| FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Injury No.: 08-008096 |
| Employee: | Jon David Barnhill |
| Employer: | Allied Kansas City |
| Insurer: | American Home Assurance Company |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, heard the parties’ arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion. |
| Discussion |
| Affirmative findings vs. summaries of the evidence |
| Section 287.460.1 requires the fact-finder in a workers’ compensation case to issue the unequivocal affirmative factual findings that are necessary to resolve each of the disputed issues identified by the parties. The need for affirmative findings of fact is not merely of academic concern. InStegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529 (Mo. App. 2008), the Court held that an administrative law judge’s summaries of testimony and evidence could not substitute for affirmative factual findings in the award itself, and that the Court could not resolve the issues that were appealed and instead was constrained to vacate the award and remand the case.Id. at 532, 537. Here, we agree with the ultimate determinations reached by the administrative law judge, but in order to avoid a result of the type seen inStegman, we find it necessary to issue this supplemental opinion to provide the affirmative findings of fact required under § 287.460.1.We note that the sole Application for Review pending before the Commission in this matter is from the Second Injury Fund challenging the conclusions of the administrative law judge assessing liability for permanent total disability benefits against the Second Injury Fund. It follows that the administrative law judge’s conclusions relevant to the other disputed issues have now become final. Accordingly, although the parties discuss and dispute other issues in their briefs, we provide only those supplemental findings of fact and conclusions of law pertinent to the issue appealed by the Second Injury Fund. |
| Preexisting conditions of ill-being |
| At the time of the hearing before the administrative law judge, employee was 43 years of age. Employee did not graduate high school but received his GED in 1987. Employee served in the United States Marine Corps for four years and was honorably discharged. Employee attended some community college, but did not receive a degree. |
After his discharge from the military, employee worked as a construction foreman until 1994, when he went to work for an armored car service. Employee worked as a driver and also provided messenger, cashier, and vault supervision services, until he suffered a motorcycle accident in 1996. Employee was driving at highway speed when he rearended an SUV that stopped on the roadway.
Employee provided his own testimony and the parties have presented competing expert medical testimony on the question of what particular injuries and disabling conditions employee suffered as a result of the 1996 motorcycle accident; the administrative law judge has thoroughly summarized this evidence in his award, so we need not reiterate it here. Rather, we resolve the conflicting evidence with the following affirmative findings as to the injuries and disabling conditions that we believe resulted from this event.
We find that the 1996 motorcycle accident caused employee to suffer fractures of both arms; a left brachial plexus injury and injury to the left clavicle and left shoulder with fracture requiring surgical treatment; multiple fractures of the fingers of the left hand with subsequent contracture of the metacarpophalangeal joints requiring surgical treatment; a right thumb fracture; a left femoral head fracture and left knee dislocation requiring surgical repair in the form of anterior cruciate ligament, posterior cruciate ligament, and lateral posterior capsular reconstruction, as well as numerous additional surgical procedures in the form of arthroscopic debridements and arthrotomies to address heterotopic ossification; incomplete peroneal nerve palsy (or foot drop) on the left; a traumatic dislocation of the left hip requiring surgical treatment in the form of a bipolar left hip replacement; internal injury in the form of a low grade splenic laceration; a complete cervical C5-6 nerve root avulsion on the left and a partial cervical 7 thoracic 1 root avulsion; and a traumatic brain injury.
Employee's treatment following the 1996 motorcycle injury kept him out of the workplace until March 1998, when employee returned to full-duty work for the armored car service after undergoing a number of physical examinations and testing to determine his capability to work. Employee worked as a cashier, then was promoted to vault supervisor. Employee was able to work an average of 65 hours (and sometimes as much as 80 hours) per week from 1998 to 2001.
Employee worked for a bank from 2001 until 2005 where he worked as a teller and then as an ACH coordinator performing clerical duties. Employee was able to perform all of the mostly sedentary duties involved in this job without accommodation. In early 2007, employee briefly attempted to operate his own non-emergency ambulance service, but this concern went out of business after a couple of months. Employee drove one of the ambulances, helped load patients, and also did marketing work for the business.
Employee began working for employer in November 2007. Employee passed some physical examinations before he began working for employer. Employee's duties for employer included driving a roll-off garbage truck and occasional handling of trash dumpsters. This job involved the occasional performance of physical tasks such as stooping or getting on the ground to hook up cables, and handling heavy doors, chains, and tarps. Employee was able to successfully perform all of his duties for employer, and worked an average of about 12 hours per day.
Employee's work history reveals that despite his numerous injuries resulting from the 1996 motorcycle accident, he was a motivated worker who was able to return to the open labor market and find jobs he could successfully perform. At the same time, however, the credible evidence reveals that employee did have some significant and permanent physical limitations. Employee's left foot drop, brain injury, and internal injuries resolved with little or no residual symptoms or limitations, but employee continued to experience problems referable to his left arm, left knee, and hip injuries.
Employee was forced to adjust from being left-hand dominant to right-hand dominant, avoided handling heavy objects with his left hand, and was generally very protective of his left upper extremity. Employee used a prescribed motorized scooter anytime he had to do prolonged walking. In addition, we note the evidence that employee reported certain problems to his evaluating expert, Dr. Koprivica, that he minimized or denied at the hearing before the administrative law judge. We find more credible Dr. Koprivica's testimony on this issue and find that employee did report those problems, and likewise find that employee's preexisting left knee injury caused difficulty with squatting, crawling, and kneeling, and that employee's multiple injuries reduced the pace at which he was able to perform his work, left him with reduced sitting tolerance, and reduced his endurance in lifting and carrying.
Ultimately, we find that, as of February 5, 2008, employee suffered from the following preexisting permanent and partially disabling conditions: 90 % permanent partial disability of the left arm at the 232-week level for the multiple fractures and surgical intervention; 30\% permanent partial disability at the 207-week level for the left hip fracture and partial hip replacement; and 50\% permanent partial disability of the left leg at the 160-week level for the knee injury and numerous surgeries.