Danny Mackey v. Superior Cartage, Inc.

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 09-065400

Employee: Danny L. Mackey

Employer: Superior Cartage, Inc. (Settled)

Insurer: Great West Casualty Co. (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

The issues stipulated in dispute at the hearing were: (1) whether jurisdiction is proper in Missouri; and (2) Second Injury Fund liability for permanent total disability.

The administrative law judge determined that employee is permanently and totally disabled owing to a combination of his preexisting disabling conditions and employee's disability resulting from the last injury.

The Second Injury Fund filed an Application for Review alleging the administrative law judge erred because the overwhelming weight of the evidence supports a finding that employee is permanently and totally disabled based on the residuals of his primary work injury considered alone and in isolation.

We reverse the award of the administrative law judge for the reasons set forth herein.

On August 10, 2009, while lifting a mattress in the course of his work for employer, employee suffered a low back injury that resulted in a disk herniation at L4-5. Employee underwent laminectomy at L2, L3, L4, and L5, a right-sided L4-5 diskectomy, and a follow-up surgery to remove a blood clot. Employee settled his claim with employer for 23.5 % permanent partial disability of the body as a whole referable to the lumbar spine.

The evidence reveals that employee suffers considerable disability as a result of the primary August 2009 low back injury. Employee testified (and we so find) that the primary injury resulted in the following residuals: employee suffers from unrelenting severe low back pain which he manages with Vicodin every 5 hours and by reclining on a daily basis, is unable to maintain a normal sleep pattern, ambulates with a cane and cannot walk more than five or ten minutes without needing to sit down or rest, and can no longer engage in his past hobbies such as fishing, golf, swimming, or riding motorcycles.

At the time of the primary injury, employee suffered from a significant preexisting left shoulder injury that resulted in chronic pain, loss of strength, and reduced range of motion. Employee filed a workers' compensation claim in connection with that injury, which he settled for 56 % permanent partial disability of the left shoulder.

In support of his claim against the Second Injury Fund, employee provided the expert medical testimony of Dr. James Stuckmeyer and the expert vocational testimony of Mary Titterington; both offered the ultimate opinion that employee is permanently and totally disabled due to a combination of the primary injury and preexisting left shoulder condition. But on cross-examination by the Second Injury Fund, Dr. Stuckmeyer agreed that the bulk of the considerable physical restrictions he assigned to employee correspond to the primary low back injury. Those restrictions include no prolonged standing, no prolonged walking, no repetitive stair climbing, no repetitive bending at the waist, and no lifting greater than five to ten pounds from the waist to the shoulder. (We note that Dr. Stuckmeyer urged the caveat that the lifting restriction should also be considered as partially owing to employee's preexisting left shoulder condition). Also on cross-examination, Dr. Stuckmeyer agreed that the restrictions he assigned for the back would relegate employee to extremely sedentary work, and that he would not be surprised if employee had to lie down frequently as a result of his back condition following the primary injury.

We believe Ms. Titterington's ultimate opinion was also significantly diminished on cross-examination by the Second Injury Fund. Specifically, Ms. Titterington agreed that employee's postural limitations and need to lie down (problems related to employee's primary low back injury) render him "unemployable." See Transcript, page 696.

After careful review and consideration, it appears to us that the ultimate opinions from both Dr. Stuckmeyer and Ms. Titterington are not in keeping with the considerable concessions obtained by the Second Injury Fund on cross-examination. We do find Dr. Stuckmeyer and Ms. Titterington credible to the extent that we are convinced by their testimony that employee is permanently and totally disabled. But especially in light of employee's own testimony, which emphasized the effects of the primary low back injury as the source of his most significant limitations, such as the need to lie down multiple times per day, ambulate with a cane and only for very short distances, and use narcotic medications every few hours to manage his pain, we do not find credible the testimony from either expert that employee's permanent total disability is owing to a combination of the primary injury and his preexisting conditions of ill.

The only issue before the Commission is the liability of the Second Injury Fund for permanent total disability benefits. Section 287.220.1 RSMo creates the Second Injury Fund and provides, in relevant part, as follows:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, ... the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself;

Enployee: Danny L. Mackey

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except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the "Second Injury Fund" ...

The administrative law judge failed to apply the analysis mandated by the foregoing language in that she did not resolve the extent of employer's liability for the last injury considered alone and of itself before she considered employee's preexisting disabling conditions. Instead, she recited Dr. Stuckmeyer's opinion, noted the settlement of the primary injury with employer, and found the Second Injury Fund liable for permanent total disability benefits.

The evidence certainly demonstrates (and we have found) that employee suffered from a significant preexisting shoulder injury that left him with some chronic pain and limitations. But the Missouri cases consistently instruct that employee's preexisting conditions are irrelevant until we determine the extent of employer's liability for the primary injury considered alone and in isolation:

When determining whether the Fund has any liability, the Commission must first determine the degree of disability from the last injury considered alone. Preexisting disabilities are irrelevant until this determination is made. If the last injury in and of itself rendered the claimant permanently and totally disabled, then the Fund has no liability and the employer is responsible for all compensation.

Mihalevich Concrete Constr. v. Davidson, 233 S.W.3d 747, 754 (Mo. App. 2007) (citations omitted) (emphasis added).

We have found Dr. Stuckmeyer and Mary Titterington's ultimate opinions as to the reason for employee's permanent total disability lacking in credibility. We reached this determination after a careful weighing and consideration of the testimony from both experts, including the significant concessions obtained by the Second Injury Fund on cross-examination. It appears to us that both experts failed to consider the effects of the work injury in isolation when they rendered their ultimate opinions. We have also carefully weighed and considered employee's own testimony, in which he emphasized the effects of the primary low back injury as the dominant factor in restricting his physical activities.

The test for permanent total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. The primary inquiry is whether an employer can reasonably be expected to hire the claimant, given his present physical condition, and reasonably expect the claimant to successfully perform the work.

Dunn v. Treasurer of Mo. As Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo. App. 2008) (citations omitted).

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MNKOI 0006032467

In light of our findings as to the effects of the work injury and our determination that Dr. Stuckmeyer and Ms. Titterington's ultimate opinions lack credibility, we conclude that the effects of the primary injury, considered alone and in isolation, render employee permanently and totally disabled.

It follows that the Second Injury Fund has no liability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). Accordingly, we must deny employee's claim against the Second Injury Fund.

We reverse the award of the administrative law judge. Employee's claim against the Second Injury Fund is denied.

The award and decision of Administrative Law Judge Paula A. McKeon, issued December 12, 2011, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $31^{\text {st }}$ day of May 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 am convinced employee met his burden of proof on the issue of Second Injury Fund liability.

The only expert testimony in this case is unanimous on the question of Second Injury Fund liability, but the majority has chosen to reject that testimony in favor of a result that I believe is unsupported by the record before us. I disagree because I am convinced the best evidence demonstrates that employee is permanently and totally disabled owing to the effects of the primary injury in combination with his preexisting conditions of ill.

Employee provided expert testimony from Dr. Stuckmeyer and Mary Titterington in support of his claim against the Second Injury Fund. Dr. Stuckmeyer does not believe employee's low back injury, considered in isolation, results in permanent total disability. Instead, he opined that it results in a 35% permanent partial disability of the body as a whole referable to the lumbar spine. Dr. Stuckmeyer examined employee's left shoulder and noted employee's ongoing complaints of chronic pain and considerable difficulty with lifting, pushing, pulling, reaching, and overhead work. Dr. Stuckmeyer opined that employee suffers from persistent tenderness in the subacromial space and glenohumeral joint, and that employee lacks 10 degrees of external rotation owing to his preexisting left shoulder condition. Dr. Stuckmeyer also noted a persistent positive impingement sign and weakness in the left shoulder. Dr. Stuckmeyer opined that employee is permanently and totally disabled owing to a combination of the effects of the primary injury and his preexisting conditions of ill. Mary Titterington, the expert most qualified in this case to opine as to employee's ability to compete in the open labor market, agrees with Dr. Stuckmeyer.

The major