Thilmony v Schwan's Food
2016 MO WCLR Lexis 83
Dec. 15, 2016
The ALJ awarded total disability in the case. The Commission found the ALJ erred by finding claimant's MMI date in 2015 and not in 2010 when he was released from medical care. This change impacts makes the Fund's duty to pay benefits arise sooner.
The Commission notes, however, that it "appeared" the MMI could have been in April 5, 2010
"Mr. Thilmony produced a paycheck which indicated that he got paid for work at Schwan's Foods on August 12, 2010, for the period of July 25, 2010, through August 7, 2010. Mr. Thilmony testified that this was his last payment for work performed for Schwan's Foods."
The ALJ found claimant continued to work into 2015.
"Mr. Thilmony was employed by his wife at her day care and was performing valuable services for which she would have had to hire a replacement employee should Mr. Thilmony have been unable to work in the day care. Mr. Thilmony testified that he worked in the day care until July of 2015 when the day care closed. Thus, July 1, 2015 is the date on which Mr. Thilmony is eligible to receive permanent total disability benefits from the Second Injury Fund." notes ALJ Fischer.
The commission finds if claimant completed treatment in 2010 then he was a total in 2010 and that subsequent employment was not real work in the open labor market to disturb the finding that he was totally disabled.
"The Second Injury Fund is liable for permanent total disability benefits beginning August 7, 2010, at the differential rate of $ 62.69 for 52.6 weeks, and thereafter at the stipulated weekly permanent total disability benefit rate of $ 485.66. The weekly payments shall continue for employee's lifetime, or until modified by law."
The award from the Commission finds the factual determination of MMI not supported by the record. What is more important in the award, is there is not any reduction or credit in obligation to pay disability benefits by the Fund even though there is uncontroverted evidence that that is working during some of the same time. It is unclear if this issue was raised on appeal.
The commission noted the employee stipulated that PTD benefits were due on August , 2010 and it would not "second guess employee where he is willing to stipulate....[to a different date]."
The claimant was represented by attorney Uhrig.