Phillip Guinn v. Solo Cup Company

**Injury No.:** 06-136330

**Employee:** Phillip Guinn

**Employer:** Solo Cup Company (Settled)

**Insurer:** Zurich American Insurance Company (Settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

On June 20, 2019, the Missouri Court of Appeals, Southern District, issued an opinion reversing and remanding the August 21, 2018, Final Award Denying Compensation of the Labor and Industrial Relations Commission (Commission) in this workers' compensation case. See *Phillip Guinn v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund*, SD35694 (June 20, 2019). By mandate filed July 9, 2019, the Court confirmed its decision to reverse and remand this matter to the Commission with directions for further proceedings consistent with the finding that it was reasonably discoverable to Guinn as of January 17, 2013, that he had suffered the occupational disease of tinnitus based on his exposure while employed at Solo Cup (employer); therefore the two-year statute of limitations for claims against the Second Injury Fund (Fund) began to run on that date. *Id.* at page 12.

Claimant filed a claim against employer/insurer on January 17, 2013, alleging hearing loss and tinnitus due to harmful noise. The parties' settlement of the claim was approved on April 11, 2014, for a lump sum (14,500.00) prorated as 10.56 a week relative to tinnitus. On May 7, 2014, employee filed a claim against the Fund, based on a primary injury of hearing loss and tinnitus, and a preexisting disability referable to Parkinson's disease. The matter went to hearing on January 26, 2017. The administrative law judge issued an Award against the Fund and in favor of employee on April 7, 2017, at the rate of $416.67 per week for life, following the completion of employer's liability after 54.41 weeks after March 1, 2006, when he reached maximum medical improvement. The Treasurer of Missouri, as Custodian of the Fund filed an application for review before the Commission on April 17, 2017. The Commission issued a Final Award Denying Compensation reversing the administrative law judge's award on August 21, 2018, on the basis that the statute of limitations for filing a claim against the Fund had not been met. The Missouri Court of Appeals has reversed that ruling of the Commission. *Id.*

The Missouri Court of Appeals has ordered that the statute of limitations in this matter began to run against the Fund, as of January 17, 2013. Therefore, employee's claim against the Fund, filed on May 7, 2014, is within the two year window allowed by § 287.063 RSMo and is timely. The claim against the Fund referenced both his claims for hearing loss and tinnitus. Both these occupational disease claims were filed timely.

Because the statute of limitations has been met pursuant to ruling by the Court of Appeals, we address that issue no further and we proceed to the merits.

Injury No.: 06-136330

Employee: Phillip Guinn

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Employee's date of birth is December 20, 1949, making him about 56 years old when he left his employment with employer on March 1, 2006. Employee began working with employer in February 1987. Employee was first diagnosed with mild Parkinson's disease on August 18, 2003. As of January 2006, the diagnosis changed to Stage II, Parkinson's disease. Employee applied for and received Social Security disability benefits shortly after retiring from employer in 2006, apparently based on Parkinson's disease. Transcript, page 565. Employee's disability from Parkinson's disease has remained relatively the same since March 1, 2006.

Employee developed symptoms of Parkinson's disease as early as 2002, and was diagnosed with the condition in August 2003. He continued to work for the employer until March 1, 2006. In the last year or more of his employment, employee was highly accommodated by the employer due to his declining health, tremors, weakness, lack of balance, and difficulty concentrating. At times, employee was present at work but doing very few of the physical tasks. He was unable to do certain tasks requiring dexterity and coordination. In fact, he acknowledged that in the last year he would show up for work and essentially stand around. Even the lesser duties, such as vacuuming and picking up things from the floor or stacking cups were difficult for employee to do. Employee indicated that all his job duties in 2006 were affected by his muscle spasms.

Fatigue, muscle weakness, muscle spasms, tremors, trouble walking due to balance, tenseness of his left arm, fatigue, a sensation of pins going up his left side, lack of dexterity, dropping things, and slower reflexes were symptoms employee described that inhibited his ability to work in the last year of employment. He also indicated that he would have to rest after walking about 60 yards. When employee decided to retire in 2006, it was because he could no longer do the job due to symptoms of his Parkinson's disease. It was not because of any hearing loss or tinnitus. Hearing issues were not mentioned by employee in any discussion of his choice to retire, and were not identified by him to his employer as a reason for leaving at that time. In his deposition in 2015, employee indicated that he would arrive at work already feeling "muscle tired." Transcript page 54, 550-551. In his 2017 testimony, employee recalled it differently, describing being tired upon arrival at work, now attributing it in part to "a little bit of both; sleep deprivation because of hearing" and his muscle fatigue. Id. At the time he quit working, employee was concerned about his safety and the dangers posed in the workplace due to his Parkinson's symptoms.

Employee applied for Social Security disability at the time he left work in 2006. He was awarded benefits in 2006. Since employee mentioned no other significant health condition in 2006, and had indicated he quit work because of his illness, a reasonable inference is that the Social Security disability was granted on the basis of his Parkinson's disease. Employee has not worked, and there is no evidence of him attempting to work, since March 2006. Employee and his wife indicate the condition has remained about the same since then.

Injury No.: 06-136330

Employee: Phillip Guinn

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Dr. Allen Parmet, M.D., M.P.H., found that Parkinson's was clearly present in 2003, but there was evidence of it even before that year. The condition was deteriorating from 2003 to March 2006, with worsening tremors and other symptoms. In August-September 2005, Dr. Michael North, employee's treating physician, expressed the opinion that he did not believe employee would be able to continue working. Likewise, Dr. R. Scott Duff also opined in 2005 that the disease was affecting employee to the degree that he did not think employee "could maintain gainful employment anymore." Transcript page 775. As of January 2006, he noted employee's coordination and motor skills were affecting his work.

Both medical experts, Dr. Parmet and Dr. P. Brent Koprivica opined that employee is permanently and totally disabled, however, their opinions differ on why he is permanently and totally disabled. Dr. Koprivica opined that the disability rating referable to Parkinson's disease was 50% disability, body as a whole. We find Dr. Parmet's opinion persuasive that the Parkinson's disease is the reason for employee's permanent total disability. We find the opinion of Dr. Parmet to be credible and persuasive as to the nature, causes, and level of disability attributable to hearing disorders.

Primary Injury/Disability-Hearing Loss and Tinnitus

The record supports the finding that employee was exposed to harmful industrial noise in the employer's workplace for a prolonged period, and that he sustained some level of disability in the form of hearing loss.¹ During his employment, industrial hygiene studies established an excessive noise level was present in the extruder area where he worked. The noise level was rated at over 90 decibels. Employer began to require employees to wear ear plugs and ear muffs during the time of his employment. Employees had to remove the protection temporarily, when there was a need to hear co-workers. Aside from the use of hearing protection required for all employees, there was no evidence in the record that any special accommodation was requested or received by employee relative to hearing loss or tinnitus during the time of his employment.

Employee acknowledged that there was a decline in his hearing during his employment which reached a plateau in the early 2000's. Employee's test results included medical referrals in 2002, 2003 and 2005. Transcript, page 167. Employee's hearing impairment and tinnitus did not improve, by his own admission, after leaving the employer. Nevertheless, he did not seek any treatment for his hearing issues during his employment or thereafter until filing his workers' compensation claim against the employer.

After employee filed a claim against employer in January 2013, Dr. Koprivica conducted an independent medical examination on May 22, 2013. At that time, the doctor offered the opinion that employee's previously documented hearing loss was caused by occupational exposure while working for employer. He also opined that employee had tinnitus, causing disability, which related to work exposures while working for employer. Dr. Koprivica rated the disability to the body as a whole, referable to tinnitus, at 12.5%. Testing that was done in January 2013, showed a 2.45% hearing impairment bilaterally.

¹ The evidence, including testimony of Dr. Parmet and the testing results reviewed by Dr. Koprivica, also suggest that some of the hearing loss may be from age or other nonoccupational causes.

Injury No.: 06-136330

Employee: Phillip Guinn

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as designated according to the statutory guidelines. Employee was 63 years of age at the time, and it was suggested that employee could benefit from hearing aids. Employee did not obtain hearing aids until about two years after his May 2013 visit to Dr. Koprivica. He got them because he wanted to see if they would help.

Dr. Parmet, opined "the results of the objective evidence of speech-reception thresholds and discrimination scores cause me to believe, to a reasonable degree of medical certainty, that there is no measurable degree of Disability due to tinnitus." *Transcript*, page 791. He opined that no restrictions would be placed on employee due to this condition. He noted employee's audiogram of January 15, 2013, identified a speech-reception threshold score within normal range, (bilaterally), and his speech discrimination score was considered in the lower part of the "good" range, (bilaterally), effectively, "normal ability to discriminate words." *Transcript*, page 627. After reviewing medical records, he opined employee's hearing loss is probably "mixed-hearing loss" with contributions from age, Parkinson's, infections, and allergies, as well as occupational noise and that "any or all of these could be causing and contributing to tinnitus." *Id.*, at 790-791.

**Nature and Extent of Disability**

Dr. Parmet opined that employee was permanently and totally disabled in 2006 due to the Parkinson's disease alone. Dr. Parmet further opined that his hearing loss and subjective complaints of tinnitus could have been secondary to his Parkinson's disease, in whole or in part. *Transcript*, page 782. We find Dr. Parmet credible in these opinions.

Dr. Parmet opined that some of employee's documented hearing loss could be attributable to the sensorineural forms of hearing loss that can be associated with Parkinson's or other neurodegenerative diseases or conditions affecting the nerves in the organs of hearing due to infection, hereditary conditions, aging, medications, etc. This type of hearing loss is contrasted with conductive hearing loss, most often associated with noise exposure. *Transcript*, page 781, 787. Dr. Parmet noted that Parkinson's onset can be preceded by hearing loss or other non-motor neurologic loss (e.g. loss of smell, taste). The fact that employee's hearing declined during employment, despite wearing both earplugs and earmuffs raised the question in his mind that the hearing loss could derive from the progression of the illness.

Dr. Parmet acknowledged it was possible there may be some accommodated light duty, sedentary work that employee could perform. The doctor reasonably declined to offer any further opinion on this issue, indicating this would be a subject for a professional trained in vocational rehabilitation. There is no vocational rehabilitation evaluation in this record.

On May 22, 2013, Dr. Koprivica (employed by employee's attorney), indicated that employee had "profound industrial disability based on a diagnosis of Parkinson's disease prior to March 2006." *Transcript*, page 123. Dr. Koprivica lists a number of limitations strictly related to employee's Parkinson's symptoms - cannot do work requiring repetitive use of his upper extremities; the need to self-pace and rest

Injury No.: 06-136330

Employee: Phillip Guinn

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whenever necessary due to fatigue; inability to do work at a predictable pace. He assigned a 50% disability rating to the preexisting disease. Dr. Koprivica opined that employee would have difficulty with speech discrimination with any background noise and assigned permanent partial disability ratings of 2.45% disability to his hearing impairment, and a 12.5% to the body as a whole, referable to tinnitus.

Based on substantial evidence of the disabling effects of his Parkinson's disease, we find employee could not compete for work in the open labor market due to the effects of the Parkinson's disease alone.

**Conclusions of Law**

**Employee is Permanently and Totally Disabled as a Result of His Preexisting Condition Alone**

Total disability means the inability to return to any reasonable employment. The test being, whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. *Treasurer v. Cook*, 323 S.W. 3d 105, 110 (Mo. App. 2010).

The parties agree employee is permanently and totally disabled. They disagree as to the cause of the permanent total disability (or combination of disabilities) which renders him totally disabled.

Prior to March 2006, when employee left his work with the employer, he was experiencing difficulty with his Parkinson's disease in the performance of all his work duties and received significant accommodations that enabled him to continue in his employment. The Parkinson's disease is the preexisting condition upon which employee relies to establish his claim against the Second Injury Fund. However, the evidence amply supports the conclusion, that employee ceased working solely because of the debilitating effects of his Parkinson's disease.

There is no vocational rehabilitation evaluation at any time after March 2006 in this record, suggesting employee is capable of work, following his retirement prompted by his Parkinson's symptoms. We are not persuaded that, at the time employee retired in 2006, any employer reasonably could be expected to hire employee given the severity of his disabling Parkinson's symptoms. Those symptoms alone caused him to stop working in 2006. Those symptoms continued through the date of the hearing. There is no evidence in the record that employee was able to compete in the open labor market for any period of time after 2006. While employee's hearing issues could have been a factor in employee considering whether to attempt employment, the documented hearing loss is minimal.

Section 287.200.2 RSMo, provides that a Second Injury Fund claim must be predicated on a preexisting permanent partial disability, and employee must show it is the combination of the primary injury/disability (hearing loss/tinnitus) and the preexisting disability (Parkinson's disease) that together make him totally and permanently disabled. Employee has not persuasively shown that the disability from his hearing loss

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Issues combined with the disabling disease of Parkinson's to create a total disability. Rather, we find the evidence supports the conclusion that employee was permanently and totally disabled solely as a result of his preexisting condition alone.

"The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition." *Treasurer v. Cook*, 323 S.W. 3d 105, 110 (Mo. App. 2010). Employee received the benefit of significant accommodations from his employer up to his final days of employment in 2006, for his Parkinson's symptoms. No employer could reasonably be expected to hire employee given his physical limitations due to Parkinson's disease.

The claim against the Fund is denied, because employee has not met his burden of proof to show that his preexisting disability referable to Parkinson's disease combined with his primary injury or hearing loss, to make him permanently and totally disabled. Therefore, all other issues are moot.

Given at Jefferson City, State of Missouri, this **26th** day of September 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 06-136330

Employee: Phillip Guinn

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed.

As noted in my dissenting opinion of August 21, 2018, I would find the evidence and the law require a finding that employee had met the requirements of a timely filing of his claim against the Second Injury Fund, and that the award of permanent total disability against the Second Injury Fund was well-reasoned and supported. Therefore, I disagree with the majority in finding that the permanent total disability was only based on employee's preexisting Parkinson's disease.

Because the Commission majority has decided otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member