I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find that employee's permanent and total disability is due to preexisting disabilities that interfered with his ability to work before and after the December 23, 2015, primary injury. The administrative law judge therefore incorrectly assessed liability for permanent total disability benefits against the employer/insurer in this case.
The employee bears the burden to prove the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004). Permanent total disability is defined as an "inability to return to any employment and not merely ... inability to return to the employment in which the employee was engaged at the time of the accident." § 287.020.6 RSMo. Permanent total disability is measured by "a claimant's ability to compete in the open labor market." *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173, 178 (Mo. App. 1995) citing *Carron v. Ste. Genevieve School Dist.*, 800 S.W.2d 64, 67 (Mo. App. 1990). An employee is not permanently disabled if a reasonable employer would hire him or her. *Schussler v. Treasurer of State - Custodian of Second Injury Fund*, 393 S.W.3d 90, 96 (Mo. App. 2012).
The employee sustained a severe injury in 1967 while serving in the military that resulted in extensive shrapnel wounds. Shrapnel remains embedded in employee's legs to this day, which causes pain, cramping, and difficulty standing for long periods. Since then, employee has used creams and over-the-counter pain medication on a daily basis. After his 1967 military injury and completion of military service, Mr. Shields had training and then a career in the heating, ventilation, air-conditioning, and refrigeration field for twenty-seven years, from 1971 through 1998. In 1998, employee was involved in a motorcycle accident. Thereafter he struggled to work in the industry and was ultimately physically unable to continue because of low back pain in addition to problems with his legs. Employee's 1998 injury ended his ability to work in his chosen career. The employee opted not to proceed with recommended low back surgery due to the risks of the procedure. He has been living with low back and leg pain ever since.
Employee was able to perform his job for employer from 2003 through the December 23, 2015, accident. Vocational expert Ms. Delores E. Gonzalez classified employee's employment for employer to be at a heavy exertional level, which included lifting up to 150 pounds. This opinion is incorrect because it is unsupported by a job description or any information employee provided. To the contrary, employee testified he would lift five-gallon buckets of paint approximately weighing forty-five pounds. He used both hands for that task and did not lift more than one bucket at a time. Employer provided lifts to assist associates with heavy items. Employee asked for help with any items too heavy for him to lift. It is apparent from the record as a whole that employee's ability to work for employer following his 1998 low back injury was due to the fact that his job was of a lesser exertional level than his earlier career. Further, employee still had difficulty as he continued to require pain medication every day to manage ongoing back and leg pain throughout his years working for employer.
Injury No. 15-101348
Employee: James Shields
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Employee never completely recovered from earlier injuries to his legs and back injury. It is factually incorrect to state that employee returned to heavy exertional level work following his career-ending 1998 injury. By employee's own admission, his employment with employer was easier due to the assistance of machinery, co-workers, and rubber mats.
Employee's preexisting conditions impacted his ability to work after December 23, 2015. These conditions compounded the difficulty he had performing post-injury positions of greeter and cashier. Further, employee's 2017 presentation to Dr. Volarich and Ms. Gonzalez included an even worse overall condition due to further failings of his eyesight (cataracts and glaucoma), hearing, and cognitive functioning. All of these conditions certainly impaired employee's ability to work as a greeter, cashier, or any position. Employee's preexisting conditions worsened between the December 23, 2015, injury and the date of his evaluations. Any overall opinions of employee's experts regarding him being unemployable because he seemed so "elderly" at the time of his evaluations are not relevant to the Commission's determination in this case.
Dr. Volarich and Ms. Gonzalez wrongly concluded that employee was unable to work as a greeter or cashier. Both experts based their conclusions on inaccurate facts and baseless assumptions. These opinions therefore do not constitute competent evidence upon which to base a total disability award against employer.
Dr. Volarich considered and evaluated employee's preexisting low back condition but was dismissive of employee's overall preexisting conditions. He did not even consider the shrapnel injuries that had caused employee to suffer from leg pain nearly his entire adult life. Dr. Volarich misunderstood employee's military disability to be for tinnitus. Regarding work as a greeter, Dr. Volarich noted that employee told him he could not tolerate the job but provided no explanation as to why. Dr. Volarich was also under the impression that employee tried to work as a cashier but could not perform the work due to trouble lifting with his right arm. However, that was in error as employee never even attempted to perform that job with or without any further accommodation. Ultimately, Dr. Volarich simply accepted employee's word that he was unable to work and opined employee was totally disabled. Dr. Volarich provided no opinion whatsoever regarding employee's work as a greeter. His opinion as to employee working as a cashier was entirely speculative.
Ms. Gonzalez's opinion that employee was totally disabled as a result of his right shoulder injury alone is completely lacking in foundation. She attempted to keep her opinions in line with Dr. Volarich and employee's but her opinions fail to hold up when even slightly scrutinized. Ms. Gonzalez based nearly the entirety of her conclusions on two completely erroneous assumptions:
First, Ms. Gonzales incorrectly believed that narcotic medication prescribed employee as a direct result of his right shoulder injury caused h