Susan Mueller v. Jo Ann Stores, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 05-135489

Employee: Susan Mueller

Employer: Jo Ann Stores, Inc. (Settled)

Insurer: Zurich American Insurance 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 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 September 29, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge John Howard Percy, issued September 29, 2010, is attached and incorporated by this reference.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

SEPARATE 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 upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the ultimate decision of the administrative law judge should be affirmed. I write separately to clarify that I reject some of the administrative law judge's reasoning.

The administrative law judge concluded that:

I find based on Section 287.190.6(2) Mo. Rev. Stat., that a medical opinion as to the percentage of permanent partial disability attributable to Claimant's cervical spine from the 2003 fusion is required in order for Claimant to sustain her burden of proof as to any disability prior to December 5, 2005 accident. I further find that apart from the requirements of Section 287.190.6(2), Claimant's preexisting neck condition is a sophisticated medical condition and that the disability is not within the realm of lay understanding and that a medical opinion is required to prove the extent of such disability. As Claimant failed to adduce any medical opinion as to the extent of any pre-December 5, 2005 disability in her cervical spine, I find that Claimant failed to prove that she had any preDecember 5, 2005 disability in her cervical spine.

(Award pp. 10-11).

Just two months ago, the Labor and Industrial Relations Commission rejected this very reasoning. I quote from the Commission's unanimous reasoning in Simpson v. Board of Education, LIRC, Injury No. 07-095109 (May 26, 2011).

Employer contends that § 287.190.6(2) RSMo, as amended in 2005, added two new elements to a worker's burden of proof as regards permanent partial disability; the worker must show that the permanent partial disability has been demonstrated and certified by a physician, and, 2) the worker must produce opinion evidence regarding compensability and disability that is a medical opinion(s) given with medical certainty. We disagree.

As to the first alleged new element, employer asserts that only an individual licensed as a physician under Chapter 334 RSMo may demonstrate and certify a permanent partial disability under the statute. We agree that this provision describes demonstrations and certifications to be performed only by a physician. But we do not believe the provision creates a new statutory element, without proof of which employee's claim must fail.

The subsection does not describe or define "demonstrated" or "certified" for the purposes of the subsection. Nor does the subsection provide a

sanction for a worker's failure to produce evidence that a physician has so demonstrated or certified.

"[T]he use of 'shall' in a statute does not inevitably render compliance mandatory, when the legislature has not prescribed a sanction for noncompliance." State ex rel. Fischer v. Brooks, 150 S.W.3d 284 (Mo. banc 2004). Depending on context, "shall" may prescribe a mandatory duty, as in State v. Teer, 275 S.W.3d 258 (Mo. banc 2009), but it may be considered only directory. Id. "[D]etermining if the word 'shall' is mandatory or directory requires courts to review the context of the statute and to ascertain legislative intent." Id.

State ex rel. State v. Parkinson, 280 S.W.3d 70, 76 (Mo. 2009).

We find nothing in § 287.190 or elsewhere in Chapter 287 describing sanctions for non-compliance with § 287.190.6(2) RSMo. We conclude that the provision requiring that permanent disability be demonstrated and certified by a physician is directory.

Simpson, pp 1-2

Years of case law make clear that a medical opinion is not always necessary to support the Commission's disability determination.

"The determination of the specific amount or percentage of disability is a finding of fact within the special province of the Commission." "When the Commission makes the determination of disability it is not strictly limited to the percentages of disability testified to by the medical experts." Id. Moreover, this court has held that "[t]he Commission is authorized to base its findings and award solely on the testimony of a claimant. His testimony alone, if believed, constitutes substantial evidence . . . of the nature, cause, and extent of his disability."

Bock v. City of Columbia, 274 S.W.3d 555, 560 (Mo. App. 2008) (internal citations omitted).

In the instant case, I have reviewed the medical records related to employee's cervical spine surgery. I have also considered employee's testimony regarding her physical limitations and pain related to her neck. Based upon employee's testimony that she has limitations turning her neck side-to-side and she sometimes has pain in her neck that she treats with over-the-counter pain medications, I find that employee had a 10\% permanent partial disability of the body as a whole referable to her cervical spine that pre-existed the primary injury.

Because employee's pre-existing cervical spine injury did not meet the thresholds set forth in § 287.220.1 RSMo, Second Injury Fund liability is not triggered in this case.

I would affirm the administrative law judge's award, except as explained herein. For the foregoing reasons, I respectfully dissent from the portion of the majority's decision that adopts the administrative law judge's reasoning with which I disagree.

Curtis E. Chick, Jr., Member

1. Are any benefits awarded herein? No
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 5, 2005
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:

Employee tripped over fabric roll and landed on left knee and right shoulder

1. Did accident or occupational disease cause death? No Date of death? N/A
2. Part(s) of body injured by accident or occupational disease: left knee and right shoulder
3. Nature and extent of any permanent disability: None against the Second Injury Fund
4. Compensation paid to-date for temporary disability: None
5. Value necessary medical aid paid to date by employer/insurer? None

1. Value necessary medical aid not furnished by employer/insurer? None claimed
2. Employee's average weekly wages: $\ 317.49
3. Weekly compensation rate: $\ 211.67 TTD/ $\ 211.67 PPD
4. Method wages computation: Stipulation

1. Second Injury Fund liability: No

weeks of permanent partial disability from second Injury Fund None

TOTAL: None

1. Future requirements awarded: None

Said payments to begin 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Claimant: Susan Mueller

Injury No. 05-135489

Dependents: N/A

Employer: Jo Ann Stores, Inc. (previously settled)

Additional Party: Second Injury Fund

Insurer: Zurich American Insurance Co (previously settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JHP

A hearing in this proceeding was held on June 28, 2010. Both parties submitted proposed awards, the latter of which was received on July 26, 2010.

The parties stipulated that on or about December 5, 2005:

1. the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. the employee's average weekly wage was $\ 317.49;
3. the rate of compensation for permanent partial disability was $\ 211.67 and the rate of compensation for permanent total disability was $\ 211.67; and
4. the employee sustained an injury as a result of an accident arising out of and in the course of employee's employment occurring in St. Louis City, Missouri.

The parties further stipulated that:

1. the employer had notice of the injury and a claim for compensation against the Second Injury Fund was filed within the time prescribed by law.

The issues to be resolved in this proceeding are:

1. the nature and extent of any permanent disability sustained as a result of the workrelated injury of December 5, 2005;
2. the nature and extent of any preexisting disabilities which employee had at the time of the work-related injury of December 5, 2005; and
3. whether and to what extent the preexisting disabilities combine with the disability from the primary injury to cause any additional permanent partial disability.

Having settled her claim against Employer/Insurer, Susan Mueller, Employee herein, is seeking an award of additional permanent partial disability from the Second Injury Fund pursuant to Section 287.220.1 Mo. Rev. Stat. (2000). Under that Section an employee who has a preexisting permanent partial disability and who subsequently sustains a compensable injury may recover from the Second Injury Fund any additional permanent disability caused by the combination of the preexisting disability and the disability from the subsequent injury. The employer is liable only for the disability caused by the work-related accident. The Second Injury Fund is liable for the difference between the sum of the two disabilities considered separately and independently and the disability resulting from their combination. Cartwright v. Wells Fargo Armored Serv., 921 S.W.2d 165, 167 (Mo. App. 1996); Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995); Brown v. Treasurer of Missouri, 795 S.W.2d 479 (Mo. App. 1990); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576-77 (Mo. App. 1985). In order to recover