Jerome Ives v. Triple Crown Services

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, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge with this separate opinion.

The parties stipulated the following issues for determination by the administrative law judge: (1) accident; and (2) Second Injury Fund liability.

The administrative law judge failed to resolve the issue of accident, made a number of factual findings that are not supported by the record, disregarded uncontested expert testimony on the issue of permanent total disability, and concluded employee is not entitled to benefits from the Second Injury Fund because employee enjoys an active lifestyle in Costa Rica.

Employee submitted a timely Application for Review with the Commission. For the reasons set forth below, we affirm the award of the administrative law judge with this separate opinion.

Prior to April 19, 2006, the date on which employee sustained the primary injury, employee suffered shoulder, back, rib, and left leg pain referable to a 2001 motor vehicle accident. Employee’s symptoms prompted him to stop running for exercise. Employee, who was a self-employed construction worker at the time, also turned down some jobs after the 2001 accident, and visited a doctor for back pain when he overexerted himself.

On April 19, 2006, employee suffered injury while working as a truck driver for employer. Employee was trying to adjust the wheels on his trailer. This task involved removing a pin, which was stuck. As employee was jostling the pin, it came loose suddenly, causing employee to twist around and fall backward. Employee experienced immediate pain in his back and numbness and tingling shooting down into his right leg. Treating doctors

Diagnosed a herniated disc at L4-5, took employee off work, and prescribed muscle relaxers and physical therapy. Employee ultimately underwent a fusion surgery at L4-5. Employee reached maximum medical improvement on April 20, 2007. Dr. Amundson, the treating physician, assigned permanent restrictions of no lifting greater than 20 lbs, and no sitting, walking or standing for extended periods.

Employee described his limitations following the work injury. Employee testified he can sit 15 to 30 minutes. Employee can walk for about a half hour. Every day, employee lies down half an hour during the day. All of these limitations are attributable to symptoms stemming from the 2006 work injury and subsequent fusion surgery. We credit the foregoing testimony from employee. We find that employee can only sit 15 to 30 minutes, walk for about a half hour, and has to lie down every day owing to the effects of the work injury.

Employee presents Dr. Poppa, who opined that employee is permanently and totally disabled. Dr. Poppa rated the following permanent partially disabling conditions resulting from the work injury: 5% of the body as a whole referable to the thoracic spine and 35% of the body as a whole referable to the lumbar spine. Dr. Poppa opined that employee is not able to continue working in construction or as a driver, and identified a number of lifting restrictions and opined that employee should alternate positions at least every two hours, or as needed for comfort, when standing, sitting, or walking.

Dr. Poppa opined a need to lie down during the day would eliminate employee from most employment. We credit this testimony from Dr. Poppa. We find that employee's need to lie down every day as a result of the work injury eliminates most employment prospects for him.

Dr. Poppa ultimately offered the opinion that employee is permanently and totally disabled owing to a combination of the work injury and his preexisting conditions referable to the 2001 motor vehicle accident. We note that, in explaining his opinion, Dr. Poppa started with the preexisting conditions and then added the restrictions referable to the work injury. In other words, Dr. Poppa did not isolate and consider the effects of the work injury alone upon employee in rendering his opinion as to the source of employee's permanent total disability. We also note Dr. Poppa's testimony that employee did not tell him about his need to lie down daily following the work injury. Especially given Dr. Poppa's testimony that a need to lie down daily will eliminate most employment prospects for employee, it appears Dr. Poppa lacked the relevant information to form his "combination" opinion. Given these considerations, we find unpersuasive Dr. Poppa's opinion that employee is permanently and totally disabled owing to a combination of the work injury and his preexisting conditions.

Employee also presents the vocational expert Michael Dreiling, who agreed that a need to lie down during the day precludes performing work. Like Dr. Poppa, Mr. Dreiling offered the ultimate opinion that employee is permanently and totally disabled owing to a combination of the work injury and preexisting disabilities. But this opinion from Mr. Dreiling strikes us as conclusory, and it appears that he never considered the effects of the work injury in isolation. We find his "combination" opinion unpersuasive.

Enployee: Jerome Ives

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because it lacks a credible explanation and does not provide us with the relevant considerations to perform our analysis. We credit, on the other hand, Mr. Dreiling's testimony (and so find) that a need to lie down daily renders employee permanently and totally disabled.

The version of Chapter 287 applicable to this claim provides the following definition of an "accident" for purposes of the Missouri Workers' Compensation Law:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift.

Employee's evidence has satisfied the foregoing statutory definition. Employee established that on April 19, 2006, he was working for employer trying to adjust the wheels on his trailer, when a pin came loose suddenly, causing him to spin around and experience immediate sensations of pain in his back and loss of sensation in his right leg. In other words, employee proved that he suffered an unexpected traumatic event identifiable by time and place and producing at the time objective symptoms of an injury caused by a specific event during a work shift. We conclude employee sustained an accident.

For the Second Injury 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 a 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. If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, not the Second Injury Fund, is responsible for the entire amount of compensation. "Preexisting disabilities are irrelevant until the employer's liability for the last injury is determined." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

We have credited employee's testimony that he needs to lie down daily owing to the effects of the primary injury. We have also credited the testimony from both of employee's experts that a need to lie down daily renders employee permanently and totally disabled. Although they ultimately rendered opinions indicating employee is permanently and totally disabled owing to a combination of his problems, we have found their ultimate opinions conclusory, contradictory as to their testimony regarding a need to lie down daily, and lacking credibility as a result.

We conclude employee is permanently and totally disabled as a result of the primary injury considered alone and in isolation.

Employee: Jerome Ives

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Employee has failed to meet his burden of proving Second Injury Fund liability for permanent total disability benefits.

Based on the foregoing, the Commission concludes employee is permanently and totally disabled as a result of the primary injury considered alone and in isolation. Accordingly, employee's claim against the Second Injury Fund is denied.

The award and decision of Administrative Law Judge Mark S. Siedlik, issued June 7, 2012, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $28^{\text {th }}$ day of December 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

V A C A N T Chairman

James Avery, Member

Attest:

Secretary

Employee: Jerome Ives

Injury No. 06-071401

Employer: Triple Crown Services (settled)

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

Hearing Date: April 20, 2012 Checked by: MSS/cy

1. Are any benefits awarded herein? No
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: April 19, 2006
5. State location where accident occurred or occupational disease was contracted: Lawrence, Kansas
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 occurred or occupational disease contracted:
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Back, whole body
14. Nature and extent of any permanent disability: 19 % whole body
15. Compensation paid to-date for temporary disability: Unknown
16. Value necessary medical aid paid to date by employer/insurer? Unknown

1. Value necessary medical aid not furnished by employer/insurer? Unknown
2. Employee's average weekly wages: $\ 696.97
3. Weekly compensation rate: $\$ 436.55 / \ 365.08
4. Method wages computation: Agreement

1. Amount of compensation payable: None
2. Second Injury Fund liability: N/A
3. Future requirements awarded: None

This case comes on before Administrative Law Judge Siedlik in Kansas City, Missouri on April 19, 2012. The Claimant was present with his counsel, Mr. Russell Purvis. The Second Injury Fund was represented by their counsel, Ms. Kimberly Fournier. This case involves injuries on or about the $19^{\text {th }}$ of April 2006 and while Claimant was in the employ of Triple Crown Services and sustained injuries by accident arising out of and in the course and scope of employment in Lawrence, Kansas. At the time of the injuries the parties were subject to