Everett Ptomey v. Affiliated Foods Midwest

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 16-053081

**Employee:** Everett Ptomey

**Employer:** Affiliated Foods Midwest (settled)

**Insurer:** Sentry Casualty 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. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

The issues at hearing were 1) the nature and extent of permanent disability related to employee's July 7, 2016, accident, and 2) the Second Injury Fund's liability, if any, for permanent partial disability or permanent total disability.

The administrative law judge found the Second Injury Fund liable for permanent total disability benefits pursuant to § 287.220.3 RSMo.¹

The Second Injury Fund filed a timely application for review with the Commission alleging that the administrative law judge erred by finding permanent total disability based on a combination of disability attributable to employee's primary injury together with preexisting disabilities that did not satisfy the fifty-week requirement under § 287.220.3 (2) RSMo. Because we resolve the appeal based on this issue, we need not reach additional claims of error cited in the Second Injury Fund's application for review.

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

Employee, sixty-six years of age at hearing, held a variety of skilled labor jobs before he began working for employer as a warehouse maintenance manager in July 1999. Employee sustained injury on July 7, 2016, while driving a delivery of frozen chickens to an Iowa grocery store. As employee was slowing to avoid debris on the highway and merge with traffic, a utility truck rear-ended his vehicle causing injury to employee's low and mid-back.

Employee returned to work for employer for approximately four months after the July 7, 2016, injury. Upon his return to work, employer accommodated employee by not

¹ The "Final Award as to the Second Injury Fund Only" incorrectly references Section 287.220.3 (2013) as "Section 287.220(3)".

Injury No.: 16-053081

Employee: Everett Ptomey

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requiring him to reach above shoulder level, squat or perform repairs below his waist level. Unlike other employees, employer did not time employee's work as a "picker." Employee's position ended on November 11, 2016, after employer sold its business and its successor told employee it had no position for him.

Employee settled his claim against employer/insurer on October 25, 2018, for $23,866.50 based on 12.5% permanent partial disability of the body as a whole, with future medical left open. He now claims permanent total disability against the Second Injury Fund.

Employee's expert, board certified orthopedic surgeon Dr. James A. Stuckmeyer, assessed employee's work-related preexisting disabilities as 25% permanent partial disability to each knee (40 weeks per knee) and 20% permanent partial disability to the neck (80 weeks). Dr. Stuckmeyer additionally assessed employee's non-work related disabilities as 15% to the body as a whole for atrial fibrillation (60 weeks) and 5% to the lumbar spine (20 weeks).

Dr. Stuckmeyer imposed restrictions of no repetitive flexion, extension, side bending of the cervical spine, no prolonged standing, walking, lifting or bending involving the lumbar spine, no lifting in excess of twenty pounds on an occasional basis below the waist, no lifting above the waist in excess of fifteen pounds on an occasional basis, and no lifting above shoulder height in excess of fifteen pounds on an occasional basis. He further recommended, with regard to employee's bilateral knee condition, no repetitive kneeling, squatting, repetitive stair climbing greater than needed for activities of daily living and no ladder climbing.

Employee's vocational expert Terry Cordray assessed employee's educational level, transferrable skills, and jobs available in employee's town of Denton, Kansas. Considering the results of this assessment and Dr. Stuckmeyer's restrictions, Mr. Cordray concluded that employee is not realistically employable in the open labor market.

The administrative law judge credited the testimony of employee and his experts. He found that employee was not permanently and totally disabled prior to his July 7, 2016, work injury. He further found:

- Employee had a preexisting, medically documented, work-related disability to the cervical spine equaling 20% of the body as a whole which translates to 80 weeks, which exceeds the 50 week threshold set out in § 287.220.3.

- Employee further had a preexisting non-work related disability of 5% of the lumbar spine, which translates to an additional 20 weeks of preexisting disability to the spine.

Injury No.: 16-053081

Employee: Everett Ptomey

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- Employee had a preexisting work-related disability to his lower extremities equating to 20% PPD of the body as a whole, which translates to another 80 weeks of preexisting disability.²

- Employee's primary injury caused 12.5% permanent partial disability to the body as a whole that not only combined with his preexisting work-related disability to cause employee to become permanently and totally disabled but further, employee's preexisting disability aggravated his primary injury.

- Vocational expert Terry Cordray opined that EE is not realistically employable in the open labor market due to Dr. Stuckmeyer's medical restrictions related to the spine, resulting from EE's last injury in combination with his preexisting disability.

Based on this evidence, the administrative law judge found employee permanently totally disabled "due to his last accident of July 7, 2016 in combination with his medically documented disability due to pre-existing work related injuries [emphasis added]."³

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 his July 7, 2016, injury in combination with a single preexisting disability that meets the 50-week requirement set out in § 287.220.3 (2). Accordingly, we find employee permanently and totally disabled due to a combination of the effects of the primary injury and various preexisting disabilities, including 5% non-work related disability to the lumbar spine, representing 20 weeks of permanent partial 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 (2) RSMo for establishing a compensable claim against the Second Injury Fund. See *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. banc 2019).

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) an employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability

² The administrative law judge arrived at this evaluation by combining Dr. Stuckmeyer's separate assessment of disability to employee's right and left knees as 25% rated at the 160-week level, and converting these ratings to a single 20% body as a whole rating. Because we resolve this appeal on other grounds, we need not address the Second Injury Fund's challenge to the administrative law judge's calculation method.

³ Award, p. 10.

Injury No.: 16-053081

Employee: Everett Ptomey

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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

(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

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter[.]

§ 287.220.3 (2) RSMo.

Employee's preexisting work-related cervical spine injury resulted in 80 weeks of permanent partial disability. Given that this disability resulted from a compensable injury, we conclude that the criteria under § 287.220.3 (a)a (ii) is satisfied with regard to this preexisting condition. As we have found, the Second Injury Fund disputes the administrative law judge's finding that employee's preexisting disability to his lower extremities, separately evaluated by Dr. Stuckmeyer as 25% of each extremity rated at the 160-week level, equates to 20% permanent partial disability of the body as a whole. No party disputes that employee's claimed non-work related preexisting condition of 5% permanent partial disability to his lumbar spine, does not satisfy the minimum 50-week criteria set out in § 287.220.3 (a)a.

The question presently before us, then, is whether employee is entitled to permanent total disability benefits where his claimed permanent total disability does not result from a combination of the primary injury and a preexisting disability that satisfies the enumerated criteria under § 287.220.3 (a)a., but rather from the combination of his primary injury and various claimed preexisting disabling conditions, including at least one preexisting permanent partial disability that does not equal a minimum of 50 weeks of compensation according to medical standards used in determining such

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compensation. After careful consideration, we must conclude employee is not entitled to permanent total disability benefits from the Second Injury Fund, for the following reasons.

Pursuant to § 287.800.1 RSMo, we must strictly construe the language of Chapter 287. As our courts have instructed:

> A strict construction of a statute presumes nothing that is not expressed. ... [I]t means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

*Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009) (citations omitted).*

It appears to us that employee invites us to presume something not expressed within the language chosen by our legislature. Specifically, it appears employee asks us to apply § 287.220.3 (2)(a)b as if it read as follows:

> Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, and all other disability existing at the time the last injury was sustained, results in a permanent total disability as defined under this chapter[.]

(additions in bold).

Pursuant to the strict construction mandate, we cannot read the foregoing additional words into the language of § 287.220.3 (2)(a)b. Rather, we conclude that the language of the statute requires that an employee must prove permanent total disability resulting from the combination of the primary injury and a single, qualifying preexisting disabling condition, in order to receive permanent total disability benefits from the Second Injury Fund under the new statutory test.

As we have noted, there is no evidence on this record that suggests employee is permanently and totally disabled as a result of the combination of the primary injury with a single preexisting disability that meets the criteria of § 287.220.3 (2)(a)a. Accordingly, it follows, and we so conclude, that employee has failed to satisfy the requirements of § 287.220.3 RSMo.

For the foregoing reasons, we deny employee's claim against the Second Injury Fund.

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We reverse the award of the administrative law judge.

Employee's claim against the Second Injury Fund is denied because his evidence fails to satisfy the standard set forth under § 287.220.3 RSMo.

The award and decision of Administrative Law Judge Ryan S. Asbridge issued November 21, 2019, is attached solely for reference.

Given at Jefferson City, State of Missouri, this **9th** day of July 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**DISSENTING OPINION FILED**

**Shalonn K. Curls, Member**

Attest:

**James M. McManus**

Secretary

Employee: Everett Ptomey

Injury No.: 16-053081

After a review of the evidence, I am convinced that employee has met his burden of proving his entitlement to permanent total disability benefits from the Second Injury Fund. The facts of this case amply demonstrate that the Commission majority's reading of the statute is unworkable from the standpoint of protecting Missouri employers and encouraging the employment of the partially disabled.

The Commission majority's analysis is remarkably devoid of context. I disagree with the unstated premise that the strict construction mandate requires that we ignore history, or consider statutory language in a vacuum. As the courts of our state have long recognized, it is crucial that we consider whether the result, in any case involving the Second Injury Fund, will vindicate the beneficent purposes for which the Fund was created:

The purpose of the Second Injury Fund is twofold: to encourage the employment of individuals who are already disabled; and to relieve an employer or his insurer of liability for the previously disabled employee's total and permanent disability where that disability is not specifically attributable to an injury suffered during the period of employment with that employer.

*Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987).*

Of course, I recognize that the 2013 amendments to § 287.220 RSMo were intended to limit the liability of the Second Injury Fund, in an effort to preserve its solvency and its ability to properly compensate injured workers rendered unable to compete in the open labor market: "[A]t the time section 287.220 was amended, the fund was insolvent. Under such circumstances, the legislature justifiably sought to limit the number of workers eligible for fund benefits." *Cosby v. Treasurer, 579 S.W.3d 202, 210 (Mo. 2019).* I disagree, however, that these amendments require that we deny the claim of this permanently and totally disabled worker.

The courts of this state have long held that the fact-finder in a workers' compensation claim is permitted to consider factors such as an employee's age, work history, and potential for retraining, in claims against the Second Injury Fund for permanent total disability benefits. *Tiller v. 166 Auto Auction, 941 S.W.2d 863, 866 (Mo. App. 1997).* With regard to preexisting permanent partially disabling conditions, however, the law has historically provided statutory thresholds, which have served to prevent Second Injury Fund claims premised on minimally disabling conditions that do not pose a threat to the employee's earning ability.

Specifically, prior to the 2013 amendments, the legislature imposed thresholds for triggering Second Injury Fund liability in permanent partial disability claims; these are now set forth under § 287.220.2 RSMo. In a series of relatively recent decisions, the appellate courts of our state had an occasion to consider whether the thresholds applied to each of an employee's preexisting conditions, or whether it was sufficient that a

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Employee: Everett Ptomey

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single condition satisfy the thresholds. Finally, the Supreme Court of Missouri declared that Second Injury Fund liability was triggered where any one of the employee's preexisting conditions satisfied the thresholds. *Treasurer of Mo.-Custodian of the Second Injury Fund v. Witte*, 414 S.W.3d 455, 467 (Mo. 2013). The Witte court explained its holding as follows:

> By implementing the thresholds, the legislature provided a more precise standard and excluded de minimus injuries from triggering liability. Merely because all of a claimant's preexisting injuries will be considered when computing the amount of compensation does not mean all claimants will receive compensation — there still must be an injury of sufficient seriousness to meet the thresholds before the fund can be liable.

*Id.*

The legislature is presumed to know the judicial construction that has previously been applied to its statutes. See *Thompson v. State Veterans' Home & State Office of Administration/Caro*, 58 S.W.3d 657, 661 (Mo. App. 2001) (noting that "[w]e must presume that the legislature is aware of the state of the law at the time it enacts a statute"). I conclude the new 50-week and categorical thresholds set forth under § 287.220.3(a)a. apply in a manner consistent with the prior thresholds under § 287.220.2 for preexisting permanent partial disability. I conclude that where an employee has a preexisting disabling condition that satisfies the new thresholds, I am not prevented from considering the employee's other preexisting disabling conditions in assessing the liability of the Second Injury Fund, no more than I am prevented from considering other factors, such as the employee's age, work history, and potential for retraining.

**Employee has satisfied § 287.220.3 RSMo**

Employee has presented uncontested testimony from a board certified orthopedic surgeon and qualified vocational expert. Dr. Stuckmeyer opined that employee's July 7, 2016, primary injury was the prevailing factor in aggravating employee's preexisting cervical and thoracic conditions and causing thoracic strain and acute development of right sacroiliac dysfunction. Based on medical restrictions Dr. Stuckmeyer imposed relating to employee's spinal condition, vocational expert Mr. Cordray found that employee is unable to compete for work in the open labor market. Each expert agrees that employee's current condition is not the product of the last injury considered in isolation, but instead results from the combination of employee's primary injury and significant preexisting disabling conditions, including at least one—if not two—work-related preexisting disabilities that have been medically documented consistent with medical standards used in determining a compensable injury as exceeding 50 weeks of permanent partial disability. The Second Injury Fund presented no expert medical or vocational evidence in its defense.

The question is whether employee has met his burden of proving Second Injury Fund liability for permanent total disability benefits under the following test:

Injury No.: 16-053081

Employee: Everett Ptomey

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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

(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

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter[.]

Based on the wholly uncontested expert opinion evidence, employee had at least one medically documented work-related preexisting disability consisting of 50 weeks of disability compensation: 20% of the body as a whole relating to the cervical spine, equaling 80 weeks of permanent partial disability. The result of the combination of employee's total preexisting disability—including at least one condition that satisfies the threshold set out in § 287.220.3—with 12.5% permanent partial disability to the body as a whole as a result of the primary injury was to render employee unable to compete for work in the open labor market.

I recognize that the majority purports to apply the mandate of strict construction as support for its choice to exclude certain of employee's preexisting disabling conditions from its assessment of Second Injury Fund liability. I am convinced, however, that the majority's analysis impermissibly adds language to the statutory test that is not present. Specifically, the majority applies § 287.220.3 (2)(a)b as if it read as follows:

Injury No.: 16-053081

Employee: Everett Ptomey

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Such employee thereafter sustains a subsequent compensable work-related injury that, when combined only with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, and no other preexisting disability, results in a permanent total disability as defined under this chapter[.]

(additions in bold).

As further discussed immediately below, I believe that if the legislature had intended that we exclude all other preexisting disability from our assessment of Second Injury Fund liability, even after an employee (as here) has a preexisting disability that 1) satisfies the criteria, 2) combines with the primary injury, and 3) where the employee is permanently and totally disabled upon reaching maximum medical improvement from the effects of the work injury, I believe the legislature would have specifically so stated.

Enhanced employer exposure for permanent total disability claims

The Commission majority's analysis implicitly presumes that our legislature intended that employers remain liable whenever (as will almost always be the case) an employee has any preexisting condition that contributes to the condition of total disability but does not satisfy the criteria under § 287.220.3 (2)(a)a. This is because, "in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury[.]" Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963). As expressly stated under the new statute, § 287.220.3(3) only protects employers when the Second Injury Fund is shown to be liable:

When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

I do not believe the legislature intended (nor that a strict construction of § 287.220.3 supports a conclusion) that employers maintain liability for permanent total disability benefits whenever it is shown that any factor which contributes to causing such disability does not meet the criteria set forth in § 287.220.3 (2)(a)a. Again, I must presume that the legislature was aware of the state of the Missouri case law on the topic of Second Injury Fund liability at the time it enacted the 2013 amendments. Accordingly, I presume the legislature was cognizant of the long line of decisions from our courts declaring the purpose underlying the Second Injury Fund:

The purpose of the Fund is to encourage employers to hire partially disabled applicants. The hiring of such individuals raises the possibility that the partial disability will combine with a later, on-the-job injury to produce a greater (if not total) permanent disability. The legislature wanted to assure employers that, in such cases, they would not be exposed to a greater amount of liability than that which results from the work-related

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Injury No.: 16-053081

Employee: Everett Ptomey

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injury. Thus, it limited the employer's liability to that part of the disability that can be attributed to the last injury alone.

Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. 2004)(citations omitted)¹

Given the Commission majority's reading of the statute, this employer should be held liable for employee's condition of permanent and total disability resulting after the July 7, 2016, primary injury, solely because employee suffered from one or more preexisting disabilities that did not, when considered individually, satisfy the requirements under § 287.220.3 (2)(a)a. In other words, this employer's commendable willingness to provide work to employee—despite his suffering from some preexisting disabilities—has worked the result of exposing employer to liability for weekly disability payments for the rest of employee's lifetime. This result is so antithetical to the well-established purposes underlying the Second Injury Fund, and constitutes such a drastic departure from the state of the law at the time the legislature enacted the 2013 amendments, that I will not presume the legislature intended such a result absent express language so declaring. (For example, if such a result were intended, one would expect our legislature to simultaneously and expressly abrogate the long line of Missouri cases declaring the purpose of the Second Injury Fund.)

In sum, I disagree with the Commission majority's reading of the new statutory test. I am convinced that employee's evidence satisfies that test. I would affirm the decision of the administrative law judge and award permanent total disability benefits from the Second Injury Fund.

Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls, Member

¹ See also Federal Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963); Meilves v. Morris, 422 S.W.2d 335, 338 (Mo. 1968); Bone v. Daniel Hamm Drayage Co., 449 S.W.2d 169, 171 (Mo. 1970); Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 793 (Mo. App. 1992); Wuebbeling v. West County Drywall, 898 S.W.2d 615, 617 (Mo. App. 1995); Boring v. Treasurer of Missouri, 947 S.W.2d 483, 488 (Mo. App. 1997); Pierson v. Treasurer of Mo. As Custodian of the Second Injury Fund, 126 S.W.3d 386, 389 (Mo. 2004); Walls v. Treasurer of Mo., 207 S.W.3d 136, 138 (Mo. App. 2006); Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624, 630 (Mo. 2012); and Treasurer of Missouri-Custodian of the Second Injury Fund v. Witte, 414 S.W.3d 455, 460 (Mo. 2013)

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: July 7, 2016
5. State location where accident occurred or occupational disease was contracted: St. Joseph, Buchanan 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: While in the course and scope of employment, Claimant's vehicle was struck from behind causing injury to his neck and back.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

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: Neck and back

1. Nature and extent of any permanent disability: Permanent total disability as to the Second Injury Fund

1. Compensation paid to date for temporary disability: $25,952.70

1. Value necessary medical aid paid to date by employer/insurer? $17,439.98

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: 924.68

1. Weekly compensation rate: 616.45/$477.33

1. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: The Second Injury Fund (SIF) shall immediately pay Mr. Ptomey 50 weeks of permanent total disability benefits at a rate of 139.12 per week and then, beginning June 11, 2018, 616.45 of permanent total disability benefits for the remainder of his life. As of August 19, 2019, the Second Injury Fund's liability for past due benefits equals 45,175.90. $(50wks \times 139.12) + (62wks \times 616.45) = 45,175.90$$.

1. Second Injury Liability: The Second Injury Fund shall immediately pay Mr. Ptomey 50 weeks of permanent total disability benefits at a rate of 139.12 per week beginning June 26, 2017 and then 616.45 of permanent total disability benefits for the remainder of his life.

1. Future requirements awarded: N/A

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25% percent of all payments hereunder in favor of Keith V. Yarwood, Employee's attorney, for necessary legal services rendered.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

**Employee:** Everett Ptomey

**Injury Number:** 16-053081

**Dependents:** N/A

**Employer:** Affiliated Foods Midwest (Settled)

**Insurer:** Sentry Casualty Company (Settled)

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

**Hearing Date:** July 16, 2019

**Checked by:** RSA/lh

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on July 16, 2019. 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 August 15, 2019.

The employee appeared personally and through his attorney, Keith Yarwood. The Treasurer of the State Missouri as Custodian of the Second Injury Fund appeared through Assistant Attorney General Candace Cole.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. That the employer, Affiliated Foods Midwest, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on July 7, 2016;
2. That Everett Ptomey was its Employee and he was working subject to the law in St. Joseph, Buchanan County, Missouri;
3. The Employee sustained an accident arising out of and in the course of his employment;
4. The Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;
5. The Employer paid 17,439.98 in medical care, 25,952.70 in temporary disability for 42 weeks of disability, and $23,866.50 in permanent partial disability benefits based on 12.5% permanent partial disability to the body as a whole;
6. The Employee's average weekly wage was 924.68, making his compensation rate 477.33 for permanent partial disability and $616.45 for permanent total disability.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

ISSUES

1. Whether the employee sustained any permanent disability as a consequence of the alleged accident of 7/7/16; and, if so, what is the nature and extent of the disability?

1. Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation (or permanent total disability compensation)?

EVIDENCE PRESENTED

The Employee and the Second Injury Fund jointly offered for admission the following exhibits:

Exhibit 1 - Report of Dr. James Stuckmeyer with 60-day notice

Exhibit 2 - Deposition of Mr. Terry Cordray

The Employee testified at the hearing in support of his claim. In addition, the Employee offered for admission the following exhibits:

Exhibit 3 - Primary stipulation

Exhibit 4 - Definition of Impairment and Disability, AMA Guides to the Evaluation of Permanent Impairment, 4th Ed.

The Second Injury Fund offered for admission the following exhibit:

Exhibit I - Deposition of Everett Ptomey

The exhibits were received without objection and admitted into evidence. All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

DISCUSSION

Testimony of Everett Ptomey

Everett Ptomey is a 66-year-old man who graduated from high school in 1970 and worked a variety of skilled labor jobs before going to work for Affiliated Foods Midwest Located in Elwood, Kansas. Affiliated Foods Midwest is a grocery store distributor with clients in several states.

After graduating from high school, Mr. Ptomey started, but did not complete, training in auto body repair. He found employment in the construction industry working as a carpenter and pouring concrete. In the early to mid-1980s, he obtained training in pizza oven installation and

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

repair, which he used for gainful employment before attending truck driving school in 1993. He also briefly owned a bar with his wife.

During that time, Mr. Ptomey suffered several work related and non-work related injuries. He seriously injured his neck while working in Texas. When he arrived at a Pizza Inn restaurant to repair a pizza oven, he grabbed his toolbox from the back of the truck. He thought it would be light but it turned out that it was much heavier than he expected and it jerked his arm downward causing an injury to his neck. He eventually underwent a cervical fusion at the C-5/C-6 level. The employer provided workers' compensation benefits under Texas law.

As a result of the injury, Mr. Ptomey had difficulty looking down, took days off of work due to neck pain and had limited range of motion in his neck. Cold and damp weather would make problems worse and he had to ask co-workers for help.

Mr. Ptomey suffered work related injuries to each knee in separate incidents while he worked in Texas in the 1980s. He suffered an injury to his right knee when he jumped off the back of a truck. He injured his left knee when he hit it on a table. Both injuries resulted in surgery. The employer provided workers' compensation benefits for both injuries.

As a result, Mr. Ptomey had difficulty squatting and bending his knees. He self-accommodated by slowing down and using a two-wheeler to move items in order to avoid putting unnecessary strain on his knees.

He went to work for Affiliated Foods Midwest in July, 1999 to manage the warehouse's maintenance needs. Mr. Ptomey's primary job at Affiliated Foods was to oversee maintenance at the facility. He was a working manager who would join subordinates in maintaining large dock doors, plumbing, equipment and tile. He would also repair bathrooms and breakrooms as well as paint when needed.

When demands on the maintenance department were low, Mr. Ptomey would work as a "picker." A picker is an employee who works in the warehouse assembling orders for grocery store customers for delivery. The position requires lifting and carrying boxes weighing as much as 50 pounds and repetitive bending, lifting, twisting, carrying of heavy items and reaching above the shoulder. Pickers have to move quickly and management often times pickers as part of their performance evaluations. (Exhibit 2, 12:03 - 13:10). If a picker forgot to include an item before shipping the order to the customer, Mr. Ptomey would sometimes deliver the missing item by car.

In 2003 while working for Affiliated Foods, Mr. Ptomey suffered a crush injury to his left foot. He was walking along a conveyor to check if there were any boxes on the conveyor belt. As he came to an I-Beam, he bent down to get under the belt when it started. His foot went between two rollers and pinned the front part of his foot past his toes. (Exhibit 1, pg. 32). Doctors immobilized his foot and gave him crutches. He underwent six weeks of physical therapy before doctors referred him to a specialist at KU medical center. He was diagnosed with nerve damage. Doctors administered an injection to the foot and discussed surgery. Mr. Ptomey declined surgery and settled his case based on 14% impairment to the left lower extremity under Kansas law. (Exhibit 1, pp.42-49).

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

Mr. Ptomey also suffered low back pain for which he never pursued workers' compensation benefits. Mr. Ptomey testified that back pain began affecting his work about a decade before his work injury in July, 2016. The back pain decreased his production because he had to take more breaks, use equipment to lift items and ask for help more often. His doctor prescribed a muscle relaxer, Baclofen, to take as needed. Before his work related accident on July 7, 2016, he took about sixty tablets in a year. (Exhibit I, 8:24-10:13).

In this case, on July 7, 2016, a picker failed to include an order of frozen chickens in a delivery to an Iowa grocery store. Mr. Ptomey was asked to deliver the frozen chickens by car. Mr. Ptomey drove his car from Kansas to St. Joseph, MO on Highway 36. As he attempted to merge onto Interstate 29 North, he noticed debris in the road that had fallen off the truck in front of him. He slowed to avoid the debris and was struck from behind by a utility truck.

He immediately felt what he describes as a sharp charley-horse type pain in his back. Although he had a history of spinal problems, he had never felt that type of pain before. He also felt pain in his neck that radiated down his arms and experienced a severe headache.

He reported the injury to his employer and sought treatment at the Mosaic Life Care Emergency Department. Doctors referred him to physical therapy and when that did not help doctors referred him to pain management. Pain management doctors provided trigger point injections in both the cervical and the lumbar spine without relief.

The workers' compensation doctors referred Mr. Ptomey to Premier Spine Care for an independent medical evaluation with neurosurgeon, Dr. Adrian Jackson. Mr. Ptomey told Dr. Jackson that he continued to have ongoing pain in his cervical region, lower back and difficulty with lifting, prolonged positioning, coughing and sneezing and overhead work. Dr. Jackson released Mr. Ptomey at maximum medical improvement. (Exhibit 1, pg. 7). However, he did not release him to full duty. He only stated that there was no need for additional treatment from a workers' compensation perspective while noting back pain with multiple level cervical, thoracic and lumbar spine spondylosis. He opined that the accident caused a strain to those areas. He did not address whether Mr. Ptomey should have any restrictions. (Exhibit 1, pp. 532-533).

Upon release, Mr. Ptomey returned to Affiliated Foods in a highly accommodated position. He was not required to obtain anything above his shoulder level, squat or perform repairs below his waist level. Affiliated Foods no longer required him to be a "working manager", but instead he mostly trained younger workers to do his job.

Affiliated Foods also allowed him accommodations when he would help pick. The regular pickers were timed - he was not. He would use a forklift to obtain items above his waist level. That slowed his ability to work since the forklift was not always immediately available.

He asked co-workers for help more often than before. He avoided tilting his head back when looking for items because it would cause pain in the top of the neck. If neck tilting was necessary, he would take the time to position himself so that he could see items with minimal head tilting.

As a result of the increase in back pain, Mr. Ptomey would kneel in order to avoid bending at the waist. Kneeling was uncomfortable for his knees - which slowed him down. He

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

also avoided squatting or crawling quickly - not only due to knee pain but also because of back pain. Mr. Ptomey's use of prescription muscle relaxers increased from approximately five a month to two to three per day. (Exhibit I, 8:24-10:13).

Affiliated Foods's owners entered into negotiations to sell the plant before Mr. Ptomey returned to work. The new owners encouraged other employees to apply for jobs with the new company when it was sold. The new owners discouraged Mr. Ptomey from applying. He was told the new company would not have a position for him.

Mr. Ptomey experiences much more pain throughout his spine than he did prior to the July 7, 2016 automobile accident. He has more trouble with range of motion of his neck. He experiences mid-back pain and his low back pain is much worse despite appropriate treatment for the back he experienced as a result of the automobile accident. His use of muscle relaxers has increased from about 60 doses per year to between 60 and 90 doses per month. He experiences right-sided pelvic pain and pain radiating down his right leg - he experienced neither before the last work accident. He also experiences headaches he did not experience before the last work injury and he has to lay down two to three times per day due to spinal pain.

The results of the accident also affect Mr. Ptomey's personal life. Spinal pain make it difficult for him to sleep at night. He lives alone so he gets up at about 6:00am to feed his dogs. He then returns to bed for about twenty minutes. He is mostly sedentary once he gets out of bed for the day. He spends much of his day sitting in his recliner watching television. His spinal pain forces him to lay down in the afternoon. In the evening, he watches television while lying in bed.

He does do his own shopping and takes out his own trash - but he limits anything he lifts to no more than two pounds. He sits on the ground to pull weeds in his yard. He drove to Texas to attend a family wedding. But, since he has trouble driving for long periods of time due to neck and back pain, a drive that took him seven hours before his injury took him ten.

Testimony of James A. Stuckmeyer M.D.

Dr. James Stuckmeyer evaluated Mr. Ptomey on October 24, 2017. Dr. Stuckmeyer is a board certified orthopedic surgeon who has served as Chief of Surgery, Medical Staff President and the Chairman of the Credentials Committee at St. Mary's Hospital in Blue Springs, Missouri.

In a report dated January 21, 2018, Dr. Stuckmeyer opined that the automobile accident of July 7, 2016 was the prevailing factor in aggravating Mr. Ptomey's pre-existing cervical and thoracic conditions and causing his thoracic strain and acute development of right sacroiliac dysfunction. (Exhibit 1, pg. 10).

Dr. Stuckmeyer assessed a 25% pre-existing disability to each knee, a 20% pre-existing permanent disability to the neck, a 15% pre-existing disability to the body as a whole for atrial fibrillation and 5% permanent disability to the lumbar spine. That equates to 160 weeks of pre-existing disability due to work related injuries and 80 weeks of pre-existing disability due to non-work related conditions. (Exhibit 1, pg. 9).

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

Dr. Stuckmeyer placed significant restrictions on Mr. Ptomey as a result of his spinal condition of: no repetitive flexion, extension, side bending of the cervical spine; no prolonged standing, walking, lifting, or bending involving the lumbar spine; no lifting to exceed 20 pounds on an occasional basis below waist height; and no lifting above waist height to exceed 15 pounds on an occasional basis, no lifting above shoulder height to exceed 15 pounds on an occasional basis. (Exhibit 1, pg. 10).

With regard to the pre-existing bilateral knee condition, he recommended no repetitive kneeling, squatting, crawling, repetitive stair climbing greater than needed for activities of daily living and no ladder climbing. Id.

Dr. Stuckmeyer recommended a vocational assessment to determine whether Mr. Ptomey is employable in the open labor market. He stated that if Mr. Ptomey is not employable, it was his opinion that it is due to injuries in the last accident in combination with pre-existing disabilities.

Testimony of Terry Cordray

Mr. Terry Cordray performed a vocational assessment of Mr. Ptomey on June 25, 2018. Mr. Cordray has a bachelor degree in psychology and a master's degree in counseling with an emphasis in vocational rehabilitation. He became board certified in 1975 and has worked as a vocational specialist for the last 44 years. (Exhibit 2 4:4-4:16).

Mr. Cordray opined that Mr. Ptomey's work related and non-work related previous injuries created a hindrance or obstacle to Mr. Ptomey's re-employment if he had lost his job with Affiliated Foods. He testified that Mr. Ptomey's difficulty with squatting prior to the last work injury would have made it difficult to obtain a new job that required him to work in lower areas. For example, working on carpet or baseboards. He testified that Mr. Ptomey's low back problems would have made it difficult for him to perform in any of his previous jobs due to bending requirements. (Exhibit 2, 10:10 - 11:23). He also noted that the fact that management did not time Mr. Ptomey even before his work injury indicates the employer was accommodating him for pre-existing conditions. (Exhibit 2, 13:11-13:24). Mr. Cordray testified that, prior to the last work injury, Mr. Ptomey was still employable (as evidenced by Mr. Ptomey demonstrating that he could work and lift and carry up to 50 pounds) and that the restrictions placed by Dr. Stuckmeyer are for the additional trauma and the aggravation of the preexisting conditions. (Exhibit 2 27:9 - 27:15).

Mr. Cordray testified that the restrictions Dr. Stuckmeyer placed on Mr. Ptomey (including lifting restrictions, no prolonged standing and walking) reduced Mr. Ptomey's pool of possible jobs from a medium level to a sedentary level. Light jobs require frequent standing or walking. Stuckmeyer restricted Mr. Ptomey from prolonged standing or walking which according to Cordray limited Mr. Ptomey to sedentary work. Mr. Ptomey is an unskilled worker. Cordray says only 4% of the jobs in the labor market are both unskilled and sedentary. However, since sedentary unskilled jobs are typically jobs like parking garage cashiers and security surveillance system monitors, no such job exists in the area where Mr. Ptomey lives in the small town of Denton, Kansas. (Exhibit 2, 16:22-18:06).

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

Since most of Mr. Ptomey's previous jobs fell into the heavy category, Cordray opined that Mr. Ptomey could not return to any job he had performed during his working career. And, he does not have any transferable skills. (Exhibit 2, 18:07-18:25). He dismissed the accommodated work Affiliated Foods provided Mr. Ptomey when Dr. Jackson released him from treatment as an "odd-lot" job. An odd-lot job is a job that is unique and cannot be recreated at another employer. In Mr. Cordray's opinion, no other employer would similarly accommodate Mr. Ptomey's disability. (Exhibit 2, 19:01-19:17; 23:03-23:06).

Mr. Cordray concluded that Mr. Ptomey, as an unskilled worker with no transferable skills, with a high school education, was not realistically employable in the open labor market. And, his unemployability is due to the last accident in combination with his pre-existing disability. (Exhibit 2, 20:07-20:19).

Findings and Conclusion

Section 287.220(3) reads in pertinent part,

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

(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

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter;

The Court finds Everett Ptomey to be a credible witness. After reviewing the medical reports, medical records, testimony of experts as well as the Employee's testimony, this Court finds that Mr. Ptomey was not permanently and totally disabled prior to his July 7, 2016 work accident as evidenced by his testimony that his employment at Affiliated Foods required a lot of

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

bending over and on his hands and knees working under a dock plate (which involved crawling in a tight space to replace a spring or an air bag), occasionally having to pull motors and pallet jacks that weighed 300-400 pounds, and drive to make deliveries himself (the very circumstance that led to the work-related automobile accident).

The Court finds Dr. Stuckmeyer to be a credible witness. The Court further finds that Mr. Ptomey had a pre-existing, medically documented, work-related disability to the cervical spine equaling 20% to the body as a whole which translates to 80 weeks (which exceeds the 50 week threshold of Section 287.220(3)) and a pre-existing work related disability and 5% pre-existing non-work related permanent partial disability to the lumbar spine which translates to an additional 20 weeks pre-existing disability to the spine. This Court also finds that Mr. Ptomey had a pre-existing, medically documented, work-related disability to his lower extremities equating to 20% permanent partial disability to the body as a whole which translates to another 80 weeks of pre-existing disability.

This Court further finds that thereafter, Mr. Ptomey sustained a subsequent compensable work-related injury causing 12.5% permanent partial disability to the body as a whole, which translates to 50 weeks of disability that not only combined with his pre-existing work-related disability to cause him to become permanently and totally disabled but the pre-existing disability aggravated the work related spinal injury he suffered in this case. This Court also finds that Mr. Ptomey reached maximum medical improvement on June 26, 2017.

The Court finds Mr. Cordray to be a credible witness. The Court further finds that Mr. Ptomey is not realistically employable in the open labor market, with no jobs that realistically exist in the area of his residence, and that his unemployability is due to medical restrictions placed on him by Dr. Stuckmeyer related to the spine as a result of the last accident in combination with his pre-existing disability.

Wherefore this Court finds Mr. Ptomey is permanently totally disabled due to his last accident of July 7, 2016 in combination with his medically documented disability due to pre-existing work related injuries. The Second Injury Fund therefore is liable to Mr. Ptomey for permanent total disability benefits. The Second Injury Fund shall immediately pay Mr. Ptomey 50 weeks of permanent total disability benefits at a rate of 139.12 per week and then 616.45 of permanent total disability benefits for the remainder of his life. As of August 19, 2019, the Second Injury Fund's liability for past due benefits equals 45,175.90. $ \left( \frac{50wks}{139.12} \right) + \left( \frac{62wks}{616.45} \right) = 45,175.90 $$.

The compensation awarded to Mr. Ptomey shall be subject to a lien in the amount of 25% of all payments hereunder in favor of Keith Yarwood, Attorney for Mr. Ptomey, for necessary legal services rendered.

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Everett Ptomey

Injury No: 16-053081

I certify that on $\qquad 11-21-19$

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and rate of service upon each party is retained with the executed award in the Division's case file.

By $\qquad$ A