James Lutes v. DaimlerChrysler

the right trigger finger condition. But at his deposition, Dr. Poetz conceded that he didn't know whether employee had any continuing problems from his 1998 or 1999 upper extremity conditions. See Transcript, page 343. Dr. Poetz's willingness to rate a condition where he was unaware whether employee actually experienced any ongoing problems renders his opinion lacking any persuasive force whatsoever. After careful consideration, we deem this record insufficient to support a finding that employee suffered any preexisting permanent partial disability referable to a right hand trigger finger condition and/or surgery.

Second, with regard to the right elbow, we note that Dr. Poetz rated 10\% permanent partial disability for what he described as an October 1998 right elbow injury or diagnosis of medial epicondylitis. Given that there is no other evidence on this record of an October 1998 injury or event involving the right elbow, we would expect Dr. Poetz to provide some explanation for his rating. But at his deposition, Dr. Poetz made clear that he could not remember anything about this claim or about employee, that he was unwilling to discuss or defend his findings, and that his report would have to speak for itself. Unfortunately, Dr. Poetz's report is conclusory and lacks any explanation with regard to this claimed 1998 right elbow condition or injury, so it cannot speak for itself.

Employee did not offer any testimony that he suffered a 1998 right elbow injury; instead, employee seemed to believe he had right elbow problems in 2001. See Transcript, pages 40, 80. We find employee's testimony lacking persuasive force on this point, as he was clearly confused. Apart from a January 31, 2000, note from Dr. Rotman memorializing a complaint of right elbow pain of four months in duration (but also finding no evidence of impairment referable thereto), employee provides no other evidence that would support a finding that he suffered preexisting permanent partial disability referable to the right elbow as of the date of the primary injury in this matter. For this reason, and because Dr. Poetz was clearly unwilling or unable to provide any explanation for his rating, we find the record insufficient to support a finding that employee suffered any preexisting permanent partial disability of the right elbow as of October 15, 2003, the date of the primary injury.

Turning to the cardiovascular condition, we note that once again, employee did not provide any testimony of his own to establish how this condition constituted a permanent partial disability as of the date of injury in this matter. Nor does employee cite, in his brief, any medical records or other evidence that would support such a finding. Instead, employee relies solely upon a rating from Dr. Poetz. But notably, Dr. Poetz did not provide a diagnosis or rating for a preexisting cardiovascular condition in his reports dated July 24, 2001, October 27, 2008, or March 9, 2009. Instead, the first rating from Dr. Poetz for this condition appears in his report of February 17, 2010, wherein Dr. Poetz merely lists the condition as "pre-existing," and does not specify whether any such disability preexisted the primary injury at issue in this matter. See Transcript, page 472. As we have noted above, Dr. Poetz refused to provide any rationale or explanation for his findings at his deposition. As a result, we find this rating from Dr. Poetz insufficient on its face to establish employee suffered from a preexisting cardiovascular permanent partial disability as of the date of injury in this matter, because we have no way to

determine what Dr. Poetz meant by "pre-existing" where he did not render this finding until February 2010.

Finally, with regard to the right shoulder, we note that employee asks us to rate it three times and include each rating in our assessment of Second Injury Fund liability. One of these ratings appears to correspond to an opinion from Dr. Poetz that employee suffered 10\% permanent partial disability referable to an alleged October 1998 right shoulder injury, but the other two ratings correspond to the same alleged 2001 right shoulder injury. Specifically, in his brief, employee asks us to include both the amount of permanent partial disability reflected in a settlement as well as the amount of permanent partial disability rated by Dr. Poetz for the same condition. Suffice to say we are not persuaded by employee's argument that we should find a total of 27.5 % preexisting permanent partial disability referable to the right shoulder.

We cannot overlook, however, the fact that the administrative law judge excluded preexisting permanent partial disability referable to the right shoulder on the sole basis that she did not, in a separate proceeding, find that condition to have constituted a compensable work injury. See Award, page 6. This is clear error, because § 287.220 RSMo does not require that a preexisting permanent partial disability result from a compensable work injury to be included in a claim against the Second Injury Fund for permanent partial disability benefits. Accordingly, although we are in no way persuaded by employee's brief or arguments, we discern a need to modify the award of the administrative law judge to correct this error.

We defer to (and hereby adopt) the administrative law judge's ratings referable to employee's primary injury and preexisting conditions of ill-being, as well as her finding that a 15 % load factor is appropriate to account for the synergistic interaction of these conditions. After careful consideration, we deem appropriate the 2.5 % rating reflected in employee's settlement of the 2001 right shoulder claim against the employer. We recalculate Second Injury Fund liability for enhanced permanent partial disability benefits, as follows:

63 weeks ( 30 % permanent partial disability of the left elbow) + 31.5 weeks ( 18 % of the left wrist) +35 weeks ( 20 % of the right wrist) +108 weeks ( 27 % of the body as a whole referable to the lumbar spine) +5.8 weeks ( 2.5 % of the right shoulder) $=243.3 weeks x$ the 15 % load factor $=36.495$ weeks of enhanced permanent partial disability.

At the stipulated permanent partial disability rate of $\ 347.05, we conclude the Second Injury Fund is liable for $\ 12,665.59 in permanent partial disability benefits.

We modify the award of the administrative law judge as to the issue of Second Injury Fund liability. Employee is entitled to, and the Second Injury Fund is hereby ordered to pay, $\ 12,665.59 in permanent partial disability benefits.

The award and decision of Administrative Law Judge Margaret Landolt, issued April 15, 2015, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 $4^{\text {th }}$ day of September 2015.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

SEPARATE OPINION FILED

Curtis E. Chick, Jr., Member

Attest:

Secretary

I concur with the majority's decision to correct the administrative law judge's clearly erroneous decision to deny compensation for employee's preexisting right shoulder permanent partial disability, but I would also conclude that employee's attorney is not entitled to an attorney fee lien upon the additional amounts awarded by this Commission.

Section 287.260 RSMo permits the Commission to allow an attorney fee lien upon an award of compensation "if the [attorney's] services are found to be necessary." Here, employee's attorney failed to brief or even mention the fact that the administrative law judge clearly erred in denying compensation for the prior right shoulder permanent partial disability. As noted by the majority, the administrative law judge's basis for excluding the right shoulder disability finds no support whatsoever in the law.

Yet, employee's attorney ignored this issue, and filed a brief so riddled with typographical and logical errors that it is difficult to even interpret his arguments. As best I can determine, the only real argument in employee's brief is that we should give unthinking deference to the ratings from employee's expert, Dr. Poetz. The majority has thoroughly catalogued the problems with the opinions from Dr. Poetz, so there is no need for me to repeat them here. I would point out, however, that if Dr. Poetz had been provided better information and asked more relevant questions at his deposition, this record might have provided compelling support for an additional award of compensation for employee's preexisting right elbow, trigger fingers, and cardiovascular conditions.

Ultimately, my point is that employee is receiving additional compensation in our award not thr