Stanley Roberts v. City of St. Louis

On June 3, 2008, the Missouri Court of Appeals for the Eastern District issued an opinion reversing the July 20, 2007, award and decision of the Labor and Industrial Relations Commission (Commission). Roberts v. City of St. Louis, 254 S.W.3d 280 (Mo. App. 2008)(ED90150). By mandate dated June 25, 2008, the Court remanded this matter to the Commission with directions to address the administrative law judge's award on employee's claim for permanent and total disability in accordance with the Court's June 3, 2008, opinion.

Pursuant to the Court's mandate, we issue this award. Having reviewed the evidence and considered the whole record, the Commission finds that the award should be modified. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated August 2, 2006. The award and decision of Administrative Law Judge Joseph E. Denigan is attached and incorporated to the extent it is not inconsistent with our findings, conclusions, decision, and award.

We supplement the administrative law judge's findings as necessary. Employee presented the deposition testimony of a vocational expert, Mr. England, and a medical expert, Dr. Volarich. Neither employer nor the Second Injury Fund presented expert testimony in this matter.

Dr. Volarich testified that employee sustained the following permanent partial disabilities as a result of the primary accident: 40 % of the body as a whole referable to the lumbar spine; 15 % of the body as a whole referable to the cervical spine; 35 % at the left knee; 5 % at the right elbow; and, 15 % at the right knee.

A review of Dr. Volarich's report reveals a full page of recommended physical restrictions. We reprint the restrictions here.

With regard to work and other activities referable to the spine,

1. He is advised to limit repetitive bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks to an as need basis.

1. He should not handle any weight greater than 20 pounds, and limit this task to an occasional basis assuming proper lifting techniques.
2. He should not handle weight over his head or away from his body, nor should he carry weight over long distances or uneven terrain.
3. He is advised to avoid remaining in a fixed position for any more than about 20-30 minutes at a time including both sitting and standing.
4. He is advised to pursue an appropriate stretching, strengthening, and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking or swimming to tolerance daily.

With regard to work and other activities referable to the lower extremities,

1. He is advised to limit repetitive stooping, squatting, crawling, kneeling, pivoting, climbing, and all impact maneuvers.
2. He should be cautious navigating uneven terrain, slopes, steps, and ladders especially if he must handle weight. He can handle weight to tolerance.
3. He should limit prolonged weight bearing including standing or walking to 20-30 min or to tolerance. Additionally, if he must be on his knees for any reason, he should appropriately pad the surface upon which he is kneeling.
4. Glucosamine appears to be a useful compound to maintain articular surface cartilage and I recommend he use this supplement daily.
5. He is advised to pursue an appropriate strengthening, stretching, and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking or swimming (aquatic therapy is an excellent conditioning option) to tolerance daily.

(Tr. 91Q).

Dr. Kennedy's medical records echo some of these restrictions for employee's back, including, a 20-lb lifting limit and only occasional bending, twisting, or stooping, and the need to sit or stand as tolerated. Dr. Kennedy acknowledged employee may have additional restrictions based upon his knee condition.

Dr. Volarich testified that he believes that employee is permanently and totally disabled and unable to return to the open labor market in the Greater St. Louis Region. Dr. Volarich believes employee is permanently and totally disabled as a result of the April 2002 accident standing alone.

In forming his conclusions regarding employee's vocational prospects, Mr. England considered the physical restrictions imposed by Drs. Volarich and Kennedy. He solicited employee's description of employee's day-to-day activities. He considered employee's age, weight, mobility, education and vocational history. Mr. England does not believe that an employer in the normal course of business would be interested in hiring employee. Mr. England believes that employee is likely to remain totally disabled from a vocational standpoint.

The administrative law judge concluded that employee is not permanently totally disabled. An excerpt of his reasoning is reprinted below.

Based solely upon the primary work injury of October 2002, Claimant is not permanently and totally disabled. Claimant had significant treatment and underwent fusion surgery. Claimant has not since treated and ambulated smoothly into the courtroom without assistance. He freely admitted he had not applied for any employment since the accident. Claimant's injuries are serious and the record suggests a very significant PPD award.

As to evidentiary matters, the record does not permit an award of permanent total disability because both of Claimant's experts failed to contemplate serious injury to the same body part just sixty days beforehand. While Claimant's vocational expert is not responsible for a medical causation/attribution analysis, he nevertheless, relied on Dr. Volarich's ultimate opinions regarding total disability thereby undercutting the probative value of his ultimate opinions on employability. Moreover, Claimant's own statement is juxtaposed against his own expert and the plain language of the treatment record underlying the low back injury that occurred sixty days beforehand.

Award p. 6.

Contrary to the administrative law judge's suggestion, Dr. Volarich and Mr. England did consider employee's July 2002 injury to his back as the incident is mentioned by both of them in their reports. The administrative law judge's assertion that the employee sustained "serious injury" from the July 16, 2002, incident is not supported by the contemporaneous medical records and is belied by employee's prompt release to regular duty on July 30, 2002.

In addition, we reject the administrative law judge's conclusion that the facts in this matter are analogous to those found in Ransburg v. Great Plains Drilling, 22 S.W.3d 726 (Mo. App. 2000). In Ransburg, the claimant testified that he had no motivation to look for work in that employment might jeopardize his tax-free benefits from pension and social security. The Ransburg court held that the evidence of claimant's lack of motivation to work was relevant to the issue of permanent total disability and the Commission properly considered it along with all other evidence of employability. In Ransburg, the other evidence of employability included the testimony of four experts that claimant was able to work in a sedentary position.

The facts of this case are easily distinguishable from those present in Ransburg. In the instant case, there is no evidence that employee is not motivated to work. To the contrary, employee testified that had he not suffered the October 15, 2002, accident and its resultant injuries, he would not have retired as early. Employee testified that for insurance purposes he probably would have worked until he was 65 years old. In addition, the only experts to testify in this case testified that employee is not employable in the open labor market. We find the employee and his experts credible.

The principles of law bearing on our determination of whether employee is permanently and totally disabled are summarized below.

"'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."

"The 'extent and percentage of disability is a finding of fact within the special province of the Industrial Commission." "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."

"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."

"The 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 acceptance or rejection of medical evidence is for the Commission." "The decision to accept one of two conflicting medical opinions is a question of fact for the Commission."

Pavia v. Smitty's Supermarket, 118 S.W.3d 228, 233-234 (Mo. App. 2003) (citations omitted).

Based upon the testimony of employee, Dr. Volarich, and Mr. England, we find employee is unable to compete in the open labor market. Employee is permanently and totally disabled. We find employee's condition of permanent total disability is attributable solely to employee's injury of October 15, 2002.

Section 287.200.1 RSMo (2000) provides, in relevant part, "[c]ompensation for permanent total disability shall be paid during the continuance of such disability for the lifetime of the employee at the weekly rate of compensation in effect under this subsection on the date of the injury for which compensation is being made..." Accordingly, employer shall pay to employee permanent total disability benefits of $\ 566.00 per week, from January 24, 2004, and continuing for employee's lifetime or until modified by law.

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

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

Employee's Application for Review on Ground of Change of Condition filed on or about June 6, 2007, is denied as moot.

Given at Jefferson City, State of Missouri, this 19th day of December 2008.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: Stanley Roberts

Injury No.: 02-121517

Dependents: N/A

Before the

Division of Workers'

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: October 15, 2002
5. State location where accident occurred or occupational disease was contracted: City of 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 occurr