Christopher Klecka v. Johnny Jones, Inc./J & J Welding

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 14-036889

**Employee:** Christopher Klecka

**Employer:** Johnny Jones, Inc./J & J Welding (settled)

**Insurer:** The Accident Fund (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. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

The parties asked the administrative law judge to resolve the sole issue of Second Injury Fund liability.

The administrative law judge determined that the Second Injury Fund is liable for permanent total disability benefits.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge misapplied § 287.220.3 RSMo by including conditions within her analysis that do not satisfy the criteria for permanent total disability claims against the Second Injury Fund.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

At the time that he reached maximum medical improvement from the effects of the primary injury, employee was 53 years of age. Employee earned his GED in 1984. Employee was a welder for the majority of his career, but has also intermittently assisted in managing his family's business concerns, including a logging farm, restaurant, and rental properties.

Employee's last position, as a welder for employer, involved duties such as walking and standing for most of the day, lifting as much as 90 pounds occasionally, and frequent bending, squatting, reaching, carrying, pushing, and pulling. Employee stopped working for employer after suffering the primary injury, and has not sought further employment. Employee currently receives Social Security Disability benefits.

Employee sustained a head injury in 1981, at the age of 19, as a result of a motor vehicle accident. In 2007, employee saw a neuropsychologist for complaints of memory issues. Employee testified that memory issues referable to the 1981 head injury were

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sufficient to contribute to losing his job with employer. However, employee's psychiatric expert, Dr. Adam Sky, opined that employee's 1981 head injury did not result in any permanent partial disability. We credit this opinion from Dr. Sky, and find that employee does not suffer any permanent partial disability referable to the 1981 head injury.

In 1982, employee underwent surgery to address frequent dislocation of his left knee. Understandably, owing to the passage of time, there are no medical records in evidence to establish the exact nature of the surgery or diagnosis that prompted same. At the time of the April 2014, primary injury, employee was not under any permanent restrictions with regard to his left knee. In his testimony, employee vaguely suggested that he experienced some ongoing pain referable to the left knee, as well as difficulty with stairs. We note, however, that employee did not describe to his medical or vocational experts any issues with regard to his left knee. Absent further evidence or a rating from employee's medical expert, we find employee failed to meet his burden of proving the left knee condition constituted a permanent partially disabling condition as of the time of the April 2014 primary injury. We find, instead, that employee did not suffer any preexisting permanent partial disability referable to the left knee.

In 2005, employee sustained an injury to his right thumb while working. Employee settled a workers' compensation claim against his employer consistent with a rating of 15% permanent partial disability of the right thumb, or 9 weeks of permanent partial disability benefits, with an additional week of compensation for disfigurement. Employee testified he had weakness and cramping in the thumb, which caused him difficulty with holding small objects. We find that, at the time of the April 2014 primary injury, employee's permanent partial disability with respect to the right thumb was equal to 15%, or 9 weeks.

In 2006, employee suffered a hernia while working. Employee settled a workers' compensation claim against his employer consistent with a rating of 7.5% permanent partial disability of the body as a whole, or 30 weeks of permanent partial disability benefits. Employee continues to experience pain and difficulty bending over. We find that, at the time of the April 2014 primary injury, employee's permanent partial disability with respect to the hernia was equal to 7.5% of the body as a whole, or 30 weeks.

In 2007, employee sustained a right shoulder injury while working. Employee settled a workers' compensation claim against his employer consistent with a rating of 35% permanent partial disability of the right upper extremity at the 232-week level, or 81.2 weeks of permanent partial disability benefits. We find that, at the time of the April 2014 primary injury, employee's permanent partial disability with respect to the right shoulder was equal to 35%, or 81.2 weeks.

1 We note that there are references throughout the transcript to a left thumb injury. Based on employee's testimony, we find that these references are in error, that the 2005 injury in question affected employee's right thumb only, and that employee did not suffer from any preexisting injury or complaints referable to the left thumb.

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Employee: Christopher Klecka

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**Primary injury**

On April 18, 2014, employee sustained a work injury affecting his left shoulder when his arm was yanked violently while he was attempting to catch a piece of metal that was rolling off a conveyor. After multiple surgeries, treating physicians released employee from active care on April 5, 2016. The parties stipulated that employee reached maximum medical improvement from the effects of the primary left shoulder injury on April 5, 2016.

Employee settled his claim against the employer herein consistent with a rating of 35% permanent partial disability referable to the left upper extremity at the 232-week level, as well as a rating of 21.5% permanent partial disability of the body as a whole referable to psychiatric injury. Employee continues to suffer pain in his left shoulder that disrupts his sleep. Employee presents the expert medical opinion of Dr. David Volarich, who opined that the primary injury resulted in permanent partial disability of 60% of the left shoulder.

Employee also presents the expert psychiatric opinion of Dr. Adam Sky, who believes employee suffers from major depression as a result of his primary injury. Dr. Sky rated employee's depression at 40% permanent partial disability of the body as a whole.

After careful consideration, we find that the primary injury resulted in a 35% permanent partial disability of the left shoulder, as well as a 15% permanent partial disability of the body as a whole referable to depression. We find that the overall effects of the primary injury (including employee's permanent partial disability affecting the left shoulder and his psychiatric disability in the form of depression) do not, considered alone, render employee unable to compete for work in the open labor market.

**Expert opinion evidence regarding permanent total disability**

In support of his claim against the Second Injury Fund, employee relies on the opinion of Dr. David Volarich with respect to permanent total disability. Dr. Volarich believes employee is permanently and totally disabled as a result of the primary injury in combination with employee's preexisting medical conditions. Dr. Volarich made clear, however, that his opinion that employee is permanently and totally disabled includes consideration of the effects of the 1981 head injury, 2005 thumb injury, and 2006 hernia, as well as the effects of the 2007 right shoulder injury.

Employee also presents the expert vocational opinion of Ms. Delores Gonzalez, who believes employee is not currently capable of any competitive work for which there is a reasonably stable job market, because of the effects of the primary injury in combination with employee's preexisting conditions of ill-being, including the 1981 head injury, 2005 right thumb injury, and 2006 hernia, as well as the effects of the 2007 right shoulder injury. At her deposition, Ms. Gonzalez agreed, on cross-examination, that she factored each of these enumerated conditions into her ultimate vocational opinion.

Employee also presents the expert vocational opinion of Mr. James England, who believes that, assuming the restrictions imposed by Dr. Volarich, employee would be prevented from sustaining normal employment. We note that the restrictions imposed

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by Dr. Volarich include consideration of employee's preexisting hernia and right thumb injuries, as well as the effects of the 2007 right shoulder injury. See Transcript, page 98.

There is no evidence on this record that would suggest (let alone persuasively demonstrate) that employee is unable to compete for work in the open labor market owing to the effects of the April 2014 injury in combination with his preexisting right shoulder disability. Accordingly, we find that employee is not permanently and totally disabled based on a combination of the effects of the primary injury and his preexisting right shoulder disability.

**Conclusions of Law**

**Second Injury Fund liability**

Employee seeks an award of permanent total disability benefits from the Second Injury Fund. Because employee's primary injury occurred after January 1, 2014, we must apply the new criteria set forth under § 287.220.3 RSMo for establishing a compensable claim against the Second Injury Fund. See *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. 2019).[^2]

In relevant part, the statute provides as follows:

> Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

>

> (a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

>

> (i) A direct result of active military duty in any branch of the United States Armed Forces; or

>

> (ii) A direct result of a compensable injury as defined in section 287.020; or

>

> (iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

[^2]: We note that the hearing in this matter took place on January 29, 2019, prior to the issuance of the decision in *Cosby* on June 25, 2019. Given these circumstances, we invited the parties to address the effect of the *Cosby* decision upon the issues presented in this appeal. Employee filed a supplemental brief addressing the *Cosby* decision; we have reviewed same. Neither party filed a motion to submit additional evidence to the Commission.

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(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and