Manuel Duarte v. Not specified in provided text

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, heard the parties' arguments, 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.

On June 28, 2017, employer/insurer filed a timely application for review of the administrative law judge's June 14, 2017, award. Employee Manuel Duarte died on December 9, 2017, approximately five months after employer/insurer filed its application for review. Employee's attorney appeared for oral argument before the Commission on February 28, 2018, having knowledge of employee's death but advising neither employer/insurer nor the Commission of employee's demise. The Commission entered a Final Award Allowing Compensation on May 10, 2018, modifying the administrative law judge's award and decision. On June 25, 2018, employer/insurer filed Suggestions of Death of Deceased Employee. On September 21, 2018, the Commission voided its award of May 10, 2018, advising the parties that the matter remained pending before the Commission and that, upon proper substitution of parties, the Commission would take up and issue an award in this matter in due course. On May 6, 2019, after two intervening orders, the Commission issued an order designating Madeleine Dobrauc, employee's natural daughter and personal representative, as his successor in interest and claimant in this matter pursuant to § 287.580. On May 30, 2019, the Commission issued an order making a technical correction to its May 6, 2019, order. We now consider the merits of employer/insurer's application for review.

The parties asked the administrative law judge to determine the following issues: (1) Whether employee sustained a work-related accident on March 31, 2009; (2) Whether employee's injury was medically causally related to the alleged accident; (3) Nature and

Injury No.: 09-111523

Employee: Manuel Duarte, deceased

- 2 -

extent of permanent disability and liability of the employer or the Second Injury Fund; (4) Future medical; (5) The date the employee reached maximum medical improvement (MMI).

The administrative law judge determined as follows:

- The employee sustained an occupational disease, which arose out of and in the course and scope of his employment with employer and was medically causally related to his work activities;

- The employer is ordered to provide future medical treatment to the employee's right shoulder to cure and relieve the effects of the March 31, 2009, work injury;

- The employee is permanently and totally disabled as a result of his last injury alone; the Second Injury Fund is therefore not liable for the payment of any permanent partial or permanent total disability compensation;

- The employee achieved MMI on April 29, 2010, the date of Dr. Robert Lieurance's office note. The employee is therefore entitled to temporary total disability from the employer/insurer from April 1, 2009, through April 29, 2010, and thereafter for permanent total disability benefits from employer/insurer for the employee's lifetime.¹

The employer/insurer filed a timely application for review alleging that the administrative law judge's award is erroneous for the following reasons:

1. The finding that the employee sustained a compensable incident of occupational disease arising out of and in the scope of his employment with employer is not supported by the substantial and credible evidence in that employee suffers from pre-existing arthritis and degenerative joint disease of the right shoulder.

1. The finding of permanent total disability against the employer and insurer in connection with the employee's March 31, 2009, shoulder injury, in isolation and alone, was not based upon credible and substantial evidence in that evidence from Dr. Allen Parmet and vocational specialist Michael J. Dreiling, in addition to employee's own testimony, demonstrates that any permanent total disability is the result of employee's pre-existing conditions and his 2009 shoulder injury and therefore the responsibility of the Second Injury Fund.

¹ The parties stipulated to a weekly compensation rate of $283.21 for both temporary total and permanent total disability benefits. Transcript, 5.

Injury No.: 09-111523

Employee: Manuel Duarte, deceased

- 3 -

1. The award of future medical is not supported by competent and substantial medical evidence in that employee has not received any medical treatment related to his right shoulder since 2010; nor does the medical evidence support a need for medical treatment in the future.

1. The administrative law judge's temporary total disability benefits is not supported by competent and substantial medical evidence in that such evidence indicates that employee was not temporarily totally disabled, although he may have had restrictions and been limited.

For the reasons stated below, we modify the award and decision of the administrative law judge relating to employee's entitlement to temporary total disability benefits.

Discussion

Date of Maximum Medical Improvement

After finding employee permanently and totally disabled solely as a result of the last injury, the administrative law judge's award states:

[T]he question then becomes when Mr. Duarte achieved maximum medical improvement. Candidly, it is unclear from the medical records when Mr. Duarte achieved maximum medical improvement from his work injury of March 31, 2009. It is clear that Mr. Duarte underwent a second surgery on his right shoulder on April 21, 2010, performed by Dr. Lieurance. The last medical record available in evidence from Dr. Lieurance's office was his medical note dated April 29, 2010. While it makes no substantive difference since I have found Mr. Duarte was permanently and totally disabled as a result of the injury to his right shoulder, in isolation, from the last injury alone, so as to distinguish the period of temporary total disability from permanent total disability, I find and conclude that based upon the medical records admitted into evidence at the hearing, that Mr. Duarte achieved maximum medical improvement April 29, 2010.

Based on his determination that the employee was at MMI as of April 29, 2010, the administrative law judge awarded temporary total disability from April 1, 2009, (the day after the employee's March 31, 2009 work injury), through April 29, 2010, and permanent total disability beginning April 30, 2010, for the employee's lifetime, to be paid by the employer/insurer.

The employer/insurer's application for review alleges error in the administrative law judge's award of temporary total disability, asserting the employee failed to prove MMI because "There was no date of maximum medical improvement ever stated by any physician and it

2 Award, pp. 19-20.

Injury No.: 09-111523

Employee: Manuel Duarte, deceased

- 4 -

is a guess and speculation to determine the date. Further, Employee accepted unemployment benefits, but the Administrative Law Judge provided an award of TTD benefits in violation of Section 287.170(3).³

We note the following medical evidence in the record:

- Dr. Robert Lieurance's clinic note of April 29, 2010, summarized a follow up appointment with the employee following right shoulder arthroscopic surgery. Dr. Lieurance's memo documented an X-ray of the employee's right shoulder on that date. He noted that the employee's shoulder incision was healing well, that the employee was neurovascularly intact, and that he had good range of motion. Dr. Lieurance's April 29, 2010 office record does not reference MMI.⁴

- Employer's expert, Dr. Allen Parmet, evaluated the employee on April 20, 2012 and January 16, 2015. Dr. Parmet's February 20, 2015, report suggests that the employee was likely at maximum medical improvement as of Dr. Parmet's April 20, 2012, exam but does not specifically so state.⁵

- Employee's expert, Dr. David Volarich, evaluated the employee on June 12, 2013. Dr. Volarich's report of that date specifically cites his opinion that, based on treatment provided to date, the employee had achieved maximum medical improvement.⁶

Section 287.170 provides for payment of compensation for temporary total disability for not more than four hundred weeks. "Temporary disability awards are intended to cover a healing period ... TTD benefits should be awarded only for the period before the employee can return to work." *Greer v. Sysco Food Serv.*, 475 S.W.3d 655, 667 (Mo. 2015). Consistent with *Greer* we interpret Dr. Volarich's June 12, 2013, evaluation and report as evidence that the employee was no longer engaged in the rehabilitative process and had reached his maximum treatment potential as of that date. Based on Dr. Volarich's credible opinion we conclude employee reached MMI on June 12, 2013, and was no longer eligible for temporary total disability as of that date.⁷ We note modification of the date the employee reached MMI does not change the amount of the employee's award, in that the rate for temporary total and permanent total disability benefits are the same.

³ Employer/Insurer's Application for Review, p. 6.

⁴ Claimant's Exhibit 1, Transcript, 235-236.

⁵ Employer/Insurer's Exhibit E, Id. 594-597.

⁶ Claimant's Exhibit 2, Transcript, 335.

⁷ We note that 2017 amendments to §§ 287.020.12 and 287.149 RSMo, relating to MMI do not control in this case because they were enacted subsequent to the employee's March 31, 2009 injury.

Injury No.: 09-111523

Employee: Manuel Duarte, deceased

- 5 -

At hearing, the employer/insurer produced official records from the Division of Employment Security documenting the employee's receipt of weekly unemployment benefits from May 29, 2010, to September 14, 2010, and then again from April 16, 2011, to July 19, 2011. Employer/insurer urges the Commission to award no temporary total disability or permanent total disability benefits until after the employee stopped receiving unemployment benefits, on July 19, 2011.

Section 287.170.3 states "An employee is disqualified from receiving temporary total disability during any period of time in which the claimant applies and receives unemployment compensation (emphasis added)." Applying the strict construction mandate of § 287.800, the Commission has previously construed this statute as only allowing the Commission to deny compensation for temporary total disability for periods during which the employee received unemployment compensation.

Pursuant to § 287.170.3, we find the employee disqualified for temporary total benefits from May 29, 2010, to September 14, 2010, and from April 16, 2011, to July 19, 2011, due to his receipt of unemployment benefits during that period.

We modify the administrative law judge's award as to the issue of temporary total disability.

The employee was temporarily totally disabled due to his March 31, 2009, work injury from April 1, 2009, until June 12, 2013. The employee was disqualified from receipt of temporary total disability benefits from May 29, 2010, to September 14, 2010, and from April 16, 2011, to July 19, 2011, due to his receipt of unemployment compensation benefits during that period. Employer/insurer