Wednesday, November 16, 2016

Amputee awarded maximum statutory benefits.

Daniel Small v Red Simpson Inc.
2016 MO WCLR Lexis 76 (Nov. 10, 2016)

The commission on remand , 484 S.W.3d 341 (Mo. App. 2016),  awards benefits and reverses its earlier position that the case was barred by the statute of limitations and the statute was not tolled by payments made by a worker's compensation claim from the same incident in Texas, where the accident occurred.

The case relates back more than 20 years to a 1995 accident.  Claimant sustained an electrocution injury and amputation to his forearm.  He had a subsequent injury in 2008 and prosecuted that case to obtain a permanent total award against the Fund.

The commission found he was not precluded from seeking PPD benefits also on the 1995 case. The commission found the employer was not entitled to any "credit" for the Texas case because there was no evidence what disability the prior settlement represented.  The employer offered no medical defense on the 1995 injuries.  The commission recognized a credit for TTD benefits paid. 

The commission awarded 110% of the elbow, an additional 15% BAW based on "pain" complaints from claimant's expert, and the statutory maximum 40 weeks for disfigurement.  The commission rejected the claim to disfigurement because claimant could use a prosthesis, and did not regard the argument as even a colorable defense.  The employer offered no ratings of disability. 

ALJ Mieners
Atty:  Kelly, Johnston
Experts:  Stuckmeyer