Clarence Thomas v. Board of Police Commissioners of Kansas City, Missouri

Injury No.: 06-069030

Employee: Clarence Thomas

Employer: Board of Police Commissioners of Kansas City, Missouri (Settled)

Insurer: Self-Insured (Settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the amended 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 amended award of the ALJ dated November 25, 2009, by issuing a separate opinion allowing compensation in the above-captioned case.

Employee settled his claim against employer and proceeded to final hearing against the Second Injury Fund. The ALJ heard this matter to consider the nature and extent of any Second Injury Fund liability.

The ALJ found that employee's primary injury combined with his preexisting disabilities to result in a permanent partial disability enhancement of 10 % above the simple arithmetic sums of the separate disabilities.

Employee appealed to the Commission alleging that the ALJ erred in denying him permanent total disability benefits against the Second Injury Fund.

Therefore, the only issue currently before the Commission is the nature and extent of Second Injury Fund liability.

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 incorporated and adopted by the Commission herein.

Dr. Koprivica opined in his original independent medical evaluation report that employee is employable, but that he would defer to a vocational expert on that issue. He further opined that if it is determined by a vocational expert that employee "can indeed access the open labor market within the restrictions [he] outlined[.] ... [he] would consider an enhancement factor of 10 percent above the simple arithmetic sum of the separate disabilities to be appropriate."

Mr. Dreiling provided the only vocational expert opinion in this case. He opined that employee would not be a candidate to maintain employment in the open labor market.

After reviewing Mr. Dreiling's report, Dr. Koprivica issued an addendum to his original report and concluded, based on Mr. Dreiling's findings, that employee is permanently and totally disabled.

[^0]

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

Mr. Dreiling testified during his deposition that Dr. Koprivica's restrictions do not take employee out of the workforce. Mr. Dreiling also admitted during his deposition that in reviewing employee's medical records he did not find any restrictions regarding employee's right knee, low back, left wrist, or left shoulder. Mr. Dreiling was aware that employee was working full duty at the time of the primary injury.

With regard to employee's primary injury, the ALJ found that because employee settled his claim against employer for 23 % permanent partial disability of the body as a whole, the doctrine of collateral estoppel precludes employee from relitigating the nature and extent of permanent partial disability attributable to the primary injury in his case against the Second Injury Fund. Based on this finding, the ALJ determined that employee was bound by his prior settlement and summarily concluded that employee sustained 23 % permanent partial disability of the body as a whole as a result of the primary injury.

We find that the ALJ's discussion and application of collateral estoppel amounts to a misstatement of the law. Therefore, we do not adopt the ALJ's legal findings with respect to the nature and extent of employee's permanent partial disability resulting from the primary injury. However, based upon all of the testimony, medical records, independent medical evaluations, and the evidence as a whole, we agree with the ALJ's ultimate conclusion and find that employee sustained 23 % permanent partial disability of the body as a whole as a result of the primary injury.

In awarding employee enhanced permanent partial disability benefits of 10 %, the ALJ rejected Dr. Koprivica and Mr. Dreiling's ultimate conclusions that employee is permanently and totally disabled as a result of a combination of his primary injury with his preexisting disabilities. We agree with the ALJ's credibility findings, but find that additional support for said findings is warranted.

Mr. Dreiling largely based his opinion on employee's problems relating to the right knee, back, and left upper extremity. However, Mr. Dreiling admitted during his deposition that in reviewing employee's records he did not find any restrictions regarding employee's right knee, back, or left upper extremity.

Mr. Dreiling notes in his report that he did not even perform any type of vocational testing on employee before arriving at his conclusions. Further, as noted above, Mr. Dreiling testified during his deposition that Dr. Koprivica's medical restrictions do not preclude employee from working. Mr. Dreiling even stated that there are some security guard posts that would allow him to alternate sitting, standing, and walking, as required by Dr. Koprivica's restrictions.

Based on these contradictions and lack of basis for his ultimate conclusion, we do not find Mr. Dreiling's vocational opinion credible. We further find that because Dr. Koprivica's supplemental opinion that employee is permanently and totally disabled is based entirely on Mr. Dreiling's opinion, Dr. Koprivica's supplemental opinion is not credible either.

The evidence is clear that employee's preexisting conditions did cause him some minimal difficulties before his accident on July 23, 2006; however, he continued to remain employed fulltime, and worked full-time for almost a year after the 2006 accident as well. Employee continued to work through March of 2007 and only stopped working because he had reached 30

- 3 -

Years of employment at the Kansas City Missouri Police Department at which time all officers are forced to take a mandatory retirement.

We find that the totality of the evidence shows that while employee has physical problems that somewhat limit his ability to compete for more physically demanding jobs, he has numerous other skills, which would assist him in obtaining and maintaining employment in the open labor market. For these reasons, we find Dr. Koprivica's initial opinion that employee is employable to be the most credible. Therefore, in accordance with Dr. Koprivica's initial opinion we find that employee's primary injury combined with his preexisting disabilities to result in a permanent partial disability enhancement of 10% above the simple arithmetic sums of the separate disabilities.

We affirm the ALJ's award of 10% enhanced permanent partial disability benefits against the Second Injury Fund for the reasons set forth herein.

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.

The amended award and decision of Administrative Law Judge Rebecca S. Magruder, issued November 25, 2009, is attached and incorporated to the extent it is not inconsistent with this final award.

Given at Jefferson City, State of Missouri, this **26th** 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:

Secretary

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 his employment on July 23, 2006, 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).

When Dr. Koprivica issued his initial report, he clearly deferred to a vocational expert's opinion with regard to employability. Dr. Koprivica even stated that "[i]f it were determined by a vocational expert that [employee] is permanently totally disabled, I would consider the permanent total disability to arise based on the impact of combining all of the disabling conditions that I have identified."

Mr. Dreiling provided the only vocational expert opinion in this case. Mr. Dreiling found that even though employee has an impressive educational background, his criminal justice degrees are simply not transferable outside of law enforcement. Mr. Dreiling reasoned that his pain issues and his unreliability as a worker day in and day out make it unlikely that he would be able to maintain competitive employment in the open labor market. For these reasons, Mr. Deiling found that employee is unable to compete in the open labor market.

The majority's reliance on Dr. Koprivica's initial assessment that employee is employable is misguided. Dr. Koprivica identified his lack of expertise as to employability and correctly stated that he would defer to a vocational expert with regard to that issue. After reviewing the only vocational expert opinion, Dr. Koprivica came to the correct conclusion that employee is permanently and totally disabled.

There is no contrary evidence with regard to employee's employability. The ALJ's rejection of Dr. Koprivica and Mr. Dreiling's opinions is without basis and against the great weight of the evidence. As such, I would modify the award of the ALJ 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.

Employee: Clarence Thomas

Injury No. 06-069030

Dependents: N/A

Employer: Board of Police Commissioners of Kansas City, Missouri

Insurer: Self-Insured

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

Hearing Date: September 15, 2009

Checked by: RSM/pd

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: July 23, 2006
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes