Thomas Dubuc v. OTG, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

**Injury No.:** 15-087903

**Employee:** Thomas Dubuc

**Employer:** OTG, LLC (Settled)

**Insurer:** Travelers Indemnity Company of America (Settled)

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

On March 3, 2020, the Missouri Court of Appeals Western District reversed the Labor and Industrial Relations Commission's (Commission's) April 17, 2019, award finding the Second Injury Fund liable to employee for permanent total disability benefits in this matter. *Dubuc v. Treasurer of State*, 597 S.W.3d 372 (Mo. App. 2020). The court further remanded the case to the Commission and directed us to consider all of the evidence and make additional factual findings before applying the correct legal standard to the facts. Specifically, the court directed the Commission to apply:

- Which, if any, of employee's preexisting disabilities were medically documented as equaling a minimum of fifty weeks permanent partial disability according to medical standards used in determining compensation;

- Whether employee's qualifying preexisting disabilities, if any, directly and significantly aggravated and accelerated the subsequent work-related injury of October 30, 2015;

- Whether employee's qualifying preexisting disabilities, if any, were unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury on October 30, 2015.

On April 7, 2020, employee filed "Petitioner's Motion to Conduct Additional Discovery, Submit Additional Evidence and Submit Supplemental Briefs" with the Commission. On July 17, 2020, the Commission denied employee's request to conduct additional discovery and submit additional evidence noting that the court's opinion and mandate specifically instructed the Commission to make additional factual findings and to apply § 287.220.3 to employee's Second Injury Fund permanent total disability claim based on the evidence in the record. The Commission granted employee's request to submit supplemental briefs. We have read the parties' supplemental briefs.

Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

Improve: Thomas Dubuc

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(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[.]

§ 287.220.3(2) RSMo.

Employee's only alleged preexisting disabilities that arguably reached the fifty-week minimum outlined in § 287.220.3 consisted of multiple alleged hernia repairs and Factor V Leiden mutation combined with anticoagulation.

Employee's expert Dr. Mitchell C. Mullins relied entirely on employee's self-reporting in diagnosing employee's history of hernia and hernia repairs. Employee submitted no records related to a diagnosis of or treatment for hernias. All mentions of hernias in the medical records were drawn from employee's self-reported history. The absence of records relating to a hernia condition is consistent with employee's report to Dr. Mullins, that he has not required treatment of this condition in twenty years.

According to Dr. Mullins and Mercy Hospital, employee had five hernia repairs. According to the Veterans Administration, employee had only four repairs. According to Dr. Mullins, employee's last hernia repair occurred in 1996. According to the Veterans Administration, the last repair occurred in both 1994 and 1995. It is apparent that these doctors were not referring to medical records of diagnosis and treatment when they

Injury No.: 15-087903

Employee: Thomas Dubuc

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reported employee's history of hernias; rather, they were simply recording what employee told them at the time.

The absence of any direct evidence of employee's alleged hernia repairs fails to satisfy the requirement of § 287.220.3 that an employee's preexisting disability be "medically documented." Consequently, we conclude employee's alleged preexisting hernias do not qualify as a preexisting disability as defined by § 287.220.3 and must be excluded from consideration when determining Second Injury Fund liability in this case.

Dr. Mullins evaluated employee's Factor V Leiden mutation and chronic anticoagulation as 25% of the body as a whole. This is calculated at 100 weeks. However, there is no evidence in the record that this disorder aggravated and accelerated employee's subsequent work injury other than Dr. Mullins' generic deposition testimony, elicited by employee's attorney, that all of employee's preexisting conditions significantly aggravated his October 10, 2015, work injury. Dr. Mullins' deposition testimony is inconsistent with his September 1, 2016, report, addressing "second injury fund concerns." Dr. Mullins' September 1, 2016, report specifically omits reference to employee's Factor V Leiden deficiency and chronic anticoagulation in discussing synergism between employee's October 30, 2015, primary injury and his preexisting disabilities.

We find as a factual matter that employee has established no medically documented preexisting disability that equals a minimum of fifty weeks permanent partial disability according to medical standards used in determining compensation and which directly and significantly aggravated and accelerated employee's October 30, 2015, primary injury.

Conclusion

As we have found, employee failed to demonstrate that any medically documented preexisting disability, equaling a minimum of fifty weeks permanent partial disability, aggravated and accelerated disability from his October 30, 2015, primary injury to result in permanent total disability. Pursuant to § 287.220.3, the law applicable to employee's claim, the Second Injury Fund therefore has no liability.

Transcript, p. 88.

Although not the basis of this award, we note that employee also failed to demonstrate that a single qualifying preexisting disability, exclusive of any other preexisting disabilities, combined with disability from his primary injury to result in permanent total disability. Employee's contention that Treasurer of Missouri as Custodian of the Second Injury Fund v. Parker, (WD83030, July 14, 2020) controls this issue is incorrect. On September 4, 2020, pursuant to Rule 83.02, the Western District Court of Appeals transferred its opinion in this case to the Supreme Court. In addition, the Eastern District Court of Appeals, in Sterling Bennett v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund (ED108713, August 25, 2020), specifically endorsed the Commission's denial of Second Injury Fund liability pursuant to § 287.220.3(2) where the employee failed to present a total disability opinion that considered only the combination of his primary injury and a single preexisting right shoulder injury.

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Given at Jefferson City, State of Missouri, this **16th** day of November 2020.

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Shalonn K. Curls, Member**

Attest:

**Samantha M. Hamer**

Secretary

Injury No.: 15-087903

Employee: Thomas Dubuc

On March 3, 2020, the Western District Court of Appeals remanded this case to the Commission to apply the proper legal standards described in § 287.330.3 to the evidence to determine whether Thomas Dubuc has sustained his burden to establish the right to an award of permanent total disability from the Second Injury Fund. *Dubuc v. Treasurer of State*, 597 S.W.3d 372, 384 (Mo. App. 2020).

At the time the parties were originally conducting discovery, *Gattenby v. Treasurer of State*, 516 S.W.3d 859 (Mo. App. 2017) was the law. Employee's medical expert and vocational expert analyzed employee's case based on *Gattenby* and § 287.220.2. Under § 287.220.2 the Commission may consider any previous disabilities "whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment." Pursuant to the *Cosby* decision, the Commission and parties must now apply § 287.220.3, which establishes a threshold of fifty weeks of permanent partial disability for preexisting disabilities and sets out four specific categories that qualify as compensable preexisting disabilities.

The Commission previously found that employee, Thomas Dubuc, was permanently and totally disabled. The Commission further found that employee suffered from at least two preexisting disabilities that met the fifty-week threshold: 23% permanent partial disability of the abdomen rated at the body as a whole due to recurrent bilateral inguinal hernias (92 weeks), and 25% permenanent partial disability of the body as a whole due to Factor V Leiden deficiency and chronic anticoagulation (100 weeks).

After the court's remand, employee requested leave to conduct discovery on issues related to the requirements of § 287.220.3. Specifically, employee's attorney sought to question his experts as to whether employee's preexisting disabilities that met the fifty-week threshold significantly aggravated or accelerated the subsequent work-related injury. Because the law changed midstream, neither party had any notice that evidence satisfying or rebutting the requirements of § 287.220.3 was necessary in this case. Such opinions and testimony therefore constituted "newly discovered evidence which with reasonable diligence could not have been produced at the hearing."

Affording employee the opportunity to conduct discovery and present additional evidence regarding whether his claim satisfies the requirements of § 287.220.3 is necessary to further the interests of justice. The majority's denial of employee's request constituted a denial of due process and an abuse of discretion. I reiterate my dissent from the majority's July 17, 2020, order denying employee's request.

That said, even considering only the existing record, there is competent and substantial evidence to support a finding that employee's preexisting recurrent bilateral inguinal hernias and Factor V Leiden deficiency and chronic anticoagulation, both evaluated as exceeding fifty weeks of permanent partial disability, were medically documented and significantly aggravated and accelerated his October 30, 2015, work-related fall which resulted in injuries to employee's left wrist, kidneys, and lower back.

Injury No.: 15-087903

Employee: Thomas Dubuc

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In a progress note dated May 12, 2010, surgeon Dr. Joseph Bauer recorded employee's several hernia repairs, repaired with mesh, and further noted "Suspect pulled/streched [sic] mesh". 3 In a hospital admission note dated October 31, 2015, the day following employee's primary injury, Dr. Salman Ahmed noted em