final awards. LATCO Contractors Incorporated/LATCO was insured by Legion Insurance but Legion was bankrupt. Missouri Property and Casualty Insurance Guaranty Association/MIGA insured LATCO due to the bankrupt status of Legion. Julie L. Petraborg represented the interests of LATCO, Legion Insurance and MIGA. In this award, depending on the context, the term employer-insurer may refer to LATCO and Legion singularly or may refer to LATCO, Legion and MIGA as an entity. Assistant Attorney General, Jonathan Lintner represented the Second Injury Fund. Prior to trial the employer-insurer had settled its portion of the case in Injury Number 99-178620. Prior to trial the parties reported that the case had a substantial amount of evidence and involved difficult issues. They acknowledged that the evidence could not be reviewed and that the final award could not be completed in ninety days. At the request of the parties the record was left open until April 28, 2012. After trial, the parties conducted further negotiations regarding settlement. This was done after the Court reviewed the evidence in the case and advised them of the Court's decision. The parties asked the Court to take this action. Unfortunately, after two efforts, the Court was advised on April 25, 2013, that all settlement negotiations had collapsed and that the Court should prepare the final awards. At the time of the hearings, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. LATCO Contractors Incorporated was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by MIGA.
2. On July 30, 1999, Robert A. Graham was an employee of LATCO Contractors Incorporated and was working under the Workers' Compensation Act.
3. On July 30, 1999, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was not disclosed at trial. His rate for temporary total and permanent total disability is $\ 374.37 per week. His rate for permanent partial disability is $\ 303.01 per week.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid $\ 2,308.66 in medical aid.
9. The employer-insurer paid $\ 1,604.40 in temporary disability benefits.
10. The employee had no claim for previously incurred medical bills.
11. The employee had no claim for mileage or future medical care.
12. The employee had no claim for any temporary disability benefits.
13. The employee has no claim for permanent partial or permanent total disability against the employer-insurer.

1. LATCO Contractors Incorporated was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by MIGA.
2. On July 5, 2000, Robert A. Graham was an employee of LATCO Contractors Incorporated and was working under the Workers' Compensation Act.
3. On July 5, 2000, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage is $\ 568.05. His rate for temporary total and permanent total disability is $\ 378.70 per week. His rate for permanent partial disability is $\ 314.26 per week.
7. The employee's injury was medically causally related to the accident.
8. The employer-insurer paid $\ 20,449.80 in temporary disability benefits.
9. The employee has no claim for mileage.

1. Liability of the Second Injury Fund for permanent total disability.

1. Medical Aid Furnished - How much medical aid did the employer-insurer furnish?
2. Prior Medical Bills - The employee is claiming past medical bills paid by the Veterans' Association. The employee claimed that the amount has not been disclosed to the employee.
3. Future Medical Care.
4. Temporary total disability compensation.
5. Liability of the employer-insurer for permanent partial disability.
6. Liability of the employer-insurer for permanent total disability.
7. Liability of the Second Injury Fund for permanent partial or permanent total disability.
8. Liability under Schoemehl.
9. Subrogation rights of the employer-insurer or the Second Injury Fund.
10. Whether or not MIGA is entitled to any subrogation interests?
11. Attorney lien of Jay York of $\ 5,840.00.

The following exhibits were offered and admitted into evidence:

Employees Exhibits:

A. Deposition of Terry T. Martinez, Ph.D.

B. Deposition of James M. England, Jr.

C. Deposition of Peter G. Tuteur, M.D.

D. Medical record.

E. Medical report of Anthony C. Zoffuto, M.D.

F. Employee's list of medications.

G. Prescription medication list.

H. Missouri Department of Conservation Hunter Method Exemption Card.

I. Certified records of the Circuit Court of Stoddard County, Missouri, Case No. 02CV763577.

J. Affidavit of J. Michael Ponder.

1. Deposition of Thomas M. Hyers, M.D.
2. Deposition of Karen Kane-Thaler.
3. Deposition of Bryan Burns, J.D.
4. Motion to Quash.
5. Deposition of Nancy Dubbert.
6. Medical records of the Veteran's Administration.
7. Records of Legion Insurance Company.
8. Records of Legion Insurance Company.
9. Record of Temporary Disability Benefits.
10. Wage Statement.

The Second Injury Fund did not offer any exhibits.

Employer-insurer objection to Employee Exhibit E.

At trial the employer-insurer objected to this exhibit stating that Dr. Zoffuto was not a treating doctor and they have no opportunity to cross examine Dr. Zoffuto. Dr. Zoffuto's records were generated in 2002. Dr. Zoffuto died in 2008. The Court overrules that objection and allows the introduction of Employee Exhibit E into evidence.

Employee objection to Employer-Insurer 7.

At trial the employee would not agree to the amount of medical bills that were paid by the employer-insurer and objected to Employer-Insurer Exhibit 7 as not being relevant. The Court overrules that objection and allows the introduction of Employer-Insurer Exhibit 7 into evidence. Informat