Robert Church v. Fastrak Erectors, Inc.

Injury No.: 02-145233

Employee: Robert Church

Employer: Fastrak Erectors, Inc. (Settled)

Insurer: Virginia Surety Co., Inc. (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: May 9, 2002

Place and County of Accident: St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 20, 2007. The award and decision of Administrative Law Judge Linda J. Wenman, issued June 20, 2007, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this 20th day of February 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey,

Member

Attest:

Secretary

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: May 9, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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: While carrying an oxygen welding tank on his back, Employee fell forward hitting his head on the ground.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Cervical spine
14. Nature and extent of any permanent disability: 30\% BAW referable to cervical spine previously paid by Employer,

A hearing for final award was held regarding the Second Injury Fund portion of the above referenced Workers' Compensation claim by the undersigned Administrative Law Judge on April 11, 2007. Post-trial memorandums were received, and the case was submitted on May 11, 2007. Attorney Richard Grossman represented Robert Church (Claimant). Assistant Attorney General Kevin Nelson represented the Second Injury Fund (SIF). The hearing for this injury number was held in conjunction with companion case #02-146173. Prior to the start of the hearing the parties identified the issue for disposition in this case as the liability of SIF for permanent total disability (PTD), or permanent partial disability (PPD) benefits. Claimant offered Exhibits A-Q, SIF objected to Exhibit D under the seven day rule, but the remaining exhibits were admitted into the record without objection. SIF's objection to Exhibit D is overruled, and Exhibit D is admitted into evidence.

Any markings contained within any exhibit were present when received, and the markings did not influence the evidentiary weight given the exhibit. Any objections not expressly ruled on in this award are overruled.

All evidence presented has been reviewed. Only testimony and evidence necessary to support this award will be reviewed and summarized.

1. Claimant is fifty-six years old, and obtained a GED after leaving school in the 9th grade. After serving in the Marine Corps, Claimant installed equipment for Western Electric, worked on the line for Ford and Chrysler, and performed unskilled construction and factory labor.
2. Claimant has worked as an ironworker/welder since 1978, leaving the trade briefly due to a lack of work. Claimant began working for Employer during the mid 1990's. By the late 1990's Claimant was promoted to foreman. In addition to his ironworking duties, as a welder Claimant was required to carry oxygen bottles weighing approximately 100 pounds.
3. On May 9, 2002, Claimant was carrying a large oxygen bottle when he tripped over electric cables lying on the ground, and fell forward striking his head. Employer did not immediately authorize treatment, but later authorized treatment with Dr. Petkovich. Claimant last worked on December 12, 2002.
4. On October 16, 2003, Dr. Petkovich performed a C5-6, C6-7 cervical spine fusion. By April 12, 2004, Claimant complained of dizziness and numbness/tingling in both arms. A CT/myelogram demonstrated solid fusions at C5-6 and C6-7, and an EMG/NCV found no abnormalities of Claimant's upper extremities. Dr. Petkovich ordered more aggressive physical therapy, and a functional capacity examination (FCE).

1. On August 23, 2004, Dr. Petkovich noted Claimant's FCE demonstrated he could work in a medium demand work level. Dr. Petkovich restricted Claimant's lifting to ten pounds with his right upper extremity, and no overhead work with his right arm. Dr. Petkovich commented he had no medical explanation for Claimant's complaints.
2. On September 20, 2004, Claimant was found to be at maximum medical improvement (MMI). Due to his restrictions, Claimant was unable to return to work as an ironworker. On September 25, 2006, Claimant settled his claim with Employer for 30\% BAW PPD referable to his cervical spine.
3. As of hearing, Claimant complains of pain, limited range of motion, headaches, and trouble swallowing due to his cervical spine fusion.
4. Claimant has preexisting injuries to his left foot, low back, left eye, and right hand. In the 1990's Claimant fractured his left foot. Claimant first injured his low back in 1991, and settled his case for 5\% BAW. During 1993, Claimant injured his low back, was off work for several months, and later settled his case for 12.5\% BAW. Claimant also injured his left eye in 1993, and later settled his case for 13.75 % referable to his eye. During 1999, Claimant suffered a severe injury to his right index finger, which left Claimant with a severe chronic flexion contracture.
5. Dr. Cohen examined Claimant on March 14, 2005. Upon examination Dr. Cohen noted: muscle weakness and loss of sensation in the C6 dermatome pattern; decreased range of motion of Claimant's cervical spine; trigger points at C3-T1; a severe flexion contracture of Claimant's right index finger DIP joint; and lumbar spine tenderness with decreased range of motion. Dr. Cohen rated Claimant's cervical fusion at 47-48\% BAW, right index finger at 20 % at the 175 week level, and his low back at 20\% BAW. Dr. Cohen opined Claimant's right hand and lumbar injuries were a hindrance or obstacle to employment. Dr. Cohen also opined Claimant should be restricted from any prolonged sitting, standing, climbing, grasping, lifting, ladder work, or any activities that would keep his head or neck in a single position.
6. Mr. England performed a vocational examination on April 18, 2005. Upon testing, Claimant demonstrated sufficient educational skills that would allow him to handle basic clerical functions found in entry level service employment. Mr. England did not find Claimant possessed transferable skills, and noted Claimant would be unable to return to work as an ironworker or welder, but noted Claimant would be capable of learning new skills. If Mr. England applied the work restrictions imposed by Dr. Petkovich, Mr. England indicated Claimant would be capable of performing sedentary to light work. However, when Mr. England applied the restrictions placed by Dr. Cohen, and factored in Claimant's bilateral hand problems, Mr. England opined Claimant was PTD and unable to perform in the open labor market.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented, and the applicable law of the State of Missouri, I find the following:

Claimant seeks permanent total disability benefits from SIF. Section 287.020.7 RSMo., defines "total disability" as the inability to return to any employment, and not merely the inability to return to employment in which the employee was engaged at the time of the last work related injury. See Fletcher v. Second Injury Fund, 922 S.W.2d 402 (Mo.App.1996)(overruled in part). The determinative test to apply when analyzing permanent total disability is whether a claimant is able to competently compete in the open labor market given claimant's condition and situation. Messex v. Sachs Electric Co., 989 S.W.2d 206 (Mo.App. 1999)(overruled in part). An employer must be reasonably expected to hire the claimant, given the claimant's current physical condition, and reasonably expect the claimant to successfully perform the work duties. Shipp v. Treasurer of Mo., 99 S.W.3d 44 (Mo.App. 2003)(overruled in part). The Second Injury Fund

is implicated in all cases of permanent disability where there has been previous disability, and in cases of permanent total disability, the Second Injury Fund is liable for remaining benefits owed after the employer has completed payment for disability of the last injury alone. §287.220.1 RSMo. Even though a claimant might be able to work for brief periods of time or on a part-time basis it does not establish that they are employable. Grgic v. P\&G Construction, 904 S.W.2d 464, 466 (Mo.App.1995).

Claimant's medical and vocational experts h