James Wurth v. Commercial Electronics, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge With Corrections)

**Injury No.:** 08-100667

**Employee:** James Wurth

**Employer:** Commercial Electronics, Inc. (settled)

**Insurer:** Travelers Indemnity Co. of America (settled)

**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 briefs, and considered the whole record, we find that the award of the administrative law judge (ALJ) denying 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, as corrected herein.

The ALJ award at page 8, refers to a November 2011 work-related injury. We correct that reference as we believe it is a typographical error in that no other reference to a November 2011 work-related injury is apparent to us. The injury which is the subject of this claim occurred in November 2008. We correct the Summary of Facts as follows:

- **Page 8, Paragraph 2, beginning, "Based on the entire record..." Sentence 5 - Reads as:**

- Dr. Volarich and Mr. England opined that the claimant's permanent and total disability is a direct result of the disability from the November 2011 work-related injury when combined with the claimant's preexisting permanent partial disabilities.

This sentence should read, and is corrected as follows:

Dr. Volarich and Mr. England opined that the claimant's permanent and total disability is a direct result of the disability from the November 2008 work-related injury when combined with the claimant's preexisting permanent partial disabilities.

- **Page 13, 1st Paragraph under Conclusion, Sentence 2 - Reads as:**

- However, the weight of the evidence is that the claimant's prior employment was not so heavily accommodated that the position was not employment in the open labor market.

The second correction relates to the issue of whether claimant's job was so heavily accommodated before the November 2008 injury, that he was not employable in the open labor market. This sentence should read, and is corrected as follows:

Enployee: James Wurth

-2-

However, the weight of the evidence is that the claimant's prior employment was so heavily accommodated that the position was not employment in the open labor market.

We also note that the ALJ Award at page 2, contains language suggesting compensation payments should begin immediately, and subjecting the award of compensation to a lien of 25% in favor of claimant's attorney, David G. Plufka. This appears to be a typographical error. There is no basis in the administrative law judge's Findings of Fact and Rulings of Law to support payment of compensation to claimant. Likewise, where there is no compensation, there is no basis for an attorney lien. Accordingly, we disclaim these erroneous statements under the "Compensation Payable" heading on page 2 of the ALJ Award.

With these corrections, we affirm the ALJ Award, denying employee's claim against the Second Injury Fund, because § 287.220 RSMo does not authorize any Second Injury Fund permanent disability benefits if the claimant is unemployable in the open labor market prior to the work related injury.

**Decision**

We affirm and adopt the award of the ALJ as corrected herein.

The award and decision of Administrative Law Judge Edwin J. Koehner is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this **12th** day of October 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cohn, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

Attest:

**James Wurth**

Secretary

1 Claimant settled with the employer and insurance company previously and an attorney fee was approved at that time in connection with the settlement amount. That attorney fee is not affected by our correction as stated herein.

The majority has voted to affirm the administrative law judge's (ALJ) findings and conclusions that employee² was not eligible for additional benefits from the Second Injury Fund. I respectfully dissent and would reverse the ALJ's decision.

The parties do not dispute that employee is permanently totally disabled. What they dispute is when that level of disability arose. This matter turns on whether the evidence supports that employee was so disabled prior to the November 2008 work-related injury, that he was unemployable in the open labor market. The ALJ found that even prior to that injury, employee was so accommodated at the job he held from 2002 - 2012, that he was not able to compete in the open labor market.

I find claimant's testimony credible concerning his ability to work full-time prior to the November 2008 accident including his denial that he was allowed to lay down while at work. I believe the ALJ placed too much emphasis on the notation in Dr. Volarich's report, reflecting his impression of a conversation with employee about the level of accommodation he was receiving at work as early as January 2008. Employee denied that he was able to lay down on the job at his deposition in 2015 and his testimony at hearing. Employee's explanation that he would sit in his reclining office chair on occasion is more believable to me, when considering the circumstances of his workplace. A modest accommodation such as this is not tantamount to total disability.

The approved legal standard for determining permanent total disability is whether the worker is able to compete in the open labor market. *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 48 (Mo. App. 2007). "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." *Id.* (internal citations omitted) Dr. Volarich's January 2008 report did indicate he believed if employee lost his job, it would be "extremely difficult" *Transcript, 314*, for him to find employment in the open market. However, no vocational rehabilitation study was done at that time that corroborates this conclusion. In fact, the evidence of employee's work situation prior to November 2008 shows he was working at full capacity prior to the final work accident. It does not support the conclusion that he was totally disabled prior to that event.

Total disability means "the employee is unable to perform the usual duties of the employment in the manner that such duties are customarily performed by the average person engaged in such employment." *Kowalski v. M.G. Metals & Sales, Inc.*, 631 S.W. 2d 919, 922 (Mo. App. S.D. 1982) I am convinced by the evidence that employee's work leading up to the November 2008 accident, while sedentary, was neither limited, sporadic or highly accommodated. He worked full time for five to six years before the accident, working eight to ten hours a day. It was after the November 2008 accident that his situation was adjusted in order to allow more time off as needed. His job prior to the accident was not a 'make-work' position created for him. He worked alongside several other technicians repairing headsets. There is no credible evidence that employee performed these duties in a manner that was significantly different from the way the work was performed by his co-workers or that his work product was inferior. He was employable in the open market, albeit in a sedentary position.

Because I would find that the last work injury from November 2008, combined with employee's preexisting conditions to make him totally disabled, I would find under § 287.220 RSMo, that

2 I note that the ALJ consistently used the term claimant in his decision. I generally reserve that term for one who is claiming on behalf of the injured worker, and refer to the injured worker as employee. In this matter, those terms are interchangeable.

Injury No.: 08-100667

Employee: James Wurth

-2-

the Second Injury Fund is liable for the difference in the level of disability, after subtracting the amount attributable to the employer for the last injury.

I would reverse the ALJ Award and grant the claim for additional permanent disability benefits from the Second Injury Fund. Because the majority finds otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

Employee: James T. Wurth

Injury No.: 08-100667

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Commercial Electronics, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Travelers Indemnity Company of America (Settled)

Hearing Date: January 2, 2018

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK

1. Are any benefits awarded herein? No
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: November 4, 2008
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri
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? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The claimant, a manufacturing manager, suffered a low back disc injury while carrying heavy cable boxes.
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: Low back
14. Nature and extent of any permanent disability: 25 % Permanent partial disability to the low back.
15. Compensation paid to-date for temporary disability: $\ 6,178.44
16. Value necessary medical aid paid to date by employer/insurer: $\ 16,746.03

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James T. Wurth

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 964.00
3. Weekly compensation rate: $\$ 642.66 / \ 404.66
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

TOTAL:

None

1. Future requirements awarded: None

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: David G. Plufka, Esq.

This workers' compensation case requires a determination of Second Injury Fund liability arising out of a work-related injury in which the claimant, a manufacturing manager, suffered a low back disc injury while carrying heavy cable boxes. The sole iss