Thomas Dubuc v. OTG, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 15-087903

**Employee:** Thomas Dubuc

**Employer:** OTG, LLC (settled)

**Insurer:** Travelers Indemnity Company 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. We have reviewed the evidence, read the briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge.

The only issue in dispute in this case is the liability of the Second Injury Fund, including the nature and extent of disability related to employee's primary injury. The employee claims permanent total disability against the Second Injury Fund as a result of injuries from the October 30, 2015, primary injury in combination with preexisting disabilities.

On February 1, 2017, the employee settled his claim against the employer/insurer in this case for the lump sum of $50,000.00, based on 30% of the left wrist and 13.5% of the body as a whole referable to the kidneys and low back.

The administrative law judge denied all compensation, ruling as follows:

> The claimant, Thomas Dubuc, has failed to sustain his burden of proof that he is permanently and totally disabled as the result of his October 30, 2015 accident and injuries combined with his preexisting disabilities. While both Dr. Mullins and Mr. Strauser said that Mr. Dubuc's permanent and total disability is the result of his injuries from the October 30, 2015 accident combined with his preexisting disabilities, Dr. Mullins stated that the injuries from the October 30, 2015 accident alone were sufficient to cause Mr. Dubuc to be permanently and totally disabled and Mr. Strausser[sic] similarly concluded that the restrictions imposed by Dr. Mullins from the October 30, 2015 accident were sufficient to preclude Mr. Dubuc from participating in the workplace.

The employee filed a timely application for review, alleging that the administrative law judge erroneously determined claimant was permanently and totally disabled due to the last injury alone, and alleging that the weight of the evidence clearly shows claimant permanently and totally disabled due to an accumulation of injuries from preexisting disabilities and the last injury.

*Award, p. 7.

Injury No.: 15-067903

Employee: Thomas Dubuc

- 2 -

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Employee worked for OTG, LLC, an independent cable and fiber optic installer. Employee's job as an installer required him to lift a ladder that weighed sixty pounds, climb twenty-five to thirty feet to a telephone pole, and haul sixty or seventy pounds of wire from his truck in addition to various tools and equipment. On October 30, 2015, employee sustained an injury at work when the ladder he climbed fell out from underneath him.

The employee sought treatment at Capital Region Medical Center after the injury. Hospital emergency room records documented his account of a seven-foot fall onto gravel after a ladder he climbed fell over, hitting his left side. The employee reported pain in his left wrist and left ribs. He related that he scraped his scalp, but denied any pain in his head. He stated, "[I]t hurts to breathe." Emergency Department admitting physician Dr. Charles Ludy administered anti-nausea and narcotic pain medication and discussed orthopedic follow-up for employee with the VA hospital. As he was about to be discharged, employee used the restroom and noticed excessive blood in his urine. This was of particular concern because employee took blood-thinners for preexisting deep-vein thrombosis and pulmonary embolism. A CT of his abdomen and pelvis "revealed laceration of his left kidney with hematoma." Dr. Ludy arranged for employee's transfer to the trauma center at the University of Missouri (MU Hospital).

At MU Hospital, employee underwent selective left renal embolization and treatment of his left radial fracture that included changing his splint. MU Hospital admission notes list the following injuries attributable to employee's work accident: 1. Left radial fracture; 2. Left grade 2 renal laceration; 3. Hematuria; 4. Acquired coagulopathy on Coumadin; 5. Factor V Leiden mutation with a history of deep vein thrombosis and pulmonary embolus and 6. Multiple root abrasions, contusions on the left flank. MU Hospital released employee on November 6, 2015, and referred him to Dr. Jay Bridgeman for follow up on his left wrist fracture.

On February 26, 2016, Dr. Bridgeman released employee to return to light duty work, limiting lifting no greater than ten pounds with his right hand only and ordering that he work only in a clean and dry environment. On April 8, 2016, Dr. Bridgeman recommended twenty-one sessions of physical therapy. On May 20, 2016, the employee saw Dr. Bridgeman for the last time. Dr. Bridgeman assessed employee's left distal radius fracture as healed. He further noted numbness and tingling in employee's left hand consistent with carpal tunnel syndrome, which he considered unrelated to employee's primary injury. Dr. Bridgeman's May 20, 2016, clinic note referenced no restrictions.

2 Transcript, 222.

3 Id. 226.

4 Id. 287.

5 Transcript, 302.

Injury No.: 15-087903

Employee: Thomas Dubuc

- 3 -

**Expert Testimony**

Dr. Mitchell C. Mullins, an emergency and urgent care osteopathic physician examined employee on June 28, 2016, for the purpose of assessing disability from employee's October 30, 2015, accident.

In a June 29, 2016, report documenting his independent medical examination (IME), Dr. Mullins noted employee's history of prior back pain since a fall off of an 18-foot wall in 2010, from which employee suffered a nondisplaced vertebral fracture, concussion and shoulder dislocation. He further noted employee's past medical history of depression, hyperlipidemia, factor V Leiden with history of deep venous thrombosis and pulmonary embolism and hernia repairs in 1988 and 1995. Dr. Mullins' June 29, 2016, report specifically noted that the employee's October 30, 2015, injury caused "an exacerbation of pre-existing low back pain [emphasis added]." The report did not include an assessment of employee's impairment related to any of the referenced preexisting conditions.

Dr. Mullins' June 29, 2016, report only evaluated impairment relating to employee's primary, October 30, 2015, work injury. With respect to this injury, Dr. Mullins determined disability of:

1. 12% of the body as a whole rated at the lumbar spine
2. 36% permanent partial disability rated at the left wrist, relating to traumatic arthritis and posttraumatic carpal tunnel syndrome
3. 5% permanent partial disability rated at the left elbow due to lateral epicondylitis
4. 6% permanent partial disability of the body as a whole due to kidney laceration, including post injury scarring and possible long-term effects on renal function

Dr. Mullins' June 29, 2016, report includes a Medical Source Statement of Ability to Do Work-Related Activities, dated July 5, 2016. This statement lists employee's physical restrictions supported by Dr. Mullins' June 29, 2016, diagnosis. Dr. Mullins' June 29, 2016, report expressly includes diagnoses both of employee's "present injury" and employee's "pre-existing injuries or diseases." The fact that Dr. Mullins' June 29, 2016, report did not include impairment ratings related to employee's diagnosed preexisting conditions did not preclude Dr. Mullins from considering employee's preexisting conditions in the physical restrictions he cited in his July 5, 2016, statement. We find that the list of physical restrictions cited in Dr. Mullins' Medical Source Statement of Ability to Do Work-Related Activities report were supported by Dr. Mullins' diagnoses related to employee's "present injury" sustained on October 30, 2015, as well as Dr. Mullins' diagnosis of employee's multiple preexisting injuries and diseases as specifically identified in his June 29, 2016, report.

6 Id. 81.

7 Id. 84.

8 Id. 81.

Injury No.: 15-087903

Employee: Thomas Dubuc

- 4 -

Dr. Mullins subsequently produced a second report dated September 1, 2016, specifically assessing disabilities that preexisted employee's October 30, 2015, primary injury. In this supplemental report, Dr. Mullins assessed impairment from employee's preexisting disabilities as:

1. 10% PPD BAW rated at the thoracolumbar spine due to compression fractures at T12 and L2.
2. 18% PPD rated at the right shoulder due to prior dislocation
3. 23% PPD rated at the abdomen BAW due to recurrent bilateral inguinal hernias
4. 25% PPD BAW due to factor V Leiden deficiency and chronic anticoagulation
5. 9% PPD BAW due to depression
6. 8% PPD BAW rated at the cervical spine due to acquired spinal stenosis and degenerative disc disease

Dr. Mullins' September 1, 2016, report concluded, "In light of the multiple pre-existing injuries as well as the significant trauma on October 30, 2015, it is my opinion the patient is permanently and totally disabled as a result of this combination."9

In addition to Dr. Mullins' June 29, 2016, and September 1, 2016, reports, based on his June 28, 2016, IME, the record also includes Dr. Mullins' November 13, 2017, deposition testimony. Dr. Mullins' testimony confirmed his opinion that the restrictions he cited on July 5, 2016, were based on the entirety of employee's conditions, including "The worsening of his back, his carpal tunnel, the pain that he has on-going with his ribs, elbow."10 Id. Dr. Mullins' statement that he considered employee to be permanently and totally disabled even prior to specifically evaluating impairment attributable to each of employee's preexisting conditions does not persuade us to conclude that Dr. Mullins considered employee's permanent and total disability to be exclusively attributable to his October 30, 2015, primary injury.

Given that Dr. Mullins' June 29, 2016, report assesses only permanent partial disability related to employee's primary injury, it is illogical to conclude that Dr. Mullins would have found employee permanently and totally disabled solely as a result of the primary injury on that date. Dr. Mullins' arguably inconsistent agreement with the Second Injury Fund's attorney's suggestion that he had already "determined" employee permanently and totally disabled at the time of his June 28, 2016, exam, overlooks the plain meaning of Dr. Mullins' deposition testimony as a whole as well as the opinions carefully set out in his June 29, 2016, and September 1, 2016, written reports. To attribute substantial weight to a single inconsistent statement imposes the sort of "overly technical and parsed analysis" of medical evidence that courts have admonished the Commission to avoid. Malam v. Dep't of Corr. 492 S.W.3d 926, 929 (Mo. 2016); See also Moss v. Treasurer of Missouri-Custodian of the Second Injury Fund (WD 81467, 2018), transfer denied by Supreme Court of Missouri, April 2, 2019.

9 Id. 89.

10 Id. 1239-1240.

Injury No.: 15-087903

Employee: Thomas Dubuc

- 5 -

Vocational expert Dr. David Ross Strauser¹¹ testified by deposition on November 13, 2017. Dr. Strauser conducted an evaluation of employee on June 23, 2017. Based on his review of employee's medical records, he noted preexisting disabilities including multiple fractures to employee's back, a shoulder dislocation, multiple hernia repairs and hyperlipidemia, factor V Leiden with a history of deep venous thrombosis and pulmonary embolism. Dr. Strauser noted that prior to his 2010 work injury employee fulfilled his necessary job duties despite multiple disabilities, but experienced significant pain and discomfort at the end of the workday that required extensive medical activities to manage. He noted that employee's preexisting depression impacted his ability to work in 2012, three years prior to the primary injury, and characterized employee's score of sixty on a global assessment of his functioning constituted a "significant impairment in functioning based on the combination of his psychiatric condition along with his other medical conditions."¹² Dr. Strauser testified, based on his expertise as a Social Security disability consultant, that prior to his October 30, 2015, injury employee may have been considered permanently and totally disabled solely as a result of his preexisting disabilities.

Based on Dr. Mullins' physical restrictions, which as we have found considered both employee's preexisting disabilities and disability from the primary injury, Dr. Strauser opined that there are no jobs available in the current economy that employee would be able to maintain on a regular basis. He further considered employee's potential for retraining "unlikely" not because of any intellectual impairment but rather because employee's multiple chronic health conditions would make it difficult for him to complete such a program.¹³ Dr. Strauser concluded, "[B]ased on the culmination of all those injuries, [the employee] would be precluded from meeting the demands of the labor market and therefore would be a hundred percent vocationally impaired or permanently and totally disabled."¹⁴

Based on the compromise settlement employee entered into with employer/insurer, we find as a factual matter that employee's disability related to the October 30, 2015, injury is 30% of the left wrist and 13.5% of the body as a whole referable to the kidneys and low back. We further find, based on Dr. Mullins' and Dr. Strauser's expert opinions, that employee's undisputed permanent and total disability is attributable to a combination of industrially disabling preexisting conditions in combination with disability from the primary injury.

Law

Second Injury Fund Liability

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

¹¹ We address Mr. Strauser as "Dr." in recognition of his Ph.D. in rehabilitation counseling psychology.

¹² Transcript, 1272.

¹³ Id. 1284.

¹⁴ Id. 1287.

Injury No.: 15-087903

Employee: Thomas Dubuc

- 6 -

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..." /d.

Missouri courts have articulated 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 the 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).

Section 287.220 requires us to first determine the compensation liability of the employer for the last injury, considered alone. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003).

As we have found, the employee sustained disability related to the October 30, 2015, injury in the amount of 30% of the left wrist and 13.5% of the body as a whole referable to the kidneys and low back.

Employee's permanent and total disability is undisputed. As we have found, employee had preexisting disabilities consisting of spinal compression fracture, a dislocated right shoulder, recurrent bilateral inguinal hernias, factor V Leiden deficiency and chronic anticoagulation, depression, acquired spinal stenosis and degenerative disc disease. These conditions did not preclude employee from working at the time of his October 30, 2015, injury but clearly had the potential to combine with a work-related injury in the future to cause a greater degree of disability than would have resulted in the absence of the condition. For purposes of Second Injury Fund liability, employee's preexisting disabilities therefore constituted a hindrance or obstacle to employment or reemployment. *Knisley, supra*. As we have found, employee is permanently and totally disabled as a result of his October 30, 2015, work injury in combination with his preexisting disabilities.

We reverse the award of the administrative law judge denying liability of the Second Injury Fund.

**Permanent Partial Disability Attributable to Employee's October 30, 2015, Accident:**

- **Left wrist:** 30% x 175 week level = 52.5 weeks

- **Kidney and low back:** 13% x 400 week level = 52 weeks

- **Total:** 104.5 weeks

- 7 -

Injury No.: 15-087903

The Second Injury Fund is liable to employee for the rate differential between weekly permanent total disability benefits and permanent partial disability benefits (879.03 - 464.58 = $414.45 per week) from October 30, 2015, for 104.5 weeks. Thereafter, the Second Injury Fund shall pay to employee weekly permanent total disability benefits of $879.03 for employee's lifetime, or until modified by law.

This award is subject to a lien in favor of Matthew Uhrig, Attorney at Law, in the amount of 25% for necessary legal services rendered.

The award and decision of Administrative Law Judge Hannelore D. Fischer, issued August 31, 2018, is attached solely for reference.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this 17th day of April 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 15-087903

Employee: Thomas Dubuc

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee's permanent and total disability is solely attributable to his October 30, 2015, work injury.

Employee's 2010 back injury resulted in conservative care, a prescription for a back brace and use of a TENS unit as needed. Employee had no work restrictions relating to this injury. Employee admitted he missed only a few days of work since 2012 because of alleged preexisting depression. Medical records show no ongoing symptoms relating to employee's deep vein thrombosis, pulmonary embolism, or factor V Leiden beyond blood thinning medication and monthly blood tests. No medical records show ongoing symptoms relating to hernia repairs and employee did not testify to any current problems relating to this issue.

Employee testified at hearing that, due to the injury of his left wrist on October 30, 2015, he can no longer grip tools or lift objects as heavy as a ladder or cable spool, and can no longer climb ladders. Employee testified that, because of his wrist disability, he can no longer function in his trade as a cable installer. He could think of no other work he was capable of performing. Without the capability to grip, lift, or climb, which are capabilities lost solely due to the last injury, employee is totally disabled. Based on this testimony, employee's current inability to work is attributable to his last injury alone.

Dr. Mullins' June 29, 2016, report listed the following restrictions for employee as a result of employee's October 30, 2015, injury:

- Limit occasional lifting to twenty pounds using both hands, do not lift frequently;

- Limit standing or walking to less than two hours in an eight-hour workday;

- Periodically move and change position while sitting;

- Never climb ramps, poles, ladders, ropes, or scaffolds;

- Limit climbing stairs, balancing on narrow surfaces, kneeling, crouching, crawling, and stooping to an occasional basis;

- Limit reaching in all directions, handling, fingering, and feeling motions to an occasional basis;

- Avoid repetitive vibrations, which exacerbate carpal tunnel syndrome symptoms.

When deposed, Dr. Mullins admitted that before he addressed impairment relating to employee's preexisting conditions, he had already determined employee was permanently and totally disabled. Dr. Mullins produced his September 1, 2016, addendum report solely to respond to employee's attorney's belatedly identified "second injury fund concerns." The report imposed no additional restrictions beyond those Dr. Mullins previously identified in his earlier, June 29, 2016, report that solely addressed impairment from employee's primary injury. Clearly, under the requirement that the last

*Transcript, 87.*

Injury No.: 15-087903

Employee: Thomas Dubuc

- 2 -

injury be viewed in isolation, before considering the impact of preexisting conditions, Dr. Mullins' June 29, 2016, report supports the finding that employee is permanently and totally disabled solely as a result of his primary injury. See *Roller v. Treasurer of State of Mo.*, 935 S.W.2d 739, 741 (Mo. App. 1996).

Vocational expert David Strauser testified that his analysis relied on the medical restrictions associated with employee's injuries. He acknowledged that his opinion that employee was unemployable on the open job market was based solely on the restrictions included in Dr. Mullins' original, June 29, 2016, report. Dr. Strauser's assessment of permanent and total disability related exclusively to impairment from employee's primary injury.

Based on the above competent and substantial evidence in the record, the administrative law judge correctly found that employee is permanently and totally disabled based on the last injury alone. As a result, no Second Injury Fund liability exists in this case. As the administrative law judge correctly states in her award, employee "failed to sustain his burden of proof that he is permanently and totally disabled as the result of his October 30, 2015 accident and injuries combined with his preexisting disabilities."²

For all of the above reasons, I would deny this employee's claim for benefits. I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

² Award, p. 7.

Employee: Thomas Dubuc

**Injury No.:** 15-087903

**Before the**

**DIVISION OF WORKERS' COMPENSATION**

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

**Checked by:** HDF/scb

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: October 30, 2015
5. State location where accident occurred or occupational disease was contracted: Camden 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: See Award
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: Left wrist, kidneys, low back
14. Nature and extent of any permanent disability: 30% left wrist: 13.5% body as a whole
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

WCO2-8316-513

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Dubuc

Injury No. 15-087903

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

1. Employee's average weekly wages: ---

1. Weekly compensation rate: 879.03 for permanent total disability benefits

464.58 for permanent partial disability benefits

1. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable: Employer previously settled

1. Second Injury Fund liability: No

1. Future Requirements Awarded: None

WV-32-01-16-811

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Dubuc

Injury No. 15-087903

Custodian of the Second Injury Fund |

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on June 26, 2018. Memoranda were submitted by July 13, 2018.

The parties stipulated that on or about October 30, 2015, the claimant, Thomas Dubuc, was in the employment of OTG, LLC. The parties agreed that all facts relevant to the claimant's relationship with the employer/insurer are resolved in the claimant's favor with regard to the claim against the Second Injury Fund. The appropriate rate of compensation is 879.03 per week for permanent total disability benefits and 464.58 per week for permanent partial disability benefits.

The issue to be resolved by hearing is the liability of the Second Injury Fund, including the nature and extent of the primary injury. Permanent total disability is alleged.

The parties further stipulated that the claim against the employer/insurer settled based on a permanent disability of 30 percent of the left wrist and 13.5 percent of the body referable to the kidneys and low back; the total settlement amount was $50,000.00. The parties do not agree that the disability described in the stipulation for settlement reflects the extent of permanent disability in the pending claim against the Second Injury Fund.

The parties stipulated to the date of maximum medical improvement as May 20, 2016.

The claimant, Thomas Dubuc, was 56 years old as of the date of hearing. Mr. Dubuc's job at OTG, LLC, was to run fiber optic lines between telephone poles; Mr. Dubuc climbed telephone poles and pulled the lines as well as climbed ladders. Mr. Dubuc described it as a very physical job. On October 30, 2015, Mr. Dubuc fell from a ladder he was climbing, injuring his left wrist and arm, his kidneys and his low back. Mr. Dubuc was treated at Capital Region Hospital, where his left arm was put in a splint; Mr. Dubuc was about to be released when he discovered an

WV-32-81 (6.81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Dubuc

Injury No. 15-087903

excessive amount of blood in his urine. Mr. Dubuc takes blood thinners due to a history of deep vein thrombosis and pulmonary emboli. Mr. Dubuc was taken to University Hospital by ambulance where he stayed for seven days after it was discovered that Mr. Dubuc's blood levels were not what they should have been. Mr. Dubuc's left arm was casted.

Mr. Dubuc stated that he continues to have numbness in the thumb and fingers of the left hand, particularly in the thumb and first two fingers, and that he has a lack of grip strength in that hand. Mr. Dubuc said that his last day of work for OTG, LLC, was the day of his injury, October 30, 2015, because he needs both hands to work and cannot as effectively use his left hand post accident. Mr. Dubuc said that he takes over the counter medications for his lower back pain as well as all over pain.

Mr. Dubuc testified to a 2010 back injury that occurred when he fell off of a retaining wall while fishing. According to Mr. Dubuc he fractured two vertebrae in that fall at the L2 and L3 levels. Mr. Dubuc stated that he spent about five days in the hospital with that injury and was off work for one to two months while recuperating. Mr. Dubuc was given a back brace and TENS unit which he said he was still using at the time of the 2015 accident. Mr. Dubuc said that after the 2010 accident and recovery he returned to work subcontracting and installing cable. Mr. Dubuc testified that he slowed down after the 2010 accident and would only handle three to five jobs per day whereas he handled ten to twelve jobs per day before the 2010 accident; Mr. Dubuc saw a corresponding decrease in income.

Mr. Dubuc also described his issues with deep vein thrombosis and pulmonary emboli prior to 2015, stating that he has Factor V Leiden, a genetic mutation of one of the clotting factors in blood. This condition was discovered when Mr. Dubuc was treated at a VA hospital for deep vein thrombosis in the back of his right leg in 2011. Mr. Dubuc takes anti-coagulant medication, Warfarin, to combat this condition, wears compression stockings daily, and has monthly blood tests as the result of the Factor V Leiden.

Mr. Dubuc described treatment for depression at the VA in 2012.

Since 2012, according to Mr. Dubuc, he has been taking Tramadol for back and leg pain due to his deep vein thrombosis.

Mr. Dubuc graduated from high school in 1980 and went to work in a warehouse after that. Mr. Dubuc joined the Navy in 1982 and worked on communications equipment; Mr. Dubuc testified that the equipment he worked on is obsolete now. After leaving active duty, Mr. Dubuc was a naval recruiter. Mr. Dubuc has also done pinball machine repair, supervised employees at his mother's boarding kennel, sold cars, installed electric security systems in homes, and delivered groceries, in addition to his work installing broadband cables. Mr. Dubuc testified that he did not use a computer in any of his jobs. Mr. Dubuc said that climbing ladders in work hardening rehabilitation was most difficult for him, but that he was able to lift and push.

Dr. Mitchell Mullins, DO, testified by deposition that he evaluated Mr. Dubuc on June 28, 2016. Dr. Mullins opined that Mr. Dubuc has a permanent disability of 12 percent of the body referable to the spine as the result of the October 30, 2015 fall as well as 36 percent of the left wrist, five

VIC-15-0116-01)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Dubuc

Injury No. 15-087903

percent of the left elbow, and six percent of the body referable to the kidney laceration. With regard to the low back injury, in his June 29, 2016 report, Dr. Mullins noted that Mr. Dubuc had not been assessed for a low back injury but that it was not hard to imagine a worsening of low back symptoms after a seven to eight foot fall from a ladder. In the June 29, 2016 report, Dr. Mullins noted that Mr. Dubuc had prior back pain after falling off a wall in 2010; Dr. Mullins stated that "from 2011-2015 he required no further care, physical therapy or imaging studies [and][Mr. Dubuc] reports he did not miss days from work because of his back." (Mullins June 29, 2016 report) Dr. Mullins listed depression, hyperlipidemia, and Factor V Leiden with history of deep venous thrombosis and pulmonary embolism as Mr. Dubuc's past medical history and hernia repairs in 1988 and 1995 as Mr. Dubuc's past surgical history in the June 29, 2016 report. Dr. Mullins attached a statement of Mr. Dubuc's ability to engage in work functions to his June 29, 2016 report regarding the October 30, 2015 accident and injuries. In that statement, Dr. Mullins indicated that Mr. Dubuc's lifting and carrying were affected by the October 30, 2015 accident and injuries, that lifting and carrying should be limited to 20 pounds occasionally and that Mr. Dubuc should engage in no frequent lifting. Dr. Mullins opined that Mr. Dubuc could only stand or walk less than two hours in an eight-hour workday. Dr. Mullins opined that Mr. Dubuc must be able to move and change position when sitting. According to Dr. Mullins, as the result of the October 30, 2015 accident and injuries, Mr. Dubuc could never climb, including ramps, poles, ladders, ropes or scaffolding and could only occasionally climb stairs, balance, kneel, crouch, crawl or stoop; reaching, handling, fingering and feeling were limited and occasional engagement of these activities was to be tolerated while repetitive vibration was noted to exacerbate carpal tunnel symptoms. Dr. Mullins said that the injuries from the 2015 accident alone were enough to cause Mr. Dubuc to be permanently and totally disabled. Dr. Mullins repeated that, even without addressing the prior injuries, Mr. Dubuc was permanently and totally disabled as the result of the injuries sustained in the October 30, 2015 accident.

In his September 1, 2016 report, Dr. Mullins rated permanent disability for injuries preexisting October 30, 2015, as ten percent of the body referable to the L2 and L3 levels of the spine and 18 percent of the right shoulder as the result of the fall from the wall in 2010; 23 percent of the body for recurrent hernias dating back to 1983; 25 percent of the body for the Factor V Leiden; nine percent of the body for the depression dating back to the mid-1990s; and eight percent of the body for chronic pain in the neck. In his report of September 1, 2016, Dr. Mullins stated that there is a synergistic effect between the October 30, 2015 injuries and those preexisting, noting that Mr. Dubuc's fall on October 30 of 2015, requires him to use his previously injured upper extremities more to get up and down resulting in a worsening of Mr. Dubuc's shoulder. In the September 1, 2016 report, Dr. Mullins found Mr. Dubuc to be permanently and totally disabled, noting that the October 30, 2015 injuries caused Mr. Dubuc to alter his movements and activities using abnormal mechanics causing the worsening of preexisting injuries, including the shoulder and abdomen. Dr. Mullins noted that the Factor V Leiden did not cause Mr. Dubuc to have symptoms in the absence of a clot or excessive bleeding and that the hernias were not noted by Mr. Dubuc as troublesome when Dr. Mullins saw him.

David Strauser, vocational expert, testified by deposition that he evaluated Mr. Dubuc on June 23, 2017, at the request of his attorney. While Mr. Strauser testified that Mr. Dubuc was

9-C-35-81 (6.01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Thomas Dubuc

Injury No. 15-087903

permanently and totally disabled from a vocational perspective as the result of "his multiple injuries and the restrictions associated with that, and specifically the information provided by Dr. Mullins's report", he also stated that given the restrictions that Dr. Mullins ascribed to the October 30, 2015 accident and the injuries incurred as the result of that accident that Mr. Dubuc "would be precluded from meeting work there typically performed given his residual skills." (Strauser depo p22 and p41)

APPLICABLE LAW

RSMo Section 287.220.2 All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has 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, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined disabilities, the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for. If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or a major extremity injury shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the

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**Employee:** Thomas Dubuc

**Injury No.:** 15-087903

remainder of the compensation that would be due for permanent total disability under section 287.200 out of the second injury fund.

The claimant, Thomas Dubuc, has failed to sustain his burden of proof that he is permanently and totally disabled as the result of his October 30, 2015 accident and injuries combined with his preexisting disabilities. While both Dr. Mullins and Mr. Strauser said that Mr. Dubuc's permanent and total disability is the result of his injuries from the October 30, 2015 accident combined with his preexisting disabilities, Dr. Mullins stated that the injuries from the October 30, 2015 accident alone were sufficient to cause Mr. Dubuc to be permanently and totally disabled and Mr. Strausser similarly concluded that the restrictions imposed by Dr. Mullins from the October 30, 2015 accident were sufficient to preclude Mr. Dubuc from participating in the workplace.

I certify that on **8-31-18** 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 **M**

**HANNELORE D. FISCHER**

Administrative Law Judge

Division of Workers' Compensation

*WCC-32-0116-511*

*Page 7*