Pamela Bridgman v. WEB-CO Custom Industries, Inc.

(Reversing Award and Decision of Administrative Law Judge)

Injury No.: 07-118562

Employee: Pamela Bridgman

Employer: WEB-CO Custom Industries, Inc. (Settled)

Insurer: Sheltered Workshop Insurance (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. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision reversing the September 24, 2013, award and decision of the administrative law judge.

The sole issue before us is whether the Second Injury Fund is liable for permanent total disability benefits in this case. The administrative law judge concluded that the Second Injury Fund is not liable for permanent total disability benefits. We disagree.

On December 7, 2007, employee sustained injury when she fell on black ice. The parties stipulate that the accident and injury arose out of and in the course of her employment. Employee settled her claim against employer for approximately 15\% of the left shoulder.

Employee proceeded to trial of her claim against the Second Injury Fund. The administrative law judge's findings of fact are thorough and accurate and we adopt them to the extent that they are not inconsistent with our findings, conclusion, award, and decision herein.

In 2003, employer first hired employee notwithstanding that employee had significant preexisting permanent disabilities. Employer re-hired employee in March 2007. There is no evidence to suggest that employer hired employee as a business, political or personal favor or to secure a business advantage (e.g. tax advantage, government grant). Employee was not assigned merely simple tasks or make work projects. During employee's first period of employment with employer, employer promoted employee to assistant supervisor - a job she performed successfully until a period of uncontrolled diabetes prevented employee from working for a time. Employer again hired employee after her diabetes was controlled. Employee usually worked three days per week for over six hours each day. Employee performed real work for regular wages, which wages were sufficient to enhance significantly employee's quality of life.

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[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2007, unless otherwise indicated.

Dr. David Volarich was the only medical expert to offer testimony in this matter.

Dr. Volarich evaluated employee and reviewed her extensive medical history in reaching his opinions. Dr. Volarich is of the opinion that "the accident that occurred 12/7/07 when Ms. Bridgman was getting out of a car, stepped onto an icy sidewalk, slipped and fell onto her left side is the substantial contributing factor as well as the prevailing or primary factor causing left proximal humerus greater tuberosity nondisplaced fracture and partial rotator cuff tear of the left shoulder, both of which required nonoperative treatment. As a result of this injury, she also sustained a cervicothoracic strain injury and aggravated her myofascial pain syndrome." Dr. Volarich opined that employee sustained a 35\% permanent partial disability referable to her left shoulder and a 15\% permanent partial disability of the body as a whole referable to her cervicothoracic strain and the aggravation of her pain syndrome. Dr. Volarich noted that Dr. Lennard placed employee at maximum medical improvement on May 27, 2009. We find credible Dr. Volarich's opinions.

Vocational expert Phillip Eldred testified for employee. Mr. Eldred reviewed employee's medical records and personally evaluated employee. Mr. Eldred determined that employee had many preexisting permanent conditions of ill that constituted hindrances or obstacles to employee's employment or reemployment. Mr. Eldred opined that employee is permanently and totally disabled as a result of a combination of her preexisting disabilities and her injury of December 7, 2007. Vocational expert James England offered his opinions on behalf of the Second Injury Fund. Mr. England opined that employee was permanently and totally disabled for workers' compensation purposes even before she began employment for employer. In reaching his opinions, Mr. England reviewed employee's medical records but he did not evaluate employee. Mr. England did review a deposition given by employee upon which he relied. Unfortunately, the Second Injury Fund did not offer into evidence the deposition upon which Mr. England relied. The absence of the deposition prevents us from properly evaluating Mr. England's opinions so we will not rely upon his opinions. Having fully considered the vocational opinions, we credit the vocational opinion of Mr. Eldred.

The administrative law judge denied compensation in this matter because she found that employee was permanently and totally disabled before she sustained the work injury. The administrative law judge's denial is based upon the holding of the Missouri Court of Appeals for the Western District in Schussler v. Treasurer ${ }^{2}$ wherein the Schussler court held that "[b]y the [287.220's] plain language, it applies to a claimant who has a 'preexisting permanent partial disability,' not to claimants who are already permanently and totally disabled." (Emphasis in original. $)^{3}$

The administrative law judge's reliance upon Schussler appears to be misplaced because the application of the Schussler rationale to the facts of this case is seemingly in conflict with the Supreme Court's direction in Treasurer v. Witte ${ }^{4}$ handed down one year after Schussler. The Witte court clarified that we are not to use the third and fourth sentences of $\S 287.220 .1$ to determine if the Second Injury Fund is liable for permanent

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[^0]: ${ }^{2} 393 S.W.3d 90 (Mo. App. 2012).

{ }^{3} Id., at 98.

{ }^{4} 414$ S.W.3d 455 (Mo. 2013).

total disability benefits; we are to use the fifth sentence. The Witte court specifically held that the language upon which the Schussler court relied ("If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise...") is stated in the singular by design to clarify that, when applying the thresholds in permanent partial disability cases, at least one disability, considered alone, must meet one of the statutory thresholds appearing in the third sentence. ${ }^{5}

Our application of \S 287.220 .1$ to the facts of this claim for permanent total disability benefits is guided by the Witte holding and the recent decision in Lewis v. Treasurer. ${ }^{6}$ The Lewis court highlighted a litany of cases wherein courts erroneously have applied the statutory rules for determining the compensability of permanent partial disability claims when considering claims for permanent total disability benefits. The Lewis court rejected those applications and directed focus back to the following simple rule:

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. ${ }^{7}$

As a result of the work injury considered alone and of itself employee sustained a 35\% permanent partial disability referable the left shoulder and a 15\% permanent partial disability of the body as a whole. The combination of the effects of the work injury and employee's pre-existing disabilities resulted in employee's permanent total disability. Employee has satisfied the Lewis test set forth above. The Second Injury Fund is liable to employee for permanent total disability benefits.

The case of Laturno v. Treasurer ${ }^{8}$ supports our award of permanent total disability against the Second Injury Fund. At the time of his work injury, Mr. Laturno was about 50 years old. Mr. Laturno had worked continuously for that same employer for over thirty years notwithstanding several pre-accident disabilities, the main one being a lifelong intellectual disability which alone, according to expert testimony, had reduced him to doing simple manual tasks as an unskilled laborer under close supervision. In Laturno, the court considered the possibility that Mr. Laturno was unable to compete in the open labor market before the work injury but ultimately determined that it mattered not because the test for permanent total disability measures a worker's prospects for returning to employment. Such a test "cannot change the fact of past employment." ${ }^{9}$ The Laturno court upheld the award of permanent total disability benefits.

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[^0]: ${ }^{5}$ Id., at 463-464 (internal citations omitted)("The legislature's use of different terminology for permanent partial disability and permanent total disabilities is presumed intentional and for a particular purpose. Therefore, in the third sentence, it is presumed the legislature intended to require a single preexisting permanent partial disability, considered in isolation, to meet the thresholds before triggering the fund's liability...It is possible that multiple injuries can give rise to a single disability. Such a situation is not contemplated by the [third sentence's] language, however.")

${ }^{6} 435 S.W.3d 144 (Mo. App. 2014).

{ }^{7}$ Id., at 157 (citing Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo. App. 2007)).

${ }^{8} 640 S.W.2d 470 (Mo. App. 1982).

{ }^{9}$ Id., at 473 .

The facts of the instant case provide even more compelling reasons to award compensation than did the facts in Laturno. As we have already found, employee's work for employer was not limited to merely simple tasks or make work projects. Employee's work for employer was reasonable and normal employment. And this is not a situation wherein a seriously disabled and marginally employable worker sustained a minor injury at the workplace which did not demonstrably alter her employment prospects or earnings capacity. Employee sustained a significant injury resulting in a significant increase in her level of overall disability, which has deprived her of a significant source of income, and which we find has permanently precluded her from future employment.

Our decision to assess liability against the Second Injury Fund in this case is consistent with and furthers the purposes of the Second Injury Fund. The purpose of the Second Injury Fund is to encourage the employment of individuals who are disabled from a preexisting injury. ${ }^{10}$ It encourages such employment by ensuring that an employer is only liable for the disability caused by the work injury. ${ }^{11}$ As we now know, employee's preexisting disabilities carried not only the potential to combine synergistically with a work injury but did in fact combine with employee's work injury to result in greater disability to employee than she would have otherwise sustained as a result of December 7, 2007, work accident considered alone and of itself. If we were to hold that the Second Injury Fund is not liable for permanent total disability benefits in this case we would necessarily be holding that liability for permanent total disability benefits remains with the employer even though the employer acted just as the legislature hoped by hiring employee with significant preexisting disabilities. To leave liability for the payment of permanent total disability benefits with the employer in a case such as this is directly contrary to the purpose of the Second Injury Fund and patently unjust.

We must dispense with one final matter. The Second Injury Fund argues that the legislature's recent addition to $\S 287.220$ of language specifically providing for the compensability of the claims of employees of shelt