Ellia Eaton v. Cameron Veterans Home

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 01-046284

Employee: Ellia Eaton

Employer: Cameron Veterans Home

Insurer: Missouri Office of Administration (CARO)

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

This cause has been 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, heard oral argument, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ) dated December 28, 2010.

On November 11, 2000, employee injured her lower back while attempting to lift a patient at work. On May 4, 2001, employee reinjured her lower back at work while assisting a coworker moving a patient. Employee filed two separate claims for compensation for the respective work injuries.

With respect to the November 11, 2000, injury, the ALJ awarded employee 22.5\% permanent partial disability benefits rated at the body as a whole. The ALJ denied employee's claim for the May 4, 2001, injury because he found that the injury did not result in any permanent disability.

Employee appealed the ALJ's denial of her claim for benefits for the May 4, 2001, injury.

The findings of fact and stipulations of the parties were accurately recounted in the award of the ALJ and, to the extent they are not inconsistent with the findings listed below, they are adopted and incorporated by the Commission herein.

Dr. Swaim saw employee on May 18, 2009, for the purpose of an independent medical evaluation. Dr. Swaim opined that employee sustained 35\% permanent partial disability of the body as a whole attributable to her low back injury of November 11, 2000, and 5 % permanent partial disability of the body as a whole attributable to her low back injury of May 4, 2001.

Dr. Swaim attributed the majority of employee's permanent partial disability to the November 11, 2000, injury because the objective testing by CT and MRI scans showed the broad-based disc protrusion at L4-L5 predated the May 4, 2001, injury. However, Dr. Swaim went on to opine that both the November 11, 2000, injury and the May 4, 2001,

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2000 unless otherwise indicated.

Injury No.: 01-046284

Employee: Ellia Eaton

injury were substantial contributing factors causing the necessity for Dr. Wilson's surgery and employee's failed back syndrome.

Dr. Swaim deferred to a vocational expert regarding employee's ability to compete in the open labor market.

Dr. Wilson, the treating physician, opined that employee sustained 12\% permanent partial impairment of the body as a whole, but did not apportion the disability between the two injuries. Dr. Wilson provided this opinion on April 17, 2002, and was not deposed.

The only vocational opinion in the case was provided by Ms. Titterington, who opined that employee is unable to compete in the open labor market. Ms. Titterington attributed employee's inability to compete in the open labor market to the combination of her November 11, 2000, injury, her May 4, 2001, injury, her low academic skills, her lack of transferable job skills, and her difficulty in attending work daily.

With respect to medical causation and the nature and extent of employee's permanent partial disability attributable to the May 4, 2001, injury, we find Dr. Swaim's opinions more credible than Dr. Wilson's. Dr. Swaim performed a thorough independent medical evaluation, prepared a report based on that evaluation, fully explained his opinions by way of deposition testimony, and assigned a clear apportionment of disability between the November 11, 2000, and May 4, 2001, injuries. Dr. Wilson, on the other hand, provided a 12 % permanent partial impairment rating without specifying whether said 12 % was a combination of the November 11, 2000, and May 4, 2001, injuries, or if it was all solely attributable to one of the injuries. In addition, Dr. Wilson's use of the "permanent partial impairment" standard is misplaced as Missouri Workers' Compensation Law requires findings of "permanent partial disability." Finally, unlike Dr. Swaim's opinions, Dr. Wilson's opinions were not supported by deposition testimony.

Based upon Dr. Swaim's expert opinion, employee's testimony, and the record as a whole, we find that as a result of the May 4, 2001, work injury, employee sustained 5\% permanent partial disability of the body as a whole. We further find that employee's November 11, 2000, injury resulted in 22.5 % permanent partial disability of the body as a whole and that said preexisting disability posed a hindrance and obstacle to her employment or reemployment.

Dr. Swaim opined in his May 18, 2009, report that "[employee] has most likely reached maximum medical improvement from treatment of the occupational injuries of November 11, 2000 and May 4, 2001...." Based on this opinion, we find that employee reached maximum medical improvement on May 18, 2009.

Employee contends that she is permanently and totally disabled as a result of his May 4, 2001, injury combining with her preexisting disabilities and that the Second Injury Fund should be liable for his permanent total disability benefits.

In evaluating cases involving preexisting disabilities, the employer's liability must first be considered in isolation before determining Second Injury Fund liability. 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.

We have previously found that as a result of the primary injury employee sustained 5\% permanent partial disability; and that she had 22.5 % preexisting permanent partial disability of the body as a whole. Both of these injuries were to the lumbar spine and we find, based on Dr. Swaim and Ms. Titterington's opinions, that they combine to produce greater overall disability than the simple arithmetic sum of the separate disabilities.

In determining whether employee is permanently and totally disabled, we turn to § 287.020.7 RSMo, which defines "total disability" as the "inability to return to any employment...." The Court in Gordon v. Tri-State Motor Transit Company, 908 S.W.2d 849 (Mo.App. 1995) provided a test for determining permanent total disability:

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.

Id. at 853 (citations omitted).

Based upon the medical records, employee's testimony, and the uncontradicted opinions of Dr. Swaim and Ms. Titterington, we believe that no employer would reasonably be expected to hire employee in her present condition. We conclude employee is permanently and totally disabled due to the combination of the disability from her May 4, 2001, injury with her preexisting disabilities. The Second Injury Fund is liable to employee for permanent total disability benefits.

We reverse the award of the ALJ. Employee is permanently and totally disabled due to the combination of the disability from her May 4, 2001, work injury with her preexisting disabilities.

Employer is ordered to pay to employee 5\% PPD benefits attributable to the primary injury, or 20 weeks ( $=.05 \times 400$ weeks). Beginning May 19, 2009, and continuing for 20 weeks, the Second Injury Fund shall pay to employee the difference between employee's PTD rate and her PPD rate. Because both employee's PPD rate and PTD rate are $\ 229.07, there is no difference for the Second Injury Fund to cover for the 20 weeks attributable to the last injury. However, after said 20 weeks, the Second Injury Fund shall be liable for employee's weekly PTD benefit of $\ 229.07 for the remainder of employee's life, or until modified by law.

The award and decision of Chief Administrative Law Judge Nelson G. Allen issued December 28, 2010, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

Elizabeth Diane Baker and Phillip Burdick, Attorneys at Law, are allowed a fee of 25\% of the benefits awarded for necessary legal services rendered to employee which shall constitute a lien on said compensation.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $1^{\text {st }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

DISSENTING OPINION FILED

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

I did not participate in the December 14, 2011, oral arguments in this matter. However, I have reviewed the evidence, read the briefs of the parties, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the award and decision of the administrative law judge should be affirmed. Therefore, I adopt the award and decision of the administrative law judge as my decision in this matter.

Because the Commission majority has decided otherwise, I respectfully dissent.

James Avery, Member

Employee: ELLIA EATON

Injury No. 01-046284

Employer: DEPARTMENT OF PUBLIC SAFETY - MISSOURI VETERANS' HOME

Insurer: MISSOURI OFFICE OF ADMINISTRATION (CARO)

Hearing Date: SEPTEMBER 2, 2010 \& OCTOBER 7, 2010

Checked by: NGA

FINDINGS OF FACT AND RULINGS OF LAW

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: May 4, 2001
5. State location where accident occurred or occupational disease was contracted: Cameron, Clinton 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 occurred or occupational disease contracted: Employee was assisting a patient walking and strained her back.
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: Back.
14. Nature and extent of any permanent disability: None.
15. Compensation paid to-date for temporary disability: $\mathbf{\$ 7 , 4 2 5 . 2 5}$

1. Value nec