Olga Harris v. Columbia Staffing/All About Staffing

Where no party has requested relief, we are reluctant to engage in the sua sponte action of enlarging the scope of issues on appeal. This is especially true in this case, where employer appears to agree that the administrative law judge determined the appropriate time period of temporary total disability. Accordingly, despite the administrative law judge's apparent errors with regard to the issue of nature and extent of temporary disability, we find that employer has conceded the issue by failing to appeal.

At the hearing before the administrative law judge, the parties placed in dispute the issue of medical causation of employee's claimed low back injury, but on page 4 of his amended award, the administrative law judge omits this issue from the list of disputed issues. Although the administrative law judge ultimately awarded benefits consistent with a finding of 5% permanent partial disability of the body as a whole for this injury, he did not make any credibility findings or resolve the controlling issue under § 287.020.3(1) RSMo whether employee's accident of April 24, 2011, was the prevailing factor causing the claimed low back injury and disability. Accordingly, we hereby supplement the amended award, as follows.

Employee provided credible testimony (and we so find) that she experienced a significant and permanent change in her preexisting low back complaints during the course of her treatment for the left leg work injury. Employee also provided testimony from Dr. Fernando Egea, who opined that employee's treatment with crutches and a leg immobilizer resulted in nerve root irritation and a permanent worsening of her low back pain. At his deposition, Dr. Egea did appear to possess a poor memory of the facts regarding employee's preexisting and post-injury low back complaints, and offered a number of concessions on cross-examination which call into question his attention to detail in this case. But employer's expert, Dr. Gerald McNamara, agreed that employee's use of an immobilizer resulted in an altered gait pattern, which he opined "certainly" injured or irritated the nerves in her back. *Transcript*, pages 813-14. Although Dr. McNamara ultimately opined that this condition resolved and thus resulted in 0% permanent partial disability, this latter finding is contradicted by employee's very credible testimony regarding her new and increased low back symptoms. Especially in light of this credible testimony from the employee, we find persuasive the ultimate opinion from Dr. Egea that employee suffered a permanent low back injury as a result of her treatment for the work injury.

Accordingly, we conclude that employee's use of crutches and an immobilizer in the course of her treatment for the April 24, 2011, left leg injury is the prevailing factor causing employee to suffer a low back injury and permanent partial disability. We affirm and adopt the administrative law judge's finding that employee suffered a 5% permanent partial disability of the body as a whole referable to the low back.

The administrative law judge concluded that employee "has not presented any evidence of any claim against the Second Injury Fund for second wage loss." *Award*, page 7. But the records of the Division of Workers' Compensation, of which we hereby take administrative notice, reveal that employee's Claim for Compensation, filed with the Division on May 23, 2011, includes a claim against the Second Injury Fund for second job wage loss. Accordingly, we find that employee has a claim against the Second Injury Fund for second job wage loss benefits.

The relevant statutory provision is $\S 287.220 .9$ RSMo, which provides, as follows:

Any employee who at the time a compensable work-related injury is sustained is employed by more than one employer, the employer for whom the employee was working when the injury was sustained shall be responsible for wage loss benefits applicable only to the earnings in that employer's employment and the injured employee shall be entitled to file a claim against the second injury fund for any additional wage loss benefits attributed to loss of earnings from the employment or employments where the injury did not occur, up to the maximum weekly benefit less those benefits paid by the employer in whose employment the employee sustained the injury. The employee shall be entitled to a total benefit based on the total average weekly wage of such employee computed according to subsection 8 of section 287.250 . The employee shall not be entitled to a greater rate of compensation than allowed by law on the date of the injury. The employer for whom the employee was working where the injury was sustained shall be responsible for all medical costs incurred in regard to that injury.

Section 287.250.8 RSMo additionally provides, as follows:

For an employee with multiple employments, as to the employee's entitlement to any temporary total or temporary partial disability benefits only pursuant to subsection 9 of section 287.220 , and for no other purposes, the employee's total average weekly wage shall be equal to the sum of the total of the average weekly wage computed separately for each employment pursuant to the provisions of this section to which the employee is unable to return because of this injury.

Under the foregoing statutory sections, employee was required to show (1) she was employed by another employer at the time the compensable work-related injury was sustained; and (2) she suffered a loss of earnings from that second employment. The remaining provisions speak to the method of calculating the benefit. Accordingly, we turn to the evidence regarding employee's physical condition following the work injury to determine whether it supports a finding that she suffered a loss of earnings in the form of an inability to work for her second employer during any time period.

Employee testified that, at the time of the work injury, she was working for a second employer, namely, the Kansas City School District (District). Employee also testified that, owing to the effects of the work injury, she was not able to return to her work with the District for a period of two weeks, but was able to return thereafter to perform sitdown work. Employee's testimony is substantially corroborated by the notes from the treating physician, Dr. McNamara. In his first evaluation of employee's left knee injury, Dr. McNamara determined that employee was required to wear an immobilizer on her left leg and to keep the leg elevated. Although Dr. McNamara did not specifically restrict employee from working for the District, his nurse noted that employee would discuss with her employer whether she was able to return to work, and on May 9, 2011, Dr. McNamara indicated employee was able to "return to work" as of May 10, 2011. This "return to work" instruction is clearly referable to employee's work for the District,

as Dr. McNamara's subsequent notes reveal that he continued to restrict employee from performing "hospital work" with employer through at least May 25, 2011.

Employee also presented testimony from Dr. Egea to support her claim for second job wage loss benefits. Although he failed to provide a temporally specific opinion on the issue, Dr. Egea did opine that employee was unable to work following the work injury as a result of her injuries and work restrictions.

We note that the Second Injury Fund, in its brief, does not cite any evidence that would rebut that described above, nor does it identify any reason why we should find employee's evidence lacking credibility on this issue. Instead, it argues that employee is not entitled to second job wage loss benefits because employee's Form W-2 with the District shows that she made more money in 2011 than reflected in the contract that she signed, and because employee was permitted to use sick leave and to work make-up days for the time that she missed. But the Second Injury Fund has failed to advance any authority that would support the proposition that these factors are relevant to our analysis under § 287.220.9, and our own research reveals none.

We are of the opinion that whether employee earned more money with the District in 2011 than she originally contracted is not particularly relevant to the question whether employee suffered a loss of earnings by reason of the work injury. There are many possible reasons why employee earned more money than she originally contracted with the District in 2011, and nothing about employee's Form W-2 or contract with the District suggests she would not have earned more in 2011 if she hadn't missed two weeks as a result of the work injury, so this evidence does nothing to show employee did not suffer a loss in earnings. Nor do we find relevant employee's use of sick leave to cover her absences for this time period; employee would not have been forced to expend sick leave if she had not been rende