Frank McRoy v. Central Pallet Supply, Inc.

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 08-079781

**Employee:** Frank McRoy

**Employer:** Central Pallet Supply, Inc. (Settled)

**Insurer:** Missouri Employers Mutual Insurance Company (Settled)

**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.

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." The statute 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 is not liable for permanent total disability benefits. *Id.*

After employee sustained the last injury in July 2008, treating doctors identified "some new symptoms of increased lower back pain and more exquisite severe symptoms going into the right lower extremity consisting mainly of shooting type pain, quite severe at times, going into the right groin and mainly down the anterior aspect of the right thigh, going slightly below the right knee." *Transcript*, page 422. Dr. Annamaria Guidos provided explicit ratings apportioning disability as between the effects of the primary injury and employee's preexisting low back injuries. When we consider the last injury in isolation, and specifically the increase in low back symptoms and pain radiating into the right leg, we are convinced that the administrative law judge's finding of a 20% permanent partial disability of the body as a whole referable to the low back is accurate. This rating fairly reflects the worsened low back symptoms resulting from the July 2008 injury. We are persuaded that employee is not permanently and totally disabled as a result of the July 2008 injury considered in isolation.

We note that Dr. Guidos opined, in both her written report and on direct examination at her deposition, that employee is permanently and totally disabled owing to a combination of factors, including the effects of the last injury and employee's preexisting

Injury No.: 08-079781

Employee: Frank McRoy

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low back injuries and learning disability. Yet, on cross-examination by the Second Injury Fund, Dr. Guidos provided the following testimony:

Q. All right. And just considering the low back injury of July of 2008, the back pain and radicular leg pain that Mr. McRoy presented to you, do you believe that Mr. McRoy could work just based upon those problems?

A. The second injury?

Q. The last injury, July of 2008.

A. Do I feel he would be able to work based on the second injury? No. No, I do not. That's why I put my therapeutic plan I felt he was permanently and totally disabled.

Transcript, page 72.

To the extent Dr. Guidos understood the question posed, the foregoing testimony would seem to contradict her opinions as set out elsewhere in the record. We note that, in providing the above-quoted testimony, Dr. Guidos did not explain why the last injury, considered alone, would permanently and totally disable employee. We note also that Dr. Guidos asked for clarification of the question, and that her ultimate response does not specifically indicate she is considering the effects of the last injury in isolation. Rather, Dr. Guidos's comment referring to her therapeutic plan (which, itself, indicates employee's permanent total disability results from a combination of factors) suggests that she believed she was being asked to opine as to the more general question whether employee was permanently and totally disabled after the primary injury.

One reason for Dr. Guidos's apparent confusion might be that the question posed by counsel for the Second Injury Fund takes for granted that employee's symptoms of back pain and radicular leg pain are solely attributable to the July 2008 work injury, a proposition that is refuted by employee's credible testimony, the medical records, and Dr. Guidos's opinions as set forth in her report. Prior to the July 2008 injury, employee was suffering symptoms of low back pain that he described as a six out of a possible ten in intensity. Employee was being careful at work and even had to lie down occasionally to relieve his low back pain. In April 2008, treating doctors diagnosed low back pain with radiating pain into the left hip, and noted that employee needed to change positions frequently to obtain relief. Dr. Guidos identified employee's current low back problems as a synergistic interaction of his disability resulting from the July 2008 work injury and his preexisting low back disabilities. In light of those records, employee's credible testimony, and Dr. Guidos's credible opinion regarding the synergistic effect of employee's multiple low back injuries, we are not convinced that employee's intractable low back pain and radicular complaints are products of the July 2008 work injury considered in isolation.

Injury No.: 08-079781

Employee: Frank McRoy

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For all of the foregoing reasons, we do not find Dr. Guidos's testimony, as quoted above, credible to the extent it identifies the July 2008 work injury, alone, as the source of employee's permanent total disability.

The vocational expert, Susan Shea, credibly opined (and we so find) that employee's pain factor and limitations in sitting, standing, and walking would preclude him from being able to work, especially when employee's learning disability and vocational background are considered. We find that employee's limitations in sitting, standing, and walking, and his need to lie down multiple times per day stem from his intractable low back pain. As we have noted above, employee's current low back condition is the product of a synergistic combination of both the July 2008 work injury and his preexisting low back injuries and disabilities. It follows that employee is permanently and totally disabled as a result of the effects of the last injury in combination with his preexisting low back condition and learning disability.

Uncontested expert evidence

On appeal before this Commission, the Second Injury Fund argues that the administrative law judge was under the impression that the Second Injury Fund had the burden to proffer evidence to discredit employee's medical and vocational experts. In the first paragraph on page 7 of his award, the administrative law judge states as follows:

> Further, I find that Susan Shea's and Dr. Volarich's opinions are more credible than any others to the contrary and are supported by the evidence. Since I find that the Second Injury Fund has failed to offer sufficient credible evidence to discredit the opinions of Dr. Volarich and Susan Shea, I cannot substitute my own opinion for uncontroverted medical evidence and an expert's opinions.

We believe some clarification is in order. Employee, of course, had the burden of proving each element of his claim. *Lacy v. Fed. Mogul*, 278 S.W.3d 691, 701 (Mo. App. 2009). As the Missouri courts have recognized, the Second Injury Fund is not required to present contrary or conflicting evidence with regard to an employee's claim for permanent total disability benefits. *Dunn v. Treasurer of Mo. As Custodian of Second Injury Fund*, 272 S.W.3d 267, 275 (Mo. App. 2008). At the same time, the courts have instructed that "[t]he Commission may not arbitrarily disregard and ignore competent, substantial and undisputed evidence of witnesses who are not shown by the record to have been impeached, and the Commission may not base their finding upon conjecture or their own mere personal opinion unsupported by sufficient competent evidence." *Copeland v. Thurman Stout, Inc.*, 204 S.W.3d 737, 743 (Mo. App. 2006).

We wish to make clear that we have analyzed this case with employee's evidentiary burden in mind. We also wish to make clear that employee's providing uncontested medical and vocational testimony does not mean that Second Injury Fund liability is a foregone conclusion. If, for example, employee had provided uncontested expert

1 The context of the administrative law judge's comments make clear that he is in fact referring to testimony and opinions from Dr. Guidos, and that his reference to Dr. Volarich is merely a clerical error.

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opinions that were simply not credible, then employee would have failed to meet his burden of proof. See *Carkeek v. Treasurer of Mo. - Custodian of the Second Injury Fund*, 352 S.W.3d 604, 609 (Mo. App. 2011). As it turns out, however, we agree with the administrative law judge that employee's experts credibly testified, and that their testimony places liability for employee's permanent total disability with the Second Injury Fund.

Given the foregoing supplemental findings and conclusions, and because we otherwise agree with the administrative law judge's award, we conclude that the Second Injury Fund is liable for permanent total disability benefits.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Carl Strange 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 June 2013.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**NOT SITTING**

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Frank McRoy

Injury No. 08-079781

Dependents: N/A

Employer: Central Pallet Supply, Inc.

Additional Party: Second Injury Fund

Insurer: Missouri Employers Mutual Insurance Company

Hearing Date: September 26, 2012

Checked by: CS/rm

1. Are any 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? July 18, 2008.
5. State location where accident occurred or occupational disease contracted: Stoddard County, Missouri.
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 happened or occupational disease contracted: Employee was tearing down pallets and reinjured his low back.
12. Did accident or occupational disease cause death? N/A.

Employee: Frank McRoy

Injury No. 08-079781

1. Parts of body injured by accident or occupational disease: Low Back.

1. Nature and extent of any permanent disability: 20% of the body as a whole referable to his low back.

1. Compensation paid to date for temporary total disability: 0.00.

1. Value necessary medical aid paid to date by employer-insurer: 0.00.

1. Value necessary medical aid not furnished by employer-insurer: N/A.

1. Emplo