Weldon Poarch v. Madison Apartment Group

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 reviewed the evidence, read the briefs, heard oral argument 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 6, 2010, as modified herein.

The ALJ concluded that employee is denied benefits against the Second Injury Fund because employee did not suffer a compensable primary injury. The ALJ went on to discuss whether the alleged injury aggravated employee’s preexisting cardiovascular disease and whether the alleged injury combined with employee’s preexisting disabilities to result in employee’s permanent total or enhanced permanent partial disability.

We agree with the ALJ’s determination that employee failed to meet his burden of proving that he sustained a compensable primary injury. However, we find that the ALJ’s analysis should have concluded after making such determination because after having found that employee did not sustain a compensable primary injury all other issues are moot.

The first sentence of § 287.220.1 RSMo provides that "[a]ll cases of permanent disability where there has been previous disability shall be compensated as herein provided." The Courts have consistently interpreted this first sentence of § 287.220 RSMo as stating that "[i]n order for a claimant to recover against the [Second Injury Fund], he must prove that he sustained a compensable injury, referred to as ‘the last injury,’ which resulted in permanent partial disability." Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo. App. 2008). Consequently, if the employee did not sustain a compensable “last injury,” there is no need to proceed to the next step in the Second Injury Fund liability analysis.

We find that employee failed to meet his burden of proof that he sustained an accident or primary injury; therefore, our analysis ends at the first sentence of § 287.220 RSMo.

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005 unless otherwise indicated.

All other issues are moot and we specifically do not adopt the portions of the ALJ's award discussing moot issues.

We affirm the ALJ's denial of Second Injury Fund liability.

The award and decision of Administrative Law Judge Kenneth J. Cain, issued October 6, 2010, is attached and incorporated by this reference to the extent it is not inconsistent with this award.

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

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Weldon Poarch

Injury No. 06-062586

Dependents: N/A

Employer: Madison Apartment Group (previously settled)

Insurer: Firemans Fund Insurance Company

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

Hearing Date: August 3, 2010; final brief rec'd Sept. 3, 2010 Checked by: KJC/pd

1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? No.
3. Was there an accident or incident of occupational disease under the Law? No.
4. Date of accident or onset of occupational disease: alleged April 22, 2006.
5. State location where accident occurred or occupational disease was contracted: alleged Kansas City, Clay 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? No.
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, while in the course and scope of his employment as a maintenance technician for the Madison Apartment Group alleged that he was exposed to muriatic acid and that he sustained injuries to his heart and respiratory system.
12. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: alleged heart and respiratory system
2. Nature and extent of any permanent disability: See additional findings of fact and rulings of law.
3. Compensation paid to date for temporary disability: N/A
4. Value necessary medical aid paid to date by employer/insurer? N/A
5. Value necessary medical aid not furnished by employer/insurer? None
6. Employee's average weekly wages: $\ 520
7. Weekly compensation rate: $\ 346.84
8. Method wages computation: By Agreement.

1. Amount of compensation payable:

Unpaid medical expenses: N/A

The employee and the employer previously settled the employee's claim against the employer based on a permanent partial disability of 11 percent to the body as a whole.

N/A weeks for temporary total disability.

N/A weeks for disfigurement.

1. Second Injury Liability: None.
2. Future requirements awarded: None.

Total: None

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 employee: N/A

Employee: Weldon Poarch

Injury No. 06-062586

Dependents: N/A

Employer: Madison Apartment Group (previously settled0

Insurer: Firemans Fund Insurance Company

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

Hearing Date: August 3, 2010; final brief rec'd Sept. 3, 2010 Checked by: KJC/pd

The Employee settled his claim against his Employer on February 9, 2009 based on a permanent partial disability of 11 percent to the body as a whole due to an alleged exposure to muriatic acid at work. The remaining parties were the Employee and the State Treasurer as Custodian of the Second Injury Fund.

The Employee and the State Treasurer as Custodian of the Second Injury Fund entered into various admissions and stipulations. The remaining issues are as follows:

1) whether the Employee sustained an injury and/or an occupational disease arising out of and in the course of his employment; and

2) liability of the State Treasurer as Custodian of the Second Injury Fund for compensation and if so the extent of any such liability.

At the hearing, Mr. Weldon Poarch (hereinafter referred to as Claimant), testified that he was born on September 14, 1946, and that he stood 5 foot 8 inches tall and weighed 149 pounds. He stated that he had an Associate of Arts degree in Fire Sciences from Penn Valley Community College. He also stated that he served in the Air Force for four years where he was trained as an aircraft mechanic and that he later received vocational training in heating and air conditioning. He stated that he was previously a licensed real estate salesman and broker.

Claimant testified that he had worked as a mechanic and later in the electronics field where he did commercial and residential wiring. He stated that he worked as a fireman from 1970 to 1995. He stated that he became a captain for the fire department. He stated that he served as a battalion chief for six months. He stated that his job with the fire department was strenuous. He stated that it required heavy lifting and the ability to climb ladders. He stated that he retired from the job because he was "getting old and worn out".

Claimant testified that while working as a fireman he owned a real estate business where he sold commercial real estate and managed rental property. He stated that he ordered supplies and essentially supervised the maintenance staff. He also stated that after he retired from his job as a fireman he did maintenance work primarily at apartment complexes. He stated that he

levated as a maintenance supervisor. He stated that he did HVAC, electrical and plumbing work. He stated that he was EPA certified.

Claimant testified that in 1997 he had open heart surgery. He stated that his doctor did a five-way bypass procedure. He stated that while working as a fireman he sustained an injury to his right rotator cuff which required surgery and that on one occasion he experienced problems with smoke inhalation. He stated that he did not file a workers' compensation claim for the rotator cuff injury. He stated that each of the impairments affected him at work.

Claimant testified that his alleged injury at work occurred on April 22, 2006 when he was working in maintenance for the Madison Apartment Group. He stated that the injury occurred while he was spraying the bathroom of an apartment to try to remove mold. He stated that muriatic acid was sprayed to remove the mold. He stated that the fumes became so strong when he sprayed with the muriatic acid that everyone in the apartment had to leave.

Claimant testified that about seven to ten days after spraying the apartment he could not lie down at home without choking. He stated that he had to sleep in a recliner. He stated that on May 5, 2006 he sought treatment.

Claimant testified that on June 9, 2006, he saw Dr. Schenk with complaints of breathing difficulties. He stated that Dr. Schenk had been his friend since childhood. He stated that Dr. Schenk recommended a hospitalization, which he refused because he did not have insurance. He stated that Dr. Schenk advised him to get an echocardiogram.

Claimant testified that he next saw Dr. Gutovitz, a cardiologist, who prescribed a defibrillator. He stated that he did not get the defibrillator until three years later in November 2009 due to a lack of insurance. He also stated that he told Dr. Gutovitz on July 17, 2006 that he wanted to return to work and that the doctor provided restrictions allowing him to work four hours per day with no lifting over 20 to 25 pounds. He stated that although he returned to work under those restrictions, he ended up doing the same tasks as he did before the doctor provided the restrictions. He stated that he lost his job at the Madison Apartments on September 30, 2006 because the company needed someone to work full time.

Claimant testified that subsequent to September 2006 and that for about two years he did maintenance work for other apartment complexes. He stated that on his last job he did some work for an apartment complex where his wife was the apartment manager. He stated that he filled in when other workers were off and that he sometimes answered the phone and had customers complete applications to rent apartments, showed model apartments and ran errands for the maintenance staff. He stated that he worked between two and eight hours per week. He stated that he worked until June of last year. He stated that he did not receive any pay.

In addition to the heart bypass surgery, rotator cuff injury and smoke inhalation problems testified to earlier, Claimant indicated that about 20 years ago he was diagnosed with diabetes and that he was on insulin for a short period. He stated that he was still on medication for diabetes. He stated that he developed cataracts shortly before the alleged April 2006 accident at work. He reiterated that all of his preexisting medical conditions affected his ability to work.

Claimant testified that subsequent to the accident at work he was diagn