Edward Gleason v. Ceva Logistics

On March 3, 2015, the Missouri Court of Appeals for the Western District issued an opinion reversing our May 15, 2014, award and decision. Gleason v. Treasurer of the State, (Mo. App. 2015)(No. WD77607). In particular, the Court reversed our conclusion that employee's injury did not arise out of and in the course of his employment. By mandate dated March 25, 2015, the Court remanded this matter to us for further proceedings in accordance with the opinion of the Court.

Pursuant to the Court's mandate, we issue this award. Having reviewed the evidence and considered the whole record in light of the opinion of the Court, we reverse the November 19, 2013, award of the administrative law judge and award benefits.

At the trial of this matter, employee sought permanent total disability from the Second Injury Fund. By his application for review, employee abandoned his claim for permanent total disability benefits conceding that "a diagnosis of PPD appears to be more appropriate." The sole issue remaining before us is whether the Second Injury Fund is liable to employee for permanent partial disability benefits relative to his August 5, 2007, accident that arose out of and in the course of his employment.

On April 30, 2009, an administrative law judge approved a Stipulation for Compromise Settlement in which employer/insurer and employee agreed to resolve employee's claim against employer/insurer by the payment from employer/insurer to employee of $\ 34,000.00 based upon approximate permanent partial disabilities of 15 % of the upper right extremity at the 232 -week level and 13 % of the body as a whole referable to employee's cervical and thoracic spine. ${ }^{1}$

In June 2007, employee suffered a mild stroke due to a cerebral vascular condition. As a result of the stroke, employee suffered a permanent reduction in his peripheral vision, in particular a right-sided field cut. Before the work injury, employee also suffered from coronary artery disease with ischemic cardiomyopathy and peripheral arterial disease. An angiography performed in June 2007, revealed employee had an occluded left internal carotid artery.

[^0] [^0]: ${ }^{1}$ The administrative law judge erroneously found the employer/insurer and employee settled the claim "for 15\% ppd to the body as a whole for cervical and thoracic injuries."

On August 5, 2007, employee was atop a railcar performing an inspection as part of his duties for employer. Employee fell 20 - 25 feet from the top of the railcar and landed on the ground. Employee does not remember the circumstances leading up to the fall, the fall itself, or the three days after the fall, during which time employee was hospitalized. No individuals testified to having witnessed the fall. As a result of his fall, employee sustained injuries to his head (contusion/closed head injury), neck (musculoligamentous sprain/strain), right shoulder (contusion/strain/tendonitis), anterior chest (right clavicular fracture/closed pneumothorax/rib fractures) and thoracic spine (right transverse process fractures at T9 and T10/right scapular fracture).

Dr. Samuelson treated employee for his work injuries. Because employee's cardiac condition rendered employee a poor candidate for surgery, Dr. Samuelson treated employee's orthopedic injuries conservatively. Eventually, employee's fractures healed.

On September 6, 2007, approximately one month after his work injury, employee underwent coronary artery bypass surgery.

Employee participated in three weeks of physical therapy for his shoulder beginning in late October 2007. Employee also returned to work with restrictions in October 2007. Employee worked until December 10, 2007, at which time employer suspended him. Employer eventually discharged employee. Despite submitting hundreds of job applications, employee has not worked since December 2007.

In November 2007, employee complained to Dr. Samuelson of continued shoulder pain. After a possible rotator cuff tear was ruled out, Dr. Samuelson recommended employee take anti-inflammatory medications and engage in a home exercise program. Dr. Samuelson continued to monitor employee's progress until March 7, 2008, when Dr. Samuelson released employee at maximum medical improvement. Dr. Samuelson opined that according to the American Medical Association, Guides to Evaluation of Permanent Impairment, employee suffered a permanent partial impairment rating of 2 % of employee's right upper extremity.

Employee testified that as a result of his fall at work, he gets headaches daily after he has been up for about three and a half hours. To ameliorate his headaches, employee takes Tylenol and lies down. Employee testified that he experiences discomfort in his neck and shoulder; he says it feels as if they are misaligned. Employee has reduced grip strength in his right hand.

On March 28, 2008, Dr. Poppa evaluated employee for purposes of providing his expert medical opinion in this case. Dr. Poppa believes employee sustained permanent partial disabilities as a result of his August 5, 2007, fall. Dr. Poppa believes employee's accident was the prevailing factor in causing his injuries and resulting disabilities. Dr. Poppa believes that as a result of the August 5, 2007, fall, employee sustained the following permanent partial disabilities:

1) 5 % permanent partial disability of the body as a whole referable to his head (closed head injury);

2) 10 % of the body as a whole referable to his cervical spine;

3) 20 % permanent partial disability of his right upper extremity referable to the shoulder injury and clavicular fracture; and,

4) 10 % permanent partial disability of the body as a whole referable to his pneumothorax, scapular fracture, rib fractures, and vertebral body transverse fractures at T9 and T10.

Dr. Poppa believes employee's overall disability as a result of the work fall is 37 % permanent partial disability of the body as a whole.

Dr. Poppa offered his opinion that at the time employee sustained his work injury, employee suffered from 20 % permanent partial disability related to his cardiac condition and 20 % permanent partial disability related to his cerebral vascular disease. Dr. Poppa believed the cardiac and vascular conditions then constituted a hindrance or obstacle to employee's employment or reemployment.

Dr. Poppa testified that from a functional standpoint employee could perform the work duties associated with a job in the sedentary category of physical demand, meaning employee could perform primarily seated duties with occasional walking and standing and occasional lifting of up to 10 pounds. Even so, Dr. Poppa opined that employee's preexisting heart and vascular conditions combined with the permanent partial disabilities from the work fall in such a manner that employee presents as an individual who is not capable of employment in the open labor market. Specifically, due to the combination of the three conditions, Dr. Poppa believes no employer would reasonably be expected to hire employee.

We find generally credible the medical opinions of Dr. Poppa but, based upon employee's own assessment of his capabilities before the work injury, we believe Dr. Poppa overstated the extent of employee's pre-existing permanent partial disabilities. We find that employee suffered a pre-existing permanent partial disability of 20 % of the body as a whole relative to his cardiac and vascular conditions ( 80 weeks) and that those conditions were a hindrance or obstacle to employment.

We think Dr. Poppa's opinions regarding the extent of the permanent partial disabilities employee sustained as a result of his work fall are slightly overstated. Employee resolved his claim against employer/insurer for approximately 15\% permanent partial disability at the level of the right shoulder ( 34.8 weeks) and 13 % of the body as a whole referable to employee's thoracic and cervical regions ( 52 weeks). We believe the settlement percentages accurately reflect employee's resulting permanent partial disabilities and we adopt them.

We do not question Dr. Poppa's belief that when he examined employee on March 8, 2008, no employer would have reasonably been expected to hire employee as employee then presented. But we do not accept Dr. Poppa's opinion that employee's condition and presentation on March 28, 2008, can be attributed solely to the combination of employee's pre-existing conditions and the disabilities from his work injury. We think the worsening of employee's cardiac and vascular problems after the work injury - in particular employee's worsening problem with fatigue - also contributed to employee's overall condition and noncompetitive presentation on March 28, 2008.

Consequently, we find employee's permanent partial disabilities from his work injuries synergistically combined with his preexisting disabilities to result in a greater overall permanent partial disability than their simple sum, but the combination did not result in permanent total disability. We believe a loading factor of 20 % fairly accounts for this enhanced permanent partial disability.

"Section 287.220 creates the Second Injury Fund and sets forth when and the amount of compensation that shall be paid from the fund in 'all cases of permanent disability where there has been previous disability." "In order to be entitled to Fund liability, the claimant must establish either that (1) a preexisting partial disability combined with a disability from a subsequent injury to create permanent and total disability or (2) the two disabilities combined to result in a greater disability than that which would have resulted from the last injury by itself."3

"Liability of the Second Injury Fund is triggered only 'by a finding of the presence of an actual and measurable disability at the time the work injury is sustained." ${ }^{4}$ The preexisting disability must also be of such seriousness as to constitute a hindrance or obstacle to employment. ${ }^{5}$ "To determine whether a pre-existing partial disability constitutes a hindrance or obstacle to the employee's employment, 'the Commission should focus on the potential that the pre-existing injury may combine with a future work related injury to result in a greater degree of disability than would have resulted if there was no such prior condition." ${ }^{6}$ The Second Injury Fund is not liable for permanent partial disability benefits unless some preexisting permanent partial disability equals at least 15 % permanent partial disability relative to a major extremity or 50 weeks of compensation measured at the body as a whole. ${ }^{7}$

The opinions of Dr. Poppa have convinced us that at the time he sustained his work injury, employee suffered from actual and measurable preexisting permanent partial disabilities that constituted hindrances or obstacles to his employment or reemployment. We have found that employee's preexisting permanent partial disability equals 20 % of the body as a whole, or 80 weeks. Employee's permanent partial disability meets the minimum threshold required to trigger Second Injury Fund liability.

Employee's permanent partial disabilities from his work injuries synergistically combined with his preexisting disabilities to result in a greater overall permanent partial disability than their simple sum and a loading factor of 20 % is appropriate. Stated in compensation weeks, the simple sum of employee's preexisting and work disabilities is 166.8 weeks (34.8

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[^0]: ${ }^{2}$ Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000)(citations omitted).

${ }^{3}$ Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. 2004) citing Karoutzos v. Treasurer of State, 55