| FINAL AWARD ALLOWING COMPENSATION (Modifying Award and Decision of Administrative Law Judge by Separate Opinion) |
| Injury No.: 06-100307 |
| Employee: | Wade Jenkins |
| Employer: | University of Missouri |
| Insurer: | Self-Insured |
| The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence and briefs, heard the parties’ oral arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the June 21, 2010, award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.The ALJ found that employee should be rated at 25% overall disability for the left shoulder and 18% of the left elbow. The ALJ stated that the ratings include “all the shoulder and elbow injuries to [employee].” The ALJ went on to conclude that he believes that the October 2006 work-related injury only contributed to 14% of the permanent partial disability to employee’s left shoulder and only 9% of the permanent partial disability to his left elbow. We disagree with the ALJ’s apportionment for preexisting disabilities.The ALJ indicated in the award that he was “disregarding the ratings from all the experts to some degree....” The ALJ disagreed with Dr. White’s and Dr. Concannon’s ratings of no or minimal damage to employee’s shoulder and elbow. The ALJ found that Dr. White’s and Dr. Concannon’s ratings did not accurately reflect the severity of the work-related injury suffered by employee and employee’s consistent complaints, which continued even after the treatment and release by Drs. White and Concannon.With regard to Dr. Volarich’s ratings, the ALJ agreed that employee suffered some permanent partial disability to his shoulder and elbow, but nevertheless stated that he did not accept Dr. Volarich’s ratings.After discrediting all of the experts’ opinions, the ALJ discussed previous injuries suffered by employee and came to the conclusion that these previous injuries contributed to employee’s overall permanent partial disability. We find that the ALJ erred in arriving at this conclusion.There is no evidence that employee’s preexisting conditions involving his shoulder and elbow constituted a hindrance or obstacle to his employment or in any way resulted in an impediment to the performance of his job duties. The only expert that even discussed preexisting disability was Dr. Volarich, who opined that employee did not have preexisting disability. Although employee acknowledged that he had treatment for his upper extremities in the 1990s, employee testified that he was asymptomatic on the |
left upper extremity at the time of the October 2006 accident. Lastly, no doctor ever placed restrictions on employee with regard to his shoulder or elbow prior to the October 2006 injury.
While we agree with the ALJ that under Elliott v. Kansas City Sch. Dist., 71 S.W.3d 652 (Mo. App. 2002), he was within his bounds as an administrative law judge in arriving at percentages of disability that were below those opined by Dr. Volarich, we find that his apportionment for preexisting disabilities was in error because it was based upon "conjecture or [his] own mere personal opinion unsupported by sufficient competent evidence." Houston v. Roadway Express, Inc., 133 S.W.3d 173, 179 (Mo. App. 2004) (citations omitted). There was simply no evidence to support his apportionment for preexisting disabilities.
We agree with the ALJ's conclusion that employee's left shoulder is 25 % permanently partially disabled and that his left elbow is 18 % permanently partially disabled; however, we find that all of said permanent partial disability is attributable to the October 31, 2006, accident. Therefore, employee is awarded $\ 21,500.02 permanent partial disability benefits for his left shoulder ( =25 % of 232 weeks $x \ 370.69 ) and $\ 14,012.08 permanent partial disability benefits for his left elbow ( =18 % of 210 weeks $x \ 370.69 ).
In addition, although the parties stipulated to 7 weeks of disfigurement, the ALJ neglected to include the same in his award. Therefore, in addition to the aforementioned benefits, we also award employee 7 weeks of disfigurement, which amounts to $\ 2,594.83 ( 7 weeks $x \ 370.69 ).
The award and decision of Administrative Law Judge Henry T. Herschel, issued June 21, 2010, as modified, is attached and incorporated by 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 $28^{\text {th }}$ day of January 2011.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
John J. Hickey, Member
Attest:
Secretary