Lawrence Miller v. The Boeing Company Interstate

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-098059

Employee: Lawrence Miller

Employer: The Boeing Company Interstate (Settled)

Insurer: Indemnity Insurance Company of North America (Settled)

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 April 26, 2012. The award and decision of Administrative Law Judge Margaret D. Landolt, issued April 26, 2012, 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 $27^{\text {th }}$ 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 upon my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be reversed.

On September 28, 2007, employee injured his right knee when he fell through the slats of a platform into a cockpit. Employee filed claims for compensation against employer and the Second Injury Fund. Employee and employer settled employee's claim against employer. Employee proceeded to trial on his claim against the Second Injury Fund on a theory that the effects of his knee injury combine synergistically with preexisting permanent partial disabilities of his thoracic spine/low back and of his cervical spine.

Employee suffered the injury to his cervical spine in 2006. Specifically, employee sustained a herniated disc at C5-6. At the time of his knee injury, employee was still treating for his cervical spine injury. Employee ultimately underwent a discectomy and fusion at C5-6 in March 2008. Employee's treating surgeon released him to work full-time with no restrictions in June 2008. After a follow-up visit on July 1, 2008, Dr. Taylor determined employee was at maximum medical improvement from his cervical spine injury.

Later, in December 2008, Dr. Nogalski performed an ALC reconstruction on employee's right knee. Dr. Nogalski found employee to be at maximum medical improvement for his knee injury in March 2009.

The administrative law judge determined that employee's thoracic spine condition and cervical spine condition constituted preexisting permanent partial disabilities on the date of employee's primary knee injury. The administrative law judge awarded 33.9 weeks of permanent partial disability from the Second Injury Fund to employee. The Second Injury Fund appeals arguing that the cervical spine condition did not constitute a permanent partial disability on the date of employee's primary injury. Consequently, the Second Injury Fund argues the administrative law judge erred by including the cervical spine disability in her Second Injury Fund liability calculation.

Section 287.808 RSMo directs that we shall construe the provisions of Chapter 287 strictly. ${ }^{1}$

Section 287.220.1 RSMo sets forth the obligations of the Second Injury Fund. It provides, in relevant part:

All cases of permanent disability where there has been previous disability shall be compensated as herein provided...If any employee who has a preexisting permanent partial disability whether from compensable injury

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007, unless otherwise indicated.

or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund...

(Emphasis added).

Section 287.190.6(1) RSMo defines permanent partial disability. "Permanent partial disability' means a disability that is permanent in nature and partial in degree."

Missouri courts have determined when a disability becomes permanent.

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment. Furthermore, an employers' liability for permanent partial or permanent total disability does not run concurrently with their liability for temporary total disability.

Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and

thus, when payments for permanent partial or permanent total disability should be calculated.

*Cardwell v. Treasurer of Mo.*, 249 S.W.3d 902, 910 (Mo. App. 2008).

Employee did not reach maximum medical improvement for his cervical spine condition until July 2008 – ten months after employee sustained his primary injury. It was then that employee's knee disability could first be considered permanent. Strictly construing §§ 287.190.6(1) and 287.220.1, I must conclude that as of the date employee injured his knee, employee's cervical spine condition did not constitute a "preexisting permanent partial disability" as that phrase is used in § 287.220.1. The administrative law judge and the majority err by including the cervical spine disability in the calculation of Second Injury Fund liability.

I would modify the award to reduce the Second Injury Fund's liability to $6,769.30. For the foregoing reasons, I respectfully dissent from the decision of the majority of the Commission.

James G. Avery, Jr., Member

---

2 56 weeks (knee) + 60 weeks (thoracic/low back) = 116 weeks.

116 weeks X .15 (load) = 17.4 weeks.

17.4 weeks X $389.04 = $6,769.30.

Employee: Lawrence Miller

Departments: N/A

Employer: The Boeing Company Interstate (Settled)

Additional Party: Second Injury Fund

Insurer: Indemnity Insurance Co. of North America

Hearing Date: February 27, 2012

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

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: September 28, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis, 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 occurred or occupational disease contracted: Employee stepped on a loose slat and fell into cockpit of airplane
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right knee
14. Nature and extent of any permanent disability: 35 % PPD of the right knee previously settled with Employer
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\ 389.04 for PPD benefits
4. Method wages computation: Stipulation

1. Amount of compensation payable:

SETTLED

1. Second Injury Fund liability: Yes

33.9 weeks of permanent partial disability from Second Injury Fund

$\ 13,188.46

TOTAL:

$\ 13,188.46

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Andrew Mandel

Employee: Lawrence Miller

Departments: N/A

Employer: The Boeing Company Interstate (Settled)

Additional Party: Second Injury Fund

Insurer: Indemnity Insurance Co. of North America (Settled)

Injury No.: 07-098059

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on February 27, 2012 at the Division of Workers' Compensation in the city of St. Louis, Missouri. Lawrence Miller ("Claimant") was represented by Mr. Andrew Mandel. The Boeing Company Interstate, ("Employer") and its insurer Indemnity Insurance Company of North America previously settled their liability with Claimant, and this matter proceeded to a hearing against the Second Injury Fund ("SIF") which was represented by Assistant Attorney General Michael Finneran. Mr. Mandel requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about September 28, 2007 Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; and Claimant's Permanent Partial Disability ("PPD") rate is $\ 389.04. The only issue for determination by hearing is whether the SIF is liable for PPD benefits.

Claimant is a 52 year old man who has worked for Employer since 1987. In August, 2006, while working for Employer, Claimant injured his neck installing a windshield on an F-18. Claimant was lifting a 300 pound windshield when it started to fall. As he grabbed it, he felt a pain in his neck. Claimant first tried conservative treatment, including injections, without success. Because Claimant continued to experience left sided neck pain, an MRI was performed in February 2007, which revealed degenerative changes. Due to Claimant's cervical radiculopathy and neck pain a second MRI was performed in June 2007 which revealed broad based disc protrusion without spinal cord impingement at C5-6.

In August 2007 Claimant suffered multiple injuries in a motorcycle accident, and was hospitalized for several days. He was diagnosed with a closed head injury, right parietal scalp laceration, possible very small subarachnoid hemorrhage, right shoulder injury - probable strain or tear, multiple right rib fractures, right pulmonary contusion, right flank soft tissue hematoma,

acute pain syndrome secondary to rib fractures, and pulmonary insufficiency secondary to pain and rib fractures.

With the exception of his chest and low back symptoms, Claimant's other injuries resolved. As a result of his motorcycle accident his ribs still give him problems. He frequently sleeps in his recliner due to his right lower chest and right low back pain. At times he has pain from his low back which radiates down to his buttocks. He has difficulty sitting for prolonged periods of time in one position, and sitting in an awkward position increases his low back discomfort. He has difficulty lying flat, and now has to lie on his left side.

On September 28, 2007, Claimant injured his right knee at work when he stepped onto a platform, and fell through a slat into a cockpit. Initially Claimant had conservative treatment at the plant.

While Claimant was still treating for his right knee injury, he continued to treat for his prior 2006 work injury, and underwent an anterior cervical discectomy and fusion at C5-6 in March 2008. The postoperative diagnosis for his neck surgery was a herniated disc at C5-6.

In December 2008 Dr. Nogalski performed an ACL reconstruction surgery on Claimant's right knee. As a result of his right knee injury, Claimant has reduced range of motion. His right knee problems have hindered his ability to do his job. It is difficult for him to be on his knees. He has lost a lot of overtime pay, because he is not able to work as quickly as he used to. He frequently has to ask for assistance to do his job.

Because of his neck injury, Claimant has difficulty doing his job. Because he performs metal and mechanical work in the cockpits of F-18s, which is a small confined area, he has problems getting his head into a small and area and has difficulty moving around.

The combination of Claimant's chest, neck and knee injuries has affected his ability to successfully perform his job.

Claimant settled his 2006 work injury with employer for 27.5 % PPD of the body as a whole referable to the neck. He settled his claim with Employer for the primary injury of September 28, 2007 for 35 % PPD of the right knee.

Dr. Raymond Cohen examined Claimant and issued reports on January 6, 2009, and November 9, 2009. In his January 6, 2009 report, Dr Cohen opined Claimant had 50\% PPD of the body as a whole at the cervical spine as a result of his work injury of August 10, 2006. In his report of November 9, 2009, Dr. Cohen opined Claimant sustained 60\% PPD of the right knee as a result of the primary work injury of September 28, 2007. He rated Claimant's preexisting disability at 25 % of the body as a whole at the thoracic spine/chest level. He opined his preexisting disability combines with the primary work related injury of September 28, 2007 to create a greater overall disability than their simple sum, and constituted a hindrance or obstacle to employment or re-employment.

Based upon a comprehensive review of the evidence, my observations of Claimant at hearing, and the application of Missouri law, I find:

Claimant established a right to recover from the Second Injury Fund. A claimant in a worker's compensation proceeding has the burden of proving all elements of his claim to a reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo.App. E.D.2008). In order for a claimant to recover against the SIF, he must prove that he sustained a compensable injury, referred to as "the last injury," which resulted in permanent partial disability. Section 287.220.1 RSMo. A claimant must also prove that he had a pre-existing permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; (2) was of such seriousness as to constitute a hindrance or obstacle to his employment or reemployment should he become unemployed; and (3) equals a minimum of 50 weeks of compensation for injuries to the body as a whole or 15 % for major extremities. Dunn v. Treasurer of Missouri as Custodian of Second Injury Fund, 272 S.W.3d 267, 272 (Mo.App. E.D. 2008)(Citations omitted). In order for a claimant to be entitled to recover permanent partial disability benefits from the Second Injury Fund, he must prove that the last injury, combined with his pre-existing permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund, 138 S.W.3d 714, 717-18 (Mo. banc 2004). Claimant has met the burden imposed by law.

Claimant sustained a compensable last work injury which resulted in 35\% PPD of the right knee ( 56 weeks). At the time the last injury was sustained, Claimant had preexisting PPD of 15 % of the body as a whole - thoracic spine/chest level ( 60 weeks), and 27.5 % of the body as a whole - cervical spine ( 110 weeks). The credible evidence establishes that the primary right knee injury, combined with the pre-existing chest/thoracic and cervical spine injuries, and a loading factor of 15 % should be added. The Second Injury Fund liability is calculated as follows: 56 weeks plus 60 weeks, plus 110 weeks, equals 226 weeks, with a loading factor of 15 %, equals 33.9 weeks of compensation, at a rate of $\ 389.04, and equals $\ 13,188.46.

This award is subject to an attorney's lien of 25 % in favor of Claimant's attorney, Mr. Andrew Mandel.

Date: $\qquad Made by: \qquad$

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation