Richard Wooley v. Belo Corporation

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upon the apparent and (we believe) erroneous assumption that 400 weeks of disability necessarily means a totally disabled employee. In our view, the use of a loading factor avoids these difficulties and provides an efficient and transparent method of carrying out the statutory calculation, and we believe it is authorized both under the law as it existed before 2005 as well as under a strict construction of § 287.220.1.

We calculate Second Injury Fund liability as follows. We find that, as a result of the primary injury, employee suffered 15 % permanent partial disability of the right shoulder ( 34.8 weeks), as well as 12.5 % permanent partial disability of the body as a whole referable to the low back ( 50 weeks). We find that, at the time he sustained the primary injury, employee suffered from the following preexisting permanent partially disabling conditions: 30 % of the left knee ( 48 weeks), 15 % of the right knee ( 24 weeks), 15 % of the body as a whole referable to the low back ( 60 weeks), 10 % of the body as a whole referable to obesity ( 40 weeks), 20 % of each wrist ( 70 weeks), and 24.2 weeks referable to permanent partial disability enhancement as reflected in our award in Injury No. 02-136578. The sum of employee's preexisting and primary disabilities is 351 weeks. Applying a 10 % loading factor to account for the synergistic interaction between employee's preexisting and primary disabilities, we conclude that the Second Injury Fund is liable for 35.1 weeks of enhanced permanent partial disability.

We modify the award of the administrative law judge as to the issue of Second Injury Fund liability.

The Second Injury Fund is liable for $\ 11,938.21 in permanent partial disability benefits.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued May 3, 2013, is attached and incorporated by this reference to the extent not inconsistent with our award and decision herein.

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 $18^{\text {th }}$ 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:

Employee: Richard Wooley (deceased) Injury No.: 02-122940

Dependent: Pamela Michelle Wooley (spouse) Before the

Employer: Belo Corp./KMOV (settled) Division of Workers'

Additional Party: The Treasurer of State of Missouri Relations of Missouri as Custodian for Second Injury Fund Jefferson City, Missouri

Insurer: Lumberman's Mutual Casualty Co. (settled)

Hearing Date: February 4, 2013 Checked by:

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: November 7, 2002
5. State location where accident occurred or occupational disease was contracted: City of St. Louis, 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: Bilateral carpal tunnel syndrome
12. Did accident or occupational disease cause death? No Date of death? 5/20/07
13. Part(s) of body injured by accident or occupational disease: Right shoulder, right elbow and low back
14. Nature and extent of any permanent disability: Permanent partial disability against Employer settled for 15 % of the right shoulder and 12.5 % of the body as a whole (low back)

1. Compensation paid to-date for temporary disability: N/A
2. Value necessary medical aid paid to date by employer/insurer? $\ 2,836.01
3. Value necessary medical aid not furnished by employer/insurer? N/A
4. Employee's average weekly wages: $\quad \ 1,050.00
5. Weekly compensation rate: $\ 340.12
6. Method wages computation: Stipulation

1. Amount of compensation payable: Settled against Employer
2. Second Injury Fund liability:

70.96 weeks @ \$340.12/week

TOTAL: $\quad \ 24,134.92

1. Future requirements awarded: N/A

Said payments to begin immediately and be subject to modification and review as provided by law.

The compensation awarded to the Employee/Spouse shall be subject to an attorney's lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Employee/Spouse: Charles W. Bobinette

Employee: Richard Wooley (deceased) Injury No.: 02-122940

Dependent: Pamela Michelle Wooley (spouse) Before the

Employer: Belo Corp./KMOV (settled) Division of Workers'

Additional Party: The Treasurer of State of Missouri Relations of Labor and Industrial as Custodian for Second Injury Fund Jefferson City, Missouri

Insurer: Lumberman's Mutual Casualty Co. (settled)

Hearing Date: February 4, 2013 Checked by:

The parties appeared before the undersigned Administrative Law Judge for a hearing to determine the liability of the Second Injury Fund ("Fund") in the above-referenced workers' compensation claim. The primary injury was settled with the Employer, Belo Corp./KMOV, and its insurer, Lumberman's Mutual Casualty Co. (collectively, "Employer"). Pamela Michelle Wooley ("Spouse") appeared in the stead of her deceased husband, Richard Wooley ("Claimant"). Attorney Charles W. Bobinette represented Claimant/Spouse. Assistant Attorney General, Kevin Nelson, represented the Treasurer of the State of Missouri as Custodian for the Fund. The claim was heard with companion Injury Nos. 02-136578 (D/I: 8/12/02) and 03-072601 (D/I: 7/10/03).

On September 18, 2007, Spouse filed her suggestion of Claimant's death and motion to substitute her as a party. Spouse's motion was granted without objection.

The parties stipulated:

1. Claimant sustained an accidental injury arising out of and in the course of his employment on or about $11 / 7 / 02.
2. The average weekly wage is \ 1,050.00. Applicable rates for compensation are $\ 659.32 for temporary total disability ("TTD") and $\ 340.12 for permanent partial disability ("PPD").
3. Employer paid $\ 2,836.01 in medical expenses and $\ 0.00 in TTD benefits.

1. The liability of the Fund (all statutory elements); and
2. Spouse's entitlement to Claimant's accrued and unpaid PPD benefits under $\S 287.230 .1 RSMo. (2000) and PTD benefits under \S 287.230 .2$ RSMo. (2000) and Schoemehl v. Treasurer of State, 217 S.W.3d 900 (Mo.banc. 2007).

1. Claimant/Spouse's Exhibits A-A - A-S were admitted into evidence without objection.
2. The Fund's combined Exhibit 1 was admitted into evidence without objection.

1. Claimant was born on April 7, 1952. He died on May 20, 2007 from causes unrelated to his diagnosed work-related occupational disease [Injury No. 02-136578 (D/I: 8/12/02)] and two accidental injuries: Injury No. 02-122940 (D/I: 11/7/02) and Injury No. 03-072601 (D/I: 7/10/03) [Ex. A-Q-2 (Certificate of Death)].
2. Claimant and Spouse were lawfully married on January 9, 1975 [Ex. A-Q-1 (Marriage Certificate)]. Since then, they resided together as husband and wife and Spouse remained dependant on Claimant until his death.
3. Three children were born of the marriage: Cody Megan Wooley (D/O/B: 7/17/78), Sara Michelle Wooley (D/O/B: 7/29/81) and Zachary Michael Wooley (D/O/B: 11/8/82). Claimant sired no other children. At the time of Claimant's death, the children were emancipated.
4. Between 1975 and 1980, Claimant was self-employed, rehabbing and repairing houses. Claimant also drove a truck for a contractor who did work for Granite City Steel. The work was unstable and Claimant quit after Employer offered him a full-time staff position in December 1982.
5. In 1982, Claimant graduated with a B.S. degree in Mass Communications from Southern Illinois University of Edwardsville.
6. Claimant worked for Employer from September 1981 to July 2003 as a writer/producer reading, writing and editing news copy and editing videotapes [Ex. A-R].
7. On November 7, 2002, Claimant stepped into the stairwell at work and tripped on a bolt sticking out of the floor causing him to fall three feet, striking his head, righ