Thomas Pierson v. The Boeing Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-098146

**Employee:** Thomas Pierson

**Employer:** The Boeing Company (Settled)

**Insurer:** Indemnity Insurance Company of North 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 parties' briefs, heard the parties' oral arguments, and considered the whole record, we find that the award of the administrative law judge allowing 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.

The matter before us at this time involves a primary injury to employee's left shoulder on November 12, 2012. Employee² requested benefits from the Second Injury Fund based on two preexisting disabilities. The administrative law judge found synergy was proven regarding only one of those disabilities referable to the neck injury.

Pursuant to a Final Award of the Commission, employee was compensated for a 1999 work injury to his neck, resulting in cervical fusion at C-6/C-7 (Injury No. 99-177469). Employee and this same employer settled that claim for 35% permanent partial disability to the body as a whole referable to the neck. The Second Injury Fund appealed a ruling by the Commission in that matter finding the Fund liable for enhanced benefits on two bases, due to the employee's preexisting left eye blindness (non-work-related). The matter was appealed to the Court of Appeals for the Eastern District which upheld the finding of 30% enhanced permanent partial disability was generated from the synergistic interaction between employee's preexisting total blindness of his left eye in relation to the neck injury, pursuant to § 287.220 RSMo. The Court of

1 We do not address the broader doctrine of res judicata because we find that it is clearly not applicable. The doctrine prohibits a party from bringing a previously litigated claim. The claim before us now, involving a left shoulder injury occurring in 2012, has never been finally adjudicated. There was no identity of "the thing sued for," as required for the doctrine to apply. King General Contr. Inc. v Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo banc 1991). The neck injury of 1999 and the shoulder injury of 2012 do not both arise out of "the same act, contract, or transaction." Id. at 690.

2 We note that the record and the pleadings in this matter include references to both claimant and employee. We generally refer to the injured worker as "employee" and to anyone else pursuing a claim on behalf of the employee, as "claimant," because of the relevant definitions under § 287.020 RSMo. However, in this matter the terms are used interchangeably by the parties and the administrative law judge. We use the designation of "employee" throughout in the interest of consistency.

Injury No.: 12-098146

Employee: Thomas Pierson

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Appeals transferred the matter to the Missouri Supreme Court³ to address the issue of whether an additional 10% premium due to total loss of use of the left eye was enforceable against the Second Injury Fund under the statute, § 287.190.2 RSMo. A final award was rendered in 2004.

In the matter before us now, employee advances two theories relying on the final rulings in that earlier matter. First, that the permanent partial disability rating referable to the 1999 neck injury is presumed to continue undiminished under § 287.190.6 (1) RSMo. As correctly noted by the administrative law judge, that section of the law only applies where a "subsequent injury to the same member or same part of the body also results in permanent partial disability for which compensation under this chapter may be due..." Id. We find the administrative law judge properly ruled that the primary injury in this current claim was to a separate body part, (the left shoulder), and therefore, the permanent partial disability rating to the neck from the 1999 injury is not subject to any presumption of undiminished capacity in this proceeding.⁴

The second theory advanced by the employee was that the principle of res judicata (claim preclusion) or collateral estoppel (issue preclusion) applies here to prohibit the Second Injury Fund from relitigating issues related to the preexisting disabilities found in the 2004 final award. Those issues are:

(a) The disability rating to the neck; and

(b) The synergistic effect of the employee's preexisting left eye loss of sight in combination with the neck.

The relevant issue for our purposes in this case, was the permanent partial disability affecting the neck at the time of the November 12, 2012 primary injury (the left shoulder). For obvious reasons, that issue was not adjudicated in the earlier proceeding finalized in 2004⁵. The evidence before us on issue (a) - the disability rating of the prior neck injury, includes the fact that a prior adjudication established a rating of 35% in 2004, based on the evidence in that proceeding. The evidence in the case before us also includes the opinion of a single medical professional in 2014 as to that preexisting neck injury. The administrative law judge found the opinion of this expert, Dr. Woiteshek, to be persuasive. The doctor opined that the previous neck injury represented a 25% permanent partial disability. We are not convinced that this rating should be disturbed.

³ See Pierson v. Treasurer of Missouri, as Custodian of the Second Injury Fund, 126 S.W.3d 386 (S. Ct. 2004) The Supreme Court ruled the 10% premium for loss of use of the eye was not allowed under the statute (§ 287.190.2), as this provision applies only to the employer. The Court left the disability ratings and the synergy rating (neck to left eye) undisturbed.

⁴ We note employee's argument that the past disability rating was to the body as a whole, referable to the neck; and that this body as a whole disability is still binding. This term of art in workers' compensation is merely a reference to a "non-scheduled" injury, distinct from those addressed with a specific schedule of weeks denoting disability loss, under § 287.190.1 RSMo. Disability ratings for unscheduled body as a whole injures as applied to employer's liability are addressed under § 287.190.3.

⁵ The Commission's Award was in 2002; the Court of Appeals Decision was in 2003; the Supreme Court remanded to the Commission in 2004 to take action consistent with its rulings. For simplicity, we refer to "2004" final adjudication.

Injury No.: 12-098146

Employee: Thomas Pierson

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Issue (b) - the synergistic effect between the preexisting disabilities, was also an adjudicated finding from the 1999 injury case. Employee asserts the synergy rating of the 2004 final award, should bind the parties with regard to the current primary injury (the left shoulder). However, the 2004 award addresses the issue of the synergy generated between the loss of sight of the left eye to the neck injury. In order to apply the doctrine of collateral estoppel to preclude a party from relitigating an issue, several conditions must be met:

(1) The issue decided in the prior adjudication was identical with the issue presented in the present action; (2) the prior adjudication resulted in a judgement on the merits; (3) the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.

Xiaoyan Gu v. Da Hua Hu, 447 S.W.3d 680, at 686 (Mo. App. E.D. 2014)(internal citations omitted).

Regarding the issue of synergy between the left eye loss of sight and the left shoulder injury which is the subject of the present matter, point (1) is not met. The issue in the prior adjudication was not identical to that presented in this claim. All elements of the doctrine must coincide in order for it to apply. Since the analysis fails on the first point, we need not go any further. Nevertheless, we note that point (4) also is not met. The issue of the synergy between the present injury (the left shoulder) and the loss of sight in the left eye was not an issue that the parties had a full and fair opportunity to litigate in the prior suit, because the left shoulder injury of November 12, 2012, had not yet occurred.

There was little evidence in this matter on the level of synergy between the current primary injury of the left shoulder and the preexisting loss of sight in the left eye. We find the administrative law judge's evaluation of that evidence was supported. His weighing of the evidence included consideration of the employee's limited testimony on the issue. In the opinion of the administrative law judge, the evidence adduced only proved the synergy between the primary injury and the preexisting neck injury. The only medical opinion offered was in the form of a response to a hypothetical posed to Dr. Woiteshek about a connection between left eye blindness and its impact on his opinions. Dr. Woiteshek responded, "there could be more - more synergy." Transcript page 69. Employee's evidence did not clearly establish in what way the left eye preexisting disability synergistically enhanced his disability when combined with his left shoulder injury. Winingear v. Second Injury Fund, 474 S.W.3d 203 (Mo. App. 2015).

We base our decision on the evidence provided by the employee and his failure to prove how the preexisting left eye disability combined to create a higher level of disability with the left shoulder. We do not base our decision on the Second Injury Fund's argument that merely because it paid compensation for the synergistic effect between the prior neck injury and the preexisting left eye blindness disability, it should

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not be subjected to paying additional enhanced benefits for the left eye disability in this matter.6

Petitioner further requests that the Commission note employee's age and life expectancy in this award. Brief of Petitioner, page 19. Presumably, petitioner invokes § 287.250.9, which allows the Commission to approve an agreement by the parties to prorate a lump sum over the life expectancy of the injured worker, including the weekly compensation rate. We decline to do so because there is no such agreement before us; therefore, that section does not apply.

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

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued February 16, 2018, 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 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 28th day of November 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

[Signature]

Secretary

6 We need not decide that issue because on the record before us, the employee has not met his burden of proof to establish the way the injuries combine to create a synergistic effect. This is not to say the argument posed by the Second Injury Fund could not have merit under very particular circumstances in the future, which are not present here.

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: November 12, 2012
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: Torqueing down a 3/16th inch high-lock interference fit bolt.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Left shoulder
14. Nature and extent of any permanent disability: 24% of the left shoulder
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? $35,696.34

1. Value necessary medical aid not furnished by employer/insurer? 0
2. Employee's average weekly wages: $\ 1,000.00
3. Weekly compensation rate: $\$ 433.58 / \mathrm{PPD}$
4. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

N/A

1. Second Injury Fund liability: Yes

31.136 weeks of permanent partial disability from Second Injury Fund

$\ 13,499.95

TOTAL:

$\ 13,499.95

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: J. Patrick Chassaing

This case involves a Claim for Compensation against the Second Injury Fund only. On December 5, 2017, the parties appeared for a hearing. Thomas Pierson ("Claimant") appeared in person and with counsel, J. Patrick Chassaing. The Employer, Boeing Company, had previously entered into a Stipulation for Compromise Settlement and did not appear. The Second Injury Fund was represented by Assistant Attorney General George R. Lankford.

1. Claimant sustained an accident, arising out of and in the course of employment on November 12, 2012.
2. Average weekly wage is 1,000.00.
3. Applicable rate of compensation is 433.58 for PPD.
4. Employer paid $35,696.34 in medical expenses.

Claimant introduced, and had admitted into evidence, the following exhibits:

1. Deposition of Dwight I. Woiteshek, M.D., including attached exhibits:
2. A) Curriculum Vitae of Dr. Dwight Woiteshek, M.D. and
3. B) Rating report of Dr. Dwight I. Woiteshek, dated April 17, 2014
4. MRI left shoulder taken 12/18/12 with Report - Metro Imaging
5. Records of Michael Nogalski, M.D., including Operative Report dated 04/26/13
6. MRI left shoulder taken 03/26/13 - Professional Imaging (Dr. Nogalski)
7. Left shoulder arthroscopy photography dated 04/26/13
8. Records of Andrew Wayne, M.D.
9. Settlement Stipulations in Injury No. 12-098146
10. Award on Hearing, Final Award, Missouri Court of Appeals, Eastern District Opinion and Missouri Supreme Court Opinion from Injury No. 99-177469

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-098146

9) Supplemental Affidavit of Thomas Pierson dated 12/12/16

The Second Injury Fund offered no Exhibits.

ISSUES

1) Liability of the Second Injury Fund

A) Nature and extent of primary injury

B) Nature and extent of synergistic effect

FINDINGS OF FACT

At the time of the hearing, Claimant was 56 years old. He has been employed as an aircraft assembler and inspector at The Boeing Company since 1986. Claimant was injured on November 12, 2012, when he was attempting to use a wrench with his left arm to tighten an assembly. As he did, he felt a sharp and sudden pain in his left shoulder. He reported the injury on a timely basis and was sent for evaluation to an in-house clinic. Initially, Claimant was given cortisone injections and was then sent for extensive physical therapy. It was recommended by the Employer's physician, Michael Nogalski, M.D., that Claimant undergo surgical repair. Dr. Nogalski performed the surgery on April 26, 2013. Dr. Nogalski repaired the labrum of the left shoulder and resected muscles in the upper arm. Claimant underwent post-surgical physical therapy and was released to return to work without restrictions.

Claimant has two prior permanent disabilities, which form the basis of his pending claim against the Second Injury Fund. First, in early childhood, he developed strabismic amblyopia. Claimant has 100% loss of vision in the left eye, as a result. He must turn his head to see objects to his left. Secondly, on December 23, 1999, while tightening components on an aircraft, he felt a sudden and sharp pain in his cervical spine above the shoulders. He was diagnosed with herniations of the cervical discs and underwent fusion surgery of the spine at C6 and C7. After post-surgical therapies, he was released without restrictions.

Claimant filed a workers' compensation claim against Employer and the Second Injury Fund for the 1999 injury, based on the combination of the fused neck and the preexisting total loss of sight in the left eye. The claim against the Employer was settled at 35 percent PPD of the body as a whole or 140 weeks.

The claim against the Second Injury Fund, for the synergistic effect of the two combined disabilities, was tried at the Division of Workers' Compensation. The Administrative Law Judge entered an award for the Claimant and against the Second Injury Fund for 88.20 weeks of PPD, based on 140 weeks of PPD for the loss of sight in the left eye, plus an additional 10 percent of the body as a whole or 14 weeks "premium", due to the total loss under Section 287.190.1 and .2, and based on 140 weeks of PPD or 35 percent of the body as a whole related to the neck fusion. The Judge determined that the total of the disabilities calculated separately amounted to 294 weeks of PPD and that the synergistic effect of the combination of those disabilities was best expressed as 30 percent of the combined weeks of disability, or 294 x .30 = 88.2 weeks of PPD to be paid by the Second Injury Fund.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-098146

The Missouri Labor and Industrial Relations Commission upheld the award; however, the Missouri Court of Appeals, Eastern District and the Missouri Supreme Court reversed the 10 percent "premium" stating that relief was limited to claims against the Employer.

Opinion Evidence

Dwight I. Woiteshek, M.D.

Dr. Woiteshek examined the Claimant and testified via deposition. Dr. Woiteshek has been an orthopedic surgeon since 1979. He reached the following opinions, all based on reasonable medical certainty: The Claimant's work was the prevailing cause of the left shoulder injury in 2012, that Claimant has a permanent partial disability of the left shoulder of 35 percent; the Claimant's work injury, to his neck, in 1999 resulted in a permanent partial disability of 25 percent of the body as a whole. Dr. Woitesheck testified that the injury to the left shoulder and the previous injury to the neck synergistically combine to create a greater overall disability than the sum of each disability independently, and is a hindrance or obstacle to his ongoing employment or reemployment.

RULINGS OF LAW

Employee testified, credibly, about how the loss of sight in his left eye has been disabling to him both in his employment, as well as in activities of daily living. He testified to the disability from the 1999 neck injury in both carrying out the physical demands of his employment and his activities of daily living. He testified how both the neck and left shoulder injuries make it more difficult to compensate for each other because exertion of the left shoulder and arm causes pain to shoot upward into his neck.

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. Missouri courts have used the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which a condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

Claimant's 1999 injury resulted in a final award of 35 percent permanent partial disability of the body as a whole referable to the neck. The disability of the neck synergistically combined with the total blindness of the left eye to create an overall disability greater than the individual disabilities to the extent of 30 percent increased disability of the neck and the blindness disability

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-098146

considered separately. Claimant argues that the final award, to the extent stated, was appealed to and upheld by the Missouri Supreme Court, such that the combination of those two disabilities is res judicata as against the Second Injury Fund. Further, the permanent partial disability of 35 percent of the body as a whole attributable to the 1999 neck injury found in the final award is presumed to continue undiminished under Section 287.190, RSMo (2000, as amended). So, Claimant maintains, Dr. Woiteshek's opinion of 25 percent of the body as a whole for the 1999 injury is not controlling.

Section 287.190 6.(1) provides: "Permanent partial disability" means a disability that is permanent in nature and partial in degree, and when payment therefor has been made in accordance with a settlement approved either by an administrative law judge or by the labor and industrial relations commission, a rating established by medical finding, certified by a physician, and approved by an administrative law judge or legal advisor, or an award by an administrative law judge or the commission, the percentage of disability shall be conclusively presumed to continue undiminished whenever a subsequent injury to the same member or same part of the body also results in permanent partial disability for which compensation under this chapter may be due; provided, however, the presumption shall apply only to compensable injuries which may occur after August 29, 1959.

In the instant case, the Claimant has injuries to two different body parts, the 1999 neck injury and the 2012 left shoulder injury. Therefore, I find the permanent partial disability rating for the 1999 neck injury is not res judicata against the Fund and there is no presumption of undiminished disability.

The testimony and records in evidence support, and I so find, that Claimant's work related injury of November 12, 2012, resulted in permanent partial disability of 24 percent (the percentage that the Employer settled) of the left arm at the level of the shoulder (55.68 weeks of PPD). The previous injury to the neck has resulted in 25 percent permanent partial disability of the body as a whole, as rated by Claimant's expert, Dr. Woiteshek (100 weeks of PPD).

Claimant testified he suffered increased loss with regard to the left eye blindness. However, in deposition, Dr. Woiteshek stated that there could be additional synergy from the loss of sight in the left eye, but there was no additional qualifying language. I find is not sufficient support warrant an award for additional synergy for the left eye.

Therefore, total weeks of permanent partial disability from the three injuries is 155.68 weeks. (55.68 for the 1999 injury, 100 for the 2012 injury and 0 for the loss of sight.) I find that the synergistic effect of the combination is 20 percent of the separate disabilities, or 31.136 weeks.

The parties stipulated Claimant's average weekly earnings entitled him to the maximum of $433.58 per week of permanent partial disability. Accordingly, Claimant is entitled to recover from the Second Injury Fund 31.136 weeks of PPD times 433.58 per week, or the sum 13,499.95.

WG-22-R1 (8-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Claimant settled the primary injury with Employer for 24 percent of the left shoulder. The synergistic effect of the combination of the primary injury and the cervical spine injury from 1999 is 20 percent of the separate injuries. Claimant is entitled to recover from the Second Injury Fund 31.136 weeks of PPD times 433.58 per week, or the sum 13,499.95.

I certify that on **2-16-19** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **A.D.**


Made by: **Joseph P. Keaveny**

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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