Ken Ruch v. Prairie Farms Dairy

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 09-097038

Employee: Ken Ruch

Employer: Prairie Farms Dairy (Settled)

Insurer: Fidelity \& Guaranty Insurance Company (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 $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated February 14, 2013. The award and decision of Chief Administrative Law Judge Grant C. Gorman, issued February 14, 2013, 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 $10^{\text {th }}$ day of July 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

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: December 8, 2009
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 occurred or occupational disease contracted: Claimant fell and several crates of milk landed on top of him.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low Back
14. Nature and extent of any permanent disability: 12.5 % Body as a whole at the low back. Pre-existing: 52.5 % right shoulder and 15 % Left shoulder.
15. Compensation paid to-date for temporary disability: Not Applicable
16. Value necessary medical aid paid to date by employer/insurer? Not Applicable

Employee: Ken Ruch

1. Value necessary medical aid not furnished by employer/insurer? Not Applicable
2. Employee's average weekly wages: Undetermined
3. Weekly compensation rate: $\ 422.97 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable: (Settled)
2. Second Injury Fund liability: Yes

41.32 weeks of permanent partial disability from Second Injury Fund $\ 17,477.12

TOTAL: $\ 17,477.12

1. Future requirements awarded: None

Said payments to begin as of the date of this Award 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:

Robert Keefe

The parties appeared before the undersigned Administrative Law Judge on July 30, 2012 for a final hearing to determine the liability of the Second Injury Fund in the matters of Ken Ruch. Attorney Bob Keefe represented Claimant. Assistant Attorney General Barbara Toepke represented the Second Injury Fund (SIF). The Employer, Prairie Farms, and its Insurer, previously settled with Claimant and did not participate in the hearing. The trials for injury numbers 08-027704 and 09-097038 were tried together in the same proceeding.

The parties stipulated to the following:

1. On or about December 8, 2009, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The injury occurred in St. Charles County, Missouri.
2. Claimant was an employee of Employer pursuant to Chapter 287 RSMo.
3. Venue is proper in Saint Charles County, Missouri.
4. Employer received proper notice of the claims.
5. Claimant filed the claim within the time allowed by law.
6. Claimant's rate for permanent partial disability (PPD) benefits was $\ 422.97.
7. Claimant reached maximum medical improvement (MMI) on February 16, 2010.
8. The record was left open until the deposition of Bob Hammond could be taken on behalf of the SIF.

The sole issue to be determined is the liability of the Second Injury Fund.

Only evidence necessary to support the award will be summarized. Any objections not expressly ruled on during the hearing or in the award are now overruled. To the extent there are marks or highlights contained in the exhibits, those markings were made prior to being made part of this record, and were not placed thereon by the Administrative Law Judge.

Claimant offered the following exhibits, which were received into evidence without objection:

A. CLSS stipulations - d/a 5/7/05 30\% right shoulder and 2\% low back d/a 11/6/06 12½\% low back

d/a 11/6/06 SIF based on 30\% right shoulder

d/a 4/10/08 22½\% right shoulder, SIF remains open

d/a 4/28/08 1\% right shoulder

d/a 12/8/09 12½\% low back, SIF remains open

B. Deposition of Dr. David Volarich, incl. CV and 5/24/06, 2/11/09 and 9/22/10 reports

C. Deposition of Mr. James England, incl. CV and 4/18/11 report

D. PCP Dr. Dale Henselmeier records 8/13/02 - 3/10/10 (shoulder, back, insomnia, depression)

E. 5/7/05 Barnes Hospital ER for right shoulder

F. 5/10/05 MRI right shoulder

G. BarnesCare (Manchester Rd.) 10/98 - 5/12/05 (right shoulder)

H. Dr. Petkovich records 5/20/05 - 1/12/06 (right shoulder, mid and low back) incl. 6/23/05 right shoulder operative note

I. 6/23/05 Missouri Baptist Hospital record of right shoulder surgery

J. 11/6/06 Barnes Hospital St. Peters ER, incl. CT and x-rays mid and low back

K. BarnesCare St. Peters 11/7/06-11/27/06 incl. 11/6/06 CT low back

L. 1/2/07 MRI low back

M. BJC St. Peters 4/10/08-4/28/08 (right shoulder)

N. 5/22/08 MRI right shoulder

O. 6/27/08 right shoulder surgery by Dr. Haupt (open cuff repair and labral debridement)

P. 12/08/09 low back x-rays (severe degenerative changes)

Q. BarnesCare St. Peters 12/8/09 - 12/21/09 incl. 1/13/10 MRI mid and low back

R. Dr. Gunapooti records 3/18/10 - 6/24/10 (pain management)

S. Dr. Lu, neurosurgeon 11/16/10 and 12/5/10

The Second Injury Fund offered the following exhibits, which were received into evidence without objection:

I. Reports of Dr. Sandra Tate

II. Treatment records of Dr. Herbert Haupt

III. Deposition transcript of Mr. Bob Hammond, vocational counselor

Ken Ruch testified that he is 63 years old, was born 7/17/49, stands 5'8" tall, weighs 180 pounds, is not married, and has three grown children and no dependents. He is left-handed. He served in the Marines from 1968 through 1974. He saw a little less than two years of combat duty in Vietnam, but was not injured or wounded, and was honorably discharged. His formal education was limited to the $10^{\text {th }}$ grade, and he achieved his GED in 1969 while in Vietnam.

Mr. Ruch's employment history includes building freezers for Hussman, welding for Hunter Engineering and A.O. Smith, working sheet metal for Emerson Electric, and driving and delivery for Circuit City. He worked for Prairie Farms Dairy from 1995 until he left in January of 2010. He delivered milk, work that was physically demanding, requiring him to repeatedly get in and out of the truck and lift multiple heavy cases of milk.

Since leaving Prairie Farms, in January of 2010, he worked part time for Jim Trenary Chevrolet for approximately one year at $\ 8 an hour, earning about $\ 1,000 for the entire year. He stopped because the work caused too much pain in his back and shoulders. He did not apply for unemployment benefits because he did not believe he was capable of working. His only income is social security disability.

On December 8, 2009 Claimant fell from a platform and several crates of milk fell on top of him. He injured his back and left leg. He ultimately settled the case for 12.5 % of the body at the low back. Prior to this injury, he had several injuries to his right shoulder, two of which required surgical intervention. Workers' compensation settlements are in the record for the right shoulder injuries. He also had a previous injury to his left shoulder. He had two injuries to his low back which predated the primary injury, one settled for 2 % PPD and the other for 12.5 % PPD. All of his low back injuries have received conservative medical treatment.

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

Permanent and total disability is defined as the "inability to return to any employment and [does] not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." § 287.020.6, RSMo 2000; Garcia v. St. Louis County, 916

S.W.2d 263, 266 (Mo. App. E.D. 1995). The claimant in a workers' compensation proceeding has the burden to prove by a preponderance of credible evidence all material elements of his claim. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo. 1968); Lawrence v. Joplin R-VIII Sch. Dist., 834 S.W.2d 789, 793 (Mo. App. S.D. 1992). The Second Injury Fund is only responsible for permanent and total disability benefits where the work injury combines with some preexisting condition to render the individual permanently and totally disabled. § 287.220.1 RSMo 2000. In this case, the preponderance of the evidence shows that Claimant is not permanently and totally disabled.

No physician found Claimant unable to work. Dr. Sandra Tate wrote on June 27, 2011, that in her opinion, Claimant needed no work restrictions due to the 2009 work injury. (Ex. SIF I). If no work restrictions are necessary for the primary injury, Claimant remains as employable after the injury as he was before and should be able to return to his former employment. Dr. David Volarich testified, "Yeah, I said he may be able to perform some work activities on a limited basis with the following restrictions." (Ex. B, p. 10). Further, Dr. Volarich did not opine Claimant is permanently and totally disabled.

The records of Dr. James Lu, a neurosurgeon Claimant saw on his own, indicate Claimant has degenerative disk disease throughout his lumbar spine. He specifically stated "Given his diffuse degenerative changes in the lumbar spine, it is difficult to identify a specific pain generator(s). L4-5 and L5-S1 are the most common culprits, but the changes at these levels on Mr. Ruch's imaging is not particularly severe." (sic) Dr. Lu advises against surgery. Even Dr. Volarich describes the primary injury of December 8, 2009 as a "severe strain injury and aggravation of his degenerative disc disease and degenerative joint disease..." There are no opinions that the objective medical findings in Claimant's low back are the result of the 2009 work injury.

Vocational evidence shows Claimant remains employable in the open labor market. Bob Hammond testified that Claimant remains employable in the open labor market under the restrictions of either Dr. Tate or Dr. Volarich. (Ex. SIF III, p.11-13). Hammond testified that Claimant could work as a truck dispatcher or parking lot attendant with the restrictions provided by the doctors. (Ex. SIF III, p. 12-13). James England wrote that with no restrictions from Dr. Tate or Dr. Haupt, there would be no contraindication to Claimant continuing to work. (Ex. C, $4 / 18 / 11$ report).

Claimant's continued employment is evidence of his ability to compete in the open labor market. Claimant testified that following his work injury he obtained employment at Jim Trenary Chevrolet as a car porter. Claimant testified that he worked there for at least a year making $\ 8 an hour. He testified he worked from 1 to 3 or 4 days a week during that year.

Claimant's vocational expert's opinion is flawed in that he was unaware of Claimant's part-time employment. The only expert opinion presented that Claimant is unemployable is vocational expert James England. England testified he was unaware when giving his opinions that Claimant had been employed at Jim Trenary following his recovery from the work injury. (Ex. C, p. 19). He admitted that this information would be important for him to know when giving his opinions. (Ex. C, p. 19). The fact of Claimant's subsequent employment at Jim

Trenary is important information that the vocational expert should have learned from the Claimant, and the fact that he did not have this information makes his opinion less credible.

Mr. England opined Claimant would not even be able to successfully compete for employment in the open labor market. However, Claimant was successful in securing employment at Jim Trenary Chevrolet. The opinions of Mr. Hammond are more credible than the opinions of Mr. England.

Claimant testified, and the medical reports reflect that he was experiencing the same set of symptoms between the 2006 back injury and the 2009 back injury as he was after the 2009 back injury: pain in the low back with radicular symptoms, left worse than right. Both injuries were treated conservatively. There is no medical opinion which indicates the primary injury of 2009 caused the objective medical findings of the lumbar spine. Claimant's own rating physician diagnosed a strain superimposed on degenerative disc and joint disease. Moreover, Claimant testified his back has been getting worse since the 2009 injury, which is consistent with the diagnosis of degenerative disc and joint disease. Claimant has failed to meet his burden of proof that he is permanently and totally disabled as a result of the combination of his last injury and his pre-existing injuries or disabilities.

Claimant has established a right to recover from the Second Injury Fund (SIF). A claimant in a workers' compensation proceeding has the burden of proving all elements of his claim to a reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 W.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 preexisting 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.

1. Claimant sustained a compensable last injury which resulted in permanent partial disability equivalent to 12.5 % of the body as a whole for the low back. Dr. Volarich's opinion on the issues of primary PPD is credible.
2. As of the time the last injury of December 8, 2009 was sustained, Claimant had 52.5\% permanent partial disability of his right shoulder, which meets the statutory thresholds

and was of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. He also had 15 % permanent partial disability of his left shoulder, which meets the statutory thresholds and was of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. Claimant's low back complaints were essentially the same prior to the last injury, although he indicated a subjective worsening of the pain, after the last injury, so there is no synergistic effect between the pre-existing low back injury and the primary low back injury.

Total weeks for pre-existing: 156.6 weeks

1. The credible evidence establishes that the last injury of December 8, 2009, combined with the pre-existing permanent partial disabilities, causes a 20 % greater overall disability than the independent sum of the disabilities.
2. The Second Injury Fund liability is calculated as follows with regard to injury no. 09097038: 50 weeks for last injury +121.8 weeks for pre-existing right shoulder injuries + 34.8 weeks for pre-existing left shoulder injuries $=206.6 weeks \times 20 \%=41.32 weeks x \ 422.97 PPD rate $=\ 17,477.12.

The Second Injury Fund is liable to Claimant for $\ 17,477.12 in permanent partial disability benefits. Attorney for Claimant, Robert Keefe, shall be entitled to an attorney fee of 25 % of the award for necessary services provided.

Made by: /s/ GRANT C. GORMAN<br>GRANT C. GORMAN<br>Chief Administrative Law Judge<br>Division of Workers' Compensation