Alan Marberry v. Alan Marberry

(Affirming Award and Decision of Administrative Law Judge)

Employer: Alan Marberry

Insurer: ConAgra Foods (Settled)

Old Republic Insurance Company (Settled)

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

Injury No. 15-083958

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 June 16, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Marvin O. Teer, Jr., issued June 16, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 19th_____ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I believe that the administrative law judge in this case improperly applied § 287.220.3. All of employee's preexisting conditions satisfy $\S$ 287.220.3(a)a. The administrative law judge determined that the right shoulder cannot be considered for Second Injury Fund liability under $\S 287.220 .3$ because employee's right shoulder did not reach maximum medical improvement until nearly two years after the 2015 injury. I believe that employee's right shoulder should qualify as a preexisting permanent partial disability pursuant to $\S 287.220 .3(a) a, and that employee has met his burden under \S 287.220 .3$ to find Second Injury Fund liable for his permanent total disability benefits. Even If employee's right shoulder injury did not qualify as a preexisting disability pursuant to § 287.220.3(a)a, employee could still use his qualifying preexisting permanent partial disability of 20 % to his neck along with his 2015 injury to qualify for Second Injury Fund benefits under § 287.220.3. I believe that employee's situation is similar to that of the claimant in SIF v. Jonathan Parker ${ }^{1}$. In Parker, the Court determined that

[S]o long as an employee has a preexisting disability that satisfies one of the thresholds in Subsection 3 and the employee has a qualifying subsequent primary injury, then the Commission may consider less serious preexisting injuries and disabilities as well as all other characteristics of the individual in determining whether an employee is permanently and totally disabled as a result. Thus, even applying Subsection 3, we find that the facts as found by the Commission are sufficient to warrant the making of the award. ${ }^{2}$

The testimony of medical expert Dr. David Volarich and vocational expert Mr. Timothy Lalk was unrebutted, and proved that employee's preexisting disabilities combined with the 2015 injury to produce a greater disability than would have resulted from the last injury alone. Both Dr. Volarich and Mr. Lalk deemed employee to be permanently and totally disabled given the injuries he suffered as a direct result of the 2015 injury in combination with his preexisting disabilities. I believe that employee met his burden and established he is permanently and totally disabled from the combination of his 2015 injury and his preexisting disabilities and, as I stated above, at least one of the preexisting disabilities considered by Dr. Volarich satisfied the requirements of § 287.220.3(2).

For these reasons, I would find Second Injury Fund to be liable for employee's permanent total disability. Because the majority of the Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls Member

[^0]

[^0]: ${ }^{1}$ (WD83030) (Transferred to the Supreme Court on September 4, 2020 - SC98704).

${ }^{2} \mathrm{Id}$.

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** Alan Marberry

**Dependents:** N/A

**Employer:** ConAgra Foods (Settled)

**Additional Party:** Second Injury Fund

**Insurer:** Old Republic Insurance Co. (Settled)

**Hearing Date:** March 16, 2020

**Injury No.:** 15-083958

**Before the**

**Division Of Workers'**

**Compensation**

**Department of Labor and Industrial**

**Relations of Missouri**

**St. Louis, Missouri**

**Checked by:** MOT

**Hearing Date:** March 16, 2020

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: September 24, 2015

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

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 happened or occupational disease contracted: Claimant was moving boxes and injured his neck.

1. Did accident or occupational disease cause death? No

**Date of death:** N/A

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

1. Nature and extent of any permanent disability: 13.4% PPD of the BAW

1. Compensation paid to-date for temporary disability: None

1. Value necessary medical aid paid to date by employer/insurer? $1,139.65

1. Value necessary medical aid not furnished by employer/insurer? -0-
2. Employee's average weekly wages: Stipulated
3. Weekly compensation rate: $\$ 886.92 / \ 464.58
4. Method wages computation: Agreed

1. Amount of compensation payable: N/A

None

1. Second Injury Fund liability: N/A

TOTAL: $\quad-0-$

1. Future requirements awarded: None

Said payments to begin 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: Attorney Stephen W. Thurmer.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

**Employee:** Alan Marberry

**Dependents:** N/A

**Employer:** ConAgra Foods (Settled)

**Additional Party:** Second Injury Fund

**Insurer:** Old Republic Insurance Co. (Settled)

**Hearing Date:** March 16, 2020

**Injury No.:** 15-083958

**Before the**

**Division Of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**St. Louis, Missouri**

**Chartered by:** MOT

A final hearing was held on March 16, 2020, at the Division of Workers' Compensation in the City of St. Louis, Missouri. Attorneys Stephen W. Thurmer and Rich Lecinski represented Alan Marberry ("Claimant"). ConAgra Foods ("Employer"), and its insurer, previously settled their liability. Assistant Attorney General Madalyn J. Campbell represented the Second Injury Fund ("the Fund"). Attorney Stephen Thurmer requested a fee of 25% of Claimant's award.

The parties stipulated to the following:

- Venue is proper in St. Louis, Missouri.

- The claim was timely filed.

- Claimant suffered an acute injury within the course and scope of employment.

- Employer was fully insured in compliance with the requirements of Chapter 287.

- Claimant's Permanent Total Disability ("PTD") rate is 886.92.

- Claimant's Permanent Partial Disability ("PPD") rate is 464.58

- Employer paid $1,139.65 in medical expenses.

- Employer paid no temporary and total disability ("TTD") benefits.

- Claimant reached maximum medical improvement ("MMI") for his primary injury on June 28, 2018.

1. Nature and extent of liability of the Second Injury Fund ("Fund").

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

Based on the competent and substantial evidence, observations of Claimant at trial, and the reasonable inferences to be drawn from, the Court makes the following findings:

Claimant is a 63-year-old-man. He graduated from Westview High School in 1975, and attended St. Louis Community College for a little over a year. In 2017, Claimant married his wife, Felicia, who he lives with in the St. Louis area. Claimant has no children.

After high school, Claimant worked as a transporter at DePaul Hospital and performed some factory jobs. In the 1980s, Claimant worked at the GM plant as an assembler. In 1995, Claimant began working for Old Judge Coffee as a coffee roaster. In this job, Claimant used a computer and cleaned roasters. In 1998, Claimant left Old Judge Coffee and began working for Raskas Dairy as a mixer. In this position, Claimant made flavored cream cheese. In 2005, Claimant began working for Employer as a mixer. In this job, Claimant made egg substitutes. Claimant worked for Employer until 2016, when he and the rest of the employees were laid off because the plant closed.

Claimant's position, as a mixer, required him to mix 4-5 batches per day and to lift 8-10 bags per batch. The bags weighed about 50 pounds, and sometimes weighed up to 90 pounds. Claimant stood or walked for about one hour at a time. Claimant was able to sit for 30-45 minutes during the mixing. The job also required Claimant to climb a small ladder, reach above head, bend, kneel, and squat. The Court notes Claimant's testimony at hearing was clear, concise and credible.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

On September 24, 2015, Claimant fell backwards and sustained an injury after reaching for a box. Two weeks later, Claimant sought treatment for his neck at BarnesCare. Claimant was prescribed medications and diagnosed with a strain and a pelvis contusion. A week later, Claimant was prescribed physical therapy and given light-duty restrictions. After completing the course of physical therapy, Claimant was placed at MMI and released without restrictions.

At hearing, Claimant testified, before his primary injury, he suffered from three preexisting disabilities—two to his neck and one to his right shoulder.

On or about July 19, 1999, Claimant sustained an injury to his neck pulling pallets. Claimant felt pain in-between his shoulder blades, and it was revealed that there was a disc herniation at T2-3. Claimant underwent an MRI, which revealed degenerative disc disease at C3-4 to C6-7 with protruding discs at C5-6, C6-7 and C7-T1. Claimant did not admit evidence of additional treatment. Claimant was not given any permanent restrictions and continued to work full time and full duty. Claimant settled this injury with Raskas Dairy for 20% PPD of the BAW.

On or about October 7, 2002, Claimant was involved in a car accident and sustained an injury to his neck. X-rays revealed degenerative changes to both his cervical and thoracic spine, and a partially reducible grade I anterior spondylolisthesis at C4 and C5. The next year, Claimant underwent a cervical discectomy and fusion at C4-5 with instrumentation. Claimant was not given any permanent restrictions and continued to work full time and full duty.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

On or about December 19, 2014, Claimant was carrying a 50-pound bag up a ladder and jerked his right shoulder, causing injury. He went through a course of physical therapy. A few months later, an MRI was performed, which revealed changes in the rotator cuff and impingement. Claimant was diagnosed with a right shoulder strain. Three months later Claimant received an injection in his right shoulder. But, in October of 2015, Claimant's right shoulder pain persisted.

In 2016, after an MRI, Claimant was diagnosed with a labral tear, tendinosis, and bursitis of the rotator cuff. In December of 2016, Claimant underwent surgery of the right shoulder. After surgery, Claimant was prescribed a course of physical therapy and given 5 pound lifting restriction. Restrictions were gradually decreased and Claimant was placed at MMI and released to return to work in May of 2017.

Dr. Volarich was hired by Claimant to perform an IME and testify on his behalf. Dr. Volarich opined Claimant is permanently and totally disabled ("PTD") as a result of "the work-related injuries of December 19, 2014 and September 24, 2015 in combination with each other, as well as in combination with his preexisting medical conditions." Dr. Volarich diagnosed the preexisting medical conditions of disc protrusion at C5-6, C6-7, and C7-T1, cervical C4-5 facet dislocation requiring discectomy with fusion and instrumentation, and lumbar strain/sprain which resolved and was asymptomatic.

Dr. Volarich provided restrictions referable to the right shoulder, including: Limitation of overhead and outstretched use of the arm; limit pushing, pulling, and traction maneuvers; not [to] lift weight greater than 3-5 pounds with his right arm extended away from the body to overhead;

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

and lifting no more than 15 pounds with the right hand alone. Dr. Volarich did not provide restrictions for the spine.

On cross-examination, Dr. Volarich acknowledged Claimant was not under any permanent restrictions leading up to his primary injury in 2015.

Mr. Timothy Lalk

Claimant hired Mr. Lalk to perform a vocational evaluation and to testify on his behalf. Mr. Lalk opined Claimant is unable to compete, at the unskilled sedentary level, because of his inability to control his symptoms through the workday. The symptoms Claimant reported to Mr. Lalk included:

- Limited lifting of no more than 15 pounds;

- Disrupted sleep from low back and lower extremity pain;

- "Low back days," when Claimant experiences low back pain and requires soaking in a warm bath;

- Right shoulder pain, which limits his ability to move his arms away from his body; and

- Low back and neck pain that limit his ability to stand and walk.

RULINGS OF LAW

Based upon a comprehensive review of the evidence, my observations of Claimant at hearing, and the application of Missouri law, the evidence does not support a finding Claimant is entitled to Fund benefits under § 287.220.3.

Section 287.220.3 applies to this claim because Claimant's injury occurred after January 1, 2014. See *Cosby v. Treasurer*, 579 S.W.3d 202, 207-08 (Mo. banc 2019); see also *Dubuc v. Treasurer*, No. WD82809, 2020 WL 1016619, at *7 (Mo. App. W.D. March 3, 2020). Under this section, Claimant must establish three essential and conjunctive steps to be entitled to benefits

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

from the Fund. See Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo. App. E.D. 1990) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003) (holding that Claimant bears the burden of proof on all essential elements of his workers' compensation claim).

First, Claimant must show he has "a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability..." Section 287.220.3(2)(a) (emphasis added).

Second, the disability qualifying under the first step must fall into one of four categories:

i) a direct result of active military duty;

ii) a direct result of a compensable injury as defined in Section 287.020;

iii) a preexisting disability which "directly and significantly aggravates or accelerates the subsequent work-related injury"; or

iv) a preexisting disability which is an opposing extremity to the primary injury.

See § 287.220.3(a)(i) - (iv).

Third, Claimant must prove the disability that qualifies under steps one and two combines with his primary injury to render him PTD. See § 287.220.3(a)(b). For purposes of Fund liability, only that qualifying disability may be considered in determining if Claimant is PTD. See Id. See also Lexow v. Treasurer, Injury No. 16-029680 at *7 (Labor & Indus. Relations Comm'n, March 20, 2020) (final admin. review). Alleged preexisting disabilities that do not qualify under steps one and two cannot be considered in determining whether Claimant is PTD. Id. A claimant whose permanent and total disability is based on conditions that do not qualify is not entitled to Fund benefits under § 287.220.3. See Id.; Klecka v. Treasurer, Injury No. 14-036889 at *6-7 (Labor & Indus. Relations Comm'n, January 14, 2020) (final admin. review, appealed to Mo. App. E.D, No. 108721).

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

1. Step One: Claimant's neck injury applies

Step one requires Claimant to establish he has a preexisting disability that equals 50 weeks of permanent partial disability. Section 287.220.3(2) (a) This means Claimant's preexisting disability must equal 50 weeks and must be permanent at the time of his primary injury.

The term "permanent partial disability" means a disability that is "permanent in nature and partial in degree." § 287.190.6 (1) RSMo. (2005). A disability is permanent when it reaches a point of maximum medical improvement ("MMI"). *Cardwell v. Treasurer*, 249 S.W.3d 902, 910 (Mo. App. E.D. 2008). Stated in the converse—a disability is not permanent until it reaches MMI. *See Id.* MMI is defined as "the point at which the [ ] medical condition has stabilized and can no longer reasonably improve with additional medical care, as determined within a reasonable degree of medical certainty." *See Id.*; *codified at* § 287.020.12 RSMo. (2018).

A preexisting disability qualifies under step one only if it had reached MMI before the date of the primary injury. The Court of Appeals provided guidance in *Lewis v. Treasurer*, where it construed old Fund law, which is now at § 287.220.2. 435 S.W.3d 144 (Mo. App. E.D. 2014). *Lewis* followed a line of cases that established a preexisting condition must be at MMI before the date of the primary injury in order for it to be considered for PPD benefits from the Fund. *See Miller v. Treasurer*, 425 S.W.3d 218 (Mo. App. E.D. 2014); *Hoven v. Treasurer*, 414 S.W.3d 676 (Mo. App. E.D. 2013). In *Lewis*, the Fund argued if preexisting disabilities had to be at MMI for PPD benefits from the Fund, then the same standard should apply for PTD benefits. *Lewis*, 435 S.W.3d at 153. Based on the language of the statute, the court disagreed. *Id.* at 156. The court found the language for PPD and PTD benefits was different, and, therefore, the requirements to receive those benefits were different. *Id.* Under the old law, to get PPD benefits, the claimant had to prove he had a "preexisting permanent partial disability... [Subject

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

to certain thresholds] ... [And] receive[d] a subsequent compensable injury..." See § 287.220.2.

But, to get PTD benefits, the claimant only had to prove his "previous disability or disabilities ... and the last injury result in total and permanent disability..." See Id. Notably, and central to the court's holding in Lewis, the word "permanent" is missing from the language describing who is entitled to PTD benefits from the Fund. See Id.

The language of step one under the new law sets out different requirements of claimants than what was required to get PTD benefits under the old law. The language of step one is akin to the language setting out requirements of PPD benefits under the old law. Step one requires Claimant to have a "...preexisting disability equaling a minimum of fifty weeks of permanent partial disability ... [and] thereafter sustains a subsequent compensable work-related injury..." § 287.220.3(2) (a). Notably, under step one, the word "permanent" is present. To pass step one, the disability must have been permanent before Claimant's primary injury.

Here, the evidence shows, Claimant has alleged three preexisting injuries—two to the neck and one to the right shoulder. The neck injuries occurred in 1999 and 2002, and reached MMI, or became permanent, in 1999 and 2003, respectively. But Claimant's right shoulder injury occurred in 2014, just one year before the primary injury. The right shoulder required surgery in December of 2016—a year after the primary injury—and did not reach MMI until 2017. As a matter of law, need for additional surgery renders a disability as not permanent. See Miller, 425 S.W.3d at 220-21; Hoven, 414 S.W.3d at 179-80. Claimant's right shoulder injury, therefore, did not reach MMI until nearly two years after the primary injury, thus, does not pass step one. As such, and applying the required strict statutory application, the right shoulder cannot be considered for Fund liability under § 287.220.3.

Claimant's neck disability, thus, remains for analysis under step one. The 1999 neck injury settled for 20% PPD of the BAW. The evidence submitted by claimant from Dr. Volarich

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

provides only one rating for the neck, which considers both the 1999 and 2002 injuries, at 20% PPD of the BAW. Either way, 20% of the BAW equals 80 weeks, and, thus, is sufficient to satisfy the requirements of step one.

1. Step Two: Claimant's neck injury falls in category (ii)

Step two requires Claimant's disability which passed step one to fall within one of four categories. See § 287.220.3(2) (a) a (i-iv). These categories are: i) active military duty; ii) a compensable injury as defined in Section 287.020; iii) a direct and significant aggravation and acceleration of the primary injury; or iv) an opposing extremity. Id.

In the case at bar, Claimant's 1999 neck injury falls within category (ii) as an acute work injury defined by § 287.020. The neck injury, therefore, satisfies step two.

1. Step Three: Claimant's claim to PTD benefits

Step three requires Claimant to prove his single qualifying preexisting disability combines with his primary injury to render him PTD. The evidence before this Court and its application to the law shows Claimant's case must fail. The evidence submitted by Claimant to prove he is PTD is based on a consideration of all of his alleged preexisting disabilities, and not just his qualifying neck injury. Specifically, both Claimant's experts base their PTD opinions on a consideration of his right shoulder injury, which had not yet reached a state of permanency. Based on a strict construction of the language used in § 287.220.3, the right shoulder injury is disqualified from consideration for Fund benefits.

Here, both Dr. Volarich and Mr. Lalk base their opinions Claimant is PTD on a consideration of his right shoulder injury. Dr. Volarich's testimony and medical conclusions indicate, "Mr. Marberry is [PTD] as a direct result of the work related injuries of December 14, 2014 [right shoulder] and September 24, 2015 [primary injury] in combination with each other as well as in combination with his preexisting medical conditions." Dr. Volarich offers permanent

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-083958

restrictions, but only to Claimant's right shoulder. He declined to offer permanent restrictions for Claimant's neck. The evidence before the Court, for determination of permanency, rests on disability from the right shoulder, and is thus, central to Dr. Volarich's opinion Claimant is PTD. Strict application does not aid in Claimant's burden he is PTD from his preexisting neck and primary neck injuries alone.

The evidence before the Court shows Mr. Lalk's opinion equally does not assist Claimant. Mr. Lalk acknowledged Claimant did not have any permanent restrictions before his primary injury, and Dr. Volarich only provided restrictions for the right shoulder. Mr. Lalk's testimony shows, even under Dr. Volarich's restrictions, Claimant could work in the sedentary level. Mr. Lalk testified it was only when considering Claimant's subjective reported capabilities that Claimant was removed from competition in the open labor market. Those subjective complaints, acknowledged by Mr. Lalk, are primarily in relation to conditions that do not qualify under steps one and two. Mr. Lalk testified Claimant's most concerning subjective complaint is the pain in his low back, which causes him the need to rest and soak in a warm bath. There is no evidence Claimant's low back is alleged as a prior injury in this case and does not reach 50 weeks of PPD (Dr. Volarich rated it at 10% PPD of the BAW, which is 40 weeks).

The Court finds Claimant's evidence, as a matter of law, does not meet the standards of § 287.220.3 and only demonstrates Claimant is PTD from a combination of all his injuries, and not simply his primary injury and single qualifying preexisting disability. Consistent with the required strict application, Claimant has failed to meet his burden of proof he is entitled to PTD benefits from the Fund. See Lexow, Injury No. 16-029680 at *7-9; Klecka, Injury No. 14-036889 at *5-7. Consequently, Claimant has failed to state a claim upon which relief can be granted.

I certify that on 12-16-20 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

Marvin O. Tuer, Jr.

Administrative Law Judge

Division of Workers' Compensation

By

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