Desiree King v. J. Bathe Electric Company

The administrative law judge concluded that employee became permanently totally disabled attributable solely to the injury occurring October 14, 1997. As stated above, the Commission, after reviewing the entire record, reverses this finding, and concludes that the substantial and competent evidence only supports a finding that the last injury alone resulted in permanent partial disability in lieu of permanent total disability.

At the outset, the Commission notes two facts: (1) there is no medical expert opinion in this record that the primary injury alone caused or resulted in the employee being permanently totally disabled; and (2) there is no vocational expert opinion supporting a finding that employee's permanent total disability is attributable solely to the primary injury.

On the other hand, there are both a medical expert opinion as well as a vocational expert opinion that employee's permanent total disability and unemployability in the open labor market are the results of the disability attributable to her primary injury in combination with employee's preexisting disabilities.

The medical opinions of Dr. Shuter, a board certified neurologist, in summary fashion, were as follows: (1) permanent disability solely attributable to the accident occurring October 14, 1997: 50\% permanent partial disability referable to the right elbow; and 20\% permanent partial disability of the body as a whole referable to employee's post accident depression; (2) preexisting permanent disability: 15\% permanent partial disability of the body as a whole referable to depression and 20\% permanent partial disability of the body as a whole referable to employee's lumbar spine; and (3) employee is presently permanently totally disabled due to a combination of the disability attributable to the accident occurring October 14, 1997, and employee's preexisting disabilities.

Dr. Shuter further testified that employee's preexisting depression and preexisting disability attributable to the lumbar spine were both obstacles and hindrances to her employment. The testimony of Dr. Shuter definitively established a measurable preexisting disability that indeed was a hindrance and obstacle to employment.

In summary fashion, Mr. James England, a board certified rehabilitation counselor, rendered the following opinion: employee is not employable due to a combination or global effect of all of her medical conditions and problems. The Commission finds the medical opinion rendered by Dr. Shuter to be credible, trustworthy and believable. The Commission further finds the opinion of Mr. England to be credible, trustworthy and believable.

Accordingly, as to the issue of permanent disability, the Commission finds that the accident occurring October 14, 1997, resulted in the employee being permanently partially disabled as follows: 50\% permanent partial disability referable to the right elbow; and 20\% permanent partial disability of the body as whole referable to employee's post accident depression as described by Dr. Shuter. This results in 185 weeks of permanent partial disability.

Based on the testimony rendered by Dr. Shuter, the Commission finds the employee had the following measurable preexisting disabilities that were both handicaps and obstacles to employment: 15\% permanent partial disability of the body as a whole referable to employee's depression; and 20\% permanent partial disability of the body as whole referable to the lumbar spine.

The Commission further finds that when the disability attributable to the accident occurring October 14, 1997, i.e., 185 weeks of permanent partial disability as found above, is combined with the preexisting disabilities of depression and the disability to the lumbar spine as found above, the employee is rendered permanently totally disabled. The Second Injury Fund is liable for permanent total disability benefits.

The liability of the Second Injury Fund commences 185 weeks subsequent to December 2, 2003, the stipulated date of maximum medical recovery.

Dr. Shuter specifically opined that employee was permanently totally disabled due to a combination effect of the disability attributable to the accident occurring October 14, 1997, and employee's preexisting disabilities; and Mr. England, further buttressed the opinion of Dr. Shuter by opining that employee was not employable due to a combination or global effect of all employee's medical conditions and problems.

There is no evidence contra to the opinions rendered by Dr. Shuter and Mr. England. The Commission accepts these two opinions as being credible which results in a conclusion that the Second Injury Fund is liable for permanent total disability benefits, in lieu of the employer.

Based on the above modifications, employee is awarded the following amounts of compensation payable from the employer due to the accident occurring October 14, 1997: 50\% permanent partial disability referable to the right elbow or 105 weeks of permanent partial disability; 20 % permanent partial disability of the body as a whole referable to employee's post accident depression, or 80 weeks of permanent partial disability; 20 weeks for disfigurement as stipulated by the parties; an underpayment of temporary total disability in the amount of $\ 201.57; future medical care and treatment reasonable and necessary to cure employee from the effects of this injury; and the Commission acknowledges that there has been an advancement of permanent partial disability benefits tendered employee by employer in the amount of $\ 4,490.00 which is a credit for the compensation now payable.

The liability pertaining to the Second Injury Fund is as follows: permanent total disability benefits from the Second Injury Fund are payable beginning 185 weeks subsequent to December 2, 2003, at the weekly rate of $\ 257.45 for employee's lifetime.

All remaining findings of fact and conclusions of law are affirmed. The award and decision of Administrative Law Judge Matthew D. Vacca issued August 31, 2005, as modified, is attached and incorporated by reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $27^{\text {th }}$ day of June 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Attest: John J. Hickey, Member

Secretary

Employee: Desiree King Injury No.: 97-449870

Dependents: N/A Before the

Division of Workers'

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: October 14, 1997
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Using power drill when twisted violently injuring right wrist.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right wrist
14. Nature and extent of any permanent disability: Right upper extremity
15. Compensation paid to-date for temporary disability: $\ 66,338.07
16. Value necessary medical aid paid to date by employer/insurer? $\ 119,199.06

Employee: Desiree King Injury No.: 97-449870 17. Value necessary medical aid not furnished by employer/insurer? -0- 18. Employee's average weekly wages: $\ 386.17 19. Weekly compensation rate: $\$ 257.45 / \ 257.45 20. Method wages computation: Agreed

1. Amount of compensation payable:

Underpaid temporary total disability $\ 201.57 Permanent and total disability benefits of $\ 257.45 per week for life beginning December 2, 2003 and thereafter for life *

1. Second Injury Fund liability: No TOTAL: $201.57 *** (less advance of $4,490.00 )