Alan Marberry v. ConAgra Foods

(After Mandate from the Missouri Court of Appeals for the Eastern District)

**Employee:** Alan Marberry

**Employer:** ConAgra Foods (Settled)

**Insurer:** Old Republic Insurance Company (Settled)

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

On October 26, 2021, the Missouri Court of Appeals for the Eastern District issued an opinion reversing the February 19, 2021, award and decision of the Labor and Industrial Relations Commission (Commission). *Alan Marberry v. Treasurer of the State* (ED109554, October 26, 2021). By mandate dated November 18, 2021, the court confirmed its decision to reverse the Commission's award and decision and remanded this matter to the Commission for further proceedings consistent with the court's opinion.

The court's opinion specifically directed, "The Commission's award is reversed and remanded with instructions to the Commission to enter a final award of PTD benefits in favor of Marberry and against the Fund." *Id.*, p. 10. Therefore, pursuant to this express directive and the mandate from the court, we issue the following award.

The Second Injury Fund (SIF) is liable to employee for permanent total disability (PTD) benefits beginning June 28, 2018, the date the parties stipulated that the employee reached maximum medical improvement. Based on Dr. Volarich's evaluation of employee's disability relating to the primary injury of 35% permanent partial disability (PPD) rated at the 400-week body as a whole level for cervical spine injuries (140 weeks) and 10% PPD of the body as a whole for recurrent back pain and lost motion of the lumbar spine (40 weeks), the SIF owes employee permanent total weekly benefits starting June 28, 2018, at the differential rate of $422.34 for 180 weeks, and thereafter at the stipulated weekly permanent total disability benefit rate of $886.92. The weekly payments shall continue for employee's lifetime, or until modified by law.

For necessary legal services rendered to employee, Stephen W. Thurmer, Attorney at Law, is allowed a fee of 25% of the compensation awarded, which shall constitute a lien on said compensation.

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

Given at Jefferson City, State of Missouri, this **25th** day of January 2022.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- **Attest:** Robert W. Cornejo, Chairman

- **Attest:** Reid K. Forrester, Member

- **Attest:** Shalonn K. Curls, Member

- **Secretary**

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1 Transcript, p. 80