Daniel Tucker v. K & K Pallet Company

Injury No.: 01-069138

Employee: Daniel Tucker, Jr.

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administrative law judge awarded employee 60 2/7 weeks of temporary total disability benefits. But that the period of April 9, 2001 through June 5, 2003 constituted 112 3/7 weeks.

Employee and employer/insurer responded to the Commission's request and agreed that there was indeed a discrepancy in the administrative law judge's award and that 112 3/7 weeks does represent the length of time between April 9, 2001 and June 5, 2003.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact as to the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications herein.

On April 9, 2001, employee was throwing 45-pound pallets that had fallen off his truck up onto a loading dock when he suffered an umbilical hernia. On July 17, 2002, Dr. Roger De La Torre, employee's treating physician, diagnosed employee with a recurrent umbilical hernia with incarceration and recommended surgery. On June 5, 2003, Dr. De La Torre examined employee and found no evidence of a recurrence of the hernia. Dr. De La Torre recommended that employee return to his duties as a truck driver with no restrictions and placed him at MMI on that date. The administrative law judge's temporary total disability award was based upon the length of time between employee's April 9, 2001 primary injury and the June 5, 2003 MMI date. The length of time between April 9, 2001 and June 5, 2003 represents 112 3/7 weeks. However, the administrative law judge appears to have mistakenly based his temporary total disability award on a June 5, 2002 date, and not June 5, 2003, by awarding 60 2/7 weeks of temporary total disability benefits (the time between April 9, 2001 and June 5, 2002).

Pursuant to § 287.170, a claimant is entitled to receive temporary total disability compensation benefits for not more than 400 weeks during the continuance of such disability at the weekly rate of compensation in effect for the date of injury for which the claim is made. The burden of proving entitlement to temporary total disability benefits lies with the employee. ${ }^{2}$ The purpose of a temporary total disability award is to cover the employee's healing period from a work related injury. ${ }^{3}$ Temporary total disability awards are owed until the employee can find employment or the condition has reached the point of maximum medical progress. ${ }^{4}$ An award of temporary total disability is not appropriate for a disability for which further improvement is not expected. ${ }^{5}$

We agree with the administrative law judge's determination of employee's MMI date. We find that the evidence in the record supports a finding that employer/insurer is liable for employee's temporary total disability, calculated as follows:

- $\quad \ 373.30 (employee's temporary total disability weekly compensation rate) multiplied by 112 3/7 weeks, equals $\ 41,969.59, minus $\ 4,231.57 (The temporary total disability benefits already paid by employer/insurer),

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[^0]: ${ }^{2} Boyles v. USA Rebar Placement, 26 S.W.3d 418, 424 (Mo. Ct. App. 2000).

{ }^{3} Tilley v. USF Holland, 325 S.W.3d487, 492 (Mo. Ct. App. 2010).

{ }^{4} \mathrm{Id}.

{ }^{5}$ Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. Ct. App. 1985).

- $=$ \$37,738.02.

We adopt and affirm the administrative law judge's conclusions on the other issues in this matter.

We modify the award of the administrative law judge on the issue of temporary total disability.

The award and decision of Administrative Law Judge Edwin J. Kohner is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 $\qquad 15th \qquad$ day of June 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:


Improvee: Daniel Tucker, Jr.

I have reviewed and considered all of the competent and substantial evidence on the whole record, including the parties' response to the Commission's request for additional information.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law. I do not believe that employee should be entitled to any additional past or future medical benefits from employer/insurer, with the exception of what has already been paid by employer/insurer and the modified temporary total disability benefits (TTD).

Additionally, if employee is permanently and totally disabled, (PTD), then I believe that the Second Injury Fund (SIF) should be found liable for employee's PTD, not employer/insurer. Employer/insurer should only be liable for permanent partial disability benefits (PPD), based upon a 25 % PPD rating to the body as a whole referable to the abdominal/groin area. I believe that the majority's decision to modify the TTD award should be affirmed.

Employee suffered from several significant preexisting disabilities, including bipolar affective disorder, posttraumatic stress disorder, and personality disorder. Dr. Elizabeth F. Pribor, a psychiatrist, opined that employee has no psychiatric disability as a result of the April 9, 2001 primary injury. However, Dr. Pribor also opined that employee was 50\% PPD from his preexisting psychiatric disabilities, and that employee would need ongoing treatment for his preexisting psychiatric conditions for the rest of his life ${ }^{1}$.

Therefore, I would reverse the decision of the administrative law judge on the issues of PTD liability, past and future medical benefits, and affirm the Commission's modification of TTD benefits.

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

Reid K. Forrester, Member

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[^0]: ${ }^{1}$ Transcript at 2886-87, 2962.

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: April 9, 2001
5. State location where accident occurred or occupational disease was contracted: Warren 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: The employee, a truck driver, suffered a hernia while lifting pallets onto loading dock.
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: Abdomen
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $4,231.57
16. Value necessary medical aid paid to date by employer/insurer: $4526.74

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

1. Value necessary medical aid not furnished by employer/insurer? 85,283.30
2. Employee's average weekly wages: 560.00
3. Weekly compensation rate: $373.30/$314.26
4. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: $85,283.30

60 2/7 weeks of temporary total disability

with a credit for benefits paid of 4,231.57 18,273.09

Permanent total disab