Ronald Ward v. Wal-Mart 2221

The issue presently before us is whether employer or the Second Injury Fund is liable for employee's permanent total disability.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact on the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modification herein.

From the credible testimony of employee and his wife, and employee's Exhibits H and I, we find the following facts regarding the effects of the work injury upon employee.

Employee experiences pain with ambulation and walks with a cane. He is unable to lift anything heavier than a gallon of milk. Employee can't do any work below his waist or above his head. Employee can't dress himself. Employee can't drive for more than 15 to 20 minutes before having to stop and walk around. Employee can't go hunting or fishing anymore. Employee can't participate in his sons' sports activities or even sit through one of their ball games. Employee can only sleep for 2 to 3 hours at a time before he has to get up and move around. Employee can't run and can't walk more than 200 yards. Employee can't climb stairs unless he takes one or two at a time and rests. Employee can't mow his own yard or do any kind of yard work. Employee has to frequently alternate between sitting and standing and has to lie down 3 to 4 times per day due to pain. Employee takes Hydrocodone and Tramadol for pain. Employee has gained 60-65 pounds owing to inactivity. Employee takes Effexor and Xanax for anxiety and depression; employee is depressed because he can't do anything owing to his limitations following the work injury.

Susan Shea, the vocational expert, opined that employee's physical limitations, the fact that it is painful for him to ambulate, his need for pain medication, his depression, and his inability to sit or stand for any length of time, combined with his lack of transferable skills that might allow him to move to lighter work, have the effect that it is not feasible to expect any typical employer to even consider an individual such as employee for hire. We credit this opinion. Ms. Shea ultimately opined that employee is not employable as a result of "his past and present injuries." Transcript, page 285. In light of Ms. Shea's admission that she was unaware of anything that kept employee from being able to compete in the open labor market owing to his 1997 back surgery, we do not find credible or adopt this portion of Ms. Shea's testimony.

We agree with and adopt the administrative law judge's finding that employee is permanently and totally disabled. We have carefully reviewed the evidence as to employee's permanent total disability and its possible causes.

We note employee's credible testimony that he had no problems with his back before the work injury. We note also the evidence that treating doctors released employee to

return to work with no restrictions following the 1997 surgery, and that Dr. Gornet, who performed the fusion surgery following the primary injury, related all of employee's disability and impairment directly to the primary injury and 0 % to the 1997 injury.

On the other hand, we have an opinion from Dr. Volarich that employee suffered a 20\% preexisting permanent partial disability of the body as a whole referable to the 1997 low back injury and surgery. In his report, Dr. Volarich indicated he provided this rating for "preexisting back pain and any lost motion." Transcript, page 226. Employee credibly testified that he did not even take over-the-counter medications such as Advil or Tylenol for back pain before the primary injury. We find employee's own testimony as to the nature of his preexisting condition more credible on this point than Dr. Volarich's opinion or rating. We find employee did not suffer any preexisting permanent partial disability referable to the 1997 low back injury and surgery.

We do find credible Dr. Volarich's testimony that employee is permanently and totally disabled, but we disagree with the administrative law judge's reading of Dr. Volarich's ultimate opinions. In his report, Dr. Volarich offered his opinion that employee is permanently and totally disabled as a result of the primary injury in combination with "preexisting lumbar syndrome." In his testimony, however, Dr. Volarich did not even mention "lumbar syndrome," nor did he describe any combination of the work injury with any identifiable preexisting disability. Rather, he explained employee's permanent total disability is a result of a combination of the primary injury "and [employee's] preexisting discectomy." Transcript, page 201. Dr. Volarich explained that employee's low back was more susceptible to severe injury owing to the preexisting post-surgical condition at L5-S1. Because of this preexisting post-surgical condition, employee needed a bi-level fusion after the primary injury. Ultimately, employee's need for this surgery (and his bad result following that surgery) is the source of employee's permanent total disability, according to Dr. Volarich; Dr. Volarich testified that this is the sole basis of his "combination total" opinion.

In our view, Dr. Volarich has not offered an opinion that employee's primary injury has combined with any preexisting disability referable to the low back. Rather, Dr. Volarich appears to believe that the asymptomatic, non-disabling condition of employee's back referable to the preexisting discectomy helps to explain why the work injury was so severe. We credit Dr. Volarich to the extent that his testimony explains why the work injury was so severe. We do not, however, credit his ultimate opinion that employee is permanently and totally disabled owing to a combination of the work injury and any preexisting permanent partial disability.

Section 287.220.1 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." For the Fund to be liable for permanent total disability benefits, employee must establish that: (1) he suffered a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with the prior permanent partial disability to result in total permanent disability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). Section 287.220.1

requires us to first determine the compensation liability of the employer for the last injury, considered alone. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003). If employee is permanently and totally disabled due to the last injury considered in isolation, the Fund has no liability. Id.

We have credited employee and employee's wife as to the effects of the last injury. That testimony strongly suggests that the work injury, considered in isolation, is the source of employee's permanent total disability. We have found that employee's preexisting asymptomatic and non-disabling condition at L5-S1 helps explain why the work injury was so severe, but this finding alone cannot shift liability for employee's permanent total disability from employer to the Second Injury Fund. To the contrary, well-settled principles of applicable case law require that employer is liable in these circumstances:

Preexisting conditions are not denominated 'disabilities' as of the date of the second injury simply because, at some point in the future, they combine with that injury to render the claimant permanently disabled. As between the employee and employer, a preexisting but non-disabling condition does not bar recovery of compensation if a job-related injury causes the condition to escalate to the level of disability. If substantial evidence exists from which the Commission could determine that the claimant's preexisting condition did not constitute an impediment to performance of claimant's duties, there is sufficient competent evidence to warrant a finding that the claimant's condition was aggravated by a work-related injury.

Portwood v. Treasurer of Missouri-Custodian of the Second Injury Fund, 219 S.W.3d 289, 293 (Mo. App. 2007) (citations omitted) (emphasis in original).

We have found that employee did not suffer any preexisting permanent partial disability referable to the low back. We have found that the work injury, considered in isolation, results in limitations that Ms. Shea credibly opined would take employee out of competition for normal employment in the open labor market. It follows that employee is permanently and totally disabled owing to the effects of the work injury considered alone.

We conclude that employer, not the Second Injury Fund, is liable for permanent total disability benefits.

We modify the award of the administrative law judge as to the issue whether employee is permanently and totally disabled due to the effec