Francis Garrett v. Hannibal Board of Public Works

The administrative law judge determined that employee is permanently and totally disabled as a result of the effects of the last work injury of September 1, 2011, considered alone, because employee was able to work prior to suffering that injury. We disagree. We find that the last work injury did not, in isolation, render employee permanently and totally disabled, for the following reasons.

None of the medical experts to testify in this matter offered any opinion that employee is permanently and totally disabled as a result of the effects of the September 2011 injury considered alone. Instead, Dr. Volarich testified that employee suffered a 25\% permanent partial disability of the body as a whole referable to the lumbar spine as a result of the September 2011 accident, and that if employee is now unable to compete in the open labor market, it is due to a combination of the September 2011 injury with employee's preexisting disabling conditions, including preexisting chronic low back pain and an acute October 2010 low back injury which Dr. Volarich rated, altogether, at 25\% permanent partial disability of the body as a whole referable to the lumbar spine, and coronary artery disease which Dr. Volarich rated at 20\% permanent partial disability of the body as a whole.

Meanwhile, employer's evaluating expert, Dr. Coyle, rated 10\% permanent partial disability of the body as a whole referable to the September 2011 injury, and believes employee is capable, in any event, of working. Meanwhile, the treating physician Dr. Abernathie did not provide a rating for the September 2011 injury or specifically address the question whether employee is permanently and totally disabled.

Nor do we read the expert vocational opinions in this matter as providing persuasive support for a finding that the September 2011 injury caused, in isolation, permanent and total disability. Employee's vocational expert, Stephen Dolan, offered the generalized opinion that employee is unable to compete for work in the open labor market based on his age, education, academic skills, work history, and the restrictions from Dr. Volarich. The Second Injury Fund argues that Mr. Dolan assigned permanent total disability to the effects of the September 2011 injury, because he opined at his deposition that he only considered the restrictions Dr. Volarich assigned with regard to the September 2011 injury in isolation. But Dr. Volarich did not assign any restrictions to the September 2011 injury "in isolation," instead, his report specifically describes those restrictions "[w]ith regard to work and other activities referable to the spine after 9/1/11[.]" Transcript, page 169.

Meanwhile, employer's vocational expert, James England, specifically declared in his report that if employee is permanently and totally disabled, it would be as a result of the combination of his two low back injuries and preexisting problems, rather than the September 2011 injury considered alone. Yet, the Second Injury Fund argues that Mr. England actually assigned permanent total disability to the September 2011 injury when he opined at his deposition (and credibly so) that employers would be unlikely to hire employee if he has to lie down throughout the day to relieve low back pain. But, critically, there is no evidence on this record to establish that such need is specifically referable to the effects of the September 2011 injury considered in isolation. That employee didn't begin lying down during the day to relieve low back pain until after the September 2011

injury does not, alone, compel a finding that the last injury *caused* that need. Such an analysis improperly confuses chronology with causality, as our courts have specifically cautioned against. See *Royal v. Advantica Rest. Group, Inc.*, 194 S.W.3d 371, 377 (Mo. App. 2006).

After careful consideration, the credible evidence suggests to us (and we so find) that employee's need to recline during the day is owing to a combination of the September 2011 injury and the preexisting and significantly compromised condition of employee's low back. Dr. Volarich explained how the September 2011 and October 2010 injuries combine with one another:

> When we look at the back, the first injury caused radiating pain more to the right lower extremity. The second one added the other lower extremity, so we had bilateral opposing legs with neurogenic, discogenic pain. Each one of them contributed more problems with motion in the low back.

*Transcript*, page 121.

The Second Injury Fund further argues that because employee was returned to extremely heavy work duties without restriction following the October 2010 low back work injury, this compels a finding that employee did not actually suffer any permanent partial disability referable to that injury. We are not persuaded, for several reasons. First, the Second Injury Fund ignores the uncontested opinions from Drs. Volarich and Coyle that employee did suffer permanent disability referable to the October 2010 low back injury. Second, and as discussed in more detail below, the crucial inquiry for Second Injury Fund purposes is the *potential* for a preexisting disability to combine with a subsequent work injury, not whether the preexisting disability caused difficulty in the past. Third, the mere fact that employee was returned to heavy duty work without restrictions is not, standing alone, sufficient to compel a finding the employee did not suffer permanent disability referable to the October 2010 low back injury.

In our view, the fact that employee suffered a subsequent low back injury mere months after his return to heavy duty work calls into question the wisdom of relying on a one-day functional capacity evaluation to determine that it was safe for employee to return to unrestricted duties. Obviously, employee was eager to return to work, and employer's treating physicians were equally eager to help him accomplish this goal. In hindsight, however, and as credibly explained by Dr. Volarich, employee probably should have been working restricted duty after the October 2010 work injury if he hoped to avoid a further, and more disabling, injury to his low back.

Ultimately, we find Dr. Volarich's explanation and opinions most persuasive with respect to this issue. We find that the September 2011 injury resulted in a 20% permanent partial disability of the body as a whole referable to lumbar discogenic pain syndrome secondary to micro-trauma causing aggravation/progression of preexisting degenerative disc disease and degenerative joint disease. We find that employee is rendered permanently and totally disabled owing to a combination of the September 2011 injury and his 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).

At the time of the September 2011 injury, employee suffered from preexisting conditions of ill-being including coronary artery disease and lumbar discogenic pain syndrome. We deem persuasive, and hereby adopt as our own, Dr. Volarich's opinion that employee suffered permanent partial disability with regard to these preexisting conditions; we note also that with regard to the October 2010 injury, the administrative law judge's award in Injury No. 10-089705 finding employee suffered 15\% permanent partial disability of the body as a whole is now final.

Further, after careful consideration, we are convinced that employee's preexisting disabling 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 Section 287.220.1 occurs when [the employee] establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial