Darrell Hendrix v. SR Processing Incorporated

Employee continued to experience significant problems with his right shoulder. On October 17, 2008, employer sent employee to be evaluated by Dr. Brian Schafer, who ordered an MRI and recommended injections and anti-inflammatory medications to address employee's ongoing pain complaints. The MRI revealed high-grade partial tear of the anterior leading edge of the supraspinatus tendon at the site of the previous surgery. Dr. Schafer performed an injection, which provided employee with little relief, and recommended employee undergo a platelet-rich plasma injection.

Employer denied the treatment recommended by Dr. Schafer, and instead sent employee to be evaluated by Dr. Mitchell Rotman on July 13, 2009. Dr. Rotman opined that employee had an incomplete healing of his rotator cuff tear, and possibly a re-tear. Dr. Rotman recommended a repeat arthroscopy and re-repair of the shoulder. This surgery was never performed.

Currently, employee suffers from aching pain whenever he moves his right shoulder, and he is unable to do much with his right arm. Employee rates the pain at a six or seven out of ten in intensity. Employee takes over-the-counter pain and anti-inflammatory medications to address the pain. Employee has reduced grip in his right hand, and has problems driving. Employee cannot thread his belt through the belt loops on his pants, and cannot use a hair dryer. Employee has been forced to give up his hobby of bow hunting, because he can't pull the bow back. We find that employee sustained a 40\% permanent partial disability of the right shoulder as a result of the primary injury.

Employee began having back problems in the late 1980s or early 1990s. Employee's back problems made it more difficult for employee to perform certain job duties for employer, such as unloading trucks. Employee had to lie down in a recliner after finishing his work day to rest his back. Dr. David Volarich diagnosed employee's condition as a chronic thoracic strain injury, which he rated at 20\% permanent partial disability of the body as a whole.

Employee has experienced trouble breathing since he was a child. In 2005, doctors diagnosed employee as having one lung smaller than the other. Employee feels as if he is out of breath with any exertion, even walking short distances. Dr. Volarich diagnosed this condition as mild shortness of breath secondary to body habitus, which he rated at 7.5 % permanent partial disability of the body as a whole.

Employee has experienced problems with his urethra requiring surgical intervention. Employee underwent four surgeries to address this condition, which leaves employee with a need to use the restroom at least once hourly. Dr. Volarich diagnosed this condition as urethral stenosis, which he declined to rate, deferring to an urologist. Employee has not provided a rating from a urologist.

We are not persuaded by Dr. Volarich's testimony that employee's preexisting breathing problems constituted a permanent partially disabling condition at the time of the primary injury. Nor are we persuaded that employee's preexisting urethral stenosis amounted to a preexisting permanent partial disability at the time of the primary injury. We do find

persuasive Dr. Volarich's testimony (and so find) that employee suffered a preexisting 15% permanent partial disability of the body as a whole referable to the thoracic spine at the time of the primary injury, and that this condition constituted a hindrance or obstacle to employment.

Employee presents the testimony of vocational expert James England, who performed a vocational assessment and opined that employee is permanently and totally disabled owing to a combination of his preexisting problems and the effects of the right shoulder injury. Mr. England opined that employee's need to rest frequently and his inability to use his right arm render him unemployable on the open labor market.

The Second Injury Fund presents the testimony of vocational expert Stephen Dolan, who performed a vocational assessment and opined that employee is not permanently and totally disabled. Mr. Dolan explained that employee is qualified for many unskilled jobs in the area where he lives, and that a stable market exists for these jobs.

After careful consideration, we are not persuaded by Mr. England's testimony that employee is permanently and totally disabled. We find more persuasive the testimony from Mr. Dolan that employee is not permanently and totally disabled.

On the other hand, we find persuasive the testimony from Dr. Volarich that the effects of employee's preexisting thoracic spine condition and the effects of the primary right shoulder injury combine in a synergistic fashion. We find that 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 is equal to 50% permanent partial disability of the body as a whole.

Section 287.220.1 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." That section provides that a preexisting disability must meet certain thresholds before Second Injury Fund liability is triggered.

We have found that employee suffered from a 15% preexisting permanent partial disability of the body as a whole referable to his chronic thoracic spine injury at the time he suffered the compensable work injury, and that employee's primary injury amounts to a 40% permanent partial disability of the right shoulder; both of these conditions meet the applicable thresholds under § 287.220.1. We have credited Dr. Volarich's opinion that the thoracic spine condition constituted a hindrance or obstacle to employment at the time the last injury was sustained. We have also credited Dr. Volarich's testimony that employee's right shoulder injury combines synergistically with the preexisting thoracic spine condition.

Section 287.220.1 provides, in relevant part, as follows: "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 ..."

We have determined that 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 is equal to 50 % permanent partial disability of the body as a whole. Applying the foregoing language, we calculate Second Injury Fund liability as follows: 50\% permanent partial disability of the body as a whole ( 200 weeks) - 15 % permanent partial disability of the body as a whole referable to the thoracic spine ( 60 weeks) -40 % permanent partial disability of the right shoulder ( 92.8 weeks) $=47.2$ weeks.

We conclude that the Second Injury Fund is liable for 47.2 weeks of permanent partial disability benefits at the stipulated rate of $\ 259.56, for a total of $\ 12,251.23.

We reverse the award of the administrative law judge. The Second Injury Fund is liable for $\ 12,251.23 in permanent partial disability benefits.

This award is subject to a lien in favor of James Turnbow, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Gary L. Robbins, issued January 25, 2013, is attached solely for reference.

Given at Jefferson City, State of Missouri, this $12^{\text {th }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

January 22, 2013

Ms. Naomi Pearson

Division of Workers' Compensation

PO Box 58

Jefferson City, Missouri 65102-0058

In Re: Injury Number: 07-080543

Employee: Darrell L. Hendrix

Employer: SR Processing Incorporated

Insurer: New Hampshire Insurance Company

Additional Party: Second Injury Fund

Dear Ms. Pearson:

I have enclosed a final award in the above referenced workers' compensation case. The Second Injury Fund was not ordered to pay any benefits to the employee.

Sincerely,

Gary L. Robbins

Administrative Law Judge

Cape Girardeau, Missouri

Employee: Darrell L. Hendrix

Injury No. 07-080543

Dependents: N/A

Employer: SR Processing Incorporated

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Company

Appearances: James M. Turnbow, attorney for employee.

Jennifer Kornblum, attorney for Second Injury Fund.

Hearing Date: October 25, 2012

Checked by: GLR/rm

1. Are