Donald Brown v. Noranda Aluminum, Inc.

Employee's medical condition and resulting work-related restrictions post injury. Once a physician does that, the requirement of $\S 287.190 .6(2)$ is satisfied, and it is within the Commission's expertise to determine whether the employee, with the medical conditions and physical limitations confirmed by the physician, is employable. See Patterson, 452 S.W.3d at 767 ("[U]ltimately, the employability of an individual is a technical matter within the Commission's expertise.").

The above brief amendment to the ALJ's award does not detract from her legal reasoning or her correct analysis of the evidence in the record.

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

The award and decision of Administrative Law Judge Amy L. Young, issued May 3, 2022, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 3rd \qquad$ day February of 2023.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Shalonn K. Curls, Member

DISSENTING OPINION FILED

Kathryn Swan, Member

Attest:


I have reviewed the evidence, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's decision to affirm the administrative law judge's (ALJ) decision.

The ALJ and Commission majority found that employee is permanently and totally disabled (PTD) from the 2016 primary injury combined with three preexisting disabilities:

- September 13, 2010 injury: 32.5 % of the body as a whole (BAW) referable to the lumbar spine;

- September 13, 2010 injury: 30\% of the left elbow (63 weeks) and a 10\% load factor (19.3 weeks); and

- July 16, 2007 injury: 17.5 % of the left elbow ( 36.75 weeks).

In determining that the Second Injury Fund (Fund) bears liability for PTD, the ALJ and Commission majority stacked two distinct injuries, combining the qualifying left elbow injury in September 13, 2010 with the non-qualifying July 16, 2007 left elbow injury. I find no authority for that approach.

There is no provision in the Workers' Compensation Act that expressly permits stacking to determine Fund liability for PTD. Further, the Supreme Court of Missouri and the lower appellate courts have not ruled on whether cumulative disabilities can be stacked to find the Fund liable under $\S 287.220 .3$ RSMo.

It is clear, however, that the intent of the Missouri Legislature's 2013 amendments to § 287.220.3 RSMo was to limit the Fund's liability. Treasurer of the State as Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 181 (Mo. banc 2021). I conclude that the ALJ's decision as affirmed by the Commission majority in this case incorrectly expands the Fund's Liability and is contrary to the legislature's intent.

For these reasons, I respectfully dissent from the majority's decision in this matter.

Employee: Donald Brown

Injury No. 16-027102

Dependents: N/A

Employer: Noranda Aluminum, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: New Hampshire Insurance Co. (Settled)

Appearances: Thomas W. Collins, III for Employee

Crystal Williams for the Second Injury Fund

Hearing Date: February 7, 2022

Checked by: ALY/kg

1. Are any benefits awarded herein? Yes.
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? February 9, 2016.
5. State location where accident occurred or occupational disease contracted: New Madrid County.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did the 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 the employer insured by above insurer? Yes.

On February 7, 2022, the employee, Donald Brown, appeared in person and with his attorney, Thomas W. Collins, III, for a hearing for a final award. The Second Injury Fund was represented at the hearing by their attorney, Assistant Attorney General Crystal Williams. For purposes of judicial efficiency and convenience of the parties, the Hearing included evidence for both Injury No. 16-027102 and Injury No. 16-011590. Separate awards are being issued for each case. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Employer was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by New Hampshire Insurance Company.
2. On or about the date of the alleged accident or occupational disease, the employee was an employee of Noranda Aluminum and was working under the Workers' Compensation Act.
3. On or about February 9, 2016, the employee sustained an accident or occupational disease arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. Employee's claim was filed within the time allowed by law.
6. The employee's average weekly wage was $\ 2,123.47, resulting in a compensation rate of $\ 886.92 for temporary total disability benefits and $\ 464.58 for permanent partial disability benefits.
7. Medical aid was furnished by Employer-Insurer in the amount of $\ 4,215.75.
8. Temporary total disability was paid by Employer-Insurer in the amount of $\ 7,728.87 for 8 $6 / 7$ weeks.
9. Employee reached maximum medical improvement on August 16, 2016.
10. The Stipulation for Compromise Settlement in Injury No. 16-011590 should read "BAWHemorrhoid" and the Stipulation for Compromise Settlement in Injury No. 16-027102, marked as Exhibit 6, should read "BAW-Back."

1. Liability of the Second Injury fund for permanent total disability.

The following exhibits were offered and admitted into evidence:

Employee Exhibits:

1. IME performed by David T. Volarich, M.D.
2. Deposition of J. Stephen Dolan
3. Vocational and Rehabilitation Assessment of Donald Dwayne Brown performed by J. Stephen Dolan, M.A., C.R.C., L.C.P.C.
4. Curriculum Vitae of J. Stephen Dolan, M.A., C.R.C.
5. Stipulation for Compromise Settlement for Injury No. 16-011590
6. Stipulation for Compromise Settlement for Injury Number 16-027102
7. Stipulation for Compromise Settlement, Injury No. 10-073845
8. Stipulation for Compromise Settlement, Injury No. 10-073845 SIF
9. Medical records of Regional Brain and Spine
10. Medical records of Orthopedic Sports Medicine \& Spine Care Institute
11. Functional Capacity Evaluation performed by The Work Center, Inc.
12. Medical records of James Coyle, M.D., 1 of 3
13. Medical records of James Coyle, M.D., 2 of 3
14. Medical records of James Coyle, M.D., 3 of 3
15. Medical Records of Patrick Knight, M.D.
16. X-ray films
17. Medical records of Colleen Hunter-Pearson, M.D. 1 of 4
18. Medical records of Colleen Hunter-Pearson, M.D. 2 of 4
19. Medical records of Colleen Hunter-Pearson, M.D. 3 of 4
20. Medical records of Colleen Hunter-Pearson, M.D. 4 of 4
21. Medical records of Mercy Hospital, 1 of 11
22. Medical records of Mercy Hospital, 2 of 11
23. Medical records of Mercy Hospital, 3 of 11
24. Medical records of Mercy Hospital, 4 of 11
25. Medical r