Jimmie Kinsey v. Buchheit Enterprises, Inc.

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed and permanent total disability benefits should be awarded.

First, there is no question regarding whether employee's May 26, 2004, accident is compensable. In fact, employee has even settled his claim against employer for this primary accident. The issue currently concerning this case centers on the nature and extent of employee's permanent disability. It is my opinion, based on the expert medical and vocational opinions that employee should be awarded permanent total disability benefits instead of the mere permanent partial disability benefits awarded by the administrative law judge.

Permanent and total disability is defined by section 287.020.7 RSMo. Cum. Supp. 2004, as the "inability to return to any employment ...."

The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. The pivotal question is whether any employer would reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849, 853 (Mo.App. 1995) (citations omitted).

There is no questioning the fact that employee suffered from substantial permanent disability prior to the primary injury. In October 1997, employee injured his right shoulder while pulling a tarp over bales of hay loaded on a trailer. The claim for compensation regarding this accident was settled for 20 % permanent partial disability of the right shoulder. Employee re-injured his right shoulder in April 1999. The claim for compensation regarding this re-injury was settled for 30 % permanent partial disability of the right shoulder. Dr. McGinty rated employee's right shoulder overall at 50\% permanent partial disability.

On August 19, 2001, employee was in a motor vehicle accident which resulted in injuries to his ring and little fingers on his left hand. No surgical relief was offered and employee remains immobile in the two fingers on the left hand. This case was settled for 20 % permanent partial disability of the left hand.

The primary injury occurred on May 26, 2004, when employee attempted to step down from his trailer and his foot slipped. Employee held onto the trailer with his left hand causing a jerking motion in the left upper extremity. Employee had multiple procedures performed on the shoulder and his claim was eventually settled for 62.5 % permanent partial disability of the left upper extremity.

Dr. Levy examined employee on November 17, 2005, and opined that employee had an 80\% permanent partial disability of the left upper extremity at the shoulder due to the May 2004 accident, 40 % permanent partial disability of the right upper extremity at the shoulder, and 15 % permanent partial disability of the left upper extremity at the wrist. Dr. Levy further opined that the combination of the impairments created a greater disability than the simple sum of each and a loading factor should be added. Dr. Levy is of the opinion that employee is permanently and totally disabled and unable to compete in the open labor market.

On December 20, 2005, employee met with Susan Shea for a vocational assessment. Ms. Shea's report provided numerous restrictions for employee. Ms. Shea ultimately opined that employee is not employable in the national economy or that any typical employer would consider hiring him. Ms. Shea took into consideration the pre-existing conditions and problems to the right shoulder and to the fingers of his left hand.

The Second Injury Fund did not provide testimony from a medical expert. The only medical evidence offered by the Second Injury Fund is that taken from the records of Dr. Hulsey. Dr. Hulsey released employee to return to work, but did not believe that employee could return to his previous occupation. Dr. Hulsey rated employee's right shoulder at 25 % permanent partial disability and put the employee on restrictions of no overhead lifting of more than 15-20 pounds and no commercial driving.

On September 6, 2005, employee was seen by Victor Zuccarello for a functional capacity evaluation. Mr. Zuccarello stated that employee was able to function in a medium work or physical demand level which was from twenty-one to fifty pounds on an occasional basis. Mr. Zuccarello noted that there were very high pain levels despite employee's improved function. Mr. Zuccarello is of the opinion that employee failed to perform the tasks that would be required of an over the road truck driver.

In September 2005, employee was seen by James England for a functional capacity evaluation. Mr. England stated that it did not appear that employee could go back to driving a truck or operation of heavy equipment, but that his knowledge of trucking could potentially be used in a dispatching job provided he had some basic keyboarding skills. Mr. England further opined that there is not anything in the medical records that would lead him to believe that employee was totally disabled from all types of work activity.

The administrative law judge indicated that he found the opinions of Dr. Hulsey, Mr. Zuccarello, and Mr. England more credible than the opinions of Dr. Levy, Ms. Shea, and Mr. Crites (a third party employer that testified for employee). However, in reviewing the evidence, it is obvious that all of the doctors and vocational experts agree that employee has numerous restrictions and is not able to return to work as an over the road truck driver.

The administrative law judge relied heavily on the testimony from Mr. England suggesting that employee was well-equipped to return to work in a dispatching job for a trucking company. This opinion relies on the assumption, for which no evidence was presented, that employee either had or could acquire keyboarding skills. In other words, Mr. England's opinion is based upon speculation, whereas Ms. Shea's opinion that employee was not employable in the national economy was based upon facts in the record.

The administrative law judge also relied heavily upon the opinions of Dr. Hulsey. However, Dr. Hulsey never even evaluated all of employee's impairments. Dr. Hulsey only provided a 25\% permanent partial disability rating of employee's left upper extremity at the level of the shoulder. Dr. Hulsey never measured the range of motion of the right shoulder, never mentioned the left hand, never rated the right shoulder, never even examined the right shoulder, and never offered any restrictions for the right shoulder. Employee is not claiming that he is permanently and totally disabled due to his injuries solely to his left shoulder. Employee is claiming that it is a combination of all of his injuries that has rendered him permanently and totally disabled. Dr. Hulsey's records do not even address employee's claim and it is therefore, illogical for the administrative law judge to rely upon Dr. Hulsey's opinion in denying employee permanent total disability benefits.

Dr. Levy, on the other hand, issued a report wherein he conducted a physical examination and arrived at the conclusion that employee was permanently and totally disabled based upon a combination of his injuries. Dr. Levy is the only physician to review the records of all of employee's treating physicians. For that reason, I find Dr. Levy's opinion much more persuasive on the issue of the nature and extent of employee's disability.

Furthermore, Dr. Hulsey never even addressed the issue of employability except to indicate that because of the left shoulder injury, employee could not return to his prior employment as a commercial truck driver. Therefore, it does not make any sense to suggest, as the administrative law judge did, that Dr. Hulsey's records are more credible than Dr. Levy's sworn testimony on an issue that Dr. Hulsey never even addressed.

For the foregoing reasons, I find Dr. Levy's records and testimony to be the most credible with regard to the issue of employee's nature and extent of disability. In addition, I further find that the administrative law judge's determination to deny employee permanent and total disability benefits is not supported by competent and substantial evidence.

Based on the above, I believe that employee has carried his burden of establishing that he is permanently and totally disabled as a result of a combination of his injuries. Dr. Levy and Ms. Shea provided expert medical and vocational evidence that employee does not have the functional capacity to perform any work on a regular and continuing basis and that employee is unemployable in the open labor market. Therefore, employee is permanently and totally disabled. As such, I would reverse the award of the administrative law judge merely awarding employee permanent partial disability benefits and award employee permanent total disability benefits.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

Employee: Jimmie Kinsey

Injury No. 04-054935

Dependents: N/A

Employer: Buchheit Enterprises, Inc.

Additional Party: Second Injury Fund

Insurer: Liberty Mutual Insurance Company

Appearances: Joe Rice for the employee

Frank Rodman for the Second Injury Fund

Hearing Date: August 6, 2008

Checked by: LCK/kh

- Are any benefits awarded herein? Yes.

- Was the injury or occupational disease compensable under Chapter 287? Yes.

- Was there an accident or incident of occupational disease under the Law? Yes.

- Date of accident or onset of occupational disease? May 26, 2004.

- State location where accident occurred or occupational disease contracted: Indiana.

- Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.

- Did employer receive proper notice? Yes.

- Did accident or occupational disease arise out of and in the course of the employment? Yes.

- Was claim for compensation file