Larry Abt v. Mississippi Lime Company

(In Compliance with the March 12, 2014, Mandate

from the Missouri Court of Appeals for the Eastern District)

Injury No.: 01-071426

Employee: Larry Abt

Employer: Mississippi Lime Company

Insurer: Federal Insurance Company

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

On February 18, 2014, the Missouri Court of Appeals for the Eastern District issued an opinion affirming in part, reversing in part, and remanding the March 6, 2013, decision of the Labor and Industrial Relations Commission (Commission). ${ }^{1}

By mandate dated March 12, 2014, the Court confirmed its February 18^{\text {th }}$ opinion and remanded the matter to the Commission with instructions to 1) calculate the liability of the employer and the Second Injury Fund and to award compensation for permanent total disability benefits accordingly, and, 2) award from employer to employee the sum of $\ 10,859.57 as reimbursement for medical expenses.

We issue this award in compliance with the mandate.

By its Opinion, the court found that "claimant is permanently and totally disabled as a result of the combination of his 2001 primary injuries and pre-existing conditions."2 By its mandate, the Court instructed us "to calculate the liability of the employer and the Second Injury Fund and to award compensation for permanent total disability benefits accordingly." Based upon the Court's finding, we must award permanent total disability benefits against the Second Injury Fund. To that end, we find employee reached maximum medical improvement from the effects of his primary injury on May 30, 2001, in accordance with the opinion of Dr. Mirkin.

We affirm the administrative law judge's finding that, as a result of the primary injury, employee sustained permanent partial disabilities of 30 % of his left lower extremity at the 160-week level ( 48 weeks), 4 % of the body as a whole referable to the ribs ( 16 weeks), and 15 % of the body as a whole referable to the lumbar spine ( 60 weeks). We award from employer to employee permanent partial disability benefits for 124 weeks in the amount of $\ 38,968.24.

We award permanent total disability benefits from the Second Injury Fund to employee. The permanent total disability benefits shall begin May 31, 2001, the day after employee

[^0]

[^0]: ${ }^{1} Abt v. Mississippi Lime Company, 420 S.W.3d 689 (Mo. App. 2014).

{ }^{2}$ Id., at 705 .

Employee: Larry Abt

Injury No. 01-071426

Dependents: N/A

Employer: Mississippi Lime Company

Additional Party: Second Injury Fund

Insurer: Federal Insurance Company

Hearing Date: March 21, 2011

Checked by: CS/rf

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 16, 2001.
5. State location where accident occurred or occupational disease contracted: Ste. Genevieve, 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 injured when he was operating a locomotive and a truck hit the locomotive throwing the employee off of it onto the truck.
12. Did accident or occupational disease cause death? N/A

On March 21, 2011, the employee, Larry Abt, appeared in person and by his attorney, Robert Lenze, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Matthew Mocherman. The Second Injury Fund was represented by its attorney, Assistant Attorney General Gregg Johnson. 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 16, 2001, Mississippi Lime Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by Federal Insurance Company.
2. On or about January 16, 2001, the employee was an employee of Mississippi Lime Company and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about January 16, 2001, the employee sustained an accident during 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 rate for temporary total disability and permanent total disability is $\ 599.96 and his rate for permanent partial disability is $\ 314.26.
7. The employee's injury is medically causally related to the work injury on or about January 16, 2001.
8. The employer has furnished $\ 19,358.59 in medical aid to employee.
9. The employer has paid temporary total disability benefits for 17 weeks at a rate of $\ 599.96 per week for a total of $\ 10,199.32.

1. Previously Incurred Medical Aid.
2. Nature and Extent of Disability.
3. Liability of the Fund.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical Records of Ste. Genevieve County Memorial Hospital 05/31/1991 to11/28/2007;

B. Medical Records of Point Basse Family Healthcare/Ste. Genevieve Health Group 05/13/1991 to 04/22/2008;

C. Withdrawn;

D. Medical Records of Dr. Joseph Sharlow 10/25/2004 to 05/31/2001;

E. Medical Records of Dr. Theodore A. Mueller 04/15/1999;

F. Medical Records of Dr. Richard Pearson 05/05/1999 to 10/11/2005;

G. Medical Records of Ste. Genevieve County Memorial Hospital Home Health Agency 01/19/2001 to 01/29/2001;

H. Medical Records of PRO REHAB 04/05/2001 to 04/30/2001;

I. Medical Records of Physicians Health and Rehab 01/14/2002 to 03/31/2004;

J. Medical Records of Bloomsdale Family Health Center 03/18/2004 to 05/16/2005;

K. Medical Records of Mid American Rehab 11/01/2005 to 11/22/2005;

L. Medical Bills of Physicians Health and Rehab 01/14/2002 to 03/31/2004;

M. Withdrawn;

M1. Medical Bills of Ste. Genevieve County Memorial Hospital;

N. Withdrawn;

N1. Medical Bills of Dr. Richard Pearson;

O. Deposition of Wilbur Swearingin dated 10/05/2010; and

P. Deposition of Dr. Robert Poetz dated 10/18/2010.

Employer-Insurer's Exhibits

1. Medical Records of Ste. Genevieve Medical Group;

a. Office note of $07 / 20 / 1999$;

b. Office note of 08/02/1999;

c. Office note of 08/10/1999;

d. Office note of 09/29/1999;

1. Medical Records of Ste. Genevieve County Memorial Hospital 09/06/1999 to 09/15/1999;
2. Medical Records of Ste. Genevieve County Memorial Hospital 03/27/2001;
3. Medical Records of PRO REHAB - Functional Capacity Exam 04/26/2001;
4. Medical Records of Dr. Joseph Sharlow 05/29/2001;
5. Medical Records of Ste. Genevieve County Memorial Hospital Lumbar 05/29/2001;
6. Report of Dr. Peter Mirkin 05/30/2001;
7. Medical Records of Ste. Genevieve County Memorial Hospital 08/22/02001;
8. Medical Records of Ste. Genevieve Medical Group;

a. Office note $08 / 22 / 2001;

b. Office note 08 / 24 / 2001$;

1. Withdrawn;
2. Medical Records of Ste. Genevieve County Memorial Hospital 01/10/2002;
3. Report of Dr. B. Cadiz 08/09/2002;
4. Report of Dr. B. Cadiz 09/05/2002;
5. Employer's first report of injury 01/28/2005;
6. Employer's first report of injury 02/26/2005;
7. Withdrawn; and
8. Deposition of Dr. Sandra Tate.

Based on the testimony of Larry Abt ("Employee") and the medical records and reports admitted, I find as follows:

On January 16, 2001, Employee was working for Mississippi Lime Company (Employer) whose liability for worker's compensation insurance was covered by Federal Insurance Company (Employer-insurer). On that date, Employee was operating a locomotive engine when it was struck by a large truck causing multiple injuries. Employee was initially treated at Ste. Genevieve Hospital by Dr. Sharlow for a degloving injury to his left lower leg, left rib pain, and injury to his lumbar spine. Although Employee continued to treat with Dr. Sharlow over the next several months, he also saw Dr. Sandra Tate and Dr. Peter Mirkin. On February 14, 2001, Dr. Tate placed restrictions on Emp