Samuel Marciante v. Charles E. Jarrell Contracting Company

(Reversing Award and Decision of Administrative Law Judge)

Injury No. 09-004245

Employee: Samuel Marciante

Employer: Charles E. Jarrell Contracting Company (Settled)

Insurer: Travelers 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. Pursuant to $\S 286.090$ RSMo, we issue this final award and decision reversing the October 2, 2014, award and decision of the administrative law judge.

The parties asked the administrative law judge to determine the sole issue of Second Injury Fund liability. The parties stipulated that on or about January 16, 2009, employee was employed by Charles Jarrell Contracting and sustained an accident which arose out of and in the course of his employment. The parties further stipulated that employee's wages was sufficient for the following disability rates: $\ 764.94 for temporary total disability and permanent total disability, and $\ 404.66 for permanent partial disability.

The administrative law judge (ALJ) concluded that the Second Injury Fund is not liable for permanent partial or permanent partial disability benefits. Employee filed a timely Application for Review with the Commission. For the reasons set forth herein, we reverse the award of the administrative law judge.

Employee was 52 years of age at the time of the primary injury on January 16, 2009. He is a high school graduate, and completed a heating and cooling night course at North County Technical School. He began work as a sheet metal worker at the age of 20, and has worked exclusively in that field for approximately 35 years.

Employee injured his back while lifting a furnace on May 9, 1988. Dr. Sheehan surgically repaired a herniated disc at L4-5. As a result of this injury, claimant missed work for three or four months. After the surgery employee continued to have back pain after strenuous activity, and was slowed down at work by decreased leg stability and numbness in the right leg. Claimant settled the case with his employer for 25 % PPD of the low back.

On November 30, 1992, employee had another low back injury. Employee missed time from work following the accident, and surgery was performed at L3-4. After the surgery,

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[^0]: ${ }^{1}$ All statutory references are to the Revised Statutes of Missouri (2013), unless otherwise indicated.

Claimant continued to have numbness in both legs, low back pain and would have to seek help from coworkers when lifting or climbing at work. Employee settled the case with employer for 12.5% PPD of the low back.

On August 30, 2001, employee injured his low back when he tripped and fell while walking up steps. Surgery was performed to repair employee's back at L5-S1, and claimant missed work after the surgery. Employee settled the case with employer for 22.5% of the back, and settled with the Second Injury Fund on this same basis. Employee returned to work, but had residual back pain, right leg numbness, and limited range of motion. Employee had difficulty climbing ladders, lifting, and bending, and on breaks he would lie on stacks of drywall and apply ice to his back to relieve pain. He used a staff for support when hunting, fishing, or walking on rough terrain.

We find that, prior to and as of January 16, 2009, employee had sustained a 30% permanent partial disability of the body as a whole referable to the low back which constituted a hindrance to employment.

On January 16, 2009, claimant bent to "pop a line" at work and felt a stabbing pain in his low back. He had surgery at the L2-3 level on May 12, 2009, followed by a surgery on the L3-4 level in January of 2010. Employee missed time from work. He returned to work in April of 2010 with restrictions, which employer accommodated by letting him work in the duct shop where he could obtain assistance from other employees. Claimant worked until March 15, 2012, when employer discharged him, along with other employees, for economic reasons.

Employee testified that after the January 2009 accident, he had increased problems walking, sitting, lying down, bending, lifting, squatting, climbing, and long distance driving. He began to take narcotic medication after the January 2009 injury. Since his last surgery, his left leg gives out a couple of times per week, where only his right leg gave out before. He does continue to work on his farm and rides ATVs, and hunts twice a year.

Dr. Thomas F. Musich, M.D., examined claimant on September 25, 2012, reviewed medical records not in evidence, wrote a report, and testified on behalf of employee. For the primary injury, Dr. Musich diagnosed a massive herniated disc at L2-3 and concluded the January 16, 2009, work injury was the prevailing factor in the development of the acute low back and discogenic pain, and lower extremity radiculopathy, and a symptomatic neurogenic bladder.

Dr. Musich further opined that the low back issues before the January 2009 accident had resulted in a 60% PPD of the body as whole. Dr. Musich concluded that the sum of employee's past and present disabilities are greater than their simple sum, and are hindrance or obstacle to his daily activities of life. Dr. Musich did not provide a percentage of disability from the last back injury, but noted that employee "was awarded a 35%.

² This appears to be the sum of the settlements from the previous injuries. In his brief, employee states "Dr. Musich also assumed that it 'was determined by workers' compensation that [employee] suffered a permanent partial disability of 60% of the man as a whole referable to lumbosacral pathology prior to January, 2009."

permanent partial disability of the body as a whole." Dr. Musich also testified that since the last injury, employee had continuing complaints of left leg pain, numbness, burning, and tingling where he had no symptoms in his left leg before; had bladder dysfunction that was not present before the 2009 injury; and was taking Vicodin where employee took no narcotics prior to the 2009 injury.

Dr. Musich continued employee's restrictions, and added that employee should avoid prolonged positions of the spine, not drive a commercial vehicle, not work above or below floor level, and should lie down as needed. During his deposition, Dr. Musich testified that employee is "totally and permanently disabled as a result of the combination of all of his injuries between 1988 and 2009."

Mr. England, a rehabilitation counselor, interviewed claimant on December 10, 2012, reviewed medical records not in evidence, reviewed Dr. Musich's report, administered tests, and wrote a report at the request of employee. Mr. England concluded employee's academic development was sufficient for a number of entry level positions. Mr. England testified that employee had worked as a sheet metal worker his entire career and could not return to that work after the last surgery. Mr. England concluded employee was unable to compete for work or sustain work in the open labor market because of a combination of his primary and preexisting disabilities.

The Second Injury Fund did not advance a contrary medical or vocational opinion, but contended that claimant is not permanently and totally disabled, and/or that if he is, it is due to the last injury alone. Additionally, the Second Injury Fund contended that claimant did not prove the extent of disability he suffered from his last injury alone, thus failing to meet his burden to show that if he was permanently disabled, it was not due to his last injury alone.

The administrative law judge found employee credible, and that "[t]here is no doubt Claimant sustained a serious injury." However, the ALJ found that while Dr. Musich's opinion was sufficient to demonstrate and certify that employee had a disability from the last injury, it was insufficient to show the percentage of disability he sustained from that injury. Thus the ALJ concluded it was "impossible to determine the extent or percentage of disability that claimant sustained from the last back injury separate from earlier back injuries." The ALJ also found that employee did not meet his burden to show he was permanently and totally disabled, noting that "[c]laimant testified he worked until employer terminated him for economic reasons 23 months after Dr. Rutz released him." The ALJ accordingly denied all benefits, citing and relying on *Goleman v. MCI Transporters*, 844 S.W.2d 463 (Mo. App. 1992).

When seeking disability benefits with respect to a work-related injury, the claimant has the burden of proof to show that a disability resulted and the extent of such disability." *Zimmerman v. City of Richmond Heights*, 194 S.W.3d 875, 878 (Mo. App. 2006)(internal citations omitted). The claimant needs to prove "the nature and extent of any disability by a reasonable degree of certainty." *Id.*

Proof of the extent of disability is not required to be made with mathematical exactness, nor is the Industrial Commission bound by the percentage estimates or other testimony of medical experts. Hall v. Spot Martin, Inc., 304 S.W.2d 844, 854 (Mo. 1957). It is the duty and special province of the Commission to weigh all the evidence and reach its own conclusion as to the percentage of disability suffered. Haggard v. Synder Constr. Co., 479 S.W.2d 142, 145 (Mo. App. 1972); ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007).

The administrative law judge found that while Dr. Musich's opinion was sufficient to demonstrate and certify that employee had a disability from the last injury, it was insufficient to show the percentage of disability and that it was "impossible to determine the extent or percentage of disability that claimant sustained from the last back injury separate from earlier back injuries." We disagree.

Dr. Musich noted that employee "was awarded a 35\% permanent partial disability of the body as a whole" and the record also shows employee settled his claim with employer for 35 % permanent partial disability of the body as a whole. The Second Injury Fund was not a party to these settlements, and remained free to litigate issues conceded by employer. Hoven v. Second Injury Fund, 414 S.W.3d 676, 680 (Mo. App. 2013). The settlement agreement is, however, relevant evidence that the Commission may consider regarding percentage of disability. Id., citing Conley v. Treasurer of Missouri, 999 S.W.2d 269 (Mo. App. 1999).

Dr. Musich testified that since the last injury, employee had continuing complaints of left leg pain, numbness, burning, and tingling where he had no symptoms in his left leg before; had bladder dysfunction that was not present before the 2009 injury; and was taking Vicodin where employee took no narcotics prior to the 2009 injury. Dr. Musich in his report of September 25, 2012, also identified the January 16, 2009, injury as the prevailing factor in the development of acute low back pain, discogenic pain, lower extremity radicuopathy, and a symptomatic neurogenic bladder. Additionally, employee credibly testified that after the January 2009 accident, he had increased problems walking, sitting, lying down, bending, lifting, squatting, climbing, and long distance driving.

Because proof of permanent disability need not be established with mathematical precision, because we are in no way constrained by medical testimony expressed with such precision, and (applying strict construction) absent any statutory language that requires disability be expressed in mathematical terms, we conclude it is not necessary that physicians certify permanent disability in mathematical terms. Rather, we believe the burden of proof of permanent disability can be sustained by providing