Meredith Smith v. W. W. Wood Products, Inc.

Employee began working for employer in February 2004. In January 2005 employee began operating an edge banding machine for employer.

On February 7, 2005, employee was repetitively lifting heavy pieces of plywood and inserting them into a banding machine when he injured his lumbar spine. He was eventually diagnosed with a disc bulge at L4-5 as well as degenerative disc disease and degenerative joint disease.

On June 15, 2005, employee underwent an L5-S1 posterior laminectomy performed by Dr. Gibbs. Employee treated with Dr. Gibbs postoperatively. On December 1, 2005, Dr. Gibbs found that employee had reached maximum medical improvement and released him to work.

Employee attempted to return to work following the surgery, but was only able to work two days. Employee has not worked since this failed attempt to return to work.

Employee testified that standing for long periods of time causes pain in his low back, which requires him to sit or lay down to relieve the pain. Conversely, employee also testified that sitting for long periods of time causes pain in his low back, which requires him to stand or lay down to relieve the pain

Employee testified regarding preexisting injuries to his left knee, left shoulder, and bilateral ankles. Employee also testified that he had been diagnosed with bilateral hearing loss.

With respect to his left knee, employee indicated that he is unable to stand for long periods of time in one place and has to frequently shift weight due to left knee discomfort. Employee noted that his left knee swells and he has problems walking long distances due to knee pain. Employee's left knee also causes him problems with kneeling and going up ladders and stairs.

With respect to his left shoulder, employee noted pain, popping, and difficulty working with his arm raised overhead. He also noted problems pulling, pushing, and reaching with his left arm.

Employee testified that his bilateral ankle problems cause him pain and require him to shift his weight between his ankles when standing for long periods of time. Employee also experiences popping in both ankles and has difficulty walking long distances due to the pain.

Employee testified that the totality of his conditions make it difficult for him to perform any type of work. Employee stated that he is no longer able to shift weight from his left knee onto the right leg due to back and right leg pain. Likewise, he is unable to shift weight onto the left leg when experiencing radiating right leg pain due to his left knee problems.

Employee was seen by Dr. Volarich for purposes of an independent medical evaluation (IME). Dr. Volarich reviewed employee's medical records from the Brain and Neuro Spine Clinic of Missouri and the VA Medical Center. Dr. Volarich took employee's history and also performed a general physical examination of employee.

Dr. Volarich noted that employee suffers from low back pain radiating down his right leg greater than his left leg to knee level. He experiences sharp pains in the right heel. He has a hard time climbing stairs. He cannot stand on his tiptoes. He is only able to maintain a fixed position for about 20 minutes and can comfortably lift about 15 pounds, but not repetitively. Employee had none of these back difficulties prior to the development of his symptoms leading up to February 7, 2005, and he reported none of these symptoms to any doctors.

Dr. Volarich's IME also contains employee's detailed history regarding his preexisting conditions. Dr. Volarich also noted evidence of some of employee's preexisting conditions in his medical records review and physical examination.

Ultimately, Dr. Volarich opined that as a result of the primary injury, employee is 35\% permanently partially disabled of the body as a whole referable to the lumbosacral spine. With respect to employee's preexisting conditions, Dr. Volarich provided the following ratings: 1) 15 % permanent partial disability of the body as a whole rated at the lumbosacral spine due to the underlying degenerative disc disease and degenerative joint disease; 2) 20\% permanent partial disability of the left upper extremity rated at the shoulder; 3) 15 % permanent partial disability of the left lower extremity rated at the knee; 4) 25 % permanent partial disability of the right lower extremity rated at the ankle; and 5) 20 % permanent partial disability of the left lower extremity rated at the ankle.

Dr. Volarich opined that the combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate injury. However, Dr. Volarich deferred to a vocational expert as to whether employee could compete in the open labor market.

Mr. England provided the only vocational expert opinion in this case. Mr. England reviewed employee's medical records and evaluated him in person on April 16, 2007.

Mr. England noted that employee was 51 years old when he evaluated him and stated that "[s]omeone his age who moves about with obvious physical problems and who has difficulty sitting or standing long would not be a very attractive potential employee to employers hiring people for entry-level service jobs." Mr. England was asked whether or not employee would be able to compete for employment in the open labor market to which he responded, "I think that if he can't function any better than he was at the time that I saw him, then I would think from a vocational standpoint he is going to be hard-pressed to maintain himself in a work setting." Finally, Mr. England concluded that "[i]f employee is not able to tolerate a regular, 40 -hour work week without lying down then I do not believe that he will ultimately be competitively employable."

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 separate opinion to provide a more thorough Second Injury Fund liability analysis.

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.

Employee credibly testified that he did not have problems with his back prior to the February 7, 2005, injury. Following the injury and surgery to his lumbar spine, employee experiences pain in his low back if he stands or sits for long periods of time and often has to lie down during the course of a week to relieve said pain.

Dr. Volarich reviewed employee's medical records, performed a physical examination of employee, and provided the only permanent partial disability rating for employee's primary injury. Dr. Volarich opined that as a result of employee's primary injury he is 35 % permanently partially disabled of the body as a whole rated at his lumbosacral spine.

We find that Dr. Volarich's permanent partial disability rating is fully supported by the evidence. Therefore, we find that the primary injury resulted in employee sustaining 35\% permanent partial disability of the body as a whole referable to his lumbosacral spine.

With respect to employee's preexisting disabilities, employee credibly testified as to the limiting nature of his left knee, left shoulder, and bilateral ankle conditions.

Dr. Volarich was the only medical expert that provided permanent partial disability ratings for employee's preexisting conditions. In fact, Dr. Volarich is the only medical expert that even addressed employee's preexisting conditions.

**Injury No. 05-011999**

Based upon the record as a whole, we find that Dr. Volarich's preexisting permanent partial disability ratings are fully supported by the evidence. Therefore, we find that at the time of the February 7, 2005, injury, employee suffered from:

1. 15% permanent partial disability of the body as a whole rated at the lumbosacral spine due to the underlying degenerative disc disease and degenerative joint disease.
2. 20% permanent partial disability of the left upper extremity rated at the shoulder.
3. 15% permanent partial disability of the left lower extremity rated at the knee.
4. 25% permanent partial disability of the right lower extremity rated at the ankle.
5. 20% permanent partial disability of the left lower extremity rated at the ankle.

Employee credibly testified as to the combination of his primary injury and preexisting disabilities. Specifically, employee testified that before February 7, 2005, he was able to keep the weight off his left leg by leaning against or sitting on a shelf. He was able to shift weight or take weight off his left knee and ankle. However, since the primary injury to his back, he is unable to make the same type of accommodations. Employee indicated that he is required to lie down not only to relieve pain associated with his back, but also to relieve the pain in his left knee and ankle.

Dr. Volarich opined that the combination of employee's primary disability and preexisting disabilities creates a substantially greater disability than the simple sum or total of each separate injury.

Mr. England concluded that "[i]f employee is not able to tolerate a regular, 40-hour work week without lying down then I do not believe that he will ultimately be competitively employable."

**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).

Based upon the expert opinions of Dr. Volarich and Mr. England, and together with employee's credible testimony that he has to lie down several times on a weekly basis, we find that employee is permanently and totally disabled as a result of his primary injuries combining with his preexisting disabilities.

We find that the primary injury resulted in 35 % permanent partial disability of the body as a whole referable to the lumbosacral spine, which amounts to 140 weeks of PPD benefits.

We find that employee reached maximum medical improvement on December 1, 2005 (the date employee was released from treatment by Dr. Gibbs). Therefore, going forward from December 2, 2005, the Second Injury Fund is liable for the difference between the PTD benefits and the PPD benefits for 140 weeks. However, because the PTD rate and the PPD rate are both $\ 270.46, the Second Injury Fund has no liability for this initial 140 week period. Thereafter the Second Injury Fund shall be liable for employee's PTD benefit of $\ 270.46 for the remainder of employee's life, or until modified by law.

The Commission affirms the award of the administrative law judge by this separate opinion.

The award and decision of Administrative Law Judge Carl Strange, issued January 24, 2011, 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 $14^{\text {th }}$ day of October 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

VACANT

Member

Attest:

Employee: Meredith Smith

Injury No. 05-011999

Dependents: N/A

Employer: W.W. Wood Products, Inc.

Additional Party: Second Injury Fund

Insurer: Indiana Lumbermens Mutual Insurance Company

Hearing Date: October 6, 2010

Checked by: CS/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. (See Findings)
4. Date of accident or onset of occupational disease? February 7, 2005
5. State location where accident occurred or occupational disease contracted: Stoddard 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: Employee was repetitively lifting heavy pieces of plywood and inserting them into the machine while he was bent at the waist and had an onset of low back pain.

1. Did accident or occupational disease cause death? N/A.
2. Parts of body injured by accident or occupational disease: Body as a whole referable to the lumbar spine.
3. Nature and extent of any permanent disability: (See Findings)
4. Compensation paid to date for temporary total disability: $\ 6,568.32
5. Value necessary medical aid paid to date by employer-insurer: $\ 43,359.04
6. Value necessary medical aid not furnished by employer-insurer: N/A.
7. Employee's average weekly wage: Not calculated.
8. Weekly compensation rate:

$\ 270.46 for permanent partial disability and permanent total disability.

1. Method wages computation: By Agreement.
2. Amount of compensation payable:

a. Employee's claim against the employer-insurer previously settled by compromise settlement agreement.

b. Employee awarded permanent total disability benefits from Second Injury Fund beginning December 1, 2008 (See Findings).

1. Second Injury Fund liability: Yes.
2. Future requirements awarded: N/A

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Scott Kolker.

On October 6, 2010, the employee, Meredith Smith, appeared in person and by his attorney, Scott Kolker, for a hearing for a final award. The Second Injury Fund was represented at the hearing by its attorneys Frank Rodman and Jonathan Linter. 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. On or about February 7, 2005, W.W. Wood Products, Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by Indiana Lumbermens Mutual Insurance Company.
2. On or about February 7, 2005, the employee was an employee of W.W. Wood Products, Inc. and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. The employer had notice of employee's accident.
4. The employee's claim was filed within the time allowed by law.
5. The employee's rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 270.46.
6. The employee's injury is medically causally related to the work injury on or about February 7, 2005.
7. The employer has furnished $\ 43,359.04 in medical aid to employee.
8. The employer has paid temporary total disability benefits for $241 / 7 weeks at a rate of \ 270.46 per week for a total of $\ 6,568.32.
9. The employee reached maximum medical improvement on December 1, 2005.
10. Second Injury Fund liability, if any, will begin on December 1, 2008.

1. Accident/Occupational Disease
2. Nature and Extent of Disability
3. Liability of the Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Medical Records of John J. Pershing VA Medical Center (Part 1);

B. Medical Records of John J. Pershing VA Medical Center (Part 2);

C. Medical Records of Scott R. Gibbs, M.D.;

D. Report of David Volarich, M.D.;

E. Medical Records of St. Francis Medical Center;

F. Report of James M. England, Jr.;

G. Deposition of David Volarich, M.D.;

H. Deposition of James M. England, Jr.;

I. Deposition of Scott R. Gibbs, M.D.; and

J. Stipulation for compromise settlement on Injury No. 05-011999.

- The test for finding the Second Injury Fund liable for permanent partial disability benefits is set forth in Section 287.220.1 RSMo as follows:

"All cases of permanent disability where there has been previous disability shall be compensated as herein provided. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a pre-existing permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment if the employee becomes unemployed, and the pre-existing permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, 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 pre-existing disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for."

- The test for finding the Second Injury Fund liable for permanent total disability is set forth in Section 287.220.1 RSMo., as follows:

If the previous disability or disabilities, whether from compensable injuries or otherwise, and the last injury together result in permanent total disability, the minimum standards under this subsection for a body as a whole injury or a major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of

itself; except that if the compensation for which the employee at the time of the last injury is liable is less than compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under Section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in Section 287.414.

- Section 287.020.7 RSMo. provides as follows:

The term "total disability" as used in this chapter shall mean the inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

- The phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v M-G Metals and Sales, Inc., 631 S.W.2d 919, 922(Mo.App.1992). 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. Reiner v Treasurer of the State of Missouri, 837 S.W.2d 363, 367(Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". Brown v Treasurer of the State of Missouri, 795 S.W.2d 479, 483(Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner at 365. See also Thornton v Haas Bakery, 858 S.W.2d 831,834(Mo.App.1993).

- Although the workers' compensation law must be liberally construed in favor of the employee, the burden is still on the claimant to prove all material elements of her claim. Melvies v Morris, 422 S.W.2d 335 (Mo. App.1968), and Marcus v Steel Constructors, Inc., 434 S.W.2d 475 (Mo.App.1968).

- Section 287.063.1 RSMo. in effect at the time of the occupational disease stated that "an employee is conclusively deemed to have been exposed to the hazards of an occupational disease when for any length of time, however short, he is employed in an occupation or process in which the hazard of the disease exists, subject to the provisions relating to occupational disease due to repetitive motion, as is set forth in subsection 7 of section 287.067, RSMo."

- In Spencer v SAC Osage Electric Coop, Inc., 302 S.W.3d 792 (Mo.App. W.D. 2010) \& Angus v Second Injury Fund,---S.W.3d--- WL3955449 (Mo.App. W.D. 2010), the court emphasized that without findings of fact to the contrary "[i]n a workers' compensation proceeding the ALJ cannot substitute his or her own opinion for uncontroverted medical evidence regarding causation." Elliott v. Kansas City, Mo., Sch. Dist., 71 S.W.3d 652, 657-58 (Mo. App. W.D. 2002) (citing Wright v. Sports Associated, Inc., 887 S.W.2d 596, 599 (Mo. banc 1994)).

- In Daly v. Powell Distributing, Inc. etal., ---S.W.3d--- WL3744092 (Mo.App. W.D. 2010), the court emphasized that the Commission has the power to believe or disbelieve an expert's testimony. Kuykendall v. Gates Rubber Co., 207 S.W.3d 694, 711 (Mo. App. S.D. 2006). However, disregarding uncontradicted expert's testimony as to causation must be supported by substantial and competent evidence. Id. at 712; see also Wright v. Sports Assoc., Inc., 887 S.W.2d 596, 600 (Mo. banc 1994), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). Moreover, the Commission cannot find there is no causation if the uncontroverted medical evidence is otherwise." Id.

Meredith Smith ("employee") has alleged that he had a work related injury to his low back on February 7, 2005 since he was repetitively lifting heavy pieces of plywood and inserting them into the machine while bent at the waist. The Second Injury Fund has disputed that employee had a work related accident or occupational disease and challenged employee's credibility based on a criminal conviction. At the time of the hearing, employee testified openly that he had been convicted of theft of government property for taking weapons parts and actually spent time in jail. At his deposition, Dr. David Volarich testified that he thought the condition was an occupational injury rather than acute injury since it was a result of repetitive lifting (Employee Exhibit G). Although the Second Injury Fund has argued that the employee is not credible, it has failed to provide sufficient evidence to discredit his testimony. Thus, I find that the employee is credible.

Based on the evidence, I find that employee has satisfied his burden of proof on the issue of occupational disease. I therefore find that employee has sustained an occupational disease to his low back arising out of and in the course of his employment.

Employee has requested an award of permanent total disability benefits against the Second Injury Fund. In support of his position, employee has offered the opinions of Dr. David Volarich and Vocational Rehabilitation Expert, James England. The Second Injury Fund has pointed to Mr. England's opinion that employee could be a gunsmith and the fact that employee completed his college degree in support of their position that employee is not permanently and totally disabled. If employee is permanently and totally disabled, the Second Injury Fund is only liable for permanent total disability benefits if the permanent disability was caused by a combination of the pre-existing disabilities and employee's last injury occurring on February 7, 2005. The Second Injury Fund is not liable if the last injury alone caused employee to be permanently and totally disabled.

On the question of whether employee is permanently and totally disabled as a result of employee's pre-existing injuries and the February 7, 2005 injury, it is significant to note that the

Second Injury Fund failed to provide any expert opinion that employee was capable of competing in the open labor market after the February 7, 2005 injury or that he was permanently and totally disabled as a result of the last injury alone. Instead the Second Injury Fund has relied on the evidence to discredit the opinions of Dr. Volarich and James England. Although Dr. Volarich did not opine that employee was permanently and totally disabled, he did refer the employee out for vocational rehabilitation and defer to a vocational expert for employability of the open labor market (Employee Exhibit G). Thus, James England's opinion provides the expert basis for employee's claim for permanent and total disability.

The Second Injury Fund's reliance on the fact that employee could be a gunsmith and he had completed his college degree in support of their position that employee is not permanently and totally disabled to contradict James England's opinion is misplaced. Although Mr. England's opinion indicates that the employee is qualified to do sedentary work based on the college degree and ability to be a gunsmith, he further opined that "if he is not able to tolerate a regular, 40 -hour work week without lying down then I do not believe that he will ultimately be competitively employable" (Employee Exhibit F). At his deposition, Mr. England testified that "if he continues to have to lie down periodically, I don't think he's going to be able to last in any kind of regular job setting, because that's just not something that's normally allowed in any work setting that I'm aware of" (Employee Exhibit H). At the time of the hearing, employee testified that he lies flat or in a recliner for two to four times a week. Additionally, employee was only able to complete his degree because he was allowed to move around and lie down between classes. Based on the evidence and my above findings, I find the opinions of Dr. Volarich and Mr. England to be credible and supported by the evidence. Further, I cannot substitute my own opinion for uncontroverted medical evidence and expert opinions.

After reviewing all of the evidence submitted, it is clear that employee's limitations are based on a combination of his primary injury and pre-existing injuries. Thus, I find that employee is permanently and totally disabled as a result of a combination of employee's primary injury and pre-existing injuries. Based on the stipulation of the parties, employee reached maximum medical improvement on December 1, 2005. Further, based on my above findings and the stipulation of the parties, I find that the Second Injury Fund's liability for permanent and total disability benefits began on December 1, 2008. The Second Injury Fund is therefore directed to pay to employee the sum of $\ 270.46 per week commencing on December 1, 2008, and said weekly benefits shall be payable during the continuance of such permanent total disability for the lifetime of employee pursuant to Section 287.200.1, unless such payments are suspended during a time in which employee is restored to his regular work or its equivalent as provided in Section 287.200.2. Since part of the Second Injury Fund's liability has accrued prior to the date of the award, the Second Injury Fund shall make a lump sum payment for the appropriate amount that is past due.

Scott Kolker, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

Date: $\qquad$

A true copy: Attest:

Ms. Naomi Pearson