William Dyson v. D & D Distributors

leaves us guessing as to what the administrative law judge believed was the extent of permanent partial disability referable to employee's right ankle condition.

After carefully reviewing employee's testimony, the opinions of Dr. Volarich, and the treatment record, we find that employee suffered a 7.5 % permanent partial disability of his right ankle at the time of the January 7, 2008, primary injury. Section 287.220.1 provides, in relevant part, as follows:

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, and the preexisting 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 ...

Employee's preexisting right ankle condition constitutes a preexisting permanent partial disability of "a major extremity only," and thus must meet the 15 % threshold under the foregoing section. Because employee's 7.5 % preexisting permanent partial disability of the right ankle is insufficient to trigger Second Injury Fund liability for permanent partial disability, we affirm the administrative law judge's finding that employee failed to meet his burden of proof on the issue of Second Injury Fund liability.

We supplement the award of the administrative law judge with the foregoing findings and comments. In all other respects, we affirm the award.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued June 14, 2011, is attached hereto and incorporated herein to the extent not inconsistent with our findings in this supplemental opinion.

Given at Jefferson City, State of Missouri, this $8^{\text {th }}$ day of December 2011.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: William Dyson

Injury No.: 08-002266

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Injury to a Work

Employer: D\&D Distributors (previously settled)

Additional Party: Second Injury Fund (SIF)

Disability of Work

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Travelers (previously settled)

Hearing Date: March 28, 2011

Checked by: KMH

1. Are any benefits awarded herein? No
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: January 7, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 was moving barrels of beer when he twisted and injured his lumbar, thoracic, and cervical spine.
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: lumbar, thoracic, and cervical spine
14. Nature and extent of any permanent disability: 15 % PPD to the neck, previously paid by Employer
15. Compensation paid to-date for temporary disability: $\ 3,289.23
16. Value necessary medical aid paid to date by employer/insurer? $\ 7,984.52

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 639.03 / \ 389.04
4. Method wages computation: Stipulation

1. Amount of compensation payable:

60 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: No

TOTAL:

NONE

1. Future requirements awarded: None

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:

James Haupt

Employee: William Dyson

Departments: $\mathrm{n} / \mathrm{a}$

Employer: D\&D Distributors (previously settled)

Additional Party: SIF (only)

Insurer: Travelers (previously settled)

Injury No.: 08-002266

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter March 28, 2011. William Dyson (Claimant) was represented by attorney James Haupt. The Second Injury Fund (SIF) was represented by Assistant Attorney General Da-Niel Cunningham. D\&D Distributors (Employer) and Claimant previously settled the primary claim in this matter.

The parties stipulated to the following:

1. Claimant was injured by accident January 7, 2008, while in the course and scope of his employment for Employer.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was fully insured by Travelers.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's average weekly wage was sufficient to entitle him to a PPD rate of $\ 389.04.
6. Claimant and Employer entered into a compromise lump sum settlement on December 30, 2008. The settlement was approved by the Division and represents 15\% PPD to the neck.

The parties stipulated the issue to be resolved by trial is the nature and extent of SIF liability.

Based upon the competent and substantial evidence, I find:

1. Claimant is a 34 year-old male who is a warehouseman and driver for Employer. He loads and unloads approximately 180 half barrels and 2,500-3,500 cases of beer each day. He has worked for Employer for seven years. He sustained a compensable injury to his neck on January 7, 2008, when he was lifting a barrel of beer. He had extensive physical therapy, trigger point injections, and an MRI, the results of which are unknown.
2. Claimant continues to have pain in his neck and low back when standing or sitting for any length of time. He has pain in his right hip. He has no permanent restrictions and returned to work full time, but had difficulties. Some days he left work early due to pain in his neck.
3. In 2008 Claimant settled this case with Employer for 15 % PPD to his neck.
4. Claimant injured his right foot in 2001 when he slipped in some mud and twisted his foot backwards. He was treated with steroid injections and physical therapy. He continues to have pain in his ankle when standing for long periods of time, when squatting, and with barometric pressure changes. The doctor prescribed orthotics, but they did not help because he needs support at the ankle. He testified he can't wear tennis shoes, and wears boots for ankle support. Claimant testified he missed a few days of work each month for the year after he was released from treatment.
5. Claimant testified his foot injury and neck injury combine to make it more difficult for him to climb in and out of the trucks at work. When he uses his right shoulder to lift himself into the truck, he has increased pain in his right foot. When he uses his left arm, he has increased low back pain. Claimant puts more weight on his left side and uses his low back and left shoulder more when lifting. His neck hurts when he drives the tow motor. When he walks all day, his foot hurts.
6. Claimant's medical expert, Dr. Volarich, examined him and rated his disabilities in 2009. He rated Claimant's disabilities at 15 % of the thoracolumbar spine due to a strain/sprain, and 20 % of the right ankle due to a strain and tendonitis. He opined the two injuries have a synergistic effect because the back injury limits his ability to stay in a prolonged fixed position which makes driving difficult; and the ankle injury makes it difficult to work the gas pedal.
7. Claimant is credible.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find Claimant has not established a right to recover PPD benefits from the SIF.

§287.220(1) RSMO (2005) requires the prior disabilities to equal a minimum of 15 % PPD of the extremity in order to trigger SIF liability. Dr. Volarich rated Claimant's ankle at 20\% PPD, but had no medical records to review. He diagnosed Claimant with a strain and tendonitis. The medical records in evidence show minimal treatment and a diagnosis of ankle strain. Based on my review of the medical records, I find Claimant's prior ankle injury does not meet the minimum statutory threshold, and there is no SIF liability.