James Kuhnlein v. City of Kansas City

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-029651

Employee: James Kuhnlein

Employer: City of Kansas City (Settled)

Insurer: Self-Insured (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 24, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge R. Carl Mueller, issued February 24, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $24^{\text {th }}$ day of June 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: James Kuhnlein

Injury No: 07-029651

Dependents: N/A

Employer: City of Kansas City (settled 03/05/2009)

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: Self-Insured

Hearing Date: January 21, 2010

Checked by: RCM/rm

1. Are any benefits awarded herein? No
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: On or about March 30, 2007
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri
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 occurred or occupational disease contracted: Employee slipped on a newly stripped floor resulting in a low back strain.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: alleged low back, body as a whole
14. Nature and extent of any permanent disability: See Award
15. Compensation paid to-date for temporary disability: $\ 7,324.44
16. Value necessary medical aid paid to date by employer/insurer? $\ 5,169.21

Issued by DIVISION OF WORKERS' COMPENSATION Employee: James Kuhnlein

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 600.91
3. Weekly compensation rate: $\ 400.61 for permanent total disability compensation and $\ 376.55 for permanent partial disability compensation.
4. Method wages computation: By stipulation.
5. Amount of compensation payable from Employer: N/A
6. Second Injury Fund liability: None.
7. Future requirements awarded: None

Employee: James Kuhnlein

Injury No: 07-029651

Dependents: N/A

Employer: City of Kansas City (settled 03/05/2009)

Additional Party: State Treasurer as Custodian of the Second Injury Fund

Insurer: City of Kansas City (settled 03/05/2009)

Hearing Date: January 21, 2010

Checked by: RCM/rm

On January 21, 2010, the employee and the State Treasurer as Custodian of the Second Injury Fund ("Second Injury Fund" and "Fund") appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, Mr. James Kuhnlein, appeared in person and with counsel, TK Thompson. The Fund appeared through Assistant Attorney General Benita Seliga. The issues presented were whether Mr. Kuhnlein is permanently and totally disabled and whether the Fund is liable for such disability. For the reasons noted below, I find Mr. Kuhnlein failed to prove either that he sustained any disability from his March 30, 2007 accident, or that it combined with his disabilities that pre-existed his accident to result in any additional disability.

The parties stipulated that:

1. On or about March 30, 2007 ("the injury date"), the City of Kansas City ("the City") was an employer operating subject to Missouri's Workers' Compensation law with its liability fully self insured;
2. Mr. Kuhnlein was the City's employee working subject to the law in Kansas City, Jackson County, Missouri;
3. Mr. Kuhnlein sustained an accident arising out of and in the course of employment with the City on March 30, 2007;
4. Mr. Kuhnlein notified the City of his injury and filed his claim within the time allowed by law;

1. The City provided Mr. Kuhnlein with medical care costing $\ 5,169.21;
2. Mr. Kuhnlein earned a $\ 600.91 average weekly wage resulting in a weekly compensation rate of $\ 400.61 for permanent total disability compensation and $\ 376.55 for permanent partial disability compensation; and,
3. The City paid Mr. Kuhnlein temporary total disability compensation totaling $\ 7,324.44 for the eighteen and oneseventh (18 1/7) week period from April 1, 2007 through August 5, 2007.

The parties requested the Division to determine:

1. Whether Mr. Kuhnlein suffered any disability and, if so, the nature and extent of his disability and whether he is permanently and totally disabled?
2. Whether the SIF is liable to Mr. Kuhnlein for any disability compensation?

Mr. Kuhnlein testified on his own behalf and presented three exhibits, all of which were admitted into evidence without objection:

A - Deposition, Mary Titterington, 8/25/2009

B - Deposition, Gregory Walker, MD, 5/28/2009

C - Stipulation for Compromise Settlement, 07-029651

Although the Fund did not call any witnesses, it presented Exhibit 1, an Olathe Medical Center Record dated August 5, 2006 that was admitted into evidence without objection; it also offered a letter dated May 11, 1999 from Douglas Bogart, MD to Everett Cohen, DO which was not admitted upon proper objection by the Claimant.

Based on the above exhibits and the testimony of Mr. Kuhnlein, I make the following findings:

1. James Kuhnlein is fifty nine years old and lives in Kansas City, Missouri. He completed high school at Bishop Fenwick High School in Middletown, Ohio in 1968 with above average grades. See, Claimant's Exhibit A at 21:14. He completed a yearlong Electronics Institute program in 1978. Id. He then worked for Union Pacific Railroad for ten years as

an Electronics Technician. Id. at 24:12. Mr. Kuhnlein then became the self-employed owner of thirteen rental units for eight years. Id. at 24:1. Claimant then worked for the City of Kansas City ("the City") from 1995 to 2007.

1. From 1994 to 1997 Mr. Kuhnlein's initial job with the City was as a florist at its Swope Park greenhouse. He built displays for officials' press conferences which required him to load and unload trucks. In 1997 the City transferred Claimant to the City Zoo; in 1999 he was hospitalized for something "close to a heart attack" (his words) and underwent a balloon angioplasty. He returned to the Zoo performing lighter work solely in security that afforded him the use of a golf cart. "Friends of the Zoo" assumed management of the Zoo sometime after that and, according to Kuhnlein, fired him in 2001for his efforts to organize a union. The City again hired Claimant in 2003 to work at the Downtown Airport in the security department. In this capacity Claimant's work involved driving around in a van responding to traffic accidents on the airport's property, clearing obstructions from the runways, and scaring deer off of the levies. Mr. Kuhnlein underwent a cervical fusion in 2006 and returned to his airport security job. At that time Claimant noted that he took several prescription medicines including Tramadol (for pain), either Methylcarbonyl or methocarbamol ${ }^{1}$ (muscle relaxer), Felodipine (cardiac medicine), Hydrochlorothiazide (cardiac), nitro (cardiac), and guaifenesin (respiratory). Claimant suffered from tinnitus, blurred vision, dizziness, low back pain and cervical pain. In addition, Claimant noted that he could not perform any overhead work, no lateral "bobbing or weaving" and could lift up to only twenty-five pounds.
2. In this condition, Claimant then suffered an injury at work on March 30, 2007 when he slipped on a newly stripped floor at the Airport. The City sent Claimant to Dr. Wright at Corporate Care. As Claimant did not present any medical records regarding any of his medical conditions prior to, for, or after his March 30, 2007 accident, it is difficult to verify what treatment he received. Claimant's counsel referred Mr. Kuhnlein to Gregory E. Walker, MD for a medical evaluation, and to Ms. Mary Titterington for a vocational evaluation. Any references to treatment or diagnoses come solely from Mr. Kuhnlein's descriptions and from the depositions of Dr. Walker and Ms. Titterington. The cost of Mr. Kuhnlein's treatment for the March 30, 2007 accident totaled only \$5,169.21, and was very minimal. Dr. Walker noted that the treatment did NOT include an MRI exam, no injections of any kind, no surgery, and not even a recommendation for surgery. See, Claimant's Exhibit B at 8:20, 32:14-21. Dr. Walker acknowledged that the treatment basically consisted of "ice packs, physical therapy, medications, and the prescription of a shoe lift". Id. at 32:11. Mr. Kuhnlein reached maximum medical improvement and his temporary disability ended on August 5, 2007. After examining Mr. Kuhnlein on September 19, 2007 Dr. Walker diagnosed his injury as a "strain to the spine". Id. at 18:21 and 20:15. Dr. Walker authored a report dated September 22, 2007 and recommended Claimant undergo MRI examination. Id. at 62. Claimant had an MRI exam of his left hip, left knee, and low back on January 21, May 21, and August 12, 2008, respectively. Id. at 21:16-18. After reviewing the MRIs, Dr. Walker opined that they showed lumbar changes that had occurred prior to Claimant's March 30, 2007

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[^0]: ${ }^{1}$ It is unclear whether these are references to the same or different medications. See, Claimant's Exhibit B at 9:6 and 17:20.

accident that were due to the "normal aging process" and which caused his "chronic sacroiliac pain". Id. at 22:2-10. Nonetheless, Dr. Walker concluded that the March 30, 2007 accident resulted in five percent ( 5 % ) body as a whole disability for Claimant's "chronic lumbar strain" and three percent (3\%) body as a whole disability for his left hip bursitis. Id. at 22:19-24. Dr. Walker did not believe the Claimant's left knee problems resulted from his accident. Id. at 23:14. Mr. Kuhnlein settled his Claim against the City for seven and one-half percent ( 71 / 2 % ) body as a whole disability. See, Claimant's Exhibit C.

1. The depositions of Dr. Walker and Ms. Titterington provided additional detail on Mr. Kuhnlein's physical condition that existed before his March 30, 2007 accident. As noted in finding 2, Mr. Kuhnlein underwent an angioplasty in 1999. Id. at 9:2. Ms. Titterington noted that Claimant underwent a two-level anterior cervical discectomy and fusion on August 15, 2006 by Dr. Robert Tenny. See, Claimant's Exhibit A at 10:19. Interestingly, Ms. Titterington - the vocational specialist - was aware of this detail, while Dr. Walker knew only that Claimant had a fusion, but not either when he had the procedure or who performed the surgery. Ex. B 36:23². Dr. Walker did believe, though, that Claimant's fusion resulted from spondylitic disease that developed "long term". Id. at 37:24-25. Dr. Walker also did NOT know whether Claimant's 2006 cervical fusion, 1999 heart catheterization, or left knee problems resulted in any work restrictions, but admitted "It would not be unusual." Id. at 38:19-40:11. Claimant also suffered from long term low back problems. In fact, Ms. Titterington noted that Mr. Kuhnlein was denied admission to the military "due to low back problems which he developed in high school." Ex. A 22:4-6. In addition, Mr. Kuhnlein suffered from severe double vision that began in the summer of two thousand six (2006) and required the use of prisms to correct. Ex. A at 13:3-17. It is clear that these conditions that pre-existed Mr. Kuhnlein's March 30, 2007 accident were of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment.
2. Dr. Walker opined that Mr. Kuhnlein's physical problems that pre-existed his accident combined with his lower back pain and lateral thigh pain that resulted from his March 30, 2007 accident to "make it very difficult for [him] to be gainfully employed." Ex. B at 23:16-19. Dr. Walker testified that Mr. Kuhnlein "was totally and permanently disabled, particularly for his profession . . ." Id. at 25:21-25.
3. Under cross examination, Dr. Walker's opinion of total disability was explained more fully. He admitted that BEFORE the March 30, 2007 accident, Mr. Kuhnlein's left knee problems prevented him from using ladders or steps (Id. at 50:1); his neck problems prevented overhead work (Id. at 50:5); and, his heart problems prevented strenuous activity (Id. at 50:9) Dr. Walker also opined that the use of ANY AMOUNT of prescription pain medication such as Tramadol - which he had taken for years prior to his accident - would restrict him "from running any kind of machinery". Dr. Walker concluded that given all of the restrictions that Mr. Kuhnlein had prior to his March 30,

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[^0]: ${ }^{2}$ For brevity and readability, non-consecutive citations to these exhibits will be in shortform. Thus, reference to Exhibit B at page 36 line 23 is cited as "Ex. B 36:23".

2007 accident that, in fact, he was not able even to qualify for working at his security job with the City. Id. at 52:10-23.

1. Mr. Titterington performed a vocational evaluation of Mr. Kuhnlein on April 18, 2009 at his attorney's request. Ex A at 6:5. Her evaluation included testing his intelligence and capacity for vocational rehabilitation utilizing the Wide Range Achievement Test. Mr. Kuhnlein scored in the ninety-fifth percentile ( 95 % ile) for verbal intelligence, eightyseventh percentile ( 87 % ile) for visual intelligence, and in the ninety-fifth percentile ( 95 % ile) for overall intelligence. Ms. Titterington also utilized the Wide Range Achievement Test Rev IV; Mr. Kuhnlein's test results placed him in the "substantially above average" category. Id. at 25:23-26:5. Ms. Titterington concluded that "Mr. Kuhnlein's test results suggest he would be a good candidate for vocational retraining if his medical condition would allow it." Id. at 27:3-5. However, Ms. Titterington concluded that because of all his impairments - and his use of narcotic pain medication no employer would hire him. Id. at 30:10-24. Ms. Titterington particularly noted that "taking narcotic pain medication . . . is a major deterrent to employment." Id. at 42:6.
2. I find that Dr. Walker was not credible and that his opinions were unpersuasive. He did not demonstrate an understanding or familiarity of Mr. Kuhnlein's past medical conditions and treatment with enough command for me to defer to his opinions. As noted in finding 4, Ms. Titterington knew the details of Mr. Kuhnlein's cervical fusion and Dr. Walker did not. In addition, he seemed to rely on subjective complaints ("he was telling me that he had a scoliosis", Ex B 50:17-18) instead of the medical records he testified that he had reviewed. Again, no medical records were provided to the Court.
3. I find that Ms. Titterington's opinion that Mr. Kuhnlein is not a candidate for vocational rehabilitation is not credible. Mr. Kuhnlein today essentially has the same restrictions that he had prior to his March 30, 2007 accident. And, Ms. Titterington's testing objectively demonstrated his superior intelligence. Her reliance on his use of pain medication as the basis for not being able to undergo vocational training is not persuasive as he has been using such medication for years.

Mr. Kuhnlein argued that he was rendered permanently and totally disabled due to the combined effect of the disability he sustained in the March 30, 2007 accident and his pre-existing disabilities. The applicable statute at $\S 287.020(7)$ R.S.Mo. defines "total disability" as an inability to return to any employment and not merely...inability to return to the employment in which the employee was engaged at that time of the accident. The term "any employment" means "any reasonable or normal employment or occupation." Fletcher v. Second Injury Fund, 922 S.W.2d 402 (Mo.App. 1996); Crum v. Sachs Electric, 768 S.W.2d 131 (Mo.App. 1989); Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919 (Mo.App. 1982); Groce v. Pyle, 315 S.W.2d (Mo.App. 1958).

It is not necessary that an individual be completely inactive or inert in order to meet the statutory definition of permanent total disability. It is necessary, however, that the employee be

unable to compete in the open labor market. See Fletcher; Cearcy v. McDonald Douglas Aircraft, 894 S.W.2d 173 (Mo.App. 1995); Reiner v. Treasurer, 837 S.W.2d 363 (Mo.App. 1992); Brown v. Treasurer, 795 S.W.2d 478 (Mo.App. 1990).

Moreover, Missouri courts have also repeatedly held that the test for determining permanent total disability is whether the individual is able to complete in the open labor market and whether an employer in the usual course of business would reasonably be expected to employ the employee in his physical condition. See Garcia v. St. Louis County, 916 S.W.2d 263 (Mo.App. 1995); Lawrence v. R-II School District, 834 S.W.2d 789 (Mo.App. 1992); Carron v. St. Genevieve School District, 800 S.W.2d 6 (Mo.App. 1991); Fischer v. Arch Diocese of St. Louis, 793 S.W.2d 195 (Mo.App. 1999).

A determination of permanent total disability should focus on the ability or inability of the employee to perform the usual duties of various employments in the manner as such duties are customarily performed by the average person engaged in such employment. Gordon v. Tri State Motor Transit, 908 S.W.2d 849 (Mo.App. 1995). Courts have held that various factors may be considered, including an employee's physical and mental condition, age, education, job experience, and skills in determining whether the employee is permanently and totally disabled. See e.g., Tiller v. 166 Auto Auction, 941 S.W.2d 863 (Mo.App. 1997); Olds v. Treasurer, 964 S.W.2d 406 (Mo.App. 1993); Brown v. Treasurer, 795 S.W.2d 439 (Mo.App. 1990); Patchin v. National Supermarket, Inc., 738 S.W.2d 166 (Mo.App. 1997); Laturno v. Carnahan, 640 S.W.2d 470 (Mo.App. 1982).

But, in order to establish Second Injury Fund liability for permanent total disability benefits, the employee must prove the following:

(1) That he or she has permanent disability resulting from a compensable work-related injury. See, Mo.Rev.Stat. §287.220.1 (2000);

(2) That he or she has permanent disability predating the work-related injury which is of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment: See, Mo.Rev.Stat. §287.220.1 (2000); Garibay v. Treasurer, 930 S.W.2d 57 (Mo.App. 1996); Rolls v. Treasurer, 895 S.W.2d 591 (Mo.App. 1995); Wuebbeling v. West County Drywall, 898 S.W.2d 615 (Mo.App. 1995); and

(3) That the combined effect of the disability resulting from the work-related injury and the disability that is attributable to all conditions existing at the time the last injury was sustained resulted in permanent total disability. Boring v. Treasurer, 947 S.W.2d 483 (Mo.App. 1997); Reiner v. Treasurer, 837 S.W.2d 152 (Mo.App. 1994).

After considering the testimony at the hearing by Mr. Kuhnlein and the depositions of Dr. Walker and Ms. Titterington, I find that Mr. Kuhnlein failed to prove either elements one (1) or three (3), above. Dr. Walker's opinion that Mr. Kuhnlein sustained any disability from his March 30, 2007 accident was unpersuasive given that Dr. Walker admitted that Mr. Kuhnlein suffered only a "lumbar strain" and that his numerous physical restrictions existed prior to the accident. Moreover, Dr. Walker admitted that the MRI - taken after Mr. Kuhnlein reached

maximum medical improvement - showed changes due to the normal aging process. In addition, the most reasonable conclusion from Dr. Walker's testimony is that Mr. Kuhnlein was unemployable before his March 30, 2007 accident - especially taking into consideration Dr. Walker's opinions on his use of prescription pain medication. Both Dr. Walker and Ms. Titterington placed great importance on the effect such medication had on limiting Mr. Kuhnlein's employability. However, again, Mr. Kuhnlein had been taking this medication for years before and during his employment with the City.

Finally, while an employee's settlement with an employer may aid the fact finder in determining an employee's disability in a separate claim against the Fund, it is not dispositive on that issue. The Fund was not a party to Mr. Kuhnlein's settlement with the Employer and I find that simply because the City was willing to pay Mr. Kuhnlein compensation for seven and onehalf percent $(71 / 2 \%)$ body as a whole disability to settle his Claim, that does not require a finding that he in fact suffered any disability. But, even if I had determined that Mr. Kuhnlein suffered the disability represented by the Settlement, I nonetheless still would have found that such disability did not combine with the disability he suffered before the March 30, 2007 accident to result in permanent and total disability. Simply put, neither Dr. Walker's nor Ms. Titterington's opinions regarding Mr. Kuhnlein's unemployability were persuasive. Case law provides that the employee has the burden of proving all material elements of his claim. Fischer v. Arch Diocese of St. Louis-Cardinal Richter Inst., 793 S.W.2d 195 (Mo.App. 1990); Griggs v. A.B. Chance Co., 503 S.W.2d 697 (Mo.App. 1973); Hall v. Country Kitchen Restaurant, 936 S.W.2d 917 (Mo.App. 1997). Claimant did not meet his burden.

Date: $\qquad

Made by: \qquad$

Carl Mueller

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Naomi Pearson

Division of Workers' Compensation