The parties asked the administrative law judge to resolve the following issues: (1) Did employee's preexisting condition of osteogenesis imperfecta constitute a hindrance or obstacle to employment for purposes of Second Injury Fund (SIF) liability; and (2) If so, is the SIF liable for permanent partial disability or permanent total disability.
In June 6, 2019, award, the administrative law judge made the following findings and conclusions:
- Employee was credible and worthy of belief.
- Employee sustained injury to his right knee as the result of the September 1, 2010, compensable injury. He settled his claim against employer for 45% permanent partial disability to his right knee plus consideration for future medical.
- Employee's preexisting osteogenesis imperfecta was not a hindrance or obstacle to his employment or reemployment prior to the September 1, 2010, injury and therefore did not constitute a preexisting permanent partial disability for purposes of SIF liability.¹
Employee filed a timely application for review with the Commission alleging the administrative law judge erred:
- By determining that employee's preexisting osteogenesis imperfecta and deformed right ankle were not a hindrance or obstacle to his employment for SIF purposes, in that the administrative law judge
¹ In dicta, the administrative law judge opined that if employee's preexisting osteogenesis imperfecta was considered a hindrance or obstacle to his employment or reemployment prior to the September 1, 2010, injury that the credible and substantial evidence showed employee capable of obtaining employment in the open labor market and therefore he would have awarded only permanent partial disability benefits.
Injury No. 10-069808
Employee: Anthony Davis
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should have determined whether these preexisting disabilities had the potential to be a hindrance or obstacle to employment.
- By finding there were no preexisting disabilities when the preponderance of the evidence established that the employee suffered fractured bones nearly thirty times, including while working and had physical and anatomical deformity to his right ankle caused by multiple fractures and that unrebutted expert medical testimony indicated that employee's osteogenesis imperfecta and deformed right ankle were preexisting disabilities that should have prevented employee from working at heights or from standing for prolonged periods, regardless of whether employee actually knew of or worked within those restrictions before his primary injury.
- In finding employee capable of employment in the open labor market where employee's claim involved a complex medical issue and the only medical opinion regarding employability was from Dr. Swaim, who opined that employee was permanently and totally disabled; in failing to consider pain, the synergistic interaction of employee's prior and work related disabilities, job availability within the relevant geographic location and the fact that employee was unable to return to work for nearly nine years at the time of hearing.
We reverse the administrative law judge's award and decision concluding that the SIF has no liability in this matter.
Findings of Fact
Employee has osteogenesis imperfecta, a genetic disorder, diagnosed when he was a child. He sustained twenty-two different broken bones between the ages of nine month and twenty-eight years. In the 1980's employee underwent Missouri Vocational Rehabilitation due to his osteogenesis imperfecta. Employee's right leg and ankle show marked deformity due to fractures that occurred prior to the September 1, 2010, work injury.² Employee limited the types of work he chose to pursue due to his brittle bone condition. For example, employee avoided jobs that would require him to run or jump.
Despite his physical limitations, employee performed all aspects of his heavy labor job in the plumbing field between 1995 and 2010, including climbing on ladders and lifting up to 100 pounds. Employee missed no time from work due to his ankle and had no broken bones in the twenty years before his September 1, 2010, work injury. However, employee remained constantly vigilant and cautious regarding his right ankle. Employee's right leg hurt when he stood or walked a lot or did a lot of carrying at work.
On September 1, 2010, employee sustained injury in the course and scope of his employment, when he slipped on some garbage on a basement floor and his right knee
2 Claimant's Exhibits 22, 23 and 24, Transcript 703-705.
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Employee: Anthony Davis
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went out of socket.³ After the injury, employee underwent surgery on his right knee. Following the surgery, he attempted to return to his former work but was unable to build up to his regular duties due to problems with his right knee. Employee's right ankle condition has worsened since the injury to his right knee. Subsequent to the work injury, employee obtained employment as an apartment complex maintenance man, but was unable to maneuver steps and found the job required more walking than he was able to do. He worked at that job for only about three weeks. Employee has not attempted or applied for any other jobs since his injury. He is certain he cannot return to his plumbing job but uncertain if he could return to any other job.
Medical Expert Opinions
Dr. Truitt L. Swaim
Orthopedic surgeon Dr. Truitt L. Swaim examined employee on November 21, 2011. Dr. Swaim's nine-page report documented his review of employee's medical history records and physical examination. He made the following conclusions regarding employee's permanent disability:
The occupational injury of September 1, 2010, Mr. Davis sustained working for Negri Plumbing, caused or was the prevailing factor to cause him to develop a 50% permanent partial disability of the right leg at the 160 week level or 80 weeks, due to the right knee condition.
Mr. Davis had a 40% permanent partial disability of the right leg at the 160 week level or 64 weeks, due to the preexisting right knee, tibia, and ankle conditions.
Mr. Davis had a preexisting 20% permanent partial disability of the body as a whole or 80 weeks due to osteogenesis imperfecta.⁴
Dr. Swaim opined that combined effects of these disabilities rose to a level that created an enhancement of employee's overall disability and that employee's overall disability was enhanced by 9% of the body as a whole or 36 weeks.
Considering the severe disability related to employee's right leg condition, Dr. Swaim considered him permanently totally disabled from performing the essential duties of his previous occupation as a plumber. He further opined that employee was probably permanently and totally disabled, but acknowledged, "[A] vocational evaluation would be of benefit to determine if [employee] has transferable skills which will allow him to become gainfully employed.⁵
Dr. Swaim opined that employee should restrict occupational stresses to sedentary to light work, limiting his exertion of force to between ten and thirty pounds on an infrequent
³ On November 30, 2012, employee settled his claim against the employer and insurer for $30,000.00 based on approximate disability of 45% of the right knee at the 160-week level, plus a lump sum of 36,590.85 for future medical with yearly payments of 875.53.
⁴ Transcript, 489.
⁵ Id.
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Employee: Anthony Davis
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basis. He recommended that employee sit most of the time, have the ability to stand or walk for brief periods, avoid navigating uneven ground as well as climbing, repetitive stooping, twisting, squatting, kneeling, or crawling. He further recommended that employee significantly limit standing or walking.
Dr. John L. Putnam
On August 17, 2011, orthopedist Dr. John L. Putnam performed an independent medical examination of employee. His report of that date noted employee's past medical history as "Osteogenesis imperfecta type II". Dr. Putnam found employee's pathology consistent the mechanism of his workers' compensation injury, recommended life-long bracing and advised employee of the importance of avoiding any further injury due to his osteogenesis imperfecta.
Counsel for the SIF referenced a November 28, 2011 rating and restriction report of Dr. Putnam during her cross-examination of vocational expert Phil Eldred at hearing. Vocational expert James M. England also referenced Dr. Putnam's November 28, 2011, evaluation of employee in his December 12, 2012, vocational evaluation. The administrative law judge cited Dr. Putnam's November 28, 2011, report in his award. We note that the aforementioned report is not included in the Putnam Orthopaedic Center records admitted into evidence as Claimant's Exhibit 8 or any other exhibit produced at the hearing. That said, no party disputes that on November 28, 2011, Dr. Putnam rated employee at 10% permanent partial disability of the body as a whole and found employee capable of doing light deskwork with no working at heights, no climbing stairs, and no prolonged walking or standing.
Vocational Expert Opinions
Philip Eldred
Certified vocational rehabilitation counselor Phillip Eldred testified for employee at hearing. Mr. Eldred's March 9, 2018, vocational rehabilitation evaluation is also included in the record. Mr. Eldred based his evaluation on a review of employee's medical records and reports, interview and vocational testing of employee.
Mr. Eldred opined, based on his review of employee's medical records and Dr. Swaim's independent medical evaluation, that employee had an impairment which was vocationally disabling such as to constitute a hindrance or obstacle to employment before his September 1, 2010, work injury.
Addressing employee's functional capacity since his work injury, Mr. Eldred noted employee "stated that he doesn't believe that he can work as a plumber and doesn't know what he can do." Mr. Eldred's report noted that when completing a questionnaire
6 Transcript, 467.
7 Id. 840, excerpt from December 12, 2012 Vocational Rehabilitation Evaluation of James M. England.
8 Award, p. 11.
9 Claimant's Exhibit 8, Putnam Orthopaedic records, Transcript, 466.
10 Transcript, 840.
11 Id., 494.
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Employee: Anthony Davis
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designed to measure employee's self-perception of his functional limitations, when asked to rate his ability to return to work, employee responded, "Do Not Know."12
Employee tested at the 11.7 grade equivalent in word reading and at the 12.9 grade equivalent on math computation. Employee's math computation score was higher than 81% of persons in his age group. Mr. Eldred found employee's worker trait profile comparable to eleven sedentary jobs "if employee had the physical and academic ability to be retrained."13 In spite of these noted strengths, Mr. Eldred concluded that employee is not only unable to return to his prior work as a plumber but is further unemployable in the open labor market because of his age, lack of transferable skills, and physical restrictions.
James M. England
The SIF produced the deposition and report of vocational rehabilitation counselor James M. England. On December 12, 2012, after