Harold Hembree v. Jerry Bennett Masonry

lumbar spine. Employee settled a workers' compensation claim arising from the injury for 10 % permanent partial disability of the body as a whole.

On March 3, 2006, employee fell approximately 18 feet and suffered multiple injuries when a piece of scaffolding gave way. Employee suffered rib fractures and chest wall injuries, a comminuted intra-articular distal radius and ulnar fracture of the right wrist which contributed to the development of severe right carpal tunnel syndrome, a labral tear in the right shoulder with severe tendinopathy and acromioclavicular arthrosis, and right hip bruising and swelling. Employee was hospitalized immediately following the accident, and underwent surgeries on the right shoulder and right hand. Employee's multiple injuries left him with the following complaints and limitations: intermittent episodes of shortness of breath associated with the right-sided chest wall injury, severe residual stiffness and inability to use the right hand for grasping, a loss of right wrist and forearm motion, ongoing severe strength and motion deficits in the right shoulder, persistent numbness and chronic greater trochanteric bursitis affecting the right hip, and pain and swelling in the right leg.

Treating doctors determined employee was at maximum medical improvement from the effects of the March 2006 injuries as of April 4, 2007. Employee settled a workers' compensation claim arising from the March 2006 injuries for permanent partial disability of 50 % of the body as a whole.

Employee returned to work in a light duty capacity in January 2007. Employee was not able to return to work as a bricklayer, but employer permitted employee to return to work as the designated "clean-up man." In this position, employee exclusively performed tuck pointing duties, which involved cleaning brick walls and preparing them for painting, as well as scrubbing bricks and sweeping floors. This was not a position typically available with employer, as each bricklayer would normally perform their own tuck pointing and clean-up tasks. Rather, employer created this position because there was no other work employee could perform.

Employee's work as a tuck pointer involved repetitive cleaning and scrubbing of bricks. As a result of the functional impairments of his right upper extremity resulting from the March 2006 injuries, employee was forced to rely heavily on his non-dominant left hand in performing these duties. On or about October 3, 2008, employee suffered an occupational disease injury as a result of this work, resulting in the development of a ganglion cyst in his left hand. Employee had to stop working in October 2008, and has not performed any work since. Employee received conservative treatment but declined surgery to remove the cyst in light of his preexisting right hand difficulties; employee did not want to be rendered incapable of using either upper extremity during the anticipated recovery period.

Employee continues to suffer pain and numbness in his left hand. Employee settled his claim for the primary injury with employer for 14 % permanent partial disability of the left wrist. We find the settlement to be persuasive evidence of the nature and extent of disability resulting from the October 2008 left hand injury. We find that the primary

injury resulted in a 14\% permanent partial disability of the left upper extremity at the level of the wrist.

Dr. Koprivica examined employee in 2007 in regard to the March 2006 injuries and opined that employee sustained a 50 % permanent partial disability of the body as a whole. Dr. Koprivica noted that his permanent partial disability rating was contingent on whether employee would be successful in sustaining employment.

Dr. Koprivica issued an addendum report in January 2009, in which he noted the following restrictions with respect to the March 2006 injury: no repetitive pinching or grasping with the right hand, no repetitive right wrist flexion or dorsiflexion, no repetitive ulnar or radial deviation of the right wrist, avoidance of repetitive or sustained activities above the right shoulder girdle, and avoidance of climbing, squatting, crawling, or kneeling. Dr. Koprivica deferred to a vocational expert as to the issue of permanent total disability, but opined that if a vocational expert found employee to be permanently and totally disabled owing to the restrictions referable to the March 2006 injury, then Dr. Koprivica believed employee was permanently and totally disabled owing to the March 2006 injury in isolation.

Michael Lala, a certified vocational counselor, evaluated employee and issued a report in May 2008. Mr. Lala opined that employee was permanently and totally disabled at that time. Mr. Lala explained that all of employee's medical restrictions translate vocationally to an extremely limited occupational base. In reaching his opinion that employee was permanently and totally disabled, Mr. Lala found it particularly significant that employee had lost the ability to perform work with his dominant right hand, wrist, and forearm. Mr. Lala acknowledged employee's accommodated position as a tuck pointer for employer, but opined that based on employee's age, education, past work experience, functional profile, vocational restrictions, and limited specific skills, employee could not realistically compete in the open labor market as of May 2008.

In his own testimony, employee expressed his belief that the clean-up man position was not accommodated work. We do not find employee's testimony persuasive on this point. We note that this characterization of the position conflicts with the opinions from both Dr. Koprivica and Mr. Lala that the clean-up work amounted to light or accommodated duty. We find more persuasive the expert opinion from Mr. Lala that the tuck pointing work amounted to light or accommodated duty. While employee should be lauded for his efforts in returning to the workforce, his inability to sustain that employment lends credence to the opinion from Mr. Lala that he would not be able to be employed on a sustained or routine basis. We deem persuasive and adopt Mr. Lala's opinion that employee was unable to compete in the open labor market as of May 2008.

We note that Dr. Koprivica issued another addendum report in June 2010 concerning the October 2008 occupational disease. At that time, Dr. Koprivica opined that employee was permanently and totally disabled owing to a combination of all of his disabling conditions, including the 2008 left hand injury. Dr. Koprivica expressly relied on Mr. Lala's May 2008 report finding permanent total disability, and cited the fact employee developed additional disability subsequent to the March 2006 injury. At his

deposition, Dr. Koprivica testified that he believes employee is permanently and totally disabled owing to a combination of the October 2008 injury and preexisting conditions.

We find Dr. Koprivica's revised opinion regarding the cause of employee's permanent total disability lacking in persuasive force. Dr. Koprivica appears not to have recognized that Mr. Lala (a vocational expert, to whom Dr. Koprivica originally opined he would defer) found employee to be permanently and totally disabled as of May 2008, before the October 2008 left hand injury.

We note also that Mr. Lala performed a subsequent record review and issued an addendum report in April 2011. At that time, Mr. Lala opined that he still believed employee was unemployable in the open labor market given his vocational limitations. Mr. Lala did not specifically reference the October 2008 left hand injury in rendering this opinion, but did indicate that employee's permanent total disability was due to all of his disabilities resulting from his multiple injuries. Employee suggests that this necessarily includes the October 2008 injury; the Second Injury Fund disagrees. At his deposition, Mr. Lala appeared to endorse the former view when he testified that he issued the addendum report to make clear that the October 2008 injury was included in his permanent total disability analysis.

To the extent that Mr. Lala's permanent total disability opinion expressed in the April 2011 report and at his deposition includes the October 2008 left hand injury, we find that opinion lacking in persuasive force, as it conflicts with Mr. Lala's earlier opinion (which we have adopted) that employee was permanently and totally disabled as of May 2008.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in cases where an employee "who has a preexisting permanent partial disability ... receives a subsequent compensable injury." The Second Injury Fund is liable for permanent total disability benefits only where the evidence demonstrates that: (1) the employee 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).

The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether