Joseph Pentridge v. Gayman Construction, Inc.

evidence of a synergistic combination between employee's preexisting conditions of ill-being and the primary injury. Employee also testified that his current employer (his neighbor) is aware of his limitations and allows him to "take it easy" when necessary. *Transcript*, page 17. Employee indicated that this arrangement allows him to continue to be gainfully employed despite the combination of limitations resulting from his primary injury and preexisting conditions of ill-being. We deem this credible evidence that the combination of employee's limitations has had a significant impact upon his employability and his earning capacity. We find this sufficient evidence of a synergistic interaction amongst employee's limitations.

Finally, we note that the medical treatment records memorialize employee's difficulty, as a result of his preexisting low back pain, in completing the physical therapy prescribed following the primary injury. Those records also describe the interaction between the pain stemming from employee's preexisting low back radicular symptoms and the effects of his right foot/ankle injury. In our view, these records are further evidence of a magnifying or synergistic interaction between the pain referable to those separate conditions.

In sum, although employee's evidence certainly could be more clear or specific with regard to the issue of synergy, we deem it ultimately sufficient to meet his burden of proof. For this reason, and because we otherwise agree with the administrative law judge's findings, analysis, and conclusions, we affirm and adopt as our own the award allowing permanent partial disability benefits from the Second Injury Fund.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge L. Timothy Wilson, issued September 29, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 17th day of March 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

**Additional Party:** Treasurer of Missouri, as the Custodian of the Second Injury Fund

**Hearing Date:** August 5, 2015 **Checked by:** LTW

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: 09/29/2011
5. State location where accident occurred or occupational disease was contracted: Brown County, Kansas
6. Was the above employee in the employ of the above employer at the time of the alleged accident or occupational disease? Yes
7. Did the employer receive proper notice? Yes
8. Did the accident or occupational disease arise out of and in the course of the employment? Yes
9. Was the claim for compensation filed within time required by Law? Yes
10. Was the employer insured by the above insurer? Yes
11. Describe the work employee was doing and how the accident occurred or occupational disease contracted: While engaged in employment with the Employer, and while securing a track plow to his equipment, the Employee fell to the pavement. As a consequence of this work incident, the Employee sustained an injury to his right foot and heel.
12. Did the accident or occupational disease cause death? No (Date of death? N/A)
13. Part(s) of body injured by the accident or occupational disease: right foot and heel
14. Nature and extent of any permanent disability: 30% to right foot/ankle at the 155-week level
15. Compensation paid to-date for temporary disability: $13,570.32
16. Value necessary medical aid paid to-date by employer/insurer: $11,015.23

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Not Identified
3. Weekly compensation rate: $\ 425.19 (PPD)
4. Method wages computation: Stipulation

1. Amount of compensation payable: N/A (Employee and Employer / Insurer entered into a Stipulation for Compromise Settlement.)
2. Second Injury Fund liability: Yes

23.84 weeks of permanent partial disability from the Second Injury Fund: $\ 10,136.53

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: N/A

TOTAL: $\quad \ 10,136.53

1. Future requirements awarded: None

Said payments to begin immediately 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: E. Joseph Hosmer, Esq.

Employee: Joseph Pentridge

Injury No. 11-080587

Dependents: N/A

Employer: Gayman Construction, Inc.

Insurer: Guarantee Insurance Company

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on August 5, 2015.

The employee appeared personally and through his attorney, E. Joseph Hosmer, Esq. The employer and insurer were not part of the evidentiary hearing, having previously entered into a stipulation for compromise settlement with the employee. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about September 29, 2011, Gayman Construction, Inc. was an employer operating under and subject to the Missouri Workers' Compensation Law, and during this time was fully insured by Guarantee Insurance Company.

(2) On the alleged injury date of September 29, 2011, Joseph Pentridge was an employee of the employer, and was working under and subject to the Missouri Workers' Compensation Law.

(3) On or about September 29, 2011, the employee sustained an accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced accident occurred in the State of Kansas. However, the contract of employment was made in Missouri. Further, the parties agree to venue lying in Greene County, Missouri. The Missouri Division of Workers' Compensation possesses jurisdiction, and venue is proper.

(5) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident the employee's average weekly wage was sufficient to allow a compensation rate of $\ 425.19 for permanent partial disability compensation.

(8) Temporary disability benefits were provided to the employee in the amount of $\ 13,570.32, which represents $294 / 7$ weeks in disability benefits, payable for the period of September 30, 2011 to April 24, 2012.

(9) The employer and insurer provided medical treatment to the employee, having paid $\ 11,015.23 in medical expenses.

(10) The employee and employer / insurer entered into a stipulation for compromise lump sum settlement for $\ 30,000.00 based upon approximate disability of 30 percent to the right foot/ankle at the 155 week level, and closure of future medical care. An administrative law judge with the Division of Workers' Compensation approved this Stipulation for Compromise Settlement on or about March 11, 2014.

The sole issue to be resolved by hearing is as follows:

(1) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation?

The employee testified at the hearing in support of his claim. In addition, the employee offered for admission the following exhibits:

Exhibit 1.....Stipulation for Compromise Settlement B/T Employee \& Employer / Insurer (Inj. No. 11-080587)

Exhibit 2 Medical Report of Robert Paul, M.D.

(Inclusive of Medical Records \& Attachments)

Exhibit 3.....Stipulation for Compromise Settlement B/T Employee \& Employer / Insurer (Inj. No. 02-087683)

Exhibit 4.....Stipulation for Compromise Settlement B