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Graham v. Latco Contractors, Inc.

Court of Appeals of Missouri, Southern District, First Division

April 7, 2015

ROBERT GRAHAM, Employee-Appellant/Cross-Respondent,
v.
LATCO CONTRACTORS, INC., Employer-Respondent/Cross-Appellant, and LEGION INSURANCE CO. (In Liquidation)/MISSOURI PROPERTY & CASUALTY INSURANCE GUARANTY ASSOCIATION, Insurer-Respondent/Cross-Appellant, and TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Additional Party-Respondent

Page 908

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS COMMISSION.

For Appellant-Respondent: Daniel H. Rau of Cape Girardeau, MO.

For Respondents/Cross-Appellants: Julie, L. Petraborg of St. Louis, MO.

For Treasurer of the State of Missouri, Respondent: Keyla S. Wilfong of Cape Girardeau, MO.

DANIEL E. SCOTT, J. -- CONCUR. WILLIAM W. FRANCIS, JR., C.J./P.J. -- CONCUR.

OPINION

Page 909

JEFFREY W. BATES, J.

This appeal arises from an adjudication by the Labor and Industrial Relations Commission (Commission) of a dispute concerning a § 287.150.3 subrogation claim.[1] Under the very unusual circumstances presented by this case, the Commission exceeded its powers by deciding that controversy in this administrative worker's compensation proceeding. Therefore, we reverse that portion of the final award of compensation and remand for further proceedings consistent with this opinion.

In 1995, Robert Graham (Employee) began working for Latco Contractors, Inc. (Employer). Employee built and maintained chicken houses where he was routinely exposed to chemicals and wastes incidental to poultry farming. As a result of this exposure, Employee began to experience respiratory problems in late 1996 or early 1997. He also developed a nervous system disorder in which he became hypersensitive to a wide variety of distinct smells. When exposed to perfume or gasoline fumes, for example, Employee would lose consciousness due to insufficient oxygenation to his brain. His respiratory problems and nervous system disorder worsened over time. He developed memory problems and an inability to control his temper, exhibiting angry outbursts from time to time. By 2000, Employee was unable to continue working for Employer. At the time, Employee was approximately 41 years old. He resided with his wife (Wife) and their two young sons, who were then ages 4 and 5.

In July 2000, Employee filed a worker's compensation claim seeking permanent and total disability due to occupational disease diagnosed on July 5, 2000. Employer was then insured by Legion Insurance Co. (Legion). Although Employer and Legion denied the claim, Legion paid some of Employee's medical bills. Legion became insolvent in April 2002. Missouri Property & Casualty Insurance Guaranty Association (MIGA) then became obligated to provide statutory coverage, but it did not pay any of Employee's medical bills or any other worker's compensation benefits. Employee sought medical treatment on his own and went to see doctors at the Veterans Administration.

In 2002, Employee and Wife filed a lawsuit against Tyson Foods for Employee's personal injuries and Wife's separate claim for loss of consortium. In September 2005, Employee and Wife settled their claims for a total of $730,000. Their share of the settlement included a check made payable to both Employee and Wife in the amount of $313,712.90.

In April 2012, a hearing was held on Employee's worker's compensation claim by an administrative law judge (ALJ). At the hearing, Employee and Wife testified that they shared the net recovery ...


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