The Commission stripped more than $100,000 in benefits awarded to a carpenter partially blinded when he was cutting wood and debris went into his eye. Billy Hood v Michael Menech and Vandalia Area Historical Society, Inj. No. 12-107135 (July 19, 2017) but allowed the claimant a second chance by converting an award from a final award to a temporary award.
Claimant required immediate surgery to repair a ruptured globe and a lens implant. He later pursued additional treatment after two additional accidents. He has not worked since 2012.
The ALJ issued a final award for permanent partial disability, temporary total disability benefits, past and future medical for $134,849.25. The Commission modified the award to about $28,000.
What happened?
The commission noted an absence of expert testimony or opinion to support some aspects of the award. The commission found that there was insufficient evidence that treatment beyond the initial medical care and surgery flowed from the accident and reduced the award of medical bills
The Commission rejected the defense, in part, that the claimant failed to advance testimony from a physician to show the medical conditions flowed from the accident. The Commission found the undisputed facts were self-proving that claimant had an accident, that he had a foreign object lodged in his eye, and that he required emergency room treatment and the prevailing factor in "some" disability but that claimant failed in proof to show how diagnosis of conjunctival neoplasm, uveitic cataract and retrocorneal membrane related to the accident.
The Commission noted issues of causation were complicated because of claimant's subsequent injuries to his eye occurred when he fell down two flights of steps stairs when he was "voluntarily" intoxicated on a bottle and a half of Jack Daniels and "dislodged" the lens after the fall.
The Commission noted some evidence that claimant was an independent contractor but the defendants did not preserve the issue on appeal if claimant was an employee or to reconcile confusing evidence which of the two co-defendants employed him. The claimant testified that he worked for Menech but that he was paid under the name of Vandalia Area Historical Society. He states Menech employed 20 to 25 people and would provide larger equipment for construction projects. He states he never received a W2 form. Menech asserted he was a self-employed manager of the historical society project.
The Commission affirmed an award for future (or open) medical noting that claimant had required a prosthesis (an implanted lens) and it was reasonable probable he would require care in the future. No medical record is identified for this conclusion. The ALJ ordered Menech to provide treatment which may be selected by the Claimant.
The Commission notes no doctor found MMI so the award of PPD and converted the case from a final to a temporary award.
The Commission found no party challenged the compensation rate, which was calculated based on the ALJ's "assumption" that claimant worked 40 hours.
The Fund was liable under 287.220.7 to pay for treatment to cure and relieve the effects of the injury for an uninsured employer. The legislature later limited the law to allow similar claims only arising prior to Jan 1, 2014. The employer represented itself without counsel and it's appeal was dismissed for the failure to post a bond. It remained unclear from the opinion whether the business was a going concern or whether the employer had any resources to pay any of the award.
ALJ Zerrer
Atty Laramore, Hanson
