Andrew French v. Bill's Truck Repair, The Larson Group, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 14-080361

**Employee:** Andrew French, deceased

**Dependent/Claimant:** Melinda French, widow

**Employers:**

- Bill's Truck Repair

- The Larson Group, Inc. d/b/a Mid-America Peterbilt

**Insurers:**

- Bloomington Compensation Insurance Group

- Missouri Employers Mutual Insurance Company

- Standard Fire Insurance Company

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 reviewed the evidence 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 First Corrected Award and decision of the administrative law judge dated July 23, 2021.¹ The award and decision of Administrative Law Judge, Edwin J. Kohner issued July 23, 2021, is attached and incorporated by this reference.

The Commission further approves and affirms 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 ______ 6th ______ day of May 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

**Reid K. Forrester, Chairman**

**Shalonn K. Curls, Member**

**Rodney J. Campbell, Member**

Attest:

**Secretary**

¹ We note that Stipulation number 17 on page 4 of the Administrative Law Judge's award incorrectly referenced the date of July 24, 2015 as July 24, 2105. This typographical error does not affect the rights of the parties.

Employee: Andrew French

Dependents: Melinda French

Employer: Bill's Truck Repair, The Larson Group, Inc.

Additional Party: Second Injury Fund (Previously Dismissed)

Insurer: Bloomington Compensation Insurance Co, Missouri Employers Mutual Insurance Company Standard Fire Insurance Company

Injury No.: 14-080361

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

Hearing Date: June 2, 2021

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: October 1, 2014
5. State location where accident occurred or occupational disease was contracted: St. Charles 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: Employee worked as a diesel mechanic for over thirty years for Bill's Truck Service and Mid-America Peterbilt. Employee last worked for Mid-America Peterbilt before being diagnosed with Stage IIIB adenocarcinoma of the lung with metastasis on or after October 1, 2014.
12. Did accident or occupational disease cause death? Yes Date of death? July 24, 2015
13. Part(s) of body injured by accident or occupational disease: Vascular system, Pulmonary system, Lungs
14. Nature and extent of any permanent disability: Death
15. Compensation paid to-date for temporary disability: None
16. Value necessary medical aid paid to date by employer/insurer: None

1. Value necessary medical aid not furnished by employer/insurer: 318,944.90
2. Employee's average weekly wages: 1,271.39
3. Weekly compensation rate: $857.59/$464.58
4. Method wages computation: By agreement

1. Amount of compensation payable:

1. Second Injury Fund liability: No

1. Future requirements awarded: As provided above.

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: Ellen E. Morgan, Attorney at Law.

Employee: Andrew French

Injury No.: 14-080361

Dependents: Melinda French

Employer: Bill's Truck Repair, The Larson Group, Inc.

Additional Party: Second Injury Fund (Previously Dismissed)

Insurer: Bloomington Compensation Insurance Co, Missouri Employers Mutual Insurance Company Standard Fire Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

This Workers' Compensation case raises several issues arising out of an alleged workrelated injury in which the Employee, Andrew French, a diesel mechanic, developed lung cancer. The issues for determination are:

1. Did Andrew French's employment as a diesel mechanic cause the development of the occupational disease, lung cancer, from which Andrew French ultimately died on July 24, 2015 ?
2. In whose employment was Employee last exposed to the hazard of the occupational disease, lung cancer, prior to the evidence of disability?
3. On what date was Employee last exposed to the hazard of the occupational disease, lung cancer, prior to the date of disability?
4. Which Employer is liable for benefits to Claimant, Melinda French?
5. If The Larson Group d/b/a Mid-America Peterbilt also known as TGL Peterbilt, also known as Mid-America Peterbilt, (hereinafter "Mid-America Peterbilt") is liable to Claimant, Melinda French, for benefits, which insurance carrier is liable to Claimant, Melinda French, for benefits?

At the hearing, Melinda French, the Claimant, ("Claimant") as well as the widow of Employee Andrew French ("Employee'), testified by way of affidavit and deposition, and offered the depositions of the deceased Employee, taken before his death, the Death Certificate of Employee; Marriage Certificate of Employee and Claimant, Funeral Costs Receipt; Report of Dr. Jerry Meyers; Medical Records from Dr. Sen; Medical Records from Mercy Hospital; Medical records from Dr. Penilla; Billing Records from Mercy East; Billing Records from Mercy Clinic; Billing Records from Dr. Penilla; Medical Records from St. Clare Hospital; Peterbilt Payroll Summaries and Technician Time; and Billing Records from St. Clare Hospital. All of Claimant's Exhibits were admitted without objection.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the occupational disease was contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

1. Venue is proper in the County of St. Charles, Missouri.
2. A Claim for Compensation was filed timely.
3. Employers Bill's Truck Repair (hereinafter "Bill's") and The Larson Group d/b/a MidAmerica Peterbilt also known as TGL Peterbilt, also known as Mid-America Peterbilt, (hereinafter "Mid-America Peterbilt") received proper and timely notice of Andrew French's occupational disease, lung cancer.
4. Andrew French died of lung cancer on July 24, 2015.
5. Melinda French and Andrew French were married on August 16, 2012, and were husband and wife on the date of Andrew French's death on July 24, 2015, and Melinda French was actually dependent on Andrew French from August 12, 2012 through the date of Andrew French's death, July 24, 2015.
6. Melinda French has not remarried and is the surviving widow of Andrew French.
7. Decedent, Andrew French, who ultimately died of the disease of lung cancer, was employed in an occupation or process in which the hazard of the disease, lung cancer, existed both at Bill's and at Mid-America Peterbilt.
8. Andrew French was employed by Bill's from May 18, 1989 through June 30, 2006.
9. Andrew French was employed by Mid-America Peterbilt from July 19, 2006 through at least October 1, 2014.
10. Andrew French last physically worked on Mid-America Peterbilt physical premises in St. Charles County, Missouri on October 1, 2014, and was therefore last exposed to the hazard of the disease of lung cancer on October 1, 2014.
11. Andrew French did not perform any work duties for Mid-America Peterbilt nor was he paid his regular salary by Mid-America Peterbilt for the period of August 17, 2014 through August 24, 2014.
12. The Workers' Compensation insurance carrier for Bill's on June 30, 2006 was Bloomington Compensation Insurance Company (hereinafter "Bloomington").
13. The Workers' Compensation insurance carrier for Mid-America Peterbilt from July 19, 2006 through September 30, 2014 was Missouri Employers Mutual Insurance Company, (hereinafter "MEM").
14. The Workers' Compensation insurance carrier for Mid-America Peterbilt from October 1, 2014 through October 1, 2015 was The Standard Fire Insurance Company (hereinafter "Standard").
15. The average weekly wage for Employee at Bill's was $\ 848.20, and the corresponding rate for TTD and death benefits is $\ 565.47.
16. That the average weekly wage for Employee at Mid-America Peterbilt was $\ 1,271.39 and that the corresponding rate for TTD and death benefits is $\ 857.59.
17. The TTD period for Andrew French between October 1, 2014 and July 24, 2105 is 279 days (sic), or a total of $396 / 7 weeks (sic), or \ 34,181.08 (sic) at the TTD compensation rate of $\ 857.59 for Mid-America Peterbilt and $\ 22,538.01 (sic) at the TTD compensation rate of $\ 565.47 for Bill's.
18. The medical expenses for reasonable and necessary medical treatment for Andrew French's injury were $\ 318,944.90 representing;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Andrew French

Injury No.: 14-080361

- Mercy East (10/1/14 - 7/23/15) - $313,787.90

- Mercy Clinic Internal Medicine - (11/19/14 - 5/13/15) - $1,205.00

- Dr. Sen (9/16/14) - $342.00

- Dr. Penilla (8/18/14 - 9/30/14) - $803.00

- St. Clare Hospital (8/15/14) - $2,807.00

1. The immediate cause of Employee's death was a stroke and metastatic lung cancer was the underlying cause of the stroke.

1. The funeral expenses for Andrew French were $4,239.51 paid by Melinda French.

1. There were no temporary total disability benefits paid to Andrew French by any Employer or Insurer and are now owed to Melinda French.

1. There were no medical benefits paid on behalf of Andrew French by any Employer or Insurer to any medical provider.

1. No death benefits have been paid to Melinda French by any Employer or Insurer.

1. No funeral expenses have been paid to Melinda French by any Employer or Insurer.

PROCEDURAL BACKGROUND

Employee worked for two different employers, Bill's and Mid-America Peterbilt, between May 18, 1989 and October 1, 2014.

On October 21, 2014, Employee filed a Claim for Compensation, Injury Number 14-080361. Employee named both Employers, Mid-America Peterbilt and Bill's, in his Claim, alleging injuries to his vascular system, pulmonary system, and lung cancer. The alleged date of injury are dates up to and including August 8, 2014. The matter was heard for Final Award on June 2, 2021. The claimant, Melinda (Mindy) French was represented by Attorney Ellen E. Morgan. Mid-America Peterbilt and its Workers' Compensation carrier for the period of