Michael Williams v. Cassens Transport Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 07-114578

Employee: Michael Williams

Employer: Cassens Transport Company (award previously issued)

Insurer: Self-Insured (award previously issued)

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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated July 9, 2012. The award and decision of Administrative Law Judge Kathleen M. Hart, issued July 9, 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 $28^{\text {th }}$ day of June 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Michael Williams

Injury No.: 07-114578

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Injury

Injury

Date: April 23, 2012

Divisions of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

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: November 29, 2007
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Claimant injured his right shoulder, right elbow, right knee, and psyche as a result of a fall at work.
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: right shoulder, right elbow, right knee, psyche
14. Nature and extent of any permanent disability: 30 % right shoulder, 22.5 % right elbow, 25 % right knee, 12.5 % body as a whole referable to depression; and permanent and total disability benefits from the SIF
15. Compensation paid to-date for temporary disability: $\ 35,331.84
16. Value necessary medical aid paid to date by employer/insurer? $\ 117,637.03

Employee: Michael Williams

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: Stipulation

1. Amount of compensation payable:

206.85 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Indeterminate

Permanent total disability benefits from Second Injury Fund:

weekly differential of $\ 353.68 payable by SIF for 206.85 weeks beginning

December 4, 2008, and, thereafter, $\ 742.42 weekly for Claimant's lifetime

as provided by law.

TOTAL:

INDETERMINATE

1. Future requirements awarded: none

Said payments to begin immediately 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:

James J. Sievers, Jr.

Employee: Michael Williams

Injury No.: 07-114578

Dependents: n/a

Before the

Employer: Cassens Transport Company (award previously issued)

Division of Workers'

Additional Party: SIF Only

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self c/o Broadspire (award previously issued)

Checked by: KMH

A hearing was held on the above captioned matter April 23, 2012. Michael Williams (Claimant) was represented by attorney James Sievers. The SIF was represented by Assistant Attorney General Kevin Nelson. Cassens Transport (Employer) and Claimant settled the primary claim prior to trial.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award. Any markings on the exhibits were present when admitted into evidence.

Claimant alleges he sustained an injury by accident November 29, 2007, while in the course and scope of his employment. He alleges he is permanently and totally disabled as a result of the combination of his primary and prior injuries and disabilities.

The parties stipulated to the following:

1. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the alleged date of injury.
2. Employer's liability was fully self-insured.
3. Employer had notice of the alleged injury and a claim for compensation was timely filed.
4. Claimant's average weekly wage yields rates for TTD/PTD of $\ 742.72 and PPD of $\ 389.04.
5. Claimant was paid TTD for 47.5 weeks totaling $\ 35,331.84. He received medical benefits of $\ 117,637.03.

1. On August 29, 2011, an award was issued finding Claimant sustained 30\% PPD to the right shoulder, 22.5 % PPD to the right elbow, 25 % PPD to the right knee, and 12.5 % to the body as a whole related to depression, all as a result of the primary injury.
2. If Claimant is permanently and totally disabled, the permanent total disability began December 4, 2008.

The parties stipulated the issues to be resolved are as follows:

1. Whether Claimant sustained an accident that arose out of and in the course and scope of his employment.
2. SIF liability.

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 63 year-old male. He has a tenth grade education and earned a GED while in the Army. He served in Vietnam and was honorably discharged in 1970. He began working for Employer after his discharge.
2. Claimant worked for Employer as a laborer/yard man for 39 years. His duties included loading and unloading automobiles onto railroad cars, changing batteries and tires, and various other duties requiring a considerable amount of lifting and standing. Claimant worked five to seven days a week and worked overtime.
3. Claimant had a number of injuries and disabilities prior to his 2007 work injury.
4. Claimant first injured his low back in 1987. He had a number of strains and flare ups which eventually required treatment with a TENS unit. In 1994 an MRI showed a herniated disc at L4-5, and Claimant had a microdiscectomy at that level. His complaints did not resolve, and he underwent a redo lumbar microdiscectomy at L4-5 in August 1995. Claimant was able to return to work, but continued to have significant pain in his back and right hip. A 2003 MRI showed significant degenerative changes, multiple bulges and spinal stenosis. Leading up to and beyond his primary injury, he had pain and difficulties with his low back into his right leg. He could not lift as much as he had before his injuries. He is not able to sleep well due to back pain. Claimant continues to take anti-inflammatories.

1. Claimant settled his prior back injuries for a total of 60 % PPD.
2. Claimant injured his neck in November 1995. After conservative treatment failed, an MRI showed a herniated disc at C6-7. Surgery was considered but not performed. Leading up to and continuing beyond the primary injury, Claimant continued to have pain in his neck. Claimant testified he had difficulty loading trucks at work because he could not turn his head to the left when driving.
3. Claimant injured his right hand at work in 1989. He fractured his hand when it got caught in a railroad car door. He was treated with a splint and injections, but his complaints did not improve. He developed numbness in his fingers, and was diagnosed with carpal tunnel syndrome. In April 1991, he underwent a right open carpal tunnel release, trigger thumb release, and excision of a bone fragment of the triquetrum. Claimant testified he continued to have problems with his right hand leading up to his primary injury. He had pain and weakness in his hand, and difficulty performing many of his tasks at work.
4. He settled this injury with Employer for 26 % PPD of the right hand.
5. Claimant developed carpal tunnel syndrome in his left hand in the early 1990s. He had a carpal tunnel release, but continued to have pain and numbness in his hand leading up to his primary injury. His left hand was weak, and he had difficulty using his hand at work. He developed pain in his left elbow, and was diagnosed with left cubital tunnel syndrome in 1993. He had an ulnar nerve transposition, but continued to have significant problems with his left arm. He had pain in his wrist and elbow. He was able to return to work, but had difficulty because his arm is weaker and he cannot completely straighten his arm.
6. He settled this case with Employer for 17.5 % PPD to his left elbow and 17.5 % PPD to his left wrist.
7. In 2004, Claimant was diagnosed with arthritis in both thumb joints as well as an aggravation of his right carpal tunnel syndrome. Claimant had numerous injections into his thumbs, and arthroplasty was considered.
8. Claimant first injured his left knee in 1993. He had physical therapy, and was diagnosed with a strain. In 1997, he reinjured his left knee when he fell and fractured his knee cap. Claimant continued to have problems with his left knee leading up to his primary injury. He had problems going up and down stairs, squatting and kneeling at work.
9. Claimant settled his knee injuries with Employer for 21 % PPD of the left knee. In addition, the SIF settled with Claimant admitting he had preexisting disabilities of 55 % of the back, 17.5 % of the left wrist, 17.5 % of the left elbow, 26 % of the right hand, and 15 % of the neck.
10. Claimant developed pain in his left foot in 1996 and was diagnosed with left plantar fasciitis. He had a series of injections, and was given a splint and anti-inflammatories. Surgery was discussed, but Claimant declined. Claimant has continued to have pain,

stiffness, and tenderness in his foot. He has difficulty standing and walking for extended time periods, making his job more difficult.

1. Claimant had problems with his right shoulder before his primary injury. He had an MRI in 1999, and was diagnosed with an impingement syndrome. He had a series of injections, and used over the counter medications on a daily basis. He continued to have pain and limitations in his shoulder leading up to his primary injury.
2. Claimant also had problems with his right knee prior to the primary injury. He has had numerous injections, but continued to have knee pain, stiffness, and limitations leading up to his primary injury.
3. Claimant had psychiatric problems prior to his primary injury. His step-father physically and mentally abused him as a child. He was in combat in Vietnam, and saw many of his fellow soldiers and friends killed. He had treatment at the VA on numerous occasions, and was diagnosed with PTSD and a major depressive disorder. He continues to have flashbacks of his experiences in Vietnam and avoids violent or military content in movies or on television.
4. Claimant testified he had problems working before 2007 due to all of his prior injuries, but continued to work regular hours and overtime. He needed to work, and if an employee did not work overtime or had any permanent restrictions, there was no work available for them. Claimant stopped hunting and fishing before 2007 because he was too worn out after working all week.
5. On November 29, 2007, Claimant was walking down a flight of worn, slick, metal steps at work when he fell backwards with his right knee flexed under him. He reached up to the handrail to stop his fall, and twisted his right arm. He sustained injuries to his right shoulder, right elbow, and right knee as a result of this fall.
6. Employer sent Claimant to BarnesCare where he received conservative treatment. The doctor took Claimant off work, put his right arm in a sling, and gave him a knee support and cane. When Claimant's symptoms continued, he was sent for an MRI on his shoulder and knee.
7. Claimant began treating with Dr. Haupt for his right knee. On December 18, 2007, Dr. Haupt performed a right arthroscopic partial medial and lateral meniscectomy and debridement of synovitis and chondromalacia. He sent Claimant for physical therapy.
8. Claimant's right shoulder symptoms increased, and Dr. Haupt performed extensive arthroscopic surgery and an open repair of two rotator cuff tears in April 2008. Claimant's arm was immobilized, causing him to develop numbness in his right hand.
9. Dr. Haupt diagnosed Claimant with right cubital tunnel syndrome and sent Claimant for additional physical therapy. His symptoms continued, and Dr. Haupt performed a right ulnar nerve transposition in May 2008. Dr. Haupt noted Claimant's shoulder healing was complicated by his elbow complaints, and he developed atrophy and depression.

Claimant continued his physical therapy and Dr. Haupt prescribed Neurontin in September 2008.

1. Claimant saw Dr. Stillings in October 2008. He opined Claimant had a mood disorder related to the injury, and he recommended medications and therapy.
2. In November 2008, Dr. Haupt sent Claimant for a functional capacity evaluation which showed he could work at a medium level. He released Claimant at MMI on December 3, 2008, and imposed numerous permanent restrictions for lifting, and restricted him from ladders, squatting and kneeling.
3. Claimant began treating with Dr. Stillings January 2009. He opined Claimant's mood disorder and pain disorder were due to his November 2007 injury. An award was issued in August 2011 finding Claimant was in need of ongoing psychiatric treatment related to this injury. He continues to see Dr. Stillings. His treatment addresses the primary injury and Claimant's prior psychiatric conditions. Claimant will require lifelong psychiatric treatment.
4. Claimant continues to have pain in his right knee, and he is unable to stand and walk for long periods of time. He wears a brace on occasion. He can't climb stairs or kneel, and avoids walking on ramps or uneven surfaces. His symptoms increase with bending and squatting. Claimant continues to have constant pain in his right shoulder. He has significantly reduced range of motion, and his shoulder frequently pops. He has difficulty reaching overhead, and keeps his arm close to his body in an effort to reduce his pain level. He can't lay on his right side. Claimant testified he has not noticed any improvement following surgery. Claimant continues to have swelling and tenderness in his right elbow. Extension causes pain, and he holds his elbow flexed most of the time. Since this injury, his fingers on his right hand constantly twitch, and he rubs his hand to alleviate the discomfort.
5. Claimant testified he wanted to return to work, but he can no longer do his job due to all of his injuries.
6. Claimant's expert, Dr. Volarich, reviewed the medical records, examined Claimant, and issued a report in 2010. He opined Claimant is permanently and totally disabled as a result of his primary injury in combination with his pre-existing conditions. He issued numerous permanent restrictions and recommendations.
7. Claimant's psychiatric expert, Dr. Bassett, reviewed all the records and met with Claimant. He issued a report in 2010 and noted Claimant had preexisting mental health issues. After the 2007 work injury, Claimant developed depression as a result of his pain and decreased functioning. Dr. Bassett rated Claimant's psychiatric disability at 15 % of the body related to the primary injury and 25 % related to his prior psychiatric conditions.
8. Claimant's vocational expert, Delores Gonzalez, reviewed the records, met with Claimant, and issued a report in 2010. She opined his WRAT scores indicate Claimant would have difficulty learning new tasks that require basic reading, spelling, and math.

His numerous physical injuries limit him to less than sedentary work. She opined he is not capable of working in the open labor market based on the combination of his age, education, and multiple permanent disabilities.

1. Claimant's vocational expert, Jim England, opined Claimant's career offers no transferable skills to alternative work. Based on his physical restrictions, he is limited to less than sedentary work. Adding in his psychiatric limitations, he is unable to compete in the open labor market or sustain even sedentary work. He is permanently and totally disabled as a result of the combination of his problems.
2. On a typical day, Claimant does not do much. He goes to the doctor, watches television, and goes to the VFW hall a few times a week. He is able to do some housework, but is very slow. His sister helps him with his housework. His son does most of the yard work. Claimant has difficulty sleeping, and wakes up every few hours because of pain. He drives about 30 minutes at a time, and then needs to stretch.
3. Claimant is credible.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

Section 287.020.3(2) provides an injury shall be deemed to arise out of and in the course of employment only if the accident was the prevailing factor in causing the injury and the injury "does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life."

There is no dispute Claimant was injured at work. The SIF argues Claimant's injury did not arise out of his employment because he fell while walking down stairs, which is a risk to which he is equally exposed outside of employment, and because he fell while descending the stairs after using the restroom, a matter of personal comfort. The Supreme Court in Johme v. St. John's Mercy Healthcare, ---S.W.3d---, (2012) noted the personal comfort doctrine language is absent in the 2005 revisions to the workers' compensation law. The court found an employee's injury that occurred while she was making coffee did not arise out of her employment. The court noted Ms. Johme chose the shoes she was wearing, and there was no allegation the floor had any spills or other hazards. Nothing about her employment caused the fall.

The SIF also argues Miller v. Mo. Highway and Transportation Commission, 287 S.W.3d 671, (Mo. Banc. 2009) compels a denial of Claimant's case. In Miller, the Court found Mr.

Miller's accident did not arise out of his employment because he fell while walking normally, and nothing regarding the conditions of employment contributed to the injury. The Court also noted Mr. Miller did not allege his injuries were worsened due to some condition of his employment or due to being in an unsafe location due to his employment.

The present case differs from these two cases. In the present case, the hazardous conditions of Claimant's employment caused his injury. Claimant fell while descending worn, slippery, metal steps that had no treads or other material on them to provide traction. These were hazardous steps. This is not a case where Claimant was descending stairs as he would in his normal nonemployment life. Claimant's injury came from a hazard or risk related to his employment and particular to his workplace, namely climbing unsafe hazardous steps to maneuver throughout Employer's building.

I find Claimant's injuries arose out of and in the course of his employment.

Section 287.220 RSMO (2005) provides that in cases of permanent total disability against the Second Injury Fund, there must be a determination of the following:

- the percentage of disability resulting from the last injury alone;

- that there was a pre-existing permanent disability that was a hindrance or obstacle to employment or to obtaining re-employment;

- that all of the injuries and conditions combined, including the last injury, have resulted in the employee being permanently and totally disabled.

Based on my review of the medical records and Claimant's testimony, I find Claimant sustained 30 % PPD to his right shoulder, 22.5 % of the right elbow, 25 % of the right knee, and 12.5 % of the body as a whole related to depression resulting from his primary injury.

Claimant had a number of pre-existing injuries and disabilities. He continues to have significant complaints and restrictions to his neck, upper extremities, lower extremities, and low back. He has taken prescription pain medications for several years. Each of these injuries limits his ability to work. I find Claimant's preexisting injuries and disabilities were a hindrance or obstacle to employment or to obtaining re-employment.

The SIF argues Claimant can only testify to and the court can only consider prior injuries listed on the claim form, namely Claimant's prior low back, right wrist, and left wrist injuries. I find this argument disingenuous. I find nothing in the statute that restricts a consideration of all prior injuries. Further, the SIF had notice of and was well aware of the extent of Claimant's prior injuries and conditions. The SIF paid Claimant in the past for the combination of a primary injury with prior injuries over and above those listed on the 2007 injury claim form. The SIF was provided all Claimant's medical records, and participated in the depositions of Dr. Volarich, Jim

England, Delores Gonzalez, and Dr. Bassett without objection. Each of these medical and vocational experts issued reports and testified to the full extent of Claimant's prior injuries. The SIF participated in Claimant's deposition. Claimant's testimony conformed to the evidence that was admitted without objection.

The final question is whether the combination of Claimant's injuries rendered him permanently and totally disabled. The test for total disability is whether Claimant is able to adequately compete in the open labor market. The question is whether any employer in the usual course of business would reasonably be expected to employ Claimant given his condition.

Dr. Volarich and Dr. Bassett are the only physicians who examined Claimant regarding all of his injuries. Dr. Volarich issued numerous reports finding Claimant is permanently and totally disabled due to a combination of his disabilities, and he imposed significant restrictions. The vocational experts agree these restrictions preclude Claimant from returning to his previous occupation or sustaining any other job, even at a sedentary level. They agree Claimant is not capable of any competitive work, and he is not a candidate for vocational rehabilitation.

Based on my observations of Claimant, his credible testimony, the vocational and medical evidence, I find Claimant is permanently and totally disabled as a result of the combination of his primary and prior injuries and disabilities. It is not the last injury alone that totally disabled him. Although he was working full time before 2007, he credibly testified he was not allowed to work with any restrictions. The medical records corroborate his credible testimony that he had limitations to his neck, back, upper extremities, lower extremities, and he had psychiatric limitations. Claimant is no longer able to compete in the open labor market and no employer in the usual course of business would reasonably be expected to employ him.

The parties stipulated if Claimant is permanently and totally disabled, the total disability began December 4, 2008. The SIF is hereby ordered to pay permanent total disability benefits at the differential rate of $\ 353.68 per week beginning December 4, 2008, for 206.85 weeks, and thereafter $\ 742.72 per week for as long as provided by law. The amount accrued to date shall be paid forthwith with interest as provided by law.

James J. Sievers is allowed a fee of 25 % of all benefits awarded for necessary legal services rendered, which shall constitute a lien on said compensation.

Made by: $\qquad$

KATHLEEN M. HART

Administrative Law Judge

Division of Workers' Compensation