William Russell v. Fisher Environmental Controls, Inc.

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties’ arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we issue this final award and decision modifying the award and decision of Chief Administrative Law Judge Robert J. Dierkes. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

On October 19, 2004, employee, William Russell, filed his claim for compensation. On January 29, 2008, an administrative law judge issued an order finding that employee has died and substituting employee’s surviving widow, Mary Russell, as the claimant in this matter.

At the hearing before the administrative law judge on November 16, 2010, the parties stipulated the following issues in dispute: (1) the nature and extent of employee’s disability, if any; (2) employer/insurer’s liability, if any, for permanent partial disability benefits or permanent total disability benefits; (3) the liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits; (4) the rights, if any, of Mary Russell to receive permanent total disability benefits; (5) whether Mary Russell is the only person entitled to receive any benefits in the event they are awarded; and (6) the amount, if any, of attorney’s fees due to attorney Donald Heck.

The administrative law judge made the following findings and conclusions: (1) employee was not permanently and totally disabled prior to his death; (2) employee sustained a 35% permanent partial disability of the body as a whole as a result of the L5-S1 disc herniation from the primary injury; (3) Mary Russell is entitled to receive permanent partial disability benefits awarded; (4) the Second Injury Fund is not liable for any benefits; and (5) no attorney fees are awarded to Donald Heck.

Mary Russell submitted a timely Application for Review alleging the administrative law judge erred: (1) by applying an improper ability to compete standard to determine whether employee was permanently and totally disabled; (2) by making findings contrary to the overwhelming weight of the evidence; and (3) in finding there is no synergistic effect between the preexisting disability and primary disability.

On February 25, 2011, Mary Russell filed a Notice of Dismissal indicating her desire to dismiss this claim with prejudice with respect to employer. On March 3, 2011, the Commission granted Mary Russell's request.

On February 6, 2012, the alleged natural children of William and Mary Russell filed a Suggestion of Death and Motion to Substitute Parties indicating Mary Russell has died and requesting that they be added as substitute parties. The Commission denied that Motion. On March 14, 2012, the alleged natural children of William and Mary Russell filed a second Suggestion of Death and Motion to Substitute Parties. On May 31, 2012, the Commission issued an order finding that Mary Russell died on May 27, 2011, that Ryan S. Russell, Seth W. Russell, and Lacey J. Hodges are the natural children of Mary Russell, and that, as successors to the rights of Mary Russell under § 287.580, they are entitled to proceed as the claimants in this matter.

For the reasons set forth below, the Commission modifies the award and decision of the administrative law judge.

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.

We disagree with the administrative law judge's finding that employee was not permanently and totally disabled before he died. This is because we do not believe employee's work activities following the primary injury amounted to reasonable employment in the open labor market.

The courts have stated there is no hard-and-fast rule regarding an employee's performing some work after the last injury while also pursuing a claim for permanent total disability. *Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 414 (Mo. App. 2011). Instead, the courts have indicated that we should look at the specific facts surrounding the post-injury work to see whether it amounts to actual competitive employment in the open labor market, as opposed to sporadic, irregular work such as short-term or part-time jobs arranged through family, friends, or an especially accommodating employer. *Id.* The latter circumstances are not preclusive of a finding that the employee is permanently and totally disabled, as they do nothing to demonstrate the employee can compete in the open labor market. In the end, "whether a particular employee is permanently and totally disabled is a factual,

Injury No.: 03-064982

Employee: William Russell, deceased

not a legal, question. Our inquiry into permanent-total disability is a factual one: whether [employee] is employable." Id. at 409.

Here, both of employee's attempts at working were short-term. The first was installing HVAC controls at a residential hall at the University of Missouri for Controlco. This amounted to a month or two of on-and-off work; employee described his activities during this time period as follows: "I helped put conduit on the air handlers, pulled the wire and landed the panels." Employee also credibly testified (and we so find) that he was in a lot of pain at that time and was trying to do as little physical work as he possibly could. Notably, employee did this work in mid-to-late summer 2003, before Dr. Coyle's revision discectomy at L5-S1 in February 2004. Employee credibly testified that his pain got worse after this surgery. Consequently, the Controlco work is not especially relevant to the issue of permanent total disability, because employee's medical condition changed afterward.

The other work employee performed was to organize an LLC with his son and operate it for six months. Employee's physical duties with the company included overseeing work and doing some panel landing, which employee described as "just sitting on a stool and putting wires in and landing them." Employee testified the company closed its doors because he was in too much pain; employee's wife testified it was a combination of factors including the son's interest in becoming a firefighter and the doctors telling employee he was not going to get any better. We find that employee stopped working for the LLC due to a combination of his doctors telling him his pain would not get any better and because his son wanted to pursue other interests. The courts have addressed the question whether helping to run a small family business amounts to competitive employment. See Minnick v. South Metro Fire Protection Dist., 926 S.W.2d 906, 911 (Mo. App. 1996). In finding an employee's work helping his wife with a property management business did not preclude a finding employee was totally disabled, the Minnick court reasoned as follows: "[Employee's] performance of sporadic, low-stress work after his injury thus does not show that he was necessarily capable of competing on a steady basis outside of the protected environment of a small-scale husband-wife business venture where one can often work at his or her own pace and rely upon the assistance of family members." Id. We believe the same reasoning applies here.

We also disagree with the administrative law judge's concerns related to some potential inconsistencies between employee's subjective complaints and the objective medical findings by treating physicians. Employee's debilitating levels of low back and left leg pain are well documented and Dr. Farid, the treating pain management specialist, credibly testified that he believed employee's pain complaints were genuine. Dr. Farid saw employee numerous times from May 7, 2004, until December 27, 2004, and thus had a unique vantage point to evaluate employee's presentation and subjective complaints during the course of employee's post-surgery treatment. Crediting Dr. Farid on this point, we do not perceive a credibility problem requiring some (now impossible) explanation from employee.

Ultimately, we find Dr. Volarich's testimony that employee was permanently and totally disabled most credible. We find employee reached maximum medical improvement following the work injury on December 28, 2004. We find Dr. Volarich's rating of

preexisting permanent partial disability of the low back somewhat high in light of employee's testimony that he had a good result following the 1982 or 1987 low back surgery such that he "completely forgot about it" for a number of years. However, we are convinced employee suffered some permanent partial disability referable to that injury and surgery. Employee and his wife both consistently and credibly testified (and we so find) that employee guarded his back following that surgery by self-limiting his lifting to 20 pounds and also took aspirin for pain when he worked too hard. We find that employee suffered a preexisting 10 % permanent partial disability of the body as a whole referable to the 1982 or 1987 low back injury and surgery. We find credible Dr. Volarich's testimony that this condition amounted to a hindrance to employee's employment or reemployment.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a hindrance or obstacle to employment:

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Although employee's self-imposed lifting restriction and guarding allowed him to work without difficulty for many years, as the foregoing quotation makes clear, the focus of our inquiry is not on whether the low back condition caused employee problems with his work in the past. Instead, we ask whether the low back injury had the potential to combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of this condition. We have found that employee suffered a preexisting 10 % permanent partial disability of the body as a whole referable to the low back. We have also credited Dr. Volarich's testimony that this condition did constitute a hin