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