James Wilder v. Bartch Roofing Co., Inc.

We write this supplemental opinion to more fully address the extent of disability resulting from the work injury considered alone.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." For the Fund to be liable for permanent total disability benefits, employee must establish that: (1) he suffered from a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). However, the employer's liability must first be considered in isolation before determining Second Injury Fund liability. Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo. App. 1999), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). "[I]f claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability." Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. 2004).

The administrative law judge did not make any affirmative findings as to the extent of employer's liability for the 2004 work injury. In calculating Second Injury Fund liability, however, the administrative law judge implicitly found that, as a result of the work injury, employee sustained a 40 % permanent partial disability of the left shoulder and a 68.7 % permanent partial disability of the body as a whole referable to the cervical spine. These ratings were derived from employee's settlement with employer, and are similar to the ratings provided by Dr. Musich. Of the experts who found employee's work injury compensable, Dr. Musich was the only one to provide ratings.

Having considered the whole medical record in connection with the 2004 work injury and the credible expert testimony, we find that a 40 % permanent partial disability of the left shoulder and a 68.7 % permanent partial disability of the body as a whole referable to the cervical spine fairly and accurately represent the permanent partial disability that employee sustained as a result of the work injury.

The evidence is overwhelming that employee is permanently and totally disabled. Contrary to the findings of the administrative law judge, even employer's medical expert, Dr. Solman, agreed that, given employee's physical condition when he evaluated him on September 22, 2008, employee is disabled from the workforce. The issue is whether employee is permanently and totally disabled as a result of the last injury considered alone or whether it is due to a combination of the effects of the work injury and employee's numerous preexisting disabling conditions.

Of the medical and vocational experts to render an opinion on the question, Ms. Shea was the only one who explicitly indicated she believed employee was permanently and totally disabled as a result of the work injury considered alone. Specifically, Ms. Shea agreed that when she looked at employee's neck surgeries and their effects and the

Depression employee suffered following the 2004 work injury, employee is permanently and totally disabled from the last injury and its sequelae. Ms. Shea was not asked to elaborate and thus the record does not include an explanation as to how she reached this conclusion. Ms. Shea admitted that she did not perform any vocational testing or labor market surveys.

On the other hand, the testimony of Mr. England, Dr. Solman, and Dr. Musich all support a finding that employee is permanently and totally disabled due to a combination of his preexisting disabling conditions and the effects of the work injury. (Dr. Raskas clearly believed employee to be permanently and totally disabled but did not specifically identify whether he believed it was due to the effects of the work injury alone or a combination of the work injury and preexisting factors). Mr. England originally opined that employee is not actually permanently and totally disabled, but conceded on cross-examination that employee can't work and that, if you believe employee's subjective complaints, it's due to a combination of preexisting conditions and the effects of the work injury. Dr. Solman did not specifically opine whether he believed employee is disabled due to the work injury alone or a combination of factors, but his findings minimizing the effects of the work injury, combined with his admission that employee is now disabled from the workforce, indicate that it was not the work injury alone that permanently and totally disabled employee. Dr. Musich testified that employee is permanently and totally disabled due to a combination of his preexisting disabling conditions and the effects of the work injury. Dr. Musich explained he felt employee was permanently and totally disabled due to his many physical restrictions and his need for daily narcotic medications. Dr. Musich acknowledged that employee was working before December 2004 with all of his preexisting disabling conditions, and that employee's need for daily narcotic medications is due to the work injury. Dr. Musich, however, did not relent when he was pressed on cross-examination but rather reaffirmed his opinion that it was the effects of the work injury in conjunction with employee's multiple other preexisting pathologies that render employee permanently and totally disabled. We find Dr. Musich and Mr. England credible.

Because we otherwise agree with the analysis, findings, and conclusions of the administrative law judge, we affirm the remainder of the award without supplementation.

We supplement the award of the administrative law judge with the foregoing findings, conclusions, and comments. In all other respects, we affirm the award. The Second Injury Fund is ordered to pay to employee permanent total disability benefits at the rate of $619.43 per week, beginning January 8, 2008, and continuing thereafter for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge Linda J. Wenman, issued July 9, 2010, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $\qquad 22 2^{\text {nd }} \qquad$ day of March 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: December 22, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County, MO
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: While covering insulation with a tarp, Claimant fell through the insulation catching both arms as he fell.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left shoulder and cervical spine.
14. Nature and extent of any permanent disability: 40 % PPD referable to the left shoulder, and 68.7 % BAW PPD referable to the cervical spine.
15. Compensation paid to-date for temporary disability: $\ 95,834.67 representing $1545 / 7^{\text {th }}$ weeks.
16. Value necessary medical aid paid to date by employer/insurer? $\ 28,027.69

Employee: James Wilder Injury No.: 04-139635

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: sufficient to produce the following rates:
3. Weekly compensation rate: $\$ 619.43 / \ 354.05
4. Method wages computation: Stipulated

1. Amount of compensation payable by Employer:

Previously Paid

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential of $\ 265.38 payable by SIF for 367.6 weeks beginning January 8, 2008, and $\ 619.43 weekly thereafter, for Claimant's lifetime.

TOTAL:

TO BE DETERMINED

1. Future requirements awarded: N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law. The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments in favor of the following attorney for necessary legal services rendered to the claimant: Christopher Wagner

Employee: