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

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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 responsible for outstanding medical bills, but requested an award ordering payment before processing the outstanding bills.

The parties stipulated to the following:

1. On May 17, 2005, Claimant sustained an injury by accident while in the course and scope of his employment for Sauer Construction, dba Deluxe Developing, in Jefferson County, Missouri.
2. Employer was subject to the Missouri Workers' Compensation law, but was not insured.
3. Employer had notice of the injury and a claim for compensation was timely filed.
4. Employer has paid no benefits to Claimant.
5. The only remaining unpaid medical bill is the Arch Air bill of $\ 8,121.50.

The parties stipulated the issues to be resolved are as follows:

1. Liability for past medical expenses
2. Rate
3. Permanent disability
4. Liability of the SIF

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 53 year-old, married, male with a tenth grade education. He served in the Navy from 1980-1983, and then spent his career in construction.
2. In 1991 Claimant injured his low back at work. He had conservative treatment and settled this case for 7.5 % PPD of the low back. Claimant testified leading up to the primary injury he had no additional medical treatment, but he continued to have low back pain and difficulty bending, twisting, and moving around. His pain was not constant, but flared up if he twisted or bent wrong.
3. In 1999 Claimant fractured his right distal radius at work. He settled this case for 12.5 % PPD of the right wrist, and testified he continued to have reduced range of motion and reduced grip strength leading up to the primary injury.
4. In 2003, Claimant injured his right shoulder at work. He had an arthroscopic subacromial decompression, rotator cuff repair, and distal clavicle resection. He had physical therapy and was released from treatment, but continued to have discomfort in his shoulder. After additional physical therapy he was released at MMI in October 2004. He settled this case for 20 % PPD of the right shoulder. Claimant testified he continued to have problems with his shoulder, and it continues to freeze up and lock. Prior to his right arm injuries, he worked 10-12 hours a day. When he started working for Employer in 2005, he could not work as many hours and took a pay cut because he could not perform his work as well due to shoulder complaints.
5. Claimant had no physician imposed work restrictions from his prior right shoulder, right wrist, or low back injuries once he was released from treatment. The doctors told him to be aware of his limitations and work to tolerance. Claimant lifted roofing, plywood, and decking, but often had to take a break because his right shoulder and wrist locked up. He used his left arm more to compensate for his right.
6. In early 2005, Claimant began working for Sauer Construction (Employer), doing business as Deluxe Developing. Employer was a subcontractor for Cooksey

Construction, Inc. Claimant reported to Steve Sauer and Cooksey. He worked daily with Steve Sauer, but Dennis Cooksey was the ultimate boss. Claimant had no written contract with Sauer or Cooksey. Before the primary injury, he worked for Employer Sauer 32-50 hours a week, depending on the weather, and earned $\ 25.00 per hour. The Claim for Compensation lists his average weekly wage at $\ 900.00. Claimant testified that is accurate because by 2005, his right shoulder and wrist problems caused him to reduce his hours worked.

1. On May 17, 2005, Claimant was on a walk board, over a stairwell. The board broke and Claimant fell from the second story approximately 27 feet to the basement. He landed awkwardly, and had immediate severe back pain with numbness and tingling in his legs. He was transported via air medical to Mercy Hospital for treatment.
2. Claimant was immediately taken to the operating room for emergency decompression of the spinal cord and a fusion from T12 through L3. He was admitted to the intensive care unit and then to the rehabilitation unit. Claimant had extensive physical therapy after his release from the hospital and was eventually able to use forearm crutches to walk.
3. In July and August 2005, Claimant was hospitalized due to post-operative infections. He was treated with IV antibiotics and removal of the hardware in his spine. He developed bowel and bladder incontinence, and he continues to self-catheterize several times a day.
4. Claimant has not returned to work since his 2005 injury. He applied for several jobs, but was not hired because he can't stand. He testified he was told he is a liability because of his limitations. He took typing and keyboarding classes, but could not complete the classes due to his right upper extremity and back symptoms. His right wrist, forearm and shoulder lock, and he can't sit for long periods of time due to back pain. He has given up looking for work.
5. Claimant testified he is disabled because of his mid-back injuries and his prior injuries. Claimant testified he has a great deal of pain in his mid to lower back and it spreads to his hips. He was confined to a wheelchair after the primary injury, and he has an attendant several hours a day to care for him. He testified Dr. Coyle and Dr. Levy told him he is a parapalegic at L3, and he will never be able to walk again.
6. He continues to have problems with his right shoulder and it affects his walking. He can use forearm crutches, but because his shoulders and right arm lock up he can't hold himself up very long and he drops to the ground. He can walk from the car to the door, which is about 100 feet, and his shoulder hurts. His right upper extremity limits his ability to keyboard because of arm cramps. His low back limits how long he can sit and keyboard.
7. Claimant's medical expert, Dr. Levy, reviewed the records, examined Claimant, and issued a report in December 2007. He noted Claimant was confined to a wheelchair and unable to walk. Claimant advised Dr. Levy that when he tried to stand, his legs shook and he immediately fell. He had constant low back pain. Dr. Levy's physical exam noted Claimant's lower extremities were weak and atrophic. His upper extremities had full

range of motion with some discomfort in his right shoulder. He rated Claimant's disabilities at 60 % PPD of the low back as a result of the primary injury and 20 % of the right shoulder as a result of the prior injury. Dr. Levy opined the injuries combined to render Claimant permanently and totally disabled.

1. Dr. Levy issued a second report in November 2008. He opined Claimant's limitations are based on the fact he is a paraplegic and can't walk or stand due to the work injury. Sitting in his wheelchair is uncomfortable and twisting motions bother his back, thus preventing him from working from his wheelchair on a continuous basis. This renders Claimant permanently and totally disabled. Dr. Levy testified when considering a person with Claimant's primary injury alone, he would defer to a vocational rehabilitation specialist to determine that person's employability.
2. Jim England reviewed the records, interviewed Claimant, and issued a report in May 2008. He noted the primary injury left Claimant with substantial limitations. He has numbness from his belly button down throughout his lower extremities. He can stand for five minutes, but only with a walker for support. Mr. England noted Claimant tried to go to school and take a computer class, but he was not able to be up the number of hours required for school. He has to lay down every few hours due to fatigue and pain. He has an attendant seven days a week. Mr. England opined Claimant has transferable skills to medium and light levels of exertion, but someone who is not able to be in a wheelchair for more than a few hours at a time would not be able to sustain any type of regular work. Claimant is not employable in the open labor market given his limitations from the work injury alone.
3. Neither Claimant nor his wife had health insurance on the date of the primary injury. Claimant has Medicare and Medicaid, and believes Medicaid paid some of the bills from his work injury. He has not received any bills over the last year. He is not aware of whether any bills are in collections.
4. Claimant's Employer, Sauer Construction, was discharged in bankruptcy on October 20, 2014. Sauer made several payments to Claimant before his discharge. These payments total $\ 5,900.86. Claimant's Employer, Cooksey Construction, was administratively dissolved on September 2, 2009.
5. Claimant is credible.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

Section 287.030(3) provides "construction industry employers who erect, demolish, alter or repair improvements shall be deemed an employer for the purposes of this chapter if they have one or more employees." As a construction company, Employer was required to have workers' compensation insurance coverage, even with only one employee. The parties stipulated Employer was not insured.

Section 287.220 .5 provides if an employer fails to insure their liability, funds from the SIF may be withdrawn to cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury. Accordingly, the SIF shall cover the fair, reasonable, and necessary expenses to cure and relieve the effects of the injury. The SIF agrees they are liable for outstanding medical bills of $\ 8,121.50 resulting from this injury. Claimant continues to need medical treatment to cure and relieve the effects of the injury, and he has a home attendant assisting him with his medical care. The claim against the SIF is hereby left open for future medical expenses related to the injury and for further proceedings.

Claimant credibly testified consistent with his Claim for Compensation that he earned $\ 900.00 per week on the date of accident. There is no evidence to the contrary. Accordingly, I find his rate for TTD/PTD is $\ 600.00 and for PPD is $\ 354.06.

Claimant alleges he is permanently and totally disabled as a result of the combination of his primary and prior injuries. The SIF alleges Claimant's totally disability is the result of the primary injury alone. In determining SIF liability, it is first necessary to determine the nature and extent of disability resulting from the primary injury in and of itself.

Section 287.020.7 (RSMo 2003) defines total disability as the "inability to return to any employment, and not merely...inability to return to the employment in which the employee was engaged at the time of the accident." The question is whether an employer would reasonably be expected to employ Claimant in his current condition.

Claimant has substantial limitations as a result of the work accident. He is confined to a wheelchair and clearly is not able to return to work in the construction industry. The vocational evidence establishes while Claimant has transferable skills to a lighter capacity work, he is not able to work in a sedentary capacity given the limitations from the primary injury alone.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 05-136093

The overwhelming weight of the evidence supports a finding Claimant is permanently

and totally disabled. I find Claimant is unemployable in the open labor market and is

permanently and totally disabled as a result of his work injury alone. While Claimant did have

pre-existing disability, I find his restrictions and disability resulting from his work injury are

substantial and when considered alone render him totally disabled. This finding is corroborated

by the testimony of Dr. Levy and Jim England.

Claimant's disability became permanent May 17, 2005. Claimant is hereby awarded PTD

benefits against Employer at a rate of $600.00 per week, beginning May 17, 2005, and continuing

for as long as provided by law.

Made by:

KATHLEEN M. HART

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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