William Fletcher v. Fulton State Hospital

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 08-099255

Employee: William Fletcher

Employer: Fulton State Hospital (Settled)

Insurer: CARO (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. ${ }^{1}$ Having heard oral argument, reviewed the evidence, read the briefs and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated October 20, 2010, as supplemented and corrected herein.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are adopted and incorporated by the Commission herein.

In this case, it is undisputed that employee sustained a substantial work-related injury, suffered from preexisting disabilities, and is now permanently and totally disabled.

On appeal, the Second Injury Fund argues that employee is permanently and totally disabled due to the post-accident worsening of his preexisting disabilities. Based on this allegation, the Second Injury Fund denies liability for employee's permanent total disability benefits.

We disagree with the Second Injury Fund's assessment of this case. While it is true that at the time of the primary injury employee suffered from preexisting disabilities that are progressive by nature, there is simply no evidence that said disabilities progressed wholly independently of the primary injury to result in employee's permanent total disability.

Dr. Volarich noted in his deposition that there was the possibility that employee's preexisting disabilities could progress to result in greater disability, but there was no evidence that any post-accident progression had occurred at the time he evaluated employee and opined that he is permanently and totally disabled as a result of a

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2008 unless otherwise indicated.

Improved health outcomes in the elderly

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injury

in the community

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combination. Therefore, it is irrelevant if employee's preexisting conditions have now progressed following the primary injury because employee was already permanently and totally disabled prior to any post-accident progression.

Under § 287.220.1 RSMo, when an employee is permanently and totally disabled by a combination of the primary injury and preexisting disabilities, the employer is responsible for only the disability benefits attributable to the primary injury and the remainder of the disability benefits are the responsibility of the Second Injury Fund. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000).

We find, as did the ALJ, that the primary injury resulted in 20% permanent partial disability of the right shoulder and 16% permanent partial disability of the body as a whole referable to his lumbar spine. Employee's preexisting diabetes and heart condition prevented his treating physicians from being able to provide the ordinary medical treatment typically used to alleviate said injuries. Therefore, employee's right shoulder and lumbar spine injuries combined with employee's preexisting diabetes and heart condition to render employee permanently and totally disabled.

In addition to the aforementioned, we also note a typographical error in the ALJ's award. On page 2 of the award under "21. Amount of compensation payable," the ALJ stated that employee previously settled his claim against employer for 20% permanent partial disability of the right shoulder and 15% permanent partial disability of the body as a whole referable to the lumbar spine. It is clear from the record and all of the calculations in the award that the 15% permanent partial disability of the body as a whole referable to the lumbar spine should actually be listed as 16% permanent partial disability of the body as a whole. Therefore, we find that employee settled his claim against employer for 20% permanent partial disability of the right shoulder and 16% permanent partial disability of the body as a whole referable to the lumbar spine.

IV. Decision

We affirm the ALJ's award with supplementation as provided herein. Thus, employee is awarded permanent total disability benefits and liability is imposed on the Second Injury Fund.

We find that employee reached maximum medical improvement on November 2, 2009 (the date of Dr. Volarich's independent medical evaluation). Therefore, going forward from November 3, 2009, the Second Injury Fund is liable for the difference between the PTD benefits and the PPD benefits (407.18 PTD rate - 404.66 PPD rate) for 110.4 weeks (= 20% PPD of the right shoulder (46.4 weeks) + 16% permanent partial disability of the body as a whole referable to the lumbar spine (64 weeks)). Thereafter, the Second Injury Fund shall be liable for employee's weekly PTD benefit of $407.18 for the remainder of employee's life, or until modified by law.

The award and decision of Administrative Law Judge Henry T. Herschel, issued October 20, 2010, is affirmed, as supplemented and corrected herein, and is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this $30^{\text {th }}$ day of June 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

CONCURRING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I submit this concurring opinion to disclose the fact that I did not participate in the June 15, 2011, oral argument; however, having reviewed the evidence and considered the whole record, I join in and adopt the majority's supplementation awarding permanent total disability benefits against the Second Injury Fund.

Curtis E. Chick, Jr., Member

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: October 31, 2008.
5. State location where accident occurred or occupational disease was contracted: Callaway 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? N/A.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was monitoring a hallway when a patient attacked a staff member. During the ensuing scuffle, the claimant fell to the floor and hurt his right shoulder and lower back.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Right shoulder and lower back.
14. Nature and extent of any permanent disability: Permanent total disability.
15. Compensation paid to-date for temporary disability: $\-0-.
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,875.91.

Employee: William Fletcher

1. Value necessary medical aid not furnished by employer/insurer? N/A.
2. Employee's average weekly wages: $\ 529.33.
3. Weekly compensation rate: $\ 407.18 TTD/ $\ 404.66 PPD.
4. Method wages computation: Stipulation.

1. Amount of compensation payable:

Employer previously settled:

20 % PPD of right shoulder and 15 % PPD of the body as a whole (lumbar back) $\ 44,674.46.

1. Second Injury Fund liability: Yes. $\ 407.18 per week.
2. Future requirements awarded: Yes.

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 % all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Christine Kiefer.

Employee: William Fletcher

Injury No.: 08-099255

Dependents: N/A

Employer: Fulton State Hospital

Additional Party: Second Injury Fund

Insurer: Previously Settled

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: $\mathrm{HTH} / \mathrm{sb}$

The parties appeared before the undersigned administrative law judge on July 22, 2010, for a final hearing to determine the liability of the Second Injury Fund in the matter of William Fletcher (Claimant). Attorney Christine Kiefer represented Claimant. Assistant Attorney General Da-Niel Cunningham represented the Second Injury Fund. The Employer, Fulton State Hospital, and its Insurer previously settled with Claimant and did not participate in the hearing.

The parties stipulated to the following:

1. On or about October 31, 2008, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in Callaway County at Fulton State Hospital.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Venue is proper in Cole County, Jefferson City, Missouri.
4. Employer received proper notice of the claim.
5. Claimant filed the claim within the time allowed by law.
6. The average weekly wage at the date of injury was $\ 529.33, resulting in compensation rates of $\ 407.18 for temporary total disability (TTD), and $\ 404.66 for permanent partial disability (PPD).
7. Employer paid TTD of $\-0 - and medical expenses totaling $\ 15,875.91.

The issues to be determined are:

1. What is the nature and extent of Claimant's disability?
2. What is the liability of the Second Injury Fund?
3. Whether Claimant needs future or further medical care?

Only evidence necessary to support the award will be summarized. Any objections not expressly ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

Claimant offered the following exhibits, which were received into evidence without objection:

A Harry S. Truman Memorial Veterans' Hospital Records

B Metro Imaging South Records

C Tesson Heights Orthopedic Records

D Select Physical Therapy Records

E Peak Performance Physical Therapy Records

F Callaway Community Hospital Records

G Select Physical Therapy Records

H ROEP, Dr. Runde Records

I Deposition of James M. England

J Deposition of Dr. David Volarich

K Stipulation for Compromise Settlement for Injury No. 08-099255

The Second Injury Fund offered the following exhibits, which were received into evidence without objection:

1 Tesson Heights Orthopedic Records, Drs. Lee a