John Robertson v. Transport Corporation of American, Inc.

In the final paragraph on page 10 of her award, the administrative law judge states that employee had no headaches before the December 8, 2010, primary injury. This statement is incorrect. At the hearing, the employee testified he had complained of headaches to Dr. Koprivica in 2000, after a right shoulder injury. Accordingly, we must disclaim this finding by the administrative law judge.

In all other respects, we affirm the award of the ALJ dated August 7, 2014.

We further approve and affirm the ALJ's allowance of attorney's fees herein as being fair and reasonable.

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

The award and decision of Administrative Law Judge Emily S. Fowler, issued August 7, 2014, is attached and incorporated by this reference except to the extent modified herein.

Given at Jefferson City, State of Missouri, this $11^{\text {th }}$ day of May 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

DISSENTING OPINION FILED

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 assessing liability for employee's permanent total disability against the employer is in error, and that the decision should be modified to award permanent total disability benefits from the Second Injury Fund.

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." The Fund is liable for permanent total disability benefits where the work injury combines 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).

This 63-year-old employee worked for employer for approximately six months when he was involved in a workplace accident on December 8, 2010. Prior to the December 2010 work injury, employee had an extensive history of significant injuries which included injuries to his abdomen, back, right shoulder, knee, and ankle.

Employee fractured his ankle in high school playing football, which was treated with a cast for six to seven months. Employee then received multiple severe injuries whiling serving in the military in the 1970s. Employee was shot in the knee and abdomen, and required surgery. Employee was then run over by a tank, causing an injury to his back. Employee required a back fusion as a result of this back injury, and continued to have back pain and limitations since the injury. Employee was assaulted in 1989, and was kicked in the face and abdomen multiple times.

In 1991, employee suffered a work-related injury to his low back and left knee when he fell off a stool. Employee received a workers' compensation settlement of 5\% permanent partial disability to his lumbar spine and 5\% permanent partial disability to his left knees as a result of this work accident.

In 2000, employee suffered a work-related injury to his right shoulder when an insulation bundle struck him. Employee underwent surgery for decompression and debridement of a rotator cuff tear. Dr. Koprivica examined employee in November of 2000 and issued permanent restrictions including a 20 pound lifting limitation and directions to avoid repetitive activities above the shoulder level. At that time, Dr. Koprivca assessed a 31\% permanent partial impairment to the right upper extremity. Dr. Koprivica noted pain, weakness, and loss of motion in the right shoulder and reported that employee had to leave his truck driving employment because of the right upper extremity condition. Employee also reported he was suffering headaches at this time. Employee received a worker's compensation settlement for this condition.

The only vocational expert to testify was Michael Dreiling, who testified on employee's behalf. Mr. Dreiling opined that employee was unemployable in the open labor market due

to the combination of his primary and pre-existing injuries. In his deposition, Mr. Dreiling made it clear that it was not his opinion that employee was unemployable based solely on the December 8, 2010, accident. Rather, it was due to "a combination of all the issues including preexisting medical problems...." Mr. Dreiling agreed that his opinion on employee's unemployability was based on Dr. Koprivica's current restrictions, the restrictions Dr. Koprivica recommended in 2000, and the restrictions recommended after the 1991 workplace injury.

I credit the testimony of the only vocational expert to testify, and find that employee is permanently and totally disabled due to a combination of the December 2010 work injury and his extensive preexisting 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.

James G. Avery, Jr., Member

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 occupation under the Law? Yes
4. Date of alleged accident or onset of occupation disease: December 8, 2010
5. State location where alleged accident occurred or occupational disease was contracted:

Kansas City, Clay County, Missouri 6. Was above employee in employ of above employer at time of allege 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 had retrieved supplies from his employer and was walking to his truck when he tripped over a stake in the ground and fell. 12. Did accident or occupational disease cause death? No 13. Part(s) of body injured by accident or occupation disease: Left shoulder and left wrist.

Issued by Division of Workers' Compensation

Employee: John W. Robertson

1. Nature and extent of any permanent disability: Permanent Total disability attributed to the accident date December 8, 2010
2. Compensation paid to-date for temporary disability: $\ 8,447.98
3. Value necessary medical aid paid to date by employer/insurer? $\ 20,676.76
4. Value necessary medical aid not furnished by employer/insurer? $\ 650.00
5. Employee's average weekly wage: $\ 941.82
6. Weekly compensation rate: $\$ 627.58 / \ 418.58
7. Amount of compensation payable: Employer to pay to Employee permanent total disability payments of $\ 627.58 per week beginning April 28, 2011 for as long as Employee remains permanently and totally disabled. Employer shall also pay to Employee the sum of $\ 650.00 as and for unpaid medical treatment required to cure and relieve Employee from the injuries he sustained in his December 8, 2010 accident.
8. Second Injury Fund liability: None
9. Future requirements awarded: Future medical care which will cure and relieve the symptoms related to Claimant's headaches as suggested by Dr. Kelly.

A fee of 25 % for all benefits herein shall be awarded to Michael W. Downing, Employee's attorney, for services rendered.

Employee: John W. Robertson

Injury No.: 10-102401

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Transport Corporation of America, Inc.

Insurer: Zurich American Insurance

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

Hearing Date: June 18, 2014

Checked by: $\mathrm{ESF} / \mathrm{pd}$

On June 18, 2014, the Employee, Employer and the Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Claimant, John W. Robertson, appeared personally and through counsel, Michael W. Downing. The employer, Transport Corporation of American, and its insurer, Zurich American Insurance, appeared through counsel Samantha Benjamin-House. The Second Injury Fund appeared through counsel Maureen Shine.

The parties entered into the following stipulations at trial:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act and liability was fully insured by Zurich American Insurance.
2. An employer/employee relationship existed between Employee and Employer on December 8, 2010.
3. Employee sustained an accident on December 8, 2010 arising out of and in the course of his employment with Transport Corporation of America.
4. Employer received timely notice of Employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. Employee's average weekly wage was $\ 941.82, which leads to a $\ 627.58 temporary disability compensation rate and $\ 418.5