Daniel Small v. Red Simpson, Inc.

Employee credibly testified that he accepted a job offer during a phone conversation with employer while he was in St. Ann, Missouri. After receiving and accepting the job offer in Missouri, employee began work in Beaumont, Texas, on September 5, 1995.

On September 12, 1995, employee sustained a compensable, work-related electrocution injury while working as a journeyman lineman for employer in Texas. As a result of the injury, employee underwent an amputation of his right arm at the forearm. Employee pursued a workers' compensation claim in Texas, which the parties resolved in 2000 by compromise settlement.

Shortly after his accident in Texas, employee returned to Missouri. Employer agreed that it is responsible for future medical treatment reasonably necessary to cure or relieve the effects of the injury. Employer has provided medical treatment in Kansas and temporary total disability benefits pursuant to the Texas settlement. At the time of the hearing in this matter, employer had paid $\ 268,436.96 in medical expenses.

The parties agreed that employee was temporarily and totally disabled from September 13, 1995, through April 21, 1997. The employer paid \$33,934.25 in temporary total disability benefits in connection with the Texas workers' compensation claim. Those benefits were paid from September 15, 1995, through April 21, 1997, at a weekly rate of $\ 392.00. The employer made two additional temporary total disability payments between April 21, 1997, and November 24, 1997, at the rate of $\ 307.12.

The employer also paid $\ 63,446.46 in permanent partial disability benefits in connection with the Texas workers' compensation claim. Those benefits were paid at three different compensation rates: $\$ 327.69, \ 285.51, and $\ 285.57.

There is no evidence on this record that employer has paid any compensation to employee specifically for the disfigurement he suffered with regard to the amputation of his right upper extremity at the forearm.

The parties agreed that employee's Missouri average weekly wage would have been $\ 753.42, and would yield compensation rates of $\ 490.28 for temporary total disability benefits and $\ 257.29 for permanent partial disability benefits.

As we have noted, employee's 1995 electrocution injury resulted in amputation of his (dominant) right hand. The injury also left employee with a chronic pain condition in his abdomen, where 7200 volts of electricity exited his body. Employee provided unanimous ratings from Drs. Koprivica and Stuckmeyer of 100\% permanent partial

[^0]

[^0]: ${ }^{1}$ In its decision of November 17, 2015, the Court did not disturb any of the factual findings that were rendered by the administrative law judge and that were subsequently affirmed and adopted by the Commission; instead, the Court reached its decision on a purely legal question. Accordingly, the previous findings of the Commission, along with the parties' stipulations, are reproduced and set forth herein for the benefit and convenience of the parties. We have also rendered new findings of fact, as our prior decision stopped short at the minimum findings necessary to resolve what was then deemed the dispositive issue of the statute of limitations.

disability of the right upper extremity at the 210-week level for the amputation, as well as a 15 % permanent partial disability of the body as a whole from Dr. Stuckmeyer for the abdominal pain. Employer does not advance any contrary rating.

Instead, employer's post-remand brief argues that because employee subsequently received a permanent total disability award from the Second Injury Fund based on a combination of the 1995 injury with a 2008 low back/bilateral shoulder injury, he has already been compensated for any permanent partial disability resulting from the 1995 injury. But, obviously, compensation for a condition of permanent total disability arising after a subsequent injury does not preclude compensation in a claim for permanent partial disability referable to a prior injury.

This is employer's sole argument. Employer does not identify any stipulated impairment rating to which the parties may have agreed in the Texas settlement, or argue that employee should be bound by such in this Missouri proceeding. We have no evidence of any agreement by employee to a specific percentage of impairment in the Texas settlement that could in any way bind him to any particular percentage of permanent partial disability pursuant to the schedule of losses under Chapter 287.

In the absence of employer advancing any contrary rating, or a colorable argument why we should reject or discount the ratings from Drs. Koprivica and Stuckmeyer, we hereby adopt their ratings. We find that employee suffered, as a result of the work injury, a 100 % permanent partial disability of the right upper extremity at the 210-week level referable to the amputation, plus a 15 % permanent partial disability of the body as a whole referable to chronic abdominal pain.

The Commission previously concluded there is Missouri jurisdiction in this case by adopting the administrative law judge's finding, which in turn credited employee's testimony that he entered the contract of hire, via telephone, while in Missouri. On appeal, the Court explicitly affirmed that conclusion. Small v. Red Simpson, Inc., 484 S.W.3d 341, 346 (Mo. App. 2015). Thus, the existence of Missouri jurisdiction has effectively become the law of the case. See Smith v. Capital Region Med. Ctr., 458 S.W.3d 406, 414 (Mo. App. 2014). Accordingly, we conclude that there is Missouri jurisdiction over this claim.

Section 287.170 RSMo provides for the payment of temporary total disability benefits while an employee is engaged in the rehabilitative process following a compensable work injury. Greer v. Sysco Food Servs., 475 S.W.3d 655 (Mo. 2015). As noted above, the parties stipulated employee was temporarily and totally disabled from September 13, 1995, through April 21, 1997. They also stipulated that employee's weekly rate for temporary total disability benefits is higher in Missouri than the rate employer paid on the Texas claim by $\ 98.28.

Employer's brief argues the Commission should deny temporary total disability benefits because employee didn't file his Missouri claim until after the period of temporary total

disability ended. We are not persuaded. Employer cannot cite any statutory or case law basis for its argument, as none exists. Practically speaking, except in cases of hardship pursuant to $\S 287.203 RSMo, or where a temporary or partial award is sought pursuant to \S 287.510$ RSMo, a period of temporary total disability will often have ended at the time an employee files a claim for compensation. Simply stated, nothing within Chapter 287 requires an employee to file a claim for compensation before a period of temporary total disability has ended.

We conclude employee is entitled to temporary total disability benefits at the Missouri rate of $\ 490.28 during the stipulated period of temporary total disability, less a credit to employer for its prior payment of $\ 33,934.25 in connection with the Texas claim, for a total of $\ 7,179.23.

Section 287.190 RSMo provides for the payment of permanent partial disability benefits in connection with employee's compensable work injury. We have found that employee's 1995 electrocution injury resulted in amputation of his (dominant) right hand, and a chronic pain condition in his abdomen where 7200 volts of electricity exited his body. We have also adopted the ratings from Drs. Koprivica and Stuckmeyer of 100\% permanent partial disability of the right upper extremity at the 210-week level for the amputation, plus a 15\% permanent partial disability of the body as a whole from Dr. Stuckmeyer for the abdominal pain.

When we add the 10\% statutory enhancement for complete loss of a member pursuant to $\S 287.190 .2$ RSMo, we conclude that employee suffered a total of 291 weeks of permanent partial disability referable to the 1995 electrocution injury. At the stipulated Missouri weekly benefit rate of $\ 257.29, employee is entitled to $\ 74,871.39, less a credit for the amounts employer paid for disability/impairment in connection with the Texas claim of $\ 63,446.46, for a total of $\ 11,424.93.

Section 287.190.4 RSMo governs the compensation that may be paid in cases of disfigurement and provides, in pertinent part, as follows:

If an employee is seriously and permanently disfigured about the head, neck, hands or arms, the division or commission may allow such additional sum for the compensation on account thereof as it may deem just, but the sum shall not exceed forty weeks of compensation.

Again, we have found that employee's 1995 electrocution injury left him with an amputated right (dominant) upper extremity at the forearm. He is entitled to compensation pursuant to the foregoing statute for this disfigurement. Employer's postremand brief argues, however, that employee should not get any award for disfigurement because he is able to wear a prosthesis in place of his amputated right arm. We are not persuaded. Employer fails to cite any statutory or case law basis for denying an award of disfigurement solely because employee has the good fortune to be able to use a pr