Gary Scott v. Scott Excavating

On May 30, 2013, the Labor and Industrial Relations Commission (Commission) issued a final award denying compensation in this workers' compensation case. Employee filed an appeal with the Missouri Court of Appeals, Western District. In its decision filed January 14, 2014, the Court reversed the Commission's decision. Scott v. Treasurer of Missouri-Custodian of the Second Injury Fund, 417 S.W.3d 381 (Mo. App. 2014). The Court held that the Commission's findings of fact were not supported by competent and substantial evidence. By mandate dated February 5, 2014, the Court remanded this matter to the Commission for further proceedings consistent with the Court's opinion. Pursuant to the Court's mandate and decision, we issue this award.

Employee was 66 years of age at the time of the primary injury on January 11, 2008. Employee dropped out of school in the ninth grade and entered the workforce operating heavy equipment and doing excavation work. When he was 16 years old, employee incorporated his own excavating business, and has worked for that business ever since. Employee's duties for the business included operating heavy equipment and supervising employees. Employee has trouble reading and writing, so he relied on his employees to perform bookkeeping and administrative tasks. Employee's entire work history is limited to his experience running the excavation business.

Employee has experienced hearing difficulties since childhood. In 2002, doctors provided him with a cochlear implant. Employee's hearing problems limited his ability to use the telephone and made it more difficult to communicate with employees and customers at work. In his brief, however, employee concedes that this condition did not constitute a preexisting permanent partial disability.

In 1998, employee underwent shoulder surgery to repair a torn right rotator cuff. Employee's medical expert, Dr. P. Brent Koprivica, rated this injury at 15\% permanent partial disability of the right shoulder. We find that employee suffered a 10\% permanent partial disability of the right shoulder at the time of the primary injury.

On November 4, 2001, employee fell 22 feet from a grain bin and suffered a number of fractures in his right leg and both feet. Employee wore CAM walker boots on both legs for two years after this injury, and was unable to run his business during that time. When he returned to work, he used crutches for a year, and in 2005, received a

prescription for an ankle/foot orthosis. The ongoing effects of this injury prevent employee from walking more than 50 feet without pain, prevent him from standing for lengthy periods, and significantly reduce his ability to climb onto pieces of equipment such as bulldozers and excavators. Employee had to hire more workers to assist him as a result of this injury. Dr. Koprivica rated employee's disability referable to this injury at 35% permanent partial disability of the right ankle and 25% permanent partial disability of the left ankle. We find that employee suffered a 30% permanent partial disability of the right ankle and a 20% permanent partial disability of the left ankle at the time of the primary injury.

In 2004, employee underwent surgeries in connection with a diagnosis of bilateral carpal tunnel syndrome. In 2007, doctors diagnosed arthritis in employee's hands and feet; this condition causes employee to experience stiffness when it rains. Employee also suffered hernias in 2007, which were diagnosed but not immediately treated. Again, in his brief, employee concedes that none of these conditions constituted preexisting permanent partial disabilities.

On January 11, 2008, while operating a bulldozer over rough, frozen terrain, employee experienced the onset of severe pain in his low back. Employee's pain symptoms continued and were so severe that he ultimately underwent a decompressive lumbar laminectomy at L3-L4 on August 28, 2008. On October 29, 2008, the treating surgeon, Dr. Reintjes, opined that employee had reached maximum medical improvement and released employee to return to work with restrictions of no lifting over 50 pounds, limited bending and twisting, and no sitting for more than 1 or 2 hours at a time.

Employee settled his claim arising from the primary injury with the employer for a lump sum consistent with a rating of 22.5% permanent partial disability of the body as a whole referable to the low back. Employee eventually returned to work operating heavy machinery and supervising employees, but significantly limited his activities and took frequent breaks.

Dr. Koprivica assigned the following restrictions referable to the primary injury: employee should avoid sustained or awkward postures of the lumbar spine; avoid squatting, crawling, kneeling, and climbing; change postures frequently and limit standing or walking activities to 15 minutes or less, and sitting to one hour. Dr. Koprivica opined that the accident of January 11, 2008, is the prevailing factor causing employee to suffer a low back injury, and identified a synergistic effect between the primary injury and employee's preexisting disabling conditions. Dr. Koprivica rated the primary injury at 25% permanent partial disability of the body as a whole referable to the low back. We credit Dr. Koprivica's opinions regarding causation and synergy, and find that, as a result of the primary injury, employee sustained a 22.5% permanent partial disability of the body as a whole referable to the low back.

The parties asked the administrative law judge to determine whether employee sustained "an accident arising out of and in the course and scope of employment." Transcript, pages 2-3. It appears that the parties dispute whether employee suffered an

injury arising out of and in the course of employment. Section 287.020.3(2) RSMo provides, as follows:

An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

The courts have interpreted the foregoing language to involve a "causal connection" test that employees must satisfy in order to prove that an injury has arisen out of and in the course of the employment. Johme v. St. John's Mercy Healthcare, 366 S.W.3d 504, 510-11 (Mo. 2012).

We have found that on January 11, 2008, while operating a bulldozer over rough, frozen terrain, employee experienced the onset of severe pain in his low back, and we have credited Dr. Koprivica's opinion regarding causation. There is no evidence on this record to suggest, let alone prove, that employee ever deviated from the course of performing his work for employer at the time of the primary injury. Nor is there any evidence that would suggest that the risk of operating a bulldozer over rough, frozen terrain was unrelated to employee's employment; rather, all of the relevant evidence is to the contrary.

We must conclude that employee's injuries arose out of and in the course of employment, because employee's injuries did not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

Section 287.220.1 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid from the fund in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he 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 preexisting permanent partially disabling conditions referable to the right shoulder and both ankles at the time of the primary injury. We are convinced that 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 greater disability than would have resulted in the absence of the condition. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

We have credited Dr. Koprivica's opinion that employee's primary injury combines synergistically with his preexisting disabling conditions. We conclude that the Second Injury Fund is liable for permanent partial disability benefits. We calculate Second Injury Fund liability as follows.

Employee's primary injury resulted in 22.5 % permanent partial disability of the body as a whole, or 90 weeks of permanent partial disability. We have determined the extent of employee's preexisting permanent partially disabling conditions of ill-being as follows: 10 % of the right shoulder ( 23.2 weeks), 30 % of the right ankle ( 46.5 weeks) and 20 % of the left ankle ( 31 weeks). The sum of preexisting and primary permanent partial disability is 190.7 weeks. When we multiply this sum by a 10 % load factor to account for the synergistic interaction between the conditions, the result is 19.07 weeks.

The Second Injury Fund is liable for 19.07 weeks of permanent partial disability benefits at the stipulated rate of $\ 389.04, for a total of $\ 7,418.99.

We reverse the award of the administrative law judge. The Second Injury Fund is liable for $\ 7,418.99 in permanent partial disability benefits.

The award and decision of Administrative Law Judge Mark Siedlik, issued August 28, 2012, is attached hereto solely for reference.

This award is subject to a lien in favor of Keith Yarwood, Attorney at Law, in the amount of 25 % for necessary legal services rendered.

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

Given at Jefferson City, State of Missouri, this $10^{\text {th }}$ day of June 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Gary Scott

Injury No: 08-058268

Dependents: N/A

Employer: Scott Excavating (Settled)

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

Insurer: Travelers Commercial Casualty (Settled)

Hearing Date: March 7, 2012

Briefs Filed: April 17, 2012

Checked By: MSS/lh

1. Are any benefits awarded herein? No
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: $1 / 11 / 2008,12 / 3 / 2009$
5. State location where accident occurred or occupational disease was contracted: Urich, Henry County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer recei