Chris Byrd v. Home Services Oil Company

This workers’ compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties’ briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The administrative law judge’s award sets forth the stipulations of the parties and the administrative law judge’s findings of fact as to the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications herein.

Employee suffered a left shoulder injury in 1995 that required surgical intervention. Employee settled a workers’ compensation claim arising from the injury for 30% permanent partial disability of the left shoulder, plus 2.5% permanent partial disability of the body as a whole. Dr. Poetz rated employee’s preexisting left shoulder injury at 35% permanent partial disability of the left upper extremity at the level of the shoulder.

We acknowledge the evidence that employee’s preexisting left shoulder condition did not cause him to miss work or turn down overtime leading up to the primary injury; however, employee credibly testified (and we so find) that he continued to have pain in his left shoulder, and continued to suffer weakness in the left shoulder whenever he overused it. We find that the prior left shoulder injury never completely abated prior to January 10, 2007, the date of the primary injury. We find persuasive and adopt Dr. Poetz’s opinion that employee suffered preexisting permanent partial disability referable to the left upper extremity at the level of the shoulder.

Dr. Poetz rated the primary right shoulder injury at 50 % of the right upper extremity as measured at the right shoulder; Dr. Emanuel meanwhile, rated employee's primary right shoulder injury at 10 % permanent partial disability, while Dr. Burns found a 10\% physical impairment of the shoulder.

After careful consideration, we find that employee's disability resulting from the work injury amounts to 50 % permanent partial disability of the right upper extremity at the 232-week level. We find appropriate and adopt Dr. Emanuel's finding that employee reached maximum medical improvement on March 23, 2010.

We understand the administrative law judge's conclusion that the pain associated with the last injury alone renders employee permanently and totally disabled, but we cannot disregard all of the expert opinions on the record finding permanent total disability, which point to a combination of the effects of the work injury and employee's preexisting left shoulder disability.

Both Mr. England and Dr. Poetz opined that employee's inability to compete for work in the open labor market is due to pain associated with the primary injury, in combination with the effects of employee's preexisting left upper extremity problems. Dr. Poetz explained that when one shoulder is disabled to any extent, the other shoulder has to do more work, resulting in greater disability to both shoulders. Mr. England likewise pointed to the fact employee has problems with both upper extremities as the primary consideration leading Mr. England to conclude he is not employable.

We find persuasive and adopt the opinions of Mr. England and Dr. Poetz that employee's permanent total disability results from a combination of the primary injury and employee's preexisting left shoulder injury.

On page 12 of his award, the administrative law judge recites a number of findings by Dr. Emanuel concerning range of motion testing of employee's right upper extremity. We note a recurrent typographical error in these findings. For example, in the second sentence of the first full paragraph, the award states: "He demonstrated 1300 of forward flexion, 700 of abduction, $45^{\circ} of internal rotation and 65^{\circ} of external rotation." The first two measurements should read 130^{\circ} and 70^{\circ}$, rather than 1300 and 700 . We correct the same error throughout page 12 of the award as follows:

In the second-to-last sentence of the first full paragraph, "1650 of passive range" should instead read " $165^{\circ}$ of passive range";

In the sixth sentence of the second full paragraph, "1450 of active forward flexion and abduction was 1600 of passive motion," should instead read " $145^{\circ} of active forward flexion and abduction was 160^{\circ}$ of passive motion"; and

In the tenth sentence of the fourth full paragraph, "pendulums to 900," should instead read "pendulums to $90^{\circ}$ ".

On page 27 of his award, in the first sentence of the seventh full paragraph, the administrative law judge states: "Mr. Woods offers evidence that in the Court's opinion can be interpreted to have segments that support permanency from the last accident alone or in combination." This appears to be a clerical error, as no witness by the name of Woods testified in this matter. Accordingly, we correct this error by deleting from the award the entire paragraph in which the quoted sentence is found.

Section 287.190 RSMo provides for the payment of permanent partial disability benefits in connection with employee's compensable work injury. We have found that employee sustained a 50 % permanent partial disability of the right shoulder at the 232 -week level as a result of the primary injury. This amounts to 116 weeks of permanent partial disability at the rate of $\ 376.55. We conclude, therefore, that employer is liable for $\ 43,679.80 in permanent partial disability benefits.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

We have found that employee suffered from a preexisting permanent partially disabling condition referable to his left shoulder at the time he sustained the work injury. We are convinced this condition was serious enough to constitute a hindrance or obstacle to employment. This is because we are convinced employee's preexisting left upper shoulder condition had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of the condition. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995). This, in fact, is what occurred, as we have credited Dr. Poetz's opinion and found that employee was forced, as a result of the primary right shoulder injury, to increase the use of his

Improve: Chris E. Byrd

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previously compromised left arm, which has rendered employee significantly more disabled than he would be in the absence of the preexisting condition.

Having found that employee suffered from a preexisting permanent partially disabling condition that amounted to a hindrance or obstacle to employment, we turn to the question whether the Second Injury Fund is liable for permanent total disability benefits. In order to prove his entitlement to such an award, employee must establish that: (1) he suffered a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. ABB Power T & D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). Section 287.220.1 requires us to first determine the compensation liability of the employer for the last injury, considered alone. If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, not the Second Injury Fund, is responsible for the entire amount of compensation. "Pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

We have found employee sustained a 50% permanent partial disability of the right shoulder at the 232-week level as a result of the primary injury, and credited the expert opinions from Mr. England and Dr. Poetz that employee's permanent total disability results from a combination of his preexisting left shoulder injury with the effects of the primary injury. We find that employee is not permanently and totally disabled as a result of the last injury considered in isolation.

We conclude employee is permanently and totally disabled owing to a combination of his preexisting disabling conditions in combination with the effects of the work injury. The Second Injury Fund is liable for permanent total disability benefits.

**Conclusion**

We modify the award of the administrative law judge as to the issues of the nature and extent of disability resulting from the primary injury and Second Injury Fund liability.

Employer is liable for permanent partial disability benefits in the amount of $43,679.80.

The Second Injury Fund is liable for weekly permanent total disability benefits beginning March 23, 2010, at the differential rate of $260.51 for 116 weeks. Beginning June 12, 2012, the Second Injury Fund is liable for weekly permanent total disability benefits at the permanent total disability rate of $637.06. The weekly payments shall continue thereafter for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge Gary L. Robbins, January 24, 2013, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission further approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

Enployee: Chris E. Byrd

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

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of September 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Attest:

Curtis E. Chick, Jr., Member

Secretary

Employee: Chris E. Byrd

Injury No. 07-004619

Dependents: N/A

Employer: Home Services Oil Company

Additional Party: Second Injury Fund

Insurer: American Home Assurance

Appearances: Ray A. Gerritzen, attorney for employee.

Thomas J. Pettit, attorney for the employer/insurer.

Kevin Nelson, attorney for Second Injury Fund.

Hearing Date: October 23, 2012

Checked by: GLR/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.