George Gremminger v. Quality Carriers Incorporated

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. Pursuant to \S 286.090$ RSMo, subsequent to reviewing the evidence and considering the entire record, the Commission modifies the award and decision of the administrative law judge dated April 22, 2008.

The issues stipulated in dispute at trial were accident, medical causation, and Second Injury Fund liability.

The administrative law judge determined and concluded that competent and substantial evidence supported a finding of 47 % permanent partial disability of the left eye as a result of the February 17, 2004, work-related accident. The administrative law judge found the Second Injury Fund liable for permanent partial enhancement pursuant to $\S 287.220$ RSMo as follows: a pre-existing 15\% permanent partial disability of the body as a whole referable to the lumbar spine and a pre-existing 15\% permanent partial disability of the body as a whole referable to the heart/cardiovascular/coronary artery disease, resulting in a 15\% load factor due to the synergistic effect from the combination of employee's primary injury along with employee's preexisting lumbar and heart conditions.

Employee filed an Application for Review with the Commission alleging the administrative law judge's award was erroneous because competent and substantial evidence supported an award of permanent total disability against the Second Injury Fund in lieu of an award of permanent partial enhancement.

The Second Injury Fund filed an Application for Review with the Commission arguing the award of permanent partial disability against the Second Injury Fund was not supported by competent and substantial evidence and was against the overwhelming weight of the evidence.

For the reasons set forth in this award and decision, the Commission modifies the administrative law judge's award, hereby concluding employee is entitled to permanent total disability against the Second Injury Fund.

The findings of fact and stipulations of the parties were recounted in the award of the administrative law

judge; therefore, the pertinent facts will merely be summarized below.

Employee worked as a truck driver for employer, beginning January 2004. As a part of employee's duties, he was required to load and unload, as well as climb a ladder to the top of the truck to hook up equipment. Employee testified that it was physically difficult given his size and lung condition for him to climb the ladder and hook up equipment. Employee was physically exhausted after climbing the ladder. Employee testified that he was injured while working for employer on February 17, 2004. On that day, after climbing the ladder, employee felt stinging and fluttering in his left eye. Employee noticed immediate loss of vision, testifying that it looked like an eyelash was lying across his eye. Employee's son was working with him and informed employee that his eye was red. Employee believed that he had broken a blood vessel. Employee called his supervisor and informed him of what happened. Employee testified that his condition continued to get worse and within a week, he experienced almost complete loss of vision in his left eye.

Employee continued to work for employer until June 2004. At that point, employee did not feel it was safe to continue working as a truck driver given his vision problems. Employee testified that his loss of vision was affecting his driving. Employee had difficulty avoiding objects and vehicles and backed into items several times. Employee was sent to Carolina Eye Care for a vision evaluation by employer and the notes indicated a complete loss of vision in employee's left eye. Employee testified that he was told by the doctors that there was nothing they could do for his loss of vision. Employee was diagnosed with near total vision loss of the left eye most likely due to central retinal artery occlusion in May 2004.

Employee testified that he did not have any vision problems prior to February 2004. Employee testified that he had prior health conditions including sleep apnea, COPD, congestive heart failure, arthritis, low back pain, and carpal tunnel syndrome; and had a history of myocardial infarction. Employee underwent a right carpal tunnel release in March of 1997 and left carpal tunnel release in April 1997. Employee was diagnosed with congestive heart failure, chronic obstructive pulmonary disease, history of myocardial infarction and obesity in 1999. Employee was diagnosed with severe obstructive sleep apnea, arthritis, asthma, coronary artery disease treated with stent and hypertension in May of 2002. Employee was treated several times for lower back pain. Employee sought treatment for pain management in December 2001 to treat his lower back complaints. Employee was diagnosed with mechanical low back, morbid obesity, hypertension, COPD and degenerative joint disease. Employee was placed on pain medication and underwent an epidural steroid injection in April of 2002.

Employee testified that up and until February 17, 2004, he could climb stairs, but it was difficult to climb more than twelve at a time; he could stand for 10-15 minutes before back pain would require him to sit down; walk for 10 minutes before his back would give out; and lift between 25-30 lbs., 10 lbs. repetitively. Prior to February 2004, employee needed to change positions frequently to relieve his back pain and missed work on occasion due to his lung, back and other medical conditions. Employee testified that his back would give out on occasion causing him to be out of work for approximately a week or two at a time. Employee also felt constantly tired due to his sleep apnea condition and would fall asleep while driving. Employee testified that he had several accidents as a result. Employee testified that as long as he was able to use his C-pap machine, he was able to control his sleep apnea and get sleep. Employee testified that prior to February 2004, he experienced carpal tunnel symptoms, including numbness. Employee testified that his hands would fall asleep while driving his truck. Employee also noticed decreased strength in his hands following his carpal tunnel releases.

In addition, employee took medication for his COPD, congestive heart failure, low back pain, and sleep apnea. Employee testified that the medications made him drowsy and affected his concentration. Employee found that changes in weather, extreme cold or heat, affected his condition as well.

Employee settled his February 17, 2004, injury claim with employer/insurer for 17.5\% permanent partial

disability of the left eye. Employee also had prior workers' compensation claims in which he entered into settlement agreements. With respect to employee's August 9, 2003 injury claim, employee settled with employer/insurer for 15 % permanent partial disability to the body as a whole referable to the lumbar spine and with the Second Injury Fund for 15\% permanent partial disability of the body as a whole for employee's pre-existing cardiovascular/heart condition. With respect to employee's February 21, 1997 injury claim, employee settled with employer/insurer for 15 % permanent partial disability of each wrist; and with the Second Injury Fund for 15\% permanent partial disability for the combination of employee's wrists, 15\% permanent partial disability of the body as a whole for employee's heart condition and 121 / 2 % permanent partial disability for employee's back condition. With respect to employee's 1993 injury claim, employee settled with employer/insurer for 5\% permanent partial disability to the body as a whole referable to the left knee.

Dr. David Peeples testified on behalf of employer/insurer. Dr. Peeples evaluated employee on May 12, 2006. Dr. Peeples diagnosed employee with left central retinal artery occlusion in a setting of severe left carotid occlusive disease and multiple vascular risk factors. Dr. Peeples stated that employee's extensive risk factors included hypertension, coronary artery disease, hypercholesterolemia, sleep apnea, morbid obesity and cigarette use. Dr. Peeples opined employee was a stroke waiting to happen. Dr. Peeples did not believe employee's central retinal artery occlusion was related to employee's work incident on February 17, 2004. Dr. Peeples admitted that he did not review all of employee's medical records regarding his eye condition prior to rendering his opinion. Dr. Peeples did not review any records from Barnes Retina Institute, Dr. Englebrecht, Clarkson Eye Center, Carolina Eye Center, Dr. Kornfeld, Dr. Ellen Brogan, St. Anthony's Medical Center, Mercy Medical Group, Dr. Saloma, Dr. Chin or Dr. David.

Dr. Raymond Cohen testified on behalf of employee. Dr. Cohen reviewed employee's medical records and examined employee on December 1, 2005. Dr. Cohen noted that employee had pre-existing conditions which included chronic obstructive pulmonary disease and asthma, sleep apnea, coronary artery disease, spinal arthritis along with spinal stenosis with chronic lumbar strain/sprain and myalgia. Dr. Cohen noted that employee continued to have significant ongoing low back pain, and at times, could not get out of bed because of the pain. Employee was unable to bend because of his back condition and could not stand for more that ten minutes. Employee was on multiple medications for his numerous medical conditions.

With respect to employee's primary injury, Dr. Cohen diagnosed employee with an ocular infarction with fixed deficit in the left eye causing horizontal upper visual field loss due to excessive work-related stress. Dr. Cohen offered his opinion as to causation regarding the primary injury. Dr. Cohen opined that employee's ocular infarction was a direct result of his work and that the work was a substantial factor in employee's disability. Dr. Cohen found that the ocular infarction was due in part to employee's pre-existing vascular disease; however, that the substantial factor in his ocular infarction was the severe stress and physical nature of his work including climbing the small ladder to get on top of the trailer.

Dr. Cohen opined that employee suffered a permanent partial disability of 50 % of the left eye, 2-3\% preexisting and the remaining 47-48 % due to the primary injury. He opined that employee suffered a 20 % whole person disability ( 2-3 % pre-existing and the remaining 17-18 % as a direct result of the primary injury) due to other problems which were directly affected by his eye disorder in that he had to walk with a cane and has fallen because of both the visual loss in his left eye and loss of depth perception.

Dr. Cohen opined due to his pre-existing conditions that employee suffered 10\% whole person disability due to chronic obstructive pulmonary disease, 10 % whole person disability due to sleep apnea, 10 % whole person disability due to lumbar spine, and 10 % whole person disability due to coronary artery disease.

Dr. Cohen concluded that employee's pre-existing conditions or disabilities were an obstacle to his employment or re-employment. Dr. Cohen further opined that employee's pre-existing conditions or disabilities combined with his primary work injury to create a greater overall disability than the simple sum; and that due to this combination of disabilities, that employee was permanently and totally disabled from his prior employment as a professional truck driver and not capable of gainful employment.

Delores Gonzalez, vocational expert, evaluated