Linda Beard v. Hy-Vee Foods

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. ${ }^{1}$ We have reviewed the transcript, considered the parties' stipulations and read the parties' briefs. We find that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we issue this final award and decision affirming the September 20, 2010, award and decision of the administrative law judge.

The administrative law judge heard this matter on July 19, 2010. For reasons unknown, the court reporter responsible for creating the hearing record was unable to produce a transcript of some of the proceedings. Most significantly, the court reporter was unable to produce a transcript of employee's testimony.

On the day of the hearing, employee settled her claim against employer/insurer and prosecuted her claim against the Second Injury Fund. On September 20, 2010, the administrative law judge issued her award of permanent total disability against the Second Injury Fund. The Second Injury Fund filed an Application for Review alleging the administrative law judge erred in determining employee was permanently and totally disabled because:

1) the administrative law judge did not consider that employee returned to work after the primary injury; 2) the administrative law judge did not consider that employee continued to work overtime; 3) the administrative law judge relied upon alleged preexisting neck complaints that were not shown to be hindrances or obstacles to employment; and, 4) the administrative law judge failed to consider the impact of a subsequent work injury.

We adopt the administrative law judge's factual findings except as modified herein. To avoid the delay and expense of re-trying the claim, employee and the Second Injury Fund jointly submitted Stipulated Facts, which they agree accurately recount the portion

[^0] [^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2004, unless otherwise indicated.

of the hearing for which we have no record. In accordance with the parties' stipulation, we find as follows:

1. Linda Beard was 49 years old as of the date of hearing.
2. On the date of injury, Linda Beard was employed by Hy-Vee as a baker.
3. Ms. Beard's responsibilities as a baker for Hy-Vee included making doughnuts, assisting with bread baking, unloading trucks, and carrying bags of flour and icing.
4. On July 2, 2005, toward the end of her shift, while putting away utensils, Ms. Beard slipped on water on the floor.
5. Ms. Beard used her right arm to catch herself and fell on her right elbow and right buttock.
6. Ms. Beard told her co-workers that she was okay and left.
7. During her hour long ride home, Ms. Beard began feeling stiff.
8. Ms. Beard was home for two days with right shoulder, right wrist, right knee, right ankle, and right hip pain.
9. Ms. Beard went to a medical center in Osage Beach where an x-ray of her foot was taken and she was allowed to return to work after a few day [sic] of taking it easy.
10. Ms. Beard did return to work following the last injury of July 5, 2005, although stated that she had some difficulty unloading the trucks and putting things away.
11. Ms. Beard did work some overtime following the last injury of July 5, 2005.
12. In October of 2005, Ms. Beard noticed her left arm getting weaker as the result of an inability to fully use her right arm.
13. On December 13, 2005, Ms. Beard was assisting another employee in lifting something onto a table when she felt intense pain in her right shoulder.
14. Ms. Beard was driven to the emergency room.
15. Ms. Beard did not return to work after the December 2005 lifting injury.
16. Ms. Beard was eventually diagnosed with a likely superior labral tear in her right shoulder by Dr. Leslie and surgery was recommended.
17. Ms. Beard has no insurance coverage and was, therefore, unable to have the recommended surgery.

1. Ms. Beard did receive treatment for her right ankle with Dr. Elliot who referred her for physical therapy and prescribed Naprosyn.
2. Ms. Beard received additional treatment in the form of injections of Kenalog and Lidocaine into the right shoulder from Dr. Haupt.
3. Pre-existing disabilities alleged by Ms. Beard include her cervical spine and mental issues pertaining to depression.
4. Ms. Beard described being in two motor vehicle accidents, in 1998 and 2003, respectively, and sustaining whiplash injuries in each accident.
5. Ms. Beard also described needing mental health medications on several occasions prior to 2005.
6. Ms. Beard stated she missed work on one occasion prior to the primary injury due to her mental health symptoms following her son's death.
7. Ms. Beard stated she was under no restrictions due to mental health conditions at the time of her injury.
8. Ms. Beard was not under the active care of a psychologist or psychiatrist at the time of her injury.
9. Dr. Volarich found a disc bulge at C6-7 and rated Ms. Beard's permanent disability as the result of her whiplash injuries at 20 percent of the body.
10. Dr. Volarich rated Ms. Beard's permanent disability of her right shoulder at 60 percent of the right upper extremity.
11. Dr. Stillings, a psychiatrist, found Ms. Beard's permanent disability as a result of her "pre-existing psychiatric disorders/disabilities" to total 20 percent of the body.
12. Dr. Stillings went on to state that he believed Ms. Beard to be permanently and totally disabled as the result of her "psychiatric conditions/disabilities due to her primary injury combine[d] synergistically with her pre-existing conditions/disabilities which are a hindrance or obstacle to employment"
13. Mr. Eldred, a certified rehabilitation counselor, found Ms. Beard to be permanently and totally disabled as the result of her July 5, 2005, accident and injury, "combined with her pre-existing medical injuries and conditions."
14. Mr. Cordray, a certified rehabilitation counselor, determine [sic] Ms. Beard to be employable in the open labor market
15. Dr. Hughes, a psychiatrist, did not find any psychiatric disability as the result of Ms. Beard's July 5, 2005, work injury, but he did find Ms. Beard to have preexisting

bipolar or dysthymic disorder as well as chronic adjustment disorder.

1. Ms. Beard described her current limitations in her right shoulder, right knee, and right ankle, as well as her limited neck movement and her depression.
2. Ms. Beard stated that she does not believe that she is capable of returning to the open labor market.

We find the opinions of Dr. Volarich, Dr. Stillings, and Mr. Eldred to be the most credible medical, psychiatric, and vocational opinions, respectively.

Dr. Volarich is of the opinion that employee sustained a 60\% permanent partial disability of the right upper extremity, a 20 % permanent partial disability of the body as a whole referable to her lumbrosacral spine, a 5 % permanent partial disability of the body as a whole referable to the cervical spine, and a 20 % permanent partial disability of the left lower extremity rated at the knee. Dr. Haupt evaluated employee for the purpose of assessing the condition of her right shoulder. He believed that employee sustained only a 3 % permanent partial disability as a result of the work injury.

The administrative law judge found that employee sustained a 9\% permanent partial disability of the body as a whole as a result of the work accident. Neither employee nor the Second Injury Fund challenged the administrative law judge's findings. We adopt the administrative law judge's finding that employee sustained a 9\% permanent partial disability of the body as a whole due to her July 2005 work fall.

Section 287.200.1 RSMo sets forth the liability of the Second Injury Fund. As regards a claim for permanent total disability, the section provides:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed... receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability...caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, ...[and] [i]f the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability...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 employer at the time of the last injury is liable is less than the 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 287.141.

Although we identified four allegations of error in the Second Injury Fund Application for Review, the Second Injury Fund has abandoned two of the allegations by not addressing them in its brief. It appears the Second Injury Fund preserves only the first and fourth allegation identified in the Preliminaries section, *supra*: specifically, employee was able to work after her July 2005 primary injury and employee suffered a new work injury in December 2005. We address these two points.

The Second Injury Fund makes much of employee's return to work after the July 2005 injury. Employee's failed attempt to continue working does not convince us that employee was able to compete for employment in the open labor market, particularly where the return to work failed due to employee's physical inability to perform her work duties.

Dr. Volarich and Dr. Haupt were in agreement regarding the nature of the lifting incident of December 2005. Both testified that the lifting incident was just an irritation or aggravation of the shoulder injury caused by the July 2005 work fall. We find that the December 2005 incident did not cause a new shoulder injury.

#### Generally

"Section 287.220 creates the Second Injury Fund and sets forth when and the amount of compensation that shall be paid from the fund in 'all cases of permanent disability where there has been previous disability.'" *Hughey v. Chrysler Corp.*, 34 S.W.3d 845, 847 (Mo. App. 2000) (citations omitted). "In order to be entitled to Fund liability, the claimant must establish either that (1) a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or (2) the two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself." *Gassen v. Lienbengood*, 134 S.W.3d 75, 79 (Mo. App. 2004) citing *Karoutzos v. Treasurer of State*, 55 S.W.3d 493, 498 (Mo. App. 2001).

#### Preexisting measurable permanent disability

"Liability of the Second Injury Fund is triggered only 'by a finding of the presence of an actual and measurable disability at the time the work injury is sustained.'" *E