Morris Bynum v. S. F. Shannon Real Estate

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We note that in employer/insurer's Respondent's Brief filed with the Commission on March 15, 2016, employer/insurer agreed that it is liable to reimburse Ms. Bynum in the amount of $913.00 for burial expenses.

After careful consideration, we ultimately agree with the administrative law judge's findings, analysis, and conclusions with respect to all issues apart from the issue of burial expenses. Given that the parties appear to be in agreement that the administrative law judge should have awarded burial expenses to Phyllis Bynum, we modify the award accordingly. In all other respects, we adopt the award and decision of the administrative law judge as our own.

**Award**

We modify the administrative law judge's award with respect to the issue of employer/insurer's liability for burial expenses pursuant to § 287.240(1) RSMo.

Dependent Phyllis Bynum is entitled to, and employer/insurer is hereby ordered to pay, $913.00 for burial expenses.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued October 27, 2015, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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 3rd day of May 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Morris Bynum (deceased)

Departments: See award

Employer: S.F. Shannon Real Estate

Additional Party: none

Insurer: Standard Fire Insurance Company

Hearing Date: July 1, 2015 \& July 13, 2015

Injury No.: 11-036577

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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 14, 2011
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 fell from a ladder injuring his head and body as a whole.
12. Did accident or occupational disease cause death? Yes Date of death? July 13, 2013
13. Part(s) of body injured by accident or occupational disease: Body as a Whole
14. Nature and extent of any permanent disability: Death
15. Compensation paid to-date for temporary disability: unknown
16. Value necessary medical aid paid to date by employer/insurer? \$906,866.46

Employee: Morris Bynum

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\ 431.92
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Weekly benefits, so long as provided by law, of:

1. To Phyllis Bynum: $\$ 431.92 \times 1 / 3 minus \$ 50=\ 93.98. Once the arrearages are paid in full, Phyllis Bynum's payment will be $\ 143.98.
2. To Paula Moore for the benefit of Ben Moore, so long as he remains a dependent: $\$ 431.92 \times 1 / 3=143.97$.
3. To Paula Moore for the benefit of Imani Moore, so long as she remains a dependent: $\$ 431.92 \times 1 / 3= \ 143.97.
4. To Paula Moore for arrearages, until paid in full: $\ 50.00
5. Second Injury Fund liability:

None

TOTAL:

INDETERMINATE

1. Future requirements awarded: See award

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 as listed below on all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\ 10,000.00 to attorney MacArthur Moten

$\ 1,000.00 to attorney Lena Conley

Employee: Morris Bynum (deceased)

Departments: Phyllis Bynum, Yehalelel Bynum, Ezra Bynum, Ben Moore, and Imani Moore

Employer: S.F. Shannon Real Estate

Additional Party: n/a

Insurer: Standard Fire Insurance Company

Injury No.: 11-036577

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

This case was initially set for hearing January 22, 2015, and was continued to allow Mr. Moten to add the two minor children and obtain evidence of their ages and dependency. The case was assigned for hearing on March 23, 2015. After lengthy discussion, the case was continued to allow the two dependent children to retain their own attorney to protect their rights to past and future benefits. Ms. Conley entered her appearance for the minor children April 15, 2015. A special mediation was set June 16, 2015, to determine the status of the case, but attorney Conley did not appear. The case was tried on July 1, 2015, with all parties represented.

At the end of the hearing, attorney Moten brought up a motion for attorney fees related to a September 2014 motion he filed under Section 287.203. The parties agreed to continue the hearing and reconvened July 13, 2015 to argue the motion for fees.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

Medical fee disputes were filed in 2014. There was no appearance by or for the health care provider at any of the hearings. It appears the notices of hearing were not sent to the health care provider or their attorney. The medical fee dispute issue shall remain open and shall be set on a medical fee dispute docket in the normal rotation.

Employer/Insurer objected to the admission of Exhibit 20 as it contained an itemization of expenses without bills outlining the charges. Exhibit 20 is admitted.

Attorney Conley was to send her attorney contract and fee statement to be admitted as Exhibit 18, but no such contract or statement has been received.

Claimants object to Employer's Exhibit B. I find Exhibit B is admissible for the limited purpose of establishing the reasonableness of Employer's suspension of benefits.

The parties stipulated to the following:

1. On May 14, 2011, Employee, Morris Bynum, sustained an injury by accident arising out of and in the course of his employment for Employer.
2. Employer and Employee were operating under the provisions of the Missouri workers' compensation act on the date of injury.
3. Employer's liability was fully insured by Standard Fire Insurance Company.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. The work injury resulted in Employee's death on July 13, 2013.
6. Employee's average weekly wage yields a compensation rate of $\ 431.92 for TTD and death benefits.
7. Employee was paid TTD benefits until the date of his death.
8. Employee received $\ 906,866.46 in medical benefits.

The parties stipulated the issues to be resolved are as follows:

1. Distribution of past death benefits
2. Distribution of future death benefits
3. Attorney fees

Based on the competent and substantial evidence, my observations at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Employee, a 52 year-old, married male was injured May 14, 2011, when he fell off a ladder while working for Employer. Employee struck his head and was diagnosed with a subdural hematoma and subarachnoid hemorrhage. He underwent a craniotomy and subdural evacuation and had long term care in a rehabilitation facility and nursing home. In January 2013 Employee was diagnosed with end stage leukemia, and palliative care was ordered. Employee died July 13, 2013.
2. The initial death certificate listed leukemia as the cause of death. The medical examiner later amended the cause of death to complications of closed head trauma.
3. Employee's expert, Dr. Payne, reviewed the medical records and autopsy report and issued a report November 3, 2013. He opined the cause of death was the head injury.

1. Employer's expert, Dr. Hogan, reviewed the medical records and autopsy report and issued a report March 3, 2014. He opined the cause of death was cardiopulmonary failure.
2. Employee had a number of dependents. He and his wife, Phyllis Bynum, married in 1991. They had two children. Yehalelel Bynum was born July 7, 1994. Ezra Bynum was born August 23, 1995. Phyllis Bynum testified their children were planning to go to college before Employee's death. They are not in school now and are looking for work. Mrs. Bynum works as a teacher, and both children reside with her.
3. Employee had