Stanley Chubb v. Robinson Construction Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 03-080102

Employee: Stanley Chubb

Employer: Robinson Construction Company

Insurer: St. Paul Fire \& Marine Insurance Company

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. 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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated March 25, 2011. The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued March 25, 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 $16^{\text {th }}$ day of February 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on 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 decision of the administrative law judge should be reversed.

I agree with the administrative law judge that the August 7, 2003, work accident either caused a new injury and/or aggravated a pre-existing condition in the employee's lumbar spine which caused the employee's low back to become more symptomatic. I agree that the accident was a substantial factor in causing employee's low back injury and resulting medical condition and that employee's low back condition is medically causally related to the August 7, 2003, work accident. But, contrary to the conclusions of the majority and the administrative law judge, I do not believe any employer could reasonably be expected to hire employee in his current physical condition.

The administrative law judge explicitly stated he relied upon the opinions of Dr. Kennedy, Dr. Park, and Ms. Abram in reaching his conclusion that employee was not permanently and totally disabled.

Dr. Kennedy offered a series of ambiguous opinions. Within the series, Dr. Kennedy's opinion that employee suffered no permanent disability is sandwiched between two separate declarations that Dr. Kennedy is not sure what physical restrictions are appropriate for employee.

- On February 10, 2004, Dr. Kennedy said he was unable to draw any firm conclusion about employee's functioning capacity. Nonetheless, Dr. Kennedy issued his recommendation of "activity as tolerated" and his imposition of no specific work restrictions. Dr. Kennedy's opinions regarding employee's abilities and restrictions are based upon an inadequate foundation.

- On March 26, 2004, Dr. Kennedy opined that employee suffered no permanent disability as a result of the August 7, 2003, work injury.

- On February 22, 2005, Dr. Kennedy reiterated that it was difficult to determine what restrictions to place on employee.

Apparently, since Dr. Kennedy did not know what physical restrictions were appropriate, he imposed none. Then, while he still did not know what restrictions were appropriate, Dr. Kennedy opined that employee suffered no permanent disability from his work injury. I cannot understand how a medical expert can be certain a worker suffered no permanent disability when the expert does not know if the injury left the worker with physical restrictions. I do not find Dr. Kennedy's opinions credible. Naturally, then, I find not credible the myriad opinions that are founded upon Dr. Kennedy's imposition of no physical restrictions.

Dr. Park did not offer an opinion on employee's ability to compete in the open labor market. In September 2004, Dr. Park thought employee may be able to perform some clerical type work with a 10-pound lifting restriction. But Dr. Park thought employee needed more treatment at that time, so he was not offering an opinion on employee's permanent disability.

Ms. Abram did not consider the role employee's narcotic use would play in employee's pursuit of employment. Because employee relies heavily on narcotics to relieve his severe pain symptoms, Ms. Abram's opinion regarding employee's ability to compete in the open labor market is of no value.

I find credible the opinion of vocational expert, Susan Shea. Ms. Shea identified eight factors that she believes render employee unable to compete in the open labor market. Ms. Shea took into account employee's need to take narcotic pain medications to relieve his severe pain symptoms and the effect narcotics have on employee's ability to compete for employment.

Based upon the foregoing, I conclude employee is permanently and totally disabled.

The administrative law judge found credible Dr. Volarich's opinions regarding medical causation. But he discredited Dr. Volarich's opinion regarding permanent total disability based upon his belief that Dr. Volarich gave contradictory opinions regarding permanent total disability.

Dr. Volarich's opinions regarding permanent total disability contradict themselves. Dr. Volarich stated that the employee had a pre-existing low back condition that was a hindrance or obstacle in performing his job duties prior to August 7, 2003. He stated that as a result of the August 7, 2003 accident the employee sustained a 35 % permanent partial disability of the body as a whole referable to his low back. At that point, he did not say that the employee was permanently totally disabled from the last accident alone but did state that the combination of those two disabilities created a substantially greater disability than the total of each injury. Dr. Volarich then contradicted himself and stated that if the vocational assessment could not find a suitable job, then the employee was permanently and totally disabled as a direct result of the August 7, 2003 accident alone. He did not say it was from the combination of the pre-existing low back condition and the back condition from August 7, 2003. These contradictions affect the credibility of Dr. Volarich's on the issue of permanent total disability. I find that the opinion of Dr. Volarich on this issue is not persuasive.

Award p. 22.

Dr. Volarich gave only one opinion regarding permanent total disability. Dr. Volarich believes that if a vocational assessment were to reveal that there is no job for which

Employee is suited, employee was rendered permanently and totally disabled by the limitations and problems caused by the work injury.

Dr. Volarich also believes that employee's preexisting permanent partial disabilities combine with the permanent partial disabilities from the primary injury in a synergistic manner such that employee's overall permanent partial disability is greater than the simple sum of the disabilities. But that opinion is not an opinion regarding permanent total disability.

The determination of whether a worker is permanently and totally disabled is not solely a medical question. An injured worker is permanently and totally disabled if he can no longer compete in the open labor market. The test is whether an employer would be reasonably expected to hire the worker in his current condition. If a worker is determined to be permanently and totally disabled, the next issue for determination is whether the work injury rendered the worker unable to compete for employment. If it did, there is no need to consider if the work injury also synergistically combines with preexisting conditions.

Dr. Volarich's opinions are not inconsistent. I find credible Dr. Volarich's opinions regarding permanent total disability. I have concluded that employee is permanently and totally disabled. Dr. Volarich opined that if employee is permanently and totally disabled it is due to the work injury. Based upon the foregoing, I conclude that employee was rendered permanently and totally disabled by the work injury, considered in isolation.

I would modify the award of the administrative law judge. I would award permanent total disability benefits from employer/insurer to employee. I respectfully dissent from the portion of the majority's decision awarding only permanent partial disability to employee.

Employee: Stanley Chubb

Injury No. 03-080102

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Robinson Construction

Additional Party: N/A

Insurer: St. Paul Fire and Marine

Appearances: Dan Rau, Attorney for the Employee

Robert Frayne, Attorney for Employer/Insurer

Hearing Date: December 22, 2010

Checked by: LCK/rf

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? On or about August 7, 2003.
5. State location where accident occurred or occupational disease contracted: Perry 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.

1. Describe work employee was doing and how accident happened or occupational disease contracted: The employee injured his low back while lifting.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Body as a whole referable to the low back.
4. Nature and extent of any permanent disability: 15% permanent partial disability of the body as a whole referable to the low back.
5. Compensation paid to date for temporary total disability: 15,562.59.
6. Value necessary medical aid paid to date by employer-insurer: 23,328.29
7. Value necessary medical aid not furnished by employer-insurer: 2,482.68
8. Employee's average weekly wage: 828.94
9. Weekly compensation rate: 552.63 for TTD and PTD. 347.05 for PPD.
10. Method wages computation: By agreement.
11. Amount of compensation payable: 2,482.68 for previously incurred medical.20,823.00 for permanent partial disability.$440.84 to be paid to the Missouri Department of Social Services
12. Second Injury Fund liability: N/A
13. Future requirements awarded: None.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Dan Rau.

On December 22, 2010, the employee, Stanley Chubb, appeared in person and with his attorney, Dan Rau, for a hearing for a final award. The employer was represented at the hearing by its attorney, Robert Frayne. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Robison Construction Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and liability was fully insured by St. Paul Fire and Marine.
2. On August 7, 2003 Stanley Chubb was an