Johnny Bradshaw v. Ree's Contract Service

Employee was referred to Dr. Guiley for a psychiatric evaluation on August 14, 2003. Dr. Guiley diagnosed employee with a psychiatric condition and prescribed medication. In January of 2004, employee sought treatment from Dr. Openlander. Employee was treated by both Dr. Guiley and Openlander for his anxiety and depression.

Employee settled with the employer for 20\% permanent partial disability to the body due to his cervical injury on February 22, 2002.

Dr. Volarich opined that due to the primary injury employee suffered a permanent partial disability of 30 % of the body as a whole referable to the cervical spine. He opined that employee suffered a 20\% permanent partial disability due to his low back injury on April 12, 2002. Dr. Volarich concluded that employee was limited to light duty capacity as a result of his primary injury and that he suffered further disability due to his psychiatric condition. Dr. Liss, psychiatrist, found that employee suffered a 40\% permanent partial disability due to anxiety and depression as a result of his work injury. Dr. Liss concluded that employee was unemployable due to his anxiety and depression.

Dr. Volarich opined that employee suffered 15\% permanent partial disability referable to each wrist due to his preexisting bilateral carpal tunnel syndrome. Dr. Volarich concluded employee suffered 25\% permanent partial disability to the right elbow due to osteoarthritis that pre-existed his primary injury. Dr. Liss opined that employee suffered from attention deficit disorder (ADD) prior to February 22, 2002 even though he had neither been diagnosed nor received treatment for ADD prior to his primary injury. Dr. Liss opined employee suffered 25\% permanent partial disability due to ADD pre-existing the February accident. Dr. Liss also assigned a 10\% permanent partial disability due to pre-existing depression and anxiety.

Delores Gonzalez, vocational expert, evaluated employee on July 9, 2005, and found employee to be unemployable in the open labor market due to a combination of his orthopedic injuries and psychiatric condition.

Upon careful review of the entire record, including the testimony, as well as the medical records offered and admitted into evidence, the Commission determines and concludes that the more believable evidence supports a finding that the combination of employee's pre-existing disabilities and his work-related injury render employee permanently and totally disabled.

"In order to be entitled to Fund liability, the claimant must establish either that (1) a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or (2) the two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself." Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo.App. W.D. 2004) citing Karoutzos v. Treasurer of State, 55 S.W.3d 493, 498 (Mo.App. W.D. 2001).

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

Dr. Liss and Dr. Volarich concluded employee suffered pre-existing measurable permanent partial disabilities. We find that employee has proven pre-existing measurable disabilities that were an obstacle to his employment.

Dr. Volarich noted disability to both upper extremities due to bilateral carpal tunnel syndrome, including lost motion as well as recurrent pain with repetitive motion. Employee's upper extremity limitations were specifically highlighted as an obstacle to his reemployment. Dr. Volarich testified that a combination of his disabilities created a substantial disability and based on his physical disabilities, he was permanently and totally disabled from any work activities above the light duty level. He deferred any analysis or assessment of disability due to his psychiatric condition to a psychiatrist.

Dr. Liss also testified that employee's history and medical records indicated that he suffered from pre-existing depressive disorder and ADD. Dr. Liss concluded that employee's ADD, congenital disorder, was unrelated to the accident but complicated his ability to deal with his disability. Dr. Liss testified that the ADD was something that employee had been dealing with since childhood. Dr. Liss opined attention deficit does interfere with concentration, organization, focus and ability to be efficient.

Ms. Gonzalez described how employee's mental conditions combine with his physical conditions to eliminate him from consideration for all levels of work exertion. Ms. Gonzalez noted that employee had a significant psychiatric history of severe depression, panic disorder, anxiety, and ADHD. She opined that his psychiatric disorders preclude tolerating work stresses, maintaining attention and concentration, and interacting appropriately with co-workers and the public. She also testified that employee's history of carpal tunnel syndrome would play a role in keeping employee from being employable, specifically if he were required to do repetitive work. Ms. Gonzalez concluded the combination of his injuries and psychiatric impairments preclude competitive employment.

The evidence supports Dr. Volarich's opinion that employee suffered a 30\% permanent partial disability to the body as a whole due to his primary injury. This rating accounted for employee's neck pain, lost motion and ongoing headaches. Therefore, we find that employee suffered a 30\% permanent partial disability to the body as a whole referable to the cervical spine as a result of his February 22, 2002 work injury.

Based on the foregoing, the Commission concludes and determines that the combination of employee's preexisting disabilities and his work-related injury render employee permanently and totally disabled. Employee suffered 30\% permanent partial disability due to his primary injury. We find employee suffered the following preexisting disabilities: 15 % permanent partial disability referable to each wrist; 25 % permanent partial disability due to attention deficit disorder; and 10\% permanent partial disability due to depression and anxiety.

Given that employee's permanent partial disability rate and permanent total disability rate are the same, the Second Injury Fund is not responsible for any differential for 120 weeks beginning January 7, 2003. Thereafter, employee shall receive permanent total disability benefits from the Second Injury Fund in the weekly amount of $\ 321.14 for the remainder of his lifetime, or until as modified by law.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued December 11, 2006, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $25^{\text {th }}$ day of July 2007.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Hearing Date:

September 12, 2006 Checked by: JED:tr

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: February 22, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 injured neck while climbing/trimming trees and reaching overhead.
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: cervical spine; depression, anxiety
14. Nature and extent of any permanent disability: Permanent total disability against Employer (Settled)
15. Compensation paid to-date for temporary disability: $\ 9,218.08
16. Value necessary medical aid paid t