David First v. Grey Eagle d/b/a D & D Distributors, LLP

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2006 unless otherwise indicated.

Employee testified he has numerous ongoing symptoms as a result of all of his injuries. Employee sleeps no more than four hours a night. He can stand no more than 10 minutes at a time. His legs often buckle. Climbing stairs causes pressure to both knees. Lifting causes low back pain and overhead activities cause pain in both shoulders. He has decreased strength in both hands.

Employee testified that he can no longer work due to a combination of all of his injuries.

The only expert medical opinion given in this case was that of Dr. Volarich. Dr. Volarich evaluated employee on August 26, 2008. As part of Dr. Volarich's evaluation, he took a history of the primary injury as well as the history of employee's preexisting conditions involving his neck, low back, left knee, face, left hand, right hand, left shoulder, and right shoulder. Dr. Volarich reviewed all medical records pertaining to employee's past and primary injuries. After personally evaluating employee and reviewing all of the medical records, Dr. Volarich opined that employee is "unable to engage in any substantial gainful activity, nor can he be expected to perform in an ongoing work capacity in the future." Dr. Volarich concluded that it is his opinion that employee "is permanently and totally disabled as a direct result of the work related injury of April 19, 2007, in combination with his preexisting medical conditions."

The only vocational expert opinions presented in this case were from Mr. England. Mr. England evaluated employee on March 19, 2009. As part of his vocational assessment, Mr. England took a history from employee, inquired as to his current complaints, reviewed his family and social background, his educational background, his vocational history, performed vocational testing, and inquired as to functional restrictions and limitations. Mr. England stated that employee would not be able to return to his past work and would not be a good candidate for even sedentary to light activities. Mr. England went on to conclude that employee would not be able to successfully sustain any type of work activity on a consistent basis and that his combination of physical problems rendered him totally disabled from a vocational standpoint.

First, there is no question that the primary injury on April 19, 2007, resulted in permanent partial disability to employee. Second, there is no question that employee suffered from preexisting disabilities prior to the primary injury that were a hindrance and obstacle to his employment such that Second Injury Fund liability is triggered. See Messex v. Sachs Elec. Co., 989 S.W.2d 206, 215 (Mo. App. 1999). The only issue concerning this case is the nature and extent of employee's permanent disability resulting from the combination of his primary injury and preexisting disabilities.

Employee contends that the ALJ erred in denying him PTD benefits against the Second Injury Fund. Section 287.020.6 RSMo defines "total disability" as the "inability to return to any employment ...."

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. The pivotal question is whether any employer would

reasonably be expected to employ the employee in that person's present condition, reasonably expecting the employee to perform the work for which he or she is hired.

*Gordon v. Tri-State Motor Transit Company*, 908 S.W.2d 849, 853 (Mo.App. 1995) (citations omitted).

The testimony of employee, Dr. Volarich, and Mr. England, along with the supporting medical records and reports, are all consistent in showing that employee suffered from numerous preexisting disabilities that posed a hindrance and obstacle to his employment or reemployment, and when combined with this primary injury, result in his permanent and total disability. Dr. Volarich, the only medical expert who testified and/or provided a thorough independent medical evaluation, ultimately concluded that employee is permanently totally disabled. Mr. England, the only vocational and rehabilitation expert who testified and/or provided a vocational assessment, buttressed the opinion of Dr. Volarich and concluded that employee would not be able to successfully return to his past work or be able to successfully sustain any type of work activity on a consistent basis. Mr. England stated that it is a combination of employee's physical problems that render him totally disabled from a vocational standpoint.

The Second Injury Fund did not offer any witnesses, expert evidence, or medical records to rebut employee's evidence.

In spite of all of the aforementioned evidence suggesting that employee is permanently and totally disabled as a result of his primary injury combining with his preexisting disabilities, the ALJ found that Dr. Volarich and Mr. England's conclusions of PTD are "not credible in light of the medical evidence to the contrary." However, the only evidence the ALJ cited "to the contrary" was the fact that after employee's last injury he returned to work for a brief period of time without restrictions and continued to enjoy leisure activities such as golf and motorcycle riding. In looking at the record as a whole, we do not find this evidence persuasive. We find that the ALJ's decision to deny employee PTD benefits is not supported by substantial and competent evidence. Dr. Volarich and Mr. England's opinions regarding the nature and extent of employee's permanent disabilities are supported by the medical records and are not contradicted by any evidence in the record.

For the foregoing reasons, we reverse the ALJ's award and find that employee is permanently and totally disabled as a direct result of the combination of his injuries and his preexisting disabilities.

As previously stated, we adopt and incorporate employee and employer's agreed upon permanent partial disability ratings for the primary injury. Therefore, we find that the primary injury resulted in 22.5% PPD to the right knee, 5% PPD to the left knee, and 12.5% PPD of the body as a whole referable to the low back.

We find that employee reached maximum medical improvement on August 26, 2008 (the date of Dr. Volarich's independent medical evaluation). Therefore, going forward

from August 27, 2008, the Second Injury Fund is liable for the difference between the PTD benefits and the PPD benefits ( $\ 718.87 PTD rate - $\ 376.55 PPD rate) for 94 weeks ( 22.5 % PPD of right knee $=36$ weeks +5 % PPD of left knee $=8$ weeks +12.5 % PPD of the body as a whole rated at the lower back $=50$ weeks). Thereafter, the Second Injury Fund shall be liable for employee's PTD benefit of $\ 718.87 for the remainder of employee's life, or until modified by law.

James S. Haupt, Attorney at Law, is allowed a fee of 25 % of the benefits awarded for necessary legal services rendered to employee which shall constitute a lien on said compensation.

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

The award and decision of Administrative Law Judge John A. Tackes, issued June 16, 2010, is attached and incorporated to the extent it is not inconsistent with this final award.

Given at Jefferson City, State of Missouri, this $\qquad 22^{\text {nd }} \qquad$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

Employee: David First

Injury No.: 07-034786

Dependents: N/A

Employer: Grey Eagle dba D\&D Distributors LLP (Settled)

Additional Party: Second Injury Fund

Insurer: Travelers (Settled)

Hearing Date: March 18, 2010

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JAT

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: April 19, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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: Claimant jumped off truck to the ground injuring both knees and his low back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Both knees and low back
14. Nature and extent of any permanent disability: Right knee 22.5\%; Left knee 5\%; BAW 12.5\%
15. Compensation paid to-date for temporary disability: $\quad \ 6,250.75
16. Value necessary medical aid paid to date by employer/insurer? $\ 12,349.39

Employee: David First Injury No.: 07-034786

1. Value necessary medical aid not furnished by employer/insurer? $\mathrm{n} / \mathrm{a}
2. Employee's average weekly wages: \ 1,400.00
3. Weekly compensation rate: $\$ 718.87 / \ 376.55
4. Method wages computation: Agreement

1. Amount of compensation payable:

Settled against Employer/Insurer December 2, 2008

$(\ 35,395.70)

1. Second Injury Fund liability: Yes

79.87 weeks of permanent partial disability from Second I