Rosalyn Strait v. Integram St. Louis Seating

This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence and briefs, and we have considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the March 24, 2006, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge concluded that employer/insurer stipulated as to medical and legal causation of employee's pulmonary condition; i.e. that employee's pulmonary condition was occupationally induced. The administrative law judge heard this matter to consider 1) the liability of employer for temporary total disability benefits, 2) the nature and extent of employee's permanent disability, and, 3) the liability of the Second Injury Fund for permanent total disability/enhanced permanent partial disability.

The administrative law judge found that employee suffered a forty-percent (40%) permanent partial disability of the body as a whole due to the primary injury. The administrative law judge concluded that employee's preexisting left upper extremity condition was a hindrance or obstacle to her employment and that the permanent partial disability attributable to the condition was 20% of the left upper extremity at the level of the wrist and that the disability met the threshold for imposition of Second Injury Fund liability. The administrative law judge concluded that the primary and preexisting conditions create a greater disability by a factor of fifteen percent (15%) over the simple sum of the two disabilities. The administrative law judge found the Second Injury Fund liable for 29.25 weeks of permanent partial disability.

Employee appealed to the Commission alleging the administrative law judge erred in concluding she is not permanently and totally disabled.

Employer/insurer invites us to review the administrative law judge's conclusion that employer/insurer stipulated as to medical and legal causation; i.e. that employee's pulmonary condition was occupationally induced. Employer/insurer also invites us to review the administrative law judge's award of future medical care. We decline employer/insurer's invitations because employer/insurer did not file an Application for Review preserving these issues for review.

Permanent Total Disability [T]he term "total disability" is "defined as the inability to return to any employment and not merely the

inability to return to the employment in which the employee was engaged at the time of the accident." Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. 2001); § 287.020.7. "It does not require that the claimant be completely inactive or inert." Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo. App. 1995); see also Brookman v. Henry Transp., 924 S.W.2d 286, 290 (Mo.App. 1996); Reiner v. Treasurer, State of Missouri, 837 S.W.2d 363, 367 (Mo.App. 1992).

"'To determine if claimant is totally disabled, the central question is whether, in the ordinary course of business, any employer would reasonably be expected to hire claimant in his present physical condition." Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo. App. 2000); see also Massey v. Missouri Butcher \& Cafe Supply, 890 S.W.2d 761, 763 (Mo. App. 1995).

"The testimony of . . . lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence.'" Eimer v. Bd. of Police Comm'rs, 895 S.W.2d 117, 120 (Mo.App. 1995); Ransburg, 22 S.W.3d at 732.

Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 234 (Mo. App. 2003).

[T]he Commission does not have to make its decision only upon testimony from physicians; it can make its findings based on the entire evidence. Smith, 32 S.W.3d at 573; see Eimer, 895 S.W.2d at 120. "In determining the percentage of disability, the Commission is not bound by the percentage estimates of medical experts and it may consider all of the evidence, including the testimony of the employee and all reasonable inferences." Eimer, 895 S.W.2d at 120.

Pavia, 118 S.W.3d at 239[1], citing Smith v. Richardson Bros. Roofing, 32 S.W.3d 568 (Mo. App. 2000).

Section 287.220 creates the second injury fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." It matters not whether the previous disability is "from compensable injury or otherwise."

That portion of $\S 287.220$ pertaining to permanent total disability is: "*** If the previous disability ** , and the last injury together result in total and permanent disability, the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable, is less than the compensation provided in this chapter for permanent total disability then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the second injury fund * * *."

Stewart v. Johnson, 398 S.W.2d 850, 853 (Mo. 1966).

To trigger the liability of the Second Injury Fund, an employee must have a pre-existing permanent partial disability, whether from a compensable injury or otherwise. Section 287.220.1; "The permanent disability pre-dating the injury in question must 'exist at the time the work-related injury was sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed.'" See also 287.220.1. To determine

whether a pre-existing partial disability constitutes a hindrance or obstacle to the employee's employment, "the Commission should focus on the potential that the pre-existing injury may combine with a future work related injury to result in a greater degree of disability than would have resulted if there was no such prior condition." Liability of the Second Injury Fund is triggered only "by a finding of the presence of an actual and measurable disability at the time the work injury is sustained."

E. W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo. App. 2002), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

A disability is considered "permanent" if it can be "shown to be of indefinite duration in recovery or substantial improvement is not expected." Tiller v. 166 Auto Auction, 941 S.W.2d 863, 865 (Mo. App. 1997).

Kerns v. Midwest Conveyor, 126 S.W.3d 445, 451 (Mo. App. 2004).

Drs. Shen, Volarich and Hyers all testified they would defer to a vocational expert regarding employee's employability. The only vocational expert to offer an opinion in this matter was Mr. James England, a rehabilitation counselor with 31 years experience. Mr. England considered the employee's physical restrictions as described by Drs. Shen and Volarich relating to employee's need to work in an environment free of dust, fumes, chemicals, etc, as well as employee's physical restrictions as a result of the preexisting disability to her left upper extremity (assembly ability negated). Those restrictions limit employee to sedentary work in a clear-air environment. Mr. England then factored in limitations resultant from employee's pre-existing intellectual problems (low intelligence and academic deficiencies), which he believes are permanent. Mr. England believes that employee's intellectual deficits prevent her from functioning in jobs that require normal reading, writing, and the ability to handle paperwork. Mr. England's opinions that employee's intellectual problems are permanent and pre-existed the primary injury are supported by employee's high school transcripts that reveal she was receiving special education and by employee's testimony that she is currently limited to adding and subtracting and reading simple words.

Mr. England testified that he does not think employee is realistically employable in the open labor market. He simply does not believe there is an employer in the local open labor market who would reasonably be expected to hire employee.

[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.

Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (Mo. App. 2004) citing Corp v. Joplin Cement Co., 337 S.W.2d 252, 258 (Mo. banc 1960).

The opinion of Mr. England was undisputed. We also find it was unimpeached. The administrative law judge finds the vocational opinion of Mr. England wholly unpersuasive, largely because Mr. England explained that employee's test scores on the California Test of Mental Maturity put her in the mentally retarded range of intelligence and that individuals in this range of intelligence are limited to simple and repetitive tasks. The administrative law judge was so offended by Mr. England's word choice that he disregarded Mr. England's opinion.

The administrative law judge's criticism of Mr. England's testimony is misplaced. Mr. England was simply reciting his understanding of the intelligence testing results in clinical terms. In addition to reviewing the test scores, Mr. England performed his own assessment of employee's capabilities. Mr. England's testing found that employee was performing math at a $5^{\text {th }} grade level and reading at a 6^{\text {th }}$ grade level. Employee testified that she can read simple words such as in a recipe and she can add and subtract. The evidence on the whole record supports Mr. England's opinions regarding employee's intellectual capacity and the obstacles it poses to employment opportunities.

The administrative law judge goes on to state that employee's work history belies the notion that her cognitive capabilities would limit her to simple and repetitive tasks. He relies on employee's training to perform fifteen different jobs for employer and her occasional cashiering duties as proof that employee can perform beyond simple and repetitive tasks. The problem with the administrative law judge's conclusion is that there is no evidence to establish that any of the tasks employee has been called upon to perform were anything other than simple or repetitive. Employer's human resources manager described the jobs employee performed for employer: "For the most part they're simple. Some of them are repetitive. Some of them are not." Mr. England explained that cashiering jobs do not require more than the performance of simple and repetitive tasks because of the manner in which cash registers are programmed. Employee's description of various jobs she