James Pippen v. Missouri Highway and Transportation Commission

It is uncontested that employee suffered a preexisting low back injury in the form of a herniated L5-S1 disc which required surgical intervention in 1994. Employee and the Second Injury Fund argue that employee's preexisting low back condition was asymptomatic or non-disabling, such that employer should be held liable for permanent total disability benefits. We are not persuaded. Both Dr. Cohen and Dr. Wagner rated preexisting permanent partial disability referable to employee's low back condition, and employee testified that he had on-and-off back pain and limited his lifting prior to the work injury. We note also that Dr. Cohen testified that employee's need to lie down to control pain is a result of the 2002 primary injury and his preexisting low back condition. See Transcript, page 186.

After careful consideration, we find persuasive Dr. Cohen's testimony (and so find) that employee's need to lie down is a product of both the work injury and employee's preexisting low back condition. It follows that employee's need to lie down does not result from the work injury alone, and in turn, that employee is not permanently and totally disabled as a result of the work injury considered in isolation.

We conclude, instead, that employee is permanently and totally disabled owing to a combination of his preexisting disabling condition in combination with the effects of the work injury. For this reason, we affirm the administrative law judge's conclusion 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, issued November 19, 2012, 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 $10^{\text {th }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: James K. Pippen

Injury No. 02-087791 \& 03-017442

Dependents: Jacob Pippen, Zachary Pippen, and Brandy Henderson

Employer: Missouri Highway and Transportation Commission

Additional Party: Second Injury Fund

Insurer: Self-insured

Hearing Date: August 15, 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? 02-087791: August 22, 2002; 03-017442: January 23, 2003.
5. State location where accident occurred or occupational disease contracted: 02-087791: Butler County, Missouri; 03-017442: Ripley 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: 02-087791: Employee was trying to fix his dump truck tailgate when the

chains broke causing injury to his lumbar spine, cervical spine, and body as a whole. 03-017442: Employee tripped on the outriggers of a backhoe while putting up a sign and fell with his arms out causing injury to his bilateral wrists.

1. Did accident or occupational disease cause death? N/A.

1. Parts of body injured by accident or occupational disease: 02-087791: lumbar spine, cervical spine, and body as a whole referable to depression; 03-017442: right wrist and left wrist.

1. Nature and extent of any permanent disability: (See Findings).

1. Compensation paid to date for temporary total disability: 02-087791: 14,783.78; 03-017442: 0.00.

1. Value necessary medical aid paid to date by employer-insurer: 02-087791: 40,408.44; 03-017442: 76.00.

1. Value necessary medical aid not furnished by employer-insurer: 02-087791: 0.00; 03-017442: 4,020.74 (See Findings).

1. Employee's average weekly wage: Not calculated.

1. Weekly compensation rate: $310.77 for temporary total disability, permanent total disability, and permanent partial disability.

1. Method wages computation: By Agreement.

1. Amount of compensation payable:

02-087791:

a. Employee awarded permanent partial disability from the employer in the amount of $71,477.10 (See Findings).

b. Employee awarded permanent total disability benefits from Second Injury Fund at a rate of $310.77 per week beginning May 3, 2008 (See Findings).

03-017442:

a. Employee awarded permanent partial disability and disfigurement from the employer in the amount of $16,936.97 (See Findings).

b. Employee awarded previously incurred medical aid from the employer in the amount of $4,020.74 (See Findings).

c. Employee's claim against the Second Injury Fund is denied (See Findings).

1. Second Injury Fund liability: Yes (See Findings).
2. Future requirements awarded: Yes (See Findings).

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 costs plus 25 % of all payments hereunder in favor of the following attorneys for necessary legal services rendered to the claimant: Ronald Little and Sheila Blaylock.

On August 15, 2012, the employee, James K. Pippen, appeared in person and by his attorneys, Ronald Little and Sheila Blaylock, for a hearing for a final award. The employer was represented at the hearing by its attorney, John W. Koenig. The Second Injury Fund was represented by Assistant Attorney General, Jonathan Lintner. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about August 22, 2002, Missouri Highway and Transportation Commission was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a self-insured employer.
2. On or about August 22, 2002, the employee was an employee of Missouri Highway and Transportation Commission and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about August 22, 2002, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 310.77.
7. The employee's injury is medically causally related to the work injury occurring on or about August 22, 2002.
8. The employer has furnished $\ 40,408.44 in medical aid to employee.
9. The employer has paid temporary total disability benefits at a rate of $\ 310.77 per week for a total of $\ 14,783.78.
10. Employee reached maximum medical improvement on December 4, 2003.

1. Future Medical Aid.
2. Nature and Extent of Disability.
3. Liability of the Second Injury Fund.
4. Dependency under Schoemehl.

1. On or about January 23, 2003, Missouri Highway and Transportation Commission was operating under and subject to the provisions of the Missouri Workers' Compensation Act and was a self-insured employer.
2. On or about January 23, 2003, the employee was an employee of Missouri Highway and Transportation Commission and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about January 23, 2003, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's rate for temporary total disability, permanent total disability, and permanent partial disability is $\ 310.77.
7. The employer has furnished $\ 76.00 in medical aid to employee.
8. The employer has paid no temporary total disability benefits.
9. The employee reached maximum medical improvement on January 16, 2009.

1. Medical Causation.
2. Previously Incurred Medical Aid.
3. Future Medical Aid.
4. Additional Temporary Total Disability.
5. Nature and Extent of Disability.
6. Liability of the Second Injury Fund.
7. Dependency under Schoemehl.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits

A. Deposition of Dr. Wayne Stillings;

B. Depositions of Dr. Raymond Cohen;

C. Deposition of