Roy Gutting v. Campbell Trucking

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 07-115368

Employee: Roy W. Gutting

Employer: Campbell Trucking (Settled)

Insurer: Continental Western Insurance Company (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. We have reviewed the evidence, read the parties' briefs and supplemental briefs, and considered the whole record. Pursuant to section 286.090 RSMo, the Commission modifies the award and decision of the administrative law judge dated March 19, 2010. The Commission adopts the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the supplemental opinion set forth below.

On May 18, 2007, employee suffered an injury by accident arising out of and in the course of his employment. Employee settled his claim against employer/insurer. The administrative law judge heard this matter to consider the nature and extent of permanent disability and the liability (if any) of the Second Injury Fund.

The administrative law judge determined and concluded that employee is permanently and totally disabled due to a combination of the work injury and his preexisting disabilities and conditions of ill. The administrative law judge ordered the Second Injury Fund to pay permanent total disability benefits at the rate of $\ 338.22 until employee's death. The administrative law judge also ordered the Second Injury Fund to pay $\ 34,789.31, with interest, for back payment of permanent total disability benefits for the time period December 24, 2007, through December 7, 2009.

We agree with the administrative law judge that employee is permanently and totally disabled due to a combination of his primary and preexisting injuries. We disagree, however, with the administrative law judge's findings regarding the timing and commencement of payments of permanent total disability benefits from the Second Injury Fund.

Although the statutes involving temporary total disability and permanent disability do not set out a specific time line, there is an intended timing of benefits paid by employers. Temporary total disability benefits are due from the date of the injury through the date the condition has reached the point where further progress is not expected. Courts have used various terms to determine when an employee's condition has reached the point where further progress is not expected, including the term maximum medical improvement. Vinson v. Curators of the University of Missouri, 822 S.W.2d 504, 508 (Mo. App. E.D. 1991) (interpreting a doctor's testimony of employee's maximum treatment potential to mean maximum medical improvement); Cooper, 955 S.W.2d at 575 (using the term maximum medical progress to define the point where no further progress is expected for an employee's condition).

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment. Furthermore, an employers' liability for permanent partial or permanent total disability does not run concurrently with their liability for temporary total disability.

Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.

Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008).

The administrative law judge made no finding as to when employee reached maximum medical improvement. It appears that the administrative law judge started with the date of the work injury (May 18, 2007) and then added the number of weeks that employer paid temporary total disability benefits ( 32.29 weeks, according to the award), and concluded that December 24, 2007, was the appropriate date to commence payment of permanent total disability benefits from the Second Injury Fund. This result is clearly erroneous given that employee's treatment for the primary work injury involved a cervical fusion on December 13, 2007 - employee was obviously not at maximum medical improvement for the primary injury a mere eleven days after undergoing surgery.

The records of employee's treating physician, Dr. Curtis Burton, indicate that on April 30, 2008, Dr. Burton approved employee to make a tentative return to work. Dr. Burton noted that he would see employee back in about six weeks for follow-up. Dr. Burton's treatment note for May 28, 2008, indicates that employee's restrictions could not be accommodated by the employer. Dr. Burton indicated he did not believe there was any surgery that could improve employee's condition or add much capacity to his working ability. The note indicates that Dr. Burton found employee to be at maximum medical improvement on that date. Accordingly, we conclude that employee reached maximum medical improvement on May 28, 2008. We further find that employee suffered a 25\% permanent partial disability of the body as a whole due to the primary injury. Employee would thus be entitled to permanent partial disability benefits at the rate of $\ 338.22 for 100 weeks after May 28, 2008, from the employer/insurer. Of course, employee has already settled his claim against employer/insurer, but the employer's theoretical liability is relevant for purposes of determining Second Injury Fund liability under section 287.220.1 RSMo:

[I]f the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" ...

The parties stipulated that employee's rates for permanent partial and permanent total disability benefits are equal at $\ 338.22 per week. Because the rates for permanent partial and permanent total disability are equal, the differential rate for which the Second Injury Fund would otherwise be liable for 100 weeks under the foregoing section is $\ 0. After 100 weeks, the employer's theoretical payments of compensation for the primary injury are completed, and the Second Injury Fund is

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: May 18, 2007.
5. State location where accident occurred or occupational disease was contracted: Lewis 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: Doing farm work and driving a truck in 2007.
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: Neck, back, knee, and body as a whole (BAW).
14. Nature and extent of any permanent disability: Permanent Total Disability.
15. Compensation paid to-date for temporary disability: $\ 10,949.36.
16. Value necessary medical aid paid to date by employer/insurer? $\ 65,383.15.

Employee: Roy Gutting

1. Value necessary medical aid not furnished by employer/insurer? N/A.
2. Employee's average weekly wages: $\ 507.33.
3. Permanent Partial Disability rate/Temporary Total Disability rate: \$338.22/\$338.22.
4. Method wages computation: By agreement.

1. Amount of compensation payable: $\quad \ 338.22 per week for life

$\ 34,798.30 back payments

1. Future requirements awarded: No.

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: Steven Effertz.

Employee: Roy Gutting

Injury No. 07-115368

Dependents: N/A

Employer: Campbell Trucking

Additional Party: Missouri State Treasurer

as Custodian of the Second Injury Fund

Insurer: Previously Settled

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: $\mathrm{HTH} / \mathrm{sb}$

The parties appeared before the undersigned Administrative Law Judge on December 17, 2009. The Division has jurisdiction to hear this case pursuant to $\S 287.110$ RSMo 2000. The parties provided briefs on the relevant issues on approximately January 8, 2010.

1. The employee and the employer were operating under the provisions of the Workers' Compensation Law on or about May 18, 2007;
2. The employer's primary liability was insured by Continental Western Insurance;
3. The employer had notice of the alleged accident and a claim for compensation was timely filed;
4. The rate of compensation for temporary total disability was $\ 338.22 and $\ 338.22 for permanent partial disability; and
5. The employer has paid $\ 10,949.36 (38 5/7 weeks) ${ }^{1}$ in TTD.

[^0]

[^0]: ${ }^{1} When I calculate the figure, I only get 32.29 weeks ( 32.29 weeks \times \$ 338=\ 10,921.12 ).

1. Whether the claimant incurred injuries to his neck along with pre-existing injuries to other parts of his body?
2. Whether the claimant is eligible for permanent total disability benefits from the Second Injury Fund?

A Stipulation for Compromised Lump Sum Settlement, signed 11/17/09

B Medical Records and Reports

C Dr. Koprivica's deposition, dated 9/18/09

D Michael J. Dreiling deposition, dated 9/14/09

1 Gary Weimholt's deposition, dated 12/1/09

2 Roy Gutting's deposition, dated 8/17/09

Roy Gutting (Claimant) is a 58-year-old man who was working for Campbell Trucking (Employer/Insurer). The last date he worked for Employer/Insurer was December 9, 2007.

He finished the $11^{\text {th }}$ grade and then volunteered for the military. He eventually got a GED. In addition to his duties at the trucking company, he also farmed in Lewis County.

Claimant's duties at the trucking company consisted of driving various trucks from over-the-road trucks to dump trucks. On his 110-acre farm he raised 25 cattle and some crops. He built fences, planted and harvested grain, and took care of the cattle.

On May 18, 2007, he was driving the employer's truck. He was slowing down and he felt a violent blow delivered to the truck. A jeep had hit the back of his truck with violent force

traveling at close to 70 miles an hour. He was taken to the emergency room with herniated discs at the C4-5, C5-6 level. He had conservative treatment by manipulation and spinal injections. (Cl. Exh. B-3, p120; Cl. Exh. B, pp87-89.) Dr. C. Burton treated him in a conservative manner and his recuperation was uneven. (SIF Exh. 2, p20.) After a MRI, Dr. Burton felt that neck surgery was required. His neck surgery was performed in December 2007. (Cl. Exh. B-3, p94.) Dr. Burton rated Claimant as being 28 % permanently partially disabled of body as a whole (BAW) after surgery. (Id. at p92.)

Claimant's left knee began to bother him in 2003. He was treated by his family physician with an injection in the knee. Later it was determined that Claimant had a torn horn of the medial meniscus, a healed injury to crucible ligament, and degenerative joint disease. (Cl. Exh. B-C, pp152-153.)

Further, Claimant has a sleep apnea disorder diagnosed by a Dr. D. Onofrio in 2006. (Id. at p33.).

Dr. P. Koprivica filed an evaluation report of Claimant's working condition. He determined that due to the two-level surgery, that 35 % permanent partial disability to the primary injury in May 2007. (Id. at p43.) Dr. Koprivica also would provide a 35 % disability rating to Claimant's pre-existing left knee injury. (Id. at p44.) The sleep apnea was scored at 15\% PPD of BAW. Finally, Claimant's history of multi-level cervical spondylosis pre-dating May 2007 and back pain, the doctor declared a 5\% PPD BAW for each condition (Id. at pp44-45.)

Gary Weimholt testified via deposition. He is a vocational expert the SIF uses as support for their position that Claimant is not vocationally disabled. He believed, even with the 50 pound lifting restriction, that Claimant would be able to be employed as a truck driver, janitor, sales clerk, and security guard. (SIF Exh. 1, pp23-24.) He noted that the use of Hydrocodone, in moderation, would not affect his workplace performance. (Id. at pp30-31.)

Michael Dreiling also testified via deposition. He is a vocational expert for the Claimant. He found Claimant's educational skills to be limited and the ability to upgrade his skills to be non-existent. (Cl. Exh. D, pp20-22.) Mr. Dreiling makes the determination that in light of Claimant's physical limitations, Claimant would not be a good candidate to perform any gainful employment on the open market. (Id. at p21.) After reviewing Dr. Koprivica's medical report, Mr. Dreiling believed that the combination of the pre-existing injuries, Claimant's educational potential, and Claimant's most recent injury rendered Claimant unable to return to work. (Id. at p22.)

It is the claimant's burden of proof to prove all the issues that are alleged in the hearing under Chapter 287. As noted by the Court in Cook:

Claimant has the burden of proving all the essential elements of the claim and must establish a causal connection between the accident and injury. Cook v. Sunnen Products Corp., 937 S.W.2d 221, 223 (Mo.App.E.D. 1996) citing: Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo.App.E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. Banc 2003).

Claimant is alleging that he is eligible for permanent total disability from the Second Injury Fund (SIF). To make a determination for SIF liability, first a determination of the disability from the last injury or injuries needs to be made. The next step is the determination of whether the pre-existing injuries are a "hindrance or obstacle" to employment on the open labor market and if the accumulation of the disability from the injuries are greater than their sum. Finally, an assessment is made that if all the injuries are considered together, is the claimant permanently disabled and unable to work? Karoutzos v. Treasurer of State of Missouri, 55 S.W.3d 493, 498 (Mo.App.W.D. 2001). In Karoutzos, the Court opined:

In order to recover from the Fund, a claimant must first prove a preexisting permanent partial disability whether from compensable injury or otherwise, pursuant to $\S 287.220 .1$. The permanent disability pre-dating the injury in question must "exist at the time the work-related injury was sustained and be of such seriousness as to constitute a hindrance or obstacle to employment or re-employment should the employee become unemployed." Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214 (Mo.App. 1999).

Second, "a preexisting disability must combine with a disability from a subsequent injury in one of two ways: (1) the two disabilities combined result in a greater overall disability than that which would have resulted from the new injury alone and of itself; or (2) the preexisting disability combined with the disability from the subsequent injury to create permanent total disability." Reese v. Gary \& Roger Link, Inc., 5 S.W.3d 522, 526 (Mo.App. 1999) (citation omitted).

Id. at p 493 .

To be totally disabled, a claimant must not be able to return to any employment, not just his chosen field of employment. Muller v. Treasurer of State of Missouri, 875 S.W.3d 36, 40 (Mo.App.W.D. 2002).

In the 2007 truck accident, Claimant injured his neck at C4-5 and C6-7. The surgery for his injury has been partially successful but has left Claimant with substantial pain and an inability

to lift or turn his head much more than a couple of inches. (Cl. Exh. C, pp27-28.) Dr. Koprivica assessed the injury to the neck at a rating of 35\% PPD. (Cl. Exh. C, Depo Exh. 2, p16.) This injury to the neck was settled for 22.5 % PPD by stipulation approved by and Administrative Law Judge. (Cl. Exh. A, p2.)

After a review of Claimant's testimony and deposition and the deposition of Dr. Koprivica, I find that Claimant has suffered a 25 % PPD BAW in reference to the neck.

Claimant has a number of pre-existing injuries to his back, neck, and left knee. Claimant also has been diagnosed with sleep apnea. Before the accident in 2007, he saw the chiropractor "two or three" times a year for pain in his neck and lower back. (SIF Exh. 2, pp24-26.) He also experienced pain in his left knee and attributed it to arthritis. (Id. at p27.) This condition made using the clutch in the truck more difficult because it caused pain to his knee. (Id. at p27.) An MRI performed in December of 2004 diagnosed a bucket-handle tear of posterior horn of medial meniscus and an older partial tear of the anterior crucible ligament. (Cl. Exh. B-3C, p253.)

In February 2007, Claimant complained to his doctor that his greatest complaints were his sleep apnea and a left knee pain.

SUBJECTIVE: Mr. Gutting presents to the clinic today for annual exam. He complains a lot of his left knee. Otherwise, he states he has been getting along fairly well. He does have CPAP for night time. He states that as long as he takes his Hydrocodone in the early evening and then takes a Temazepam, a Tylenol PM and gets on his CPAP he usually gets a pretty good nights (sic) sleep. He has trouble navigating through the daytime though because of his left knee. He has had hyaluronate injections into the knee. They helped for a little while but he was told his knee was really bad and he would probably have to have knee replacement surgery at some time. He is agreeable to having that done anytime due to the way this knee hurts him so much.

Id. at pp182-183 - results of annual health exam for 2007.

Claimant has consistently complained about his knee since 2005 (when he had an injection in his knee). (Id. at pp195-197.) In 2005 he reports to his physician that he has pain in his "back, neck and knee." (Id. at p213.) There is a substantial and verifiable medical history of treatment for sleep apnea, neck, back, and knee pain. (Id. at pp109,113,134, and 174.) Claimant continued his work as a farmhand and later as a truck driver only at the cost of considerable pain. In every medical report summary over a number of years that I have reviewed, there seems to be some mention by Claimant of sleep, knee, or neck problems.

Dr. Koprivica rated Claimant's lower left knee as 35\% PPD. (Cl. Exh. C, p11.) Claimant's sleep apnea was for 15 % PPD, and the neck and back was 5 % and 5 % PPD representing for the period prior to 2007. (Id. at pp13-14.) With over the counter medicine Claimant had an active work life as a farmhand for 15 years. I believe the rating for his pre-

existing back and neck problems are high and I would discount them as a unit to 5 % for BAW. Due to my review of the medical records and reports and Claimant's testimony, I accept Dr. Koprivica's rating for the left knee and sleep apnea ( 35 % PPD and 15 % PPD). I find that Claimant's pre-existing conditions are a hindrance and obstacle to his future employment.

I further find that the pre-existing injuries and conditions combined with the neck injury of May 2007 make Claimant more disabled than he otherwise would have been.

Claimant's expert testified that Claimant would have a few major hurdles in securing a job in terms of education, location, and with his physical limitations.

I felt that the lack of any further formal academic or vocational training over the past 40 years was significant. It would limit this individual in terms of the type of work that he could pursue in the labor market, especially when I now took into account the significant medical disabilities and restrictions that have been advised for him.

Well, he's in more of a fairly rural labor market, and so his job availability in the labor market would be somewhat different than if he lived in a more metropolitan area, say, such as a Kansas City, Missouri, St. Louis, Missouri, even Columbia, Missouri for that matter.

(Cl. Exh. D, pp10-11)

Claimant also has severe physical limitations in that he has constant and substantial pain from his neck and left knee. His neck can only turn a few degrees limiting his driving abilities. Claimant has been prescribed and instructed to take relatively strong narcotic for his pain in his neck, back, and knee. Further, Claimant has had an ongoing and worsening battle with sleep apnea, which requires him to take 3 or 4 short naps during the day.

Mr. G. Weimholt, the expert for SIF, argued that Claimant is suitable for various short delivery driver and sales clerk type jobs. (SIF Exh. 1, pp23-24.) He notes that Claimant would require a "special exemption" from a physician for his daily narcotic use to maintain his commercial driver's license. (Id. at p30.) Mr. Weimholt does admit that having a daily dose of narcotic might have an impact on his suitability for some jobs. (Id. at pp33-37.)

I do not find myself sanguine about the Claimant's job prospects as Mr. Weimholt. Claimant is a 58-year-old former farmhand and truck driver with limited education who cannot turn his head, naps frequently, and takes a daily narcotic. I cannot force myself to find that any employer would ever hire Claimant for any employment.

I find that Claimant is permanently and totally disabled (PTD) due to a combination of his neck, knee, back, and sleep apnea.

I find that Claimant is permanently totally disabled and is entitled to a weekly payment of $\ 338.22 until his death. In addition, he is owed $\ 34,798.30 for back payment of PTD with interest (12/24/2007 to 12/7/2009 = 102.86 weeks x $\$ 338.22=\ 34,789.30 ). There seems to be a discrepancy in the calculation of TTD and the number of weeks it represents which was paid to Claimant. The parties may have to recalculate the TTD amounts to get a fair result.

Date: $\qquad$

A true copy: Attest:

Naomi Pearson

Division of Workers' Compensation

Made by: $\qquad$

Henry T. Herschel

Administrative Law Judge

Division of Workers' Compensation