(Modifying Award and Decision of Administrative Law Judge by Separate Opinion)
Injury No.: 06-032639
Employee: James Thruston
Employer: Environmental Engineering, Inc. (Settled)
Insurer: Missouri Employers Mutual Insurance Co. (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 $\S 287.480 RSMo. { }^{1}$ We have reviewed the evidence and briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the April 18, 2011, award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.
We agree with the administrative law judge's conclusion that employee's primary injury combined with his preexisting disabilities to cause a greater overall disability than the sum of the disabilities. However, we disagree with the administrative law judge's finding that employee's deep vein thrombosis (DVT) did not pose a hindrance or obstacle to employee's employment or reemployment and, therefore, find that the administrative law judge's award of 12.725 weeks of enhanced permanent partial disability benefits against the Second Injury Fund is insufficient.
Dr. Volarich, the only medical expert to render an opinion regarding employee's DVT, opined that employee is 15 % permanently partially disabled of the body as a whole as a result of this venous condition.
Dr. Volarich testified that DVT is a condition in which veins are weakened and lose their elasticity, thus rendering them incompetent. An overarching effect of DVT is fatigue. Therefore, patients suffering from DVT typically struggle to work on their feet all day because of pain and swelling in the affected leg.
Employee testified that he had blood clots in his leg that caused multiple pulmonary embolisms, which are an inherent risk for patients suffering from DVT. Due to the blood clots, employee was prescribed Coumadin, which is an anti-coagulant he has to take for the rest of his life. Coumadin is a blood thinner, causing easy bruising and excessive bleeding, and, therefore, creating another employment risk.
In 1998 or 1999, employee was working when a piece of pipe slipped out of chains and hit his right leg. The incident caused his calf to swell due to internal bleeding. Employee had to take off work for three days to recover from the injury and his calf has never returned to its former condition. Following this injury to his calf, employee has struggled to complete ordinary tasks of his job such as climbing ladders and walking up and down stairs. While completing tasks at work, employee has to walk around frequently to keep the blood in his leg from pooling up.
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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005 unless otherwise indicated.
Dr. Volarich opined that employee's heart valve defect combined with the DVT to have a significant effect on employee's endurance. The DVT causes employee's heart to work harder in pumping blood throughout the body. Because his DVT condition inhibits normal blood flow to the lungs, employee suffers from shortness of breath and fatigue.
The administrative law judge did not provide any support for his conclusion that employee's DVT did not and does not pose a hindrance or obstacle to employee's employment or reemployment. Based upon the aforementioned evidence, which was uncontradicted, we disagree with the administrative law judge's unsupported conclusion and find that employee's DVT does pose a hindrance or obstacle to his employment.
While we find that employee's DVT poses an actual and measurable hindrance or obstacle to his employment, we find that Dr. Volarich's rating of 15\% permanent partial disability of the body as a whole is slightly excessive. We find, based upon employee's testimony, the medical evidence, and the record as a whole, that a more appropriate rating for employee's preexisting DVT is 12.5 % permanent partial disability of the body as a whole.
We conclude that employee's primary injury ( 22.5 % PPD of the right elbow, or 47.25 weeks) combined with his preexisting disabilities ( 20 % PPD of the body as a whole referable to the aortic insufficiency, or 80 weeks and 12.5 % PPD of the body as a whole referable to the DVT, or 50 weeks) to result in a permanent partial disability enhancement of 10 % above the simple arithmetic sums of the separate disabilities, or 17.725 weeks of benefits $(=.10$ * $(47.25+80+50))$.
The Second Injury Fund is liable for employee's 17.725 weeks of enhanced permanent partial disability benefits.
The award and decision of Chief Administrative Law Judge Robert J. Dierkes, as modified herein, is attached and incorporated by 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 $7^{\text {th }}$ day of December 2011.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
William F. Ringer, Chairman
Alice A. Bartlett, Member
NOT SITTING
Curtis E. Chick, Jr., Member
Attest:
Secretary