Sterling Bennett v. Coatings Unlimited, Inc.

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

**Injury No. 14-021772**

**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

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, heard oral arguments, and considered the whole record, we find that the award of the administrative law judge denying 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 administrative law judge with this supplemental opinion.

The administrative law judge considered the issue whether the Second Injury Fund is liable for permanent total disability benefits. The administrative law judge correctly noted that the § 287.220.3.(2) as revised effective January 1, 2014, applies to this claim. This section provides, in pertinent part:

... Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces.

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in

Injury No. 14-021772

Employee: Sterling Bennett

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subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter.

We agree with the administrative law judge's determination that employee's March 24, 2014, injury resulted in permanent partial disability of 25% of the left hand and 5% of the body as a whole referable to the ribs, and that the primary injury alone did not cause employee to be permanently and totally disabled. Consistent with the administrative law judge's award denying compensation in this case, we find that the expert opinions of employee's medical expert Dr. Shawn L. Berkin and vocational rehabilitation counselor Dolores Gonzales fail to establish that employee was permanently and totally disabled as a result of the combination of his last injury and qualifying disabilities as required by the applicable version of § 287.220.3.(2). We consider the administrative law judge's further speculation that "all of [the] evidence supports the conclusion that Claimant is permanently and totally disabled only when his subsequent disabilities (those sustained after March 24, 2014) are included with the primary injury and pre-existing disabilities" to be extraneous to his ultimate conclusion. We further find that in rendering this affirmative factual finding, the administrative law judge relied, in part, upon his own lay opinion.

Once the fact-finder has determined that an employee is not entitled to permanent total disability benefits from the Second Injury Fund under § 287.220.3.(2), the inquiry is complete, and the question whether employee is permanently and totally disabled owing to some other cause becomes wholly irrelevant.² We acknowledge the temptation to explain one's ultimate findings and award by identifying alternative theories why an employee may be unable to work. But the problem with engaging in this exercise (beyond the fact that it is simply unnecessary) is that it weakens and may even undermine our analysis.³ This is especially true where, as here, the question involves an element of medical causation.

We defer to the administrative law judge's assessment of the weight to be given to the expert opinions; for this reason, we will not disturb his conclusion that the Second Injury Fund is not liable for permanent total disability benefits. But we must disclaim his

1 Award, p. 21.

2 There is an important difference between rendering a finding that one disbelieves an employee's evidence regarding the cause of her permanent total disability on the one hand, and rendering an affirmative finding that the employee is permanently and totally disabled owing to some alternative cause, on the other.

3 See, e.g., Abt v. Miss. Lime Co., 388 S.W.3d 571 (Mo. App. 2012), where the Commission affirmed and adopted as its own an administrative law judge's award rejecting expert opinion evidence regarding the cause of an employee's permanent total disability in favor of the administrative law judge's own theory that the employee was permanently and totally disabled owing to subsequent deterioration. In reversing the Commission, the Abt court noted that "[r]ather than choosing one of the medical opinions, the Commission made a finding that is not consistent with any medical opinion in the record." Id. at 581.

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additional findings regarding alternative reasons why employee may be unable to compete in the open labor market. Rather, we simply find that employee's permanent partial disability resulting from the last injury does not combine with employee's prior disability to result in total and permanent disability pursuant to the provisions of § 287.220.3.(2), and conclude therefore that the Second Injury Fund is not liable for permanent total disability benefits.

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

The award and decision of Administrative Law Judge John K Ottenad is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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. 14-021772

AWARD

Employee: Sterling Bennett

Injury No.: 14-021772

Dependents: N/A

Employer: Coatings Unlimited, Inc. (Settled)

Additional Party: Second Injury Fund

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

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: March 24, 2014

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 standing on a ladder spray painting the ceiling of a locker

room, when the ladder slipped out from underneath him and he fell on his chest, both arms and both hands.

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: Left Hand and Body as a Whole—Ribs

1. Nature and extent of any permanent disability: 25% of the Left Hand and 5% of the Body as a Whole—Ribs

1. Compensation paid to-date for temporary disability: $853.09

1. Value necessary medical aid paid to date by employer/insurer? $33,706.31

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 14-021772

Employee: Sterling Bennett

Injury No.: 14-021772

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 total and/or 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 (3/97)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

injury No. 14-021772

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.: 14-021772

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