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

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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 the labral tear, resected subacromial adhesions, and decompressed the joint. Claimant underwent approximately three months of physical therapy and was still unable to work full duty and lagged in strength and endurance. On April 11, 2012, Dr. Quinn ordered a functional capacity evaluation ("FCE"). The FCE showed Claimant capable of lifting in the medium to heavy category. However, the physical exertion of the FCE caused Claimant to not be able to move his left arm for the next couple days, including at the next therapy session.

On April 18, 2012, two days after the FCE, Dr. Quinn noted significant weakness and stated that Claimant was still unable to do full duty. Dr. Quinn injected the shoulder and continued therapy. Dr. Quinn released Claimant on May 2, 2012, stating that he felt Claimant had plateaued. Dr. Quinn also noted that the FCE physical therapist, Mike Tipton, stated to Dr. Quinn that Claimant "gave good effort but he still had significant weakness to the point where he could not return to his normal job." (Ex. 4, p. 49). Dr. Quinn further stated, "[w]e have gone back over the fact that at some point I am going to have to release him and if he cannot do his regular job he may be let go from his job." (Id.). Dr. Quinn assigned a 7 % permanent partial disability but did not impose formal work restrictions advising Claimant to use good judgement. On June 11, 2012 Dr.

Quinn wrote a letter to the workers' compensation adjuster stating that, "postoperatively [Employee] underwent physical therapy, but he was never able to return to the level of function he needed to return to his job as a tractor mechanic, and as a result, he was eventually dismissed from his job." (Id. at p. 57).

Claimant has not worked since September 6, 2011. Claimant settled with the employer for 15 % permanent partial disability of the left shoulder. Claimant was approved for social security disability effective September 2011. (Ex. 7, p. 25).

At trial, Claimant testified that both the quality and intensity of the pain in his left shoulder is worse after the last injury. Claimant testified that although he started taking Vicodin after his shoulder injury with the City of Columbia in 2003, he only took one pill in the morning and one pill in the evening prior to the last injury. After his last injury, Claimant now takes one Vicodin in the morning, two at noon, and one in the evening to control the pain.

Claimant testified that he will have flare ups of pain that "hurt so darn bad he can't do anything with" his arm. He said these flare-ups can be as brief as 5 minutes, but oftentimes they are at least 15 minutes or longer, although they rarely last a full day. When he experiences these intense flare-ups he said the pain is "over 10 " on the pain scale. During these flare-ups he cannot concentrate on anything other than trying to get the pain to go away, he testified he will try to move his arm, try to let it hang, he will sit down, he will lie down or "do whatever it takes to get rid of it." He testified that if he overdoes it he will get a flare-up of pain, but that the pain can also be unpredictable and come on its own unrelated to any specific physical activity.

In 1979, Claimant injured his low back lifting a car motor from the back of his truck and was treated with aspirin and methocarbamol. Ex. 7, p. 7. He was diagnosed and treated for a low back strain following an injury in 1980. Ex. 7, p. 7. He was also treated for back spasms in 1985 while serving in the military. Ex. 7, p. 7. In 2010, an MRI was performed which found multilevel degenerative changes. Ex. 7, p. 7. Claimant testified that he continues to have occasional low back pain but has never missed work due to his low back and had no physician imposed restrictions. Ex. 7, p. 7.

In September 2002, Claimant injured his right elbow when his crescent wrench slipped and caused a hyperextension. Ex. 3, p. 9. An x-ray revealed calcific tendinosis. Ex. 3, p. 10. Claimant treated for about four months and was placed at MMI with no restrictions. Ex. 3, p. 43. Claimant testified that he continues to feel pain in his right elbow. Ex. I, p. 30.

On March 27, 2003, Claimant injured his left shoulder splicing copper wire while working for the City of Columbia. Ex. 1, p. 7. In June 2003, Claimant underwent a left shoulder decompression. Ex. 7, p. 4. In October 2003, he underwent a distal clavicle excision and excision of scars from the subacromial space. Ex. 7, p. 4. In March 2004, Dr. Mitchell Rotman gave him an injection on the distal clavicle resection site. Ex. 1, p. 9. In April 2004, Dr. Rotman performed a left shoulder arthroscopy, a resection of adhesions, an open acromioplasty, and an open distal clavicle resection insertion of a pain pump catheter. Ex. 1, p. 14.

Dr. Rotman released Claimant at MMI on August 24, 2004, and gave a PPD rating of 10 % of the left shoulder. Ex. 2, p. 2. Claimant was not given any permanent restrictions. Ex. 2, p. 1. In March 2005, Claimant settled this claim with the employer for 27.5 % PPD of the left shoulder. Ex. 10. Claimant also took early retirement from the city in 2005.

At trial, Claimant testified that he was able to lift 20-30 pounds prior to his last injury and he did not have any reprimands for not being able to do his work before his last injury. He needed to move around due to discomfort but this never impeded his ability to perform his job duties. Claimant testified that the pain in his shoulder prior to the last injury was not as severe and he did not start having flare ups with an inability to move his arm until after the last injury.

Claimant underwent a right open carpel tunnel release and a right middle trigger finger release on March 2008. Ex. 3, p. 102. Claimant worked without restrictions following the surgery. Ex. 7, p. 8. Claimant testified that he continues to have pain in his right hand and his fingers lock up. Ex. I, p. 31. He testified that he had problems with his grip and squeezing his hand. Ex. I, p. 31.

Claimant was diagnosed with bilateral neuropathy in his feet in May 2010. Ex. 4, p. 13-14. He wore boots to protect his feet at work but worked without physician imposed restrictions. Ex. 7, p. 7. Claimant testified that he has shooting pain in his feet but he did not notice the pain when he was busy at work. Ex. I, p. 28-29. He testified that his feet frequently hurt and felt cold. He noted that movement helps relieve the pain.

Claimant retained Dr. Volarich to conduct an independent medical evaluation (IME). Ex. 7, p. 1. Dr. Volarich rated the last injury as 25 % PPD of left shoulder. Ex. 7, p. 13. He rated Claimant's pre-existing conditions as 45 % PPD of the left shoulder, 20 % PPD of the left foot, 20 % PPD of the right foot, 20 % PPD of the body as a whole (BAW) relatable to the lumbar spine, 15 % PPD of the right elbow, and 30 % PPD of the right wrist. Ex. 7, p. 13-14.

Dr. Volarich determined that Claimant was permanently and totally disabled due to a combination of his last injury and his pre-existing conditions. Ex. 7, p. 15, Ex. 8, p. 1. He

recommended restrictions for both Claimant's last injury and pre-existing disabilities. With regard to the left shoulder after September 6, 2011, Dr. Volarich advised the following restrictions:

- Limit overhead use of the left arm and prolonged use of the left arm away from his body.

- Limit pushing, pulling, and particularly traction maneuvers with the left upper extremity.

- No lifting more than 2 pounds with left arm extended or overhead.

- No lifting more than 10 pounds with left arm alone.

Ex. 7, p. 15.

With regard to the left shoulder prior to September 2011:

- Limit overhead use of the left arm and prolonged use of the left arm away from his body.

- Limit pushing, pulling, and particularly traction maneuvers with the left upper extremity.

- No lifting more than 5 pounds with the left arm away from his body and no lifting more than 20 pounds with the left arm alone.

Ex. 7, p. 15-16.

With regard to the right elbow, forearm, wrist, or hand prior to September 2011:

- Minimize repetitive gripping, pinching, squeezing, pushing, pulling, twisting, rotatory motions, and similar tasks.

- Avoid impact and vibratory trauma to the right arm and to use appropriate braces, antivibration gloves, support straps, and similar devices.

Ex. 7, p. 17.

With regard to the spine and bilateral lower extremity peripheral neuropathy prior to September 2011, Dr. Volarich would have advised Claimant to work full duty to tolerance. Ex. 7, p. 17.

Claimant obtained a vocational assessment from Kristine Skahan. Ex. 6, p. 1. Ms. Skahan found that Claimant had a total loss of access to the competitive open labor market due to his preexisting left shoulder injury, his last left shoulder injury, and his age. Ex. 6, p. 18. Ms. Skahan found that Dr. Volarich's lifting restrictions of no more than 2 pounds with his left arm extended away from his body and overhead were below the physical requirements of all sedentary jobs and he would not be capable of performing work at any physical demand level. Ex. 6, p. 16.

In order to find permanent total disability against the Second Injury Fund, it is necessary that the employee suffer from a permanent partial disability as a result of the last compensable injury, and that disability has combined with a prior permanent partial disability to result in total disability. Section 287.220.1; Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo. App. 1990). The liability of the employer for the last injury alone is to be determined first. Section 287.220.1; ABB Power T\&D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). "If the last injury in and of itself resulted in the employee's permanent, total disability, then the Fund has no liability, and the employer is responsible for the entire amount of compensation." Kempker, 236 S.W.3d at 50. If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Roller v. Treasurer of the State of Missouri, 935 S.W.2d 739, 742-43 (Mo. App. 1996).

Issued by DIVISION OF WORKERS' COMPENSATION

I find that Claimant is permanently and totally disabled from the last injury alone. Therefore, the Second Injury Fund is not liable for permanent total benefits.

First, the credible evidence shows that Claimant was able to work a physically demanding job for almost five and a half years before the last injury. This was a full-time job that required Claimant to stand and walk most of his shift and lift up to 50 pounds. There is no credible evidence that Claimant was unable to do his job to his employer's satisfaction. Claimant claims that he self-accommodated and that his employer provided some assistance. There is no credible evidence that these minor accommodations were unusual or significantly different than what happens in a typical workplace.

Second, except for the left shoulder, Claimant's pre-existing injuries and disabilities were minor and did not result in significant disability. Claimant's low back strain and degenerative condition did not require any work restrictions. Claimant credibly testified that he did not miss any work due to his back condition. Claimant's 2002 right elbow injury was a minor strain involving minimal treatment and required no work restrictions. Claimant's testimony that he continues to feel pain in his right elbow is not credible.

Similarly, Claimant's 2008 right hand surgery did not require any work restrictions. I do not find Claimant's testimony credible that he continues to have problems with his right hand. After surgery, Claimant continued to work for over three years in a job that required extensive use of his hands. Likewise, Claimant's bilateral neuropathy in his feet (diagnosed in 2010) did not require work restrictions and did not prevent Claimant from working on his feet in a full time job.

Third, I reject as excessive and not credible Dr. Volarich's disability ratings for Claimant's pre-existing conditions. Dr. Volarich rates 20% of the lumbar spine and 15% of the right elbow for what are essentially minor sprains or strains. Twenty percent of each foot is unreasonable for someone who was capable of working on his feet in a physically demanding job for several years. The rating for the right wrist is likewise excessive in light of Claimant's ability to work a hand-intensive job. Based on the evidence, I find that Claimant's PPD ratings for his prior injuries to be 5% lumbar spine, 2 1/2 percent right elbow, 5% each foot and 15% right wrist. These prior injuries and conditions were not a significant hindrance to Claimant's ability to compete in the open labor market.

Fourth, Dr. Volarich's ratings for the left shoulder are inconsistent and not supported by the medical records. Dr. Volarich rates 45% for Claimant's pre-existing condition and 25% after the last injury. This is not credible as Claimant's condition was much worse after the last injury as documented in the medical records and supported by Claimant's testimony. It also discounts Claimant's ability to work a physically demanding job for several years after the first shoulder injury. Claimant's work activity before the last injury greatly exceeded the restrictions Dr. Volarich recommended.

I recognize that both Dr. Volarich and Ms. Skahan found that Claimant was PTD based on a combination of his pre-existing conditions and his last injury. I do not find those opinions credible. Both opinions were issued long after Claimant had settled the primary claim with the employer and appear to be an attempt to save a PTD claim that is clearly due to the last injury. In fact, Ms. Skahan testified that Dr. Volarich's lifting restrictions from the last injury would place

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Claimant at the less than sedentary level and he would not be capable of performing work at any physical demand level.

Finally, Claimant's testimony supports the conclusion that the last injury alone rendered him physically unable to work. Claimant testified that both the quality and intensity of the pain in his left shoulder is worse after the last injury. Claimant testified that he will have flare ups of pain that "hurt so darn bad he can't do anything with" his arm. He said these flare-ups can be as brief as 5 minutes, but oftentimes they are at least 15 minutes or longer, although they rarely last a full day. When he experiences these intense flare-ups he said the pain is "over 10 " on the pain scale. During these flare-ups he cannot concentrate on anything other than trying to get the pain to go away, he testified he will try to move his arm, try to let it hang, he will sit down, he will lie down or "do whatever it takes to get rid of it." He testified that if he overdoes it he will get a flare-up of pain, but that the pain can also be unpredictable and come on its own unrelated to any specific physical activity.

Claimant's inability to work, based on his testimony, is due to the last injury alone. The credible evidence shows that, before the last injury, Claimant worked full time for several years in a physically demanding job. It was the last injury to his shoulder that render him essentially unable to use his left arm in any real physical capacity. This finding is supported by Claimant's credible testimony and the medical records documenting his unsuccessful recovery from the last left shoulder surgery.

The claim against the Second Injury Fund is denied.


Made by: $\frac{\text { Bruce Farmer }}{\text { Brue Farmer }}$

Administrative Law Judge

Division of Workers' Compensation