Richard Joyner v. Monsanto

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 17-035903

**Employee:** Richard Joyner

**Employer:** Monsanto

**Insurer:** American Zurich Insurance Company

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

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 9, 2020. The award and decision of Administrative Law Judge Joseph P. Keavney, issued April 9, 2020, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this **20th** day of November 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

Shalonn K. Curls, Member

**Attest:**

Secretary

Injury No. 17-035903

Employee: Richard Joyner

I have read the briefs of the parties, heard the parties' arguments and reviewed the whole record. I have considered all of the competent and substantial evidence based on 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 concur with the majority's decision affirming the administrative law judge's award finding employer liable for employee's permanent total disability.

I deferred to the administrative law judge's findings in making my decision to affirm mainly because the medical expert testimony of Drs. Brian Fissel and David Volarich do not appear to be consistent with the opinions of vocational expert Mr. Benjamin Hughes on the issue of employee's ability to compete in the open labor market. For example, Mr. Hughes opined that employee could perform plumbing related sales jobs, and some unskilled/semiskilled positions such as a parking lot attendant, ticket sales, cashier, an office cleaner, and other related jobs. He further opined that under Dr. Fissel's restrictions, employee could compete for jobs at the light level. Mr. Hughes believed that under Dr. Volarich's restrictions, employee could compete in sedentary and some light duty positions. Dr. Fissel placed the following physical restrictions on employee: no climbing on ladders, no squatting and no kneeling. Dr. Volarich also placed physical restrictions on employee, such as limited repetitive stooping, squatting, crawling, kneeling, pivoting, climbing, and all impact maneuvers, caution when navigating uneven terrain, limited prolonged weight bearing, and on standing or walking to 60 minutes. It does not appear to me that employee could successfully compete in the labor market for any of the jobs that Mr. Hughes recommended under the physical restrictions imposed by either doctor. If there was more medical evidence supporting Mr. Hughes' view that employee could successfully participate in the open labor market under Drs. Fissel or Volarich's physical restrictions, I would have been much more inclined to rule differently, by concluding that employee was not permanently and totally disabled. However, that was not the case with this decision. There was no evidence from Drs. Fissel or Volarich indicating that employee would have no problem finding work in light duty or semi-skilled positions after his January 18, 2017 primary work injury, and his resulting deep vein thrombosis.

In all other respects, I concur with the majority's decision to affirm the administrative law judge's award.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

AWARD

Employee: Richard Joyner

Dependents: N/A

Employer: Monsanto

Additional Party: Treasurer as Custodian of the Second Injury Fund

Insurer: American Zurich Insurance Company

Hearing Date: January 16, 2020

Injury No.: 17-035903

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: JPK

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

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: January 18, 2017

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

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: Claimant was working on his knees, all day, in a water closet. While turning a valve, he twisted his left knee.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Left knee, Pulmonary system

1. Nature and extent of any permanent disability: Permanent total disability

1. Compensation paid to-date for temporary disability: $47,777.89

1. Value necessary medical aid paid to date by employer/insurer? $71,122.99

WC-32-R1 [6-01]

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 1,560.00

1. Weekly compensation rate: 911.27 TTD/ $477.33 PPD

1. Method wages computation: Stipulation

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

$911.27 per week from Employer and Insurer for Employee's lifetime

**INDETERMINATE**

1. Second Injury Fund liability: None

**TOTAL:**

**INDETERMINATE**

1. Future requirements awarded:

All necessary medical care to treat Employee's deep vein thrombosis and pulmonary emboli and to prevent their reoccurrence.

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: Thomas J. Gregory.

WC-32-R1 (6-81)

Page 2

On January 16, 2020, the parties appeared for a hearing. Richard Joyner ("Employee") appeared in person and with Attorney Thomas J. Gregory. Assistant Attorney General Jennifer Sommers represented the Second Injury Fund. The Employer, Monsanto, and its Insurer, American Zurich Insurance Company were represented by Attorney Andrew Kovacs.

1) The employer, Monsanto, was operating subject to the Missouri Workers' Compensation Law at all times herein. 2) Claimant was in the employ of Murphy \& Miller Company at the time of the injury, but the Claimant's injury occurred on Monsanto's premises during a Monsanto construction project. Monsanto provided workers' compensation coverage for all of the contactors working on the job during this period of construction. 3) The employer was provided notice of the Employee's alleged injury and the Report of Injury was timely filed. 4) St. Louis, Missouri is the proper venue. 5) The average weekly wage on the date of injury was $\ 1,560.00, which is sufficient to qualify for rates of $\ 911.27 for temporary total disability (TTD), and $\ 477.33 for permanent partial disability (PPD). 6) Employer paid $\ 71,122.99 in medical expenses and $\ 47,777.89 in benefits, representing 523/7 weeks, during February 7, 2017 through February 8, 2018. 7) Employee reached maximum medical improvement on February 8, 2018 and received temporary total disability benefits up to that date.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

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

1. Stipulation for Compromise Settlement in Injury Number 86-135106 - Richard Joyner v. Finch Plumbing (D/A 11/21/86)
2. Treatment records from Division file in Injury Number 86-135106 from Dr. Markenson, Dr. Burmeister and Dr. Conrad
3. Stipulation for Compromise Settlement in Injury Number 05-128051 - Richard Joyner v. Bieg Plumbing (D/A 11/03/05)
4. Medical records of Dr. Thomas K. Lee from February 21, 2005 to June 14, 2006
5. Medical records of Dr. Justin Hugo from February 6, 2006 to November 14, 2018
6. Inpatient records from St. Anthony's Medical Center from February 6, 2017 to February 11, 2017
7. MRI of left knee from St. Louis Imaging dated January 24, 2017
8. Inpatient records from St. Anthony's Medical Center from November 25, 2017 to November 28, 2017
9. Deposition of Dr. David Volarich taken on July 12, 2019
10. Deposition of Delores Gonzalez taken on August 5, 2019
11. Medical records from the office of Dr. Brian Fissel

Employer/Insurer introduced, and had admitted into evidence, the following exhibits:

A) The final rating report of Dr. Brian Fissel, dated April 20, 2018

B) The deposition of Vocational Expert Benjamin Hughes, dated October 3, 2019

The Second Injury Fund did not introduce any exhibits into evidence.

1. Liability of the Employer/Insurer for future medical treatment
2. Nature and extent of disability, whether permanent partial or permanent total
3. Liability of the Second Injury Fund

Employee was a journeyman plumber in the employ of Murphy & Miller at the time of the injury. He had been working as a plumber since 1983 at various companies. Employee describes the job of a journeyman plumber as being on his feet all day. He would have to bend, kneel, squat, reach, balance objects, carry objects, push, pull and climb ladders. He testified that he would work 40 to 60 hours per week. Lifting heavy objects was part of the job.

On January 18, 2017, the Employee injured his left knee while attempting to perform his job. His employer, Murphy & Miller, was a subcontractor on a job at Monsanto and Monsanto provided the workers' compensation insurance for the entire job. Employee indicated that all new fixtures had been put in, and when Monsanto measured, the new fixtures were off a half-inch and they were required to come in and tear out the new water closets, toilets, and water

WC-32-81 (6-01)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-035903

lines. He indicated there was a row of lavatories where he had to go and take the valves off so he could drain the system. It required him to get down very low beneath the lavatories. He twisted his left knee, heard a popping noise and felt immediate pain. He indicated that he could not get up on his own and another worker came in and helped him up. He had severe pain in his left knee and he could not walk without help.

Employee was accompanied by Mu