Jerry Tarpley v. Bartch Roofing Company, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 10-064649

**Employee:** Jerry Tarpley

**Employer:** Bartch Roofing Company, Inc. (Settled)

**Insurer:** Missouri Employers' Mutual Insurance 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 February 15, 2019. The award and decision of Administrative Law Judge Suzette Carlisle, issued February 15, 2019, 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 **July 2019**.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

**Attest:**

Secretary

Employee: Jerry Tarpley

Departments: N/A

Employer: Bartch Roofing Company, Inc. (Settled)

Additional Second Injury Fund

Insurer: Missouri Employers' Mutual Insurance Company (Settled)

Hearing Date: November 13, 2018

Injury No.: 10-064649

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SC:SH

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: August 5, 2010
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: Claimant junped onto a roof.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Right knee
14. Nature and extent of any permanent disability: 36 % permanent partial disability of the right knee (Settled)
15. Compensation paid to-date for temporary disability: $\ 11,594.27
16. Value necessary medical aid paid to date by employer/insurer? $\ 29,220.15

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

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

1. Employee's average weekly wages: 1,181.94

1. Weekly compensation rate: 418.58/$787.96

1. Method wages computation: Stipulated by the parties

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

57.60 weeks of permanent partial disability from Employer

$24,110.21

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential ($369.38) payable by SIF for 57.60 weeks beginning January 8, 2013, and, thereafter, $787.96 per week for Claimant's lifetime

**TOTAL:**

**TO BE DETERMINED**

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 following attorney for necessary legal services rendered to the claimant: Attorney Christopher Wagner

Revised Form 21 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

**Employee:** Jerry Tarpley

**Dependents:** N/A

**Employer:** Bartch Roofing Company, Inc. (Settled)

**Additional:** Second Injury Fund

**Insurer:** Missouri Employers' Mutual Insurance Company (Settled)

**Injury No.:** 10-064649

**Before the**

**Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

On November 13, 2018, Mr. Jerry Tarpley ("Claimant") appeared in person at the Missouri Division of Workers' Compensation ("DWC"), St. Louis Office before the undersigned administrative law judge, for a hearing for a final award, to determine Second Injury Fund ("SIF") liability for either permanent partial disability ("PPD") or permanent total disability ("PTD") benefits, if any.

Venue is proper in St. Louis and jurisdiction properly lies with the DWC.

At the hearing, attorney Christopher Wagner appeared and represented Claimant. Assistant Attorney Kristin Frazier appeared on behalf of the Treasurer's Office and represented SIF. The record closed after presentation of the evidence. Court Reporter Maria Krawat transcribed the proceedings. The parties submitted memorandums of law by December 5, 2018.

The parties stipulated that on August 5, 2010:

1. Claimant was employed by Bartch Roofing Company, Inc., the Employer, and sustained an accident that arose out of and in the course of his employment in St. Louis County;
2. Claimant and Employer operated under the Missouri Workers' Compensation Law;¹
3. Employer's liability was fully self-insured by Missouri Employers' Mutual²;
4. Employer had proper notice of the injury;
5. A Claim for Compensation was timely filed;
6. Claimant's average weekly wage was 1,181.94, which resulted in a rate of 787.96 for both temporary total disability ("TTD") and permanent total disability ("PTD") benefits; and $418.58 for permanent partial disability benefits ("PPD");
7. Employer paid TTD benefits for 14 5/7 weeks which total $11,594.27³ and
8. Employer paid $29,220.15 in medical benefits.

¹ All references in this award are to the 2008 Revised Statutes of Missouri (Supp.), unless otherwise stated.

² Any reference in this award to the Employer also refers to the Insurer, unless otherwise stated.

³ According to Exhibit 3, the Stipulation for Compromise Settlement which was approved September 3, 2014.

WC-32-R1 (6-81)

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The parties identified one issue for disposition: What is the nature and extent of SIF liability for either PPD or PTD benefits, if any?

The parties offered the following exhibits which were received into evidence without objection from either side:

Exhibits | Description | Offered | Objection | Admitted |

Delores Gonzalez | Yes | No | Yes |

Dr. Thomas Musich | Yes | No | Yes |

Settlement - Primary Injury

Injury No. 10-064649 | Yes | No | Yes |

Settlement - 1995 claim

Injury No. 95-063045 | Yes | No | Yes |

medical treatment - primary and

preexisting conditions | Yes | No | Yes |

Exhibits | Description | Offered | Objection | Admitted |

Dr. Biel

(May be duplicate) | Yes | No | Yes |

Any marks or highlights contained in the above exhibits were made before they became a part of the record and were not placed there by the undersigned administrative law judge. Any objections contained in the deposition or made during the hearing but not ruled on during the hearing or in this award are now overruled.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

Claimant proved the following facts by a preponderance of the evidence.

At the time of the hearing, Claimant was 67 years old and married with an eleventh grade education and honorable discharge from the Marine Corps. Claimant's work experience includes the following: over the road truck driver, auto mechanic, service station owner, power hacksaw operator, and punch press operator. Claimant completed a four year apprenticeship program for roofers, and he worked as a roofer for about 25 years.

Claimant worked for Employer over 20 years. He started as a journeyman roofer and progressed to foreman because of his willingness to handle a variety of assignments. He repaired roof leaks and roof penetrations and he trained apprentice. As a foreman he assigned jobs to workers, lifted rolls of roofing material by himself up to 100 pounds, and measured the square footage of roofs. Most of his career as a foreman he worked with one helper. During Claimant's last five years of work he delegated heavy lifting to his helper because of problems with his neck and back. Claimant last worked for Employer August 6, 2010, one day after his primary work injury.

In the 1980's Claimant testified he herniated a disc in his low back when he slipped and fell on ice. After conservative treatment failed, Dr. Leubert performed a laminectomy and discharged Claimant with no permanent restrictions. (Medical records are not in evidence) Leading up to August 2010, Claimant continued to have discomfort with movement. To relieve pain, Claimant uses cold and hot packs, Vicodin and relaxation. Several times a year Claimant could not function at work after he took narcotic medication to relieve pain. Flare ups could last up to two months per year.

In January 1995, Claimant injured his right shoulder, neck and right knee when he slipped on an ice covered roof at work. For Claimant's cervical spine, Dr. Chabot prescribed physical therapy, injections and he aspirated the area. No physician imposed restrictions were made. Claimant settled the work-related case for 15% PPD of the cervical spine. The other issues resolved. Ongoing neck complaints include pain and limited range of motion. To relieve discomfort Claimant uses cold packs and takes pain medication and muscle relaxers. Occasionally he missed work due to discomfort.

In 1998, Dr. Chabot surgically repaired Claimant's right knee and returned him to work with no physician imposed restrictions. Leading up to August 2010 Claimant had pain with cold weather. To compensate for right knee pain Claimant kneeled on his left knee.

In 2004, Claimant had a heart attack. Dr. Biel inserted a stent, ordered physical therapy and returned Claimant to work with no permanent restrictions. He missed work for two months. Claimant believes medication slowed his movements. After recovery, Claimant took frequent breaks and was careful not to overexert himself.

WC-32-R1 (b-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

About 2008, Claimant received oxygen, temporarily, at DePaul Emergency Department for breathing problems. Follow up treatment included use of a nebulizer and inhaler twice a day at work, and four times a day when not at work. Claimant was prescribed Spiriva (an inhaler) and albuterol (a breathing treatment) for chronic obstructive pulmonary disease ("COPD"). Claimant used the medications at work to help him breathe better, but he became lethargic. At Claimant's request his physician changed the medication because Claimant could not find electrical power at work to plug in the nebulizer. Claimant switched to an inhaler and nebulizer which he took at work every four to five hours, and when he developed a cold or sinus problems. He does not believe he could have continued to work without the nebulizer and inhaler. He worked without physician imposed restrictions related to COPD. In December 2010 he developed a cold, and started to use oxygen on a continuous basis.

Leading up to August 5, 2010, Claimant had no physician imposed restrictions and he did not change the way he worked because of preexisting medical conditions. Claimant's preexisting medical conditions affected his ability to do his job, but he often worked with a younger apprentice that performed the "hard physical stuff."

The work injury

On August 5, 2010, Claimant injured his right knee when he jumped off a roof one roof and onto another one, and felt extreme pain in his right knee. BarnesCare performed an MRI, recommended surgery, and referred Claimant to Dr. Milne. Dr. Milne trimmed the torn meniscus, prescribed physical therapy and released Claimant from care.

Claimant returned to Dr. Milne after he developed more knee pain. Dr. Milne informed him the original meniscus tear split because he could not trim it under the kneecap. He referred Claimant to Dr. Lux for a knee replacement. On December 14, 2011, Dr. Lux performed a right total knee replacement ("TKR"). In December 2010, Claimant started to use oxygen, which he attributed to pain pills and lack of exercise following the August 2010 work injury. Claimant became inactive and gained weight which he believes taxed his heart and respiratory system.

Claimant began to receive social security benefits in June 2011. On October 8, 2012, Dr. Lux inserted a spacer in the right knee to relieve pain. After discharge, Claimant did not seek employment as he described himself as "just totally problems from everything."

Claimant's bedroom contains his oxygen. He sleeps at night and naps in the afternoon. With back and knee problems, it is more comfortable for him to lie flat. He can fix his lunch.

Medical treatment after the 2010 right knee injury

On November 17, 2010, Dr. Michael Milne performed a right arthroscopic partial medial and lateral meniscectomies, chondroplasty of the patellofemoral and medial femoral condyle, and he aspirated a Baker's cyst.

WC-32-R1 (8-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

In December 2010, Dr. P. Uppal diagnosed an exacerbation of COPD after Claimant developed a sore throat and sinus congestion, which resulted in a decline in breathing and increased wheezing. Dr. Uppal recommended oxygen on a continuous basis. On July 5, 2011, Dr. Uppal's record reflects Claimant gained 50 pounds since his last visit April 5, 2011.

Dr. Milne noted Claimant was oxygen dependent in January 2011. Dr. Milne concluded Claimant could work regular duty with his right knee but deferred to a pulmonologist about his ability to work from a respiratory standpoint. Dr. Milne discharged Claimant on March 8, 2011 at maximum medical improvement ("MMI") with no permanent restrictions and rated 3% PPD of the right knee from the primary work injury.

Due to ongoing right knee pain, Dr. Milne referred Claimant to Paul Lux, M.D. Dr. Lux performed a right total knee replacement ("TKR") on December 14, 2011, and a revision on October 8, 2012. Dr. Lux described Claimant as "quite limited" because of worsening COPD and a heart attack the prior year.

Expert medical evidence

Dr. Musich performed an independent medical evaluation, reviewed medical records, and wrote a report at the request of Claimant's attorney. He concluded Claimant's need for a right TKR stemmed from the work accident on August 5, 2010.

For the primary right knee injury, Dr. Musich rated 60% PPD of the right knee and concluded Claimant could no longer work as a roofer.

For Claimant's pre-existing medical conditions, Dr. Musich rated the following:

a) Cervical spine - 20% PPD of the body, referable to the cervical spine;

b) 30% PPD of the body, referable to the low back; and

c) 60% PPD of the body, for cardiopulmonary disease.

Dr. Musich opined the combination of Claimant's past and present medical conditions is greater than their simple sum and produce an ongoing hindrance to his activities of daily living.

Dr. Musich imposed the following restrictions: Refrain from activities that require prolonged positioning, climbing ladders, operating commercial vehicles, lifting over 30 pounds, and environmental exposures that aggravate cardiopulmonary symptoms. Dr. Musich further recommended a home exercise program.

In addition, Dr. Musich recommended a vocational rehabilitation assessment to determine Claimant's ability to obtain and maintain employment in the open labor market. If no employment is found, Dr. Musich concluded Claimant is PTD due to the combination of his present and past disabilities.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

Delores Elvira Gonzalez, a vocational rehabilitation counselor, evaluated Claimant on October 11, 2014, reviewed medical records, administered academic testing, wrote a report, and testified at the request of Claimant's attorney.

Ms. Gonzalez concluded Claimant's past employment is not vocationally relevant because only the last 15 years of employment are considered and he worked as a roofer during that time.

Ms. Gonzalez did not identify any transferable skills due to Claimant's "reduced residual functional capacity."

From an academic standpoint, Ms. Gonzalez concluded Claimant could be retrained in an entry level position or semiskilled position. Claimant scored twelfth grade in word reading and spelling, eleventh grade in sentence comprehension, and eighth grade in math.

During cross-examination, Ms. Gonzalez testified medical records show Claimant's cardiac and pulmonary conditions progressed after the work injury to the point he required continuous use of oxygen.

Ms. Gonzalez further opined Claimant's significant impairments to his right knee, neck, low back, coronary artery disease and COPD prevented him from returning to his past employment as a roofer or any employment on a continuous basis. At age 62 Claimant was close to retirement, lacked education and experience, had no GED, had impoverished educational skills, and permanent physical disabilities. Based on education and experience, Ms. Gonzalez opined Claimant's job search would limited to unskilled jobs. She predicted employers would fill the positions with younger workers who possessed at least a GED and more physical ability than Claimant. Also, the hired workers would not be dependent on oxygen. Ms. Gonzalez further concluded these factors are a hindrance to Claimant's ability to find work.

Ms. Gonzalez further concluded Claimant was not a candidate for vocational rehabilitation because of his primary work injury and pre-existing physical disabilities.

The evidence shows Claimant is PTD. The question is when did he become PTD? Claimant asserts he is PTD from the combination of his primary right knee injury, preexisting medical conditions, the worsening of his COPD condition because of the work injury. The SIF contends Claimant is PTD due to subsequent deterioration of his preexisting cardiopulmonary problems alone. Based on medical records in evidence, Claimant's credible testimony, and persuasive testimony by Ms. Gonzalez, Claimant met his burden to prove he is PTD from his primary injury and preexisting disabilities.

WV-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence all material elements of his claim including SIF liability. *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1968).

Chapter 287.020.6 defines "total disability" as the inability to return to any employment and not merely the inability to return to the employment the employee was engaged in at the time of the accident. The central question to the determination of permanent total disability status is whether any employer in the usual course of business could reasonably be expected to employ an employee in their present physical condition. *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173 (Mo. App. 1995). It is not necessary that the employee be completely inactive or inert in order to meet this statutory definition. *Kowalski v. M-G Metals and Sales, Inc.*, 631 S.W.2d 919, 922 (Mo.App. 1982) (Citations omitted).

The employee must also be unable to compete for work in the open labor market. *Stewart v. Zweifel*, 419 S.W.3d 915, 918 (Mo. App. 2014) (Citations omitted).

The first question to be decided is the nature and extent of disability from the last injury alone. *Roller v. Treasurer of the State of Missouri*, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the last injury in and of itself rendered Claimant PTD, then SIF has no liability. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003). The extent and percentage of disability is a finding of fact within the special province of the fact finder. *Angus v. Second Injury Fund*, 328 S.W.3d 294, 304 (Mo.App.2010) (Citations omitted). Claimant bears the burden to prove the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004).

Section 287.220 states, the SIF is liable for PTD benefits when three findings are made:

1. The employee has a percentage of disability from the compensable last injury, and
2. There was a preexisting permanent disability that was serious enough to constitute a hindrance or obstacle to employment or re-employment, and
3. All of the injuries combined resulted in the employee being permanently and totally disabled.

Total disability preventing reasonable employment must be more than post-accident worsening of preexisting disabilities. *Id.* at 717. A claimant "must show that the worsening was caused or aggravated by the primary injury." *Id.*

Commencement date for PTD payments: In cases of PTD, payments should begin when the disability begins. *Kramer v. Labor and Industrial Relations Commission*, 799 S.W.2d 142, 145 (Mo.App.App.1990).

4 Several cases in this award may have been overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 223 (Mo. Banc 2003). No further reference will be made to the *Hampton* decision in this award.

WV-22-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

Based on observation of Claimant during the hearing, credible testimony by Claimant, medical records in evidence, and persuasive testimony by Ms. Gonzalez, Claimant met his burden.

1. Claimant's testimony is credible and consistent with the medical records in evidence.

1. Claimant sustained 36% PPD of the right knee from the primary injury due to residual complaints and limitations to his right knee from the primary injury.

1. Claimant had the following medical conditions before August 5, 2010 that were a hindrance or obstacle to his employment or reemployment: Low back, right knee, cervical spine, heart and COPD.

1. Claimant is PTD due to his primary injury and preexisting medical conditions. Dr. Musich deferred to a vocational expert about Claimant's ability to work within the restrictions he imposed. Based on Claimant's age, lack of education, transferable skills, and physical restrictions, and use of oxygen, Ms. Gonzalez concluded Claimant was unable to compete in the open labor market. If work could not be found, Dr. Musich opined Claimant was PTD from the primary injury and preexisting disabilities. Therefore, Claimant is PTD due to his primary injury and preexisting medical conditions.

1. Claimant met his burden to show the primary injury caused subsequent deterioration of his preexisting COPD. During cross examination, Ms. Gonzalez acknowledged medical records show Claimant's pulmonary condition deteriorated after his work injury.

a) However, Claimant credibly testified his pulmonary function decreased because he gained weight from inactivity after the primary injury, which taxed his heart and his ability to breathe.

i. Before the primary injury, Claimant was active at work; he knelt, squatted, crawled, stood, climbed, lifted and carried heavy items. Medical records in evidence support Claimant's testimony that he gained weight after the work injury because his physical activity became very limited.

1. Claimant told Dr. Milne his knee was too painful to walk or ride a bike.

2. Physical therapy records before the COPD aggravation show right knee limited range of motion, pain complaints and a moderate limp.

3. Dr. Uppal's records show Claimant gained 50 pounds between April 5, 2011 and July 5, 2011.

4. Although Claimant's right knee improved after the TKR, he continued to have pain, swelling and take pain medication in November 2012 when he last saw Dr. Lux.

1. Claimant is permanently and totally disabled due to the combined effect of his primary injury, preexisting medical conditions to his low back, cervical spine, right knee, and heart, and aggravation of his preexisting COPD from the primary injury. Claimant met his burden.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 10-064649

burden to prove he is unable to compete in the open labor market based on the evidence discussed above.

1. The parties did not stipulate to a date Claimant reached MMI. Dr. Lux's records show he last saw Claimant on November 6, 2012 and planned to see him again in two months (About January 7, 2013). At the hearing, Claimant testified Dr. Lux told him in January 2013, that he did not need to return. Based on this evidence, Claimant reached MMI on January 7, 2013 and disability benefits should have begun January 8, 2013.

1. The Employer paid $418.58 per week for 57.60 weeks. 5 The SIF is liable for a weekly differential of 369.38 for 57.60 weeks, and thereafter the sum of 787.96 per week for Claimant's lifetime.6

1. The award is subject to a lien in favor of Claimant's attorney for legal services rendered, as outlined in this award.

I certify that on 2-15-19 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 __________________________

Made by: __________________________

Suzette Carlisle

Administrative Law Judge

Division of Workers' Compensation

5 160 weeks x 36% = 57.60 weeks of disability for the primary injury.

6 787.96 (Claimant's PTD Rate) - 418.58 (Claimant's PPD Rate) = $369.38 SIF differential.

WC-32-R1 (6-81)

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