Stephen Barkley v. Daimler-Chrysler

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The Second Injury Fund raises a number of challenges to the evidentiary rulings by the administrative law judge. We have previously dealt with one of these challenges in our order dated November 3, 2015, wherein we accepted into the record the copy of the Second Injury Fund's post-hearing motion to the administrative law judge, with selected portions of employee's 2009 and 2013 depositions (re-designated as the Second Injury Fund's Exhibit IA) and the copy of a page from the Division's Complete Case History, bearing some handwritten notations (re-designated as the Second Injury Fund's Exhibit IIA).

The Second Injury Fund also argues that the administrative law judge erred in accepting employee's Exhibit 5 into evidence. As acknowledged by the Second Injury Fund, however, it is not clear from the administrative law judge's award whether he ultimately admitted Exhibit 5, as he deferred a ruling on the issue at the hearing, and thereafter did not make any ruling or any reference at all to Exhibit 5 in his award. Employee's Exhibit 5 consists of what appears to be an independent medical evaluation of July 10, 2001, authored by Dr. Michael P. Nogalski, as well as what appears to be another independent medical evaluation of December 5, 2003, authored by Dr. Bruce Schlafly.

At the hearing before the administrative law judge, employee's counsel argued that the contents of Exhibit 5 are admissible because Dr. Berkin discussed them and was crossexamined with regard to them at his deposition. We have carefully reviewed Dr. Berkin's deposition, and we find no reference to any independent medical evaluations by Drs. Nogalski or Schlafly. His report also contains no indication that he reviewed any independent medical evaluations by these doctors.

On the other hand, employee's vocational expert, James Israel, does appear to have reviewed a July 10, 2001, report from Dr. Nogalski and a December 5, 2003, report from Dr. Schlafly. It may be argued that the contents of Exhibit 5 are thus marginally relevant to show what information Mr. Israel had available to him, but after careful consideration, we are not persuaded. Employee presented expert medical testimony from Dr. Shawn Berkin, who took a history as to employee's preexisting disabling conditions, physically examined employee, and also reviewed the settlements employee reached in connection with his prior work injuries. As a result, we deem the contents of Exhibit 5 to be largely cumulative of Dr. Berkin's opinions and ultimately irrelevant and unnecessary to a disposition of this claim. Accordingly, we hereby sustain the Second Injury Fund's objection to Exhibit 5 on this basis. Exhibit 5 is not admitted into the record in this matter.

The Second Injury Fund argues that with its exhibits admitted and employee's Exhibit 5 excluded, the record compels a different result. Although it is true that there is evidence in the record that could support a different result, after careful consideration, we are not persuaded to disturb the administrative law judge's (implied) finding that employee's testimony at the hearing was credible. We also agree with the administrative law judge's finding that the unanimous (and uncontested) opinions from employee's experts Dr. Berkin and Mr. Israel persuasively establish that employee is permanently and totally disabled as a result of the effects of his work injury in combination with his preexisting conditions of illbeing. We so find.

In the third sentence of the seventh paragraph on page four of his award, the administrative law judge indicates: "Mr. England interviewed Claimant, conducted vocational testing and reviewed the medical record." We hereby correct the foregoing to read instead as follows: "Mr. Israel interviewed employee, conducted vocational testing and reviewed the medical record."

Additionally, we note that in the section of the award on pages 5 and 6 analyzing liability of the Second Injury Fund, the administrative law judge discusses the concept of synergy, which implies he deemed a showing of synergy necessary for purposes of employee's claim for permanent total disability benefits from the Second Injury Fund. While we do not disagree with the administrative law judge's finding that employee's disabilities affecting all four of his major extremities interact in a synergistic fashion, we note that a finding of synergy is not necessary to demonstrate Second Injury Fund liability for permanent total disability benefits. See Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014). Instead, the relevant question is simply whether the primary and preexisting disabilities combine to render the employee permanently and totally disabled.

Because the administrative law judge, in his conclusion, appears to have ultimately applied this proper test, and because we are not persuaded to disturb the administrative law judge's award of permanent total disability benefits from the Second Injury Fund, we discern no need to further supplement his analysis.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Joseph E. Denigan, issued May 28, 2015, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of 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 $14^{\text {th }}$ day of January 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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 occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: July 26, 2004
5. State location where accident occurred or occupational disease contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged 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? N/A
11. Describe work employee was doing and how accident happened or occupational disease contracted: Employee was ejected from moving motor vehicle.
12. Did accident or occupational disease cause death? N/A Date of death? N/A
13. Parts of body injured by accident or occupational disease: right lower extremity, right shoulder, left knee
14. Nature and extent of any permanent disability: 50 % PPD of right ankle, 25 % PPD right shoulder, 10 % PPD of left knee; PTD against SIF.
15. Compensation paid to-date for temporary disability: $\ 15,062.91
16. Value necessary medical aid paid to date by employer/insurer? $\ 73,491.26

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\ 675.90 TTD/ $\ 354.05 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

100 weeks of permanent partial disability from Employer

(settled)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential (\321.85) payable by SIF for 151.5 weeks beginning

June 2, 2008 and, thereafter, \ 675.90 for Claimant's lifetime

Indeterminate

TOTAL:

INDETERMINATE

1. Future requirements awarded: Unknown

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Thomas M. Burke

This case involves right ankle, right shoulder and left knee injuries resulting to Claimant with the reported accident date of July 26, 2004. Employer/Insurer previously settled its risk of liability. Both parties are represented by counsel. The single issue for trial is the liability of the Second Injury Fund ("SIF"). Claimant seeks permanent total disability benefits. Claimant's objections to the SIF's Exhibits I and II are sustained.

Claimant was employed in the metal shop for Employer beginning in 1973. He became an inspector but switched to operating a forklift due to problems with his hands and knees. This change in jobs allowed him to continue working full-time and over-time. Claimant last worked for Employer in 2005.

Claimant sustained right ankle, right shoulder and left knee injuries as a result of being ejected from a moving motor vehicle during a turn at the assembly plant. He fell on his left side. Claimant underwent surgery with Dr. Richard Hulsey for repair of trimalleolar fractures which required internal fixation. Prognosis included slow healing of fractures due to diabetes. Revision surgery to the right ankle occurred on November 1, 2004 requiring internal fixation and bone graft. Degenerative changes of the talonavicular joint were noted. In April, persistent swelling was noted on the right lower extremity to the level of the knee due to the trauma and diabetes. Further studies revealed bilateral inguinal lymphadenopathy and bilateral moderate osteoarthritis of the hips with joint effusions. He was, among other things, placed on Coumadin.

Claimant's right shoulder was diagnosed with a torn rotator cuff which was not operated but for which Claimant received multiple injections. Dr. Hulsey noted right shoulder symptoms could be due in part to use of a walker in recovery. Radiology revealed moderate osteoarthritis of the AC joint and mild arthritis of the GH joint.

Dr. Hulsey found Claimant attained maximum medical improvement on June 2, 2008. Claimant was unable to return to work on a permanent basis because of his inability to wa