Charles Curtis v. Daimler-Chrysler Corporation

Brezner, 380 S.W.2d 523, 528 (Mo. App. 1964); Matzker v. St. Joseph Minerals, 740 S.W.2d 362, 363 (Mo. App. E.D. 1987) (reversed in part on other grounds in Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003)). The determination of a specific amount or percentage of disability to be awarded an injured employee is a finding of fact within the unique province of the Commission. Landers v. Chrysler, 963 S.W.2d 275, 284 (Mo. App. E.D. 1998) (reversed in part on other grounds in Hampton, supra).

In making this determination, the Commission can consider all the evidence in the record (Id.) and draw all reasonable inferences from that evidence. The Commission is not bound by the percentage estimates of the medical experts and is free to assess a disability either higher or lower of that expressed in the medical or vocational testimony. Id.

After reviewing the entire record before us, we conclude that the amount of compensation payable for permanent partial disability awarded under the Decision is excessive; consequently, we modify the award concerning employer as follows -- employee is 15 % permanently partially disabled with respect to the body as a whole. Accordingly, the amount of compensation payable for permanent partial disability attributable to the accident occurring July 16, 2003, is 60 weeks $x \ 347.05 or a lump sum amount of $\ 20,823.00.

In reaching this conclusion and modifying the permanent partial disability awarded, the Commission has found the opinion of Dr. Wagner to be more persuasive, trustworthy, and consistent with surrounding facts than the opinion of Dr. Volarich. Consequently, we have relied more on Dr. Wagner's conclusions. We are equally able to make such determination as the administrative law judge, because both of these experts testified through depositions.

Unlike Dr. Volarich, Dr. Wagner is a board certified orthopedic surgeon (and has been since 1971). Dr. Volarich performs no shoulder surgery as a part of his practice. Dr. Volarich is not board certified in any type of surgery. Unlike Dr. Volarich, who only got to examine employee one time, Dr. Wagner had the opportunity to examine and evaluate employee numerous times over a period of approximately five months. He was able to see employee both before and after the September 25, 2003, repair surgery. Dr. Wagner actually performed this right shoulder repair surgery. Dr. Wagner also had the advantage of having treated other millwrights connected with employer and having visited employer's plant. Thus, he had the opportunity to see the type of tasks these millwrights had to perform.

Despite Dr. Wagner's better knowledge of employee's shoulder damage and repair and job demands, Dr. Wagner released employee without any restrictions to return to his regular work beginning January 14, 2004. His final exam revealed that employee's left shoulder range of motion was normal for a person of employee's age and that employee's right shoulder had a range of motion of 135 degrees (an approximate 30 degree loss of motion from what would have been considered normal). Employee had a good, smooth range of motion in both shoulders and no evidence of weakness in either shoulder. Never once had employee complained to Dr. Wagner about any left shoulder problems or sought advice or treatment. He had not even indicated on his initial intake form for Dr. Wagner that his left shoulder was a problem. Dr. Wagner rated employee's permanent partial disability to be 10\% at the level of the right shoulder.

Employee's left knee complaints pre-dated the July 16, 2003, injury. No evidence was presented that the July 16 incident aggravated or caused any change in the pathology of employee's right knee. Claimant testified that prior to his primary accident, he did what he had to at work despite his right knee and never missed any work because of it. Concerning this knee injury, Dr. Volarich testified by deposition as follows: "He wore a brace and an elastic band when necessary. He was able to stoop, squat, crawl, and kneel, but this was painful. He could run and jump to some degree. He was able to climb stairs and ladders and navigate uneven surfaces but not repetitively." At the time of Dr. Volarich's examination, he found no active inflammation in the knee. Employee settled the workers' compensation claim connected with his previous knee injury based on a 15\% permanent partial disability at the level of the knee.

After considering the above facts, the Commission is convinced that the administrative law judge's assessment of 50 % permanent partial disability of the body as a whole was excessive. Therefore, we modify the award of the administrative law judge. We conclude that employer is responsible for permanent partial disability benefits to employee based on a 15 % permanent partial disability with respect to the body as a whole ( $\ 347.05 weekly for 60 weeks).

On the other hand, the Commission agrees with the administrative law judge's award concerning the Second Injury Fund. Employee was permanently totally disabled after the primary injury, but it was not the last injury alone that caused this total disability. Thus, the Second Injury Fund is responsible for permanent total disability benefits to employee in the weekly differential amount of 315.50 for 60 weeks beginning March 1, 2004, and then in the amount of 662.55 per week during the balance of employee's lifetime or until modified by law.

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

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

Given at Jefferson City, State of Missouri, this $\qquad 4^{\text {th }} \qquad$ day of August 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Charles Curtis

Injury No.: 03-072619

Dependents: N/A

Before the

Employer: Daimler-Chrysler

Division of Workers'

Additional Party:

Department of Labor and Industrial

Second Injury FundRelations of Missouri

Jefferson City, Missouri

Insurer: Self-Insured

Hearing Date:October 5, 2005

Checked by: MDV:tr

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: July 16, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis County