Jimmy Fields v. Southwest Airlines

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 12-088323

**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. Having reviewed the evidence, read the briefs, (including supplemental briefs filed in December, 2019¹) and considered the whole record, we find that the award of the administrative law judge denying compensation in favor of the Second Injury Fund, is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The administrative law judge found that employee had not proven permanent total disability occurred as a result of a combination of the last injury (low back DOI November 9, 2012) and his preexisting disabilities, such that Second Injury Fund liability was established. We agree, however, we write to supplement the judge's reasoning in certain respects.

The primary injury in this claim (one of five injury claims which were tried together before the administrative law judge) is the last of four successive low back injuries claimed. The administrative law judge wrote one decision combining all the injury claims and issued five identical decisions. The focus of the "combined disability" analysis was the four work-related back injury claims. The analysis did not specifically address this primary injury claim with consideration of preexisting conditions, and whether it rose to permanent total disability under § 287.220.2 RSMo. He also did not address whether employee proved the alternative theory posed - that this primary injury combined with preexisting conditions to establish a greater overall permanent partial disability, such that Second Injury Fund liability would exist.

We adopt the administrative law judge's Findings of Fact to the extent they are not in conflict with our findings here.

Dr. Robert Margolis provided ratings of 6.25% disability to the body as a whole referable to each of the four back injuries, which were filed as separate claims. We do not find his method of attribution to be persuasive. Dr. Russell Cantrell's opinion was that there was no permanent disability referable to the back with regard to those injuries, with the exception of the May 17, 2012 injury. He specifically found no disability from the alleged November 9, 2012 back 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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Injury No.: 12-088323

the primary injury in this claim. We do not find persuasive evidence that the primary injury in this claim to the low back (DOI 11/9/2012), resulted in permanent disability.

**Conclusions of Law**

Section 287.220.2 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.

Employee has not persuaded us that the primary injury alleged in this claim resulted in permanent partial disability. He has not met the threshold step necessary before any further analysis of increased disability by combination with preexisting disabilities. Therefore, we cannot find in his favor on the issue of Second Injury Fund liability under § 287.220.2.

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

**Decision**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Joseph P. Keaveny is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 12-088323

Before the Division of Workers' Compensation Department of Labor and Industrial Relations Of Missouri

Jefferson City, Missouri

Checked by: JPK

1. Are any benefits awarded herein? No
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: 11/9/2012
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Employee felt a pop in lower back while unloading a plane.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lower back
14. Nature and extent of any permanent disability: 4.5% body as a whole referable to lower back
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employerinsurer? 0
2. Employee's average weekly wages: Unknown
3. Weekly compensation rate: $\ 692.53 TTD/ $\ 425.19 PPD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

None

1. Second Injury Fund liability

None

TOTAL:

NONE

1. Future requirements awarded:

$\mathrm{N} / \mathrm{A}$

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

**Injury No.:** 12-088323

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-088323

5) The City of St. Louis is the proper venue.

6) In the first case, the average weekly wage at the date of the injury was sufficient to qualify for rates of 687.53 for temporary total disability (TTD), and 425.19 for permanent partial disability (PPD).

7) In the second case, the average weekly wage at the date of the injury was sufficient to qualify for rates of 737.08 for TTD and 425.19 for PPD.

8) In the third case, the average weekly wage at the date of the injury was sufficient to qualify for a rate of $425.19 for PPD.

9) In the fourth case, the average weekly wage at the date of the injury was sufficient to qualify for rates of 692.53 for TTD and 425.19 for PPD.

10) In the fifth case, the average weekly wage at the date of the injury was sufficient to qualify for rates of 692.53 for TTD and 433.58 for PPD.

11) In the first case, Employer paid 8,144.07 in medical expenses and 982.23 in TTD.

12) In the second case, Employer paid 27,645.81 in medical expenses and 14,611.76 in TTD.

13) In the third case, Employer paid zero in medical expenses and zero in TTD.

14) In the fourth case, Employer paid zero in medical expenses and zero in TTD.

15) In the fifth case, Employer paid zero in medical expenses and zero in TTD.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) Dr. Robert Margolis's curriculum vitae

2) Dr. Robert Margolis's report dated June 16, 2015

3) Indexed medical records

4) Vincent Stock's curriculum vitae

5) Vincent Stock's report of vocational rehabilitation evaluation dated August 10, 2015

6) Vincent Stock's report of psychological evaluation dated April 17, 2018

7) Dr. Sheldon Davis' hearing evaluation report of October 23, 2014

8) Dr. Anthony Mikulec's hearing evaluation report of September 9, 2016

9) Certified copy of Division records of Workers' Compensation Claim for Injury No. 09-019206

10) Certified copy of Division records of Workers' Compensation Claims for Injury Nos. 10-110287, 11-064748, 12-040765, 12-048145, 12-088323 and 12-107133

11) Deposition of Dr. Robert Margolis of October 20, 2016

12) Deposition of Vincent Stock of June 20, 2018

13) Description of injury for each Injury Number

14) Note regarding 6/28/11 counseling visit with psychologist Mike Diller

15) Employer's wage statement

SIF introduced, and had admitted into evidence, the following Exhibit

I) Orthopedic Sports Medicine & Spine Care Institute report dated February 3, 2015

WV-32-R1 (6-01)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-088323

ISSUES

1) In the first case, liability of the Second Injury Fund for permanent partial disability.

2) In the second case, liability of the Second Injury Fund for permanent partial disability.

3) In the third case, liability of the Second Injury Fund for permanent partial disability.

4) In the fourth case, liability of the Second Injury Fund for permanent partial disability or permanent total disability.

5) In the fifth case, liability of the Second Injury Fund for permanent partial disability or permanent total disability.

FINDINGS OF FACT

Employee was born on 9/27/1950. He is married and has one child and two grandchildren. In 1969, employee graduated from Kennett Missouri High School. He has trouble reading. In 1974, he was diagnosed with severe dyslexia and struggled in high school. He took special education classes for six to eight years. His wife handles the family finances, as he c