John Connors v. Arnold Muffler, Inc.

relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified to award to employee permanent total disability benefits.

[T]he term "total disability" is "defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." "It does not require that the claimant be completely inactive or inert."

"To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present physical condition."

Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo. App. 2003)(citations omitted).

The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Total disability means the "inability to return to any reasonable or normal employment."

Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo. App. 1995)(citations omitted).

The evidence in the instant case clearly establishes that employee is not able to return to any normal employment. Physicians have recommended that employee observe restrictions on most categories of physical activity implicated in employment. Considering such restrictions, Dr. Volarich credibly testified that he does not believe employee is able to engage in any substantial gainful activity.

Employee does not believe he can offer an employer a full day's work. Much is made of employee's work at the church café but his work at the café was not normal employment. Employee sought work at the church café when he was economically strapped. The church was aware of employee's medical condition and accommodated his condition. Employee testified the church would not have allowed him to work at the café with his many restrictions if employee were not a church member. Notwithstanding the many accommodations made by the church, employee left the café job because he could not meet the physical demands of the job.

The administrative law judge concludes that employee's job at the café was competitive because someone did employee's café duties before he worked at the café and someone did the duties after he left. The administrative law judge's reliance on this fact is misplaced for two reasons. First, before and after employee's employment at the café, some of employee's duties were performed by people working in the church office. The church's existing staff could and did perform the duties except for the period during which the duties were shifted to employee to provide him with work. Contrary to the administrative law judge's determination, this fact supports a finding that the café job was not competitive. Secondly, and more importantly, employee could not physically perform the job.

Mr. Lalk, the only vocational expert to offer testimony, testified unequivocally that employee cannot compete in the open labor market. Mr. Lalk concluded that employee's position at the church café was not a competitive position, and, thus, was not employment on the open labor market. Mr. Lalk illustrated this point by contrasting what an employee would be expected to do in a normal food service environment with what employee was required to do. For example, an employee would normally be expected to do some lifting and stocking. At the church café, employee did not have to perform stocking and only lifted very light items.

The administrative law judge rejected the uncontradicted opinions of both Dr. Volarich and Mr. Lalk that employee is not employable. The administrative law judge erred. I find the testimony of employee, Dr. Volarich, and Mr. Lalk credible and persuasive. I do not believe an employer in the ordinary course of business would reasonably be expected to hire employee in his present physical condition. I conclude that employee is permanently and totally disabled as a result of his primary injury combined with his pre-existing disabilities.

As to future medical care, the administrative law judge denied future medical care because it is not clear if Dr. Volarich recommended the treatment solely as a result of the primary injury or as a result of the combination of the primary injury and prior injuries. The administrative law judge misapplied the law. The employee's job is to prove that the recommended treatment would cure and/or relief him from the effect of his work-related injury. He has

done so through the testimony of Dr. Volarich. Employee was not required to prove that the treatment would not relieve other symptoms. See Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 269 (Mo. App. 2004). I would award future medical care.

Based upon the foregoing, I conclude that the award should be modified to award permanent total disability against the Second Injury Fund and future medical care against employer. I respectfully dissent from the portion of the decision of the majority of the Commission denying permanent total disability benefits and future medical care.

John J. Hickey, Member

Employee: John Connors

Injury No. 00-046333

Dependents:

Employer: Arnold Muffler Inc.

Additional Party:

$\square$ Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and

"State" "Yealbore" Mocostodian of Second Injury Fund Jefferson City, Missouri

Insurer: MIGA (formerly Superior Naational Insurance Group)

Hearing Date:August 20, 2004 (finally submitted 9/21/04) Checked by: LEHB/bfb

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: April 25, 2000
5. State location where accident occurred or occupational disease was contracted: Jefferson 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 bent over and was picking up a pallet of mufflers.
12. Did accident or occupational disease cause death? No Date of death?

1. Part(s) of body injured by accident or occupational disease: low back
2. Nature and extent of any permanent disability: 30 % permanent partial disability of the body as a whole referable to the low back
3. Compensation paid to-date for temporary disability: $\ 18,489.12
4. Value necessary medical aid paid to date by employer/insurer? $\ 14,127.06
5. Value necessary medical aid not furnished by employer/insurer? $\ 0.00
6. Employee's average weekly wages: $\ 430.00
7. Weekly compensation rate: $\$ 286.68 / \ 286.68
8. Method wages computation: by agreement of the parties

21.Amount of compensation payable: ----

Unpaid medical expenses: ----

---- weeks of temporary total disability (or temporary partial disability)

30 % permanent partial disability from Employer, or 120 weeks . . . . . . . . . . . . \$34,401.60

---- weeks of disfigurement from Employer

----Permanent total disability benefits from Employer beginning , for Claimant's lifetime

1. Second Injury Fund liability: Yes X No Open . . . . . . . . . (See Award),. .\11,467.20

TOTAL: \ 45,868.80

1. Future requirements awarded: None

Said payments to begin as of the date of this Award 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:

Robert Sihnhold, Attorney for Claimant

Employee: John Connors

Injury No: 00-046333

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Employer: Arnold Muffler Inc.

Additional Party State Treasurer, as custodian of Second Injury Fund

Insurer: MIGA (formerly Superior Naational Insurance Group)

Checked by: LEHB/bfb

This is a hearing in Injury No. 00-046333. The claimant, John Connors, appeared in person and by counsel, Attorney Bob Sihnhold. The employer/insurer, Arnold Muffler Incorporated/ Superior National Insurance Group and now MIGA, appeared by and through counsel, Attorney Michael C. Margherio. The Second Injury Fund appeared by and through Assistant Attorney General Laura Wagener.

The parties entered into certain stipulations, and agreement as to the complex issues and evidence to be presented in this hearing.

On or about April 25, 2000: a. the claimant while in the employment of Arnold Muffler Incorporated sustained an injury by accident arising out of and in the course of his employment occurring in Jefferson County, Missouri; b. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law; c. the employer's liability was originally insured by Superior National Insurance Group which went into bankruptcy and the employer's liability is now protected by MIGA; d. The employee's average weekly wage was $\ 430.00, the rate being $\ 286.68 over $\ 286.68.

e. The employer had notice of the injury. f. A Claim for compensation was filed within the time prescribed by law. g. Temporary total disability benefits have been paid to the employee in the total amount of $\ 18,489.22; those payments represent $644 / 7$ weeks of benefits covering a