Maury Weiner v. Grey Eagle Distributors

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Improved

Improved

Injury No.: 12-014811

Employee: Maury Weiner

Employer: Grey Eagle Distributors (settled)

Insurer: Sentry Casualty Company (settled)

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

The above-entitled 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 and considered the whole record, the Commission finds 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, the Commission affirms the award and decision of the administrative

law judge dated April 9, 2018. The award and decision of Administrative Law Judge Lorne

Baker, issued April 9, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance

of 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 24th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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Im

Injury No.: 12-014811

Employee: Maury Weiner

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his opinion of employee's permanent total disability and/or employability to a vocational expert, rendering his prior pronouncements on this issue irrelevant.

Despite a number of prior injuries, for which he received mostly nominal compromise settlements, employee was working full, regular duty at his job prior to March 7, 2012, as attested to by Dr. Volarich, Dr. Cantrell and vocational experts Mr. England and Ms. Skahan. Employee's failure to explain in his hearing testimony or anywhere else how his primary and prior injuries could or did combine suggests that combination of his injuries was not a part of his alleged permanent total disability.

The employee further failed to prove that his primary injury and prior injuries rendered him permanently and totally disabled. This is part of employee's essential burden. *Cardwell v. Treasurer*, 249 S.W.3d 902,911 (Mo. App. 2008). The fact finder must impartially weigh the evidence, as opposed to liberally, without giving the benefit of the doubt to any party when weighing the evidence or resolving factual conflicts. § 287.800.2.

A careful fact-finder often takes guidance from vocational experts on the question of whether an employee is employable on the open labor market. Some evaluating physicians even defer their opinion of an employee's employability to a vocational expert, as long as the expert considers the physician's activity restrictions. This is what occurred here with respect to employee Maury Weiner. The employee's evaluating physician Dr. Volarich deferred his opinion of whether the employee could work on the open labor market to a vocational expert. *Transcript*, 218-219. Both vocational experts, Mr. England and Ms. Skahan, found from the facts that employee was working full time duty without any restrictions at the time of his last work injury. Likewise, they found employee always resumed full time, regular duty at his job subsequent to his previous injuries. Leading up to his last injury, there is no evidence employee was taking prescription painkillers or medication.

The test for permanent total disability is whether the worker is able to compete in the open labor market. A worker is totally disabled if they are unable to return to any normal or reasonable employment; the worker is not required to be inert or completely inactive. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition. *Carkeek v. Treasurer of State*, 352 S.W.3d 604 (Mo. App. 2011) at 608.

Vocational expert Kristine Skahan found employee employable taking into account medical restrictions imposed by both Dr. Volarich and Dr. Cantrell. She opined that employee could likely work in the open labor market so long as he does not have to rest throughout the day. Ms. Skahan conducted a labor market survey and found that employee could perform the job duties of at least eight full-time jobs available at that time, among them: customer service representative, commissioned sales specialist, valet supervisor, valet parking attendant, van driver, shuttle driver, assembly worker and light assembly. All were full time openings, available at the time of her report.

Injury No.: 12-014811

Employee: Maury Weiner

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Employee reportedly conducted his own employment search after leaving employer, but gave no details about his alleged search, such as names, dates, documentation for and about the search, problems, or reasons he was not hired, to anyone, even his own vocational experts. At hearing, the employee gave reasons why he thought he could not do these jobs, but surprisingly never shared those feelings or problems with his vocational expert Mr. England. Not only might potential employment problems have been telling and helpful for his and/or other vocational experts, but some of the employee's physical excuses suggest the undocumented worsening of some of his preexisting conditions.

It is employee's burden to prove the elements of his claim and, if it is for permanent total disability against the SIF, that the combination of his injuries renders him unemployable on the open labor market. Because employee failed to carry this burden, his claim for permanent total disability benefits against the SIF should be denied. I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

AWARD

Employee: Maury Weiner

Injury No.: 12-014811

Dependents: N/A

Employer: Grey Eagle Distributors

Address: 16000 Gainesville, GA 30131

Office: 16000 Gainesville, GA 30131

Date: 2018-01-01

Employer: 16000 Gainesville, GA 30131

Office: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Date: 2018-01-01

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Date: 2018-01-01

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Invoice No.: 12-014811

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: March 7, 2012

1. State location where accident occurred or occupational disease was contracted: City of St. Louis, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was pulling a dolly of beer up a flight of stairs when he injured his low back.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Low back

1. Nature and extent of any permanent disability: 12.5% permanent partial disability to the body as a whole referable to the low back

1. Compensation paid to-date for temporary disability: $15,760.54

1. Value necessary medical aid paid to date by employer/insurer? $17,271.32

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: $1,300.00

WC-33-R1 (6-01)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

1. Weekly compensation rate: $811.73/$425.19

1. Method wages computation: By agreement

1. Amount of compensation payable: Employer previously settled.

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential (386.54) payable by SIF for 50 weeks beginning July 19, 2012, and thereafter 811.73 per week for Claimant's lifetime or until modified by law.

1. Future requirements awarded: N/A

Said payments to begin 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 attorney, James S. Haupt, for necessary legal services rendered to the claimant:

WC-32-R3 (6-81)

Page 2

The matter of Maury Weiner ("Claimant") proceeded to hearing to determine the liability of the Second Injury Fund ("SIF"). Attorney James S. Haupt represented Claimant. Assistant Attorney General Joye Hudson represented the Second Injury Fund. Grey Eagle Distributors ("Employer") and its insurer, Sentry Casualty Company, previously settled its risk of liability and Claimant proceeded against the SIF only.

The parties stipulated that on or about March 7, 2012, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in the city of St. Louis, Missouri. The parties stipulated Claimant was an employee of Employer earning an average weekly wage of $\ 1,300.00, which resulted in applicable rates of compensation of $\ 811.73 for total disability benefits and $\ 425.19 for permanent partial disability ("PPD") benefits. The parties further stipulated venue is proper in the city of St. Louis, Employer received proper notice, and Claimant filed the claim within the time required by law. Employer paid $\ 15,760.54 in temporary total disability ("TTD") benefits and paid medical benefits totaling $\ 17,271.32. The parties agreed that Claimant reached maximum medical improvement ("MMI") from his work-related injury on July 18, 2012.

The only issue for determination is the liability of the Second Injury Fund. At the hearing, Claimant testified in person and offered the depositions of Dr. David Volarich and Mr. James England, as well as medical records and multiple settlement stipulations. The Second Injury Fund offered one exhibit, the deposition of vocational expert, Kristin Skahan.

Claimant is a now unemployed, 64-year-old individual who worked for Employer for 34 years as a beer delivery driver, and on or about March 7, 2012, sustained a compensable work injury to his low back.

Claimant graduated from University City High School in 1972. He attended HarrisStowe College for two or three semesters in order to play baseball but dropped out of school in

Issued