Mary Grayson v. DaimlerChrysler Corporation

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

factors in causing the triggering of the right hand thumb, long and ring fingers, as well as triggering of the left hand long and ring fingers, all of which required surgical repairs."

Dr. Volarich opined that employee sustained the following permanent partial disabilities as a direct result of the work injuries sustained leading up to March 1, 2004: 1) 35 % of the right thumb rated at the metacarpal phalangeal joint; 2) 35 % of the right hand rated at the metacarpal phalangeal joint of the long finger; 3) 35 % of the right hand rated at the metacarpal phalangeal joint of the ring finger; 4) 35 % of the left hand rated at the metacarpal phalangeal joint of the long finger; 5) 35 % of the left hand rated at the metacarpal phalangeal joint of the ring finger; 6) 15 % of the right hand due to the injury's contribution to diminished grip strength and pinch strength, as well as loss of dexterity of the dominant hand; and 7) 10 % of the left hand due to diminished grip strength and dexterity in the non-dominant hand.

With respect to employee's preexisting disabilities, Dr. Volarich referred to his previous independent medical evaluations in which he opined that employee suffered from the following permanent partial disabilities: 1) 7.5 % of the left lower extremity rated at the knee; 2) 50 % of the right lower extremity rated at the knee; 3) 35 % of the right wrist; 4) 35 % of the left wrist; 5) 35 % of the right shoulder; 6) 20 % of the body as a whole rated at the cervical spine; 7) 40 % of the right lower extremity rated at the knee; 8) 20 % of the body as a whole rated at the lumbar spine (L4-5 and L5-S1); and 9) 25 % of the body as a whole rated at the lumbar spine (L3-4).

Dr. Volarich ultimately concluded "that [employee] is permanently and totally disabled as a direct result of the work related injuries ... leading up to 3/1/04, in combination with all of her preexisting medical conditions."

Mr. Israel saw employee on September 29, 2009, for the purpose of a vocational evaluation. Mr. Israel opined that employee is disabled from returning to her job as an automotive assembler due to the March 1, 2004, bilateral hand/wrist injuries and that she is permanently and totally disabled from any and all substantial gainful activity or full-time employment due to the primary injury and all preexisting industrial injuries or conditions. Mr. Israel concluded that employee's "... greatly diminished capability and work adaptability makes it quite unlikely she could sustain any substantial or full-time job..." and, therefore, she can no longer compete in the open labor market.

Mr. England also performed a vocational evaluation of employee. Mr. England provided his opinion based only upon a records review. Mr. England opined that employee is totally disabled from a vocational standpoint, but believes that her back problems alone render her totally disabled.

Based upon the record as a whole, we find employee, Dr. Volarich, and Mr. Israel credible. We find that the record does not support Mr. England's opinion that employee is permanently and totally disabled solely as a result of employee's back problems and, therefore, do not find his opinions credible.

In accordance with employee's settlement with employer, we find that as a direct result of the March 1, 2004, occupational injuries, employee sustained 17\% permanent partial disability of the right wrist and 5\% permanent partial disability of the left wrist. With respect to employee's preexisting disabilities, we adopt Dr. Volarich's ratings and find that said conditions were a hindrance and obstacle to her employment or reemployment.

As to employee's maximum medical improvement date, we agree with the ALJ's presumed conclusion that employee reached maximum medical improvement on January 31, 2005.

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 17\% permanent partial disability of the right wrist and 5 % permanent partial disability of the left wrist; and that she suffered significant disabilities from her preexisting conditions. In accordance with Dr. Volarich's opinions, we find that employee's disabilities from her work injuries combine with her preexisting disabilities 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 evaluating 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

con

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 opinions of Dr. Volarich and Mr. Israel, 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 disabilities from her work injuries with her preexisting disabilities. The Second Injury Fund is liable to employee for permanent total disability benefits.

We affirm the award of the ALJ as supplemented herein.

Beginning February 1, 2005, and continuing for 38.5 weeks $^{2}, the Second Injury Fund shall pay to employee \ 315.50, the difference between employee's PTD rate and his PPD rate. ${ }^{3} Thereafter, the Second Injury Fund shall pay to employee \ 662.55 for the remainder of employee's life, or until modified by law.

The award and decision of Administrative Law Judge Cornelius T. Lane, issued June 22, 2011, is attached hereto and incorporated herein to the extent it is not inconsistent with this decision and award.

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 $2^{\text {nd }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

[^0]

[^0]: ${ }^{2}$ The work injury resulted in permanent partial disabilities of 29.75 weeks (right wrist) and 8.75 weeks (left wrist). Therefore, the total PPD attributable to the work injury is 38.5 weeks.

${ }^{3} \$ 662.55-\ 347.05

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: March 1, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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 injured her hands as a result of her repetiti