James Dunning v. State of Missouri, Department of Conservation

Injury No. 10-066731

Employee: James Dunning

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including the term maximum medical improvement. Vinson v. Curators of the University of Missouri, 822 S.W.2d 504, 508 (Mo. App. E.D. 1991)(interpreting a doctor's testimony of employee's maximum treatment potential to mean maximum medical improvement); Cooper, 955 S.W.2d at 575 (using the term maximum medical progress to define the point where no further progress is expected for an employee's condition).

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment. ...

Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.

Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008).

Employee argues that we should find that he achieved maximum medical improvement on November 24, 2010, when he was first seen by his evaluating expert, Dr. Annamaria Guidos. While employee makes a rather strong argument that his condition did not actually improve after that date, we cannot ignore Dr. Guidos's unequivocal testimony that employee was not at maximum medical improvement when she first examined him. On the other hand, we agree that Dr. Guidos's opinion that employee did not achieve maximum medical improvement until she saw him on September 23, 2013, is not particularly persuasive, especially where the evidence reveals that employee's pain was worse on that date than on November 24, 2010.

After careful consideration, we find most persuasive the opinion from employer's expert, Dr. Brett Taylor, with regard to the issue of maximum medical improvement. In his report dated February 15, 2011, Dr. Taylor ruled out the prospect of additional back surgery, indicating his belief that employee might not survive another surgery in light of his preexisting conditions of ill-being. In our view, it was at that point that it became clear that employee's condition referable to the work injury was permanent. Accordingly, we find that employee reached maximum medical improvement on February 15, 2011. In order to account for the 50 weeks of permanent partial disability resulting from the work injury, the Second Injury Fund's liability for weekly permanent total disability benefits begins 50 weeks from that date, or on January 31, 2012.

We modify the award of the administrative law judge as to the issue of maximum medical improvement.

The Second Injury Fund is liable for weekly permanent total disability benefits beginning January 31, 2012, at the stipulated weekly permanent total disability benefit rate of $\ 247.57. The weekly payments shall continue for employee's lifetime, or until modified by law.

The award and decision of Chief Administrative Law Judge Lawrence C. Kasten, issued July 22, 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 $17^{\text {th }}$ day of February 2016.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: James Dunning

Injury No. 10-066731

Dependents: N/A

Employer: State of Missouri, Department of Conservation (settled)

Additional Party: Second Injury Fund

Insurer: Self Insured (settled)

Appearances: Michael Moroni, attorney for the employee.

Da-Niel Cunningham, attorney for the Second Injury Fund.

Hearing Date: April 20, 2015 Checked by: LCK/kg

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? On or about July 22, 2010.
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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.

1. Describe work Employee was doing and how accident happened or occupational disease contracted: The employee was pulling stakes and injured his low back.
2. Did accident or occupational disease cause death? No.
3. Parts of body injured by accident or occupational disease: Body as a whole referable to the low back.
4. Nature and extent of any permanent disability: 12.5% permanent partial disability to the body as a whole referable to the low back.
5. Compensation paid to date for temporary total disability: None.
6. Value necessary medical aid paid to date by the employer-insurer: $4,323.10.
7. Value necessary medical aid not furnished by the employer-insurer: N/A.
8. Employee's average weekly wage: 371.35.
9. Weekly compensation rate: 247.57.
10. Method wages computation: By agreement.
11. Amount of compensation payable: Permanent total disability against the Second Injury Fund.
12. Second Injury Fund liability: Permanent total disability.
13. Future requirements awarded: See Rulings of Law.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: Michael Moroni and Donald Rhodes.

On April 20, 2015, the employee, James Dunning, appeared in person and with his attorney, Michael Moroni, for a hearing for a final award. The Second Injury Fund was represented at the hearing by Assistant Attorney General Da-Niel Cunningham. The parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. The State of Missouri, Department of Conservation was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer c/o CARO.
2. On or about July 22, 2010, James Dunning was an employee of the State of Missouri, Department of Conservation and was working under the Workers' Compensation Act.
3. On or about July 22, 2010, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 371.35. His rate for temporary total disability and permanent partial disability is $\ 247.57.
7. The employer paid $\ 4,323.10 in medical aid.
8. The employer paid no temporary disability benefits.

1. Medical Causation
2. Liability of the Second Injury Fund

1. Deposition of Dr. Guidos, including her CV and reports, and report of Dr. Taylor.
2. Deposition of Susan Shea, including her CV and reports.
3. November 14, 2012 lumbar MRI report from Cape Radiology.
4. Stipulation for Compromise Settlement of the claim against the employer in Injury Number 10-066731.
5. Stipulation for Compromise Settlement in Injury Number 01-157088.
6. Medical Records from 2001 low back injury.
7. Witness Statements
8. April 6, 2012, deposition of James Dunning with work schedule calendar
9. Medical Records of Woods Medical Clinic

I. Prior Temporary Award

II. Medical Report of Dr. Taylor

Judicial Notice of the contents of the Division's files for the employee was taken.

James Dunning, the employee.

The employee and the Second Injury filed proposed awards on May 29, 2015.

The employee testified that he lives in Puxico, Missouri. He was born on December 10, 1961. When he was eight years old he fell out of tree, burst his spleen, and had surgery to remove his spleen. The employee graduated from high school and had some technical training when he worked at Briggs and Stratton. He had pre-employment training of 45 hours each on hydraulic pneumatics, electrical 1, electrical 2, machines, and engine anatomy.

The employee testified that his first job after high school was working at a shoe factory in Advance, Missouri. He moved to Oklahoma and worked on an oil rig. He moved back to Missouri and worked at Briggs and Stratton as a die caster. That job involved heavy lifting of around 150-200 pounds. He then worked at the Department of Conservation at Duck Creek Conservation Area and helped tear down two old boat docks and build new boat docks. He performed carpentry, concrete, and dirt work. H