Thomas Popejoy v. Sauer Construction d/b/a Deluxe Developing; Cooksey Construction

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No.: 05-136093

Employee: Thomas Popejoy

Employers: Sauer Construction d/b/a Deluxe Developing

Cooksey Construction

Insurer: None

Additional Party: Treasurer of Missouri as Custodian of the Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ 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 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.

In her award, the administrative law judge concluded that the employee is permanently and totally disabled as a result of his May 17, 2005, work injury alone. Employee and the Second Injury Fund (hereinafter "Fund") dispute whether the Fund is liable for payment of benefits to employee under the Missouri Workers' Compensation Law. Specifically, employee and the Fund disagree as to whether his May 17, 2005, work injury, alone and by itself, rendered employee permanently and totally disabled.

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 a previous disability." At the outset, we must first determine the degree of employee's disability from the last injury alone, in this case the injury resulting from the accident on May 17, 2005. If that injury alone rendered employee permanently and totally disabled, then the Fund has no liability and the employer is liable for compensation. ${ }^{1}$

Employee introduced the deposition transcript of his medical expert, Dr. Jerome Levy. Therein, Dr. Levy stated that he diagnosed employee with paraplegia in the lower extremities resulting in his inability to ambulate and confinement to a wheelchair. Dr. Levy agreed that employee's paraplegia was the result of the May 17, 2005, work injury.

Employee also introduced the deposition transcript of his vocational expert, James England. Therein, Mr. England stated that he reviewed employee's medical records and doctors' reports and conducted an interview with employee. Mr. England said the following in response to a question concerning whether he believed that the May 17, 2005, work injury, by itself, rendered employee unemployable in the open labor market:

Yeah. Obviously the shoulder does limit him some. He said even pushing his wheel on his wheelchair he can't really do it with the right arm because it hurts

[^0]

[^0]: ${ }^{1}$ Payne v. Treasurer of Missouri, 417 S.W.3d 834, 847 (Mo. App. 2014).

the shoulder too much. I think he's damaged enough by the paraplegia and the problems associated with that that I think that would disable him even if he didn't have shoulder problems. ${ }^{2}$

We find that employee's May 17, 2005, injury standing alone rendered him permanently and totally disabled.

At the hearing before the administrative law judge, the parties did not specifically identify future medical care as an issue prior to or during the hearing. The administrative law judge left the issue of the Fund's liability for employee's future medical care, including nursing care, open for further proceedings.

The Fund appeals the administrative law judge's award of future medical care, on the basis that the administrative law judge improperly applied her own lay understanding in determining that employee is in need of such care. The Fund argues that there is no medical expert testimony or evidence concerning employee's need for future medical care "in any respect." We disagree.

Section 287.140.1 provides, in relevant part, that "the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the work injury." In cases where an employer fails to obtain workers' compensation insurance or fails to self-insure, § 287.220.7 provides that monies may be withdrawn from the Fund to cover the cost of an employee's "fair, reasonable, and necessary" medical expenses.

The parties stipulated that the employer in this matter was not insured or self-insured. Therefore, the issue for us to resolve is whether the administrative law judge improperly determined that the Fund is liable for employee's future medical care, including nursing care.

In order to receive future medical care, employee must establish that there is a "reasonable probability" that such care is necessary by reason of his work injury. ${ }^{3}$ Employee is not required to present evidence of the specific medical care that will be needed. Rather, employee must present competent medical evidence to establish that the requested medical care "flows" from the work injury. ${ }^{4}$

In a letter to employee's attorney dated December 31, 2007, Dr. Levy wrote, based upon his physical examination of employee, that employee is confined to a wheelchair; is not ambulatory; experiences discomfort on attempted motion of the back; and that his lower extremities are weak and atrophic. Moreover, in his deposition, Dr. Levy stated that employee "could not transfer without help, without assistance." Employee testified that a non-nurse attendant assists him for about three and a half hours each day with household chores, such as laundry and changing his bedding. We agree with the administrative law judge that claimant's testimony is credible.

Where, as here, the testimony and evidence of a medical expert establishes that an employee is confined to a wheelchair and cannot ambulate or transfer without the assistance of another

[^0]

[^0]: ${ }^{2} Tr. at 134 .

{ }^{3}$ ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007).

${ }^{4} Id. at 53.

{ }^{5}$ Tr. at 64 .

Injury No.: 05-136093

Employee: Thomas Popejoy

- 3 -

person, we find that it is within the realm of lay understanding that such employee is in need of medical care including of nursing care.

Alternatively, the Fund requests that we remand this matter for a hearing before the administrative law judge to address its liability for future medical care because the Fund received no notification that its liability for such care was at issue. Though we agree that the issue of future medical care was not specifically identified at the hearing before the administrative law judge, we see no need to remand this matter for an additional hearing. Both employee and the Fund fully briefed the issue of future medical care and presented oral argument before this Commission. The Commission is the ultimate trier of fact in workers' compensation proceedings and the issue of future medical care was clearly and properly before us.

In the event that a dispute arises as to whether the cost of future medical care is fair, reasonable, and/or necessary, the parties are free to bring the matter before this Commission for resolution of the dispute.

**Conclusion**

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

The award and decision of Administrative Law Judge Kathleen M. Hart, issued January 27, 2017, 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 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 _______ 31st_____ day of August 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

M. Molder v. Missouri State Treasurer, 342 S.W.3d 406, 410 n.3 (Mo. App. 2011) (citations omitted).

Employee: Thomas Popejoy

Injury No.: 05-136093

Dependents: Deitrea Popejoy

Before the

Employment of Labor and Industrial

Relations of Missouri

Additional Party: Second Injury Fund (SIF)

Jefferson City, Missouri

Insurer: None

Hearing Date: September 27, 2016 and October 24, 2016

Checked by: KMH

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: May 17, 2005
5. State location where accident occurred or occupational disease was contracted: Jefferson County, MO
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? $\mathrm{n} / \mathrm{a}$
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant injured his back and body as a whole when he fell 27 feet while in the course and scope of his employment.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: back and body as a whole
14. Nature and extent of any permanent disability: total and permanent
15. Compensation paid to-date for temporary disability: none
16. Value necessary medical aid paid to date by employer/insurer? none

Employee: Thomas Popejoy Injury No.: 05-136093

1. Value necessary medical aid not furnished by employer/insurer? $\ 180,024.72
2. Employee's average weekly wages: $\ 900.00
3. Weekly compensation rate: $\$ 600.00 / \ 354.05
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Permanent and total disability benefits of $\ 600.00 per week to be determined * from Employer beginning, May 17, 2005, and continuing for as long as provided by law.

1. Second Injury Fund liability:

Past medical expenses

$\ 8,121.50

Future medical expenses

1. Future requirements awarded: see award

(use of an asterisk (*) denotes contingent future benefits)

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:

Employee: Thomas Popejoy

Dependents: Deitrea Popejoy

Employer: 1. Sauer Construction dba Deluxe Developing

1. Cooksey Construction

Additional Party: SIF

Insurer: None

Injury No.: 05-136093

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter September 27, 2016 and October 24, 2016. Thomas Popejoy (Claimant) was represented by attorney Robert Miller. SIF was represented by Assistant Attorney General Mathew Kincade. Employer Steve Sauer did not appear for trial. Steve Sauer filed for Chapter 11 bankruptcy, and was discharged, but the nature of his bankruptcy plan is unknown to the Court. Employer Cooksey Construction did not appear for the hearing. Cooksey was administratively dissolved as a corporation by the Missouri Secretary of State as of September 2, 2009.

Claimant's exhibits were all admitted into evidence. The SIF presented no exhibits. All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The SIF agrees they are res