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 injuries. We are presented with evidence that employee's preexisting bilateral knee condition was a hindrance and obstacle to his employment to the extent that he took a pay cut when he had to stop driving flat-bed trailers because his knee condition would not allow him to perform the climbing, crawling, and pulling required to tarp and tie down loads. We have the testimony of Dr. Volarich, Ms. Abram, and Mr. England that employee is permanently and totally disabled due to his need to recline. Finally, we have employee's testimony that he has to recline due to a combination of his back and his preexisting knee condition.

Given the foregoing, I am convinced that the only reasonable conclusion is that employee is permanently and totally disabled due to a combination of his preexisting disabling conditions and his injuries sustained in the motor vehicle accident on August 16, 2004. I conclude that employee met his burden under § 287.220 RSMo. I

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would reverse the award of the administrative law judge and order the Second Injury Fund to pay permanent total disability benefits to employee.

Because the majority has determined otherwise, I respectfully dissent.

John J. Hickey, Member

Employee: Clyde Skidmore

Injury No. 04-082035

Dependents: N/A

Employer: Coleman Trucking, Inc.

Additional Party: Second Injury Fund

Insurer: American Home Assurance Company

(TPA: AIG Domestic Claims, Inc.)

Hearing Date: May 17, 2010

Checked by: CS/rf

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? August 16, 2004
5. State location where accident occurred or occupational disease contracted: Iron 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 happened or occupational disease contracted: The employee was driving the tractor trailer when he lost control of it and

turned it over injuring his head, left shoulder and arm, left elbow, bilateral knees, right hip, and low back.

1. Did accident or occupational disease cause death? No
2. Parts of body injured by accident or occupational disease: head, left shoulder and arm, left elbow, bilateral knees, right hip, and low back.
3. Nature and extent of any permanent disability: See Findings.
4. Compensation paid to date for temporary total disability: $\ 11,300.00
5. Value necessary medical aid paid to date by employer-insurer: $\ 20,690.04
6. Value necessary medical aid not furnished by employer-insurer: N/A
7. Employee's average weekly wage: not calculated.
8. Weekly compensation rate:

$\ 391.80 for temporary total disability

$\ 354.05 for permanent partial disability

1. Method wages computation: By Agreement
2. Amount of compensation payable: None (See Findings).
3. Second Injury Fund liability: None (See Findings).
4. Future requirements awarded: None.

On May 17, 2010, the employee, Clyde Skidmore, appeared in person and by his attorney, Kenneth A. Seufert, for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Gregg Johnson. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about August 16, 2004, Coleman Trucking, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by American Home Assurance Company with a third party administrator of AIG Domestic Claims, Inc.
2. On or about August 16, 2004, the employee was an employee of Coleman Trucking, Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about August 16, 2004, the employee sustained an accident or occupational disease during the course of his employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's rate for temporary total disability is $\ 391.80, and his rate for permanent partial disability is $\ 354.05.
7. The employee's injury is medically causally related to the work injury on or about August 16, 2004.
8. The employer has furnished $\ 20,690.04 in medical aid to employee.
9. The employer has paid temporary total disability benefits for $285 / 7 weeks at a rate of \ 391.80 per week for a total of $\ 11,300.00.

1. Nature and Extent of Disability
2. Liability of the Fund

The following Employee's Exhibits were offered and admitted into evidence:

A. Report of Dr. David Volarich;

B. Curriculum Vitae of Dr. David Volarich;

C. Correspondence from Employee's Attorney to Dr. David Volarich;

D. Missouri Uniform Accident Report;

E. Report of Injury;

F. Claim for Compensation;

G. Medical Records related to the Primary Injury dated August 16, 2004 of:

1. Iron County E.M.S.;
2. Mineral Area Regional Medical Center;
3. Dr. Dennis E. Sumski;
4. Dr. Christopher Dougherty;
5. Farmington Sports and Rehabilitation Center;
6. Dr. Kevin D. Rutz;
7. Dr. David R. Lange;
8. Dr. George Luther;
9. Dr. Daniel Kitchens;
10. Dr. Glenn Sherrod; and
11. Dr. Faisal Albanna.

H. Medical Records related to Pre-existing Injuries prior to August 16, 2004;

I. Report of James England;

J. Curriculum Vitae of James England;

K. Correspondence from Employee's Attorney to James England;

L. Correspondence from Dr. Dennis Sumski;

M. Report of Dr. David Volarich;

N. Records of Mineral Area Pharmacy;

O. Deposition of James England;

P. Deposition of Dr. David Volarich;

Q. Medical Records of Dr. Dennis Sumski;

R. Deposition of Dr. David Lange;

S. Independent Medical Examination of Dr. Keith Odegard;

T. Deposition of Donna Abram;

U. Wage Statement; and

V. 8 Photographs.

- The test for finding the Second Injury Fund liable for permanent total disability is set forth in Section 287.220.1 RSMo., as follows:

If the previous disability or disabilities, whether from compensable injuries or otherwise, and the last injury together result in permanent total disability, the minimum standards under this subsection for a body as a whole injury or a major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employee at the time of the last injury is liable is less than 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" hereby created exclusively for the

purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in Section 287.414.

- The phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v M-G Metals and Sales, Inc., 631 S.W.2d 919, 922(Mo.App.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Reiner v Treasurer of the State of Missouri, 837 S.W.2d 363, 367(Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". Brown v Treasurer of the State of Missouri, 795 S.W.2d 479, 483(Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner at 365. See also Thornton v Haas Bakery, 858 S.W.2d 831,834(Mo.App.1993).

The employee in this case has alleged that he is entitled to an award for permanent total disability from the Second Injury Fund. On the issue of permanent total disability, the Second Injury Fund's defense against the employee's claim for permanent total disability is that the employee's condition was a result of the last injury alone. In support of this defense, the Second Injury Fund pointed to the testimony of the employee's rating doctor, David Volarich, the employee's vocational expert, James England, and the employer-insurer's vocational expert, Donna Abram.

Although each report noted that the employee is permanently and totally disabled as a result of the combination of the primary injury and his pre-existing injuries, the pivotal question is whether the employee is also permanently and totally disabled as a result of primary injury alone. On November 30, 2007, Dr. Volarich testified that the employee's need to lie down frequently during the day was a result coming "more from the 2004 accident, because he related that more to his back problem than to his lower extremity problem" (Employee Exhibit P, Deposition Page 44). At his deposition on January 23, 2008, Mr. England testified that the employee would not be employable in the open labor market when "taking into account Mr. Skidmore's age, education, transferable skills, past work experience and these restrictions from Dr. Volarich listed on page 13 of his report in regard to the spine alone" (Employee Exhibit 0, Deposition Page 41). Mr. England further clarified his opinion that the employee would still not be employable in the open labor market "if Mr. Skidmore had been in perfect physical and mental health immediately prior to the primary injury in August of '04 and only had the injury of August of '04 including the restrictions from Dr. Volarich ..." (Employee Exhibit 0, Deposition Pages 44-45). At her deposition, Ms. Abram testified that although she did not do that analysis

that the employee would certainly have difficulty getting a full-time job if he would have to spend half of his waking hours lying down or reclining in a recliner (Employee Exhibit T, Deposition Pages 59-60). When further questioned, Ms. Abram noted that it is possible that the employee could be employed, if not on a full time basis, on a part-time basis, but acknowledged that it would be impossible for her to know when the employee would be required to lie down in accordance with Dr. Volarich's restrictions (Employee Exhibit T, Deposition Pages 61-64).

As vocational experts, Mr. England and Ms. Abram should be the most qualified people in this matter to evaluate and provide opinions regarding the employee's ability to maintain and compete in the open labor market. Based on Dr. Volarich's restrictions to the employee's low back from his primary injury, Mr. England clearly testified that the last injury alone was sufficient to make the employee unemployable in the open labor market. When questioned about the same restrictions, Ms. Abram noted that she did not do that analysis, but simply stated that the employee may be able to work part time. Based on the evidence, I specifically find that the employee's permanent and total disability condition was a result of the August 16, 2004 incident alone. Consequently, I find that the employee has failed to satisfy his burden of proof on the issue of the Second Injury Fund's liability for his permanent total disability.

Made by:

Date: $\qquad$

A true copy: Attest:

Ms. Naomi Pearson