George Hackler v. Texas Book Company

January 22, 2010, and thus employee would have no problem handling a sedentary job following the last injury; (2) Dr. Volarich recited employee's report of experiencing debilitating headaches, but did not discuss headaches in rendering his opinion that employee is permanently and totally disabled; and (3) Dr. Volarich is not a vocational expert, so his permanent total disability opinion is unpersuasive. We disagree, for the following reasons.

In our view, employee's demonstrated ability to perform some limited work for employer for a few weeks between the April 2009 injury and the last injury of January 2010 is not dispositive of the question whether employee remained physically capable of competing for work in the open labor market after suffering the effects of the January 2010 injury. Instead, our inquiry begins with the date that employee reached maximum medical improvement on April 12, 2012. We ask whether employee was then capable of competing for and securing work in the open labor market, in light of all of his physical problems related to the work injury and his preexisting conditions of ill-being as they existed on January 22, 2010.

As of April 12, 2012, employee was 55 years of age, with an educational history limited to leaving school in the $10^{\text {th }}$ grade and thereafter obtaining a GED, and a work history mostly composed of physical labor and/or unskilled positions. Prior to the work injuries, employee already had an extensive history of surgically treated cervical and lumbar spine problems, for which he had been receiving pain management treatment in the form of periodic injections and prescription medications (including narcotics and anticonvulsants) since at least 2004. As of May 11, 2007, the treating physician Dr. Hough had diagnosed employee with both failed back and failed neck syndromes. The April 2009 injury resulted in additional cervical spine pathology requiring surgical intervention and leaving employee with increased chronic pain complaints. ${ }^{1}$ The January 2010 injury resulted in a torn right rotator cuff and considerable disability affecting employee's dominant upper extremity in the form of pain, lost motion, weakness, crepitus, and atrophy.

The administrative law judge reasoned that there is no evidence in the record to show that employee is not now physically capable of the work he once performed as a bank manager, ${ }^{2}$ but the appropriate test for permanent total disability is not limited to the question of what duties an employee might be physically capable of performing; instead we must ask whether employee is now capable of successfully competing for such work in the open labor market:

The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the

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[^0]: ${ }^{1}$ The administrative law judge found that employee's post-surgery pain was "treated successfully with injections," Award, page 6, but the contemporaneous records from Dr. Hough reveal that employee only obtained relief for 1 or 2 days following injections; that he was still complaining of cervical spine pain that he rated at a 7 or 8 out of 10 as of December 2009; and that Dr. Hough recommended employee continue taking prescription pain medications for these symptoms. Transcript, pages 1085-89.

${ }^{2}$ We note that the administrative law judge (not unreasonably) assumed this work was "sedentary," but we are unable to find any actual evidence in the record that would support any specific findings as to the level of physical exertion required of employee as a bank manager.

Injury No. 10-011567

Employee: George Hackler

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ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.

*Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 411 (Mo. App. 2011).

Notably, employee obtained the position of bank manager through a friend who personally hired him. Arguably, then, employee did not obtain that job through competition on the open labor market. After careful consideration, we do not believe that an individual in employee's physical condition as of April 12, 2012, aged 55, with only a GED and a work history dominated by physical labor and otherwise unskilled positions, would be likely to obtain work as a bank manager.

Turning to the opinion from Dr. Volarich, we do share the administrative law judge's concern that the doctor did not devote any discussion to employee's complaint of experiencing debilitating migraine headaches. On the other hand, there is considerable evidence to suggest that employee does not continually suffer from headaches of the kind he described to Dr. Volarich during the January 15, 2013, evaluation. For example, at employee's deposition of October 31, 2011, he did not describe debilitating migraine headaches as among his physical complaints; and at the hearing of September 15, 2015, employee only mentioned headaches in passing and did not identify migraines as playing a role in his inability to work. It would thus appear (and we so find) that the migraine headaches employee described to Dr. Volarich as of January 2013 were transient and do not now play a major role in employee's inability to compete for work in the open labor market.

More importantly, we perceive no basis for presuming, as the administrative law judge has, that Dr. Volarich necessarily considered employee's report of debilitating migraine headaches in finding employee to be permanently and totally disabled. As noted, Dr. Volarich only mentioned the headaches in the context of reciting employee's own complaints as of January 15, 2013. Dr. Volarich's report and testimony are quite clear and thorough in delineating the physical conditions and disabilities that the doctor ultimately found to combine to render employee unable to compete for work. If Dr. Volarich saw a need to discuss headaches, we are confident he would have done so.

Nor are we convinced that the absence of an expert vocational analysis is fatal to employee's claim for permanent total disability benefits. While vocational experts can provide insight into areas beyond the expertise of physicians like Dr. Volarich, such as the availability of and necessary qualifications for various positions in the open labor market, in a case such as this one where the employee's preexisting conditions of ill-being were sufficiently serious to require continual pain management treatment even before the last injuries; where employee's academic achievement is limited to securing a GED; where employee's relevant work history is limited primarily to physical labor and/or unskilled positions; and where a qualified expert medical witness has opined that the employee is permanently and totally disabled from work following the last injury from a strictly medical standpoint, evidence from a vocational expert would, in our view, tend to be merely cumulative of the issue of permanent total disability. Stated another way, if

Dr. Volarich credibly restricts this employee from all work; we fail to see what a vocational expert could add to the analysis.

Ultimately, we find Dr. Volarich's opinion the most persuasive evidence with regard to the issue whether employee is permanently and totally disabled. We credit his opinion and find that employee is unable to compete for work in the open labor market owing to the effects of the primary injury combined with employee's preexisting conditions of ill-being.

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).

We deem reasonable and hereby adopt the administrative law judge's findings that employee suffered from preexisting permanent partially disabling conditions referable to the lumbar spine, cervical spine, and right knee. After careful consideration, we are convinced that these conditions were serious enough to constitute hindrances or obstacles to employment. This is because we are convinced employee's preexisting conditions had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of these preexisting conditions. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

Fund liability for PTD under Se