William Carpenter v. Trio Masonry, Inc.

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, heard the parties' oral arguments and we have considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the June 19, 2008, 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.

Employer/insurer stipulated that employee was employed by employer on February 21, 2003, and that any liability assessed against it was fully insured. The administrative law judge heard this matter to consider 1) the nature and extent of employee's disability resulting from the February 21, 2003 accident, 2) the liability of the Second Injury Fund; and 3) the nature and extent of employee's disfigurement pursuant to $\S 287.190$ RSMo.

Employee's contract of employment was in the state of Missouri, but the work-related injury took place in Overland Park, Kansas. Employee brought actions in both states. The employee and the employer/insurer settled the Kansas case prior to the final hearing in this Missouri case.

The administrative law judge found that the employee sustained a sixty percent (60\%) permanent partial disability of the body as a whole due to the primary injury. That rating encompasses employee's right and left shoulder problems, the sequela of his closed-head injury (double-vision and headaches), his cervical region problems, chronic pain syndrome and depression. The administrative law judge also found that employee's preexisting disabilities of his upper extremities combine with the primary injury to render employee permanently and totally disabled. Lastly, the administrative law judge awarded employee an additional four weeks of compensation for disfigurement for a long thin scar along the front of his neck due to a cervical fusion.

The administrative law judge found employer liable to employee for a total of 244 weeks of disability. This 244 weeks represents the sixty percent ( 60 % ) of permanent partial disability of the body as a whole (or 240

weeks) from the primary injury, plus the additional four weeks of compensation for the cervical fusion scar disfigurement. The administrative law judge found the Second Injury Fund liable to employee for permanent total disability benefits of $\ 649.32 per week for employee's lifetime. The Second Injury Fund appealed to the Commission alleging the administrative law judge erred in finding the Second Injury Fund liable for employee's permanent total disability benefits because employee's permanent total disability resulted from the last injury alone.

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.

When the injury occurred, employee was working for employer as a machine operator. In this capacity, employee operated forklifts, cranes and mixed mortar and grout. On February 21, 2003, employee was struck by a revolving handle of a mixer and was knocked unconscious for 8-10 minutes. As a result of that injury, employee suffered a closed head injury, underwent three surgeries of the right shoulder, including a partial titanium joint replacement and had a two-level neck fusion.

Employee testified that he has ongoing symptoms related to his closed-head injury due to this primary accident, including photo sensitivity requiring him to wear sunglasses both inside and outside the house. Employee continues to have debilitating headaches nearly everyday, double vision 85-90\% of the time, times where he blacks out, he has trouble sleeping more than two hours at night, and he has serious memory problems. Employee takes Chlorazepam, Norco, Oxycontin and Cymbalta, all of which are medications prescribed for the conditions that arose from his injury of February 21, 2003.

Prior to the February 21, 2003 accident, employee had two significant injuries to his upper extremities and broke his right ankle in the Marines. In 1984 employee fell from scaffolding injuring his right shoulder. This injury required two surgeries on his right shoulder. Employee was off work for approximately three years as a result of the 1984 fall. After returning to masonry work, employee again sustained an injury in the form of bilateral carpal tunnel syndrome. Employee underwent carpal tunnel releases but did not fully recover from his symptoms.

Employee and employee's wife provided testimony that employee has been unable to participate in various activities and hobbies since the February 21, 2003 accident. In the summer of 2004 employee attempted to return to employment as a truck driver. Employee quit this job because he felt he posed a danger to himself and other drivers. Employee testified that his limited range of motion in his neck and constant headaches rendered him unable to perform his duties as a truck driver.

Multiple doctors performed evaluations of employee's physical and psychiatric conditions. Dr. Brent Koprivica saw employee on two separate occasions for the purpose of providing an independent medical evaluation. Dr. Koprivica first saw employee in June of 2004. Following said visit, Dr. Koprivica prepared a report and assigned employee a rating of 50 % permanent partial disability to the body as a whole based solely on the work injury of February 21, 2003. Dr. Koprivica also assigned employee various preexisting disability ratings for his right and left shoulders, right and left wrists and right ankle. Dr. Koprivica concluded that the preexisting disabilities combine with the primary injury to rise above the simple arithmetic sum of the separate disabilities. Dr. Koprivica did not state that employee was permanently and totally disabled at that point.

Dr. Koprivica's second visit with employee took place in June of 2006. Following this visit, Dr. Koprivica assigned employee a permanent partial disability rating of 60 % to the body as a whole for the primary injury of February 21, 2003. In addition, after considering that employee had been unable to sustain employment

and was receiving Social Security Disability benefits, Dr. Koprivica opined that "the impact of combining ... [employee's preexisting] disabilities results in permanent and total disability."

On October 12, 2006, Dr. Allan Schmidt saw employee for the purpose of performing a psychological evaluation on employee. Dr. Schmidt ultimately concluded that employee had a total psychological disability rating of 30 % and a psychological disability rating of 10 % prior to the February 21, 2003 injury.

Michael J. Dreiling, the employee's vocational expert, evaluated employee and provided testimony that employee was unemployable in the open labor market. Mr. Dreiling initially testified that it is a combination of both the February 21, 2003 injury and employee's preexisting medical problems with the carpal tunnel surgeries that make employee unemployable in the open labor market. On cross-examination, Mr. Dreiling was directed to Dr. Koprivica's deposition testimony in which Dr. Koprivica testified that given the restrictions isolated solely to the February 21, 2003 injury, employee would only be able to do sedentary types of tasks. Mr. Dreiling testified that Dr. Koprivica's testimony was consistent with his vocational assessment and that solely considering employee's restrictions from the last injury, Mr. Dreiling would limit employee to sedentary or very sedentary jobs. Mr. Dreiling was then given a listing of all of employee's subjective complaints relating solely to the February 21, 2003 injury. Mr. Dreiling was asked to assess employee's employability given said complaints and the medical restrictions assigned solely for the February 21, 2003 injury. Mr. Dreiling testified that an employee with those complaints and those restrictions could not access the open labor market and be employed for a job the way it is customarily performed.

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 evidence supports a finding that the last injury alone renders employee permanently and totally disabled.

As the administrative law judge correctly stated in the award, there is no doubt that the employee is permanently and totally disabled. The issue is whether the employee is unemployable in the open labor market as a result of the last accident alone or a combination of the last accident and employee's preexisting conditions.

Section 287.220 RSMo 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." In this case, there is a substantial amount of medical and testimonial evidence supporting the proposition that employee had preexisting disabilities. However, the employer's liability must first be considered in isolation before determining Second Injury Fund liability. Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo.App. W.D. 1999), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). In Kizior, the Court set out the test for determining Second Injury Fund liability as follows:

Section 287.220.1 contains four distinct steps in calculating the compensation due an employee, and from what source, in cases involving permanent disability: (1) the employer's liability is considered in isolation "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability'; (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and (4) The balance becomes the responsibility of the Second Injury Fund.

Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. W.D. 1999).

In this case, the analysis stops at step one because there is substantial medical and testimonial evidence provided in the record that the last injury alone caused employee to be permanently and totally disabled. As a result of the February 21, 2003 injury, employee suffered a closed head injury, underwent three surgeries of the right shoulder, including a partial titanium joint replacement and had a two-level neck fusion. Solely, as a result of this injury, employee is unable to participate in various activities and hobbies, has trouble sleeping more than two hours at night, he gets horrible headaches, his eyes are sensitive to light, he has double-vision 85-90\% of the time, and he has memory loss. Although Dr. Koprivica opined that employee was permanently and totally disabled as a result of combining the last injury with employee's preexisting disabilities, he testified that employee would be restricted to very sedentary duties if he were to consider the last injury alone. Dr. Koprivica also testified that he would defer to a vocational expert as to employee's employability in the open labor