Sterling Bennett v. Coatings Unlimited, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-077933**

**Employee:** Sterling Bennett

**Employer:** Coatings Unlimited, Inc. (settled)

**Insurer:** Phoenix Insurance Company/Travelers Indemnity Company of Connecticut (settled)

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

The above-entitled 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, heard oral arguments, and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 4, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John K. Ottenad, issued June 4, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **10th** day of January 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-077933

AWARD

Employee: Sterling Bennett

Injury No.: 13-077933

Dependents: N/A

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Employer: Coatings Unlimited, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Phoenix Insurance Company/

Travelers Indemnity Company of Connecticut (Settled)

Hearing Date: January 23, 2019

Record Closed February 22, 2019

Checked by: JKO

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: August 14, 2013

1. State location where accident occurred or occupational disease was contracted: Clay County

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant

was employed as a painter for Employer and was climbing out of a bucket lift to take down some containment

in the ceiling, when he slipped on the top rail and fell back into the bucket causing his right knee to twist

awkwardly.

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: 22.5% of the Right Knee

1. Compensation paid to-date for temporary disability: $121.87

1. Value necessary medical aid paid to date by employer/insurer? $23,416.08

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-077933

Employee: Sterling Bennett

Injury No.: 13-077933

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: Sufficient to result in the appropriate rates of compensation

1. Weekly compensation rate: $853.08 for TTD/$446.85 for PPD

1. Method wages computation: By agreement (stipulation) of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer's liability resolved by virtue of the compromise settlement

1. Second Injury Fund liability:

Claim for permanent partial disability is denied

TOTAL: $0.00

1. Future requirements awarded: None

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: Laurence D. Mass.

Revised Form 31 (3/93)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

injury No. 13-077933

Employee: Sterling Bennett

Dependents: N/A

Employer: Coatings Unlimited, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Phoenix Insurance Company/ Travelers Indemnity Company of Connecticut (Settled)

Injury No.: 13-077933

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Phoenix Insurance Company/ Travelers Indemnity Company of Connecticut (Settled)

On January 23, 2019, the employee, Sterling Bennett, appeared in person and by his attorney, Mr. Laurence D. Mass, for a hearing for a final award on his claim against the Second Injury Fund. The employer, Coatings Unlimited, Inc., and its insurer, Phoenix Insurance Company/Travelers Indemnity Company of Connecticut, were not present or represented at the hearing since they had previously settled their risk of liability in this case. The Second Injury Fund was represented at the hearing by its attorney, Assistant Attorney General Adam T. Sandberg.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until February 22, 2019. Although we did not go back on the record, or take any further evidence in this case, the record, then, closed automatically on that date and the parties filed their proposed awards or briefs by March 1, 2019.

Along with this Claim [Injury Number 13-077933, with an alleged date of injury of August 14, 2013, alleging injury to the right knee], Claimant also tried his other open companion claim at the same time. Injury Number 14-021772, with a date of injury of March 24, 2014, alleges injury to the left hand and ribs. A separate award has been issued for each of these cases.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) Sterling Bennett (Claimant) sustained an accidental injury that resulted in injury to Claimant.

2) Claimant was an employee of Coatings Unlimited, Inc. (Employer).

3) Venue is proper in the City of St. Louis, by agreement.

4) The Claim was filed within the time prescribed by the law.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-077933

5) At the relevant time, Claimant earned an average weekly wage sufficient to result in applicable rates of compensation of 853.08 for total disability benefits and 446.85 for permanent partial disability (PPD) benefits.

6) Employer paid temporary total disability (TTD) benefits in the amount of $121.87, representing a period of time of one day.

7) Employer paid medical benefits totaling $23,416.08.

8) Claimant sustained permanent partial disability of 22.5% of the right knee, on account of the 2013 injury.

ISSUES:

1) What is the appropriate date of injury for this case?

2) Did the accident arise out of and in the course of Claimant's employment for Employer?

3) Did Claimant provide Employer with appropriate notice of this injury?

4) What is the liability, if any, of the Second Injury Fund for permanent partial disability?

5) Is the Second Injury Fund entitled to claim a safety penalty under Mo. Rev. Stat. § 287.120 to reduce Second Injury Fund liability in this case?

EXHIBITS:

The following exhibits were admitted into evidence:

Employee Exhibits:

1. Medical treatment records of SSM DePaul Health Center, The Orthopedic Center of St. Louis, Liberty Hospital, Metropolitan Orthopedics LTD., PRORehab, Dr. Daniel Phillips, Olive Ambulatory Surgery Center, Concentra Medical Center, Dr. Anthony Masi, SSM Health St. Joseph Hospital in St. Charles, Dr. Vijaya Vasudevan, Barnes-Jewish Hospital and Stipulations for Compromise Settlement in Injury Numbers 99-039388, 13-077933 and 14-021772

1. Stipulation for Compromise Settlement in Injury Number 99-039388 (Date of Injury of April 9, 1999) between Claimant and an employer

1. Stipulation for Compromise Settlement in Injury Number 13-077933 (Date of Injury of August 14, 2013) between Claimant and Employer

1. Stipulation for Compromise Settlement in Injury Number 14-021772 (Date of Injury of March 24, 2014) between Claimant and Employer

WC-32-R1 (6-R1)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-077933

1. Independent medical report of Dr. Shawn Berkin dated September 1, 2017

1. Deposition of Ms. Delores Gonzalez dated March 15, 2018

1. Vocational rehabilitation report of Ms. Delores Gonzalez dated November 13, 2017

1. Curriculum Vitae of Ms. Delores Gonzalez

1. Award of benefits from the Social Security Administration

**Second Injury Fund Exhibits:**

I. Certified employment records of Sterling Bennett from Coatings Unlimited, Inc.

II. Certified medical records of Dr. Alexandra Strong

III. Résumé of Mr. Kevin R. Bergman

IV. Selected records from the Social Security Administration in connection with Claimant's application for Social Security disability benefits

**Note:** Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on January 23, 2019. No additional markings have been made since their admission on that date.

**FINDINGS OF FACT:**

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions, the vocational opinion and deposition, the medical treatment records, the other documentary evidence, and the testimony of the other witnesses for Claimant and the Second Injury Fund, as well as my personal observations of Claimant and the other witnesses at hearing, I find:

1) **Claimant** is a 56-year-old, right-hand dominant, currently unemployed individual, who was working for Coatings Unlimited, Inc. (Employer) as a painter on or about August 14, 2013. He worked for Employer for approximately 3 years, from 2012 to 2015, when, in February 2015, he was told that Employer had no more work for him after he was released from care for his work injury. He has not worked anywhere else since then because of the effects of all of his injuries/conditions. He applied for, and is receiving, Social Security disability benefits.

2) **Claimant** testified that he graduated from high school at Conway Day School. He said that he attended Hazelwood West until eighth grade, where he received special education services because he was learning challenged and had horrible grades. Then, he transferred to Conway Day School, which he described as "pretty lenient" and not like a regular high school. He said that even though he was a half credit short, he still received his high school diploma. He has also taken a couple of college courses. He denied having any computer skills, and explained that his daughter set up his phone so he could receive e-mails, but if he wants to send one, he needs help.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 13-077933

3) Claimant testified that he has been a painter and in the painters' union most of his career. Immediately after high school, Claimant went to Texas to work for LeBus International as a welder, but he was only there a little over a year before he moved back to Missouri to work for his grandfather's business,