Willie Clark v. Superior Essex

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 03-039309

Employee: Willie Clark

Employer: Superior Essex (Settled)

Insurer: Zurich North America (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 § 287.480 RSMo. ${ }^{1}$ Having reviewed the evidence, read the briefs 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 September 20, 2010, as supplemented herein.

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 adopted and incorporated by the Commission herein.

Dr. Musich found that the primary injury resulted in 15\% permanent partial disability of the body as a whole referable to the cervical spine and 30 % permanent partial disability referable to the lumbosacral spine "over and above the preexisting disability that ... employee suffered before [the primary injury]." With regard to employee's preexisting disabilities, Dr. Musich found that the disability ratings listed in his April 11, 2002, independent medical evaluation are ongoing and have not changed significantly. In said independent medical evaluation, Dr. Musich found that employee is 60 % permanently partially disabled of the left upper extremity at the shoulder level, accompanied by an additional permanent partial disability of 50 % of the right upper extremity at the shoulder level.

Dr. Musich ultimately opined that the combination of employee's past and present disabilities is significantly greater than their simple sum and will continue to produce a chronic hindrance in his routine activities of daily living. Dr. Musich deferred to a vocational expert's opinion as to employee's capability of obtaining and maintaining employment in the open labor market. Dr. Musich stated that if a vocational expert determined that there were no jobs available for employee, it would be his opinion that employee is permanently and totally disabled.

Mr. Weimholt provided the only vocational expert opinion in the case. Mr. Weimholt concluded that employee is totally disabled from employment. Mr. Weimholt opined that his disability is a result of his work-related injuries combining with his medical conditions.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2002 unless otherwise indicated.

The ALJ concluded that employee sustained 20\% permanent partial disability of the body as a whole referable to the primary injury. The ALJ further concluded that employee's primary injury combined with his preexisting bilateral shoulder disabilities to result in 15\% enhanced permanent partial disability against the Second Injury Fund.

In arriving at the aforementioned conclusions, the ALJ somewhat summarily denied employee's claim for permanent total disability benefits against the Second Injury Fund. The ALJ largely based this determination on a finding that Dr. Musich and Mr. Weimholt's opinions are not credible. While we agree with the ALJ's ultimate conclusions, additional support is needed.

We find that the treatment records of Dr. Petkovich competently and substantially support the ALJ's findings.

Dr. Petkovich released employee to return to work with light duty restrictions on March 17, 2003, and later released employee to his "regular job as tolerated," on May 5, 2003. Dr. Petkovich's records indicate that employee's neck and low back complaints worsened after two subsequent injuries. One of these subsequent injuries was of such significance that in Dr. Petkovich's June 10, 2003, note he listed employee's pain complaints under the subheading, "NEW PROBLEM" and stated that this subsequent injury caused employee "[p]ain in lower back with some occasional discomfort in the right lower extremity."

Dr. Petkovich's records clearly show that employee had pain complaints following both of the subsequent injuries and that employee did not stop going to work for employer until after both of those injuries had occurred. Neither Dr. Musich nor Mr. Weimholt, acknowledged these subsequent work injuries in their reports.

By not accounting for, or even addressing, employee's subsequent injuries, Dr. Musich and Mr. Weimholt's opinions do not accurately assess employee's permanent partial disability attributable to the primary injury. Without accurately assessing employee's permanent partial disability attributable to the primary injury, it is nearly impossible to accurately assess the nature and extent of Second Injury Fund liability. For the foregoing reasons, we find their opinions are not credible.

In addition to the aforementioned, Dr. Petkovich's treatment records competently and substantially support the ALJ's finding that employee is not permanently and totally disabled. Employee was released to return to his "regular job as tolerated" a mere 10 weeks after the primary injury. Contrary to employee's testimony, employee worked at least another month after being released by Dr. Petkovich. In fact, it was not until after he suffered two additional injuries before he stopped working for employer.

Section 287.020.7 RSMo defines "total disability" 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).

We find that after the primary injury, employee was competent to compete in the open labor market and demonstrated the same by actually returning to work and maintaining his employment for at least another month. Whether employee was competent to compete in the open labor market after his two subsequent injuries in May and June 2003 has no bearing on our determination in this case. Our determination is based on employee's condition at the time the primary injury occurred. We find, as did the ALJ, that employee's primary injury combined with his preexisting disabilities to result in enhanced permanent partial disability, but employee was not permanently and totally disabled following the primary injury.

We affirm the ALJ's award with supplementation as provided herein.

The award and decision of Administrative Law Judge Maureen Tilley, issued September 20, 2010, is affirmed, as supplemented herein, and is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $1^{\text {st }}$ day of September 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 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 February 22, 2003, 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).

In this case, the only rating doctor, Dr. Musich, stated that if a vocational expert determined that there were no jobs available for employee, it would be his opinion that employee is permanently and totally disabled. The only vocational expert, Mr. Weimholt, then concluded that employee is totally disabled from employment. There were no contradictory expert opinions offered.

The ALJ and the majority found that Dr. Musich and Mr. Weimholt's opinions are not credible based solely on the fact that they did not discuss two minor subsequent work-related injuries employee suffered after he attempted to return to work. While Dr. Musich and Mr. Weimholt did not discuss these two minor injuries, they did review the records evidencing the same. In addition, at the time of Dr. Musich's evaluation, he obtained a history from employee regarding the injuries that he sustained. The only logical explanation for the two experts not discussing said injuries is that they did not find them significant enough to discuss. In further support of the insignificance of these injuries, employee did not even remember said injuries when he was questioned about them at the final hearing.

The majority finds that Dr. Petkovich's treatment records support the ALJ's finding that Dr. Musich and Mr. Weimholt are not credible. However, Dr. Petkovich never opined as to the amount, if any, of permanent disability attributable to these two subsequent injuries.

The only expert opinions provided in this case establish that employee is permanently and totally disabled as a result of his February 22, 2003, primary injury combining with his preexisting disabilities. The ALJ and the majority cling to two insignificant notes in Dr. Petkovich's treatment records to find that these expert opinions are not credible.

I disagree with the ALJ and the majority's conclusions and find that the weight of the evidence substantially and competently supports the conclusion that employee is permanently and totally

Injury No.: 03-039309

Employee: Willie Clark

disabled as a result of his February 22, 2003, primary injury combining with his preexisting disabilities. 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

Employee: Willie Clark

Injury No. 03-039309

Dependents: N/A

Employer: Superior Essex

Additional Party: Second Injury Fund

Insurer: Zurich North America

Hearing Date: June 7, 2010

Checked by: MT/rf

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 o