| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge) |
| Employee: | Alejandro Romero |
| Employer: | Nelson Flooring |
| Insurer: | Hartford Accident & Indemnity Co. |
| This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below. |
| Introduction The parties asked the administrative law judge to resolve the following issues: (1) average weekly wage and rate of compensation; (2) past medical expenses; (3) whether employee is entitled to reimbursement of $95 for the cost of service on Nelson Davilla; and (4) underpayment of temporary total disability benefits.The administrative law judge rendered the following findings and conclusions: (1) employee’s average weekly wage is $300 per week resulting in a rate of compensation for temporary total and permanent partial disability benefits of 200 per week; (2) employee is entitled to 350 in past medical expenses; (3) employee is entitled to future medical care and treatment to cure and relieve employee from the effects of his work-related injury, including, but not limited to, doctor’s visits, replacement contact lenses, reimbursement for the cost of eye drops, and lens cleaner as needed in the future by employee; (4) employer is liable for the $95.00 cost of personal service on employer Nelson Davilla because of his refusal to voluntarily and cooperatively attend his deposition as a party to the case; (5) employer is liable for additional temporary total disability benefits in the amount of 3,789.53; and (6) employer is liable for 28,000.00 in permanent partial disability benefits for 100% loss of visual acuity.Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in awarding only 140 weeks of compensation for employee’s complete loss of use of his left eye; and (2) in calculating employee’s average weekly wage. |
| Discussion “Complete loss of use” under § 287.190.2 RSMo Employee argues that the administrative law judge erred in awarding 140 weeks of permanent partial disability benefits, citing § 287.190 RSMo, which provides, in relevant part, as follows: |
- For permanent partial disability ... the employer shall pay to the employee compensation computed at the weekly rate of compensation ... which compensation shall be allowed for loss by severance, total loss of use, or proportionate loss of use of one or more of the members mentioned in the schedule of losses.
SCHEDULE OF LOSSES
Weeks
(29) Complete loss of the sight of one eye.............................. 140
- If the disability suffered in any of items (1) through (29) of the schedule of losses is total by reason of severance or complete loss of use thereof the number of weeks of compensation allowed in the schedule for such disability shall be increased by ten percent.
Pursuant to the foregoing, "complete loss of sight of one eye" is equal to 140 weeks of permanent partial disability, with an additional 10\% increase for "complete loss of use thereof." Employee suggests, in his brief, that the parties stipulated employee suffered a complete loss of use of the left eye, such that the 10 % increase is applicable. But the record is not entirely clear on this point, as the administrative law judge recited the parties' stipulation, as follows:
The parties have also stipulated that as a result of this injury the [employee] sustained PPD of 100 percent of the left eye, which is a 140 weeks of compensation.
Transcript, page 2.
It is unclear from the foregoing terminology whether the parties intended to stipulate that employee suffered a "complete loss of sight" in the left eye, or a "complete loss of use thereof." It is also unclear whether the administrative law judge's reference to 140 weeks of compensation represents the stipulated extent of employer's liability for permanent partial disability benefits, or a mere recital by the administrative law judge of the statute's provision that complete loss of sight of one eye is equal to 140 weeks of compensation.
Turning to the report from employee's medical expert, Dr. Joan Pernoud, we find the doctor's opinion that employee's "primary visual efficiency" is 0 % based on findings that his "visual acuity efficiency" is 0 %, his "visual field efficiency" is 82 %, and his "visual binocular efficiency" is 100 %. Transcript, page 163. It appears from Dr. Pernoud's calculations that employee suffered a complete loss of visual acuity efficiency in the left eye, and we feel confident in so finding, as his report is the only expert medical evidence on the record. Yet, nowhere in Dr. Pernoud's report does he state that employee suffered a complete loss of use of the left eye.
- 3 -
Based solely on the record before us, we would be inclined to leave the administrative law judge's award of 140 weeks of permanent partial disability benefits undisturbed. At oral arguments in this matter, however, counsel for employer acknowledged, in an admirable show of candor, that employee suffered a total loss of use of his left eye, and that a 10% increase may be appropriate in this case. Based on this concession, we feel confident in interpreting the administrative law judge's recitation of the parties' stipulation regarding permanent partial disability to mean that the parties intended to stipulate that employee suffered a complete loss of use of the left eye. "A stipulation should be interpreted in view of the result which the parties were attempting to accomplish." *Boyer v. Nat'l Express Co.*, 49 S.W.3d 700, 705 (Mo. App. 2001).
Accordingly, we hereby modify the administrative law judge's award to apply the 10% increase under § 287.190.2. Employer's liability for permanent partial disability benefits is equal to 154 weeks at the rate of 200 per week, for a total of 30,800.00.
**Conclusion**
We modify the award of the administrative law judge as to the issue of employer's liability for permanent partial disability benefits.
Employer's liability for permanent partial disability benefits is $30,800.00.
The award and decision of administrative law judge Margaret D. Landolt, issued September 23, 2014, is attached hereto and incorporated by this reference to the extent not inconsistent with our findings, conclusions, decision, and modifications herein.
This award is subject to a lien in favor of Elizabeth Ituarte, Attorney at Law, in the amount of 25% for necessary legal services rendered.
Any past due compensation shall bear interest as provided by law.
Given at Jefferson City, State of Missouri, this 12th day of March 2015.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
John J. Larsen, Jr., Chairman
James G. Avery, Jr., Member
Curtis E. Chick, Jr., Member
Attest:
Secretary