Leif Yelverton v. Kuna Food Service

Injury No.: 02-101407

Employee: Leif Yelverton

Employer: Kuna Food Service (Settled)

Insurer: Commerce \& Industry Insurance Company (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 $\S 287.480 RSMo. { }^{1}$ We have 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 (ALJ) is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation law, except as modified herein. Pursuant to § 286.090, we issue this final award and decision modifying the award and decision of the ALJ. We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The ALJ found that employee is not permanently and totally disabled (PTD), crediting the testimonies of Dr. Cantrell, Dr. Ritchie, and Mr. England. The ALJ explained that vocational expert Mr. England was more credible than vocational expert Ms. Browning because Ms. Browning changed her opinion after reviewing additional medical records from Dr. Shuman. Specifically, in April 2006, Ms. Browning opined that employee was still employable based on her examination of employee and the medical records available to her at the time. Ms. Browning testified that employee complained to her about his back pain, but she did not have any independent validation of a back disability at that time. Subsequently, Ms. Browning received medical records from employee's primary care doctor, which described employee as having severe chronic back pain, and from Dr. Schuman, who did an MRI and found a problem at L5-S1. Due to those additional records, Ms. Browning wrote an addendum to her opinion in August 2007 stating that because of the independent validation of employee's back pain, she believes employee is not capable of competing in the open labor market due to a combination of employee's primary and pre-existing disabilities.

We disagree that Ms. Browning's change of opinion due to newly obtained information is any reason to find the witness less credible. We note that Mr. England also issued a second report admitting that if we were to believe Dr. Volarich's findings, employee would be permanently and totally disabled due to a combination of the results of the primary injury and employee's previous back disability. Similarly, we do not find Mr. England's change in opinion to be a reason to find him not credible.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2002, unless otherwise indicated.

As for the medical experts, we disagree with the ALJ's findings that Dr. Cantrell and Ritchie were the most credible regarding the extent of employee's disabilities. Ritchie admitted that he did not take employee's back complaints into consideration when forming his opinion. Dr. Cantrell performed an examination of employee at employer's request, however the examination was limited to the scope of employee's work injury so he did not examine employee's back.

Dr. Volarich was the only doctor who physically examined employee's back, and we feel he is the best qualified expert to speak to employee's back disability.

In his appeal to the Commission, employee alleges the ALJ erred in not finding employee permanently and totally disabled due to the combination of employee's disabilities. As stated in Shipp: ${ }^{2}$

Under section 287.020.7, "total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. The test for permanent and total disability is whether a claimant is able to competently compete in the open labor market given his or her condition and situation. The pivotal question is whether an employer can reasonably be expected to hire the claimant, given the claimant's present physical condition, and reasonably expect the claimant to successfully perform the work.

Ms. Browning testified that "Because [employee] can't sit and he can't stand and he can't walk ... he can't do those things for a long period of time and he is in pain ... I don't see how he would be able to sustain work." Mr. England testified that in considering the restrictions imposed by Dr. Volarich including the need to lie down at times, "that could certainly prevent him from being able to sustain any kind of regular work." Thus, in considering the credible restrictions and disability according to Dr. Volarich, both vocational experts opined that employee is unable to work. We find that employee's disabilities prevent him from competing in the open labor market. Therefore, we conclude that employee is permanently and totally disabled.

"For a claimant to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD."3 "The question of whether [employee] is PTD is determined based on whether [he] is able to compete in the open labor market with the indicated restrictions." "The critical question is whether an employer could reasonably be expected to hire [employee] given [his] physical condition and the expectations of the job."5

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[^0]: ${ }^{2}$ Shipp v. Treasurer of State, 99 S.W.3d 44, 50-51 (Mo. App. E.D. 2003) (internal citations omitted).

${ }^{3}$ Lewis v. Treasurer of the State of Missouri, Mo. App. No. ED100657 at *20-21 (June 30, 2014).

${ }^{4}$ Ball-Sawyers v. Blue Springs School Dist., 286 S.W.3d 247, 254 (Mo. App. W.D. 2009).

${ }^{5} \mathrm{Id}$.

First, we affirm the ALJ's finding that employee sustained an 85 % disability to his right knee as the result of the primary injury alone.

Next, we must determine whether employee had a preexisting permanent partial disability (PPD). Employee had complained about his back to numerous doctors before the primary injury. Dr. Schuman had noted that employee experienced difficulty sitting due to a herniated disc in his low back. She ordered an MRI in 2001, which revealed a disc bulge at L3-4, central disc protrusion at L4-5, a large left paracentral disc herniation at L5-S1 which compressed the left S1 nerve root, and degenerative disc disease at L2-3 through L5-S1. We find that these injuries were permanent and of such seriousness as to constitute a hindrance or obstacle to employee's employment. Employee has met his burden of proof.

As indicated above, we must next determine whether the employee's pre-existing PPD combines with the primary injury to result in PTD. Dr. Vierling, who performed the last surgery on employee's leg, released employee with a long list of permanent restrictions pertaining to the primary disability including limited standing, walking, and lifting. As Dr. Schuman indicated, employee experienced difficulty sitting due to the prior disability. Dr. Volarich testified that:

Because of the severity of the left leg injury in the past, the fracture, the mechanical problems from that, and the back injury with the neurologic problems to the left lower extremity, I don't think that can be ignored. That's why he can't get around on a consistent basis right now. At least he used to be able to walk around in the past before the right leg injury.

If you take the whole back, the whole back syndrome, the ruptured disc, the radicular symptoms, and the fracture out of the equation and just look at that leg, as long as he has got reasonable pain control, which he is pretty much doing on his own without having to take medications, he can do something sedentary. But now, we add the back to it, he can't sit for a prolonged period of time. So my answer is no, I think it's a combination. I think it has to be all of the injuries combined together.

Dr. Volarich's opinion is supported by the medical records and impressions of Dr. Vierling and Dr. Shuman. We find Dr. Volarich's testimony logical and persuasive. We are convinced that employee's previous disability in combination with the primary disability render employee unable to compete in the open labor market, and no employer would be reasonably expected to hire employee in his condition. Therefore, we conclude that employee is permanently and totally disabled as a result of the combination of these disabilities.

In conclusion, the Second Injury Fund is liable for PTD benefits at the rate of $\ 332.33 per week beginning 136 weeks $^{6}$ after December 17, 2003, the date employee reached

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[^0]: { }^{6} 85 % PPD at the 160 week level.

Improvee: Leif Yelverton

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maximum medical improvement, which shall continue for employee's lifetime or until modified by law.

This award is subject to a lien in favor of Nile Griffiths, employee's attorney, in the amount of 25 % for necessary legal services rendered.

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

The award and decision of Administrative Law Judge Margaret D. Landolt, issued October 22, 2013, is attached for reference.

Given at Jefferson City, State of Missouri, this $18^{\text {th }}$ day of July 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Leif Yelverton

Departments: N/A

Employer: Kuna Food Service (Settled)

Additional Party: Second Injury Fund

Insurer: Commerce \& Industry Insurance Company

Hearing Date: July 23, 2013

Injury No.: 02-101407

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: MDL

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: September 28, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
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 driving a pallet jack when his right leg was pinned against a forklift.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right leg
14. Nature and extent of any permanent disability: 85 % PPD of the right knee as a result of the primary injury (Employer and Claimant previously settled for a different amount) which combines with pre-existing PPD of 20 % of the left knee and 25 % of the body as a whole - low back.
15. Compensation paid to-date for temporary disability: $\ 21,221.57
16. Value necessary medical aid paid to date by employer/insurer? $\ 98,452.26

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 498.50
3. Weekly compensation rate: $\$ 332.33 / \ 332.33
4. Method wages computation: By stipulation

1. Amount of compensation payable:

SETTLED

1. Second Injury Fund liability: Yes

53.6 weeks of permanent partial disability from Second Injury Fund

$\ 17,812.89

TOTAL:

$\ 17,812.89

1. Future requirements awarded: None

Said payments to begin and to be