Douglas Hahs v. Missouri Highway & Transportation

Iaw judge's findings to the extent not inconsistent with our findings, analysis, and conclusions set forth below.

The administrative law judge determined that employee is not permanently and totally disabled, based on a finding that the restrictions placed by the treating physicians were more persuasive than those assigned by employee's evaluating expert Dr. David Volarich, and that employer's vocational expert James England provided more persuasive testimony than the competing testimony from Delores Gonzalez. After careful consideration, we disagree with the administrative law judge's finding that employee is not permanently and totally disabled, for the following reasons.

First, we note that the administrative law judge's choice to credit employee's own testimony regarding his physical limitations does not comport with her rejection of the restrictions from Dr. Volarich. This is because employee's testimony about what he is able to do substantially mirrors Dr. Volarich's restrictions. For example, the administrative law judge relied on employee's testimony to find that, on a good day, employee is able to stand for 30 minutes, and can sit for 15 to 30 minutes at most. Dr. Volarich opined that employee should avoid prolonged sitting and standing, and should avoid remaining in a fixed position for more than 30 minutes at a time. It is unclear to us why Dr. Volarich's restrictions are lacking persuasive value where employee credibly endorses nearly identical limitations in his abilities.

It is further unclear to us which of the treating physicians' restrictions the administrative law judge credited, as there is a significant disparity between, for example, Dr. Milne's opinion that employee can return to work without restriction at least with regard to the left shoulder, Dr. Chabot's opinion that employee should observe a 35 pound lifting restriction and avoid repetitive bending and twisting, and Dr. Boutwell's opinion that employee should not lift more than 25 pounds, should not stand or walk more than two hours per day, and should be permitted to alternate sitting and standing. In any event, we will defer to the administrative law judge's (implied) finding that employee credibly described his physical limitations.

Second, and more importantly, after a careful review of the evidence, we cannot envision a prospective employer that would reasonably be expected to hire employee over virtually any other job applicant.

The determination of whether a claimant is permanently and totally disabled is based upon the claimant's ability to compete in the open labor market. The primary determination is whether an employer can reasonably be expected to hire the employee, given his or her present physical condition, and reasonably expect the employee to successfully perform the work.

Blackshear v. Adecco, 420 S.W.3d 678, 681 (Mo. App. 2014)(citations omitted).

Employee did not graduate high school and does not have a GED. The vocational experts agree that he is most likely physically precluded following the work injury from returning to the type of roadway maintenance work he was performing for employer, or to the truck driving work he performed previously. Employee lacks any specialized or vocational training for any other job that he could physically perform. Employee takes muscle relaxers and Oxycodone regularly to manage unrelenting left shoulder, neck, and low back pain. As noted above, employee's sitting and standing abilities are severely limited to, at most, 30 minutes at a time. Employee currently weighs about 400 pounds and the vocational experts agree that employee's morbid obesity will make it very difficult for him to compete for work, because prospective employers will hold employee's weight against him, even if he possesses the relevant skills and physical abilities to perform a job.

Taken together, this evidence compels a determination (and we so find) that as of the stipulated date of maximum medical improvement on April 30, 2012, employee was unable to compete for work in the open labor market.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

Dr. Chabot rated a preexisting 5\% permanent partial disability of the body as a whole referable to morbid obesity. Dr. Volarich, on the other hand, opined that there may be some disability referable to employee's preexisting morbid obesity, but suggested this condition did not amount to a hindrance or obstacle to employment, because employee denied that his weight caused problems in his prior work. To the extent Dr. Volarich premised this opinion on the extent to which employee's preexisting morbid obesity caused difficulty in the past, his opinion is not particularly relevant, because it fails to apply the "potential to combine" test as identified by the Missouri courts.

Dr. Volarich did testify that employee would have been precluded from a number of occupations prior to the work injury, simply because of his size. As recognized by the administrative law judge, employee avoided work in the construction industry, as a police officer or firefighter, or as a factory or retail worker because he knew his size would

Improve: Douglas Hahs

- 4 -

prevent him from performing those kinds of jobs. We deem this persuasive evidence of preexisting disability, regardless whether employee's morbid obesity affected the performance of his duties in his past work as a truck driver or maintenance worker.

Ultimately, we are convinced that employee's morbid obesity constituted a preexisting permanent disability that was serious enough to constitute a hindrance or obstacle to employment for purposes of § 287.220.1 RSMo. This is because we are convinced employee's preexisting morbid obesity had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of this preexisting condition. See *Wuebbeling v. West County Drywall*, 898 S.W.2d 615, 620 (Mo. App. 1995). It appears to us that this potential was borne out by the very facts of this case, in that the doctors agree employee's weight was detrimental to his recovery from the work injury, and contributes to his present physical limitations. Specifically, as Dr. Chabot explained, employee's great weight and attendant lack of core strength results in excessive strain on the sacroiliac joint, contributing to employee's continual problem with that joint painfully "popping out" following the primary injury.

We turn now to the question whether employee has proved Second Injury Fund liability for his permanent total disability. The Second Injury Fund argues that if employee is permanently and totally disabled, it must be deemed a product of the primary injury considered alone, citing the opinion in the case of *Loven v. Greene County*, 63 S.W.3d 278 (Mo. App. 2001). The Second Injury Fund argues that, pursuant to the *Loven* decision, employee's preexisting morbid obesity cannot be deemed a preexisting disability that combines with the primary injury, because, like the employee in *Loven*, employee testified his morbid obesity did not cause him problems performing his past work.

We disagree for several reasons. First, we note that the *Loven* analysis seems to depart from the long line of Missouri cases, such as *Knisley* and *Wuebbeling* cited above, holding that the "proper focus" of our inquiry is not on the extent to which the preexisting condition caused difficulty in the past, but rather on the potential for the condition to combine with a later work injury. See also *Concepcion v. Lear Corp.*, 173 S.W.3d 368, 371 (Mo. App. 2005); *E.W. v. Kan. City Sch. Dist.*, 89 S.W.3d 527, 538 (Mo. App. 2002); and *Carlson v. Plant Farm*, 952 S.W.2d 369, 373 (Mo. App. 1997). This line of cases stands for the (in our view) unimpeachably logical proposition that an otherwise-qualified disability is not negated merely because the employee is able to find alternative work he or she is able to successfully perform notwithstanding the disability.