Randy Lawrence v. Noranda Aluminum Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 14-026852

**Employee:** Randy Lawrence

**Employer:** Noranda Aluminum Inc.

**Insurer:** New Hampshire Insurance Co.

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 11, 2019. The award and decision of Administrative Law Judge Amy L. Young, issued September 11, 2019, is attached and incorporated by this reference.

The Commission further approves and affirms 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 **20th** day of May 2020.

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**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**DISSENTING OPINION FILED**

**Reid K. Forrester, Member**

**Shalonn K. Curls, Member**

**Attest:**

**Secretary**

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Improvee: Randy Lawrence

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I would reverse the administrative law judge's award allowing benefits. Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

David M. Remley, attorney for the employer-insurer.

Jason G. Crowell, attorney for the employer-insurer. |

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 18, 2014.
5. State location where accident occurred or occupational disease contracted: New Madrid County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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.

Employee: Randy Lawrence

Injury No. 14-026852

1. Was the employer insured by above insurer? Yes.

1. Describe work the employee was doing and how accident happened or occupational disease contracted: Employee injured his right shoulder while picking up a thirty pound clamp with his right arm extended in front of him.

1. Did accident or occupational disease cause death? No.

1. Parts of body injured by accident or occupational disease: Right shoulder/arm and body as a whole.

1. Nature and extent of any permanent disability: Employee is permanently and totally disabled.

1. Compensation paid to date for temporary total disability: $38,563.63 representing 57 1/7 weeks.

1. Value necessary medical aid paid to date by the employer-insurer: $49,288.35.

1. Value necessary medical aid not furnished by the employer-insurer: None.

1. Employee's average weekly wage: 1090.62.

1. Weekly compensation rate: 727.12 for temporary total and permanent total disability and $446.85 for permanent partial disability.

1. Method wages computation: By stipulation.

1. Amount of compensation payable: See Award.

1. Second Injury Fund liability: N/A

1. Future requirements awarded: See Award.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The Compensation awarded to the employee 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 employee: David G. Plufka.

The compensation awarded to the employee is also subject to a child support lien filed by the Missouri Division of Child Support Enforcement, Department of Social Services.

Page 2

Employee: Randy Lawrence

Injury No. 14-026852

On July 10, 2019, the employee, Randy Lawrence, appeared in person and with his attorney, David G. Plufka for a Hearing for a Final Award. The Employer-Insurer was represented at the Hearing by their attorneys, David M. Remley and Jason G. Crowell. The Court took judicial notice of all the records contained in the files of the Division of Workers' Compensation. Within the file was a duly registered lien for delinquent child support in the amount of $300.00. At the time of the Hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Noranda Aluminum Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by New Hampshire Insurance Co. c/o Sedgwick Claims Management Services.
2. On April 18, 2014, Employee was an employee of Noranda Aluminum Inc. and was working under the Workers' Compensation Act.
3. On April 18, 2014, Employee sustained an accident arising out of and in the course of his employment.
4. Employer had notice of Employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. Employee's average weekly wage was 1090.62, resulting in a compensation rate of 727.12 for temporary total and permanent total disability benefits and $446.85 for permanent partial disability benefits.
7. Employee's injury was medically causally related to the occupational disease.
8. Employer-Insurer paid 49,288.35 in medical aid.
9. Employer-Insurer paid 38,563.63 paid in temporary disability benefits representing 57 1/7 weeks.
10. Employee had no claim for previously incurred medical bills, temporary total disability benefits, mileage, or future medical care.
11. Employee reached maximum medical improvement on April 5, 2016.

1. Nature and extent of disability-Employer-Insurer's liability for permanent partial versus permanent total disability benefits.

Page 3

Employee: Randy Lawrence

Injury No. 14-026852

The following exhibits were offered and admitted into evidence:

1. Medical records of Dr. Patrick Knight
2. Medical records of Dr. Michael Milne
3. Medical records of Twin Rivers Regional Medical Center
4. Medical records of Dr. Rudy Rodriguez¹
5. Medical records of Dr. Robert Hagan
6. Medical report of Mr. James England
7. Deposition of Dr. David Volarich taken on November 30, 2017
8. Job Searches

A. Medical records of Dr. Michael Milne

B. Rating report of Dr. Michael Milne

C. Medical records of Dr. Robert Hagan

D. Rating report of Dr. Robert Hagan

E. Functional Capacity Evaluation from Athletica done May 2, 2016.

F. Curriculum vitae of Mr. Gary Weimholt

G. Vocational evaluation report of Mr. Gary Weimholt

Based on a comprehensive review of the evidence, including testimony, expert medical opinions, the medical records, other documentary evidence, and my personal observations at Hearing, I find:

Randy Lawrence (hereafter "Employee") lives in Gideon, Missouri. He was born on September 16, 1981. Employee began working for Noranda Aluminum (hereafter "Employer"), an aluminum manufacturer, in 2012 as a Unit Operator. His job duties included assembling "frames" to be used as part of the aluminum production process.

¹ The cover sheet for Employee Exhibit 4 identifies the exhibit as "Records of Dr. Rodney Rodriguez", however, the records contained within the exhibit reflect the doctor's name is Dr. Rudy Rodriguez.

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**Injury No. 14-026852**

On April 18, 2014, Employee injured his right shoulder at work. He had reached down to grab a clamp that had fallen off a frame and in the process he picked up the thirty pound piece with his right arm extended in front of him and dislocated his right shoulder. He immediately felt pain in the front of his right shoulder and he felt sick.

Employee was taken to the emergency room at Missouri Delta Medical Center. An x-ray was taken and he was given a shot of pain medicine. His right arm was put in a sling. On April 23, 2014, he underwent an MRI without contrast that showed mild right supraspinatus and infraspinatus tendinopathy without a discrete tear and minimal right acromioclavicular osteoarthritis with mild subacromial-subdeltoid bursitis. Employee underwent an MRI with contrast on May 6, 2014 that showed no full-thickness rotator cuff tear, no conclusive internal derangement, mild supraspinatus and infraspinatus tendinosis and no definite degenerative change. An arthrogram performed the same day was reported as normal. Employer sent him to Dr. Patrick Knight on May 7, 2014. According to Dr. Knight's records, Employee complained he felt like his shoulder came out of socket when outside of his sling. Dr. Knight diagnosed Employee with a right shoulder dislocation and possible nerve injury. Dr. Knight ordered an EMG/NCV study and instructed Employee to wear a sling at all times. An EMG/NCV of the right upper extremity was performed by Dr. Bernard Burns on May 28, 2014 and confirmed Employee sustained a nerve dysfunction around his axillary nerve. On physical exam, Dr. Burns noted atrophy and diminished sensation of the right deltoid. Dr. Burns's notes reflect that Employee had a clinically unstable shoulder and that Employee reported problems with subluxation of the shoulder since the accident.

On June 4, 2014, Dr. Knight put Employee in a shoulder brace for stabilization and recommended no use of his arm at work. Dr. Knight opined at some point he may require surgical intervention to stabilize his shoulder, but not until his nerve function recovered. When Employee followed up with Dr. Knight on July 9, 2014, Dr. Knight noted Employee was continuing to have subluxation issues and referred him to Dr. Edwards for evaluation for possible shoulder stabilization surgery.

Employer sent Employee to Dr. Rudy Rodriguez for evaluation on August 1, 2014. Employee reported symptoms of pain aggravated by lifting, movement and pushing as well as joint instability, joint tenderness, and numbness and tingling in his arm. Dr. Rodriguez ordered a CT of the right shoulder. According to Dr. Rodriguez's office note of August 13, 2014, the CT scan showed "evidence of missing bone to the socket" and "evidence of Hill Sachs lesion on the humerus head." Dr. Rodriguez performed a right shoulder manipulation and Bankart repair on August 21, 2014. His post-operative diagnoses were right shoulder dislocation and Bankart lesion.

Following surgery, Employee had increased pain. Dr. Rodriguez performed an injection on September 10, 2014 and ordered physical therapy. On November 5, 2014, Employee complained to Dr. Rodriguez of a stabbing pain under his right shoulder. He also complained of a "change of sensation in the right upper extremity." Dr. Rodriguez indicated Employee could

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Employee: Randy Lawrence

Injury No. 14-026852

return to work with a 15 pound lifting restriction on the right side. Employee testified that after surgery his pain was bad and he had no feeling in his right arm from the elbow down to his hand.

Employee underwent an Independent Medical Evaluation by Dr. Milne on November 24, 2014. Dr. Milne recorded that Employee complained of continued right shoulder pain, significant numbness throughout his arm and down into his hand, weakness, poor range of motion despite numerous physical therapy sessions, and that his scapular pops out of place when lifting his right arm in front of him. Dr. Milne opined Employee had a possible brachioplexus/axillary nerve injury and recommended an updated EMG/nerve conduction velocity study to evaluate further. Employee underwent an EMG/nerve conduction velocity study on December 16, 2014 and it showed a severe right long thoracic nerve injury with evidence for early renervation. It showed that the previous axillary nerve injury had resolved. Dr. Milne explained the long thoracic nerve palsy was causing the winging of his scapula. Dr. Milne recommended continued restrictions and a home exercise program with a repeat EMG/nerve conduction study in 90 days.

Employee testified that by the end of 2014, his right shoulder was "pretty rough". He testified that he could not move it normally in that he could not touch his right hand to his back, he could not touch the top of his head with his right hand, and he could not move his right arm away from his body or extend it overhead.

Employee was evaluated by Dr. Robert Hagan on January 5, 2015. Dr. Hagan reported Employee complained of limited range of motion, numbness in the hand, pain in the scapula and significant winging. Dr. Hagan opined Employee had a probable brachial plexus type injury. He recommended additional diagnostic testing.

Employee underwent a repeat EMG/nerve conduction study on February 18, 2015, that showed improvement in this right thoracic nerve and more units innervating his right serratus anterior.

Employee followed up with Dr. Hagan on March 13, 2015. Dr. Hagan reported Employee had continued complaints of shoulder pain, decreased sensation throughout his entire hand/forearm, and obvious winging of the scapula. He reviewed additional diagnostic testing. Dr. Hagan performed diagnostic and therapeutic injections. Dr. Hagan opined Employee's overall picture was consistent with neurogenic thoracic outlet syndrome/scalene triangle syndrome with a focal injury to the long thoracic nerve and evidence of pectoralis minor syndrome. He recommended further surgery.

On May 6, 2015, Dr. Hagan performed a neurolysis of the brachial plexus, subtotal resection of the anterior scalene muscle and release of the middle scalene muscle, release of the pectoralis minor muscle insertion, decompression and neurolysis of dorsal scapular nerve, decompression and neurolysis of long thoracic nerve, decompression and neurolysis of the suprascapular nerve and decompression of the subclavian artery. The post-operative diagnoses were neurogenic thoracic outlet syndrome, brachial plexus compression, anterior and middle scalene contracture, pectoralis minor contracture/syndrome, injury to dorsal scapular nerve.

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**Injury No. 14-026852**

injury to long thoracic nerve, injury to suprascapular nerve, and compression and scarring of subclavian artery.

At Employee's follow up visit on May 28, 2015, Dr. Hagan noted that Employee's pain, distal range of motion and grip were improved. Employee's distal numbness was still present. He was instructed to remain off duty and Dr. Hagan initiated physical therapy. By June 18, 2015, Employee's symptoms were noted to be significantly reduced with improvements in strength, increased sensation and range of motion. However, he continued to have focal anterior superior shoulder pain with any motion and scapular winging. Employee testified that after this surgery, his arm improved in that he gained feeling back from his right shoulder down to his right elbow and the shooting pains resolved. Dr. Hagan referred him back to Dr. Milne for reevaluation of his labrum and rotator cuff.

Employee returned to Dr. Milne for further evaluation on June 25, 2015. Dr. Milne recorded that Employee complained of continued numbness in his hand, scapular winging and anterior shoulder pain. He recommended he continue physical therapy. Employee followed up with Dr. Milne on July 27, 2015 with complaints of significant pain in his biceps region. Dr. Milne and Employee discussed proceeding with an arthroscopic biceps tenodesis. An arthrogram of the right shoulder was performed on July 27, 2015 that was negative for rotator cuff tear, but a MRI post arthrogram revealed a SLAP tear. On August 5, 2015, Dr. Milne performed a right shoulder diagnostic arthroscopy, biceps tenodesis, sub acromial decompression, distal clavicle resection and extensive glenohumeral debridement. The post-operative diagnoses were right shoulder SLAP tear, impingement syndrome, acromioclavicular joint arthrosis, status post arthroscopic anterior stabilization and shoulder pain. Post-operatively Employee attended more physical therapy. He followed up with Dr. Milne on August 18, September 15, October 13, November 17, and December 15, 2015. At the December 15, 2015 office visit, Dr. Milne noted Employee was neurovascularly intact, had active and passive ranges of motion with forward flexion to 155 degrees, abduction to 150 degrees, external rotation to 85 degrees and internal rotation to the midline level of T12. He was noted to have 4+/5 strength about the biceps, deltoid and rotator cuff musculature. Dr. Milne moved him up to a 35 pound lifting restriction noting that he needed to lift 100 pounds per his job description. It was noted his next appointment was January 12. There is no office note in evidence for a January 12 visit. Employee testified that the third surgery relieved some more of his pain, but that he still was not able to use his arm.

Employee continued follow up care with Dr. Hagan on July 23, September 15, November 17, and December 15 of 2015. During this time, he attended physical therapy and was on light duty restrictions. Employee was laid off from his job in December of 2015.

On January 18, 2016, Employee followed up with Dr. Hagan and it was noted he continued to have constant numbness in his right forearm and hand and tenderness in his right shoulder. He was taking Hydrocodone for pain. On exam, it was noted his range of motion had significantly improved, he had 5/5 strength with thumbs down testing and internal/external rotation, and point tenderness over his biceps tendon. Dr. Hagan recommended and performed a therapeutic injection in the area of the biceps tendon. Employee was continued on light duty restrictions.

Page 7

Employee: Randy Lawrence

Injury No. 14-026852

Employee underwent a functional capacity evaluation at Athletico on May 2, 2016 and the evaluator was Victor Zuccarello. The evaluator concluded that Employee gave inconsistent performance/unacceptable effort and felt that behavioral factors were affecting the evaluation. The evaluator recorded that Employee severely over guarded his right upper extremity function, his range of motion and grip strength were inconsistent, his "MMT was cog-wheeling," he demonstrated poor dexterity, and he "displays no protective sensation to the hand on the RIGHT." The evaluator reported that Employee complains of right shoulder/scapular pain and a glove distribution of numbness of his right forearm, wrist, and hand. The evaluator further noted that he terminated the evaluation because Employee became increasingly angry. Employee testified at trial that his impression was that the evaluator was mocking his abilities during the evaluation and this made him angry.

Dr. Milne released Employee at maximum medical improvement on April 5, 2016. This office visit note is not included in the records offered into evidence.

Dr. Hagan released Employee at maximum medical improvement on May 10, 2016. After reviewing Employee's functional capacity evaluation results, Dr. Hagan recommended the following restrictions: maximum 40 pounds bilateral floor-to-waist lifting, maximum 50 pounds left unilateral floor-to-waist lifting, maximum 10 pounds, right floor-to-waist lifting, occasional waist-to-shoulder lifting of 10 to 15 pounds with the right side, occasional 100 pound push, pull, employee can provide frequent grip, occasional reach above shoulder level on the right side, but no work with significant weight or significant repetitiveness at or above right shoulder level, he can climb stairs and perform lower level movements in a unrestricted manner, and he is allowed to climb stepladders, but not vertical ladders.

By letter dated March 6, 2017, Dr. Milne offered his opinion that Employee has a permanent partial disability rating of "9% with 9% pre-existing and 9% as a result of this injury." He opined Employee required no further treatment for his work injury.

Medical Report and Testimony of Dr. David Volarich

Employee was evaluated by Dr. David Volarich at the request of Employee's attorney on May 9, 2016. Dr. Volarich testified by deposition on November 30, 2017. Dr. Volarich reviewed Employee's medical records, took a history from Employee and performed a physical examination. The present physical complaints noted by Dr. Volarich in his report are consistent with Employee's testimony at Hearing. On physical examination, Dr. Volarich noted Employee demonstrated a 25-30% loss of motion of the right shoulder in all six planes, positive impingement signs, and severe scapular winging. He noted a biceps deformity of the right bicep. Dr. Volarich noted that Employee's rotator cuff was strong except for weakness in abduction and in the deltoid which were both weak at 4/5. Dr. Volarich noted crepitus with circumduction of the shoulder. He noted 3/5 atrophy of the deltoid and rotator cuff. He also noted weakness of both the bicep and tricep at 4.5/5. The right forearm was weak at 4/5. He recorded that Employee could not detect pinprick sensation below his right elbow. Finally, Dr. Volarich noted Employee's grip and pinch strength on the right were weak compared to the left side.

Page 8

Employee: Randy Lawrence

Injury No. 14-026852

Dr. Volarich diagnosed the following in reference to the April 18, 2014 injury:

- right shoulder dislocation with instability and brachial plexus stretch injury, status post right shoulder manipulation and Bankart repair;

- severe right shoulder girdle long thoracic neuropathy, status post neurolysis of the brachial plexus, resection of the anterior scalene muscle, release of the middle scalene muscle, release of the pectoralis minor insertion, and decompression neurolysis of the dorsal scapula nerve, long thoracic nerve, suprascapular nerve, and decompression of the subclavian artery;

- right shoulder internal derangement, status post arthroscopic bicep tenodesis, debridement of the glenohumeral joint, sub acromial decompression, and distal clavicle excision to repair SLAP tear;

- persistent right upper extremity hypoesthesia below the elbow and right shoulder pain syndrome.

Dr. Volarich testified that "[t]he brachial plexus is a confluence of nerve connections in the upper thoracic region and into the axilla, or the armpit. Basically the nerve root in the cervical spine." He explained the brachial plexus is "made up of five different nerve roots from C5 through T1 that goes down into the extremities. It eventually forms the median, radial, and ulnar nerves that come down to the hand. There is multiple different trunks, divisions, and cords. And it's just a series of interconnections so that if one nerve gets damaged other nerves can kind of help out, or take over, for the damaged nerves." He testified that Employee suffered damage to three of those nerves (the long thoracic nerve, the suprascapular nerve and the subclavian artery) in addition to having a decompression of the entire brachial plexus.

Dr. Volarich opined that Employee sustained a 60% permanent partial disability of the body as a whole rated at the shoulder girdle and thoracic outlet as a result of the work injury. He testified that his rating is high because Employee had a poor outcome due to chronic pain, ongoing atrophy and weakness, and because he basically cannot use his dominant right arm. He testified that "just moving his shoulder around his scapula pulls away from the chest wall. That's persistent winging of the scapula. That's permanent damage to the long thoracic nerve root. So this is not just a simple shoulder injury or rotator cuff tear or labral tear. There is significant neurologic damage as well." On cross-examination, he clarified that he rated the injury at the 400 week level because the injury is to the shoulder girdle, not the shoulder joint. Dr. Volarich recommended the following work limitations:

"I advised Mr. Lawrence to only use the right upper extremity for activities of daily living. He should not try to handle anything more than about a pound or two with the right arm above chest level. I asked him to be very careful with the right hand fingers because of sensory loss where he can easily cut, burn, or cause other injuries to the fingers because of sensory loss. Last, he should not try to use his arm above chest level other than to perform activities of daily living such as brushing his teeth, washing his hair, or feeding himself."

Page 9

Employee: Randy Lawrence

Injury No. 14-026852

Dr. Volarich recommended that Employee undergo a vocational evaluation to determine whether he could return to work in the open labor market. He further opined, "If vocational assessment is unable to identify a job for which he is suited, then it is my opinion that he is permanently and totally disabled as a result of the work related injury of 4/18/14 standing alone or in isolation."

Employee was evaluated by Mr. James England, at the request of his attorney, on August 24, 2016 for purposes of a vocational rehabilitation evaluation. Mr. England took a history from Employee, reviewed his medical records and administered the Wide-Range Achievement Test, Revision 4. Employee scored at the eighth grade level on reading and the fifth grade, second month level on math. Mr. England noted that these test scores would be adequate for a variety of entry-level occupations, but that he would benefit from some remedial education to become more competitive in the open labor market. Mr. England noted that Employee has primarily worked in the heavy demand work category most of his life (Noranda Aluminum, Joe and Larry Wolverton Farms as a farm machinery operator and repairman, Emerson Electric as a CNC operator, and other farm work) and would not be capable of returning to that work. His job at Noranda required a combination of bending, kneeling, squatting, climbing, reaching, carrying, pushing, pulling, stooping, and handling. His jobs at Noranda and Joe and Larry Wolverton Farms required him to lift up to 100 pounds on occasion. He noted that Employee has some basic computer knowledge, but is not familiar with business programs such as Windows or Word and cannot effectively keyboard with his right hand. He noted Employee has no experience with paperwork in his past jobs. Mr. England noted Employee has skill as a forklift operator, but that this would be negated by his physical restrictions. He opined, "[a]t present I believe he will struggle dramatically in the area where he lives to try to re-enter the work force because of inability to effectively use his right dominant arm on more than an extremely limited basis." He recommended Employee's attorney ask the insurance carrier to underwrite vocational rehabilitation, including retraining with on-the-job methods, to assist Employee in attempting to return to the work force. He opined that "[w]ithout vocational rehabilitation assistance I believe he is more likely to remain totally disabled from a vocational standpoint as I fear he would not likely be able to find entry-level work with the types of problems he is experiencing." There is no evidence that Employee has received vocational rehabilitation assistance.

Employee was evaluated by Mr. Gary Weimholt, at the request of Employer-Insurer's attorney, on March 3, 2017 for purposes of a vocational rehabilitation evaluation. Mr. Weimholt reviewed Employee's medical records, took a history from Employee, and reviewed the results of the Wide Range Achievement test administered by Mr. England. Mr. Weimholt concluded that the restrictions of the physicians, including Dr. Volarich, would not preclude Employee from performing "security rounds or working as a gate guard or prohibit driving and operating a vehicle." He noted that Dr. Volarich did not restrict Employee from handling small items such as those used in a fast food restaurant. Mr. Weimholt considered the current job availability in

Page 10

Employee: Randy Lawrence

Injury No. 14-026852

communities surrounding Gideon, Missouri (Poplar Bluff -43 miles, Dexter-29 miles, Sikeston-49 miles, Hayti-21 miles, and Cape Girardeau-75 miles) that included openings for driving/delivery occupations, pest control openings, security guard openings, school bus monitor, and lawn care worker openings that he determined would fall within the restrictions indicated by Dr. Hagan and Dr. Milne. He noted there were some security guard openings that would appear to be within the restrictions of Dr. Volarich.

Mr. Weimholt concluded, "it is my opinion that Mr. Randy Lawrence does have opportunities for employment in the open competitive labor market when considering the restrictions of Dr. Milne and Dr. Hagan. Secondly it is my opinion that given the restrictions of Dr. Volarich, Mr. Lawrence could perform fast food work, security guard and gate attendant positions as well as driving occupations."

Present Symptoms

Employee testified that he has no use of his right arm. He cannot hold or carry anything in his right hand. He has no sensation between his right elbow and hand. He is unable to lift his right arm overhead. He cannot touch the top of head or his face or even lift his right arm without assistance. It was observed by this finder of fact that when Employee was asked to raise his right hand at Hearing to be sworn under oath he was unable to raise his right hand independently and used his left hand to prop up his right hand at chest level. He testified that he has no grip strength and cannot lift weight with his right hand. He has sensation in the front of his shoulder, but he also has a lot of pain. He usually sits with a pillow propped under his right arm to keep the weight from pulling on his shoulder because the weight of his arm causes shoulder pain. Moving his right arm in front of his body causes him pain. His shoulder blade wings out when he lifts his right arm in any direction. He walks with his thumb shoved in his belt loop to keep his right arm from swinging and causing him pain.

Employee testified that he attempted to find another job. He testified that Exhibit 8 reflects some of his job searches. He testified that he has tried to find work at approximately 60 other employers in addition to those identified on Exhibit 8 without success. He testified he's been told that he is a liability. With regard to the potential jobs identified by Gary Weimholt, Employee testified that he would not be able work as a driver or deliverer because he has no use of his right arm and would need two arms to perform such work. He did not believe he could drive a shuttle bus because the job description included occasionally lifting of fifty pounds and he did not believe he could meet that physical requirement. As for the position of school bus monitor, Employee testified he could clean the inside of a bus (a requirement of the job), but it would cause him a lot of pain and he did not believe he could perform that job on a full time basis because of the pain. Employee testified that he has a forklift license, but does not believe he could work as a forklift operator because in his experience one needs two arms to operate a forklift because controls are located on the right hand side and one needs to steer with the left arm. He testified he could not work as a van driver because he cannot drive more than 300 miles at a time because of pain in the shoulder. He also testified that sitting in one position becomes very uncomfortable. He testified that he did not believe he could work as a security officer because he would be required to reach with both arms, and he is unable to reach with his right

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Employee: Randy Lawrence

Injury No. 14-026852

arm. He did not believe he could work as a mechanic now because he is unable to perform tasks with his right arm. He testified despite looking, he has not found a job he can perform. He recently started drawing social security disability.

I find Employee's testimony credible.

Section 287.020.6 RSMo provides as follows:

> The term "total disability" as used in this chapter shall mean the 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 phrase "the inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration, in the manner that such duties are customarily performed by the average person engaged in such employment. *Kowalski v M-G Metals and Sales, Inc.,* 631 S.W.2d 919, 922 (Mo.App.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. *Reiner v Treasurer of the State of Missouri,* 837 S.W.2d 363, 367 (Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". *Brown v Treasurer of the State of Missouri,* 795 S.W.2d 479, 483 (Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. *Id.* The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. *Reiner* at 365. See also *Thornton v Haas Bakery,* 858 S.W.2d 831, 834 (Mo.App.1993).

The question of whether a claimant is totally and permanently disabled is "not exclusively a medical question" and the Commission "need not rely exclusively on the testimony of medical experts; rather, it may consider all the evidence and the reasonable inferences drawn from that evidence." *Lewis v. Kansas Univ. Med. Ctr.,* 356 S.W.3d 796, 802 (Mo.App.W.D.2011). The Commission may even rely on testimony from the claimant himself. See *Pavia v. Smitty's Supermarket,* 118 S.W.3d 228, 234 (Mo.App.S.D.2003). "The testimony of lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." *Id.*

Based on a comprehensive review of the evidence, including testimony, expert medical opinions, the medical records, other documentary evidence, and my personal observations at Hearing, I find:

The testimony of Employee and the medical and vocational evidence support a finding that Employee is permanently and totally disabled as a result of his April 18, 2014 injury. There

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Employee: Randy Lawrence

Injury No. 14-026852

are a number of factors that support a conclusion that he is no longer capable of competing in the open labor market. Employee's work history has primarily consisted of heavy work activity. His job at Noranda as well as his previous job experience working on a farm required him to lift over 100 pounds. He has no job experience involving paperwork and lacks computer skills. His current job restrictions prevent him from returning to his previous employment and I find that he lacks transferable skills to less physically demanding employment.

The most significant factor that supports a finding that Employee is permanently and totally disabled is his testimony regarding his level of pain and extremely limited ability to use his dominant right upper extremity. I find the employee was a credible witness. Employee has undergone three surgeries to his right shoulder, including a decompression of the entire brachial plexus, and both the medical records and his testimony indicate he had a poor result due to the cumulative impact of these three surgeries including nerve damage. His observed behavior during the Hearing supports a finding that he is experiencing severe pain in his dominant right upper extremity that would inhibit his ability to work at even a light or sedentary job. The Employee was observed holding his right arm close to his body and struggling to lift his right arm to be sworn in at Hearing. I find it unlikely any employer would hire him considering his inability to use his right dominant arm and based on his presentation.

The medical records, medical report of Dr. Volarich and vocational report of James England also support a conclusion that Employee is totally disabled. The medical records corroborate Employee's testimony regarding his symptoms. Although Dr. Hagan and Dr. Milne recommended restrictions that suggest Employee might be able to perform up to medium level work in the open labor market, I find that Dr. Volarich's restrictions are more realistic considering Employee's testimony regarding his limitations and my observations of Employee at Hearing. I find Dr. Volarich's opinions and testimony regarding Employee's work restrictions and limitations are credible and are more credible and persuasive than the recommendations for work restrictions outlined by Dr. Hagan and Dr. Milne. Dr. Hagan's report reflects that he based his recommendation regarding physical restrictions on the results of the functional capacity evaluation; however, I find the results of the functional capacity evaluation are not determinative of Employee's ability to perform those tasks at a job on a full time basis.

Further, I find the opinions of James England credible and more credible and persuasive that the opinions of Gary Weimholt on the issue of permanent and total disability. The majority of the jobs identified by Mr. Weimholt in his report were based upon the restrictions of Dr. Hagan and Dr. Milne and as stated above, I do not find their opinions as to Employee's restrictions persuasive. Mr. Weimholt concluded that the restrictions of Dr. Volarich would allow Employee to perform fast food work, security guard and gate attendant positions and some driving occupations. Considering Employee's limited ability to use his right upper extremity, I find that Employee is not capable of performing those occupational job duties in the manner that such duties are customarily performed by the average person engaged in such employment. I find that an employer would not reasonably be expected to hire Employee in his present physical condition. I find more persuasive Mr. England's opinion that "Without vocational rehabilitation assistance I believe he is more likely to remain totally disabled from a vocational standpoint as I fear he would not likely be able to find entry-level work with the types of problems he is

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Employee: Randy Lawrence

Injury No. 14-026852

experiencing." There is no evidence that Employee had received vocational rehabilitation assistance at the time of Hearing. No evidence was offered on the cost of vocational rehabilitation service, but an inference is made that the services Employee would need are not free as Mr. England suggested Employee's attorney ask the insurance carrier to underwrite the program. Employee has been unemployed since December of 2015 and it is unreasonable to expect him to afford such assistance. Further, there is no guarantee such services would be successful. Considering Employee's physical presentation at Hearing, Employee's testimony, and his lack of vocational rehabilitation assistance, I find that the opinions of Dr. Volarich and Mr. England are persuasive and credible on the issue of permanent total disability.

Based on the credible testimony of Employee and the supporting medical and vocational rehabilitation evidence, the Court finds that no employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition and reasonably expect the employee to perform the work for which he was hired. I therefore find that based on the employee's age, education, work history, and his current physical condition and limitations, the employee is no longer able to compete in the open labor market, and is permanently and totally disabled.

Therefore, Employer-Insurer shall pay is ordered to pay weekly permanent total disability benefits to Employee in the amount of $727.12 per week for permanent total disability beginning April 6, 2016.

ATTORNEY'S FEE:

David G. Plufka, attorney at law, is allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

CHILD SUPPORT LIEN:

The Director of the Missouri Family Support Division, Missouri Department of Social Services has filed a Notice of Lien on Workers' Compensation Benefits in this case with the Division of Workers' Compensation. Pursuant to Section 454.517 RSMo, the compensation awarded under the provisions of this award is therefore subject to a child support lien. For current arrearage information and payment instructions, the employer-insurer and the employee should contact the Financial Resolutions Section, Family Support Division, P.O. Box 2277, Jefferson City, MO 65102-2277, or by telephone at (573) 526-5446.

INTEREST:

Interest on all sums awarded hereunder shall be paid as provided by law.

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**Injury No. 14-026852**

Made by:

I certify that on **9-11-19** 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 **Amy L. Young**

Administrative Law Judge

Division of Workers' Compensation