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").

Page 3

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.

Page 4

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.

Page 5

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 receive