Patricia Wyatt-Baucom v. SSM/St. Mary's Health Center

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, heard the parties’ arguments, 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 parties asked the administrative law judge to determine the sole issue of Second Injury Fund liability.

The administrative law judge determined that employee failed to meet her burden of proving the Second Injury Fund is liable for permanent total disability benefits, and determined instead that employee is entitled to 15.48 weeks of permanent partial disability benefits from the Second Injury Fund.

Employee filed a timely Application for Review with the Commission alleging the administrative law judge erred in finding the Second Injury Fund is not liable for permanent total disability benefits.

For the reasons stated below, we modify the award of the administrative law judge referable to the issue of Second Injury Fund liability.

At the time of the primary injury on June 16, 2003, employee was suffering from a number of preexisting injuries and disabling conditions of ill-being.

In October 1990, employee suffered a back injury which took her out of work for about 5 months; employee settled a claim against her employer of 5% permanent partial disability of the body as a whole referable to the low back. In 1992, employee suffered another back injury which took her out of work for about 3 months; employee settled a claim against her employer for 14.5% permanent partial disability of the body as a whole referable to the low back. In 1994, employee suffered back, right hip, and left wrist injuries which took her out of work for about 3 months; employee settled a claim against

her employer for 6.5% permanent partial disability of the body as a whole. In 2002, employee suffered another low back injury; employee settled a claim against her employer for 2.5% permanent partial disability of the body as a whole referable to the low back. After the 2002 low back injury, employee was unable to continue her work as a certified nursing assistant, and so transferred to an essentially sedentary clerical position. We find that, at the time of the primary injury, employee suffered a 30% permanent partial disability of the body as a whole referable to her low back.

On June 16, 2003, employer asked employee to assist in moving a patient. Employee complied, despite the fact she was working in a light duty clerical position owing to her numerous prior back injuries. In the course of this activity, employee suffered a serious left shoulder injury as well as severe aggravation of her low back condition. Employee settled a claim against employer for 15% permanent partial disability of the left shoulder.

Dr. Volarich opined that as a result of the primary injury, employee suffered (1) a lumbosacral strain or sprain and aggravation of her preexisting lumbar syndrome including disc protrusion at L3-4 and annular tear at L4-5 without radicular symptoms and (2) a left shoulder traction injury resulting in adhesive capsulitis. We find Dr. Volarich's essentially uncontested expert medical opinion persuasive on this point, and adopt as our own his findings with respect to the pathology resulting from the primary injury. Absent direction or citation to the contrary, we also adopt Dr. Volarich's opinion, stated in his report of May 18, 2007, that employee had reached maximum medical improvement as of that date.

We acknowledge the settlement with employer, but we find that the nature and extent of disability reflected therein does not adequately account for the full measure of disability employee suffered as a result of the multiple injuries to her low back and left shoulder. We find that, as a result of the primary injury, employee suffered a 35% permanent partial disability of the body as a whole.

The administrative law judge concluded that employee failed to meet her burden of proof with respect to the issue of permanent total disability based, in part, on a determination that employee's vocational expert, Wilbur Swearingin, improperly included post-accident conditions (including a 2010 left ankle fracture resulting in a need for a wheelchair) in his opinion that employee is permanently and totally disabled. In their briefs, the parties have provided very different versions of Mr. Swearingin's opinions, and so we have conducted an exhaustive review of Mr. Swearingin's report and testimony.

After careful consideration, we are not persuaded that Mr. Swearingin included post-accident worsening of employee's condition in his opinion regarding permanent total disability. This is because Mr. Swearingin's report specifically states that he did not consider employee's subsequent ankle fracture (necessitating her use of a wheelchair) or hip replacement in reaching his opinions. See *Transcript*, page 3812. The Second Injury Fund's citations to the contrary simply show the vocational expert agreeing (quite reasonably) that employee's use of a wheelchair will not help her find jobs, but do not

suggest that Mr. Swearingin has included employee's post-accident worsening or wheelchair use in his ultimate opinions regarding permanent total disability.

We note that Mr. Swearingin did frame his ultimate opinion regarding employee's permanent total disability as involving a combination of employee's preexisting conditions and a left index finger injury that occurred in 2004 after the primary injury, but Mr. Swearingin also indicated that his opinion that employee is permanently and totally disabled turns on the physical restrictions identified by Dr. Volarich and employee's treating physician, Dr. Allison Fischer. We note that neither of those doctors identified any physical restriction as stemming from the 2004 finger injury. Dr. Volarich specifically opined that "limitations are not necessary" referable to the 2004 finger injury, other than that employee should protect the tip of her finger from additional trauma. Transcript, page 3740. In other words, although Mr. Swearingin cited the 2004 left index finger injury in his ultimate opinions, it appears that the finger injury played no role in his actual vocational analysis.

The Second Injury Fund argues that Mr. Swearingin specifically testified that employee was not permanently and totally disabled until after she suffered the 2004 left finger laceration. The relevant exchange between counsel for the Second Injury Fund and Mr. Swearingin on this point is, as follows:

Q. On the day she was injured in 2004, it would still be your opinion that she could work, correct?

A. Well, she was working on that day, so I think - yeah, I think that's pretty good evidence in itself.

Transcript, page 3786.

We do not read the foregoing testimony as an opinion by Mr. Swearingin that employee was not permanently and totally disabled until after the 2004 left finger laceration injury. Nor do we find that such an opinion would be supported in the record. Employer laid employee off in August 2003 while she was recovering following the primary injury. On September 14, 2004, employee took a job as a cook with another employer, which lasted only 1.5 days. Employee was unable to complete her first assignment, which was to carry gallon jugs of milk up a flight of stairs; employee's back hurt so badly after carrying a single jug that she sought help from a coworker who completed the job for her. The next day, employee cut her finger, and did not return to work. Having worked a mere 1.5 days, employee's physical ability to perform this job was untested and dubious at best. More importantly, as Dr. Volarich credibly opined (and we so find) the demands of this job as described by employee are incompatible with the permanent restrictions he imposed. We do not believe the 2004 injury is a significant or essential factor causing or contributing to employee's permanent total disability.

It is essentially uncontested that before the primary injury of June 2003, employee was limited to sedentary work owing to her preexisting low back injuries and disabling conditions. We have found that as a result of the primary injury, employee suffered considerable additional permanent partial disability referable to the low back and left

Improve: Patricia Wyatt-Baucom

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shoulder. We wish to make clear that this record provides competent and substantial evidence to support the result reached by the administrative law judge. But when we consider the evidence regarding employee's inability to perform the normal duties of the 2004 job, combined with Mr. Swearingin's testimony relying upon the restrictions from Drs. Volarich and Fischer, we are convinced that employee is permanently and totally disabled owing to a combination of the June 2003 primary injury and her numerous preexisting injuries and disabling conditions of ill-being, and we so find.

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 she 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 numerous preexisting permanent partially disabling injuries and conditions referable to her low back at the time she sustained the work injury. We are convinced these conditions were serious enough to constitute hindrances or obstacles to employment. This is because we are convinced employee's preexisting conditions had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of her preexisting conditions. See *Wuebbeling v. West County Drywall*, 898 S.W.2d 615, 620 (Mo. App. 1995).

Having found that employee suffered from preexisting permanent partially disabling conditions that amounted to hindrances or obstacles to employment, we turn to the question whether the Second Injury Fund is liable for permanent total disability benefits. In order to prove her entitlement to such an award, employee must establish that: (1) she 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