Ronald Sanford v. Roto Rooter

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No. 09-099970

**Employee:** Ronald Sanford

**Employer:** Roto Rooter (settled)

**Insurer:** Amco Insurance Company (settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge (ALJ) awarding compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the ALJ with this supplemental correcting opinion.

The second sentence of the second paragraph on page 7 of the ALJ's Findings of Fact and Rulings of Law states:

> Claimant also stated that he had two different surgeries on his left shoulder; the first by Dr. Tarbox for rotator cuff tear and the second by Dr. deGrange for rotator cuff tear.

In fact, claimant recalled a 2010 left shoulder rotator cuff surgery performed by Dr. Tarbox of the Columbia Orthopaedic Group and subsequent shoulder surgery performed in 2011 or 2012 by a different surgeon in St. Louis whose name claimant could not recall. We note that Dr. Milne describes three shoulder surgeries performed in 2009, 2010 and in 2011. These observations do not detract from or affect the ALJ's correct analysis.

We affirm and adopt the award of the ALJ as supplemented herein.

The award and decision of Administrative Law Judge David L. Zerrer, issued December 6, 2017, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

We approve and affirm the ALJ's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

-2-

Given at Jefferson City, State of Missouri, this **20th** day of June 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

**Curtis E. Chick, Jr., Member**

Attest:

**Secretary**

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am not able to conclude that the employee is permanently and totally disabled based upon a combination of his primary injury and preexisting disability.

As the Second Injury Fund's (SIF) Application for Review states:

> The ALJ's award ignored the majority of evidence from expert witnesses (emphasis added). The ALJ's award inherently relies solely on the evidence presented by Dr. Volarich and Mr. England, both of whom were retained by Employee. Numerous other experts provided testimony and reports, which were entered into evidence and support contrary conclusions.

Furthermore, as the SIF persuasively argues in its brief:

> [T]he Administrative Law Judge only arrived at the conclusion he did by finding Claimant and Claimant's experts to be [the] most persuasive. Overall, there were ten experts deposed in this case and the award appears to have relied solely on two of them, ignoring the majority of the evidence. There is a substantial amount of evidence to support contrary conclusions, including findings of permanent total disability based on the last injury in isolation, or that Employee is not permanently and totally disabled.

Based on my review of the medical records, credible medical and vocational expert testimony, I am not able to conclude that the employee is permanently and totally disabled based upon a combination of his primary injury and preexisting disability.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

*Brief of Petitioner Missouri State Treasurer, p. 21.*

Employee: Ronald Sanford

Injury No. 09-099970

Dependents:

Employer: Roto-Rooter, Setttled

Additional Party: Second Injury Fund

Insurer: N/A

Hearing Date: August 9, 2017/August 30, 2017

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

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: July 21, 2009
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone County, 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? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was using jackhammer when felt pain in low back
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Back, body as a whole
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 28,412.21
16. Value necessary medical aid paid to date by employer/insurer? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 673.70

1. Weekly compensation rate: 449.13/$422.97

1. Method wages computation: Stipulated

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer has previously resolved all issues in this claim.

1. Second Injury Fund liability: Yes X No Open

Permanent total disability benefits from Second Injury Fund:

Weekly differential $26.16 payable by SIF for 100 weeks beginning January 5, 2013, and thereafter, the sum of 449.13 per week for Claimant's lifetime, according to law

TOTAL: 2,616.00 PLUS $449.13 PER WEEK FROM DECEMBER 5, 2014 FOR CLAIMANT'S LIFETIME ACCORDING TO LAW

1. Future requirements awarded: N/A

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% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Lake Law Firm

WC-32-R1 (6-81)

Page 2

**Employee:** Ronald Sanford

**Injury No.:** 09-099970

**Employee:** Ronald Sanford

**Dependents:**

- **Employer:** Roto-Rooter Services

- **Additional Party:** Second Injury Fund

- **Insurer:** N/A

**Injury No.:** 09-099970

**Before the DIVISION OF WORKERS' COMPENSATION**

- **Department of Labor and Industrial Relations of Missouri**

- **Jefferson City, Missouri**

**Checked by:** DLZ

On the 9th day of August, 2017, the parties appeared before the undersigned Administrative Law Judge for final hearing. Claimant appeared in person and by his attorney, Thomas Pirmantgen. Employer, having previously settled and resolved all issues in the primary injury claim, does not appear. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appears by Assistant Attorney General Kirsten Dunham. The record was ordered to remain open until the 30th day of August 2017.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the 21st day of July 2009, Roto-Rooter Services was an employer operating subject to the Missouri Workers' Compensation Law; on the alleged injury date of July 21, 2009, Ronald Sanford was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about July 21, 2009, Claimant sustained an accident, which arose out of the course of and scope of employment; the employment occurred in Columbia, Boone County, Missouri, and the parties agree that Boone County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average wage was 673.70, sufficient to allow compensation rates of 449.13 for temporary total

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

disability and permanent total disability and $422.97 for permanent partial disability; temporary disability benefits have been paid in the amount of $28,412.21, prior to the date of this hearing, which represents 63-2/7 weeks of benefits; Claimant's attorney seeks approval of an attorney fee of 25% of the amount of any award; the parties further stipulate and agree that the date of maximum medical improvement was January 4, 2013.

ISSUE

The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability?

DISCUSSION

A legal file was established for this hearing which consisted of the following documents, to wit: Report of Injury, dated July 24, 2009; Report of Injury, dated August 5, 2009; Claim for Compensation, filed with the Division December 22, 2009; First Amended Claim for Compensation, filed with the Division August 16, 2011; Second Amended Claim for Compensation, filed with the Division June 28, 2012; Answer of the Second Injury Fund to Claim for Compensation, filed with the Division December 30, 2009; Answer of the Second Injury Fund to First Amended Claim for Compensation, filed with the Division August 31, 2011; Answer of the Second Injury Fund to Second Amended Claim for Compensation, filed with the Division July 26, 2012; Stipulation for Compromise Settlement, approved by the Division August 21, 2014; Request for final Hearing, filed with the Division April 6, 2017.

Claimant offered, and there was admitted, without objection, Exhibits 1 through 21.

WV-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

Ronald Sanford, claimant herein, testified in his own behalf. He testified that he was born November 18, 1954, and has resided in Holts Summit, Missouri, for the past 20 years. Claimant did not graduate high school, but quit to enter into training as a plumber. Claimant does not have a GED certificate. At age 18, Claimant began work as an apprentice plumber and worked as an apprentice for four years until he achieved journeyman plumber status. Claimant indicated that becoming a journeyman plumber required passing a written test and an application for certification, after which Claimant could work as a plumber without supervision. Claimant worked as a journeyman plumber for about five years until he reached the certification level of master plumber.

Claimant testified that it took him ten or eleven years from his first plumber's job to achieve the status of master plumber, which allowed him to own a plumbing business and to apply for licenses and permits to install plumbing lines and fixtures. Claimant owned his own plumbing business for 24 years and performed plumbing tasks as well as working up bids, getting permits, and generally managing the business. He stated that he had as many as three employees from time to time, but