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David Robben v. Kuna Food Service

Decision date: January 23, 201414 pages

Summary

The Commission affirmed the administrative law judge's award of permanent total disability benefits to David Robben from the Second Injury Fund, finding that his disability resulted from a combination of his primary 2004 low back injury and preexisting 2002 low back injury and surgery. The Commission rejected the Second Injury Fund's argument that the disability stemmed solely from the primary injury, finding credible evidence that Robben's need to rest in a recumbent position during the day renders him unable to compete in the open labor market.

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Caption

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)
Injury No.: 04-048443
Employee:David Robben
Employer:Kuna Food Service (Settled)
Insurer:Commerce & Industry Insurance Co. (Settled)
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, 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 The administrative law judge awarded permanent total disability benefits from the Second Injury Fund. The Second Injury Fund appeals, arguing that employee’s permanent total disability results from the primary injury considered in isolation. In support of its arguments, the Second Injury Fund points to testimony from employee’s medical expert, Dr. Volarich, that employee needs to rest in a recumbent fashion “because of” the primary injury.Transcript, page 1636.
We have carefully reviewed Dr. Volarich’s testimony. We note that Dr. Volarich did not opine that employee has a need to rest in a recumbent fashion solely because of the primary injury, and that throughout his deposition and report, Dr. Volarich emphasized that employee’s current low back condition represents a combination of his preexisting 2002 low back injury and surgery and the primary 2004 low back injury and surgeries, and that employee’s 2004 low back injury would not have been nearly as severe if it had not been for employee’s preexisting low back problems. We note also Dr. Volarich’s ultimate opinion that employee’s permanent total disability results from a combination of the effects of the primary injury and his preexisting conditions of ill-being.
Viewed in the context of Dr. Volarich’s testimony as a whole, we are not persuaded that his opinion that employee should be permitted to rest in a recumbent fashion “because of” the primary injury means that employee’s need to lie down during the day is solely due to the effects of the primary injury considered in isolation. Likewise, we are not convinced by the Second Injury Fund’s argument that employee’s need to lie down during the day must be solely due to the primary injury because it did not arise until after the primary injury; this argument confuses chronology with causation and we do not find it persuasive.

Rather, we find credible employee's testimony (and so find) that he has a need to lie down during the day to relieve his low back pain. We find persuasive Dr. Volarich's testimony (and so find) that employee's low back pain results from a combination of the primary injury and employee's preexisting low back injury. We also find persuasive the unanimous opinion from both employee's vocational expert, Ms. Gonzalez, and the Second Injury Fund's vocational expert, Mr. England, that a need to lie down during the day renders employee unable to compete for work in the open labor market.

For the foregoing reasons, and because we otherwise agree with the administrative law judge's findings, analysis, and conclusions, we hereby affirm the award.

Conclusion

We affirm and adopt the award of the administrative law judge, as supplemented herein.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued July 3, 2013, is attached and incorporated by this reference.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this $23^{\text {rd }}$ day of January 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

AWARD

Employee: David Robben

Injury No.: 04-048443

Dependents: N/A

Employer: Kuna Food Service (Settled)

Additional Party: Second Injury Fund

Insurer: Commerce \& Industry Insurance Co. (Settled)

Hearing Date: March 27, 2013 and April 4, 2013

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

FINDINGS OF FACT AND RULINGS OF LAW

  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
  4. Date of accident or onset of occupational disease: April 6, 2004
  5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri venue
  6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
  7. Did employer receive proper notice? Yes
  8. Did accident or occupational disease arise out of and in the course of the employment? Yes
  9. Was claim for compensation filed within time required by Law? Yes
  10. Was employer insured by above insurer? Yes
  11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was lifting a bag of beans when he injured his back.
  12. Did accident or occupational disease cause death? No
  13. Part(s) of body injured by accident or occupational disease: Low back.
  14. Nature and extent of any permanent disability: 60 % PPD of the body as a whole referable to the low back and 40 % PPD of the body as a whole - psychological previously settled with Employer, and PTD against Second Injury Fund.
  15. Compensation paid to-date for temporary disability: $\ 117,755.00
  16. Value necessary medical aid paid to date by employer/insurer? $\ 357,157.00
  1. Value necessary medical aid not furnished by employer/insurer? N/A
  2. Employee's average weekly wages: Unkn0own
  3. Weekly compensation rate: $\$ 658.96 / \ 347.05
  4. Method wages computation: By stipulation

COMPENSATION PAYABLE

  1. Amount of compensation payable:

SETTLED

  1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\311.91) payable by SIF for 400 weeks beginning January 7, 2010

and, thereafter \ 347.05, for Claimant's lifetime

TO BE DETERMINED

TOTAL:

TO BE DETERMINED

  1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Mr. Evan J. Beatty

FINDINGS OF FACT and RULINGS OF LAW:

Employee: David Robben

Departments: N/A

Employer: Kuna Food Services (Settled)

Additional Party: Second Injury Fund

Insurer: Commerce \& Industry Insurance Co. (Settled)

Injury No.: 04-048443

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

PRELIMINARIES

A hearing was held on March 27, 2013 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Pursuant to the agreement of the parties, the record remained open until April 3, 2013 for the introduction of the deposition transcript of Mr. James England. Upon receipt of the deposition of Mr. England on April 3, 2013, the record was closed. David Robben ("Claimant") was represented by Mr. Evan J. Beatty. Kuna Food Services ("Employer") and its insurer previously settled their liability with Claimant, and this matter proceeded to a hearing against the Second Injury Fund ("SIF") which was represented by Assistant Attorney General Joye Hudson. Mr. Beatty requested a fee of 25 % of Claimant's award.

The parties stipulated that on or about April 6, 2004, Claimant sustained an accident arising out of and in the course of his employment; Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri. Employer received proper notice of the injury; the claim was timely filed; the rates of compensation are $\ 658.96 for Permanent Total Disability ("PTD") benefits and $\ 347.05 for Permanent Partial Disability ("PPD") benefits; Employer paid $\ 117,755.00 in Temporary Total Disability ("TTD") benefits and $\ 357,157.00 in medical benefits; and if Claimant is found to be permanently and totally disabled, benefits should commence on January 7, 2010,

The only issue to be determined is whether the SIF is liable for PPD or PTD benefits.

SUMMARY OF EVIDENCE

Claimant is a 51 year old male with a high school education and some college. He is married and has two dependent children, ages 20 and 18. He lives in a one-story house with a basement. He seldom goes into the basement. He has a small yard which is less than a quarter of an acre and his wife mows the grass. He does some very light maintenance of his flower garden. His wife is a certified Optometrist Assistant and a scrub nurse at St. Clare Hospital. Claimant's wife and daughter do most of the chores around the house but Claimant does some cooking and light housekeeping. His wife does all of the grocery shopping.

Claimant was awarded Social Security Disability and began receiving benefits in 2005. He also works one and a half to 2 hours a day in a grade school cafeteria serving food to the children. He works about ten hours a week at this job. He is also a crossing guard for the St. Louis School District for two shifts each day. Each shift is about 45 minutes.

Claimant was very active in athletics while in high school and played football, track and baseball. He played one year of baseball at Meramec Community College. Claimant served in the Air Force from 1983 until his honorable discharge in 1987 when he reached the rank of Sergeant. While in the military Claimant worked as a registered mail clerk. After being discharged from the Air Force, he went to work for Safeco Insurance Company from 1988 through 1992 as a mail clerk. From there he went to work for Group Health Plan from 1992 through 1998, again, as a mail clerk.

In 1998 Claimant went to work for Employer where he worked from 1998 until his injury on April 6, 2004. Employer is a food distribution company, and Claimant was a night warehouse supervisor working 5:00 p.m. until 3:00 a.m. He was a salaried employee making $\ 850.00 a week plus bonuses based on performance and earned approximately $\ 52,000.00 a year. He supervised 6 to 11 employees and worked 50 hours a week. His job duties included supervision of night shift employees but also included operation of a forklift and a pallet jack. His job involved repetitive lifting, bending and stooping. He entered inventory into a computer through the use of codes, but this was the extent of his computer knowledge. Claimant was able to hire, fire, and discipline employees.

Claimant's first significant injury was in 1989 when he tore his left Achilles tendon which required surgery. Following surgery and leading up to April, 2004 he continued to have problems with pain in the back of his calf which was aggravated whenever he went up and down steps or ran.

In 1990, Claimant injured his right shoulder. This was diagnosed as a probable subluxation of the bicep tendon and a right shoulder arthrogram was ordered. Claimant underwent physical therapy and in 1991 he was diagnosed with impingement syndrome. Leading up to April, 2004 he continued to complain of tightness and soreness and had a sharp pain whenever he attempted to reach overhead. The injury slowed him down.

In 1991, Claimant suffered the first of two knee injuries requiring surgery for a torn medial meniscus. Claimant continued to

Full decision text continues in the plain-text archive copy.

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