James Atchison v. Tyson Poultry, Tyson Foods, Tyson Sales and Distribution

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 07-087687

**Employee:** James Atchison

**Employer:** Tyson Poultry, Tyson Foods, Tyson Sales and Distribution (settled)

**Insurer:** Self-Insured (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 version of Section 287.220.1, 1 RSMo, applicable to this claim provides that in order to trigger Second Injury Fund liability, employee must show that he "[1] has a preexisting permanent partial disability whether from compensable injury or otherwise, [2] of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and ... receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability ... caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself[.]"

The Second Injury Fund argues that "[f]und liability is only triggered 'by a finding of the presence of an actual and measurable disability at the time the work injury is sustained.'" *Appellant's Brief, p. 13* (quoting *Portwood v. Treasurer of Mo.-Custodian of the Second Injury Fund*, 219 S.W.3d 289, 292 (Mo. App. 2007)). However, Missouri case law provides that a preexisting disability does not need to be manifest prior to the primary injury. See *Harris v. Ralls Cty, No. ED107606, p. 50* (October 1, 2019) ("[A] work accident may be the prevailing factor in causing an injury sustained due to the aggravation of preexisting, asymptomatic degenerative condition. It was error for the Commission to find to the contrary.").

1 In his Award, the administrative law judge erroneously cited § 287.220.2, RSMo. We find that this was a simple, typographical error.

Injury No.: 07-087687

Employee: James Atchison

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The language "actual and measurable" comes from the Missouri Court of Appeals, Eastern District decision in *Messex v. Sachs Elec. Co.*, 989 S.W.2d 206, 214 (Mo. App. 1999).

The Eastern District later held that the Second Injury Fund's reliance on that language is misplaced because such language only referred to liability for permanent partial disability and not for permanent total disability. The court stated,

> On appeal, the Fund argues that a claimant's preexisting disabilities must be "actual and measurable" in order to establish Fund liability for PTD benefits. We disagree.

In *Leutzinger v. Treas. of Missouri, Custodian of Second Injury Fund*, 895 S.W.2d 591, 592-93 (Mo. App. E.D. 1995), this Court addressed a 1993 amendment to Section 287.220.1 by the General Assembly, which superseded the "industrial disability" standard formulated by the courts to determine which prior disabilities would trigger Fund liability. Pursuant to the amendments, the court found:

> [T]he proper criteria for determining whether a preexisting injury is serious enough to trigger the provisions of § 287.220 RSMo Supp. 1993 are as follows: The preexisting injury need only be a "hindrance or obstacle to employment or to obtaining reemployment." Accordingly, we expect that any preexisting injury which could be considered a hindrance to an employee's competition for employment in the open labor market should trigger second injury fund liability. Id. at 593. While the holding of *Leutzinger* is universally accepted by Missouri courts, the Fund, citing *Messex*, argues that the preexisting disability must also be "actual and measurable" to trigger Fund liability for PTD benefits. This Court disagrees because this language from *Messex* refers exclusively to the calculation of PPD benefits.

*Lewis v. Treasurer of Mo.*, 435 S.W.3d 144, 159-160 (Mo. App. 2014).

Therefore, an asymptomatic disability may still trigger Second Injury Fund liability in permanent total disability matters if such asymptomatic disability is a hindrance or obstacle to employment or to obtaining reemployment. The Missouri Court of Appeals, Western District agrees that it is the disability's potential that truly matters, instead of the past manifestation.

> [T]he proper focus of the inquiry as to the nature of the prior disability is not on the extent to which the condition has caused difficulty in the past, it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

*Loven v. Greene County*, 63 S.W.3d 278, 287 (Mo. App. 2001).

MNKOI 0000811657

Injury No.: 07-087687

Employee: James Atchison

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Here, the administrative law judge found persuasive Dr. Garth Russell, who measured, or rated, employee's preexisting disability at 65-75%. Dr. Russell found that employee is unable to walk on his heels and has muscle spasms in his back. In his deposition, Dr. Russell explained that the rating indicated that the primary injury aggravated and accelerated employee's degenerative disc disease that he had in his back. When further explaining the rating, Dr. Russell focused on the disability's potential and stated that the rating "accounts for the progressive pain that [employee] has in his back, the progressive changes that [are] occurring in his back, and the effect on his future ability for utilization of his back physically." Tr., p. 228.

We also find persuasive Dr. Russell's opinion that employee had a preexisting disability that existed at the time of the primary injury. We further agree that the preexisting disability was serious enough to be a hindrance or obstacle for future employment or reemployment due to its potential to combine with another work-related injury to cause a greater degree of disability than would have resulted absent the preexisting disability.

**Conclusion**

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

The award and decision of Administrative Law Judge Kevin A. Elmer 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.

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

Given at Jefferson City, State of Missouri, this 16th day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Corgeje, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

**Employee:** James Atchison

**Injury No. 07-087687**

**Dependents:** N/A

**Employer:** Tyson Poultry, Tyson Foods, Tyson Sales and Distribution (Settled)

**Insurer:** Self-Insured

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

**Hearing Date:** October 29, 2018

**Checked by:** KAE

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: July 8, 2007

1. State location where accident occurred or occupational disease was contracted: St. Louis City, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was moving fresh chickens on pallets into customer's cooler when he slipped on ice landing on his tailbone.

1. Did accident or occupational disease cause death? No

**Date of death?** N/A

1. Part(s) of body injured by accident or occupational disease: Low back, body as a whole

1. Nature and extent of any permanent disability: Permanently and totally disabled

1. Compensation paid to-date for temporary disability: $12,723.35

1. Value necessary medical aid paid to date by employer/insurer? $27,311.29

1. Value necessary medical aid not furnished by employer/insurer? Employer has agreed to provide an MSA or keep medical open.

1. Employee's average weekly wages: Maximum, per stipulation of the parties.

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

1. Weekly compensation rate: $742.72 TTD/PTD and $389.04 PPD

1. Method wages computation: Stipulation by the parties.

1. Amount of compensation payable: Stipulation for Compromise Settlement between the Employer/Insurer and Employee in the amount $100,000 was approved by this ALJ on November 26, 2018.

1. Second Injury Fund liability: Yes

The SIF shall pay the weekly differential for PPD paid by employer. (742.72 PTD - 389.04 PPD or $353.68) for the 140 weeks of PPD, beginning January 3, 2008 and, thereafter for Claimant's lifetime at the full PTD rate of $742.72 per week. However, this payment is also subject to a credit arising out of the civil judgment.

Employee has been PTD since on or about January 3, 2008. However, Employee received a verdict in his civil action with a net recovery after attorney's fees and expenses, in the amount of $406,543.13.

The total of the differential due by the Fund for the first 140 weeks is (140 x 353.68), or 49,515.20, must be deducted from the full credit to determine the number of remaining weeks of credit. (406,543.13 - 49,515.20 = 357,027.93). That figure, divided by 742.72, equals an additional 480 5/7 weeks of compensation credit. The Second Injury Fund's liability does not commence until the total of 620 5/7 weeks of compensation has expired calculated from the stipulated date of January 3, 2008 or, on November 26, 2019. Commencing that date, SIF will owe $742.72 each week for life.

1. Future requirements awarded: None

Future PTD payments are 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: Thomas C. DeVoto, The DeVoto Law Firm.

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

**Employee:** James Atchison

**Injury No. 07-087687**

**Dependents:** N/A

**Employer:** Tyson Poultry, Tyson Foods, Tyson Sales and Distribution, Inc.

**Insurer:** Self-Insured

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

**Hearing Date:** October 29, 2018

**Checked by:** KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 29, 2018. The record was left open for thirty days in order to afford the parties opportunity to submit additional evidence. Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about November 28, 2018.