Linda Brown v. Chrysler Corporation

The administrative law judge first found that employee is permanently and totally disabled based on the totality of employee's condition, which includes injuries and disabling conditions that arose subsequent to the date that employee reached maximum medical improvement from the effects of the primary injury. The administrative law judge then determined that neither the primary injury considered alone, nor the primary injury considered in combination with employee's preexisting conditions of ill-being, render employee permanently and totally disabled. Finally, the administrative law judge sought to identify an alternative cause for employee's permanent total disability, and determined that employee is permanently and totally disabled owing to the subsequent development or worsening of various conditions unrelated to the primary injury. ${ }^{1}$ Notably, the administrative law judge did not identify or specifically rely upon any expert medical opinion that employee is permanently and totally disabled owing to these subsequent injuries or disabling conditions.

We are of the opinion that once the fact-finder has determined that (1) the primary injury considered alone does not render employee permanently and totally disabled; and (2) the primary injury in combination with employee's preexisting conditions of ill-being does not render employee permanently and totally disabled, the question whether employee is permanently and totally disabled owing to some other cause becomes irrelevant. This is because the courts have indicated that going a step further and attempting to identify alternative theories why an employee cannot work is not only unnecessary, but may undermine our analysis. ${ }^{2}$

Again, we recognize the administrative law judge's attention to detail in this matter and his careful explanations for each of his factual findings. We defer to the administrative law judge's assessment of the weight to be given to employee's testimony, the medical evidence, and the various expert opinions; for this reason we will not disturb his ultimate conclusions that neither the employer nor the Second Injury Fund are liable for permanent total disability benefits in this case. But we must disclaim his additional finding that employee is permanently and totally disabled owing to the subsequent development or worsening of various conditions unrelated to the primary injury. Rather, we simply find that the primary injury did not render employee permanently and totally disabled, and that employee's permanent partial disability resulting from the last injury does not combine with employee's prior disability to result in total and permanent disability, and conclude therefore that neither the employer nor the Second Injury Fund are liable for permanent total disability benefits.

We affirm and adopt the award of the administrative law judge, as supplemented herein.

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[^0]: ${ }^{1}$ Along with employee's neurological complaints or "attacks," the administrative law judge cited increased problems with diabetes since 2002; an appendectomy, diagnosis of depression, and hospitalization for chronic obstructive pulmonary disease in 2004; a cervical spine fusion, right carpal tunnel release surgery, and left ankle tendon tear in 2008; a left carpal tunnel release in 2009; and a left hip replacement surgery in 2013.

${ }^{2}$ See, e.g., Abt v. Miss. Lime Co., 388 S.W.3d 571 (Mo. App. 2012), where the Commission affirmed an administrative law judge's award rejecting expert opinion evidence regarding the cause of an employee's permanent total disability in favor of the administrative law judge's theory that the employee was permanently and totally disabled owing to subsequent deterioration. In reversing the Commission, the Abt court noted that "[r]ather than choosing one of the medical opinions, the Commission made a finding that is not consistent with any medical opinion in the record." Id. at 581 .

The award and decision of Administrative Law Judge John K. Ottenad, issued August 11, 2014, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 $\qquad 1^{\text {st }} \qquad$ day of April 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 3, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Claimant worked as an assembler for Employer and injured her right shoulder and neck, when she lifted a dashboard to turn it and her shoulder popped, with pain up into her neck and down her whole right arm into her hand.
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: Right Shoulder and Neck
14. Nature and extent of any permanent disability: 30 % of the Right Shoulder and 12.5 % of the Body as a Whole-Cervical Spine
15. Compensation paid to-date for temporary disability: $\ 5,146.52
16. Value necessary medical aid paid to date by employer/insurer? $\ 9,100.35

Employee: Linda Brown Injury No.: 99-151099

1. Value necessary medical aid not furnished by employer/insurer? $\ 1,382.03
2. Employee's average weekly wages: $\ 725.64
3. Weekly compensation rate: $\ 483.76 for TTD/ $\ 303.01 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

119.6 weeks of permanent partial disability

$\ 36,239.99

1. Second Injury Fund liability:

43.92 weeks of permanent partial disability

$\ 13,308.19

TOTAL: $\mathbf{\$ 4 9 , 5 4 8 . 1 8}$

1. Future requirements awarded: None

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: Andrew J. Gregory.

Employee: Linda Brown

Departments: N/A

Employer: Chrysler Corporation

Additional Party: Second Injury Fund

Insurer: OLD CARCO, LLC

C/O Sedgwick Claims Management Services

Injury No.: 99-151099

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On March 10, 2014, the employee, Linda Brown, appeared in person and by her attorney, Mr. Andrew J. Gregory, for a hearing for a final award on her claim against the employer, Chrysler Corporation, and its insurer, OLD CARCO, LLC C/O Sedgwick Claims Management Services, as well as the Second Injury Fund. The employer, Chrysler Corporation, and its insurer, OLD CARCO, LLC C/O Sedgwick Claims Management Services, were represented at the hearing by their attorney, Ms. Betsy J. Levitt. The Second Injury Fund was represented at the hearing by Assistant Attorney General Timothy Maurer.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until April 9, 2014. Although we did not go back on the record or take any further evidence in this matter after the initial hearing date, the record was, then, closed on that date and the briefs were submitted by the parties by April 25, 2014, after extensions beyond the initial due date for the briefs were requested and granted.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and t