Ronald Combs v. Edith James Steel, Inc.

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Pursuant to section 286.090 RSMo, subsequent to reviewing the evidence and considering the entire record, the Commission modifies the award and decision of the administrative law judge dated November 28, 2005.

The administrative law judge awarded the employee the following compensation payable from the Second Injury Fund: 85 additional weeks of permanent partial disability as the result of the combination of the permanent partial disability attributable to the primary injury with pre-existing disabilities.

The employee timely filed an Application for Review with the Commission alleging the award issued by the administrative law judge was erroneous in failing to conclude that the employee was permanently and totally disabled within the meaning of the workers' compensation law, upon combining the disabilities attributable to the primary injury and the pre-existing conditions and injuries.

The Commission agrees with the contention set forth by the employee in his Application for Review, and, consequently, modifies the award and decision issued by the administrative law judge by concluding that the Second Injury Fund is liable for permanent total disability benefits to the employee pursuant to section 287.220 RSMo, to be payable as follows: commencing January 14, 2004, 60 weeks at the weekly differential rate of $\ 315.50, and, thereafter, $\ 662.55 for employee's lifetime.

The facts were accurately recounted in the award issued by the administrative law judge and will not be repeated except to support the modification in the instant award.

At trial, the sole issue stipulated was nature and extent of liability concerning the Second Injury Fund. The principal evidence adduced was the testimony of the employee, the testimony by deposition of three experts, Dr. Volarich, Dr. Stillings and Ms. Sherry Browning, a vocational expert, and various treating medical records.

In summary fashion, Dr. Volarich rendered the following opinions: 1) pertaining to the primary injury, the employee sustained 25% permanent partial disability of the body as a whole referable to the lumbar spine; 2) pertaining to pre-existing disabilities, Dr. Volarich testified that employee had pre-existing disabilities concerning his lumbar spine, right knee, right wrist and left shoulder amounting to 272.4 weeks of permanent partial disability; and 3) Dr. Volarich was of the opinion that when employee's disability attributable to the primary injury was combined with employee's pre-existing disabilities, employee was permanently and totally disabled and unable to return to the open labor market.

In summary fashion, the testimony of Dr. Stillings was as follows: 1) as to injuries occurring January 3, 2003 and November 25, 2003, to employee's lumbar spine, employee sustained 20\% permanent partial disability of the body as a whole due to a mood disorder and 25 % permanent partial disability of the body as a whole due to a pain disorder; 2) as to pre-existing disability employee had a Vietnam induced post-traumatic stress disorder of 35\% permanent partial disability of the body as a whole; and 3) from a psychiatric standpoint alone, Dr. Stillings was of the opinion that employee was permanently and totally disabled when the psychiatric disabilities were combined.

Ms. Sherry Browning, a vocational rehabilitation counselor, rendered the following opinion: based on her evaluation of employee of November 27, 2004, employee's global condition precluded him from any gainful employment.

The Commission, upon review of the entire record, finds that none of the above three expert opinions were impeached or neutralized in any fashion. The Commission finds each of these three expert opinions credible, believable and trustworthy.

Upon review of the entire record, the only expert medical opinions concerning the issue of total disability were the two opinions of Dr. Volarich and Dr. Stillings. The only vocational expert opinion concerning employee's ability to compete in the open labor market, was the opinion expressed by Ms. Browning.

Accordingly, the Commission concludes that the competent and substantial evidence supports a finding that employee is permanently totally disabled; and the total disability results from the disability attributable to the primary injury when combined with employee's pre-existing disabilities.

The Commission adopts the remaining findings and conclusions of the administrative law judge that are not inconsistent with the instant modification. Accordingly, the Commission agrees that the primary injury resulted in a permanent partial disability of 15 % permanent partial disability of the body as a whole referable to the lumbar spine. Consequently, permanent total disability benefits from the Second Injury Fund are payable beginning January 14, 2004, for 60 weeks at the weekly rate of $\ 315.50, and, thereafter, $\ 662.55 weekly for employee's lifetime. All remaining findings of fact and conclusions of law are affirmed.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued November 28, 2005, is attached and incorporated to the extent it is not inconsistent with this final award.

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 $4^{\text {th }}$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

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: November 11, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Lifting a railroad tie.
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: low back
14. Nature and extent of any permanent disability: 15 % body as a whole referable to the back,; 85 weeks PPD from Second Injury Fund.
15. Compensation paid to-date for temporary disability: $\ 946.50
16. Value necessary medical aid paid to date by employer/insurer? $\ 3,186.14

Employee: Ronald Combs

Injury No.:

03-140605

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages:
3. Weekly compensation rate: $\$ 662.55 / \ 347.05

1. Amount of compensation payable:

60 weeks of PPD from Employer

(Stettled)

1. Second Injury Fund liability: Yes

85 weeks of PPD from Second Injury Fund

$\ 29,499.25

TOTAL:

$\ 29,499.25

1. Future requirements awarded: None

Said payments to begin immediately 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:

James J. Sievers, Jr.

This case involves a low back injury to Claimant with a reported accident date of November 25, 2003. Employer previously settled its risk of liability. The liability of the Second Injury Fund ("SIF") is the subject of this hearing. Claimant seeks permanent total disability. Both parties are represented by counsel.

Applicable rate of compensation is $\ 662.55 for temporary total benefits and $\ 347.05 for PPD. The employer paid $\ 3,186.14 for medical and $\ 946.50 for TTD.

Claimant testified he was employed as ironworker for thirty-three years following his honorable discharge from the Army in 1970. He has worked approximately 33 years as an ironworker. He testified that his job consisted of carrying angles and steel and setting steel at various times and on various jobs. He was required to bend, stoop, and lift heavy materials. Claimant testified he worked for Edith James Steel since 1979. He was working as a foreman since 2000 until his last day of work on January 14, 2004. This record demonstrates an ability to maintain regular and rigorous employment culminating with some supervisory responsibilities.

On the date of injury claimant testified he was lifting a railroad tie that was stuck in the mud and experienced immediate back pain. The pain was so severe he could not get out of bed the next day and sought medical treatment at the VA Hospital coming under the care of various doctors. Claimant testified he attempted to return to work after this injury but was extremely limited. He worked until January 14, 2004.

Months earlier Claimant had another serious low back injury while carrying iron stock which settled for thirteen percent PPD of the body (Exhibit H). The subject low back injury settled for fifteen percent PPD of the body (Exhibit I). Thus, Claimant's cumulative low back PPD is in the range of one-quarter to one-third PPD of the body. This is not atypical for a lifelong ironworker. Nevertheless, Claimant had minimal lost time on the last injury and returned to work. He apparently refused overtime and bad weather work during the time between the January 2003 injury and the November 2003 injury. He identified significant income loss to one of his experts.

His last day of work for Employer was January 13, 2004 which seems to coincide with Employer's bankruptcy and Claimant's retirement.

Claimant testified in 1967 he suffered a severe laceration to his right wrist cutting all the tendons. There is a great deal of scar tissue and problems moving and manipulating the wrist. Problems continued in 1998 and a carpal tunnel release was undertaken. The carpal tunnel release also excised a great deal of the scar tissue however a quarter-sized nodule with a one-half inch prominence on claima