John Mattison v. High Hill Christian Assembly

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 02-019294

Employee: John Mattison

Employer: High Hill Christian Assembly (Settled)

Insurer: Brotherhood Mutual Insurance Company (Settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, the Commission affirms the award and decision of the administrative law judge dated December 10, 2013. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued December 10, 2013, is attached and incorporated by this reference.

The Commission further approves and affirms 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 $\qquad 19^{\text {th }} \qquad$ day of August 2014.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am convinced that the decision of the administrative law judge is in error and that the decision should be modified to award permanent total disability benefits from the Second Injury Fund.

Employee suffers from a number of preexisting disabling conditions. In 1982, employee suffered a left knee injury which ultimately cost him his career as a Navy mechanic. Employee underwent a medial compartment arthrotomy in 1982, an arthroscopic debridement in 1995, and finally a total left knee replacement in 1999. During the course of employee's work for employer, employee's left knee was constantly swollen and he would have to ice it at the end of the day.

In 1993, employee slipped and fell in a drug store, suffering an injury to his right shoulder. Employee suffered from rotator cuff tendinitis thereafter.

Employee has suffered from anxiety, depression, and anger issues from a young age. These conditions affected employee's concentration at work and negatively impacted his interactions with coworkers and supervisors. At times, employee had to take off work in order to deal with his depression. In 1993 and again in 1994, doctors prescribed Xanax and Zoloft, but employee stopped taking these medications because he didn't like the way they made him feel.

Employee suffered two hernias in the past, one of which was surgically corrected. Employee has to be careful with lifting in light of these conditions.

Employee performed maintenance work at employer's summer camp. Employee's duties included plumbing and electrical work, mowing, upkeep on the pool, and working on the dormitories. On January 3, 2002, employee was cutting limbs from a downed tree, when the tree rolled. One of the limbs caught employee and threw him approximately 12 feet into the air. As a result, employee sustained a severe left wrist strain/sprain injury resulting in extensor tendinopathy, as well as a severe left knee contusion with aggravation of employee's postsurgical condition.

In his appeal to this Commission, employee argues he is permanently and totally disabled due to a combination of the last work injury and his preexisting disabling conditions. Section 287.220 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." For the Fund to be liable for permanent total disability benefits, employee must establish that: (1) she suffered from 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).

Employee presented expert medical testimony from Drs. David Volarich and Wayne Stillings, who each opined that employee is unable to be employed in the open labor market due to a combination of the primary injury and his preexisting conditions of ill-being. Employee also

Improve: John Mattison

- 3 -

provided expert vocational testimony from Stephen Dolan, who opined that employee is

unemployable based on a combination of the primary injury and employee's preexisting

conditions. The Second Injury Fund did not present any contrary evidence. Yet, the

administrative law judge disregarded the unanimous opinions from the expert witnesses, in

favor of his own lay opinion that employee doesn't have any psychiatric disability, and is not

permanently and totally disabled because he was able to secure some sporadic part-time

work after the primary injury.

I disagree with the administrative law judge's (and the majority's) choice to disregard

the unanimous expert opinion evidence regarding employee's ability to work. I would

find that employee met his burden under § 287.220 RSMo of establishing that he is

permanently and totally disabled due to a combination of the January 2002 injury and

his preexisting disabling conditions. I would modify the decision of the administrative

law judge and award permanent total disability benefits from the Second Injury Fund.

Because the majority has determined otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: John Mattison

Injury No. 02-019294

Dependents:

Before the

Employer: High Hill Christian Assembly (settled)

DIVISION OF WORKERS' COMPENSATION

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Insurer: Brotherhood Mutual Insurance Company (settled)

Jefferson City, Missouri

Hearing Date: September 9, 2013

Checked by: RJD/njp

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: January 3, 2002.
5. State location where accident occurred or occupational disease was contracted: Montgomery County, 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 injured while cutting a tree as a part of his duties as maintenance director.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Left wrist; left knee.
14. Nature and extent of any permanent disability: 15 % permanent partial disability of the left wrist and 15 % permanent partial disability of the left knee. Employee is also awarded additional permanent partial disability benefits of 34.7175 weeks from the Second Injury Fund.
15. Compensation paid to-date for temporary disability: None.
16. Value necessary medical aid paid to date by employer/insurer? $\ 9,165.81.

1. Value necessary medical aid not furnished by employer/insurer? Unknown.
2. Employee's average weekly wages: Sufficient for maximum permanent partial disability rate.
3. Weekly compensation rate: $\ 329.42 for permanent partial disability.
4. Method wages computation: Section 287.250 .2

From Second Injury Fund: 34.7175 weeks of permanent partial disability benefits, totaling \$11,436.64.

Said payments to begin immediately 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:

Dean Christianson

Employee: John Mattison

Injury No. 02-019294

Dependents:

Employee: | High Hill Christian Assembly (settled) |

The evidentiary hearing in this case was held on September 9, 2013 in Mexico, Missouri. The hearing was held to determine the liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits. Additional issues to be decided were: average weekly wage, compensation rates, and dependency. The parties requested leave to file post-hearing briefs, which leave was granted. The case was submitted on October 18, 2013.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Montgomery County and adjoining counties, including Audrain County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430, RSMo;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant, John Mattison, sustained an accident arising out of and in the course of his employment with High Hill Christian Assembly on January 3, 2002;
6. That the notice requirement of Section 287.420 does not serve as a bar to the claim for compensation in this case.

The evidence consisted of the testimony of Claimant, John Mattison, as well as the deposition testimony of Claimant; the deposition testimony of J. Stephen Dolan, a certified rehabilitation counselor; medical records; the deposition testimony and medical reports of Dr. David T. Volarich; certified records of the Missouri Division of Workers' Compensation; Certificate of Marriage; and certain correspondence.

In addition to those facts and the legal conclusions to which the parties stipulated, I find the following facts and make the following rulings of law:

1. Claimant, John Mattison, was born on November 22, 1960;
2. Claimant has an 11th grade education and obtained a GED in 1986;
3. Claimant was in the United States Navy from 1978 to 1986;
4. While in the United States Navy, Claimant took classes to become a master diesel mechanic and also took classes on diesel engine construction;
5. In 1982, Claimant injured his left knee in the Navy while playing softball;
6. In 1986, Claimant left the United States Navy due to his left knee injury;
7. In 1986, Claimant received an "honorable discharge with medical condition" from the United States Navy;
8. Claimant testified that he was devastated with the loss of his position with the United States Navy, testifying that "the Navy was my life", "a part of me died that day", and "I had nothing else to fall back on";
9. Nevertheless, from 1987 to 1995, Claimant worked as a civilian at the Great Lakes Training Center as a galley worker and stationary engineer;
10. Claimant drove a dump truck for Stubbs Trucking for approximately 3 months in 1996 and for two months in 1998;
11. Claimant also performed a few "odd jobs" in 1996, 1997 and 1998;
12. In 1999 Claimant underwent a left total knee replacement; Claimant testified that his left knee was "wonderful" post-surgery;
13. After the left total knee replacement surgery, Claimant worked for Employer on a volunteer basis for several months and, beginning