| FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion) |
| Injury No.: 11-031709 |
| Employee: | Adriana Barahona |
| Employer: | Hilton Hotel/Hilton Worldwide, Inc. |
| Insurer: | Ace American Insurance Company |
| Additional Party: | Treasurer of Missouri as Custodian of Second Injury Fund |
| This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the parties’ briefs, heard the parties’ arguments, 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. |
| Discussion Permanent total disability On April 24, 2011, employee was cleaning a table in employer’s cafeteria when she slipped and fell on a wet floor, injuring her back and left knee, and striking the back of her head. The parties asked the administrative law judge to resolve the issue of the nature and extent of disability resulting from this event. The administrative law judge determined that employee is permanently and totally disabled as a result of the April 2011 work injury considered alone. Employer appeals. |
| After careful consideration, we agree with the administrative law judge’s determination that employee is permanently and totally disabled as a product of the April 2011 work injury considered alone. We do, however, discern a need to provide some additional findings and clarifying comments. Accordingly, we issue this supplemental opinion. |
| On pages 49 and 50 of her award, the administrative law judge provides a list of impairments or disabling conditions she deemed to have resulted from the last injury. We commend the administrative law judge for applying the appropriate statutory analysis, which requires that we first isolate, to the extent possible, the residual effects from the last work injury in order to determine whether the employer, or the Second Injury Fund, is liable for employee’s permanent total disability. See Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003). We do note, however, that the list on pages 49 and 50 appears to include some conditions which are arguably related, at least in part, to employee’s preexisting disabling conditions. For example, employee’s current and ongoing need for assistance with activities of daily living; her need for daily narcotic medications in connection with multiple pain-generating conditions; and her limitations with regard to prolonged sitting and standing would all appear to involve at least some component of disability referable to employee’s |
preexisting injuries and disabling conditions. Likewise, employee's bilateral ankle problems clearly involve disability referable to her prior work injuries of June and July 2010 affecting the right ankle. Accordingly, we must disclaim, from the numbered list spanning pages 49 and 50, the above-mentioned items, as we are convinced each involve some component of disability or impairment not referable solely to the effects of the last work injury.
Having said that, we are convinced that the effects of the April 2011 injury, considered alone, remain sufficient to render employee permanently and totally disabled. Employer asks us to credit the opinion from its vocational expert, James England, who believes that, even based on the more limiting restrictions imposed by employee's evaluating expert, Dr. David Volarich, employee may be able to go back to work in the areas of ticket sales, security work, assembly, and some cashiering. Mr. England ultimately conceded, however, that if one agrees with Dr. Volarich that employee is unlikely to be able to sustain a regular workday, employee may be unemployable due to a combination of her injuries. In other words, Mr. England appears to concede that if Dr. Volarich's opinions are believed, employee may be unemployable owing to a combination of her work injury and preexisting disability.
Notably, Mr. England believed that the restrictions from Dr. Volarich were referable to a combination of employee's various work injuries and preexisting problems. See Transcript, page 600. This is incorrect. At his deposition, Dr. Volarich made clear that all of the restrictions he assigned within his report were referable to the April 2011 primary injury. See Transcript, pages 353 and 374. Thus, it would appear that any unemployability conceded by Mr. England must be deemed referable to the primary injury considered alone, rather than a combination of employee's injuries and disabling conditions.
We note also that Mr. England failed to address the critical question whether employee possesses, given the effects of her last work injury combined with her limited education and work history, the ability to successfully compete for jobs 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 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).
Aside from acknowledging that employee will need a great deal of remediation in order to obtain her GED in the United States, Mr. England failed to discuss this issue, or to persuasively identify any likelihood that a prospective employer would choose employee over virtually any other applicant, where her work history is primarily limited to mediumduty jobs in the kitchen and restaurant industry, and where she possesses only an eighth-grade education from her native Honduras.
Ultimately, like the administrative law judge, we find most persuasive the vocational analysis of Phillip Eldred, who opined that employee is permanently and totally disabled based on the effects of the April 2011 primary injury, considered alone. We so find.