(Affirming Award and Decision of Administrative Law Judge)
Injury No.: 04-004509
Employee: Dwight McIver
Employer: Trailliner Corporation
Insurer: Alea North America Insurance Company
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 § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge 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 administrative law judge dated December 28, 2011. The award and decision of Administrative Law Judge Victorine Mahon, issued December 28, 2011, is attached and incorporated by this reference.
The Commission further approves and affirms 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 $14^{\text {th }}$ day of June 2013.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
John J. Larsen, Jr., Chairman
DISSENTING OPINION FILED
James G. Avery, Jr., Member
Curtis E. Chick, Jr., Member
Attest:
I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge assessing liability for employee's permanent total disability against the employer is in error, and that the decision should be modified to award permanent total disability benefits from the Second Injury Fund.
Section 287.220 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." The Fund is liable for permanent total disability benefits where the work injury combines 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).
This 67-year-old employee worked for employer for about two years before suffering a work injury on January 15, 2004. Prior to the January 2004 work injury, employee suffered a longstanding history of headaches and neck pain related to preexisting cervical spondylosis at C5-6 and C6-7. Employee's preexisting cluster headaches were so severe that he underwent a radiofrequency and denervation procedure in August 1990. Employee's preexisting neck complaints included radiating pain down the right arm and numbness and tingling in three fingers of the right hand. In 1992, following an MRI which revealed cervical spondylosis at C5-6 and C6-7 with narrowing at foramina C5 and C6 on the right, treating doctors recommended that employee undergo an anterior cervical discectomy and fusion. Despite his doctors' recommendations, employee declined to undergo this procedure. Between November 4, 1998, and February 21, 2002, employee received chiropractic treatment on no less than 43 occasions at the Shell Knob Chiropractic Clinic. Employee's symptoms included headaches, neck pain with stiffness, shoulder pain, and upper back pain.
On January 15, 2004, employee was working for employer when he slipped while crossing a snow-covered parking lot and fell on his right shoulder and neck. Treating doctors diagnosed cervical, shoulder, and back strains. Employee underwent conservative treatment but continued to complain of neck pain and discomfort. Diagnostic studies revealed severe stenosis at C4-5 and C5-6, and advanced degenerative disease at C6-7. On June 9, 2004, Dr. Harbach performed an anterior cervical decompression/discectomy and fusion to address the stenosis in employee's neck. Employee returned to work and reported to Dr. Harbach on August 12, 2004, that he was doing well post-operatively with only intermittent twinges down the left shoulder. On January 17, 2005, employee underwent a functional capacity evaluation (FCE). The results of the FCE demonstrated that employee was capable of performing physical work at the medium level. On February 3, 2005, Dr. Harbach released employee at maximum medical improvement, rated his permanent partial disability at 38 % of the body as a whole, and opined that employee was capable of performing full-time work at the medium demand level.
Dr. Truett Swaim evaluated employee at the request of employee's attorney. Dr. Swaim opined that employee is permanently and totally disabled as a result of the work injury in combination with employee's preexisting permanently partially disabling conditions, including his headaches and a prior left knee surgery. Dr. Swaim specifically opined that employee is not permanently and totally disabled as a result of the last injury considered in isolation. The administrative law judge rejected Dr. Swaim's opinion, however, in favor of that of the vocational expert Philip Eldred, who opined that employee is permanently and totally disabled as a result of the last injury considered alone. But, Mr. Eldred admitted that he ignored employee's preexisting disabilities and relied on employee's representation that he was in "excellent" condition prior to the January 2004 work injury. As demonstrated at the hearing before the administrative law judge, where employee had to concede on cross-examination that he was suffering from the same type of severe headaches before the work injury as after, Mr. Eldred relied on a history that substantially departs from the actual facts of this case. Employee's condition cannot reasonably be described as "excellent" before the work injury where doctors had recommended he undergo neck surgery as far back as 1992, and where employee regularly visited a chiropractor for treatment in connection with the same symptoms that he now would have us attribute solely to the work injury.
I disagree with the administrative law judge's (and the majority's) choice to credit Mr. Eldred. I credit instead Dr. Swaim and find that employee is permanently and totally disabled due to a combination of the 2004 work injury and his preexisting conditions of ill. I would modify the decision of the administrative law judge and award permanent total disability benefits from the Second Injury Fund.
Because the majority has determined otherwise, I respectfully dissent.
James G. Avery, Jr., Member
| Employee: | Dwight McIver | Injury No. 04-004509 |
| Dependents: | Not Applicable |
| Employer: | Trailliner Corporation | Before the DIVISION OF WORKERS’ COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri |
| Additional Party: | Treasurer of Missouri as Custodian of the Second Injury Fund |
| Insurer: | Alea North America Insurance |
| Hearing Date: | October 21, 2011 | Checked by: VRM/db |
| FINDINGS OF FACT AND RULINGS OF LAW |
| 1. | Are 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: January 15, 2004. |
| 5. | State location where the accident occurred or occupational disease was contracted: Frankfort, Indiana. |
| 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 was contracted: Claimant fell on ice while walking to his truck. |
| 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: cervical spine and lumbar spine. |
Issued by Missouri Division of Workers' Compensation
Employee: Dwight McIver Injury No.: 04-004509
- Nature and extent of any permanent disability: Permanent and total disability.
- Compensation paid to date for temporary disability: $\ 22,919.73.
- Value necessary medical aid paid to date by employer/insurer? $\ 87,639.46.
- Value necessary medical aid not furnished by employer/insurer? None.
- Employee's average weekly wages: $\ 674.89
- Weekly compensation rate: $\ 449.88 (TTD/PTD) and $\ 347.05 (PPD).
- Method wages computation: Agreement.