Clyde Skidmore v. Coleman Trucking, Inc.

**Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529, 533 (Mo. App. 2008) (citations omitted).**

In order to comply with the requirements of § 287.460.1 RSMo, we write this supplemental opinion to enter the necessary findings and conclusions.

Employee was 63 years old at the time of hearing in this matter. Employee's preexisting injuries and conditions included arthritic changes in both knees, hip problems, right knee injuries sustained in a motorcycle crash, and lapses in memory and confusion related to a mini-stroke suffered in 2001.

Employee worked for employer as a warehouse worker and truck driver. On August 16, 2004, while driving for employer, employee lost control of his truck and trailer. The truck turned on its side and employee suffered a number of injuries in the crash, including lacerations of the left knee and elbow, a non-displaced fracture of the lateral tibial plateau, tear of the right hip labrum, and a comminuted fracture of the left clavicle. The crash also left employee with pain in his neck, left shoulder, mid back, and low back.

Following the accident of August 16, 2004, employee received extensive conservative care including physical therapy, epidural steroid injections, prescription pain medications and muscle relaxers, and multiple evaluations and diagnostic procedures. Employee did not experience significant improvement from this course of treatment and continued to complain of low back pain, discomfort, and spasms and intermittent pain from his right hip to his knee. At the time of hearing in this matter, employee spent about half of each day in a recumbent position in bed or in a recliner.

Employer retained Dr. David Lange to evaluate employee's spine. Dr. Lange opined employee suffered a 7.5% permanent partial disability of the body as a whole, with half attributable to the work injury and the rest attributable to preexisting degenerative changes, and released employee to return to work without restrictions as to the spine.

Employee's evaluating physician, Dr. David Volarich, diagnosed cervical strain syndrome, with neck pain and lost motion, and lumbar syndrome, secondary to an annular tear at L4-5 and an aggravation of degenerative joint disease with disc bulging from L-1 through S-1. Dr. Volarich opined that the accident of August 16, 2004, caused employee to sustain 35% permanent partial disability of the body as a whole referable to the lumbar spine and 7.5% referable to the cervical spine. In his restrictions referable to the spine, Dr. Volarich opined that employee should change positions frequently to maximize comfort and rest when needed, including resting in a recumbent fashion.

Given that employee spends half of each day in a recumbent position following the last injury, we find the ratings and opinions of Dr. Lange overly conservative and lacking in credibility with regard to the nature and extent of disability employee sustained to his spine in the 2004 motor vehicle accident. Rather, we find Dr. Volarich's diagnoses and restrictions to be more credible.

The vocational experts James England and Donna Abram were in substantial agreement that Dr. Volarich's restrictions render employee permanently and totally disabled. Although Ms. Abram initially offered somewhat equivocal testimony as to whether she believed employee to be permanently and totally disabled, she did agree on cross-examination that an employee's need to rest whenever the employee deems necessary is totally unacceptable to a potential employer in today's labor market. Mr. England specifically opined that Dr. Volarich's restrictions referable to employee's spine stemming from the 2004 injury render employee unemployable in the open labor market. We find this testimony credible. We find that employee's need to recline, considered in isolation, renders employee permanently and totally disabled.

Dr. Volarich opined that employee is permanently and totally disabled as a result of the combination of employee's preexisting disabling conditions and the primary injuries sustained on August 16, 2004; yet he attributed the "recline as needed" restriction to employee's spine injuries rather than any preexisting condition. When asked about his present inability to do a number of activities, employee testified that he could do these activities before the 2004 accident but now is unable to do them because of the strain on his back. Employee's wife agreed that employee spent about half of his daytime hours in a recliner or in bed because of his back.

While we are not persuaded by Dr. Volarich's opinion as to the cause of employee's permanent total disability, we do find Dr. Volarich persuasive as to the cause of employee's need to lie down during the day. We find that employee's need to recline is the result of the spine injuries he sustained on August 16, 2004, rather than any preexisting condition.

Section 287.220 RSMo, creates the Second Injury Fund and sets forth when and how compensation shall be paid in cases where an employee alleges permanent and total disability due to a combination of a compensable work injury with preexisting disabling conditions. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000) (citations omitted). The initial inquiry in any case against the Second Injury Fund is the extent of employer's liability for the primary injury. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003). "[P]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined. ... If the last injury in and of itself rendered [employee] permanently and totally disabled, then the fund has no liability ..." Id. (citations omitted).

We have found employee to be permanently and totally disabled due to his need to spend about half of each day in a recumbent position. We have further found employee's need to recline during the day to be the result of the spine injuries he sustained in the accident on August 16, 2004, rather than any preexisting condition. These facts are supported by the testimony of Mr. England, Ms. Abram, Dr. Volarich, employee, and employee's wife. Given these facts, we must conclude that employee is permanently and totally disabled as a result of the last injury considered in isolation.

**Injury No.:** 04-082035

Accordingly, we conclude that employee has failed to establish that he is entitled to permanent total disability benefits from the Second Injury Fund. We affirm the decision of the administrative law judge denying employee's claim.

We conclude that employee is permanently and totally disabled due to the effects of the last injury considered in isolation. Accordingly, employee's claim against the Second Injury Fund is denied.

The award and decision of Administrative Law Judge Carl Strange, issued August 10, 2010, is affirmed, and is incorporated by this reference.

Given at Jefferson City, State of Missouri, this 24th day of February 2011.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

William F. Ringer, Chairman

Alice A. Bartlett, Member

**DISSENTING OPINION FILED**

John J. Hickey, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that employee met his burden of establishing his entitlement to permanent total disability benefits from the Second Injury Fund.

I agree with the majority that the vocational expert opinions in this matter, examined as a whole, indicate employee is permanently and totally disabled due to his need to recline as needed during the day. I disagree, however, that employee's need to recline is caused solely by the injuries employee sustained in the work accident on August 16, 2004. The evidence on the question is not nearly as clear as the majority characterizes it. When asked about the "recline as needed" restriction, Dr. Volarich testified that employee's need to recline is "more" due to the work injury than employee's preexisting knee conditions. I do not read Dr. Volarich's testimony as supportive of a finding that employee's need to lie down is solely due to the work injury. Dr. Volarich did not opine one way or the other-he simply identified which factor he deemed "more" important in causing employee's need to lie down. In fact, Dr. Volarich's opinion necessarily implies that there are other reasons, apart from the work injury considered alone, that cause employee's need to spend about half of each day in a prone position.

I am convinced that Dr. Volarich's opinion means that employee's need to recline is related to both his back condition stemming from the work injury and his preexisting knee conditions. This is consistent with employee's own testimony which is actually the only direct evidence we have on the question why he needs to recline during the day. Employee testified that his knees and back, in combination, caused him to stop working. Employee indicated that the knees are actually the more painful condition, and testified that, when he has trouble with his knees, he tries "to get them in a comfortable position," and that he reclines because "it relieves the pressure on my legs, on the knees."

Here we are presented with an employee who was only 63 years old at the time of hearing and who has had no surgery as a result of the primary in