| FINAL AWARD ALLOWING COMPENSATION (Reversing Award and Decision of Administrative Law Judge) |
| Injury No.: 98-179096 |
| Employee: | Suzanne Stecher |
| Employer: | Dr. Donald Oliver (Settled) |
| Insurer: | N/A |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This cause has been submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence and briefs, and we have considered the whole record. Pursuant to section 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge dated October 22, 2008. |
| Preliminaries |
| Employee settled her claim against employer for 37.5% permanent partial disability of the body as a whole with regard to her cervical spine. The Commission finds that this agreed upon rating of 37.5% permanent partial disability of the body as a whole rated at the cervical spine is supported by substantial and competent evidence and, therefore, adopts and incorporates said rating as part of this Award. |
| Although employee settled her claim against employer, she proceeded to final hearing against the Second Injury Fund. The administrative law judge heard this matter to consider what, if any, is the nature of Second Injury Fund liability. |
| The administrative law judge “felt” that Dr. Volarich’s rating of 20% permanent partial disability of the body as a whole rated at the neck was too high. He further stated that employee’s preexisting injuries, amount to less than the required 12.5% permanent partial disability of the body as a whole, or 15% permanent partial disability of an extremity, which is required to trigger Second Injury Fund liability. Therefore, the administrative law judge found that there was no Second Injury Fund liability. |
| On November 12, 2008, employee appealed to the Commission alleging that the administrative law judge erred in finding that employee’s preexisting injuries did not meet the Second Injury Fund threshold. Specifically, employee argued that the administrative law judge’s opinion rested upon his personal opinion unsupported by sufficient or competent evidence. |
| On April 7, 2009, we remanded the matter to the administrative law judge with directions to make more specific findings of fact regarding why he did not accept the expert opinion of Dr. Volarich regarding the nature and extent of employee’s preexisting permanent disabilities. |
| On remand, the administrative law judge made additional findings of fact. Specifically, the administrative law judge found that “Dr. Volarich’s and [Mr.] England’s credibility is |
Important
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uncertain due to the fact that subsequent to the primary injury and prior disabilities that [employee] had at the time of the hearing were in the experts['] viewpoint reason for [employee] being permanent[ly] and totally disabled." He was referring to employee's right carpal tunnel surgery and employee having had both knees operated on. The administrative law judge stated that he "think[s] those injuries and surgeries and the problems subsequent to those surgeries certainly would have a great deal to do with the unemployability of the employee." For the foregoing reasons, he reiterated his finding that employee is only permanently partially disabled and that there is no Second Injury Fund liability referable to this claim.
Therefore, the primary issue currently before the Commission is the nature and extent of any Second Injury Fund liability.
**Findings of Fact**
Employee was working as an orthodontic assistant for Dr. Oliver on November 2, 1998, when her feet became entangled in some wires and she tripped and fell, causing injuries to her neck.
Employee testified that before this injury occurred she was having problems with her cervical arthritis for which she had physical therapy and anti-inflammatory drugs. In a medical report dated March 16, 1998, (before the primary injury) and prepared by Drs. Patricia Naslund and Richard Sohn, they provide a history of employee's preexisting problems which included severe headaches, frequent numbness in her hand, and low back pain. Dr. Naslund found a decreased range of motion in her neck, as well as spasms in both her trapezius muscles and neck muscles. Dr. Sohn, in reviewing cervical spine films and MRI/CT scans, noted severe degenerative disc disease and a cervical bulging disc, but no definite compression of her root or spinal cord.
Employee testified that after her accident on November 2, 1998, her neck problems continued with severe soreness and terrible headaches and muscle spasms in her upper shoulders. She stated that she wore a neck collar at work sometimes and had to leave work on occasion because the pain was too unbearable.
On October 29, 2002, Dr. Krettek operated on employee's neck, performing an anterior arthrodesis at C4 and C5; an extensive diskectomy/spondylectomy/decompression at C4-5; and a structural allograft at C4-5 and C5-6 with screws and plates. Then on February 16, 2005, Dr. Riew operated on employee's neck performing an anterior cervical discectomy at C2-3, C3-4; an anterior fusion at C2-2, C3-4 and removal of anterior cervical plate from C4-6; and anterior cervical plating at C3-4.
Employee returned to Dr. Riew with continuing neck complaints and Dr. Riew told her that she needed to have a fusion done from the base of her skull with rods all the way down to her thoracic level.
Dr. Volarich opined that as a direct result of employee's November 2, 1998, accident she is 50% permanently partially disabled of the body as a whole, rated at the cervical spine. Dr. Volarich further opined that, prior to the primary injury, employee was 20%
Improvee: Suzanne Stecher
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permanently partially disabled of the body as a whole rated at her cervical spine, 5% permanently partially disabled of the body as a whole rated at her lumbar spine, and 10% permanently partially disabled of the right upper extremity rated at her right wrist. Dr. Volarich stated that all of said preexisting disabilities posed a hindrance to her employment or reemployment.
There were no contradicting expert opinions, expert testimony, or medical records submitted concerning employee's disabilities.
**Conclusions of Law**
Under Missouri Workers' Compensation law, any preexisting injury, which could be considered "a hindrance or obstacle to employment or to obtaining reemployment..." should trigger Second Injury Fund liability. *Leutzinger v. Treasurer of Missouri Custodian of the Second Injury Fund*, 895 S.W.2d 591, 593 (Mo. App. 1995) (citations omitted).
In finding that there is no Second Injury Fund liability, the administrative law judge made a determination that is not supported by substantial and competent evidence. The testimony from employee and Dr. Volarich, in addition to the medical records, are all consistent in showing that employee had serious work affecting preexisting conditions of her cervical spine that served as hindrances and obstacles to employment. The Second Injury Fund did not offer any witnesses, expert evidence, or medical records to rebut employee's evidence.
The medical records submitted by employee include multiple complaints about her neck, back, and wrist. In addition, the medical records include multiple diagnostic procedures, physical therapy, traction, and prescriptions confirming employee's degenerative disk disease of her neck and back.
The administrative law judge's award seems to rest upon his personal opinion that Dr. Volarich's 20% rating is too high. However, he does not point to any evidence in support of said opinion. It is within the exclusive province of the Commission to evaluate the evidence and make the findings of fact in accordance therewith. However, when there is uncontradicted evidence in the record, the Commission must provide sufficient support for its determination when said determination is contrary to the uncontradicted evidence. In *Houston v. Roadway Express, Inc.*, 133 S.W.3d 173 (Mo. App. 2004) (citations omitted), the court stated:
The Commission may not arbitrarily disregard and ignore competent, substantial and undisputed evidence of witnesses who are not shown by the record to have been impeached, and the Commission may not base their findings upon conjecture or their own mere personal opinion unsupported by sufficient competent evidence.
The administrative law judge stated in his "Additional Findings of Fact" that he believed Dr. Volarich and Mr. England's opinions were not credible. However, the only basis he states for this contention is that he believes that employee's subsequent surgeries and carpal tunnel release affected their opinions. He does not provide any support for this
| Injury No.: 98-179096 |
| Employee: Suzanne Stecher |
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| presumption. More importantly, the administrative law judge did not make an affirmative finding regarding employee’s preexisting permanent partial disability. The administrative law judge could not know employee did not meet the required threshold without determining employee’s preexisting permanent partial disability.In sum, the administrative law judge’s award is not supported by the competent and substantial evidence. Dr. Volarich’s rating of 20% preexisting permanent partial disability of the body as a whole rated at the cervical spine was not contradicted. The administrative law judge merely “felt” that rating was too high, but did not cite to any of the voluminous medical records or provide any affirmative support whatsoever for this “feeling.”For the foregoing reasons, we reverse the administrative law judge’s award and find that employee was 20% permanently partially disabled of the body as a whole due to preexisting injuries to her cervical spine and said preexisting disability served as a hindrance and obstacle to her employment. The Commission further finds that this 20% preexisting permanent partial disability and employee’s primary injury, which resulted in a disability of 37.5% permanent partial disability, ^{1 } combined to result in an enhancement of 10% permanent partial disability of the body as a whole. The Second Injury Fund shall be liable for this 10% (or 23 weeks) enhancement, which amounts to a total of 6,778.79 (23 weeks x 294.73 PPD rate).The award and decision of Administrative Law Judge Cornelius T. Lane, issued October 22, 2008, and Additional Findings of Fact, are attached hereto for reference.James Kleinschmidt, Attorney at Law, is allowed a fee of 25% of the benefits awarded for necessary legal services rendered to employee which shall constitute a lien on said compensation.Any past due compensation shall bear interest as provided by law.Given at Jefferson City, State of Missouri, this 20th day of October 2009. |
| LABOR AND INDUSTRIAL RELATIONS COMMISSION |
| William F. Ringer |
| Alice A. Bartlett, Member |
| John J. Hickey, Member |
| Attest: |
| Secretary |
| ^{1 } The 37.5% permanent partial disability represents the permanent partial disability rating agreed to by employee and employer in their Stipulation for Compromise Settlement, and, as stated above, is adopted and incorporated in this Award by the Commission. |