Jerry Roberson v. Ben Hur Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-094655

Employee: Jerry Roberson

Employer: Ben Hur Construction (Settled)

Insurer: Virginia Surety Company, Inc. (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 November 19, 2009. The award and decision of Administrative Law Judge Margaret D. Landolt, issued November 19, 2009, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 15 1^{\text {th }}$ day of July 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE OPINION FILED

John J. Hickey, Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based upon 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 modified. I agree with the administrative law judge that the Second Injury Fund is liable to employee for permanent disability benefits but I believe employee is entitled to permanent total disability benefits, rather than permanent partial disability benefits.

Although none of the experts suggested that employee is magnifying his symptoms, the administrative law judge decided employee is exaggerating his back pain. The administrative law judge found not credible employee's testimony regarding the level of back pain he experiences because he received only conservative treatment for his back injury and because he settled his back and psychological claims for a combined 15\% of the body as a whole. The administrative law judge erroneously concluded that "any evidence of total disability is based on [employee's] account of back pain." Therefore, she reasoned, "I find no credible evidence of permanent total disability."

A close reading of the record reveals that all of the experts believe employee has significant problems with his back. But the experts rely upon much more than employee's back pain in reaching their conclusions that employee is unable to compete in the open labor market. The experts considered employee's physical conditions of ill relative to the primary injury (back, shoulder, right knee) and relative to his preexisting conditions of ill (left knee, wrist, hand). The experts considered employee's psychiatric conditions (preexisting and primary). Finally, the experts considered employee's age, training, and lack of transferable skills.

Dr. Volarich, Dr. Stillings, and Ms. Gonzalez all personally evaluated employee. Dr. Volarich, Dr. Stillings, and Ms. Gonzalez all believe employee is not employable in the open labor market. Dr. Volarich, Dr. Stillings, and Ms. Gonzalez all believe employee is not employable in the open labor market due to a combination of his preexisting disabilities and the disabilities from his primary injury.

Notwithstanding the testimony of these three well-qualified experts, the administrative law judge found the opinion of Mr. England - who never met employee - to be the most persuasive on the issue of permanent total disability. The administrative law judge's reliance upon the opinion of Mr. England is misplaced. Mr. England never said employee was employable in the open labor market. Mr. England said that based upon employee's description in a deposition of his activities around the house, "[employee] lifts into the light range and functions at a sedentary to light level with the exception of reclining for his low back pain as needed." Emphasis added. The administrative law judge ignored the emphasized language and concluded employee could work. The test for permanent total disability is whether an employer would reasonably be expected to hire employee in the open labor market. Even Mr. England agreed that if employee has to lie down for portions of each day, employee would be unable to compete in the open labor market.

- 2 -

Based upon the testimony of employee, Dr. Volarich, Dr. Stillings, Ms. Gonzalez and, in some respects, even Mr. England, I believe employee is permanently and totally disabled due to the combination of his preexisting disabilities and his disability from the primary injury.

I would modify the administrative law judge's award. I would award to employee permanent total disability from the Second Injury Fund. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

John J. Hickey, Member

1. Are any benefits awarded herein? Yes
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: August 31, 2006
5. State location where accident occurred or occupational disease contracted: St. Louis County
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 happened or occupational disease contracted: While carrying a welding cable lead, Claimant slipped and fell backwards.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: right knee, right shoulder, right hip, low back, body as a whole
14. Nature and extent of any permanent disability: 30 % of the right arm at the 222 week level; 10 % PPD of the right leg at knee and 15 % body as a whole lumbar sprain and psychiatric for primary injury previously paid by Employer; and 30\% PPD of the right wrist; 25\% PPD of the left knee; and 20\% PPD of the body as a whole - psychiatric - preexisting.
15. Compensation paid to-date for temporary disability: $\ 9,550.71
16. Value necessary medical aid paid to date by employer/insurer? $\ 23,553.76

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\$ N / A
3. Weekly compensation rate: \$ 718.87 / \ 376.55
4. Method wages computation: Stipulation

1. Amount of compensation payable: Employer previously settled
2. Second Injury Fund liability: Yes

44.865 weeks of permanent partial disability benefits

$\ 16,893.92

TOTAL:

$\ 16,893.92

1. Future requirements awarded: none

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

James J. Sievers

Employee: Jerry Roberson

Dependents: N/A

Employer: Ben Hur Construction (settled)

Additional Party: Second Injury Fund

Insurer: Virginia Surety Company, Inc.

Injury No.: 06-094655

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on September 2, 2009, at the Division of Worker's Compensation in the City of St. Louis, Missouri. Jerry Roberson ("Claimant") was represented by Mr. James Sievers. Ben Hur Construction ("Employer") previously settled its liability with Claimant, and this case proceeded to hearing against the Second Injury Fund, which was represented by Assistant Attorney General Carol Barnard. Mr. Sievers requested a fee of 25 % of Claimant's Award.

The parties stipulated that on or about August 31, 2006, Claimant sustained an accident arising out of and in the course of employment; and Claimant was earning an average weekly wage sufficient to yield compensation rates of $\ 718.87 for total disability benefits, and $\ 376.55 for Permanent Partial Disability benefits. The parties further stipulated Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; and the claim was timely filed. It was further stipulated if Claimant is found to be PTD, benefits shall begin on October 24, 2007.

The sole issue for resolution by hearing is the liability of the Second Injury Fund for permanent total or permanent partial disability benefits.

Claimant is a 56 year old man with approximately 35 years of experience as an ironworker. Claimant has a high school education and two quarters of college work. Claimant attended the apprentice program to become a journeyman iron worker. Claimant began working as an ironworker for Employer in May 2006, approximately three months before the primary injury. Over the years, Claimant has owned his own photography business and a barbeque and spice business. He testified his businesses failed because he was unable to get along with people. Claimant also taught welding at a Vo-Tech school, but was fired after an altercation.

Claimant suffered from preexisting injuries to his right hand, left knee, and body as a whole referable to his pulmonary system due to COPD, and psychiatric problems prior to the work injury of August 31, 2006. In 1978, Claimant was working with a piece of rebar when it fell on his hand fracturing his right $4^{\text {th }} metacarpal. X-rays demonstrated residual shortness of the 4^{\text {th }}$ metacarpal with disruption of normal function. Dr. James Leslie performed an osteotomy of the $4^{\text {th }}$ metacarpal to increase length and function. On October 4, 1988, a steel plate fell onto Claimant's right hand, and he sustained a fracture of the distal $5^{\text {th }}$ metacarpal. Claimant returned to full duty after his hand injuries, and had no additional medical treatment. Following these accidents, and leading up to the primary injury of August 31, 2006 Claimant testified he had very little gripping ability and bent fingers, which he had to unlock in order to attempt to grip something. He continues to suffer from these symptoms.

In 1981, Claimant bent down and his left knee gave out. He was diagnosed with chondromalacia patella. He was taken to surgery for an arthroscopic chondroplasty. Following the surgery and leading up to the primary injury, Claimant testified he experienced pain, could not stand or squat for long periods, had to use a knee pad or guard when kneeling, his knee would go out, and he couldn't get into positions at work like he used to. He continues to suffer from these problems.

Leading up to August 31, 2006, Claimant also suffered from asthma which was triggered by allergies, perfume, dust and smoke. It caused him s