Patrick Hull v. Dr. Pepper-Seven Up Bottling

Neither the worker's ability to engage in occasional or light duty work nor the worker's good fortune in obtaining work other than through competition on the open labor market should disqualify the worker from receiving such total disability benefits under the Workers' Compensation Law.

Brashers v. Treasurer of the State As Custodian of the Second Injury Fund, 442 S.W.3d 152, 162-63 (Mo. App. 2014)(citation omitted).

Employee's work and his above-described earnings are not, in our view, evidence of an ability to compete for and secure substantial, gainful employment in the open labor market and employee's present accommodations with his employer are at a level that we find to be incompatible with any normal or customary job duty requirements. In other words, we do not find the evidence of employee's ongoing, minimal employment to rebut the credible (and, in our view, overwhelming) evidence that employee is not capable of competing for work in the open labor market.

For this reason, and because we otherwise agree with the administrative law judge's analysis, we affirm the award of permanent total 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 Suzette Carlisle, issued October 26, 2016, 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 15th day of August 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Hearing Date: July 20, 2016

Checked by: SC

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: November 12, 2008
5. State location where accident occurred or occupational disease was contracted: St. Charles County
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: While moving products on a two-wheeler, Claimant was hit in the head with a soccer ball.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Left knee, right knee, cervical spine, back and psychiatric injuries
14. Nature and extent of any permanent disability: 22.5 percent of left knee, 12.5 percent of right knee, 10 percent BAW neck, back and psychiatric (Settled)
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,115.23

1. Value of necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 588.80
3. Weekly compensation rate: $\$ 392.53 / \ 392.53
4. Method wages computation: Stipulated

1. Amount of compensation payable:

(Settled with Employer and Insurer prior to the hearing)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

$\ 392.53 per week payable by SIF for 96 weeks beginning

$10 / 23 / 12$ and, thereafter, for Claimant's lifetime

TOTAL: TO BE DETERMINED

1. Future requirements awarded: N/A

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Attorney Robert Meyers

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patrick Hull

Hearing Date: July 20, 2016

On June 21, 2016, Mr. Patrick Hull ("Claimant") appeared at the Division of Workers' Compensation St. Louis Office ("Division") and requested a hearing for a final award to determine the liability of the Second Injury Fund ("SIF") for either permanent partial disability ("PPD") or permanent total disability ("PTD") benefits. Attorney Robert Meyers appeared on behalf of Claimant. Assistant Attorney General Barbara Toepke appeared on behalf of the SIF.

Prior to the hearing, Dr. Pepper-Seven Up Bottling Company ("Employer") and Zurich American Insurance Company c/o Gallagher Bassett ("Insurer"), settled with Claimant for 22.5 percent of the left knee, 12.5 percent of the right knee, and 10 percent of the body as a whole ("BAW") for the cervical spine, back and psychiatric injuries. The Employer and Insurer did not participate in the hearing. The record closed after presentation of all the evidence. The proceeding was transcribed by Court Reporter Stacy Benoist.

The parties stipulated to the following:

1. That on November 12, 2008, the Claimant was employed by the Employer and sustained an accident that arose out of and in course of his employment in St. Charles County located in the State of Missouri;
2. The parties consent to a hearing in St. Louis, Missouri;
3. The Employer and Claimant operated under the Missouri Workers' Compensation Law ${ }^{1}$;
4. The Employer's liability was fully insured by Zurich American Insurance Company;

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[^0]: ${ }^{1}$ Any reference to the Employer in this award also refers the Insurer unless otherwise stated. WC-32-R1 (6-81)

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patrick Hull

Injury No.: 08-117368

1. The Employer had proper notice of the injury;
2. A claim for compensation was timely filed;
3. Claimant's average weekly wage was $\ 588.80 which resulted in a rate of $\ 392.53 per week for temporary total disability ("TTD"), permanent total disability ("PTD") and permanent partial disability ("PPD") benefits;
4. The Employer paid no TTD benefits;
5. The Employer paid medical benefits totaling $\ 15,115.23; and
6. Claimant reached maximum medical improvement ("MMI") on December 20, 2010.

The parties identified one issue for disposition: The nature and extent of the SIF's liability for either PPD or PTD benefits, if any.

Claimant offered Exhibits 1 through 18, and Exhibits 1 through 12 and 14 through 18 were admitted into evidence without objections. Exhibit 13 was withdrawn. The SIF offered Exhibits I through III which were admitted without objection. Any objections made during the hearing or contained in the depositions but not ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, they were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

All evidence was reviewed, but only evidence that supports this award is discussed below.

Claimant is a high school graduate. He was tutored through junior high while he lived with another family away from his home. Claimant is divorced with four children, three of them have been diagnosed with psychiatric problems. At this time, McKenzie is the only child that resides with Claimant and she is dependent on him for support. All four children lived with Claimant until August 2015 and he supervised their activities. In 2015, Claimant moved to Madison, Wisconsin, so McKenzie could play hockey.

a. Claimant's left knee was surgically repaired by Dr. Lehman around 1973. Claimant missed three months from work,

b. Psychiatric conditions: In the 1980s, Claimant was treated after his first wife died in an automobile accident. He attempted suicide and was placed in a three day hold. In 2