Rosalyn McMillion v. Bi-State Development Agency

Improvee: Rosalyn McMillion

-2-

burden of proving with reasonable medical certainty that her PTD was the result of disability from her primary injury in combination with preexisting disability, as required under § 287.220.1 RSMo. 2000. The ALJ instead found that permanent partial disability (PPD) from the employee's last injury combined with preexisting PPD to create an overall disability that exceeded the simple sum of the employee's PPD's by 20%, finding the SIF liable for 39.92 weeks of PPD.

We adopt the ALJ's factual finding that PPD from employee's last injury was limited to 20% PPD to her right elbow (42 weeks) as documented in her stipulation for compromise settlement with employer/insurer, and that employee's preexisting disabilities at the time of her February 2005 injury, consisted of 8% PPD to the low back, 16% PPD to the right knee, 10% PPD due to depression and 15% PPD due to personality disorder. Evidence showing that employee settled claims for her low back condition with her employer based on a higher percentage of disability, does not bind the SIF, or the Commission. See Seifer v. Treasurer of Missouri - Custodian of the Second Injury Fund, 302 S.W.3d 59, 64-65 (Mo. App. 2007).

Distinguished from the facts in the recent Mark Lynch opinion, credible evidence in this case supports the conclusion that the employee failed to prove PTD medically causally related to a combination of her primary injury and preexisting disabilities.² The SIF produced vocational rehabilitation counselor Mr. James M. England's report. Mr. England noted that employee had no medical restrictions from any treating doctors and that employee herself "indicated that up to the point of her hand problem she was still able to work full time and take care of all her households needs." He concluded, "If [the employee] is totally disabled at this point, it would be my opinion that this would be due to the effect of the last injury in isolation regardless of any preexisting medical problems."³ Mr. England's report constituted competent and substantial evidence in support of the ALJ's finding that employee's PTD was not medically causally related to disability from her work injury in combination with preexisting permanent partial disabilities, as required by § 287.220.1 RSMo, and that her PTD instead arose as a result of conditions that developed subsequent to her primary injury including disability to employee's bilateral hands and wrists and depression due to chronic pain as a result of this condition.

We concur with the ALJ's finding that Mr. England's opinion constituted the only vocational rehabilitation evaluation that specifically addressed how employee's preexisting post-2004 disabilities affected her employability. We credit Mr. England's opinion over the contrary opinion of employee's expert Mr. James E. Israel. We find Mr. Israel's conclusion that the employee had vocational impairments prior to February 8, 2005 inconsistent with his finding that none of employee's pre-2005 impairments precluded her from continuing to work full duty with no medical restrictions.⁴

² See Mark Lynch vs. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, (ED109502, October 19, 2021).

³ Transcript, p. 1105

⁴ Id., p. 551, 557.

-3-

Based on this evidence, we affirm the ALJ's determination that the employee was only PPD as a result of 20\% PPD to her right elbow sustained as a result of her February 2005 primary injury in combination with disabilities that preexisted her February 2005 injury. We further affirm the ALJ's finding that disability from employee's primary injury combined with preexisting PPD to create an overall disability that exceeded the simple sum of her permanent partial disabilities by 20 % and that employee is entitled to PPD from the SIF for 39.92 weeks of additional compensation $(\ 14,133.68). This determination is consistent with judicial precedent holding that resolving conflicting expert medical opinions regarding the cause of an employee's disability and deciding the percentage or degree of disability to award an employee is a finding of fact within the unique province of the Commission. ABB Power T\&D Co. v. Kempker, 236, S.W.3d 43, 52 (Mo. App. 2007); Guinn v. Treasurer of Missouri, 600 S.W.3d 874, 878 (Mo. App. 2020).

The above clarifications of the ALJ's award do not detract from his correct analysis of the evidence in the record or his ultimate legal conclusions.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued March 25, 2021, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 29th \qquad$ day of November 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

The issue before the Commission is whether the administrative law judge (ALJ) properly denied employee a permanent total disability (PTD) award against the Second Injury Fund (SIF) despite crediting employee's testimony regarding her ongoing complaints, adopting the uncontroverted opinions of employee's medical experts, and finding that employee is totally disabled due to her vast array of medical conditions.

Dr. David Volarich is a fellow in the American Academy of Disability Evaluating Physicians, American Board of Forensic Examiners and, The American Board of Independent Medical Examiners. Dr. Volarich opined that the employee had 15\% industrially disabling permanent partial disability (PPD) of her right upper extremity related to cubital tunnel syndrome not surgically repaired, related to her 2005 primary injury. He limited employee's use of her right elbow as well as other upper body parts.

Dr. Volarich further found that employee had industrially disabling preexisting disability to her lumbosacral spine due to chronic back pain and lost motion in the amount of 15\% PPD of the body as a whole (BAW). Dr. Volarich deferred to a vocational expert for an assessment of whether the employee was PTD, stating, "If vocational assessment is unable to identify a job for which she is suited, then it is my opinion that she is permanently and totally disabled as a result of the work related injuries leading up to 2/8/05 in combination with her preexisting medical conditions."1 No medical evidence refuted Dr. Volarich's evaluation of employee's disabilities. The ALJ assigned 20\% PPD to employee's right elbow related to the primary injury, consistent with her settlement with employer.

Employee's forensic expert, clinical psychologist Dean L. Rosen, opined that employee had psychiatric disabilities that preexisted her primary injury, consisting of personality disorder and major depression, in the amount of 15 % of the BAW and 10 % of the BAW, respectively. Dr. Rosen explained that these disorders and injuries had the potential to,

combine with other medical conditions and work injuries to create impairment and disability that is higher than the numerical sum of their individual disability ratings. [Employee's] psychiatric injuries impair her work performance and industrial efficiency by reducing her energy, stress tolerance and ability to get along with others on the job and adapt to the changes in the work environment. ${ }^{2}$

The ALJ adopted Dr. Rosen's evaluation of employee's preexisting psychiatric disability per se in his award. ${ }^{3}$ The SIF offered no evidence to refute Dr. Rosen's assessment of employee's psychological/personality disorders or how they affected her employability.

[^0]

[^0]: ${ }^{1} Transcript, p. 545.

{ }^{2} Id., p. 534.

{ }^{3}$ Award, p. 12.

Employee: Rosalyn McMillion

-2-

Employee's vocational expert, James E. Israel, opined that the employee, given her medical restrictions and without medical/psychological determined improvement of her disability in addition to job-readiness training, lacked any favorable prospects at retaining employment. He concluded, "Her overall physical and mental limitations, pain, educational and work background factors, and required work-site accommodation have rendered Ms. McMillion unable to compete in the open labor market."4

The ALJ found, "All of the forensic evidence is clear that the claimant's preexisting disabilities combined with the disability from the 2005 work related injury to create an overall greater disability than the simple sum of the individual disabilities."5

After reciting all of the above forensic opinions in his Summary of Facts, the ALJ assessed a 20% loading factor, clearly giving extraordinary weight to the combination of disability attributable to employee's primary and preexisting injuries and disabilities. He further found that the employee credibly testified about significant ongoing complaints, without exception, associated with these injuries. Specifically, employee testified:

- She hasn't driven an automobile since 2005