Thomas Middleton v. Pepsi Cola

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-073706

Employee: Thomas Middleton

Employer: Pepsi Cola (Settled)

Insurer: CNA Insurance Company (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 9, 2010, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lisa Meiners, issued September 9, 2010, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 11^{\text {th }}$ day of August 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 am convinced the administrative law judge's award is erroneous and should be reversed.

In his appeal to this Commission, employee seeks permanent total disability benefits from the Second Injury Fund. Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." For the Fund to be liable for permanent, total disability benefits, employee must establish that: (1) he suffered from a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007).

As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ..." Id. In this regard, the administrative law judge (and the majority) incorrectly focused on the extent employee's preexisting degenerative disc disease hindered his activities prior to the work injury. The Missouri courts have made clear this is not the proper focus of our inquiry and have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry 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.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Clearly, employee's degenerative disc disease had the potential to combine with a future work-related injury to cause greater disability than would have resulted in the absence of that condition-that's exactly what happened in this case, as employee's treating neurosurgeon, Dr. Wilkinson, explained. In addition to the credible testimony from Dr. Wilkinson, Drs. Clymer and Ebelke both agreed that individuals with degenerative disc disease are predisposed to having increased back pain.

In addition to applying the wrong test for whether employee's preexisting conditions constituted hindrances or obstacles to his employment, the majority's decision to deny benefits works the effect of punishing employee for his uncontested memory problems caused by the numerous pain medications he takes to manage his chronic pain. The majority apparently agrees with the administrative law judge that employee's failure to report a complete history of his preexisting degenerative disc disease to Dr. Koprivica is an appropriate basis for throwing out the testimony of all of employee's experts and

denying him benefits. But it's uncontested employee was under the influence of several powerful medications when he was evaluated by Dr. Koprivica, including narcotic painkillers, muscle relaxers, and an anti-psychotic, and these worked the effect of impairing his memory and his ability to provide an accurate medical history. It's clear to me that this is not a case of an employee being untruthful to an evaluating physician-rather, employee just couldn't remember the extent and seriousness of his past medical history. That history includes at least 67 separate visits to medical practitioners between July 1995 and April 1998 for complaints stemming from employee's preexisting degenerative disc disease. The administrative law judge dismisses this history, remarkably characterizing it as "minimal treatment." This is yet another example that the award is against the overwhelming weight of the evidence in this matter. I find Dr. Koprivica credible when, after being provided an accurate history with regard to employee's significant preexisting degenerative disc disease, he opined employee is permanently and totally disabled as a result of a combination of that condition with the effects of the work injury.

In sum, I disagree with the administrative law judge's determinations and ultimate conclusion on the issue of Second Injury Fund Liability. I find credible the testimony of Dr. Koprivica and find that employee met his burden under § 287.220 RSMo of proving he is permanently and totally disabled due to a combination of the April 8, 1999, injury and his preexisting degenerative disc disease. I would reverse the decision of the administrative law judge and award 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

Employee: Thomas Middleton

Injury No. 99-073706

Dependents: N/A

Employer: Pepsi Cola

Insurer: CNA Insurance Company

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

Hearing Date: August 23, 2010

Checked by: LM/1h

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: April 8, 1999.
5. State location where accident occurred or occupational disease was contracted: Independence, 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: While in the course and scope of employee's work, employee sustained injury of his low back while stocking shelves for Pepsi Cola.
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: Body as a whole - referable to low back.
14. Nature and extent of any permanent disability: Permanent Total Disability as to Employer.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Middleton

1. Compensation paid to-date for temporary disability: $\ 70,428.92.
2. Value necessary medical aid paid to date by employer/insurer? $\ 26,485.94.
3. Value necessary medical aid not furnished by employer/insurer? N/A.
4. Employee's average weekly wages: $\ 554.86.
5. Weekly compensation rate: $\$ 361.24 / \ 294.73.
6. Method wages computation: Stipulation.

1. Amount of compensation payable: N/A.
2. Second Injury Fund liability: The Second Injury Fund is not liable to Claimant as I find Claimant permanent total disability against the last accident alone.
3. Future requirements awarded: N/A.

Employee: Thomas Middleton

Injury No. 99-073706

Dependents: N/A

Employer: Pepsi Cola

Insurer: CNA Insurance Company

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

Hearing Date: August 23, 2010

Checked by: LM/1h

On August 23, 2010, the parties appeared for hearing. The Claimant Tom Middleton appeared in person and with Counsel Frank Eppright. The remaining party, the Second Injury Fund, was present and represented by Laura Van Fleet.

The parties stipulated to the following:

1) That the Employer and Employee were working subject to Missouri's Workers' Compensation law;

2) That its liability was fully insured by its authority to self-insure;

3) That the Employer, Pepsi Cola, paid $\ 26,485.94 in medical expenses and $\ 70,428.92 in temporary total disability benefits;

4) That Claimant sustained an injury by accident on April 8, 1999, in Independence, Missouri;

5) That the average weekly wage was $\ 554.86 which makes the compensation rates $\$ 361.24 / \ 294.73

6) That Claimant reached maximum medical improvement on June 26, 2006;

7) That Claimant filed his claim within the time allowed by law, as well as gave proper notice to the Employer.

The only issue to be resolved by this hearing is the liability of the Second Injury Fund.

On April 8, 1999, Claimant, 45 years old, sustained a low back injury by accident while stocking Pepsi products. Indeed, Claimant stated his back "gave out" while performing his job duties on April 8, 1999. At that time Claimant felt low back pain with radiculopathy. Thereafter, Claimant underwent conservative care without relief. Ultimately Dr. Wilkinson performed a lumbar fusion from L3-S1.

Claimant was released from care and found to be at maximum medical improvement on June 22, 2006. Claimant last worked in the open labor market on April 8, 1999.

Claimant's own expert issued four independent medical reports. Dr. Koprivica on three out of four reports stated Claimant to be unemployable in the open labor market due to the April 8, 1999 injury taken in isolation. Indeed, Claimant informed Dr. Koprivica that he did not have any pre-existing disabling conditions.

On June 23, 2009, the Employer and Insurer reached a Compromise Settlement for the April 8, 1999 injury by accident. The parties settled for 50 percent permanent partial disability body as a whole or $\ 115,801.50. Thereafter on August 6, 2009, Dr. Koprivica opined Claimant suffered from pre-existing degenerative disk disease that combined with the April 8, 1999 injury to render Claimant permanently and totally disabled.

Although Dr. Koprivica on three occasions found him to be permanently and totally disabled due to the last accident, Dr. Koprivica in 2009 found Claimant had pre-existing disability of 15 percent permanent partial disability body as a whole referable to chronic cervical pain, 15 percent permanent partial disability referable to thoracic lumbar complaints. Dr. Koprivica issued a rating of 50 percent permanent partial disability body as a whole due to the April 8, 1999 accident.

I find based on the medical records and Claimant's history as given to the various doctors that Claimant since April 8, 1999, has severe limitations of sitting, standing and walking not experienced to prior to April 8, 1999. Claimant is unable to lift more than 20 pounds and has to lie down throughout the day since the April 8, 1999 injury by accident.

While there are medical records from chiropractors indicating Claimant received minimal treatment of the neck, thoracic and lumbar regions, I find Claimant did not have pre-existing disability of his low back that constitute a hindrance or obstacle to his employment prior to April 8, 1999. Claimant's own experts, both Mary Titterington and Dr. Koprivica, note Claimant was very active prior to April 8, 1999, without pre-existing disabling conditions.

Claimant's vocational expert reports Claimant was "an extremely active individual prior to the last accident." Dr. Koprivica states on three out of four reports that Claimant was unemployable from the last accident alone. Indeed, Claimant on several occasions told Dr. Koprivica he was not disabled prior to April 8, 1999. Dr. Koprivica wrote, "His history is one of excellent job performance in terms of bending, lifting, carrying, pushing and pulling as a merchandiser prior to April 8, 1999." Moreover, Dr. Koprivica stated Claimant was "very clear that he was not disabled in any fashion prior to April 8, 1999, including in reference to the low back." (See September 13, 2006 report.)

While I find that Claimant had medical conditions of his neck, low back and thoracic areas prior to the last accident, I do not find those conditions were disabling to cause hindrances or obstacles to his employment. Therefore, I find Claimant unemployable based on the April 8, 1999 injury in isolation. This finding is based on Claimant's own experts, Dr. Koprivica and his vocational expert Mary Titterington. The Second Injury Fund is not liable to Claimant for any benefits.

Date: $\qquad Made by: \qquad$

Lisa Meiners

Administrative Law Judge

Division of Workers' Compensation

This award is dated, attested to and transmitted to the parties this $\qquad day of \qquad$ , 2010, by:

Naomi Pearson

Division of Workers' Compensation