Dwayne Southerland v. Boone Co. Equipment/Henderson Equipment

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 11-073978**

**Employee:** Dwayne Southerland

**Employer:** Boone Co. Equipment/Henderson Equipment (settled)

**Insurer:** Accident Fund (settled)

**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 March 31, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Bruce Farmer, issued March 31, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **25th** 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

Injury No. 11-073978

Employee: Dwayne Southerland

I would find the Second Injury Fund to be liable for employee's permanent total disability, because I believe that employee has proven that his permanent total disability was the result of his September 6, 2011 primary injury in combination with his pre-existing disabilities.

Dr. David Volarich was the only medical expert to provide testimony on the issue of whether employee was permanently and totally disabled as a result of his last injury alone, or in combination with his pre-existing disabilities. Dr. Volarich opined that "If [a] vocational assessment is unable to identify a job for which [employee] is suited, then it is my opinion that [employee] is permanently and totally disabled as a direct result of the work-related injury of [September 6, 2011] in combination with his pre-existing medical conditions." Additionally, Dr. Volarich testified that there was a synergistic relationship between the pre-existing disabilities and his 2011 injury, which resulted in an overall greater disability, and that "[t]he combination of [Employee's] disabilities creates a substantially greater disability than the simple sum or total of each separate injury or illness." Ms. Kristine Skahan, the only vocational expert to testify in this case, opined that employee suffered a "total vocational disability and loss of access to the open competitive labor market" due to a combination of his primary and prior left shoulder injuries from September 6, 2011 and March 2003.² Ms. Skahan also opined that the difficulties and symptoms related to employee's March 2003 left shoulder injury "were a hindrance and obstacle to him performing his job and to performing other employment for which he is qualified."³

Employee's testimony regarding the limitations of his pre-existing injuries was consistent with Dr. Volarich's opinion that employee is permanently and totally disabled based on a combination of the two. Furthermore, Dr. Volarich diagnosed several pre-existing conditions and attributed employee's disability to these conditions. He explained that the interplay between his pre-existing injuries made it more difficult for employee to function efficiently at home and at work. He described how these various pre-existing conditions combined to create a synergistic effect that made the overall disability greater than the simple sum of those disabilities. I do not believe that the administrative law judge adequately addressed Dr. Volarich's testimony on how the prior injuries combined and created a synergistic effect on employee. The administrative law judge determined that employee suffered a pre-existing 5% permanent partial disability (PPD) to the low back, 2.5% PPD to the right elbow, 5% PPD to the right foot, 5% PPD to the left foot, and 15% PPD to employee's right wrist. However, the administrative law judge did not rate employee's March 2003 preexisting left shoulder injury that resulted in employee's significant disability.

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

---

1 Transcript at 934.

2 Transcript at 906.

3 Id.

Employee: Dwayne Southerland

Injury No.: 11-073978

Dependents: N/A

Before the

Employer: Boone Co. Equip./Henderson Equipment (settled)

Division of Workers'

Compensation

Department of Labor and Industrial

Department of Labor and Industrial

Additional Party: Second Injury Fund

Relations of Missouri

Relations of Missouri

Insurer: Accident Fund (settled)

Jefferson City, Missouri

Hearing Date: January 28, 2020

Briefs filed: February 28, 2020

Checked by:

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 6, 2011

1. State location where accident occurred or occupational disease was contracted: Boone 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: Employee injured his left shoulder while removing a part off the transmission of a tractor.

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: left shoulder

1. Nature and extent of any permanent disability: Per stipulation with employer 15% PPD left shoulder

1. Compensation paid to-date for temporary disability: $12,528.36

1. Value necessary medical aid paid to date by employer/insurer: $32,396.30

WC-32A

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 510.00
3. Weekly compensation rate: $\ 340.00 for PTD
4. Method wages computation: Stipulation

1. Second Injury Fund liability: None.

Employee: Dwayne Southerland

Injury No.: $\quad 11-073978$

Employer: Henderson Equipment (settled)

Insurer: Accident Fund (settled)

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

A final hearing was held on this workers' compensation claim on January 28, 2020, in Jefferson City. Dwayne Southerland ("Claimant") appeared personally and by counsel, Ben Nelson. The Treasurer of Missouri, as the custodian of the Second Injury Fund, appeared by counsel, Erika Eliason, assistant attorney general. The claim against the employer settled by stipulation on August 20, 2013. The parties requested an opportunity to submit proposed awards, resulting in the record completed and submitted on February 28, 2020.

The liability of the Second Injury Fund for permanent total disability.

(1) On or about September 6, 2011, Boone County Equipment, LLC/Henderson Equipment Company was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Accident Fund National Insurance Company.

(2) On the injury date of September 6, 2011, Dwayne Southerland was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about September 6, 2011 the employee sustained an accident, which arose out of and in the course and scope of his employment with the employer.

(4) The employment and accident occurred in Boone County, Missouri. The parties agree to venue in Boone County, Missouri.

(5) The employee notified the employer of his injury as required by Section, 287.420 .

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430 .

(7) At the time of the alleged accident of September 6, 2011, the employee's average weekly wage was $\ 510.00, which is sufficient to allow a compensation rate of $\ 340.00 for temporary total disability compensation / permanent total disability compensation, and a compensation rate of $\ 340.00 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to the employee in the amount of $\ 12,528.36, representing 33 and $4 / 7$ weeks in disability benefits.

(9) The employer and insurer have provided medical treatment to the employee, having paid $\ 32,396.30, in medical expenses.

(10) Employee's maximum medical improvement date is June 11, 2012.

Claimant testified in support of his claim. In addition, the following exhibits were admitted into evidence without objection:

Employee Exhibits:

Exhibit 1 The Orthopedic Center of St. Louis medical records Exhibit 2. Dr. Mitchell Rotman Report Exhibit 3. Boone Hospital Center medical records Exhibit 4. Columbia Orthopaedic Group medical records Exhibit 5. Harry S. Truman VA Hospital medical records Exhibit 6. Kristine Skahan, VE Report Exhibit 7. Dr. David Volarich Report Exhibit 8. Dr. David Volarich Deposition Exhibit 9. Kristine Skahan Deposition Exhibit 10. Stipulation of Compromise Settlement Injury No. 03-024889 Exhibit 11 Stipulation of Compromise Settlement Injury No. 11-073978

Second Injury Fund Exhibits:

Exhibit I Employee's Deposition

Claimant is 62 years old and graduated high school in 1976. He then spent 4 years working for Kelly Press as a printing press operator. Claimant enlisted in the United States Air Force and served 5 years. While in the military, he was trained as a weapons mechanic where he worked on hydraulics, launchers, and engine repair.

Claimant's work history after the Air Force consists primarily of being a lineman and a mechanic. Claimant worked as a mechanic for MFA from 1986 to 1987. At MFA he repaired and maintained gas pumps and repaired farm equipment as needed. He lifted up to 50 pounds in this job. After Claimant left his job at MFA, he was a dump truck driver or a delivery driver in various capacities between 1987 and 1992. Claimant worked as a lineman for the City of Columbia from 1992 to 2005. His job duties included repairing electrical lines, climbing utility poles and ladders, installing hardware and using a variety of tools. He lifted up to and sometimes over 100 pounds.

In May 2006, Claimant began working for the employer as a mechanic. He performed diagnostics on equipment, inspected equipment for damage, and completed repairs. He worked full time and his job required him to stand and walk most of his shift and lift up to 50 pounds. Claimant worked for the employer until the date of injury, September 6, 2011.

On September 6, 2011, Claimant was preparing to remove the "power take off" ("PTO") or shifter of a tractor. In order to complete the repair Claimant needed to take the PTO out of the tractor. Claimant had to use his left arm to pull the final bolt. When he pulled the final bolt the full weight of the PTO came down and threw his left arm and shoulder backward, causing injury to his shoulder.

Claimant was sent to the Columbia Orthopedic Group where he received an MRI and saw Dr. Quinn on October 18, 2011. Dr. Quinn diagnosed tendinopathy, a partial rotator cuff tear, and a paralabral cyst (caused by a labral tear). On January 6, 2012, Dr. Quinn performed surgery and did a chondroplasty of the glenoid then resected t