Joshua Sublett v. City of Columbia

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, and considered the whole record. Pursuant to § 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge (ALJ).

The parties proceeded to a hearing and asked the ALJ to determine the sole issue of Second Injury Fund (Fund) liability. Mr. Sublett had previously settled his claim against the employer/insurer for 15% permanent partial disability (PPD) of the body as a whole (BAW) referable to the cervical spine.

The ALJ determined that the Fund was not liable for permanent total disability (PTD) benefits under § 287.220.3 RSMo.

Mr. Sublett filed an appeal to the Commission alleging the ALJ erred in denying PTD benefits from the Fund.

We reverse the award and decision of the ALJ.

The parties stipulated that Mr. Sublett sustained a compensable, work-related injury to his neck on February 28, 2018. As a result of the injury, Mr. Sublett eventually underwent surgery by Dr. Craig Meyer at C5-6 and C6-7. Mr. Sublett worked for a short time following the injury, but his coworkers performed his work. He was limited to filling out his timesheet and sorting tools. Mr. Sublett was not able to continue working at his employer, and he has not worked since May 2018. Mr. Sublett settled his claim against the employer for this injury for 15% PPD of the BAW referable to the cervical spine.

Mr. Sublett had previously sustained multiple work-related injuries: The parties stipulated that Mr. Sublett sustained a compensable injury to his neck, within the course and scope of his employment, on or about April 16, 2014. Mr. Sublett dismissed his claim against the employer for this injury. The ALJ found Mr. Sublett sustained 20% PPD of the BAW referable to the cervical spine as a result of this injury.

The parties stipulated that Mr. Sublett sustained a compensable injury to his low back, within the course and scope of his employment, on or about July 10, 2015. Mr. Sublett settled his claim against the employer for this injury for 20% PPD of the BAW referable to the lumbar spine.

The parties stipulated that Mr. Sublett sustained a compensable injury to his neck, within the course and scope of his employment, on or about October 29, 2015. Mr. Sublett settled his claim against the employer for this injury for 1.5\% PPD of the BAW referable to the cervical spine.

The parties stipulated that Mr. Sublett sustained a compensable injury to his neck, within the course and scope of his employment, on or about January 24, 2017. Mr. Sublett settled his claim against the employer for this injury for 15 % PPD of the BAW referable to the cervical spine.

The parties stipulated that Mr. Sublett sustained a compensable injury to his neck, within the course and scope of his employment, on or about March 28, 2017. Mr. Sublett settled his claim against the employer for this injury for 1.25 % PPD of the BAW referable to the cervical spine.

In addition to the above injuries, the report from Mr. Sublett's medical expert, Dr. David Volarich, describes a work-related injury to the right shoulder on May 22, 2012. Dr. Volarich provided a PPD rating of 15 % of the right shoulder.

Dr. Volarich performed an independent medical examination (IME) of Mr. Sublett on November 14, 2018. Dr. Volarich recommended Mr. Sublett undergo vocational assessment to determine whether he could return to the open labor market. He opined that if vocational assessment could not identify a job for which he was suited, then Mr. Sublett is PTD as a direct result of the work-related injuries of July 10, 2015, October 29, 2015, January 24, 2017, March 28, 2017, and February 28, 2018, in combination with each other as well as in combination with his preexisting medical conditions.

Mr. Sublett obtained a vocational rehabilitation evaluation report from Mr. Michael Dreiling dated March 19, 2019. Mr. Dreiling concluded Mr. Sublett was not able to compete in the open labor market based upon the combination of the work injuries of January 24, 2017, March 28, 2017, and February 28, 2018.

Dr. Jeff Lehmen also performed an IME of Mr. Sublett at his request on March 3, 2020. Dr. Lehmen opined Mr. Sublett's February 28, 2018 work injury combined with his work injuries of April 16, 2014, July 10, 2015, October 29, 2015, January 24, 2017, and March 28, 2017 left him "severely physically limited in his ability to perform any job duties whatsoever." However, Dr. Lehmen opined that Mr. Sublett's "temporary symptom increase associated with [the] October 29, 2015 injury event abated" and his cervical "symptoms returned to the baseline" resulting in no permanent disability in C6-7. Similarly, Dr. Lehmen opined that the March 28, 2017 injury caused "a temporary exacerbation of cervical symptoms" and resulted in no permanent disability.

Consistent with those opinions, Dr. Lehmen assigned no permanent work restrictions to the October 29, 2015 or March 28, 2017 injuries. Rather, Dr. Lehmen limited his assignment of permanent work restrictions to the April 16, 2014, July 10, 2015, January 24, 2017, and February 28, 2018 injuries. Dr. Lehmen then deferred to a vocational rehabilitation specialist to analyze those permanent work restrictions and determine whether Mr. Sublett was PTD.

Mr. Dreiling issued another vocational report dated August 22, 2021. Mr. Dreiling opined the restrictions recommended by Dr. Lehmen related to the April 16, 2014, July 10, 2015, January 24, 2017, and February 28, 2018 work injuries would render Mr. Sublett PTD without factoring in any further injuries or restrictions.

Mr. Sublett appeals the denial of PTD benefits against the Fund.

The legislature amended § 287.220 RSMo 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. Sublett's primary injury of February 28, 2018 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).

"Non-qualifying preexisting disabilities cannot be considered in determining whether a claimant satisfies the second condition of section 287.220.3." Id. at 567.

"Although section 287.220.3(2)(b) refers to the preexisting disability in the singular form 'when combined with the preexisting disability' - section 1.030 instructs that the singular form should be interpreted to include the plural form.[4] (Emphasis added.) Therefore, section 287.220.3(2)(b) should be read to include 'when combined with the preexisting disabilities." Parker, 622 S.W.3d at 182.

The Parker decision contains a footnote stating, "Although this Court held in Treasurer v. Witte, 414 S.W.3d 455, 463-64 (Mo. banc 2013), that claimants could not stack multiple disabilities to meet the threshold for fund liability, Witte predates the 2013 amendments and, therefore, no longer applies." Id. n.4.

Here, the ALJ found Mr. Sublett failed to meet his burden of proof that the work injury of February 28, 2018, combined "solely" with the qualifying preexisting injuries of April 16, 2014, July 10, 2015, and January 24, 2017, to result in PTD. We disagree and reverse that decision.

"Consistent with the definition of 'total disability,' we interpret § 287.190.6(2)'s mandate that permanent total disability 'be demonstrated and certified by a physician' to require that a physician show clearly and attest as being true the 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.')." Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund, 570 S.W.3d 110, 116 (Mo. App. 2018).

The parties stipulated that Mr. Sublett had previously sustained compensable, work-related injuries on April 16, 2014, July 10, 2015, October 29, 2015, January 24, 2017, and March 28, 2017. As such, each of these injuries qualify under § 287.220.3(2)(a)a.(ii) RSMo as being a direct result of a compensable injury as defined in § 287.020.

The ALJ found that the October 29, 2015 and March 28, 2017 neck injuries were non-qualifying disabilities, presumably because each settled for less than 50 weeks of PPD benefits. We disagree with this analysis. The Parker decision's directives to read the terms "injury" as "injuries" and "disability" as "disabilities" and that the Witte bar against stacking no longer applies lead us to a different conclusion. We would find that these injuries could be considered together with the April 16, 2014