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