William Parker v. Pepsi Beverage Company

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to $\S 286.090$ RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ).

The parties asked the ALJ to resolve the sole issue of Second Injury Fund (Fund) liability. Mr. Parker had previously settled his claim against the employer/insurer for 46\% permanent partial disability (PPD) of the body as a whole for the cervical spine.

The ALJ determined the Fund is liable for lifetime permanent total disability (PTD) benefits under § 287.220.3 RSMo.

The Fund filed an appeal to the Commission alleging the ALJ erred:

- In applying § 287.220.3(2)(a)a and concluding that Claimant's preexisting heart condition satisfied category three because it does not "directly and significantly aggravate or accelerate" the primary spinal injuries.

- In applying § 287.220.3(2)(a)a and concluding that Claimant's right hip and low back injuries qualify under category two because they were not compensable injuries under $\S 287.020$.

- In awarding PTD benefits under § 287.220.3(2)(a)b because Claimant did not submit evidence that he is PTD from a combination of his primary injury and qualifying preexisting disabilities.

- When she found Claimant to be permanently and totally disabled because he continued to work for years after the primary injury.

We consider the last point in the Fund's appeal to be dispositive and resolve the appeal based on that issue. Assuming, arguendo, that Mr. Parker is permanently and totally disabled, we find the third point in the Fund's appeal to also be dispositive. Without reaching the other issues appealed, we reverse the award and decision of the ALJ.

On October 2, 2014, Mr. Parker sustained a compensable, work-related injury to his neck from a motor vehicle accident, which was the primary injury involved in this claim. As a result of the injury, Mr. Parker underwent cervical injections and surgeries. Dr. Kevin D. Rutz performed surgery on July 10, 2015, including C4-5, C5-6, and C6-7 anterior cervical discectomy and fusion with placement of structural allografts and anterior instrumentation C4-7. On December 11, 2015, Dr. Rutz performed surgery including a right C6-7 posterior foraminotomy and C6-7

posterior spinal fusion with anterior instrumentation. On May 13, 2016, Dr. Rutz performed surgery removing the posterior C6-7 cervical instrumentation. Dr. Rutz released Mr. Parker at maximum medical improvement (MMI) without restrictions on September 27, 2016. After additional imaging and evaluation, Dr. Rutz confirmed MMI on March 14, 2017. The parties stipulated to March 14, 2017 as the applicable MMI date for this claim. Mr. Parker continued to work at Pepsi as a transport driver after being released by Dr. Rutz.

Mr. Parker was still working at Pepsi when Dr. David T. Volarich examined him for an independent medical examination (IME) on January 30, 2018. Dr. Volarich provided a rating of 60 % permanent partial disability of the body at the cervical spine due to the primary injury. Dr. Volarich also provided ratings for preexisting disabilities of 50 % of the right hip, 25 % of the body at the lumbar spine, and 15 % of the right hand. Dr. Volarich's report opined Mr. Parker's primary injury and preexisting disabilities had a synergistic effect combining to create a greater disability than the simple sum of each. Dr. Volarich opined Mr. Parker could work full duty to tolerance with normal work precautions.

Mr. Parker testified he continued working at Pepsi until approximately July 5, 2018. On an unspecified date prior to his work separation, Mr. Parker picked up and threw an empty pallet at work and felt pain down his arms. He testified he did not feel safe driving an 18-wheel truck due to his arm pain, and so he retired. Mr. Parker then began driving a school bus in September 2018. Part of his pre-employment testing required him to drag a 75 -pound bag for 20 feet. Mr. Parker described pain in his back and right leg during the test, but he was able to qualify as a school bus driver. He drove five days per week, two hours in the morning and two hours in the afternoon. He drove the bus during the school year and collected unemployment during the summer.

Dr. Volarich examined Mr. Parker again on December 5, 2018. The IME report indicates Mr. Parker reported he had retired from Pepsi. The report does not mention Mr. Parker's work as a school bus driver. Dr. Volarich did not provide any changes to his opinions regarding the primary injury or the preexisting disabilities described in his previous report. However, Dr. Volarich reviewed records and provided an opinion regarding Mr. Parker's heart which was not addressed in the previous report. Dr. Volarich provided an additional preexisting disability rating of 25 % of the body due to Mr. Parker's dilated cardiomyopathy. Dr. Volarich opined there was a synergistic effect between Mr. Parker's cardiac issues and the orthopedic and neuropathic problems described in his previous report. Dr. Volarich's report listed recommended work restrictions regarding the spine, lower extremities, and heart that were not provided in his previous report. Dr. Volarich opined Mr. Parker was permanently and totally disabled as a result of the October 2, 2014 primary injury in combination with his preexisting medical conditions.

Stephen Dolan evaluated Mr. Parker on March 12, 2019 for a vocational assessment. Mr. Dolan administered the Wide Range Achievement Test and found Mr. Parker scored at the 11th-grade level in word recognition, above high school level in sentence comprehension, and above high school level in math. Mr. Dolan testified these results indicate Mr. Parker would be very trainable, but added a qualifier stating, "if he were a younger individual." Mr. Dolan noted Mr. Parker was continuing to work as a school bus driver five hours per day during the school year. Mr. Dolan opined that restrictions from Dr. Volarich and Dr. Rutz would eliminate work previously performed by Mr. Parker. Mr. Dolan opined, "It is unlikely that any employer would see Mr. Parker as capable of successfully fulfilling the requirements of a full-time job. It is unlikely that Mr. Parker would be able to work full time, without taking excessive rest breaks, because of his cardiac condition." Mr. Dolan testified he did not believe Mr. Parker was employable in the open labor market on a full-time basis.

Mr. Parker continued working as a school bus driver until March 2020 when schools closed due to the COVID-19 pandemic. Mr. Parker testified he noticed his arms did not hurt all of the time when he stopped driving the school bus. He decided not to return to bus driving when schools reopened in the fall because not driving helped his pain.

Dr. Volarich examined Mr. Parker again on October 15, 2020. Dr. Volarich's report indicated he reviewed more than 100 pages of additional records, but they did not change the opinions he had previously expressed. Dr. Volarich again opined Mr. Parker was permanently and totally disabled as a result of the October 2, 2014 primary injury in combination with his preexisting medical conditions.

The Fund appeals the award of permanent total disability benefits in connection with the October 2, 2014 primary injury claim.

The legislature amended $\S 287.220$ in 2013 to limit the number of workers eligible for Fund benefits. Treasurer of State v. Parker, 622 S.W.3d 178, 181 (Mo. banc 2021). Because Mr. Parker's primary injury occurred after January 1, 2014, the criteria set forth under § 287.220.3(2) RSMo apply to establish a compensable claim against the Fund. See Cosby v. Treasurer, 579 S.W.3d 202 (Mo. banc 2019).

In relevant part, the statute provides as follows:

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.

§ 287.220.3(2) RSMo.

In Klecka, the Court stated:

Under [§] 287.220[3], employees must meet two conditions to make a compensable PTD claim against the Fund. First, the employee must have at least one qualifying preexisting disability, which must be medically documented, equal at least 50 weeks of PPD, and meet one of four listed criteria in section 287.220.3(2)(a)a(i)-(iv)... Second, the employee must show he 'thereafter sustains a subsequent compensable work-related injury [often referred to as the primary injury] that, when combined with the preexisting disability[,]... results in a permanent total disability as defined under this chapter.' [§ 287.220.3(2)(a)b]. As this Court recently explained in Treasurer of State v. Parker, 622 S.W.3d 178, 182 (Mo. banc 2021):

'[A]n employee satisfies the second condition by showing the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in the first condition.'

Klecka v. Treasurer of Mo., 644 S.W.3d 562, 566 (Mo. banc 2022).

"The term 'total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." § 287.020.6 RSMo. "The test for permanent total disability is the worker's ability to compete in the open labor market because it measures the worker's potential for returning to employment." Greer v. SYSCO Food Servs., 475 S.W.3d 655, 664 (Mo. banc 2015). "The ability to compete in the open labor market hinges on whether, in the ordinary course of business, any employer would be reasonably expected to hire the individual given his or her present physical condition." Id. at 665.

The Commission must decide whether any further medical progress can be reached because that decision is essential in determining when a disability becomes permanent for the purpose of awarding PPD or PTD benefits. Id. at 668.

The parties stipulated Mr. Parker reached MMI on March 14, 2017. We find Mr. Parker was not PTD at that time. We find Mr. Parker continued to work as a transport driver f