Raymond Skirvin v. Dick Herber Electric Inc.

(Modifying Award and Decision of Administrative Law Judge)

Injury No.: 06-047647

Employee: Raymond Skirvin

Employer: Dick Herber Electric Inc. (Settled)

Insurer: Amerisure Ins. Co. (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

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, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision modifying the September 3, 2010, award and decision of Administrative Law Judge Henry T. Herschel. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The sole issue stipulated in dispute at the hearing was the nature and extent of Second Injury Fund liability.

The administrative law judge made the following findings: (1) employee is not in need of future medical care ${ }^{1}$; (2) as a result of the primary injury, employee sustained a 10\% permanent partial disability of the body as a whole referable to the low back; (3) as a result of the primary injury, employee sustained no more permanent partial disability "than his September 17, 2007, settlement of 15\% PPD combined (120 weeks) ${ }^{2}$; (4) employee suffers the following preexisting permanent partial disabilities: 20 % of the right shoulder, 15 % of the left shoulder, 15 % of the right knee, and 15 % of the right ankle; and (5) employee is entitled to 24 weeks of permanent partial disability compensation from the Second Injury Fund.

Employee submitted a timely Application for Review alleging the administrative law judge's award was not supported by substantial evidence and was against the weight of the law.

For the reasons set forth in this award and decision, the Commission modifies the award of the administrative law judge.

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[^0]: ${ }^{1}$ We do not speculate as to why the administrative law judge addressed this issue sua sponte; in any case, we have confined our review to the sole issue identified on the record by the parties at the hearing on June 3, 2010: the nature and extent of Second Injury Fund liability. Any findings and comments by the administrative law judge related to the issue of future medical care are not incorporated into this opinion. ${ }^{2}$ We note that the administrative law judge appears to have made two separate and conflicting findings of the nature and extent of permanent disability resulting from the primary injury.

Prior to May 20, 2006, the date of the work injury in this matter, employee suffered from a number of preexisting conditions of ill. In 1968, employee broke the end of his right thumb, which makes it difficult for employee to form a fist. In 1998, employee injured his left shoulder carrying material up a ladder; employee underwent surgery and experiences ongoing difficulty lifting and pulling with his left arm and decreased strength and range of motion in his left shoulder. This injury adversely affected employee's ability to work as a commercial electrician. In 1999, employee injured his right shoulder pulling wire; he underwent surgery and experienced decreased strength and difficulty working overhead with the right arm.

Employee has a long history of neck and back problems stemming back to the 1980s. Employee treated intermittently throughout the 1990s with various doctors for both lumbar and cervical spine problems. In 1997, Dr. Justice diagnosed chronic musculoskeletal back pain.

Dr. Volarich evaluated each of employee's preexisting conditions of ill and provided his opinion as to the nature and extent of preexisting disability employee suffered as of May 20, 2006. Dr. Volarich opined that employee suffered from preexisting permanent partial disabilities to the following body parts and in the following amounts: 25 % of the body as a whole referable to the lumbar spine, 25 % of the body as a whole referable to the cervical spine, 50 % of the right shoulder, 35 % of the left shoulder, 25 % of the right hand, 10 % of the left wrist, 25 % of the right ankle, 15 % of the right knee, and 15 % of the body as a whole referable to employee's chronic obstructive pulmonary disease.

Employee did not testify regarding the left wrist ulnar fracture rated by Dr. Volarich, or the right ankle degenerative arthritis, or the lung disease. Employee has not directed us to medical records showing any treatment for these conditions. Accordingly, we decline to make any findings regarding any preexisting left wrist, right ankle, or lung conditions. With these exceptions, we find all of the other ratings and opinions of Dr. Volarich as set forth above to be credible, and adopt them as our findings regarding the nature and extent of employee's preexisting disabling conditions.

On May 20, 2006, employee sustained injuries to his neck and upper right extremities when he held a heavy cable to prevent it from falling. Dr. Doll put employee on a course of home traction and pain medications, and also performed a transforaminal injection. Employee did not experience any significant relief from this course of treatment. Dr. Doll last saw employee on July 25, 2006, when he questioned employee's effort on a functional capacity evaluation, and released employee without restrictions. On that date, Dr. Doll found employee to be at maximum medical improvement and opined employee didn't suffer any permanent disability from the primary injury. We find that employee reached maximum medical improvement on July 25, 2006.

Dr. Volarich opined that the primary injury resulted in aggravation of both employee's cervical and lumbar syndromes as well as aggravation of his postoperative right shoulder condition, and that employee thereby sustained permanent partial disability

rated at 15 % of the body as a whole referable to the cervical spine, 15 % of the body as a whole referable to the lumbar spine, and 15 % of the body as a whole referable to the right upper extremity. We find credible Dr. Volarich's diagnoses and opinion that employee did sustain permanent partial disability referable to the work injury. We find employee sustained a 15 % permanent partial disability of the body as a whole referable to aggravation of his cervical spine syndrome as a result of the primary injury.

Dr. Volarich assigned considerable work restrictions and opined that employee is permanently and totally disabled due to a combination of his preexisting disabling conditions and the disability resulting from the primary injury. Ms. Gonzalez opined that employee is not even capable of sedentary work and that employee is unable to compete in the open labor market as a direct result of the effects of the primary injury in combination with his preexisting disabling conditions.

In addition to the testimony of Dr. Volarich and Ms. Gonzalez, employee provided evidence of several failed attempts to return to work following the primary injury. Employee tried to return working for employer only three days a week, but couldn't do all the work, so had to quit. Employee also tried working for Ecklecamp Electrical Company and Lee Deering Electric, but was unable to last more than a few weeks at either job. Employee described his present limitations and disabilities in detail. We find employee credible.

We find Dr. Volarich and Dr. Gonzalez to be credible. We find particularly persuasive Dr. Gonzalez, who took into account employee's attempts to return to work, and whose testimony was undiminished on cross-examination. Having evaluated all of the evidence, we find that employee is permanently and totally disabled due to the combination of his preexisting disabling conditions and the disability resulting from the primary injury.

"Section 287.220 creates the Second Injury Fund and sets forth when and the amount of compensation that shall be paid from the fund in 'all cases of permanent disability where there has been previous disability.'" Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000) (citations omitted). "In order to be entitled to Fund liability, the claimant must establish either that (1) a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or (2) the two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself." Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. 2004) (citation omitted).

"Liability of the Second Injury Fund is triggered only 'by a finding of the presence of an actual and measurable disability at the time the work injury is sustained.'" E.W. v. Kansas City School District, 89 S.W.3d 527, 537 (Mo. App. 2002) (citation omitted). To implicate the Second Injury Fund, the employee must have an actual and measurable

preexisting disability at the time the work injury is sustained of such seriousness as to constitute a hindrance or obstacle to employment. Section 287.220.1 RSMo.

[T]he proper focus of the inquiry as to the nature of the prior disability is not on the extent to which the condition has caused difficulty in the past, it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition."

Loven v. Greene County, 63 S.W.3d 278, 287 (Mo. App. 2001).

We have found that employee suffered from preexisting permanent partial disabilities amounting to 25 % of the body as a whole referable to the lumbar spine, 25 % of the body as a whole referable to the cervical spine, 50 % of the right shoulder, 35 % of the left shoulder, 25 % of the right hand, and 15 % of the right knee. The medical records reveal ongoing treatment spanning many years for certain of these conditions, such as the lumbar and cervical spine syndromes. The medical records also contain numerous preexisting work restrictions as well as suggestions from employee's doctors that he change the type of work he was performing (for example, Dr. Orell's suggestion on July 10, 1990, that employee change his work schedule due to the impact of overhead work on his right shoulder condition). Given the credible opinions of Ms. Gonzalez and the clear potential-demonstrated by both the treatment record and employee's testimonyfor each of employee's preexisting conditions of ill to combine with later injuries to create greater disability than would result in their absence, we conclude that each of these conditions were hindrances or obstacles to employment as of May 20, 2006.

Given the foregoing, we conclude that employee has met his burden of proving the presence of actual and measurable disabilities of such seriousness as to constitute hindrances or obstacles to employment at the time the work injury was sustained.

Having determined that the Second Injury Fund is implicated in this matter, we must determine the amount of Second Injury Fund liability.

[W]here a partially disabled employee is injured anew and rendered permanently and totally disabled, the first step in ascertaining whether there is liability on the Second Injury Fund is to determine the amount of disability caused by the new accident alone. The employer at the time of the new accident is liable for that disability (which may, by itself, be permanent and total). If the compensation to which the employee is entitled for the new injury is less than the compensation for permanent and total disability, then in addition to the compensation from the employer for the new injury, the employee (after receiving the compensation owed by the employer) is entitled to receive from the Second Injury Fund the remainder of the compensation due