Jason Harrington v. Fordyce Concrete

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 13-087679

**Employee:** Jason Harrington

**Employer:** Fordyce Concrete (settled)

**Insurer:** Self-Insured

**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 reviewed the evidence, read the parties' briefs, and considered the whole record, we find that the amended award of the administrative law judge allowing 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 amended award and decision of the administrative law judge with this supplemental opinion.

Section 287.220, RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." *Id.*

Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

> [T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

*Knisley v. Charleswood Corp.,* 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Fund liability for PTD under Section 287.220.1 occurs when [the employee] establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For [the employee] to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD.

*Lewis v. Treasurer of Mo.,* 435 S.W.3d 144, 157 (Mo. App. 2014).

We agree with the administrative law judge that employee established that 1) he had a preexisting injury that constituted a hindrance or obstacle to employment or to obtaining reemployment; 2) he had a 20% permanent partial disability related to his right knee from his

Injury No.: 13-087679

Employee: Jason Harrington

-2-

primary injury; and 3) employee was permanently and totally disabled due to the combination of the two injuries.

The administrative law judge also found that the "pre-existing disabilities combined with the work-related accident of November 18, 2013[,] to create a synergistic effect of greater overall disability resulting in permanent, total disability." Award, p. 12. However, pursuant to § 287.220 RSMo, synergy is not an element to finding permanent total disability. Synergy is only an element for establishing permanent partial disability.

"The Fund is liable where a claimant establishes either [1] that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability or [2] the combination of his present compensable injury and his preexisting permanent partial disabilities create a greater overall disability than the sum of the disabilities independently. Lewis, 435 S.W.3d at 152 (emphasis and numbering added) (citing Highley v. Von Weise Gear, 247 S.W.3d 52, 55 (Mo. App. E.D. 2008); Elrod v. Treas. of Missouri as Custodian of Second Injury Fund, 138 S.W.3d 714, 717-18 (Mo. banc 2004)).

With this clarification that the finding of synergy was not required in this matter, we affirm the amended award.

**Conclusion**

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

The amended award and decision of Administrative Law Judge Angela C. Heffner 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 30th day of May 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornelo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

Employee: Jason Harrington

Injury No. 13-087679

Employer: Fordyce Concrete (settled)

Self-Insured: Fordyce Concrete (settled)

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

Hearing Date: June 19, 2018

Checked by: $\mathrm{ACH} / \mathrm{lh}$

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 18, 2013
5. State location where accident occurred or occupational disease was contracted: Claycomo, Clay 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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While in the course and scope of his employment, Employee was stepping down from a ladder when he stepped in a hole causing his right knee to twist.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: right knee

1. Nature and extent of any permanent disability: 20% permanent partial disability of the right knee against the Employer (previously settled). Permanent total disability against the Second Injury Fund.

1. Compensation paid to-date for temporary disability: $607.10

1. Value necessary medical aid paid to date by employer/insurer? $20,928.12

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

1. Weekly compensation rate: 607.10 for temporary and permanent total disability and 446.85 for permanent partial disability

1. Method wages computation: By stipulation

1. Amount of compensation payable:

The Second Injury Fund shall pay permanent total disability benefits of $160.25 per week for 32 weeks beginning June 6, 2014, and thereafter, to pay permanent total disability benefits of $607.10 per week for Claimant's lifetime.

Future requirements awarded: None.

The compensation awarded to Mr. Harrington shall be subject to a twenty-five percent (25%) lien of the benefits due and owing and 25% of each weekly benefit paid thereafter in favor of Rice & Associates, P.C., for reasonable and necessary attorney's fees pursuant to Mo.Rev.Stat. §287.260.1.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

On June 19, 2018, the Employee and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110 RSMo. The Employee, Jason Harrington (Claimant or Employee), appeared in person and with counsel, John Redmond. Second Injury Fund ("Fund") appeared by and through its counsel, Assistant Attorney General Alexandra Alpough.

On July 26, 2018, Claimant filed Employee's Motion to Allow the Corrected/Amended Report (Now Marked "Exhibit CC") of Dr. William Hopkins to be Admitted Into Evidence and/or Employee's Application for a Continuance Granting Employee Leave to File Corrected/Amended Exhibit CC. The Second Injury Fund filed its Objection to Employee's Motion for Admission of Amended Report on July 26, 2018. Claimant filed Employee's Response to Second Injury Fund's Objection to Employee's Motion for Admission into Evidence of Dr. Hopkins' Corrected/Amended Report (Amended "Exhibit CC") and/or Employee's Application for a Continuance Granting Leave to File a Corrected/Amended Exhibit CC on July 27, 2018. Employee's Motion to Allow the Corrected/Amended Report (Now Marked "Exhibit CC") of Dr. William Hopkins to be Admitted Into Evidence and/or Employee's Application for a Continuance Granting Employee Leave to File Corrected/Amended Exhibit CC is denied.

For the reasons noted below, I find the Second Injury Fund is liable to Claimant for permanent total disability compensation and, therefore, award him permanent total disability benefits from the Second Injury Fund.

The parties stipulated that:

1. On or about November 18, 2013, Fordyce Concrete Company was an employer operating subject to Missouri's Workers' Compensation law;
2. Jason Harrington was its employee working subject to the law in Claycomo, Clay County, Missouri;

[^1] [^0]: Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2009, unless otherwise indicated.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

1. Mr. Harrington notified the Employer of his injury and filed his claim within the time allowed by law;
2. Mr. Harrington's weekly compensation rate of 607.10 for permanent and temporary total disability, and 446.85 for permanent partial disability;
3. The Employer provided Mr. Harrington with medical care costing 20,928.12;
4. Employer paid 607.10 in temporary total disability benefits; and
5. If a finding of permanent total disability is made, the commencement date for permanent total disability benefits is June 6, 2014.

ISSUES

The parties requested the Division to determine:

1. Whether the Second Injury Fund is liable to the employee for any disability compensation.

FINDINGS OF FACT

Mr. Harrington testified on his own behalf, and offered the following Exhibits, which were admitted into evidence without objection:

CLAIMANT'S EXHIBITS:

A Injury No. 13-087679 Amended Claim for Compensation

B Attorney Contract, 11/20/14

C Second Injury Fund's Answer to Claim for Compensation

D Section 287.440 RSMo. 2017

E Application for Hearing filed in Kansas, Docket No. 1,072,011

F Pretrial Stipulations, 4/15/15

G 1/4/16 Award denying jurisdiction of Kansas claim

H US HealthWorks Medical record, 11/21/13

I MRI of right knee, 12/30/13

J Medical records of Dr. Thomas Samuelson, M.D., 1/20/14 to 6/6/14

K 2/4/14 operative report of Dr. Samuelson

L 12/23/14 medical report of Dr. William O. Hopkins, M.D.

M Employer/Insurer's Stipulation, Injury No. 13-087679,

N Medical records of George Robinson, M.D., 9/23/10, 9/27/10 & 10/11/10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jason Harrington

Injury No. 13-087679

O Providence Medical Center Sleep Study, 4/6/11

P United Medical Group medical records, 8/2/11