Claude Russell v. Proctor & Gamble

The primary purpose of this supplemental opinion is to address the evidence submitted at the remand hearing and to make a determination as to whether the Second Injury Fund established that employee is employable in the open labor market.

It should be noted that the Commission admitted into evidence all of the exhibits offered at the March 25, 2011, remand hearing. Said exhibits were fully reviewed and considered by the Commission.

The Second Injury Fund offered copies of Internet websites to support its contention that employee has been employed as a full-time pastor since October 16, 2008.

One page printed from the Peoria Friendship Missionary Baptist Church website states that "[o]n October 16, 2008, [employee] was called to pastor Peoria Friendship M. B. Church...." Another page printed from the website shows a picture of employee with his title listed as "Pastor."

The other evidence the Second Injury Fund offered was from a website entitled "Black Preaching Network." The printed pages submitted as evidence indicate that employee has a profile on the web-based network.

Employee concedes that he has been a pastor since 1979. He has served several churches during his life. He preached when he was employed as a full-time employee at Proctor \& Gamble, and he has continued to preach after the primary injury. However, employee testified that due to his physical condition, he has only been able to preach on a sporadic basis since his back injury in 2003. He testified that he is not physically able to handle the duties of a full-time pastor. Therefore, he only preaches at the church on a part-time basis. Employee stated that when he is physically able to be present at Peoria Friendship Missionary Baptist Church, he is only there for approximately nine hours during a week. Employee also testified that there are five other ministers at the church.

Employee testified that he volunteers his time at the church and the only money he receives from the church is reimbursement for his expenses. Employee's Joint Federal Income Tax Return for 2010 shows that he does not receive any income from the church.

Dr. Musich's medical records show that he was aware that employee was a Baptist Minister. Dr. Musich found employee to be permanently and totally disabled. Vocational expert, Ms. Shea, specifically found that employee's "pain level and functional limitations prevent [him] from even doing the pastoral work he was performing."

In determining whether the Second Injury Fund's additional evidence supports its argument that employee is not permanently and totally disabled, we turn to Brown v. Treasurer of Missouri, 795 S.W.2d 479 (Mo. App. 1990). In Brown, the Court stated that

"[t]otal disability means the inability to return to any reasonable or normal employment, it does not require that the employee be completely inactive or inert." Id. at 483.

We find that while employee may volunteer his time to Peoria Friendship Missionary Baptist Church on a part-time basis, employee's physical condition prevents him from being able to engage in any reasonable or normal employment. Both Dr. Musich and Ms. Shea were aware of employee's experience as a pastor and yet they concluded that he is permanently and totally disabled and unemployable in the open labor market.

We do not believe that the web information offered by the Second Injury Fund supports a finding that employee is employed as a full-time pastor. Instead, we find employee's testimony credible that he is physically unable to work as a full-time pastor and, at most, he spends nine hours per week volunteering his time to the church. We specifically find that this does not constitute reasonable or normal employment in the open labor market.

We find that the overwhelming weight of the evidence supports the ALJ's conclusion that employee is permanently and totally disabled as a result of his November 11, 2003, primary injury combining with his preexisting disabilities.

For the foregoing reasons, the Commission affirms the award and decision of the ALJ, as supplemented herein.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued August 24, 2010, is affirmed, 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 $2^{\text {nd }}$ day of September 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Claude Russell

Injury No. 02-155101 \&

03-115905

Employer: Proctor \& Gamble (Settled)

Additional Party: Second Injury Fund

Appearances: Christopher Wagner, attorney for employee, and Cliff Verhines, attorney for the Second Injury Fund.

Hearing Date: April 28, 2010 Checked by: LCK/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 of accident or onset of occupational disease? On or about December 10, 2002 and November 11, 2003.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau 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? 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 happened or occupational disease contracted: 2002 case: Repetitive use of left arm and elbow. 2003 case: Lifting during an FCE which injured the low back and neck.

On April 28, 2010, the employee Claude Russell appeared in person and with his attorney, Chris Wagner, for a hearing for a final award. The Second Injury Fund was represented by Assistant Attorney General Cliff Verhines. The parties agreed that one award could be issued for both cases. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Proctor and Gamble was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was duly qualified as a self-insured employer.
2. On December 10, 2002 and November 11, 2003, Claude Russell was an employee of Proctor and Gamble and was working under the Workers' Compensation Act.
3. On or about December 10, 2002 and November 11, 2003, the employee sustained accidents arising out of and in the course of his employment.
4. The employer had notice of the employee's accidents.
5. The employee's claims were filed within the time allowed by law.
6. In the 2002 case, the rate of compensation is $\ 649.32 per week for permanent total disability benefits and $\ 340.12 per week for permanent part