Sam Ellington v. Southeast Missouri Boll Weevil Eradication Foundation

^{1 } Statutory references are to the Revised Statutes of Missouri 2004 unless otherwise indicated.

prepared by Dr. Poetz (exhibit). Employer objected to the exhibit's admission on the grounds that it is hearsay. Employer argued that Dr. Poetz was not deposed and it was not submitted as a complete medical report. In addition, employer argued that the exhibit included a letter, which offered a medical opinion, but was not accompanied by a contemporaneous medical exam. Employer concluded that without the exhibit being accompanied by any of the aforementioned, it consisted of inadmissible hearsay.

The administrative law judge noted in his award that the exhibit was offered by the Second Injury Fund and that employer objected to the admission of the exhibit into evidence. The administrative law judge concluded that " $[t]$ he objection was sustained based on [the Second Injury Fund's] failure to adhere to the requirements of $\S 287.210 .7$, to wit, [the Second Injury Fund] failed to provide opposing parties with notice of its intention to offer the reports."

While we agree with the administrative law judge's ultimate conclusion that employee is permanently and totally disabled as a result of his primary injuries combining with his preexisting disabilities, we issue this supplemental opinion to address the Second Injury Fund's arguments on appeal and to provide a more thorough Second Injury Fund liability analysis.

The Second Injury Fund argues that the exhibit should have been admitted into evidence because the Second Injury Fund is specifically excluded from the 60-day rule provided in § 287.210.7, RSMo. The Second Injury Fund also argues that because Mr. England's opinions were admitted into evidence, Dr. Poetz's materials should be admitted as well. The Second Injury Fund urges that Mr. England specifically mentions and references Dr. Poetz's opinions in his report and in his deposition testimony. The Second Injury Fund reasons that if Mr. England's opinions were admitted, Dr. Poetz's materials should be admitted as well because Mr. England relied on them.

We find that the administrative law judge's ultimate conclusion to deny admissibility of the exhibit was correct, but for different reasons.

Section 287.210.7, RSMo. provides, in part that "[t]he testimony of a treating or examining physician may be submitted in evidence on the issues in controversy by a complete medical report and shall be admissible without other foundational evidence subject to compliance with the following procedures." Subsection 7 goes on to list a number of requirements a party must complete in order to admit a complete medical report as testimony of a treating or examining physician without other foundational evidence. However, the last sentence of subsection 7 states that " $[t]$ he provisions of this subsection shall not apply to claims against the [S]econd [I]njury [F]und." We find that this last sentence specifically prohibits all parties involved in a claim against the Second Injury Fund, including the Second Injury Fund itself, from admitting into evidence complete medical reports as testimony of a treating or examining physician without other foundational evidence. In other words, we find that subsection 7, as a whole, is inapplicable in cases involving a claim against the Second Injury Fund.

In this case, the Second Injury Fund offered into evidence, without any other foundational evidence, two independent medical evaluations and a piece of correspondence prepared by Dr. Poetz. Employer objected to the admission of the reports and the correspondence on the grounds that they were hearsay.

The reports and correspondence included Dr. Poetz's medical opinions. The Second Injury Fund offered the reports and correspondence to prove that employee's nature and extent of permanent partial disability is the same as that opined by Dr. Poetz in said reports and correspondence. We find that the Second Injury Fund's use of Dr. Poetz's reports and correspondence violated the hearsay rule. The Second Injury Fund attempted to offer Dr. Poetz's opinions as proof of the matter asserted, the nature and extent of employee's permanent partial disability. For the foregoing reasons, we find that the exhibit is hearsay, the Second Injury Fund failed to prove, or even argue, that the exhibit was admissible under any exception to the hearsay rule and, therefore, the exhibit is inadmissible.

We also disagree with the Second Injury Fund's argument that Dr. Poetz's opinions are part of the record as introduced, without objection, through Mr. England's report and testimony. Mr. England is a vocational expert and provided his expert opinion with regard to employee's employability. Dr. Poetz's medical opinions are not automatically admitted simply because a vocational expert reviewed and took them into account in formulating his opinion. Mr. England's opinion is admitted into evidence because employee provided the proper foundational evidence (Mr. England was deposed and the employer and the Second Injury Fund were provided with an opportunity to cross-examine him). The Second Injury Fund is not allowed to piggyback on the foundational evidence properly laid for Mr. England's opinions to bring in Dr. Poetz's opinions. There was no foundational evidence provided for Dr. Poetz's opinions and, therefore, the exhibit is denied.

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." Before determining Second Injury Fund liability, the employer's liability must first be considered in isolation. Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo. App. W.D. 1999), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). In Kizior, the Court set out a step-by-step test for determining Second Injury Fund liability:

Section 287.220.1 contains four distinct steps in calculating the compensation due an employee, and from what source, in cases involving permanent disability: (1) the employer's liability is considered in isolation - 'the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability'; (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered

Alone, is deducted from the combined disability; and (4) The balance becomes the responsibility of the Second Injury Fund.

Kizior, 5 S.W.3d at 200.

Dr. Cantrell saw employee for an independent medical evaluation in 2007. Dr. Cantrell opined that employee had reached maximum medical improvement and recommended permanent restrictions that he avoid repetitive over the shoulder work with his left upper extremity and limit lifting to 50 pounds from waist to shoulder utilizing both upper extremities. Dr. Cantrell concluded that employee sustained 10\% permanent partial disability of the left upper extremity at the level of the shoulder as a result of the August 2005 injury.

Dr. Volarich saw employee for an independent medical evaluation on October 28, 2008. Dr. Volarich diagnosed employee as having suffered a left shoulder AC separation, failed AC joint repair, left frozen shoulder syndrome, left chest rib fracture, and an aggravation of lumbar syndrome as related to the injury of August 18, 2005. Dr. Volarich suggested that employee should be limited from using his left arm for anything more than attempts to perform activities of daily living. Dr. Volarich opined that employee sustained 65\% permanent partial disability of the left shoulder and 15\% permanent partial disability of the body as a whole referable to the lumbar spine as a result of the August 2005 injury.

Dr. Volarich found an aggravation of the lumbar spine based upon employee telling him that he had worsening back pain and more frequent complaints following the August 2005 accident.

Based upon the weight of the evidence, we agree with the administrative law judge and find that the primary injuries resulted in employee sustaining 45\% permanent partial disability of his left shoulder and 7.5 % permanent partial disability of the body as a whole referable to the aggravation of his lumbar symptoms.

Dr. Cantrell found no disabling condition as it relates to the spine either prior to the August 2005 injury or following the injury of August 2005.

Dr. Volarich, on the other hand, opined that there was 25\% permanent partial disability of the body as a whole regarding the lumbar complaints due to degenerative disc disease prior to the August 2005 injury. Dr. Volarich agreed that the preexisting degenerative lumbar spine condition was progressive in nature.

Dr. Volarich pointed out that employee had radicular leg pain dating back to the first auto parts job he worked and developed pain down into his foot at the second auto parts job he worked. He also noted that employee's history revealed that he removed himself from the au