Ronald Williams v. Bill Williams Construction Company

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

**Injury No.:** 11-027708

**Employee:** Ronald Williams

**Employer:** Bill Williams Construction Company (Settled)

**Insurer:** Auto Owners Insurance Company (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. Having reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The administrative law judge determined that employee suffered a 45% permanent partial disability of the right upper extremity as a result of a right shoulder injury employee suffered on April 13, 2011. The administrative law judge also found that employee is permanently and totally disabled based on the combination of the April 2011 injury and the effects of employee's preexisting disabling conditions.

On appeal, the Second Injury Fund argues that the administrative law judge erred, as a matter of law, in finding, as a factual matter, that employee is permanently and totally disabled, because § 287.190.6(2), RSMo, provides, in relevant part, that "[p]ermanent partial disability or permanent total disability shall be demonstrated and certified by a physician." The Second Injury Fund argues that because employee did not present an opinion from a doctor specifically stating that he is unable to perform any work, this statutory provision requires that we deny the claim for permanent total disability benefits. We disagree, for the following reasons.

We first note that § 287.020.6, RSMo, provides as follows: "The term 'total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The Missouri courts have identified the following test for permanent total disability:

Injury No.: 11-027708

Employee: Ronald Williams

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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.

*Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 411 (Mo. App. 2011) (citation omitted).

When the question is the nature and extent of permanent disability, the courts have consistently instructed that the "degree of disability is not solely a medical question." *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 52 (Mo. App. 2007).

The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.

*Elliott v. Kan. City School Dist.*, 71 S.W.3d 652, 657 (Mo. App. 2002) (citation omitted).

Turning to § 287.190.6(2), RSMo, we next observe that this section does not specifically require that an employee advance an opinion from a doctor that he or she is permanently and totally disabled; instead, the legislature used the words "demonstrated" and "certified" to describe the type of medical proof that will support a claim for benefits premised on permanent disability. Turning to our dictionary, we find the following definitions, set forth in relevant part:

**Certify**

1. to attest especially authoritatively or formally: CONFIRM
2. to inform with certainty: ASSURE

**Demonstrate**

1. a. **INDICATE**: point out b. to manifest clearly, certainly, or unmistakably: show clearly the existence of
2. a. to make evident or reveal as true by reasoning processes, concrete facts and evidence, experimentation, operation, or repeated examples
3. b. to illustrate or explain in an orderly and detailed way especially with many examples, specimens, and particulars[.]

*Webster's Third New International Dictionary* 367, 600 (2002).

Injury No.: 11-027708

Employee: Ronald Williams

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The foregoing does not, in our view, imply or mandate any requirement that a medical expert in a workers' compensation case specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied. Rather, it would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the extent of an employee's physical functioning by making findings on examination, rendering diagnoses as to the employee's medical conditions, and identifying restrictions or recommendations as to the employee's physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee's physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo. App. 1999) (citations omitted).

Consistent with the well-established test for permanent total disability in Missouri set forth above, a proper analysis of employability requires not only the medical identification of physical limitations but also consideration of issues such as job requirements, job availability, transferable skills, and prospects for retraining. In many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment. Our courts have consistently recognized this reality, and a number of decisions have, in unmistakable fashion, affirmed and defended the discretionary province of the fact-finder from overly technical challenges to the sufficiency of a party's medical evidence:

> [T]he record need not contain a single expert opinion addressing the entirety of a claimant's conditions. Rather, the Commission may consider the opinions of multiple experts of differing specialties to arrive at its factual determination as to the parts and sum of a claimant's conditions.

*Patterson v. Cent. Freight Lines*, 452 S.W.3d 759, 767 (Mo. App. 2015).

SIF contends that the Commission erred as a matter of law in awarding permanent and total disability benefits by failing to apply the appropriate statutory standard in its finding that Majors is permanently and totally disabled. Under Section 287.190.6(2) RSMo "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." In its finding of permanent and total disability, the Commission was authorized to rely upon the substance of Dr. Stuckmeyer's medical conclusions as to the severity of Majors' knee injury and physical restrictions thereto in combination with his severe pre-existing knee disability and the necessity for future total knee replacement. Though Dr. Stuckmeyer may not have used "magic words" like "certify" and "permanent and total disability," the clear and plain import of Dr. Stuckmeyer's testimony is that Majors' workplace accident

Injury No.: 11-027708

Employee: Ronald Williams

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was the prevailing factor in causing an extremely debilitating and continuing disability severely restricting Majors' ability to perform the functions of his previous employment or any similar employment in the future. ... SIF's attempt to foist a hyper-technical "magic words" test upon Dr. Stuckmeyer's testimony violates the dictate of our Supreme Court in *Malam v. Dep't of Corr.* directing us to consider the words of a medical expert and, in context, apply "the plain meaning of the medical expert's testimony." This is precisely what the Commission has done in interpreting the plain meaning of Dr. Stuckmeyer's testimony and the Commission has not erred in doing so.

*Treasurer of Mo. v. Majors*, 506 S.W.3d 348, 352-53 (Mo. App. 2016), citing *Malam v. Dep't of Corr.*, 492 S.W.3d 926 (Mo. 2016).

Consistent with the definition of "total disability," we interpret § 287.190.6(2)'s mandate that permanent total disability "be demonstrated and certified by a physician" to require that a physician show clearly and attest as being true the employee's medical condition and resulting work-related restrictions post injury. Once a physician does that, the requirement of § 287.190.6(2) is satisfied, and it is within the Commission's expertise to determine whether the employee, with the medical conditions and physical limitations confirmed by the physician, is employable.

*Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund*, 570 S.W.3d 110, 116 (Mo. App. 2018)(citing *Patterson*, 452 S.W.3d 759, 767 (Mo. App. 2015).

The doctor in *Moss* opined that

> Mr. Moss has very limited work capabilities. His ability to work would be limited to a sedentary occupation that requires mostly sitting, with the ability to change positions as needed. He will not be capable of repetitive right upper extremity work. His weight capability should be no more than 10 pounds from waist to shoulder using both hands. He is not capable of above shoulder work with his right arm. He is not capable of repetitive bending from the waist more than on an occasional basis, from his previous lumbar spine injury.

*Moss*, 570 S.W.3d at 113-14.

Even though the doctor in *Moss* actually opined that the employee could perform sedentary work, the court concluded:

> This does not suggest, however, that the doctor concluded that Moss was, in fact, employable and, therefore not permanently and totally disabled. Rather, this evidence simply reflects the type of work restrictions applicable to Moss after his injuries, if he were employable.

Injury No.: 11-027708

Employee: Ronald Williams

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The court then upheld the Commission's decision by stating:

> In exercising its expertise to determine the technical question of employability, the Commission credited not only the medical opinion of Dr. Hopkins but also the testimony of two vocational experts, both of whom concluded that Moss's inability to perform repetitive motions with his right (dominant) hand and his need to change positions frequently combined to preclude him from competing in the open labor market.

The record reflects that the Commission properly applied the test for determining permanent total disability and considered Moss's employability. Specifically, the Commission was convinced both by Dr. Hopkins's testimony that Moss's combined shoulder, elbow, and low back conditions were serious enough to constitute a hindrance or obstacle to employment for the purposes of § 287.190.6(2) and by the testimony of two vocational experts who found Moss to be permanently and totally disabled.

As applied to the facts in this matter, we also find that employee in this matter satisfied the requirements of § 287.190.6(2), RSMo. Dr. Volarich clearly showed and attested to employee's medical condition and resulting work-related restrictions post injury. Dr. Volarich rated employee's shoulder at a 75% permanent partial disability and employee's left eye at a 100% permanent partial disability. Dr. Volarich further stated that both employee's primary injury and preexisting injury were a hindrance to his employment or reemployment and that the combination of employee's disabilities created "a substantially greater disability than the simple sum or total of each separate injury/illness." Tr., p. 135. Dr. Volarich further recommended that employee only use his right arm to attempt to perform activities of daily living and as a "support strut whenever he does any type of lifting or physical activity." Tr., p. 136.

At that point, it fell to the Administrative Law Judge to evaluate the persuasive value of this evidence and to use his expertise to determine the technical question of employability. The Administrative Law Judge found persuasive vocational expert Ms. Delores Gonzalez's opinion that employee was permanently and totally disabled. We conclude that this decision was sound and in compliance with the requirements of § 287.190.6(2), RSMo.

**Conclusion**

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

The award and decision of Administrative Law Judge Edwin J. Kohner is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

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

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Ronald Williams

Injury No.: 11-027708

Before the

Division of Workers' Compensation

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

Checked by: EJK

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: April 13, 2011
5. State location where accident occurred or occupational disease was contracted: St. Louis 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: The claimant, a carpenter, suffered a right shoulder injury while using a claw hammer to pry nails from oak sheeting on a roof.
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: Right Shoulder
14. Nature and extent of any permanent disability: 45% permanent partial disability to the right shoulder
15. Compensation paid to-date for temporary disability: $61,428.51
16. Value necessary medical aid paid to date by employer/insurer: $163,699.31

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Williams

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,153.85
3. Weekly compensation rate: $\$ 769.23 / \ 418.58
4. Method wages computation: By agreement

1. Amount of compensation payable:

Previously Settled

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential ( $\ 350.65 ) payable by SIF for 104.4 weeks beginning

April 8, 2014, and, thereafter, $\ 769.23 for Claimant's lifetime

TOTAL:

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Todd I. Muchnick, Esq.

Employee: Ronald Williams

Injury No.: 11-027708

Dependents: N/A

Employer: Bill Williams Construction Company (Settled)

Additional Party: Second Injury Fund

Insurer: Auto Owners Insurance Company (Settled)

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/

This Workers' Compensation case raises several issues arising out of a work-related injury, in which the claimant, a carpenter, suffered a right-shoulder injury while using a claw hammer to pry nails from oak sheeting on a roof. The sole issue for determination is Second Injury Fund liability. The evidence compels an award for the claimant for permanent total disability benefits from the Second Injury Fund.

At the hearing, the claimant testified in person and offered a deposition of Delores E. Gonzalez, a medical report from David T. Volarich, D.O., a copy of the claimant's settlement with the employer in this case, a copy of records from the Division of Workers' Compensation, and voluminous medical records. The defense offered depositions of the claimant and Benjamin D. Hughes.

All objections, not previously sustained, are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On April 13, 2011, this, then, 61-year-old claimant, a carpenter, suffered a right-shoulder injury while using a claw hammer to pry nails from oak sheeting on a roof. The claimant testified that using a claw hammer to remove building material, his right arm slipped and his right shoulder "popped." The claimant went to his primary care physician and obtained a right shoulder MRI. Based on the MRI findings, the claimant went to Dr. Ritchie and Dr. Howard, orthopedic specialists. The claimant's course of treatment resulted in three surgeries to his right shoulder. The first surgery was on May 5, 2011, and included an attempted repair of a labral tear, a rotator cuff tear, and a biceps tendon tear. A course of physical therapy followed the initial shoulder surgery. Due to persistent pain, the claimant underwent a second right shoulder surgery on December 14, 2011, involving another rotator cuff repair with latissimus transfer. Due to continuing symptoms, the claimant subsequently underwent a third surgery on his right shoulder on December 21, 2013. This third surgery was a right shoulder reverse total shoulder arthroplasty, or shoulder replacement.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Williams

Injury No.: 11-027708

The claimant testified that he has significantly reduced ability to perform certain work duties and functions, including: avoiding walking on trusses; framing; uneven surfaces; performing work off the ground; and striking a nail with a hammer. See claimant deposition, page 24. The claimant also testified about the effect on his ability to drive, especially at nighttime and in urban settings, and in high traffic situations. The claimant testified, that even though he has not attempted to do so, he has avoided nighttime driving. The claimant noted that he did not operate construction machinery, such as a skid-steer loader. The claimant testified that he cannot work levers on a zero-turn lawnmower. See claimant deposition, page 75. He also described difficulty in getting consistent sleep because of right shoulder positional pain. He is no longer able to hunt or fish because of his injuries. Neighbors help him perform most heavy maintenance at his residence, and friends drive him if he has to go to the St. Louis Metropolitan area or travel at night. The claimant testified that he has not worked in any capacity since April 13, 2011.

The claimant has significant limitations in lifting and range of motion in his right upper extremity, with almost complete loss of use of the right arm above his mid-chest level. He is unable to use his right arm to access his right rear pants pocket. In 2017, the claimant settled his Workers' Compensation claim with his employer on the basis of a 45% permanent partial disability to his right shoulder. See Exhibit 8.

Preexisting Conditions

In 2006, the claimant sustained a detached retina in his left eye, when one of his grandchildren threw a hard rubber ball that struck him in his left eye. The claimant underwent several surgeries to attempt to correct the left eye injury, but has been left with 100% loss of vision in the left eye. The claimant testified that his left eye injury was an obstacle and hindrance to his employment up to the date of the 2011 right-shoulder injury. The claimant testified about the changes to his work abilities and the inability to perform certain work duties and functions. These included: inability to walk on trusses, framing and uneven surfaces, performing elevated work, and striking a nail with a hammer. The claimant also testified about the effect on his ability to drive, especially at nighttime and in urban settings, and in high traffic situations. He was also unable to operate construction machinery, such as a skid-steer loader. The claimant testified that he is very limited in his daily activities, including difficulty in getting consistent sleep because of right shoulder positional pain, resulting in significant sleep deprivation. He is no longer able to hunt or fish because of his injuries. Neighbors help him perform most heavy maintenance at his residence, and friends drive him if he has to go to St. Louis or travel at night.

This, now, 69-year-old claimant has a high school education and an honorable discharge from the United States Marine Corps. He worked in construction-related jobs for his entire adult life. He currently resides outside DeSoto, Missouri, a rural community 50 miles south of St. Louis. The claimant has not worked in any capacity since April 13, 2011. He testified that he did not think that he was able to compete in the open labor market. When asked if the claimant could perform the job duties of the security guards in the Wainwright State Office Building lobby, the claimant stated that he probably could. He was previously approved for Social Security disability benefits.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Williams

Injury No.: 11-027708

David T. Volarich, D.O.

On February 22, 2016, Dr. Volarich examined the claimant after reviewing the claimant's medical records and taking a medical history from the claimant. He found that the claimant suffers from a 50% loss of range of motion in the right shoulder, with discernable crepitus and atrophy in the shoulder joint. Dr. Volarich opined that the claimant should refrain from lifting with the right shoulder away from his body, and that the claimant's work injury of April 13, 2011, resulted in permanent partial disability of 75% of the right shoulder. Dr. Volarich also opined that claimant's preexisting left eye injury resulted in 100% loss of the left eye. Dr. Volarich also opined that the combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate injury, and a loading factor should be added. See Exhibits 5, 6, 7 and 8.

Dr. Volarich recommended permanent restrictions in reference to the primary injury and his preexisting left eye disability. Dr. Volarich recommended that he "only use the right arm to attempt to perform activities of daily living and use the right arm as a support strut whenever he does any type of lifting or physical activity. He should never try to lift with the right arm away from his body." See Dr. Volarich report, page 8. With reference to the left eye, Dr. Volarich agreed with the claimant having restrictions on his driver's license to need a mirror, to not drive in city traffic, and noted that the claimant has to turn his torso to look to the left side. See Dr. Volarich report, page 8.

Delores Gonzalez

Delores Gonzalez, a vocational expert, evaluated the claimant after reviewing the claimant's medical file and opined that the claimant is permanently totally disabled from a vocational standpoint. Her opinion took into consideration the claimant's inability to work in any capacity. Ms. Gonzalez opined that the claimant is permanently and totally disabled due to a combination of the disabilities from the 2006 left-eye injury and the 2011 right-shoulder injury. See Exhibits 2-4.

Benjamin Hughes

Benjamin Hughes, a vocational expert, evaluated the claimant, based on the claimant's medical records and various depositions, and opined that the claimant is still employable in the open labor market. See Exhibit I. In the alternative, Mr. Hughes opined that if a trier of fact found that the claimant is permanently and totally disabled, then the cause would be due to the primary injury in isolation. See Exhibit I, 2/27/18 Report, p. 10.

SECOND INJURY FUND

"Section 287.220 creates the Second Injury Fund and sets forth when and in what amounts compensation shall be paid from the [F]und in '[a]ll cases of permanent disability where there has been previous disability.'" For the Fund to be liable for permanent total disability benefits, the claimant must establish that: (1) he suffered from a permanent partial disability as a result of the last compensable injury, and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. Section 287.220.1. The Fund is liable

WC-32-R1 (6-01)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Williams

Injury No.: 11-027708

for the permanent total disability only after the employer has paid the compensation due for the disability resulting from the later work-related injury. Section 287.220.1 ("After the compensation liability of the employer for the last injury, considered alone, has been determined ... the degree or percentage of ... disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined..."). Thus, in deciding whether the Fund is liable, the first assessment is the degree of disability from the last injury considered alone. Any prior partial disabilities are irrelevant until the employer's liability for the last injury is determined. If the last injury, in and of itself, resulted in the employee's permanent, total disability, then the Fund has no liability, and the employer is responsible for the entire amount of compensation. ABB Power T & D Company v. William Kempker and Treasurer of the State of Missouri, 236 S.W.3d 43, 50 (Mo.App. W.D. 2007).

The test for permanent total disability is the worker's ability 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. Id. at 48.

Based on the entire record, this, then, 61-year-old, claimant, a carpenter, suffered a compensable work-related injury in 2011, resulting in a 45% permanent partial disability to the right shoulder (104.4 weeks). At the time the last injury was sustained, the claimant had a 100% preexisting permanent partial disability to the left eye (140 weeks). The permanent partial disability from the last injury combines with the preexisting permanent partial disability to create an overall disability that exceeds the simple sum of the permanent partial disabilities by 10%.

The credible evidence establishes that the last injury, combined with the preexisting permanent partial disabilities, causes greater overall disability than the independent sum of the disabilities. The claimant testified credibly about significant ongoing complaints associated with these injuries. The claimant changed how he performs many activities, both at home and at work, due to the combination of the problems. The claimant testified that as a result of the combination of the problems, his limited hand-eye coordination impacted such tasks as driving and using a hammer at work and at home.

The central question in this case is, whether the claimant is employable in the open labor market, given the limitations and restrictions from his medical conditions when combined with his age, education, and past relevant work history. Two qualified forensic vocational experts reviewed the claimant's medical records, work history, and deposition, and rendered different conclusions. Ms. Gonzalez opined that the claimant was unemployable in the open labor market based on the claimant's medical restrictions, age, education, and past relevant work history. She reasoned that given Dr. Howard's restrictions of no lifting greater than forty pounds, with very limited overhead and no climbing with the right shoulder, the claimant would be capable of a limited range of sedentary and light-exertional work and an extremely limited range of medium-exertional work. Dr. Howard was the treating surgeon.

However, considering Mr. Williams' age, education, work history, and residual functional capacity in light of these restrictions, it is my vocational opinion that Mr. Williams is not employable in the open labor market. ... It is important to understand that Mr. Williams would face extraordinary resistance in the

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Williams

Injury No.: 11-027708

workforce. There are several factors that present a hindrance to his potential for either employment or vocational rehabilitation: His age, his lack of post-secondary education, his left eye blindness, and his work experience limited to heavy manual labor. ... Mr. Williams would be competing for jobs with individuals who are generally more educated and as the pool of candidates is larger for the unskilled positions, employers are apt to choose candidates without significant restrictions. This is a significant hindrance to his ability to find work and further greatly erodes his already reduced occupational base. See Exhibit 2.

On the other hand, Benjamin Hughes reviewed the restrictions regarding the claimant's right shoulder. He concluded that the claimant is employable in positions in the medium level based on Dr. Howard's restrictions, or at the light level, assuming Dr. Volarich's restrictions. See Hughes' deposition, page 17. He opined that given those restrictions, the claimant would be successful as a construction company estimator, building repair systems supervisor, cashier, storage facility rental clerk, parking lot attendant, surveillance system monitor, usher, security guard, merchant patroller, gate guard, ticket sales/taker, and some inside sales positions for home renovation. See Hughes report, page 9.

In some respects, it is difficult to reconcile those opinions. However, it appears that Mr. Hughes addressed the restrictions from the physicians based on the testimony, and did not consider the additional factor of the claimant's preexisting blindness in his left eye. Based on Mr. Hughes' analysis, one must conclude that the claimant is employable in the open labor market given only the restrictions from either Dr. Howard or Dr. Volarich. Thus, the conclusion that the claimant suffered a 45% permanent partial disability to his right shoulder from the 2011 work-related injury bears substantial credibility.

On the other hand, Ms. Gonzalez expressly concludes that the claimant is unemployable based on his age, educational attainment, past relevant work history, and the limitations and restrictions from both the 2011 work-related injury and his preexisting blindness in his left eye. See Exhibit 2, page 15.

Based on this analysis, it seems credible to conclude that neither of the claimant's disabilities from his left-eye blindness, nor his right-shoulder injury in 2011, were sufficient in themselves to result in the claimant's unemployability, but the combination of the two disabilities appear to synergistically combine to result in the claimant's lack of employability when combined with his age, educational attainment, and past relevant work history. Mr. Hughes appears to totally discount the claimant's disability from his loss of vision in his left eye. Mr. Hughes list of occupational titles, for which the claimant is qualified, is consistent with the claimant's restrictions and limitations from his 2011 right-shoulder injury. The claimant seems to be willing, at some points, to consider occupations from that list based on his testimony at the hearing. Although a security guard, for instance, can function with restrictions in his shoulder range of motion, a loss of significant vision and depth perception can result in the security guard shooting the wrong person or not detecting contraband. The same is true for the other occupations offered by Mr. Hughes. In addition, many other occupations that Mr. Hughes proposed rely on math skills, such as any of the retail positions listed. Ms. Gonzalez' analysis of the claimant's math skills at the fifth-grade level would suggest that his appeal to employers in

WC-32-R1 (6-81)

Page 7

Employee: Ronald Williams

Injury No.: 11-027708

Those fields would be severely constrained. Given these observations, Ms. Gonzalez' analysis appears to be more consistent with the record in this situation.

Therefore, the evidence compels a finding of permanent total disability as a result of the combination of the claimant's disabilities from his 2011 work-related shoulder injury and his preexisting blindness in his left eye. The weight of the evidence supports a finding that the claimant is unemployable in the open labor market and therefore permanently and totally disabled. Clearly, the nature and extent of the two injuries and disabilities, together with his age, education, and past relevant work history, present a worker that would not be competitive in the open labor market due to the synergistic combination of the claimant's permanent partial disability from the 2011 shoulder injury and his preexisting permanent partial disability to his left eye. No employer would be reasonably expected to hire the claimant in his current physical condition. Based on the entire record, the Second Injury Fund bears liability for permanent total disability benefits.

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I certify that on **11-1-13** 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.P.**

**M** Made by: **S. W. KOHNER**

Administrative Law Judge

Division of Workers' Compensation

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