Ulysses Robinson v. The Loxcreen Company, Incorporated

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 07-133452

**Employee:** Ulysses Robinson, Jr.

**Employer:** The Loxcreen Company, Incorporated

**Insurer:** Capital City 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. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues: (1) medical causation; (2) permanent partial disability; (3) permanent total disability; (4) future medical; (5) liability of Second Injury Fund; and (6) maximum medical improvement.

The administrative law judge determined as follows: (1) the work-related accident was the prevailing factor only in regard to injury and disability to employee's head and body as a whole; (2) the work-related injury resulted in a 5% permanent partial disability to the head and body as a whole; (3) employee was not permanently and totally disabled as a result of the injury, nor as a result of combination with any preexisting injuries; (4) the need for future medical care was not proven; (5) there is no liability on the part of the Second Injury Fund; and (6) employee reached maximum medical improvement as of November 13, 2008.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred: (1) in finding employee was not permanently and totally disabled as a result of the work-related injury or in combination with preexisting health problems; (2) in finding employee's work-related injury was the prevailing factor only as applied to disability to his head and body as a whole at 5%; (3) in finding that the medical opinions and vocational opinions of the employer's experts were more persuasive; and (4) in finding employee requires no future medical care for the injuries sustained in the work accident.

Injury No.: 07-133452

Employee: Ulysses Robinson, Jr.

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For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of: (1) medical causation; (2) permanent partial and permanent total disability; (3) future medical care; (4) the liability of the Second Injury Fund; and (5) the amount of reasonable attorney's fees.

There is no disagreement that employee was injured as a direct cause of a work-related accident on November 2, 2007, which resulted in a loss of consciousness.¹ The extent of the injury is in dispute. Dr. David Volarich opined that as a direct result of employee's trip and fall, he sustained several injuries. We find Dr. Volarich persuasive in his findings that the fall on November 2, 2007 was "the substantial contributing factor as well as the prevailing or primary factor causing the right facial contusion, the right eye traumatic iritis, the right shoulder internal derangement that required two surgical repairs, the aggravation of the right wrist carpal tunnel syndrome that required surgical repair, the left hip bursitis, the left knee internal derangement that required surgical repair, and the back pain syndrome secondary to abnormal weightbearing that required conservative treatments." Transcript, page 526. Dr. Volarich acknowledged that the traumatic iritis has resolved.

Following the accident, authorized treatment was provided that included two procedures to the right shoulder, right carpal tunnel release and a left knee surgery. Early treatment records following the accident also document contusions to the left hip resulting in altered gait and problems with loss of balance. We find employee credible in his reports of injury and symptoms despite the limitations of his education and difficulty in ability to relate a precise mechanism of trauma on the date of accident.² What is clearly shown from the medical records is that subsequent to a significant traumatic event on November 2, 2007, in the workplace, employee has experienced a dramatic and permanent increase in symptomology. This corresponds to a resulting decrease in his level of functioning. We do not believe this correlation is merely coincidence.

1 We note the obvious error in Dr. David Volarich's report, which is incorrectly dated September 22, 2009. On that same page, the date of injury is stated in a heading, "History Re The Injury of 9/2/07." Transcript, page 513. Dr. Volarich otherwise uses the correct injury date, 11/2/07 in his review and analysis. The confusion on dates carries through to Dr. Michael Nogalski's report, dated May 19, 2015. Transcript, page 783. Dr. Nogalski references a medical examination by Dr. Volarich on 11/22/09. Transcript, page 785, and a report by Dr. Volarich on 9/22/09. Dr. Volarich's report was incorrectly dated 9/22/09, when all other references within Dr. Volarich's reports are to 9/22/2010, following an independent medical examination on 9/22/2010. Transcript, page 507, 512, 514-531 headers. This discrepancy is also significant to an error in Dr. Nogalski's observations that employee's report of injury to Dr. Volarich was different from the report given to Dr. Nogalski, "two days later." Transcript, page 785. Employer's brief also compounds the confusion by reference to the Volarich examination as September 22, 2009, as shown on page 513 of the transcript. (See Employer Brief, page 13). Page 512 of the transcript and all reference by Volarich thereafter; reflect the date of September 22, 2010.

2 Here, we again point out that the administrative law judge relied on Dr. Nogalski's inaccurate observation that employee provided two different descriptions of injury within two days to two different doctors. While employee may have shown some difficulty as a historian of his symptoms, Dr. Nogalski was under a misimpression that Dr. Volarich had examined employee on November 22, 2009, (the correct date was November 22, 2010) and Dr. Nogalski's examination was on November 20, 2009. It is likely that the doctor's observation of different injury descriptions within two days impacted the administrative law judge's perception of reliability and credibility of claimant's reports.

Injury No.: 07-133452

Employee: Ulysses Robinson, Jr.

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The Award of the administrative law judge ignores the fact that employee has undergone multiple, authorized surgical procedures, and that this resulted, in part, in employee being kept off work for approximately two years. ($25,089.06 was paid in temporary total disability benefits, which equates to about 105 weeks, paid without dispute.)

To what extent employee's problems are a direct result of trauma, the sequelae of authorized surgical procedures, gait changes and/or prolonged deconditioning superimposed on significant pre-existing degenerative changes, is largely irrelevant. The trauma of the November 2, 2007 accident was the prevailing factor causing permanent disability referable to the head, right upper extremity, left lower extremity and low back. We find Dr. David Volarich's opinion credible in this regard and note that his opinions are corroborated by Dr. Carl Huff's records and employee's surgical history.

We note that Dr. Robert Bernardi and Dr. Michael Nogaliski suggest that an unidentified cervical neurological disorder may be causing much of employee's symptoms. This seems entirely plausible and consistent with the history of head trauma, loss of consciousness, and conditions including dysesthesias and loss of balance as noted in treatment records following the date of accident. It is, however, irrelevant that employee's surgeries may have been unwarranted or unnecessary; employee is entitled to compensation for the disabling effects of authorized procedures. (§ 287.140; Pace v. City of St. Joseph, 367 S.W. 3d 137 (Mo. App. 2012); Lahue v. Missouri State Treasurer, 820 S.W. 2d 561 (Mo. App. 1991)(superseded on other grounds).

We find that Permanent Partial Disability (PPD) has been shown as a direct result of the November 2, 2007, work-related injury as follows: 5% of the body as a whole referable to the head; 25% of the right upper extremity at the 232 week level (combined shoulder and wrist); 25% of the left lower extremity at the 207 week level (combined hip and knee); and 5% of the body as a whole referable to the low back.

Liability of the Second Injury Fund

Liability of the Second Injury Fund for Permanent Total Disability (PTD) under § 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 disability. For the employee to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the Permanent Partial Disability (hereinafter PPD) resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD or greater overall disability. Lewis v. Treasurer of Mo., 435 S.W.3d 144, 152 (Mo. App. 2014).

We have found that PPD has been shown as a direct result of the November 2, 2007, work-related injury to the head, upper right extremity, left lower extremity and low back/body as a whole. We find that the disability caused by these injuries alone did not render employee permanently and totally disabled. The opinion of Dr. Volarich was persuasive in his medical assessment that the employee "is permanently and totally disabled as a direct result of the work related injuries of 11/2/07 in combination with his preexisting medical conditions." Transcript, page 528, emphasis ours. He found that

Injury No.: 07-133452

Employee: Ulysses Robinson, Jr.

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but for the preexisting injuries; the injuries resulting from the accident would not have been as severe.

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.*

It is clear that at the time of the work injury on November 2, 2007, employee had a multitude of preexisting permanent partially disabling conditions, which constituted a hindrance to employment, (employment at two previous employers ended because of employee's physical limitations in doing the work)³ These preexisting disabilities left him in a weakened condition, vulnerable to a substantial increase in the level of permanent disability due to this trauma. The medical records document several injuries, conditions, and surgeries prior to November 2, 2007, including left elbow cubital tunnel syndrome with a carpal tunnel release; right elbow cubital tunnel syndrome without surgery; right wrist carpal tunnel syndrome without surgery; right shoulder impingement with partial rotator cuff tear; right knee degenerative arthritis; and left shoulder separation. *Transcript*, page 526. Employee had two prior work injuries resulting in permanent partial disability awards for left shoulder and left lower extremity (settled 1995) and left upper extremity and right hand (settled 2006).

We find that each of employee's preexisting disabling conditions were hindrances or obstacles to