Jonathan Parker v. Asplundh Tree Expert Company

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In explaining the requirements of the second condition, the Court held that an employee must show that "the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in [§287.220.3(2)(a)]."2 The Court specifically and unequivocally rejected the employee's argument that the second condition can be met by showing that the employee's primary injury resulted in PTD when combined with all of the employee's disabilities "regardless of whether those disabilities meet the first condition."3

Pursuant to the Court's mandate, we issue this award.

Employee, a tree trimmer, suffered recurrent neck pain from job duties that required him to do heavy lifting and repeatedly look up to trim trees. Employee sustained an injury on June 12, 2014 when he turned his head and felt a sharp pain while driving a company truck. Dr. James Stuckmeyer evaluated employee's disability related to the June 12, 2014 injury as 35 % to the body as a whole related to the neck. Consistent with our original June 26, 2019 award and employee's settlement with employer/insurer, we find that employee sustained 40 % PPD to the body as a whole referable to the neck related to his primary injury.

With respect to employee's preexisting disabilities, and mirroring with the factual findings included in our original award, we find as follows:

- Employee clearly sustained a preexisting injury from his accident on March 8, 2014, for which he received 25 % permanent partial disability at the 232 -week level of the right upper extremity. This exceeds the 50 weeks necessary for $\S 287.220$ to apply.

- Dr. Stuckmeyer did not assign any specific disability to employee's back condition or provide any specific restrictions, nevertheless employee credibly testified as to how his back condition affected him prior to the June 2014 injury and how it impacted his ability to sit, stand and walk.

- Dr. Stuckmeyer made a determination that looking at employee's difficulties with his back and the complaints, specifically pain in the lumbar spine and radiculopathy down the left side, as well as daily back pain, and his knee pain, that he was totally disabled due to a combination of his preexisting conditions of the back and the complaints with his shoulder injury combined with the last accident to his cervical spine of June 14, 2014.

- Employee's vocational expert, Mr. Michael Dreiling, was not very specific in either his vocational report or his deposition. However, it is clear that he was taking employee's entire situation, including his neck and shoulder as well as back and legs, into consideration when he determined that employee is unemployable in the open labor market.

- It is clear that the employee would have had great difficulty safely trimming trees if he stayed within the restrictions provided by Dr. Stuckmeyer with regards to his neck. Therefore, he was likely occupationally disabled as a tree trimmer from those restrictions alone. However, the additional restrictions placed on his dominant right upper

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[^0]: ${ }^{2}$ Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 182 (Mo banc, 2021).

${ }^{3} \mathrm{Id}$. (emphasis added).

extremity when combined with the restrictions on his neck and limitations stemming from his back and legs resulted in his total disability.

- Dr. Stuckmeyer and vocational expert Mr. Dreiling both opined the employee is permanently and totally disabled as a result of a combination of all his disabilities. We find these opinions credible and further find there is no contrary evidence that would contradict such findings. ${ }^{4}$

Based on the above, we find that employee is permanently and totally disabled due to a combination of qualifying and non-qualifying preexisting disabilities, as defined by § 287.220.3(2)(a) together with disability attributable to his June 12, 2014 primary injury.

Is the SIF liable under § 287.220.3(2) when employee's PTD results from the combination of non-qualifying disabilities with disability attributable to employee's primary injury and one or more qualifying preexisting disabilities?

No party disputes that employee's June 12, 2014 accident resulted in disability and qualified as a primary injury for purposes of SIF liability under § 298.220.3. It is further undisputed that employee established one "qualified" preexisting disability pursuant to § 287.220.3(2)(a)a(ii), consisting of 25 % PPD of the right upper extremity rated at the 232 -week level ( 58 weeks) resultant from his prior March 8, 2014, work injury.

Dr. Stuckmeyer originally opined that the employee's primary injury in isolation rendered him PTD. He later revised this opinion to find that employee's PTD was due to disability from his June 12, 2014, work injury, his qualified preexisting right shoulder disability and significant disabilities involving employee's lumbar spine and bilateral knees.

Both Dr. Stuckmeyer and employee's vocational expert Mr. Dreiling included preexisting conditions related to employee's lumbar spine and knees that did not qualify pursuant to $\S 287.220 .3$ in assessing the SIF's liability. The record includes no other expert opinions.

Consistent with findings of fact included in our original June 26, 2019 award we find that employee's PTD was due to the combination of all of his preexisting disabilities together with disability attributable to employee's last accident.

As a matter of law, we find that Parker requires employee to show that disability from his primary injury combined solely with disability from one or more qualifying preexisting disabilities to result in PTD.

Consistent with the Supreme Court's mandate, employee's PTD claim against the SIF herein must fail because he failed to demonstrate that his PTD resulted solely from disability attributable to his primary injury combined "with the preexisting disability, as set forth in items (i), (ii) (iii), or (iv) of subparagraph a. of this paragraph."5

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[^0]: ${ }^{4}$ See Jonathan Parker v. Asplundh Tree Expert Company/Liberty Mutual Insurance Company (settled) and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-042039 (LIRC, June 26, 2019), incorporating by reference Administrative Law Judge Emily S. Fowler's award and decision issued September 6, 2019, to the extent not inconsistent with the Commission's supplemental opinion.

${ }^{5}$ Treasurer of the State of Missouri As Custodian of the Second Injury Fund v. Parker, at 4 (SC98704, April 20, 2021).

Consistent with the Supreme Court's interpretation of $\S 287.220 .3$ as applied to the facts of this case, we deny employee's claim for PPD against the SIF.

The Commission's June 26, 2019 Final Award Allowing Compensation is attached for information only.

Given at Jefferson City, State of Missouri, this $\qquad 10th \qquad$ day of August, 2021.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


Employee's claim for permanent total disability (PTD) against the Second Injury Fund (SIF) under § 287.220.3 RSMo. should prevail because, as a matter of fact and law, employee's PTD is clearly due solely to restrictions from his neck and dominant right upper extremity.

Dr. James Stuckmeyer only placed restrictions in regard to employee's neck and dominant right upper extremity; he imposed no restrictions on employee's back or knees. Although vocational expert Mr. Michael Dreiling's opinion set out twenty-five factors that made up employee's vocational profile, only three of these possibly related to employee's back or legs. Mr. Dreiling clearly opined in his testimony that employee cannot access the open labor market due to the combination of his two work injuries and his vocational profile, without considering anything associated with his back, legs, or left hip.

Employee's post-Parker Supplemental Brief to the Commission provides the following legal analysis of the Supreme Court's statutory interpretation of $\S 287.220 .3(2)$ applied to the facts of this case:

While there are admittedly references to Parker's back and knees in evidence, Parker asks this body to look beyond those mere references to the substance of what those conditions were and respectfully asserts that there is no other conclusion to reach other than Parker is permanently and totally disabled due to the combination of the qualifying shoulder and neck injuries. While Parker concedes the back and knees do not qualify under the statute because there is no evidence of 50 -weeks of disability for those conditions, unlike many other cases on appeal where there are preexisting conditions which may or may not reach 50 -weeks or fall within one of the four subcategories, Parker's case is unique. Herein, there is no evidence of any disability associated with his back or Parker's knees. No doctor assigned any percentage of disability nor did any doctor assign any restrictions for either of those conditions. . . .Parker did not receive any accommodations from his employer [related to his back or knees], and he did not miss any time from work. There is no evidence to s