Joseph Pearson v. Breckenridge Material Company

Compensation Law, I believe the decision of the administrative law judge should be reversed. I believe the administrative law judge erred in concluding that employee did not establish that his disability was resultant from his primary injury nor met the threshold to trigger Second Injury Fund liability.

Employee offered the expert medical testimony of Dr. Poetz. The Second Injury Fund offered no expert medical testimony. Dr. Poetz' testimony stands unimpeached. The administrative law judge made no finding regarding Dr. Poetz' credibility.

As regards permanent disability resulting from the primary injury:

- Dr. Poetz testified that employee sustained a permanent partial disability of 10 % of the body as a whole measured at the right ear. The administrative law judge substituted her own judgment and found the permanent partial disability to be no more than 2.5 % of the body as a whole.

- Dr. Poetz testified that employee sustained a permanent partial disability of 25 % of the body as a whole measured at the head. The administrative law judge substituted her own judgment and found the permanent partial disability to be no more than 5 % of the body as a whole.

- Dr. Poetz testified that employee sustained a permanent partial disability of 20 % of the body as a whole measured at the cervical/thoracic/lumber spine. The administrative law judge determined that employee failed to prove any additional permanent partial disability with regard to employee's neck and back.

The general rule is that, " $[t]$ he Commission is not bound by the expert's exact percentages and is free to find a disability rating higher or lower than that expressed in medical testimony. The Commission may consider all of the evidence, including the testimony of the claimant, and draw all reasonable inferences in arriving at the percentage of disability." Sifferman v. Sears, Roebuck \& Co., 906 S.W.2d 823, 826 (Mo. App. 1995) (citations omitted).

The rule in Corp v. Joplin Cement Co., 337 S.W.2d 252 (Mo. banc 1960), attends where the record is wholly silent concerning the Commission's weighing of credibility. Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179180 (Mo. App. 2004). That rule states that, "[t]he Commission may not arbitrarily disregard and ignore competent, substantial and undisputed evidence of witnesses who are not shown by the record to have been impeached, and the Commission may not base their finding upon conjecture or their own mere personal opinion unsupported by sufficient competent evidence." Houston133 S.W.3d at 179 (quoting Corp).

In the instant case, there is no finding that Dr. Poetz' testimony regarding the extent of employee's permanent disability resulting from the primary injury was not credible. Under these circumstances the Commission may not arbitrarily disregard Dr. Poetz' competent, substantial and undisputed testimony. In particular, lay persons are not qualified to assess the disability resultant from a head injury. Any such assessment is nothing more than pure conjecture, particularly where, as here, the administrative law judge's assessment substantially departs from the only medical evidence. The administrative law judge erred by substituting her opinion for that of Dr. Poetz.

The only expert medical evidence before the Commission is that employee suffered additional permanent partial disability to his neck and back as a result of the work accident. A finding of no disability is not supported by competent and substantial evidence on the whole record and is clearly contrary to the overwhelming weight of the evidence. See Zimmerman v. City of Richmond Heights, 194 S.W.3d 875 (Mo. App. 2006).

Employee has established through the testimony of Dr. Poetz that the primary injury resulted in permanent partial disability well above the Second Injury Fund threshold of fifty (50) weeks ( 12.5 % of the body as a whole). Employee has established through the testimony of Dr. Poetz that employee's permanent disabilities from his primary injury combine with his preexisting disabilities synergistically to result in a greater overall disability than the simple sum of the respective disabilities. Employee is entitled to an award of permanent partial disability from the Second Injury Fund pursuant to § 287.220.1 RSMo.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

1. Are any benefits awarded herein? No
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 11, 2003
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 was involved in a motor vehicle accident.

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: Body as a whole
3. Nature and extent of any permanent disability: N/A
4. Compensation paid to-date for temporary disability: $\ 3,156.16
5. Value necessary medical aid paid to date by employer/insurer? $\ 14,945.58

Employee: Joseph Pearson

Injury No.:

03-063256

1. Value necessary medical aid not furnished by employer/insurer? -0 -
2. Employee's average weekly wages: Unknown

1. Weekly compensation rate: $\ 340.12 for permanent partial disability benefits
2. Method wages computation: Stipulation

1. Amount of compensation payable:

( Settled)

1. Second Injury Fund liability: No

TOTAL:

-0-

1. Future requirements awarded: None

Said payments to begin N/A 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

Employee: Joseph Pearson

Injury No.: 03-063256

Dependents: N/A

Employer: Breckenridge Material Company (Settled)

Additional Party: Second Injury Fund (Only)

Insurer: Hartford Fire Insurance Company

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL:tr

A hearing was held on November 21, 2005, at the Division of Workers' Compensation in the City of St. Louis. Joseph Pearson ("Claimant") was represented by Mr. Ray Gerritzen. Breckenridge Material Company ("Employer") and its Insurer, Hartford Fire Insurance Company, entered into a settlement with Claimant on December 28, 2004. This case proceeded to trial against the Second Injury Fund, represented by Assistant Attorney General Carol Barnard. Mr. Gerritzen requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about July 11, 2003, Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer, venue is proper in the City of St. Louis; Employer received proper notice of the injury; and the claim was timely filed. The parties further stipulated that Claimant was earning an average weekly wage sufficient to place him at the maximum rate of compensation of $\ 340.12 for permanent partial disability benefits. The sole issue for determination by hearing is: what is the liability of the Second Injury Fund for permanent partial disability benefits?

Based upon the competent and substantial evidence, I find:

Claimant is a 51-year-old man with a tenth grade education. After dropping out of school in the tenth grade, Claimant worked in various jobs performing labor. His jobs included factory work, moving furniture, painting, and laborer. When the physical demands of performing labor became too much for Claimant, he obtained a job in 1987 as a concrete truck driver. He continued to work from 1987 until the present as a concrete truck driver.

In 1971, when Claimant was approximately 17 years old, he was involved in a motorcycle accident. He was taken to St. John's Mercy Medical Center by ambulance and treated for a right fractured femur and a broken jaw. Surgery was performed on his right leg and a steel pin was put in his femur. In addition, his jaw was wired shut for six weeks. Approximately one month after his surgery, he slipped and fell, which required another surgery.

Following Claimant's motorcycle accident, his right leg continued to bother him. His right leg hurts all the time and he takes Advil daily. His femur hurts constantly, and his right knee is not stable, and pops on a daily basis. Following his motorcycle accident, his right leg injury slowed him down at work. It forced him to be more careful, and he was unable to do a lot of the work that the other drivers did, such as loading and unloading materials from pallets. His right leg injury affected his ability to run, walk, and stand. He tries to sit down as much as possible. His Employer modified his truck by putting in extra pedals. His jaw also continued to bother him after his motorcycle accident. It pops out three to four times a month, which requires him to stop what he is doing, at which time he is unable to talk.

When Claimant was 20 or 21 years old, he was shot with a shotgun in his left hip in a hunting accident. He was taken to St. John's again where bullet fragments were removed from his hip. Some bullet fragments were left in his hip. After approximately 20 years, his hip failed, and he had a total hip replacement at St. Louis University Hospital when he was 40 years old. Since his left hip replacement, he is still in a lot of pain. Claimant takes four Advil a day for pain. His hip pops out, and he has to put his leg on an incline and pop it back into place. This happens on a daily basis. He is unable to do warehouse work because of his right leg and left hip.

On May 13, 2000, Claimant sought treatment from Family Chiropractic Rehabilitation for mid back pain and pain between his shoulder blades aggravated by driving trucks. Claimant reported symptoms of tennis elbow and sensation of pins and needles in his arms. After an automobile accident on May 22, 2000, Claimant reported he had been having mid back pain for four years prior to this accident, or since the mid-1990's.

The primary injury occurred on July 11, 2003, when Claimant, while driving a truck, drove over a galvanized pipe, which collapsed and caused his truck to flip over on its right side. Although he was wearing a seatbelt, he was thrown, and hit his head on the windshield. His ear was cut open and he was unconscious. He was taken to the hospital where his right ear was stitched and plastic surgery was performed.

The emergency room records from St. John's Mercy Medical Center reflect that X-rays taken of the lumbar and thoracic spine and a CT scan of the cervical spine revealed degenerative joint disease with no fractures. A CT of Claimant's head revealed a soft tissue injury behind the left orbit, but was otherwise negative. The clinical

impressions were a head contusion, dorsal/lumbar strain, concussion with loss of consciousness, and laceration of the right ear.

Dr. Poetz's report, which was attached as an exhibit to his deposition, reflects that Claimant was referred to Concentra Medical Center for treatment, although those records were not submitted into evidence. Physical therapy was recommended, and at one point Claimant was referred to a physiatrist, but there are no records in evidence which show any physical therapy was performed. Dr. Poetz also stated in his report that Claimant had been diagnosed in September 2003 with posterior neck pain with substantial improvement, along with myofascial neck pain. Claimant was prescribed medications and advised to follow up as needed.

Dr. Poetz testified on behalf of Claimant. As a result of the primary injury, Dr. Poetz diagnosed cervical/thoracic/lumbar strain with exacerbation of degenerative joint disease; concussion with loss of consciousness and post concussion headaches; significant avulsion injury with sub-adjacent lacerations complex throughout the right ear; and status post local rotation flap to recontour cartilage defect to the right ear, exploration and irrigation, debridement and multilayeral repair of complex laceration. He also diagnosed cervical and lumbar degenerative joint disease, and preexisting cervical strain 1999; severe degenerative joint disease left hip following trauma status post left arthroplasty 1995; right femur fracture, status post open reduction and internal fixation 1973; and fracture right angle of mandible - status post application of interdental wires 1973.

Dr. Poetz rated Claimant's disability as follows: 10\% body as a whole cervical/lumbar spine preexisting; 10\% body as a whole cervical spine 1999; 20\% body as a whole cervical/thoracic/lumbar spine as a result of the primary injury; 25 % body as a whole related to the head as a result of the primary injury; 10 % body as a whole ear as a result of the primary injury; 40 % of the left hip, 1995; 35 % right leg, 1973; and 20 % body as a whole right mandible, 1973. Dr. Poetz opined that the combination of the present and prior disabilities result in a total which exceeds the simple sum by 15 %.

Claimant testified that because of his accident, his neck, back, and shoulders give him problems. Because of his ear, he is unable to sleep on his right side. He has tingling in his fingers, especially in cold weather. He has bad headaches and back pain all the time for which he takes Advil. Claimant currently has constant muscle spasms in his back. Claimant is able to go to work, but he is physically exhausted when he gets off work. His neck bothers him all time the time and he has to do a lot of twisting and turning in driving his truck.

Claimant settled his claim against Employer for 12.5 % of the body of the whole referable to his head and neck.

Based upon my observations of Claimant at hearing, a review of the evidence, and the application of Missouri law, I find:

Claimant has failed to meet his burden of proving that the primary injury resulted in the requisite 12.5\% body as a whole permanent partial disability to meet the threshold of liability for the Second Injury Fund. Claimant's only complaint with regard to his ear was that he could not sleep on his right side due to pain. I do not believe his disability with regard to his ear would exceed 2.5 % of the body as a whole. Although his concussion did cause permanent disability, I do not believe such disability exceeds 5 % of the body as a whole.

I do not believe Claimant has proved any additional permanent partial disability with regard to his neck and back. Claimant had degenerative disc disease in the lumbar, thoracic and cervical spine, which preexisted the primary injury. Claimant complained of mid back pain in May 2000, and reported at that time that he had been having pain since the mid'90's. Although Claimant testified that he currently has tingling in his fingers as a result of the primary

Employee: Joseph Pearson

Injury No.:

03-063256

injury, the chiropractic records reflect that Claimant was reporting sensations of pins and needles in his arms in

Although Claimant settled his claim for 12.5\% body as a whole against Employer, such an agreement is not binding against the Second Injury Fund. Totten v. Treasurer of the State of Missouri, 116 S.W.3d 624 (Mo.App. E.D. 2003).

While I am mindful of Dr. Poetz's ratings, the Administrative Law Judge is not bound by the specific percentages of disability stated by the medical experts. Fogelsong v. Banquet Foods Corporation, 526 S.W.2d 886, 892 (Mo.App. 1975). The Administrative Law Judge is free to find a disability rating higher or lower than that expressed in medical testimony. Quinlan v. Incarnate Word Hospital, 714 S.W.2d 237, 238 (Mo.App. 1986).

Although I believe Claimant when he complains of neck and back pain, I do not feel he has met his burden of proving any additional permanent partial disability over and above his preexisting disability to his neck and back as a result of the primary injury. In order for this injury to support an overall finding of 12.5 % permanent partial disability of the body as a whole, I would have to find that Claimant's disability with regard to his cervical/thoracic/lumbar strain was at least 5\%. With no treatment records reflecting any physical therapy was performed, and no office visits other than the initial emergency room visit to support his claim, I do not find Claimant has met his burden of proof.

The claim against the Second Injury Fund is denied.

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation