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| | 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: | | |
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1. 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
2. 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.
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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
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# AWARD
Employee: Alejandro Romero
Injury No.: 11-036384
Dependents: N/A
Employer: Nelson Flooring
Additional Party: N/A
Insurer: Hartford Accident \& Indemnity Co.
Hearing Date: July 1, 2014
Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri
Checked by: MDL
## FINDINGS OF FACT AND RULINGS OF LAW
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: May 13, 2011
5. State location where accident occurred or occupational disease was contracted: 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: Employee was using a nail gun that misfired and shot a nail in his eye.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left eye
14. Nature and extent of any permanent disability: 100 % of the left eye
15. Compensation paid to-date for temporary disability: $\ 1,894.48
16. Value necessary medical aid paid to date by employer/insurer? $\ 48,834.27
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| Employee: Alejandro Romero | Injury No.: 11-036384 |
| --- | --- |
| 17. Value necessary medical aid not furnished by employer/insurer? $350.00 | |
| 18. Employee's average weekly wages: $300.00 | |
| 19. Weekly compensation rate: $200.00/$200.00 | |
| 20. Method wages computation: By stipulation | |
| **COMPENSATION PAYABLE** | |
| 21. Amount of compensation payable: | |
| Unpaid medical expenses: | $350.00 |
| Underpayment of temporary total disability benefits | $3,789.53 |
| 140 weeks of permanent partial disability from Employer | $28,000.00 |
| Cost of Personal Service on Nelson Davilla | $95.00 |
| 22. Second Injury Fund liability: No | |
| **TOTAL:** | $32,234.53 |
| 23. Future requirements awarded: Future medical treatment pursuant to award | |
| Said payments to begin 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% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ms. Elizabeth Ituarte | |
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# FINDINGS OF FACT and RULINGS OF LAW:
Employee: Alejandro Romero
Departments: N/A
Employer: Nelson Flooring
Additional Party: N/A
Insurer: Hartford Accident \& Indemnity Co.
Injury No.: 11-036384
Before the
Division of Workers'
Compensation
Department of Labor and Industrial
Relations of Missouri
Jefferson City, Missouri
Checked by: MDL
## PRELIMINARIES
A hearing was held on July 1, 2014 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Alejandro Romero ("Claimant") was represented by Ms. Elizabeth Ituarte. Nelson Flooring ("Employer") and its insurer Hartford Accident and Indemnity Company were represented by Mr. William Paasch. Ms. Ituarte requested a fee of 25 % of Claimant's award.
The parties stipulated that on or about May 13, 2011 Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; Claimant was paid Temporary Total Disability ("TTD") benefits of $\ 1,894.48 for the period from May 14, 2011 to November 28, 2011 at the rate of $\ 66.66 a week; Employer paid medical benefits of $\ 48,834.27; Claimant sustained Permanent Partial Disability ("PPD") of 100 % of the left eye at the 140 week level as a result of the work injury of May 13, 2011; and the medical benefits shall remain open, and Employer shall provide future medical benefits including all care necessary to cure and relieve the effects of the work injury of May 13, 2011 including but not limited to any replacement contact lenses and solutions necessary to maintain the contact lenses.
The issues to be determined are what was Claimant's average weekly wage at the time of his work accident, and what are the appropriate rates of