Helen Trakas v. Angels On Duty

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 04-084192

Employee: Helen A. Trakas

Employer: Angels On Duty (Settled)

Insurer: Missouri Employers Mutual Insurance (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 section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated December 21, 2010. The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued December 21, 2010, 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 $\qquad 13^{\text {th }}$ day of July 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

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 believe the decision of the administrative law judge (ALJ) should be modified and employee should be awarded permanent total disability benefits against the Second Injury Fund.

First, there is no dispute that employee suffered an accident that arose out of and in the course of her employment on August 2, 2004, and that the injuries resulting from said accident combined with employee's preexisting disabilities to trigger Second Injury Fund liability. The issue is whether the combination of employee's primary injury and preexisting disabilities resulted in employee's permanent and total disability.

Permanent and total disability is defined by § 287.020.7 RSMo, 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 ALJ found that employee may be permanently and totally disabled, but not due to the combination of his primary injury with his preexisting disabilities. Instead, the ALJ found that if employee is permanently and totally disabled, it is due to post-accident degeneration of her preexisting conditions. Therefore, the ALJ only awarded enhanced permanent partial disability benefits against the Second Injury Fund and denied employee's claim for permanent total disability benefits. I find that the ALJ's conclusions are not supported by the competent and substantial evidence.

Employee had preexisting cervical spine problems dating back to the 1990s due to scoliosis and degenerative disc disease. Her cervical spine problems were exacerbated by a car accident. At times, employee's cervical spine problems prevented her from being able to move her head from side to side.

In addition to employee's preexisting cervical spine problems, employee also had preexisting lumbar spine problems dating back to the 1990s. In 2001, employee had a laminectomy and discectomy at L4-5 to address a disc herniation that was causing radiating pain and numbness. An MRI revealed that employee had a minimal disc bulge at L5-S1.

In 2004, the primary injury resulted in a new disc bulge at L4-5 and the L5-S1 bulge remained unchanged. Dr. Coyle performed a lumbar fusion at L4-5 and eventually released employee to return to work with light duty restrictions.

Improve: Helen A. Trakas

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Dr. Woiteshek opined that employee has failed back syndrome and imposed several restrictions, including no lifting over 3-5 pounds, no pushing, no pulling, and no climbing. Dr. Woiteshek also stated that employee cannot sit for very long and should rest in a recumbent position to alleviate her pain. Most of the restrictions given by Dr. Woiteshek are for employee's low back condition, but some are also for her neck. Dr. Woiteshek testified that the weight restrictions were attributable to her back and neck.

Employee's vocational expert, Ms. Gonzalez, relied on Dr. Woiteshek's opinions and believed that employee is permanently and totally disabled due to a combination of her preexisting disabilities and her disabilities flowing from the primary low back injury.

The Second Injury Fund's vocational expert, Mr. England, relied on Drs. Coyle and Berkin in concluding that employee could work a job in the sedentary category. I find that Mr. England's reliance on Dr. Coyle's opinions is misguided. Dr. Coyle's restrictions only considered employee's low back condition because he was never asked to offer an opinion considering employee's restrictions regarding his neck. In fact, Mr. England even conceded that if employee has to lie down during the day, as opined by Dr. Woiteshek, employee is probably unable to compete in the open labor market.

Ms. Gonzalez' opinion that employee is permanently and totally disabled due to a combination was based on Dr. Woiteshek's restrictions, which considered both employee's back and neck conditions.

The ALJ rendered Dr. Woiteshek's opinions not credible because his evaluation of employee considered her kidney disease and fibromyalgia. Although Dr. Woiteshek took into account employee's prior surgeries related to her kidney disease and prior diagnosis of fibromyalgia, the restrictions Dr. Woiteshek gave employee are only attributable to employee's preexisting neck and back conditions and the disability suffered in the primary injury. Therefore, I find that the ALJ erred in finding Dr. Woiteshek's opinions not credible.

The ALJ found that employee's preexisting cervical spine condition amounted to 15% permanent partial disability; but at the same time, the ALJ found that any restrictions relating to employee's neck are all due to post-accident degeneration. I find that the ALJ's reasoning is flawed and that the more credible medical and vocational evidence shows employee is permanently and totally disabled due to a combination of the restrictions related to her preexisting neck and back problems and the restrictions flowing from the primary back injury. As such, I would modify the award of the administrative law judge merely awarding employee permanent partial disability benefits and award employee permanent total disability benefits against the Second Injury Fund.

For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

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: August 2, 2004
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 occurred or occupational disease contracted: Claimant was lifting a wheelchair in the course and scope of her employment and injured her low back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lumbar spine at L4-5.
14. Nature and extent of any permanent disability: 40 % of body as a whole at the lumbar spine.
15. Compensation paid to-date for temporary disability: $\ 4,540.46
16. Value necessary medical aid paid to date by employer/insurer? $\ 45,132.32

Employee: Helen A. Trakas Injury No. 04-084192

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 290.70
3. Weekly compensation rate: $\ 193.80 for PPD and total disability benefits
4. Method wages computation: Stipulation

1. Amount of compensation payable: (Settled)
2. Second Injury Fund liability: Yes

45 weeks of permanent partial disability from Second Injury Fund $\ 8,721.00

TOTAL: $\quad \ 8,721.00

1. Future requirements awarded: None

Said payments to begin as of the date of this award 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 hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Andrew Marty

Employee: Helen A. Trakas

Hearing on the above-referenced case was held before the undersigned Administrative Law Judge on September 15, 2010 at the Division of Workers' Compensation in St. Charles, Missouri. Helen A. Trakas (Claimant) was present, and represented by Andrew Marty. The liability of Angels on Duty (Employer) and Missouri Employers Mutual Ins. Co. (Insurer) was previously settled. Assistant Attorney General Tracey Cordia represented the Second Injury Fund. Mr. Marty requested a fee in the amount of 25 %. The parties submitted post-trial briefs.

The parties entered into the following Stipulations:

1. On or about August 2, 2004, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in St. Charles County, Missouri.
2. Claimant was an employee of Employer, had an average weekly wage of $\ 290.70 that qualified Claimant for permanent partial disability (PPD) benefits at the rate of $\ 193.80 per week and temporary total disability (TTD) benefits at the rate of $\ 193.80.
3. Claimant filed her claim in a timely manner and Employer had received proper notice of Injury.
4. Employer has paid to date $\ 45,132.32 in medical expenses for care and treatment provided to Claimant.
5. Employer has paid to date $\ 4,540.46 in temporary total disability (TTD) benefits to Claimant in connection with this claim.
6. Venue is proper in St. Charles County.

The following issue was presented for resolution:

1. Liability of the