Christopher Swindle v. Alton Construction LLC

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

Injury No. 14-071392

Employee: Christopher Swindle

Employer: Alton Construction LLC

Insurer: Q B E Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge (ALJ) allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the ALJ with this supplemental opinion.

The employee, a manual laborer, alleged a work-related injury to his shoulder and neck on August 8, 2014, while using a twenty-pound sledgehammer to break concrete.

Disputed issues at the hearing were:

1. Nature and extent of permanent disability
2. Future medical
3. Second Injury Fund liability
4. Disfigurement

Chief ALJ Victorine R. Mahon's Award

Among other evidentiary rulings that are not in dispute, the ALJ sustained the Second Injury Fund's objection to the admission of exhibits containing references to employee's school records. The ALJ held, "The records [included in Claimant's Exhibit 6] were offered without a business record affidavit to satisfy $\S 490.692 RSMo, or with the testimony of a qualified witness pursuant to \S 490.680$ RSMo."1

On the merits of the employee's claim, the ALJ found that while the employee "did suffer a very significant work injury . . . he has exaggerated the degree of his physical limitations in his final hearing testimony."2

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[^0]: ${ }^{1} Award, p. 4 n. 1.

{ }^{2}$ Award, p. 9.

The ALJ discredited vocational expert Philip Eldred's opinion that the employee was permanently and totally disabled (PTD) because Mr. Eldred relied on the employee's subjective complaints. The ALJ found that the employee's Mother's testimony regarding his activities was unreliable because her full-time employment Monday through Friday in addition to a weekend job caused her to be absent from the home for the better part of most days.

The ALJ concluded that the employee is not PTD. Based on Dr. Volarich's original, August 14, 2017, assessment, she found that the employee sustained 50\% PPD of the body as a whole (BAW) related to the work injury. Based on Dr. Dale Halfaker's opinion, the ALJ concluded that the employee further had 9\% PPD to the BAW related to psychological conditions attributable to the primary work injury.

The ALJ awarded the employee six weeks of disfigurement based on the ALJ's evaluation of the employee's neck and anterior and posterior surgical scars.

She found the employee entitled to open future medical to cure and relieve the effects of his work injury, both physical and psychological, under § 287.140. In that employee's evidence establishes he had no preexisting disability that would trigger Second Injury Fund liability under § 287.220.3, the ALJ denied the employee's Second Injury Fund claim.

The employee filed a timely application for review, alleging the ALJ erred in that:

1. She incorrectly refused to admit Claimant's Exhibit 6, consisting of employee's school records, because experts for the employee and the employer/insurer relied on those records.
2. She failed to find employee PTD considering employee's transferable skills, training potential, physical limitations imposed by Dr. Volarich, multiple medications, need to lie down during the day to alleviate pain, $8^{\text {th }}$-grade education, learning disabilities, and depression and anxiety diagnoses.
3. She failed to find employee PTD because no employer would reasonably be expected to hire him, given the employee's physical condition.

Employer/insurer's answer included a request to dismiss the employee's application for review on the basis that it provided no reasoning, case law, or new or additional facts and merely re-argued employee's case. By its order of April 27, 2021, the Commission denied the employer/insurer's motion to dismiss.

The employee references $\S 287.470 as a basis for jurisdiction. { }^{3}$

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[^0]: ${ }^{3}$ Brief of Appellant, Employee Chris Swindle, p. 1.

Section 287.470 provides:

Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the commission may at any time upon a rehearing after due notice to the parties interested review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter, and shall immediately send to the parties and the employer's insurer a copy of the award. No such review shall affect such award as regards any money paid.

The employee does not allege that his condition has changed. Section 287.470 does not apply to the employee's application for review because the ALJ's award is not final and therefore does not constitute an "unpaid" award. The Commission only has authority to consider a change of condition motion under $\S 287.470$ if the employee's weekly payments are ongoing or if the employee's award is final and unpaid. See Johnson v. St. John's Mercy Medical Ctr. 812 S.W.2d 845 (Mo. App. 1991).

Section 287.470, therefore, does not constitute a basis for the Commission to assert jurisdiction over the employee's claim. The only basis for the Commission's authority to address the employee's claim at this juncture is $\S 287.480$, which allows a party to file an application for review to the Commission of an ALJ's award.

The employee's application for review cited no authority in support of his challenge to the ALJ's ruling on Claimant's Exhibit 6, employee's school records. Employee's brief advances no arguments supporting his contention that the ALJ's ruling on the admission of Claimant's Exhibit 6 was in error. We conclude that the employee's attorney has abandoned this issue.

Employee's brief asserts that the Commission should reverse the ALJ's award because it is "completely contrary to the weight of the evidence." ${ }^{4}$ However, the employee fails to establish that the ALJ's award is against the weight of the evidence according to the applicable legal standard. The employee does not address the evidence contrary to his position. Nor does he attempt to prove, in light of the whole record, that this evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition that the employee is not PTD. See Harris v. Ralls Cty., 588 S.W.3d 579, 594-596. (Mo. App. 2019).

We defer to the ALJ's first-hand assessment of the employee's credibility. We affirm her finding that the employee failed to demonstrate that he is unable to compete for any employment in the open labor market and is not, as a factual matter, PTD.

The above findings regarding issues raised in the employee's application for review of the ALJ's award do not detract from her correct analysis of the evidence in the record or her ultimate legal conclusions.

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[^0]: ${ }^{4} \mathrm{Id} ., \mathrm{p} .20$.

We affirm and adopt the award of the ALJ as supplemented herein.

The award and decision of Chief Administrative Law Judge, Victorine R. Mahon, issued October 15, 2020, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 17th \qquad$ day of December 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence and my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee has proven that injury sustained in his compensable work injury on August 8, 2014, caused permanent total disability.

In determining whether an employee can return to any employment, Missouri law allows consideration of his age and education in addition to his physical disabilities. Baxi v. United Technologies Automotive, 956 S.W.2d 340 (Mo. App. 1997). The central question is whether an employer can reasonably be expected to hire the employee in his physical condition in the ordinary course of business. Ransburg v. Great Plains Drilling, 22 S.W.3d 726,732 (Mo. App. 2000), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc, 2003).

Permanent total disability means an employee cannot compete in the open labor market. Forshee v. Landmark Excavating and Equip., 165 S.W.3d 533, 537 (Mo. App. 2005). This means the employee is unable to perform the usual duties of the employment in a manner that the average person engaged in such jobs customarily performs such tasks. Gordon v. Tri-State Motor Transit Co, 908 S.W.2d 849 (Mo. App. 1995). "Total disability" does not require that the employee be completely inactive or inert. Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo. App. 1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, supra. However, it requires a finding that the employee cannot work in any employment in the open labor market, and not merely the inability to return to his last job. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, supra.

It is not even a close call, in this case, concerning whether or not the employee is permanently and totally disabled. Undoubtedly, he is.

Dr. Lennard, the employee's treating physician, testified that the employee will not get any better and may get worse. The employee has to lay down periodically every day simply to exist. He takes multiple medications, all prescribed by the authorized treating physician Dr. Bridges, the physician Dr. Lennard selected to treat the employee's ongoing pain management needs. This medication is necessary to help alleviate the employee's pain and simply keep him at his current level of functioning.

His injuries severely limit employee's activities. He does not lift over five pounds. He is constantly sleep-deprived because he cannot sleep through the night. His medications cause him to feel drowsy throughout the day. He has not worked since he performed a couple of weeks of light work for the employer between his first and second surgeries. The employer discharged the employee because he could not perform any work.

The employee's mental condition, which is not in dispute, further limits his ability to function. The employee suffers from depression and anxiety, the sequela of his work injuries, which include living in constant pain, a regimen of medications needed simply to function and feeling worthless.

Dr. Volarich, Dr. Green, and vocational expert Mr. Philip Eldred all agree that the employee is permanently totally disabled due to his work injuries, especially when considering who the employee was and is. The employee has little or no education and has only performed hard labor involving the use of his back and arms. He reads at the $4^{\text {th }}$-grade level. He has a learning disability. The employee did not even complete his first year of high school. He is not a candidate for retraining. Were the employee to go to a job interview, he would be able to offer a prospective employer:

- An $8^{\text {th }}$-grade education.

- No GED.

- No computer skills.

- No typing skills.

- Learning disabilities