Dean Vermillion v. The Layman Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-070639

Employee: Dean Vermillion

Employer: The Layman Company (Settled)

Insurer: American Interstate Insurance Company (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 section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds 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 section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated June 22, 2011. The award and decision of Administrative Law Judge Margaret Ellis Holden, issued June 22, 2011, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee 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 $10^{\text {th }}$ day of November 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Dean Vermillion

Injury No. 07-070639

Dependents: N/A

Employer: The Layman Company

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: American Interstate Insurance Company

Hearing Date: $\quad 3 / 15 / 11$

Checked by: MEH

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: $8 / 2 / 07$
5. State location where accident occurred or occupational disease was contracted: SHANNON COUNTY, MO
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 occurred or occupational disease contracted: CLAIMANT FELL.
12. Did accident or occupational disease cause death? NO Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: BODY AS A WHOLE
14. Nature and extent of any permanent disability: 17.5 %
15. Compensation paid to-date for temporary disability: $\ 14,111.68
16. Value necessary medical aid paid to date by employer/insurer? $\ 48,291.16

Employee: Dean Vermillion

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,150.31
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: BY AGREEMENT

1. Amount of compensation payable:

Unpaid medical expenses: N/A

0 weeks of temporary total disability (or temporary partial disability)

0 weeks of permanent partial disability from Employer

0 weeks of disfigurement from Employer

Permanent total disability benefits from Employer beginning N/A, for Claimant's lifetime

1. Second Injury Fund liability: Yes X No Open

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

weekly differential (\$353.68) payable by SIF for 70weeks, beginning 2/14/08, and, $\ 742.72 thereafter, for Claimant's lifetime

TOTAL: SEE AWARD

1. Future requirements awarded:

Said payments to begin immediately and to be payable and 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:

JOHN WISE

Employee: Dean Vermillion

Injury No. 07-070639

Dependents: N/A

Employer: The Layman Company

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Insurer: American Interstate Insurance Company

Hearing Date: $\quad 3 / 15 / 11$

Checked by: MEH

The parties appeared before the undersigned administrative law judge on March 15, 2011, for a final hearing. The claimant appeared in person represented by John Wise. The employer and insurer did not appear as the claim against the employer and insurer was previously settled. The Second Injury Fund appeared represented by Cara Harris and Eric Cummings.

The parties stipulated to the following facts: On or about August 2, 2007, The Layman Company was an employer operating subject to the Missouri Workers' Compensation Law. The employer's liability was fully insured by American Interstate Insurance Company. On the alleged injury date of August 2, 2007, Dean Vermillion was an employee of the employer. The claimant was working subject to the Missouri Workers' Compensation Law. On or about, August 2, 2007, the claimant sustained an accident which arose out of and in the course and scope of employment. The accident occurred in Shannon County, Missouri. The parties agreed that the hearing would be held in Springfield, Missouri, which it was. The claimant notified the employer of his injury as required by Section 287.420 RSMo. The claimant's claim for compensation was filed within the time prescribed by Section 287.430 RSMo. At the time of the accident, the claimant's average weekly wage was $\ 1,150.31, sufficient to allow a compensation rate of $\ 742.72 for temporary and permanent total disability compensation, and a compensation rate of $\ 389.04 for permanent partial disability compensation. Temporary disability benefits

Issued by DIVISION OF WORKERS' COMPENSATION Dean Vermillion

Injury No. 07-070639

have been paid by the employer and insurer to the claimant in the amount of 14,111.68. The

employer and insurer have paid medical benefits in the amount of 48,291.16. The attorney fee

being sought is 25%.

ISSUES:

1. The nature and extent of any permanent disabilities.

1. The liability of the Second Injury Fund for permanent total disability or enhanced

permanent partial disability.

FINDINGS OF FACT AND CONCLUSIONS OF LAW:

The claimant is 62 years old. He went to school until the 7th grade and does not have a

high school diploma. He has no other formal vocational training. He lives in Birch Tree,

Missouri.

The Layman Company operates a sawmill. The claimant operated saws as a sawyer.

This work was a heavy. He had worked as a sawyer for over 30 years prior to August 2, 2007.

Claimant testified that he was involved in an accident during his employment at The

Layman Company on August 2, 2007. At that time, he slipped while climbing down the steps of

a saw cab and fell approximately four feet to a concrete floor. He landed on his lower back and

shoulders and experienced an immediate onset of pain in his lower back and both shoulders.

Claimant received conservative treatment for his lower back complaints (including an MRI of the

lower back) but ultimately underwent surgery for his right shoulder injury on October 8, 2007.

That surgery was performed by Dr. David Rogers, at OSS Surgery Center. Claimant has never

returned to work since the surgery.

Both Dr. Rogers and Dr. Lennard released Mr. Vermillion from treatment in February

2008: Dr. Rogers with respect to the right shoulder and Dr. Lennard with respect to the lower

back. Dr. Rogers’ office note of February 13, 2008 indicates that Dr. Rogers intended to “release

WC-52-B1 (6-81)

Page 4

him to go back to work, and I think he is just going to have to be careful with how he uses the arm for awhile. I told him that it has been just a little over four months since his surgery, that many patients continue to see significant improvement in their arm for quite some time after the initial three or four month period, and hopefully he will continue to improve."

Dr. Lennard released claimant from treatment regarding his low back injury on February 4, 2008 and assessed disability ratings on September 9, 2008. Dr. Lennard assessed permanent partial disability of 15 % to the body as a whole with respect to the lower back, apportioning 5\% to the body as a whole to the work injury of August 2, 2007 and the remaining 10\% to his preexisting non-work related lumbar degenerative changes. Dr. Lennard also assessed disability of 20 % at the level of the right shoulder, apportioning that equally between the work related injury resulting in a rotator cuff tear and the remainder to his pre-existing degenerative changes. Dr. Lennard also assessed disability of 10 % at the level of the left shoulder, apportioning that equally between the work-related injury and the non-work related pre-existing degenerative changes. Dr. Lennard assessed permanent restrictions as follows: "permanent lifting restrictions of 40 lbs with occasional bending (low back) and should avoid prolonged and repetitious overhead use of the right upper extremity. He will have no limitations for his left shoulder."

Claimant described substantial problems with his lower back prior to August 2, 2007. He had treated for those complaints with his personal physician, Dr. Opinaldo, since February 2003. Dr. Opinaldo's treatment records reflected long term treatment for chronic low back pain and degenerative joint disease. Her record entries reflect prescriptions of pain medication, increasing in dosages, from 2003. The claimant described this back pain as a constant sharp pain in his lower back on the right side. He testified that he did not miss time from work because of his low back pain prior to August 2, 2007, because he took hydrocodone two times per day because of his back pain. He would take it once in the morning before work and again in the middle of the day.

He said that if he did not take the hydrocodone, he would have been unable to perform his job as a sawyer. His employer was aware he was taking the medication and allowed him to do this while working.

Claimant described that he presently has substantial ongoing complaints involving his lower back and right and left shoulders. He experiences sharp pains in both shoulders. The pain starts in his bicep and travels up to his shoulder and across his neck. This occurs two to three times a day and lasts for approximately 30 minutes at a time. He also has difficulty raising his arms above his head. He has a grinding sensation in each shoulder and also has problems reaching behind his back. He cannot lift over 20 pounds because of the problems with his shoulders, as well as his back.

With respect to his lower back, he experiences a constant pain, and sharp pains two to three times per day, which will sometimes last all day. The pain is located below his belt and to both sides of his back. Claimant can sit for 15 to 20 minutes, stand for 20 minutes, and walk for approximately 15 minutes before his back pain forces him to stop those activities. He is unable to do his yard work and must hire someone to do it for him and can perform little household functions. His girlfriend has to do his laundry. He also has had to give up hobbies of riding horses and hunting because of problems with his low back. Although claimant had to take two hydrocodone a day prior to August 2, 2007, he now takes four per day because of the pain in his low back and right and left shoulders.

Claimant has not worked since October 9, 2007 and felt he was unable to perform any job eight hours per day, five days per week, because of the pain and problems in his lower back and right and left shoulders.

On April 25, 2008, Dr. Alan Parmet conducted an independent medical examination of claimant. He testified by deposition. Dr. Parmet discussed, at length, claimant's long standing

Issued by DIVISION OF WORKERS' COMPENSATION Dean Vermillion

Injury No. 07-070639

low back and degenerative joint disease which existed prior to August 2, 2007. He also discussed the findings from an August 20, 2007, MRI of claimant's lumbar spine. Dr. Parmet explained that the degenerative findings disclosed on the 2007 MRI indicated that claimant had long standing degenerative changes would have existed long before the accident of August 2, 2007. Dr. Parmet also identified a number of significant findings on his physical examination. He indicated he found a moderate to severe loss of range of motion in the right and left shoulders. He also noted spasms in the lumbar spine. Dr. Parmet explained that a spasm was an uncontrolled sustained contraction of muscles. He indicated it was quite common for people with chronic back pain to have spasms. He noted that "when a spasm is present it very much supports subjective complaints of back pain and muscle aches." He noted a spasm is an objective finding. He also identified a moderate loss of range of motion in the lumbar spine.

Dr. Parmet assessed permanent partial disability ratings, as follows: 40% at the level of the right shoulder and 5% to the body as a whole for the low back injury attributable to the accident of August 2, 2007. He assessed disability of 15% to the body as a whole for the prior lower back problems. Dr. Parmet further opined that Mr. Vermillion's problems with his low back constituted a hindrance or obstacle to employment prior to August 2, 2007. Dr. Parmet concluded that claimant was permanently totally disabled as a result of the combination of the August 2, 2007 injury and pre-existing disabling conditions.

Dr. Parmet assessed a number of restrictions. He explained that most of his restrictions resulted from a combination of claimant's occupational injury and prior problems:

Q. The restriction of no lifting over 40 pounds, is that restriction because of the right shoulder and low back?

A. Yes.

Q. And the restrictions with respect to the low back, is that because of this

low back condition in its entirety?

A. It's the whole low back condition with the sciatica and the degenerative changes and the disk bulge.

Q. So that would be the low back condition caused by the accident of August 2, 2007 combined with the prior problems?

A. That's correct.

Q. And when you say no bending, squatting, or kneeling, that is because of the combination of the August 2, 2007 back injury and the prior degenerative problems?

A. That's correct.

Phil Eldred, a certified vocational rehabilitation counselor, examined the claimant on March 24, 2009, at the claimant's request. In addition to his interview of the claimant he reviewed medical records and performed testing. Mr. Eldred testified that the restrictions assessed by both Dr. Lennard and Dr. Parmet place Mr. Vermillion in the light exertional level. He also explained the restrictions assessed by Dr. Parmet placing claimant in that exertional level arose from a combination of his injury of August 2, 2007 and prior health problems. Dr. Lennard did not address that issue one way or the other but, given his apportion of disability, Mr. Eldred felt it a reasonable assumption that Dr. Lennard would also apportion his restrictions between the occupational injury and prior degenerative problems. Mr. Eldred concluded that Mr. Vermillion's low back problem constituted a hindrance or obstacle to employment or reemployment prior to August 2, 2007. Mr. Eldred ultimately concluded that Mr. Vermillion would be unable to perform his past work, would not be employable in the open labor market, was unlikely to be hired by any reasonable employer in the normal course of business for

competitive gainful employment and was permanently totally disabled as a result of a combination of the occupational injury of August 2, 2007 and prior health problems. Mr. Eldred concluded that claimant would not be totally disabled looking at the injury of August 2, 2007, in isolation. He testified claimant was permanently and totally disabled as a result of the August 2, 2007, injury combined with his pre-existing low back condition. This conclusion was based on claimant's physical condition and limitations from the last injury, his pre-existing condition, his limited education, his age, his performance on vocational testing, lack of ability to be retrained, and the jobs available in labor market.

James England, a certified vocational rehabilitation counselor, reviewed medical records, depositions, and vocational testing performed by Mr. Eldred, at the request of the Second Injury Fund. Mr. England also testified by deposition.

Mr. England testified that the claimant is not capable of returning to his job as a sawyer. He did not find the claimant had any transferable skills. He found the claimant was limited to the light or sedentary levels of exertion based on the 40 pound lifting restriction. He said there were probably some jobs in the medium level that would not reach the maximum lifting level of 50 pounds for that level of work. Mr. England concluded "a guy who is 61 and has limited education, I think his best alternative work would be entry level kinds of service employment." These would include such jobs as courier, delivering small packages, retail sales clerk, security guard, and cleaning offices. Mr. England testified that he believed that the claimant is currently employable in the open labor market and that there are jobs in the national economy that the claimant would be physically and mentally capable of performing. On cross-examination he testified that "I don't really know and I am not sure how far or how long it would take him to get to various places and I certainly haven't looked at Birch Tree in particular, to know what is available directly in that town."

Issued by DIVISION OF WORKERS' COMPENSATION Dean Vermillion

Injury No. 07-070639

1. The nature and extent of any permanent disabilities.

I find that the claimant has sustained a permanent partial disability of 17.5% to the body as a whole as a result of the work injury of August 2, 2007.

1. The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability.

Section 287.220.1 RSMo states that when an employee has a pre-existing permanent partial disability sufficient to constitute a hindrance or obstacle to employment and subsequently sustains a compensable work injury resulting in additional disability, and these disabilities combine to create an additional permanent disability, the employer, at the time of the last injury, shall be responsible only for the degree or percentage of disability resulting from the last injury. After the disability from the last injury, standing alone, has been determined, the degree of disability attributable to all the injuries sustained is determined. The degree of disability from the last injury is deducted and the Second Injury Fund is liable for the balance. If the last injury, combined with prior injuries or disabilities, results in the claimant being unable to compete in the open labor market, and is thus permanently and totally disabled, the minimum standards for disability do not apply. If the claimant is found to be permanently and totally disabled, the Second Injury Fund is liable for benefits after the completion of payment by the employer for the disability due to the last injury.

I find that prior to August 2, 2007; claimant had injuries that constituted a hindrance or an obstacle to employment; namely, low back pain requiring him to take narcotic pain medication in order to work. As a result of the last injury of August 2, 2007, he sustained an injury to his lower back and shoulders; the extent of disability of claimant for the last injury of 17.5% of the body as a whole as reflected in the Stipulation for Compromise Settlement entered into by the claimant and employer and insurer.

Based upon the testimony of Dr. Parmet and Mr. Eldred, I find that the claimant is unable to compete in the open labor market as a result of the combination of these prior injuries and the injury to his back that is the subject of this claim. Therefore, I find that the Second Injury Fund is liable for permanent total disability. The claimant settled his claim against the employer and insurer for a total of 70 weeks representing 17.5 % of the low back at the 400 -week level. I find that the claimant was at maximum medical improvement as of February 14, 2008. Accordingly, the Second Injury Fund shall pay a weekly differential of $\ 353.68 for 70 weeks beginning February 14, 2008, and then $\ 742.72 weekly for claimant's lifetime.

Attorney for the claimant, John Wise, is awarded an attorney fee of 25 %, which shall be a lien on the proceeds until paid. Interest shall be paid as provided by law.

Date: $\underline{6 / 22 / 11}$

Made by: /s/Margaret Ellis Holden

Margaret Ellis Holden

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

/s/ Naomi Pearson

Naomi Pearson

Division of Workers' Compensation