Ted Jackson v. Noranda

(Affirming Award and Decision of Administrative Law Judge by Supplemental Opinion)

Injury No.: 06-097907

Employee: Ted Jackson

Employer: Noranda (Settled)

Insurer: Noranda Aluminum, Inc. (Settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ Having reviewed the evidence, read the briefs, and considered the whole record, the Commission finds that the award of the administrative law judge (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the ALJ dated November 29, 2011, as supplemented herein.

The ALJ awarded employee permanent total disability (PTD) benefits against the Second Injury Fund. The Second Injury Fund appealed to the Commission, alleging that the ALJ erred in finding it liable for employee's PTD benefits. The Second Injury Fund concedes that employee is permanently and totally disabled, but alleges that employee's PTD is solely the result of the last 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.

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

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2005 unless otherwise indicated.

Enployee: Ted Jackson

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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.

The Second Injury Fund argues that the ALJ skipped the first step in the aforementioned analysis before concluding that employee's PTD is a result of his primary injury synergistically combining with his preexisting disabilities. In support of its argument that employee is permanently and totally disabled solely as a result of the last injury, the Second Injury Fund points to vocational expert, Susan Shea's, testimony; specifically, Ms. Shea's response to the last question of her deposition. Ms. Shea was asked about employee's ability to work, considering only the effects of the last injury. Ms. Shea responded that she did not believe employee could do any work.

We do not find that Ms. Shea's response to the last question of her deposition overrides and supersedes the overwhelming weight of the evidence that employee is merely permanently and partially disabled as a result of the last injury.

Dr. Cohen clearly and unequivocally opined that employee is not permanently and totally disabled as a result of the last injury alone. Dr. Doll prescribed lifting and physical restrictions, but did not opine permanent total disability from the last injury alone. Similarly, Dr. Coyle, the treating surgeon, did not declare employee permanently totally disabled from the last injury alone, but rather imposed light duty restrictions from the same.

In addition to the aforementioned, employee himself testified that if the primary neck and back injuries were the only problems he had, he felt he would still be able to work in some capacity, such as driving a crane or forklift.

Based upon the aforementioned, we do not find that employee is permanently and totally disabled as a result of the last injury alone. We find, as did the ALJ, that as a result of the primary injury employee sustained 17.5% permanent partial disability of the body as a whole referable to the lumbar spine, and 12.5% permanent partial disability of the body as a whole referable to the cervical spine. We further find, in accordance with Dr. Cohen's uncontradicted medical opinion, that these primary injuries combined synergistically with employee's preexisting disabilities to render him permanently and totally disabled.

Award

We affirm the award of the ALJ as supplemented herein.

The award and decision of Administrative Law Judge Maureen Tilley, issued November 29, 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 ALJ'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 $6^{\text {th }}$ day of June 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Ted Jackson

Injury No.: 06-097907

Employer: Noranda

Additional Party: Second Injury Fund

Insurer: Noranda Aluminum Inc c/o Sedgwick Claims Management Services

Hearing Date: $\quad 9-07-11$

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? 01-19-06.
5. State location where alleged accident occurred or occupational disease contracted: New Madrid 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 happened or occupational disease contracted: The employee was pulling a thermal coupler when he injured his neck and low back.

Employee: Ted Jackson

Injury Number 06-097907

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease: Neck and low back.
3. Nature and extent of any permanent disability: 12.5 % Neck; 17.5% Low back.
4. Compensation paid-to date for temporary total disability: 16,689.83.
5. Value necessary medical aid paid to date by employer-insurer? 24,992.39.
6. Value necessary medical aid not furnished by employer-insurer? N/A
7. Employer's average weekly wage: $1,696.74.
8. Amount of compensation payable? See Award.
9. Weekly compensation rate: 696.97 PTD; 365.08 PPD.
10. Method wages computed: By agreement.
11. Second Injury Fund liability: Permanent total disability.
12. Future Requirements Awarded: N/A

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's attorney Stephen L. Taylor.

On 09-07-11, the Employee appeared along with his attorney, Stephen L. Taylor, for a Hearing for a Final Award. The Second Injury Fund appeared by its attorney, Gregg Johnson. The primary case had previously settled, therefore the employer-insurer was not present. 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. That on 01-19-06 the Employer, Noranda, was operating under and subject to the provisions of the Missouri Workers' Compensation Act.
2. That on 01-19-06, Ted Jackson was an employee of Noranda and was working under and subject to the Missouri Workers' Compensation Act.
3. That on 01-19-06, Ted Jackson sustained an accident or occupational disease during the course of employment at Noranda.
4. That the employer had notice of the employee's work injury that occurred on 01-19-06.
5. That the employee's claim was filed within the time allowed by law.
6. That the average weekly wage for the injuries that occurred 01-19-06 was $\ 1,696.74 and the rate of compensation for purposes of permanent partial and permanent total disability is $\ 696.97 PTD and $\ 365.08 PPD.
7. That the injuries sustained by the employee were medically causally related to his employment at Noranda.

The following issues were identified.

1. Employee's claim of Permanent Total Disability against the Second Injury Fund.
2. If not PTD, then Employee's claim of Permanent Partial Disability against the Second Injury Fund.
3. Dependency per Schoemel.

Several exhibits were offered and admitted into evidence:

A. Medical Records Packet - Primary \& Prior, with subsections as follows:

1. Missouri Delta Medical Center.
2. Dr. Colleen Hunter-Pearson.
3. ReStart.
4. Ferguson Medical Group.

1. Orthopaedic Associates.
2. St. Francis Medical Center Pain Clinic.
3. Cape Neurosurgical Associates, Dr. Yingling.
4. Midwest Spine Surgeons, Dr. Coyle.
5. Orthopedic & Sports Medicine, Inc., Dr. Doll.
6. Sikeston Imaging Center.
7. Southeast Missouri Hospital Pain Clinic.
8. Professional Imaging.
9. Dr. Allen Spitler.
10. Southeast Missouri Hospital.
11. Dr. William Shell.

B. Deposition of Dr. Raymond Cohen, with attachments.

C. Deposition of Vocational Expert Susan Shea, with attachments.

D. Social Security Award.

E. Paystubs.

F. Judicial Notice of Division of Worker's Compensation file primary claim and the two prior claims.

Second Injury Fund Exhibits

1. Joint Exhibit - Deposition of Susan Shea.

FINDINGS OF FACT

Employee, Ted Jackson, testified that he was a resident of Matthews, New Madrid County, Missouri and was born on April 29, 1947. He testified that he has been married to Kathy Jackson since April 6, 1984. The employee testified that he has no dependent children. The employee stated that his wife Kathy is dependent upon him for support and has been dependent since April 6, 1984.

Employee testified that he lived in New Madrid County as a child and graduated from New Madrid County High School in 1965. He testified that he worked after high school for Boyer Construction Company as a laborer for one year. He then went to work for Fruin & Collins as an iron worker in St. Louis from 1965 to 1966. Employee testified he was drafted into the United States Army in 1966. He testified that he served for three years in the United States Army and was trained as a mechanic then discharged honorably in 1969.

Employee testified that after his discharge from the Army he returned to work at Boyer Construction Company as a carpenter until 1974.

Employee testified that he then went to work for a timber company cutting trees from 1974 to 1978.

Employee testified that he then began his care