Michael Butler v. Rock Hill Mechanical Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Amended Award and Decision of Administrative Law Judge)

**Injury No.:** 09-082743

**Employee:** Michael Butler

**Employer:** Rock Hill Mechanical Corporation

**Insurer:** Amerisure Insurance Company

**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, we modify the amended award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and amended award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues:

1. Was employee's low back treatment after October 14, 2009, medically or causally related to the August 10, 2009 primary injury?
2. Is employer liable for past medical expenses for the low back after October 14, 2009?
3. Is employer liable for future medical treatment?
4. Is employer liable for temporary total disability benefits for the low back?
5. What is the nature and extent of employer's liability for permanent partial disability and permanent total disability benefits, if any?
6. What is the nature and extent of the Second Injury Fund's liability for permanent partial disability or permanent total disability benefits, if any?
7. Has employee reached maximum medical improvement?

The administrative law judge determined as follows:

1. Employee's low back treatment after October 14, 2009 was not medically or causally related to the August 10, 2009 injury, but was related to a preexisting injury;
2. Employer is not liable for past medical expenses for the low back after October 14, 2009;
3. Employer is not liable for future medical treatment;
4. Employer is not liable for temporary total disability benefits for the low back;
5. Employer is liable for 25% permanent partial disability of the left shoulder, 10% permanent partial disability, body as a whole, for the lumbar spine, and temporary total disability in the amount of $4,844.88 from February 10, 2011 through March 25, 2011 (for the left shoulder);

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Employee: Michael Butler

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6) The Second Injury Fund is liable for permanent total disability differential for 98 weeks, and then full permanent total disability for the rest of employee's lifetime;

7) Claimant reached maximum medical improvement on October 14, 2009, for the lumbar spine and March 25, 2011, for the left shoulder.

The Second Injury Fund filed a timely application for review with the Commission alleging:

[t]he Administrative Law Judge's award is legally flawed and misapplies the evidence. The award of total disability benefits against the Second Injury Fund does not have support of the evidence, because the award mistakenly included subsequent medical treatment unrelated to the primary injury in its consideration of Second Injury Fund liability, and wrongly interpreted the opinions of several experts in support of an award of total disability benefits against the Second Injury Fund, and wrongly concluded [employee's] subsequent low back treatment following his release from treatment by Dr. [Peter] Mirkin on October 14, 2009, was related to a pre-existing condition.

Application for Review, p. 1.

For the reasons stated below, we modify the amended award and decision of the administrative law judge referable to the issue of Second Injury Fund liability.

**Discussion**

**Second Injury Fund Liability in General**

Section 287.220.1, RSMo, provides, that in order to trigger Second Injury Fund liability, employee must show that he

[1] has a preexisting permanent partial disability whether from compensable injury or otherwise, [2] of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and [3] the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability

§ 287.220.1, RSMo (2006).¹

Here, the administrative law judge found preexisting disabilities of such seriousness as to constitute a hindrance or obstacle to employment or reemployment:

Based on credible testimony by Claimant and persuasive testimony by Drs. Volarich and Coyle, Claimant sustained ... disabilities before August

¹ "For [an employee] to demonstrate Fund liability for permanent total disability, he must establish (1) the extent or percentage of the permanent partial disability resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in permanent total disability." *Lewis v. Treasurer of Mo.*, 435 S.W.3d 144, 157 (Mo. App. 2014).

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Employee: Michael Butler

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10, 2009 that were a hindrance or obstacle to his employment or reemployment: left SI joint dysfunction and right shoulder internal derangement.

Award, p. 25.

The administrative law judge further found that the combination of the preexisting disabilities and the last injury resulted in permanent total disability:

Based on credible testimony by [employee], Dr. [David] Volarich, and Ms. [Delores Elvira] Gonzalez, [employee] is unable to return to his former employment as a pipefitter, or to any employment, due to his left shoulder and low back injuries on August 10, 2009, combined with his pre-existing disabilities to his left SI joint and right shoulder.

Id.

However, the timing of preexisting permanent partial disabilities and permanent total disability is critical. The preexisting injuries/disabilities must exist at the time of the date of injury of the primary injury (August 10, 2009). Furthermore, the determination of permanent total disability must occur at the date of maximum medical improvement. As explained below, any worsening due to the span of time or due to treatment after the maximum medical improvement date cannot contribute to a permanent total disability finding for Second Injury Fund liability purposes. Because there are two injuries with separate maximum medical improvement dates, and both were considered part of the permanent total disability conclusion regarding Second Injury Fund liability, we focus on the latter of the two maximum medical improvement dates (March 25, 2011).

Second Injury Fund's Argument

The Second Injury Fund essentially argues that if employee is permanently and totally disabled, employee became permanently and totally disabled only after the medical treatment after March 25, 2011, which treatment was unrelated to the primary injury. As the treatment was after the maximum medical improvement date of the primary injury, the effect of such treatment should not factor in a permanent total disability conclusion. Accordingly, the administrative law judge's reliance on permanent total disability opinions of Dr. David Volarich and Ms. Delores Elvira Gonzalez that include the subsequent medical treatment is a misapplication of the law.

The Second Injury Fund relies on language from Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo. Ct. App. June 25, 1992). In Lawrence, the court upheld the Commission's conclusion that "[t]here is insufficient evidence in the record to find that [employee] is permanently and totally disabled solely as a result of her work related injury. And, the medical evidence does not lead to the conclusion that [employee] is permanently and totally disabled as a result of the combination of her preexisting disabilities and the current permanent partial disability[.]" Lawrence, 834 S.W.2d at 793 (inner quotations omitted.). The employee in Lawrence was only permanently and

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Employee: Michael Butler

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totally disabled after considering her progressive worsening of her preexisting conditions.

We conclude that the Lawrence decision applies to this matter. Dr. Volarich did not specifically opine that employee was permanently and totally disabled as of the maximum medical improvement date of March 25, 2011, but included the subsequent treatment in his opinion of permanent total disability. For example, Dr. Volarich opined, that it is "the combination of the L4-S1 fusion [performed on September 6, 2012], the left SI fusion, and the bilateral shoulder injuries that makes [employee] unable to go back to work as a pipefitter and is what makes [employee] permanently and totally disabled." Tr., p. 191. Because Dr. Volarich included treatment that occurred subsequently to March 25, 2011, we find that Dr. Volarich's opinion does not support a finding that employee was permanently and totally disabled as of the date of maximum medical improvement.

Turning to Ms. Gonzales, she opined that employee was permanently and totally disabled due to a "result of the work injury of 8-10-09 in combination with his preexisting disorders and disabilities, meaning his shoulders and his back." Tr., p. 224. Without delving deeper, the verbiage of Ms. Gonzalez's opinion supports the credibility finding of the administrative law judge that employee was permanently and totally disabled at the maximum medical improvement date. However, although Ms. Gonzalez did not specifically mention the treatment after the maximum medical improvement date as factoring in the permanent total disability conclusion, her report summarized such treatment and strongly implied that employee's permanent total disability is due in part to that treatment. We find that Ms. Gonzalez's opinion does not support a finding that employee was permanently and totally disabled as of the date of maximum medical improvement.

Employee also testified that he was permanently and totally disabled. However, after employee stated that he could not work due to the primary injury, he also explained that he based that statement on his current condition at the hearing, and not necessarily as of the date of maximum medical improvement. Accordingly, we find that employee was not isolating his condition as of the date of maximum medical improvement, but included the subsequent treatment in testifying that he was permanently and totally disabled.

Employee Arguments

Employee relied on Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014), and argued that once one establishes preexisting injuries that are permanent in nature and hindrances or obstacles to employment, "then the disability that arises from them is includable in the analysis of Second Injury Fund liability for [permanent total disability] cases." Employee Brief, p. 14 (emphasis in original). Employee further argues that it is immaterial if the primary injury aggravates the preexisting injuries or if the preexisting injuries worsen due to other factors. Employee concludes that "subsequent medical treatment cannot be excluded merely because it occurs after the primary injury, as long as the treatment was necessitated by a preexisting medical condition that had not yet reached [maximum medical improvement]." Employee Brief, p. 19.

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Employee: Michael Butler

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However, the court in *Lewis* does not support employee's arguments. The court in *Lewis* actually agreed with the Second Injury Fund's argument that "[t]he Fund is not liable for any progression of a claimant's preexisting disabilities not caused by the claimant's last injury." *Lewis*, 435 S.W.3d at 162 (quoting *Michael v. Treas.*, 334 S.W.3d 654, 663-64 (Mo. App. S.D. 2011)).

In *Lewis*, the Second Injury Fund argued that the Commission inappropriately included subsequent worsening to determine permanent total disability. H