Jimmy Fields v. Southwest Airlines

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Reversing Award and Decision of Administrative Law Judge)

**Injury No.:** 12-040765

**Employee:** Jimmy Fields

**Employer:** Southwest Airlines (settled)

**Insurer:** Indemnity Insurance Company of North America (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 briefs, (including supplemental briefs filed in December, 2019¹) and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

At the hearing before the administrative law judge on December 6, 2018, the parties asked the administrative law judge to resolve issues related to five separate claims, including this primary injury claim with a date of injury (DOI) of May 17, 2012. The liability issues and disability levels attributable to the employer/insurer (employer) were settled prior to this hearing setting. The following issues were presented by the parties in this primary injury matter: 1) whether there was any permanent partial disability attributable to the primary injury; and 2) the nature and extent, if any, of permanent partial disability liability attributable to the Second Injury Fund.

The administrative law judge concluded: 1) Employee had not proven permanent partial disability resulted from the primary injury; 2) No liability attributable to the Second Injury Fund was established.

The primary injury in this claim (one of four back injury claims which were tried together before the administrative law judge), is the second of the four claimed successive low back injuries. The administrative law judge found employee had not established permanent partial disability levels of each of the four claimed back injuries because of the flawed method of equal apportionment by employee's expert between each of the four injuries. The judge wrote one decision combining all the injury claims and issued five identical decisions, (the fifth claim being based on a primary injury of hearing loss).

Because the administrative law judge found employee hadn't proven the level of permanent partial disability, if any, in this (or any of the four primary back injury claims), he found employee failed his burden to show the primary injury (low back, DOI 5/17/12), combined with any preexisting disabilities, such that Second Injury Fund liability was established. While we agreed with the administrative law judge in three of those claims, in this matter, we believe the record has additional support from which to find a disability rating for this primary injury.

¹ After the parties submitted the case to the Commission, the Missouri Supreme Court issued its opinion in *Cosby v. Treasurer of the State of Missouri*, 579 S.W. 3d 202 (Mo. June 25, 2019). Also the case of *Krysl v. Treasurer of Mo. as Custodian of the Second Injury Fund*, 591 S.W. 3d 13 (Mo. App. E.D. 2019, transfer denied Feb. 18, 2020). The parties were given the opportunity to supplement their arguments as a result of that ruling. The *Cosby* case had implications for a companion claim that was tried with the instant claim before the administrative law judge.

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Improvee: Jimmy D. Fields

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have combined to create a greater overall disability than the disabilities considered separately. When one injured body part is causing pain such as his back, employee would tend to compensate by using more strength in his shoulders or hands. The combined disabilities create a greater overall disability.

**Conclusions of Law**

Section 287.220.2 RSMo provides for compensation from the Second Injury Fund for injuries where there has been preexisting disability due to injuries occurring prior to January 1, 2014. It is employee's burden to first show the level of disability from the primary/last injury. This is true whether the claim is for permanent total or permanent partial disability against the Second Injury Fund. The evidence in this record supports a finding that some level of disability arose from the May 17, 2012, low back injury and there is support for a permanent partial disability rating of 3.5% as requested by the employee, referable to this injury. We adopt this rating. Employee has met the threshold step necessary before any further analysis of increased disability by combination with preexisting disabilities.

Employee has established preexisting disabilities which meet the required threshold in § 287.220.2 of 50 weeks. He has established a synergistic effect among the primary and preexisting disabilities. We find a loading factor should be applied of 15%.

Therefore, we find Second Injury Fund liability exists under § 287.220.2.

The Second Injury Fund liability is calculated as follows:

Applying a 15% loading factor, results in 45.51 weeks of liability for the Second Injury Fund at the rate of 425.19 per week, for a total liability of 19,352.31.

**Award**

We reverse the award and decision of the administrative law judge relative to the claim for Second Injury Fund liability in this injury claim. We conclude that employee suffered a compensable injury by accident arising out of and in the course of his employment, resulting in 3.5% permanent partial disability referable to the low back.

The Second Injury Fund is liable for weekly permanent partial disability benefits at the rate of 425.19 per week for 45.51 weeks, in the amount of 19,352.31. This award is subject to a lien in favor of employee's counsel, Robert D. Arb, Attorney at Law, in the amount of 25% for necessary legal services rendered.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Joseph P. Keaveny is attached solely for reference.

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Given at Jefferson City, State of Missouri, this **22nd** day of September, 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

**S. Kiki Curls**

Shalonn K. Curls, Member

Attest:

**Tammie McKinnon**

Secretary

Employee: Jimmy D. Fields

I have reviewed the evidence, read the briefs of the parties, and considered the whole record.

After considering all of the competent and substantial evidence on the whole record, as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed. Therefore, I adopt the decision of the administrative law judge, in its entirety, as my decision in this matter.

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

Reid K. Forrester, Member

Employee: Jimmy Fields

Jimmy No.: 12-040765

Dependents: N/A

Employer: Southwest Airlines (settled)

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Additional Party Treasurer as Custodian of the Second

Injury Fund

Insurer: Indemnity Insurance Company of

North America (settled)

Jefferson City, Missouri

Hearing Date: December 6, 2018

Checked by: JPK

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? No

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: 5/17/2012

1. State location where accident occurred or occupational disease was contracted: St. Louis

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee hurt his lower back lifting bag off of the belt.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Lower back

1. Nature and extent of any permanent disability: 3.5% body as a whole referable to lower back

1. Compensation paid to-date for temporary disability: $14,611.76

1. Value necessary medical aid paid to date by employer/insurer? $27,645.81

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 1,105.62
3. Weekly compensation rate: $\ 737.08 TTD/ $\ 425.19 PPD
4. Method wages computation: Stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable:

None

1. Second Injury Fund liability:

TOTAL:

None

1. Future requirements awarded:

N/A

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant 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 claimant: Robert D. Arb

This case involves five separate Claims for Compensation alleged by employee, the first four of which are injuries to the lower back. The first injury is an accident injury to the lower back, suffered by employee, identified by Injury Number 11-064748, on 8/17/2011. The second injury is an accident injury to the lower back, suffered by employee, identified by Injury Number 12-040765, on 5/17/2012. The third is an accident injury to the lower back, suffered by employee, identified by Injury Number 12-048145, on 6/29/2012. The fourth injury is an accident injury to the lower back, suffered by employee, identified by Injury Number 12-088323. The fifth injury is an occupational disease, for loss of hearing, suffered by employee, identified by Injury Number 12-107133. Claimant seeks permanent total disability in the fourth and/or fifth case. These cases may be referred to hereinafter as the first, second, third, fourth, and fifth cases, respectively and chronologically.

The testimony and exhibits in this record constitute the evidence in each Claim. Separate awards are issued on each Claim.

On 12/6/2018, the parties appeared for a hearing. Jimmy Fields ("Employee") appeared in person and with Attorney Robert D. Arb. Assistant Attorney General Rachael Houser re