| FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Injury No.: 07-084243 |
| Employee: | Jeffrey Taylor |
| Employer: | Corporate Interiors, Inc. |
| Insurer: | State Automobile Mutual Insurance Co. |
| 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 § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion. |
| Discussion |
| Although it can be implied from the result reached by the administrative law judge, her award is silent with regard to which experts she found to be credible. We write to make clear that we find the opinions of Dr. Volarich and James England to be credible on the issue whether employee is permanently and totally disabled owing to a combination of his primary injury and preexisting conditions of ill. Specifically, we credit Mr. England’s testimony (and so find) that employee is permanently and totally disabled because his lower extremity problems referable to the primary injury limit him to sedentary work, and because Dr. Volarich’s restrictions referable to employee’s preexisting upper extremity disabilities will prevent employee from successfully competing for even most sedentary jobs. We further credit Mr. England’s testimony (and so find) that “[t]here is simply no reason for an employer to pick [employee] over virtually any other candidate” given employee’s presentation, which includes a pronounced limp.Second, we note that the administrative law judge failed to resolve the question whether employee’s preexisting right knee condition constituted a hindrance or obstacle to employment or reemployment. We conclude that it did. The very facts of this case demonstrate that employee’s preexisting right knee condition had the potential to combine with future work-related injuries so as to cause a greater degree of disability than would have resulted in the absence of the condition.Finally, we note that the administrative law judge left open the question whether she took into account post-accident worsening of employee’s preexisting conditions when she stated that employee’s chronic obstructive pulmonary disease (COPD) factored into her finding of permanent total disability. The evidence on record is unclear as to when employee was first diagnosed with COPD, and demonstrates that his use of an oxygen machine referable to this condition arose after the primary injury. |
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Injury No.: 07-084243
We wish to make clear that we believe employee is permanently and totally disabled owing to the effects of the primary injury combined with his preexisting conditions of ill as they existed on the date of injury, without regard to any subsequent worsening. As noted above, Mr. England did not factor COPD into his analysis of employee's permanent total disability. Relying on his testimony, nor do we.
**Conclusion**
The Commission affirms and adopts the findings, conclusions, decision, and award of the administrative law judge to the extent they are not inconsistent with this supplemental opinion.
The award and decision of Administrative Law Judge Margaret D. Landolt, issued May 4, 2012, is attached and incorporated by this reference.
We approve and affirm 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 14th day of December 2012.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
V A C A N T
Chairman
James Avery, Member
Curtis E. Chick, Jr., Member
Attest:
Secretary