Wesley Davis v. Lazer Spot, Inc.

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable workrelated injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

Under § 287.220, "[p]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined."1 In order to establish a compensable SIF claim under § 287.220.3, an employee must meet two conditions:

(1) have at least one "qualifying" preexisting disability as defined by $\S 287.220 .3(2)$ (a);

(2) Thereafter sustain a subsequent compensable work-related injury that, combined with employee's preexisting disability(ies) results in permanently and totally disabled. ${ }^{2}$

A "qualifying" preexisting disability need not have been known to employee or reached maximum medical improvement before employee's primary work injury. ${ }^{3}$

Based upon our understanding of Parker, we do not believe that employee is permanently and totally disabled based upon a combination of his August 22, 2014, primary injury (2014 injury) and his qualifying preexisting disabilities. We base our decision on reports and depositions of vocational expert Mr. Gary Weimholt, Dr. David Volarich, and Dr. Robert Bernardi.

[^0]

[^0]: ${ }^{1} Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

{ }^{2} Parker, 622 S.W.3d 178 (Mo. banc Apr. 20, 2021).

{ }^{3}$ Id. at 182 .

**Injury No. 14-063032**

- 3 -

Drs. Volarich and Bernardi considered all of employee's preexisting disabilities prior to employee's 2014 injury in their determinations of whether or not employee was permanently and totally disabled. Although Dr. Volarich's medical report did discuss the synergistic effects of his left and right knee disabilities in conjunction with employee's 2014 injury,[^4] there was no testimony by Drs. Volarich, Bernardi, or vocational expert Mr. Weimholt that specifically stated how employee's left knee preexisting disability by itself, or both of employee's knees directly and significantly aggravated or accelerated employee's 2014 injury.

We affirm and adopt the award of the administrative law judge as supplemented herein. The award and decision of Administrative Law Judge Hannelore D. Fischer is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this 13th day of September 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornelo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

[^4]: See Transcript, at 1587-88.

I believe that the recent Parker decision stands for the proposition that an employee must show that a primary injury resulted in permanent and total disability "when combined with all preexisting disabilities that qualify under [§ 287.220.3(2)(a)]." However, "the existence of nonqualifying disabilities does not count against (or for) the claimant in evaluating whether he meets the second threshold condition."5

I believe that the commission may still consider other non-qualifying disabilities. The commission must look at the individual as a whole and consider everything together to determine whether an individual is permanently and totally disabled.

Based upon my interpretation of the Supreme Court's decision in Parker, and the medical expert opinions, employee's prior low back, left knee and right knee disabilities and his 2014 primary injury combined to make him permanently and totally disabled and entitled to Second Injury Fund benefits.

The fact that Drs. Volarich, Bernardi and vocational expert Mr. Weimholt also considered employee's other non-qualifying preexisting disabilities as part of their permanent and total disability determination, does not count against (or for) employee in the evaluation of whether employee's qualifying preexisting disability to his low back meets the criteria set out in § 287.220.3(2)(a), and should not factor into the calculation of employee's Second Injury Fund benefits.

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

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1}$ Treasurer of State v. Parker, 622 S.W.3d 178 (Mo. banc Apr. 20, 2021).

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 526-8983 FAX: (573) 751-2012

www.labor.mo.gov/DWC

SEPTEMBER 08, 2020

14-063032

Scan Copy

*Employee . . . . : WESLEY L DAVIS

133165776 118 NORTH VENTURA APT C JEFFERSON CITY, MO 65109

*Asst Atty General: ATTY GENERAL ERIC SCHMITT

133165769 PO BOX 899

SUPREME COURT BLDG

JEFFERSON CITY, MO 65102

*Employee Attorney: RUDOLPH L VEIT

515 EAST HIGH STREET

PO BOX 28

JEFFERSON CITY, MO 65102

\# Denotes that the Division sent a copy of the Award by electronic mail to the email address that the party provided. The Certificate of Service for this document is maintained in the Division's records.

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission

PO Box 599

Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

WC-142 (06-15)

AWARD OR HEARING

RLP

Relay Missouri: 800-735-2966

Missouri Division of Workers' Compensation is an equal opportunity employer/program.

Auxiliary aids and services are available upon request to individuals with disabilities.

Employee: Wesley Davis

Injury No.: 14-063032

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Lazer Spot, Inc.

Before the

DIVISION OF WORKERS' COMPENSATION

Additional Party: Treasurer of the State of Missouri

Department of Labor and Industrial

Custodian of the Second Injury Fund

Relations of Missouri

Jefferson City, Missouri

Insurer: $\quad \mathrm{N} / \mathrm{A}$

Hearing Date: June 26, 2020

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: August 22, 2014
5. State location where accident occurred or occupational disease was contracted: Cole County, MO
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 20 % body
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\ 346.97
4. Method wages computation: By agreement

1. Amount of compensation payable: Employer previously settled.
2. Second Injury Fund liability: No
3. Future Requirements Awarded: None

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on June 26, 2020. Memoranda were submitted by August 17, 2020.

The parties stipulated that on or about August 22, 2014, the claimant, Wesley Davis, was in the employment of Lazer Spot, Inc. The employer was working under the provisions of Missouri's workers' compensation law. The employer had notice of the injury, and a claim was timely filed. The rate of compensation is $\ 346.97 per week for all benefits.

The issues to be resolved by hearing include 1) the occurrence of an accident, 2) whether the alleged accident arose out of and in the course of employment, 3) the causation of the injuries alleged, and 4) the liability of the Second Injury Fund.

The parties stipulated that the claim against the employer/insurer settled based on a permanent disability of 20 percent of the body; the parties do not, however, agree that this represents the extent of permanent disability resulting from the alleged August 22, 2014, injury.

The parties have agreed to November 5, 2015, as the date of maximum medical improvement.

The claimant, Wesley Davis, was born in 1976 and was 43 years old as of the date of hearing. Mr. Davis was working for Lazer Spot, Inc. (Lazer Spot) on August 22, 2014, when he was injured. While at Lazer Spot, Mr. Davis drove trucks to Pontoon, Illinois, from Jefferson City, Missouri. Mr. Davis described it as "drop and hook" where he would raise and lower trailers to hook them up to his truck using a manual crank; Mr. Davis did not load or unload trailers. Mr. Davis testified that he injured his low back on August 22, 2014, when he was attempting to crank up a trailer to connect the truck he was driving to the trailer; the trailer slipped three or four gears throwing Mr. Davis forward and to the ground causing him to experience instant back pain and pain going into his legs. Mr. Davis had back surgery performed by Dr. Reinse. According to

**Employee:** Wesley Davis

**Injury No.:** 14-063032

Mr. Davis, his back felt worse post-surgery, but the surgery eliminated the pain and numbness he had experienced in his legs.

Prior to his August 22, 2014, injury, Mr. Davis had surgery for his low back pain in 2006 or 2007 with Dr. Rodgers. In 2008, Mr. Davis received a spinal cord stimulator, which was removed by Dr. Highland in 2010.

Mr. Davis had left knee surgery in 2009 to repair a medial meniscus. Mr. Davis testified that his left knee condition puts a strain on his back.

In 2013, Mr. Davis had right shoulder surgery to remove a cyst. According to Mr. Davis, he is unable to lift his right arm above shoulder level.

Mr. Davis' prior work history includes stacking lumber at a sawmill, custodial work for the Jefferson City school system, work as a driver for Werner Trucking and work at Capitol Projects.

Mr. Davis does not read or write and did not go far in school, completing only the tenth grade.

Currently, Mr. Davis showers multiple times a day to put heat on his back. Mr. Davis' wife helps him get in and out of the shower and helps him put on his shoes and socks. While Mr. Davis used to hunt and fish and watch his son play baseball, he is no longer able to engage in these activities after his back injury in 2014. Mr. Davis does not feel that there is a job he could perform. Mr. Davis said that he cannot lift ten pounds now and can stand no more than 15 to 20 minutes. Mr. Davis said that his current medications include Percocet, Valium, Soma and Celebrex.

During cross-examination, Mr. Davis said that he has always worked full time prior to August 22, 2014, and that when he said in his deposition that he worked full duty, he actually meant full time. Mr. Davis said that after his left knee injury, he continued to have limits on what he could lift and stated that he was limited to 15 pounds. Prior to August 22, 2014, according to Mr. Davis, he was able to walk for a mile, sit for eight hours, and drive for four hours without a break as well as dress himself and play with his son. Mr. Davis said that prior to August 22, 2014, he could work ten to eleven hours a day and drive up to 70 hours per week; Mr. Davis had no difficulty climbing into his truck.

Sheila Davis, Mr. Davis' wife, testified that prior to August 22, 2014, Mr. Davis was able to perform all activities on his own and that he was on medication for his left knee.

Dr. Volarich testified that he evaluated Mr. Davis on April 4, 2017, and issued a report on that same date as well as multiple addenda thereafter. Dr. Volarich noted that Mr. Davis said that his right shoulder complaints resolved after surgery. In his report, Dr. Volarich cited the August 22, 2014 accident as the primary and prevailing factor in Mr. Davis' recurrent lumbar right leg radiculopathy secondary to the "irreversible aggravation of the L4-5 pseudoarthrosis from prior fusion that required surgical repair to remove old implants and revise the fusion at L4-5 with instrumentation." In his deposition testimony, Dr. Volarich said that the preexisting back and knee injuries aggravated and accelerated the 2014 back injury. Dr. Volarich opined to a permanent disability of 35 percent of the body attributable to the August 22, 2014 accident and

Improve: Wesley Davis

Injury No. 14-063032

injury to the low back and a prior 35 percent permanent disability attributable to the low back along with a permanent partial disability of 35 percent of the left knee and 20 percent of the right knee for preexisting knee complaints. Dr. Volarich opined to the synergistic effect of the prior knee and back injuries with the 2014 back injury. Dr. Volarich stated that a vocational assessment would determine Mr. Davis' status as permanently totally disabled. Dr. Volarich said that even in the absence of the right knee disability that Mr. Davis would still be permanently and totally disabled.

Gary Weimholt, vocational rehabilitation consultant, testified by deposition that he evaluated Mr. Davis on July 6, 2017, and September 11, 2017. Mr. Weimholt concluded that Mr. Davis is permanently and totally disabled as the result of the combination of the last injury and his preexisting conditions and injuries to his back and his left knee.

Dr. Robert Bernardi evaluated Mr. Davis on May 5, 2015, and produced a report pertaining to his evaluation on October 3, 2015. Dr. Bernardi opined that Mr. Davis' accident on August 22, 2014, is not the prevailing factor in producing Mr. Davis' symptoms in his low back radiating into his right leg.

APPLICABLE LAW

RSMo Section 287.220.3 (2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

WC-32-R1 (6-81)

Page 5

Employer: Wesley Davis

Injury No. 14-063032

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

The claimant, Wesley Davis, has failed to sustain his burden of proof that he is permanently and totally disabled as the result of his injury of August 22, 2014, to his low back in combination with a single preexisting disability that meets the 50 -week requirement set out in section 287.220.3(2).

Based on Mr. Davis' testimony and the opinion of Dr. Volarich, I find that the permanent disability resulting from the August 22, 2014, injury to the low back is 20 percent of the body. Similarly, and based on Mr. Davis' testimony and the opinion of Dr. Volarich, I find that the disability to the left knee after the prior 2009 surgery is 20 percent of the left knee, and the disability from the prior back injury is 20 percent of the body. Because Mr. Davis' testified to no injury to the right knee and no limitations as the result of a right knee condition, no percentage of disability is attributable to a preexisting condition of the right knee.

Mr. Davis has demonstrated that his disability from the left knee injury is 20 percent of the knee or 32 weeks, while the disability resulting from the prior back injury is 20 percent of the body or 80 weeks. Only one of the alleged preexisting disabilities, the back, is valued at more than 50 weeks.

I find that Mr. Davis' preexisting back condition aggravated and accelerated the 2014 injury to the low back. Dr. Volarich testified that Mr. Davis' prior back condition aggravated and accelerated the 2014 low back injury. I find Dr. Volarich's opinion credible. There was no conflicting medical evidence.

Dr. Volarich testified credibly to the permanent and total disability resulting from the combination of the 2014 low back injury with the prior left knee injury and the prior low back injury. Similarly, Mr. Davis testified credibly to his inability to work as the result of the combination of his disabilities. Mr. Weimholt also testified that Mr. Davis is permanently and totally disabled as the result of the 2014 low back injury in combination with his preexisting disabilities to his left knee and his low back.

I find, however, that the requirements of Section 287.220.3(2) have not been met and that Mr. Davis is not entitled to permanent and total disability benefits from the Second Injury Fund. All other issues raised for resolution are hereby rendered moot.

I acknowledge that a majority of the Missouri Court of Appeals, Western District, recently filed an opinion, not yet final, in Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker, WD83030, that is at odds with the interpretation of 287.220.3(2) in this

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Wesley Davis

Injury No. 14-063032

case, while the Missouri Court of Appeals, Eastern District, subsequently filed a unanimous opinion, also not yet final, in Sterling Bennett v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, ED108713, which would seem to concur with the interpretation expressed herein.

I certify that on 9-8-20 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.

By __________________________

Made by: __________________________

HANNELORE D. FISCHER

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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