Issued by THE LABOR AND INDUSTRIAL RELATIONS …...Employee: Christopher Klecka -5 - (iv) A...

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD DENYING COMPENSATION (Reversing Award and Decision of Administrative Law Judge)

Injury No.: 14-036889 Employee: Christopher Klecka

Employer: Johnny Jones, lnc./J & J Welding (settled)

Insurer: The Accident Fund (settled)

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 § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to§ 286.090 RSMo, the Commission reverses the award and decision of the administrative law judge.

Introduction The parties asked the administrative law judge to resolve the sole issue of Second Injury Fund liability.

The administrative.law judge determined that the Second Injury Fund is liable for permanent total disability benefits.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge misapplied§ 287.220.3 RSMo by including conditions within her analysis that do not satisfy the criteria for permanent total disability claims against the Second Injury Fund.

For the reasons set forth below, we reverse the award and decision of the administrative law judge.

Findings of Fact At the time that he reached maximum medical improvement from the effects of the primary injury, employee was 53 years of age. Employee earned his GED in 1984. Employee was a welder for the majority of his career, but has also intermittently assisted in managing his family's business concerns, including a logging farm, restaurant, and rental properties.

Employee's last position, as a welder for employer, involved duties such as walking and standing for most of the day, lifting as much as 90 pounds occasionally, and frequent bending, squatting, reaching, carrying, pushing, and pulling. Employee stopped working for employer after suffering the primary injury, and has not sought further employment. Employee currently receives Social Security Disal:Jility benefits.

Preexisting conditions of ill-being Employee sustained a head injury in 1981, at the age of 19, as a result of a motor vehicle accident. In 2007, employee saw a neuropsychologistfor complaints of memory issues. Employee testified that memory issues referable to the 1981 head injury were


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sufficient to contribute to losing his job with employer. However, employee's psychiatric expert, Dr. Adam Sky, opined that employee's 1981 head injury did not result in any permanent partial disability. We credit this opinion from Dr. Sky, and find that employee does not suffer any permanent partial disability referable to the 1981 head injury.

In 1982, employee underwent surgery to address frequent dislocation of his left knee. Understandably, owing to the passage of time, there are no medical records in evidence to establish the exact nature of the surgery or diagnosis that prompted same. At the time of the April 2014, primary injury, employee was not under any permanent restrictions with regard to his left knee. In his testimony, employee vaguely suggested that he experienced some ongoing pain referable to the left knee, as well as difficulty with stairs. We note, however, that employee did not describe to his medical or vocational experts any issues with regard to his left knee. Absent further evidence or a rating from employee's medical expert, we find employee failed to meet his burden of proving the left knee condition constituted a permanent partially disabling condition as of the time of the April 2014 primary injury. We find, instead, that employee did not suffer any preexisting permanent partial disability referable to the left knee.

In 2005, employee sustained an injury to his right thumb while working. 1 Employee settled a workers' compensation claim against his employer consistent with a rating of 15% permanent partial disability of the right thumb, or 9 weeks of permanent partial disability benefits, with an additional week of compensation for disfigurement. Employee testified he had weakness and cramping in the thumb, which caused him difficulty with holding small objects. We find that, at the time of the April 2014 primary injury, employee's permanent partial disability with respect to the right thumb was equal to 15%, or 9 weeks.

In 2006, employee suffered a hernia while working. Employee settled a workers' compensation claim against his employer consistent with a rating of 7.5% permanent partial disability of the body as a whole, or 30 weeks of permanent partial disability benefits. Employee continues to experience pain and difficulty bending over. We find that, at the time of the April 2014 primary injury, employee's permanent partial disability with respect to the hernia was equal to 7 .5% of the body as a whole, or 30 weeks.

In 2007, employee sustained a right shoulder injury while working. Employee settled a workers' compensation claim against his employer consistent with a rating of 35% permanent partial disability of the right upper extremity at the 232-week level, or 81.2 weeks of permanent partial disability benefits. We find that, at the time of the April 2014 primary injury, employee's permanent partial disability with respect to the right shoulder was equal to 35%, or 81.2 weeks.

1 We note that there are references throughout the transcript to a left thumb injury. Based on employee's testimony, we find that these references are in error, that the 2005 injury in question affected employee's right thumb only, and that employee did not suffer from any preexisting injury or complaints referable to the left thumb.


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Primary iniury On April 18, 2014, employee sustained a work injury affecting his left shoulder when his arm was yanked violently while he was attempting to catch a piece of metal that was rolling off a conveyor. After multiple surgeries, treating physicians released employee from active care on April 5, 2016. The parties stipulated that employee reached maximum medical improvement from the effects of the primary left shoulder injury on April 5, 2016.

Employee settled his claim against the employer herein consistent with a rating of 35% permanent partial disability referable to the left upper extremity at the 232-week level, as well as a rating of 21.5% permanent partial disability of the body as a whole referable to psychiatric injury. Employee continues to suffer pain in his left shoulder that disrupts his sleep. Employee presents the expert medical opinion of Dr. David Volarich, who opined that the primary injury resulted in permanent partial disability of 60% of the left shoulder.

Employee also presents the expert psychiatric opinion of Dr. Adam Sky, who believes employee suffers from major depression as a result of his primary injury. Dr. Sky rated employee's depression at 40% permanent partial disability of the body as a whole.

After careful consideration, we find that the primary injury resulted in a 35% permanent partial disability of the left shoulder, as well as a 15% permanent partial disability of the body as a whole referable to depression. We find that the overall effects of the primary injury (including employee's permanent partial disability affecting the left shoulder and his psychiatric disability in the form of depression) do not, considered alone, render employee unable to compete for work in the open labor market.

Expert opinion evidence regarding permanent total disability In support of his claim against the Second Injury Fund, employee relies on the opinion of Dr. David Volarich with respect to permanent total disability. Dr. Volarich believes employee is permanently and totally disabled as a result of the primary injury in combination with employee's preexisting medical conditions. Dr. Volarich made clear, however, that his opinion that employee is permanently and totally disabled includes consideration of the effects of the 1981 head injury, 2005 thumb injury, and 2006 hernia, as well as the effects of the 2007 right shoulder injury.

Employee also presents the expert vocational opinion of Ms. Delores Gonzalez, who believes employee is not currently capable of any competitive work for which there is a reasonably stable job market, because of the effects of the primary injury in combination with employee's preexisting conditions of ill-being, including the 1981 head injury, 2005 right thumb injury, and 2006 hernia, as well as the effects of the 2007 right shoulder injury. At her deposition, Ms. Gonzalez agreed, on cross-examination, that she factored each of these enumerated conditions into her ultimate vocational opinion.

Employee also presents the expert vocational opinion of Mr. James England, who believes that, assuming the restrictions imposed by Dr. Volarich, employee would be prevented from sustaining normal employment. We note that the restrictions imposed


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by Dr. Volarich include consideration of employee's preexisting hernia and right thumb injuries, as well as the effects of the 2007 right shoulder injury. See Transcript, page 98.

There is no evidence on this record that would suggest (let alone persuasively demonstrate) that employee is unable to compete for work in the open labor market owing to the effects of the April 2014 injury in combination with his preexisting right shoulder disability. Accordingly, we find that employee is not permanently and totally disabled based on a combination of the effects of the primary injury and his preexisting right shoulder disability.

Conclusions of Law Second lniurv Fund liability Employee seeks an award of permanent total disability benefits from the Second Injury Fund. Because employee's primary injury occurred after January 1, 2014, we must apply the new criteria set forth under§ 287.220.3 RSMo for establishing a compensable claim against the Second Injury Fund. See Cosby v. Treasurer, 579 S.W.3d 202 (Mo. 2019).2

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

2 We note that the hearing in this matter took place on January 29, 2019, prior to the issuance of the decision in Cosby on June 25, 2019. Given these circumstances, we invited the parties to address the effect of the Cosby decision upon the issues presented in this appeal. Employee filed a supplemental brief addressing the Cosby decision; we have reviewed same. Neither party filed a motion to submit additional evidence to the Commission.


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(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.

We have found that employee's preexisting right shoulder injury resulted in 81.2 weeks of permanent partial disability. Given that the right shoulder disability resulted from a compensable injury, we conclude that the criteria under§ 287.220.3(a)a(ii) is satisfied with regard to this preexisting condition. However, with regard to each of employee's other claimed preexisting conditions, in light of our findings of fact set forth above, we must conclude that none of these satisfy the criteria under§ 287.220.3(a)a, because none of these conditions involved preexisting permanent partial disability equal to a minimum of fifty weeks of compensation.

The question presently before us, then, is whether employee is entitled to permanent total disability benefits where his claimed permanent total disability does not result from a combination of the primary injury and preexisting disability that satisfies the enumerated criteria under§ 287.220.3(a)a, but rather from the combination of his primary injury and a// of his claimed preexisting disabling conditions, including those conditions that do not satisfy§ 287.220.3(a)a. After careful consideration, we must conclude employee is not entitled to permanent total disability benefits from the Second Injury Fund, for the following reasons.

Pursuant to§ 287.800.1 RSMo, we must strictly construe the language of Chapter 287. As our courts have instructed:

A strict construction of a statute presumes nothing that is not expressed . . . . [l]t means that everything shall be excluded from its operation which does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009)(citations omitted).


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It appears to us that employee invites us to presume something not expressed within the language chosen by our legislature. Specifically, it appears employee asks us to apply§ 287.220.3(a)b as if it read as follows:

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, and all other disability existing at the time the last injury was sustained, results in a permanent total disability as defined under this chapter[.]

(additions in bold).

Pursuant to the strict construction mandate, we cannot read the foregoing additional words into the language of§ 287.220.3(a)b. Rather, we conclude that the language of the statute requires that each of an employee's preexisting disabilities, to be considered in a permanent total disability claim against the Second Injury Fund, must satisfy the criteria set forth under§ 287.220.3(a)a of equaling a minimum of fifty weeks of compensation.

We acknowledge employee's argument that we should credit the testimony from his experts describing an interaction, or synergism, between the effects of his primary injury and all of his preexisting disabling conditions. Employee argues this evidence is sufficient to support a finding that employee's preexisting conditions "significantly aggravate or accelerate" the effects of the primary injury, such that§ 287.220.3(a)a(iii) would be satisfied. We are not persuaded. Before we can consider whether a preexisting disabling condition significantly aggravates or accelerates the effects of the primary injury, § 287.220.3(a) requires that we must first make a finding that the disability referable to such condition correlates to "a minimum of fifty weeks of permanent partial disability compensation." For this reason, we have not considered whether the effects of employee's 1981 head injury, 1982 left knee condition and surgery, 2005 thumb injury, or 2006 hernia, significantly aggravate or accelerate the effects of the primary injury, because with regard to each, we have found either 1) that these conditions did not result in any permanent partial disability, or 2) that the extent of permanent partial disability referable to these conditions correlates to less than 50 weeks of compensation.

As we have noted, there is no evidence on this record that suggests employee is permanently and totally disabled as a result of the combination of the primary injury with his preexisting disability of the right shoulder. Accordingly, we have found that employee is not permanently and totally disabled as a result of a combination of the primary injury and his preexisting right shoulder disability. It follows, and we so conclude, that employee has failed to satisfy the requirements of§ 287.220.3.

For the foregoing reasons, we deny employee's claim against the Second Injury Fund.


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Decision We reverse the award of the administrative law judge.

Employee's claim against the Second Injury Fund is denied because his evidence fails to satisfy the standard set forth under§ 287.220.3.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued May 2, 2019, is attached solely for reference.

Given at Jefferson City, State of Missouri, this /t/fh day of January 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED Curtis E. Chick, Jr., Member

Attest:


DISSENTING OPINION

After a review of the evidence, I am convinced that employee has met his burden of proving his entitlement to permanent total disability benefits from the Second Injury Fund. The facts of this case amply demonstrate that the Commission majority's reading of the statute is unworkable from the standpoint of protecting Missouri employers and encouraging the employment of the partially disabled.

Historv and purpose of the Second lniurv Fund The Commission majority's analysis is remarkably devoid of context. I disagree with the unstated premise that the strict construction mandate requires that we ignore history,.or consider statutory language in a vacuum. As the courts of our state have long recognized, it is crucial that we consider whether the result, in any case involving the Second Injury Fund, will vindicate the beneficent purposes for which the Fund was created:

The purpose of the Second Injury Fund is twofold: to encourage the employment of individuals who are already disabled; and to relieve an employer or his insurer of liability for the previously disabled employee's total and permanent disability where that disability is not specifically attributable to an injury suffered during the period of employment with that employer.

Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987).

Of course, I recognize that the 2013 amendments to§ 287.220 RSMo were intended to limit the liability of the Second Injury Fund, in an effort to preserve its solvency and its ability to properly compensate injured workers rendered unable to compete in the open labor market: "[A]t the time section 287.220 was amended, the fund was insolvent. Under such circumstances, the legislature justifiably sought to limit the number of workers eligible for fund benefits." Cosby v. Treasurer, 579 S.W.3d 202, 210 (Mo. 2019). I disagree, however, that these amendments require that we deny the claim of this permanently and totally disabled worker.

The courts of this state have long held that the fact-finder in a workers' compensation claim is permitted to consider factors such as an employee's age, work history, and potential for retraining, in claims against the Second Injury Fund for permanent total disability benefits. Tiller v. 166 Auto Auction, 941 S.W.2d 863, 866 (Mo. App. 1997). With regard to preexisting permanent partially disabling conditions, however, the law has historically provided statutory thresholds, which have served to prevent Second Injury Fund claims premised on minimally disabling conditions that do not pose a threat to the employee's earning ability.

Specifically, prior to the 2013 amendments, the legislature imposed thresholds for triggering Second Injury Fund liability in permanent partial disability claims; these are now set forth under§ 287.220.2 RSMo. In a series of relatively recent decisions, the


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appellate courts of our state had an occasion to consider wh.ether the thresholds applied to each of an employee's preexisting conditions, or whether it was sufficient that a single condition satisfy the thresholds. Finally, the Supreme Court of Missouri declared that Second Injury Fund liability was triggered where any one of the employee's preexisting conditions satisfied the thresholds. Treasurer of Mo.-Custodian of the Second Injury Fund v. Witte, 414 S.W.3d 455,467 (Mo. 2013). The Witte court explained its holding as follows:

Id.

By implementing the thresholds, the legislature provided a more precise standard and excluded de minimus injuries from triggering liability. Merely because all of a claimant's preexisting injuries will be considered when computing the amount of compensation does not mean all claimants will receive compensation - there still must be an injury of sufficient seriousness to meet the thresholds before the fund can be liable.

The legislature is presumed to know the judicial construction that has previously been applied to its statutes. See Thompson v. State Veterans' Home & State Office of Administration/Caro, 58 S.W.3d 657, 661 (Mo. App. 2001)(noting that "[w]e must presume that the legislature is aware of the state of the law at the time it enacts a statute"). I conclude the new 50-week and categorical thresholds set forth under§ 287.220.3(a)a apply in a manner consistent with the prior thresholds under§ 287.220.2 for preexisting permanent partial disability. I conclude that where an employee has a preexisting disabling condition that satisfies the new thresholds, I am not prevented from considering the employee's other preexisting disabling conditions in assessing the liability of the Second Injury Fund, no more than I am prevented from considering other factors, such as the employee's age, work history, and potential for retraining.

Employee has satisfied§ 287.220.3 RSMo Employee has presented uncontested testimony from two physicians and two vocational experts. Each agree that, after suffering the primary injury, employee is unable to compete for work in the open labor market. Each agree that this condition of permanent total disability is not the product of the last injury considered in isolation, but that it instead results from the combination of employee's primary injury and his preexisting disabling conditions, including his significant disability affecting the right shoulder. The Second Injury Fund presented no evidence in its defense.

The question is whether employee has met his burden of proving Second Injury Fund liability for permanent total disability benefits under the following test:

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


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compensation according to the medical standards that are used in determining such compensation which is:


(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


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[.]

Based on the wholly uncontested expert opinion evidence, I find that employee 1) had a medically documented preexisting disability with respect to his right shoulder equaling more than 50 weeks of disability compensation, 2) that such disability was a direct result of a compensable workers' compensation injury, 3) that employee sustained a subsequent compensable work-related injury affecting his left shoulder, 4) that the prior right shoulder injury and primary left shoulder injury combine, and 5) that the result of this combination is to render employee unable to compete for work in the open labor market, when I consider his overall presentation as of April 5, 2016, the date of maximum medical improvement. I conclude that the Second Injury Fund is liable for permanent total disability benefits.

I recognize that the majority purports to apply the mandate of strict construction as support for its choice to exclude most of employee's preexisting disabling conditions from its assessment of Second Injury Fund liability. I am convinced, however, that the majority's analysis impermissibly adds language to the statutory test that is not present. Specifically, the majority applies§ 287.220.3(a)b as if it read as follows:

Such employee thereafter sustains a subsequent compensable work-related injury that, when combined only with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph,


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and no other preexisting disability, results in a permanent total disability as defined under this chapter[.]

As further discussed immediately below, I believe that if the legislature had intended that we exclude all other preexisting disability from our assessment of Second Injury Fund liability, even after an employee (as here) has a preexisting disability that 1) satisfies the criteria, 2) combines with the primary injury, and 3) where the employee is permanently and totally disabled upon reaching maximum medical improvement from the effects of the work injury, I believe the legislature would have specifically so stated.

Enhanced employer exposure for permanent total disability claims The Commission majority's analysis implicitly presumes that our legislature intended that employers remain liable whenever (as will almost always be the case) an employee has any preexisting condition that contributes to the condition of total disability but does not satisfy the criteria under§ 287.220.3(2)(a)a. This is because, "in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury[.]" Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963). As expressly stated under the new statute, § 287.220.3(3) only protects employers when the Second Injury Fund is shown to be liable:

When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

I do not believe the legislature intended (nor that a strict construction of§ 287.220.3 supports a conclusion) that employers maintain liability for permanent total disability benefits whenever it is shown that any factor which contributes to causing such disability does not meet the criteria set forth in§ 287.220.3(2)(a)a. Again, I must presume that the legislature was aware of the state of the Missouri case law on the topic of Second Injury Fund liability at the time it enacted the 2013 amendments. Accordingly, I presume the legislature was cognizant of the long line of decisions from our courts declaring the purpose underlying the Second Injury Fund:

The purpose of the Fund is to encourage employers to hire partially disabled applicants. The hiring of such individuals raises the possibility that the partial disability will combine with a later, on-the-job injury to produce a greater (if not total) permanent disability. The legislature wanted to assure employers that, in such cases, they would not be exposed to a greater amount of liability than that which results from the work-related injury. Thus, it limited the employer's liability to that part of the disability that can be attributed to the last injury alone.


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Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. 2004)(citations omitted)1

Given the Commission majority's reading of the statute, this employer should be held liable for employee's condition of permanent and total disability resulting after the April 2014 primary injury, solely because employee suffered from some preexisting disabilities that do not, when they are considered individually, satisfy the requirements under§ 287.220.3(2)(a)a. In other words, this employer's commendable willingness to provide work to employee-despite his suffering from some preexisting disabilities-has worked the result of exposing employer to liability for weekly disability payments for the rest of employee's lifetime. This result is so antithetical to the well-established purposes underlying the Second Injury Fund, and constitutes such a drastic departure from the state of the law at the time the legislature enacted the 2013 amendments, that I will not presume the legislature intended such a result absent express language so declaring. (For example, if such a result were intended, one would expect our legislature to simultaneously and expressly abrogate the long line of Missouri cases declaring the purpose of the Second Injury Fund.)

In sum, I disagree with the Commission majority's reading of the new statutory test. am convinced that employee's evidence satisfies that test. I would affirm the decision of the administrative law judge and award permanent total disability benefits from the Second Injury Fund.

Because the Commission majority has decided otherwise, I respectfully dissent.

1 See also Federal Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963); Meilves v. Morris, 422 S.W.2d 335,338 (Mo. 1968); Bone v. Daniel Hamm Drayage Co., 449 S.W.2d 169, 171 (Mo. 1970); Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987); Lawrence v. Joplin R-V/11 School Dist., 834 S.W.2d 789, 793 (Mo. App. 1992); Wuebbeling v. West County Drywall, 898 S.W.2d 615, 617 (Mo. App. 1995); Boring v. Treasurer of Missouri, 947 S.W.2d 483,488 (Mo. App. 1997); Pierson v. Treasurer of Mo. As Custodian of the Second Injury Fund, 126 S.W.3d 386, 389 (Mo. 2004); Walls v. Treasurer of Mo., 207 S.W.3d 136, 138 (Mo. App. 2006); Hornbeck v. Spectra Painting, Inc., 370 S.W.3d 624,630 (Mo. 2012); and Treasurer of Missouri-Custodian of the Second Injury Fund v. Witte, 414 S.W.3d 455,460 (Mo. 2013)

Issued by DIVISION OF WORKERS' COMPENSATION

AWARD

Employee: Christopher Klecka

Dependents: N/ A

InjuryNo: 14-036889

Injury No.: 14-036889

Before the Division of Workers'

Employer: Johrmy Jones, Inc./J&J Welding (previously settled) Compensation Department of Labor and Industrial

Additional Party: Second Injury Fund (SIF) Relations of Missouri Jefferson City, Missouri

Insurer: The Accident Fund (previously settled)

Hearing Date: January 29, 2019 Checked by: KMH

FINDINGS OF FACT AND RULINGS OF LAW

I. 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 ofoccupational disease under the Law? Yes

4. Date of accident or onset ofoccupational disease: April 18, 2014

5. State location where accident occurred, or occupational disease was contracted: St. Louis

6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

7. Did 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 employer insured by above insurer? Yes

11. Describe work employee was doing and how accident occurred, or occupational disease contracted: Claimant injured his left shoulder and psyche in the course and scope of his employment.

12. Did accident or occupational disease cause death? No Date of death? n/a

13. Part(s) of body injured by accident or occupational disease: left shoulder, body as a whole referable to the psyche

14. Nature and extent of any permanent disability: 35% PPD of the left shoulder; 21.5% BA W psych

15. Compensation paid to-date for temporary disability: disputed

16. Value necessary medical aid paid to date by employer/insurer? $140,599.76

WC-32-Rl (6-81) P~ge I

Issued by DIVISION OF WORKERS' COMPENSATION Injury No: 14-036889

Employee: Christopher Klecka Injury No.: 14-036889

17. Value necessary medical aid not furnished by employer/insurer? None

18. Employee's average weekly wages: unknown

19. Weekly compensation rate: $853.08/$446.85

20. Method wages computation: Stipulation

COMP EN SA TION PAYABLE

21. Amount of compensation payable:

167.2 weeks of permanent partial disability from Employer

22. Second Injury Fund liability:

Permanent total disability benefits from Second Injury Fund: Weekly differential of$406.23 payable by SIF for 167.2 weeks beginning

April 5, 2016, and, $853.08 weekly thereafter, for as long as provided by law

TOTAL:

23. Future requirements awarded: See award

(previously paid)

to be determined

TO BE DETERMINED

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

James J. Sievers

WC-32-Rl (6-81) P11ge 2


FINDINGS OF FACT and RULINGS OF LAW:

Employee: Christopher Klecka

Dependents: N/ A

Employer: Johnny Jones, Inc/J&J Welding (previously paid)

Additional Party: SIF (Only)

Insurer: The Accident Fund (previously paid)

Injury No.: 14-036889

Before the Division of Workers'

Compensation

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter January 29, 2019. Christopher Klecka (Claimant) was represented by attorney James J. Sievers. SIF was represented by Assistant Attorney General Madeline Enzmann. Employer/Insurer settled their liability prior to the hearing.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award. SIF objects to the admission of Claimant's Exhibit 10, Social Security Notice of Decision. I find Exhibit 10 is admissible, not for the purpose of determining disability, but for the limited purpose of assisting with outlining Claimant's work and medical history.

STIPULATIONS

The parties stipulated to the following:

I. Claimant sustained an injury by accident on April 18, 2014 while in the course and scope of his employment for Employer.

2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law on the date of injury.

3. Employer's liability was insured by The Accident Fund. 4. Employer had notice of the injury and a Claim for Compensation was timely filed. 5. Claimant's average weekly wage was sufficient to yield rates of $853.08 for TTD/PTD

benefits and $446.85 for PPD benefits. 6. Claimant was paid TTD and received $140,599.76 in medical benefits. 7: Claimant and Employer/Insurer settled the primary claim for 35% PPD of the left

shoulder and 21.5% BA W, psyche. 8. Claimant reached MMI on April 5, 2016. If Claimant is permanently and totally disabled,

PTD benefits commence on April 5, 2016.

wc.J2-RJ (6-81) Page 3

Issued by DIVISION OF WORKERS' COMPENSATION Injwy No: 14-036889

ISSUES

The parties stipulated the sole issue to be resolved is SIF liability.

FINDINGS OF FACT

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 57-year-old, right-handed, male who earned his GED in the early 1980s. He earned a Certificate in Computer Technology Hardware from Vatterott College in 1998, but was never able to get a job in that field. He spent the majority of his career working as a welder. He typically handled heavy equipment and used a variety of tools. He never worked in an office, never handled accounting or scheduling, and never supervised employees. Claimant has not returned to work since the primary injury and is receiving Social Security Disability.

2. Claimant had a number of injuries prior to his 2014 injury. In 1981, Claimant sustained a head injury when he was involved in a motor vehicle accident. He was in a coma for ten days, and was in the hospital for 24 days. He developed double vision that improved somewhat after surgery. He continues to have double vision requiring him to tilt his head to see more clearly. He has balance problems, and problems with executive functioning. He has short-term memory loss due to this accident, and testified he lost jobs due to his memory issues. He sought psychiatric care for a short time after this injury.

3. In 1982, Claimant dislocated his left knee and had surgery. He testified he continues to have pain and difficulty with steps.

4. On November 3, 2005, Claimant cut his left thumb at work. He developed an infection and had surgical debridement. He settled this case for 15% permanent partial disability of the left thumb. Claimant testified he continues to have pain and cramping in his thumb and hand, and he had difficulty holding tools at work.

5. On November 28, 2006, Claimant developed a hernia while lifting at work. Claimant had surgical repair with mesh, and settled this case for 7.5% PPD of the body as a whole. Claimant continues to have generalized soreness in the area. He testified he has scar tissue across his abdomen that pinches when he bends.

6. Claimant injured his right shoulder in September 2007 when he was moving large tubes at work. He had rotator cuff repair followed by physical therapy in 2008. Claimant missed considerable time from work and settled this case for 35% PPD of the right shoulder. When he returned to work, he used his left arm to accommodate his right arm weakness. Claimant testified he continues to have pain, weakness and limited use of his right arm. He has difficulty with overhead work because of his arm weakness. His job as a welder was hand and arm intensive, and this iajury made his work more difficult.

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7. Claimant injured his left shoulder April 18, 2014, while cutting a large piece of metal at work. The metal started to fall, and when he grabbed it, he injured his left arm. Conservative treatment failed to relieve his symptoms, and an MRI showed a tear of the supraspinatus and portions of the infraspinatus, along with extensive fraying. Dr. Kastman performed a rotator cuff repair, subacromial decompression and biceps tenodesis in June 2014.

8. Claimant continued to have shoulder pain, and an MRI/Arthrogram showed a large re-tear of the rotator cuff. In September 2015, Dr. Milne performed a left shoulder revision subacromial decompression, revision rotator cuff repair with sutures and one anchor, clavicle resection and hardware removal. Claimant had physical therapy and work hardening, but his symptoms continued. In March 2016, an MRI showed a recurrent full thickness tear. Dr. Milne noted Claimant was still struggling and had considerable pain with normal activities. A Functional Capacity Evaluation revealed Claimant was not capable of returning to his heavy demand job. Dr. Milne opined Claimant may be a candidate for an experimental surgery, but recommended Claimant live with his current symptoms. He released Claimant at MMI on April 5, 2016.

9. Claimant testified he has a history of psychiatric treatment dating back to his 1981 accident. He saw a psychiatrist for his cognitive problems following that accident and again had psychiatric treatment while he was going through a divorce. Claimant testified he developed depression after he was not able to return to work following the 2014 injury. He had a permanent lifting restriction, and developed severe depression about everything that was going on in his life.

10. Claimant settled the primary case against Employer for 35% PPD of the left shoulder and 21.5% PPD of the body as a whole referable to psychiatric iajury.

11. Claimant continues to have constant pain in his left shoulder. Claimant testified he takes aspirin and over the counter pain medications. He does not take prescription pain medications because he does not like how they made him feel. Claimant's right shoulder pain woke him up at night before the primary injury. Now he wakes up at night with left shoulder pain, and is up for two to three hours. He no longer plays sports due to his shoulder injury.

12. On a typical day, Claimant watches television. He is very limited in his activity due to all his physical problems. He still has memory problems. He has pain in his left knee and right hand. He can't do sit ups because of pain from the hernia, and he has gained weight. He is not limited with sitting and driving, and no longer takes anti-depressants.

13. Claimant has not sought employment since he left Employer because he can't be a welder anymore. He believes he is not qualified for other work, and welding is all he knows. He worked at his family's restaurant and helped on his family farm in the past, but they no longer own the restaurant or farm. In the past, he helped his mother with rental properties when he was between jobs. Now he lives in one of her rental units and helps her find renters. He paints the empty units, but hires others to make necessary repairs.

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14. Claimant's medical expert, Dr. Volarich, reviewed all of the medical records, examined Claimant and issued reports dated August 9, 2007, May 22, 2015, and September 9, 2016. Dr. Volarich rated Claimant's disabilities and explained how Claimant's prior injuries combined with his primary injury make it more difficult to function efficiently at home and at work. Dr. Volarich opined if a vocational assessment was unable to identify a job for Claimant, then he would be permanently and totally disabled as a result of the combination of all his orthopedic injuries.

15. On April 12, 2017, Dr. Volarich performed his final physical examination. He reviewed Dr. Sky's report and the vocational reports of James England and Delores Gonzalez. Dr. Volarich opined Claimant is permanently and totally disabled as a direct result of the work-related injury of2014 in combination with his preexisting medical conditions and psychiatric disorders. Dr. Volarich testified to specific examples outlining how Claimant's prior injuries combine with his primary injury to create greater disability.

16. Dr. Sky, Board Certified Psychiatrist, reviewed the records, examined Claimant, and issued a report in October 2016. He obtained a history of the illness as well as a past medical history, past psychiatric history, a social and family history and performed psychiatric testing. He also performed a mental status evaluation and diagnosed Claimant with major depression. Dr. Sky noted Claimant had persistent memory deficits due to his closed head injury in the 1980's, but he did pretty well after this injury. He rated Claimant's psychiatric disability at 40% PPD of the body as a whole, caused by the primary injury. Dr. Sky testified people with depression typically have problems with focus, concentration, attention, and sleep. Claimant is having sleep problems and is frequently exhausted. Dr. Sky opined Claimant would have a difficult time with a job that requires persistence and pace, and he would have a difficult time following directions, checklists, and precautions.

17. Claimant's vocational expert, James England, reviewed the records, interviewed Claimant, and issued a report November 30, 2016. He opined Claimant does not have any usable, transferable skills. Mr. England noted Claimant was in the advanced age category. Mr. England reviewed the report of Paul W. Rexroat, PhD, that outlined Claimant's depression and memory loss. Mr. England testified Claimant has a well-established work history of physically demanding jobs at least at medium level of exertion. He further testified, based upon the result of the FCE, that Claimant would be unable to do his past work. Mr. England opined Claimant is totally disabled assuming the combination ofrestrictions and level of functioning noted by Dr. Volarich. He opined Claimant is likely to remain totally disabled due to a combination of his injuries and disabilities.

18. Claimant's second vocational expert, Delores Gonzalez, reviewed the records, interviewed Claimant, and issued a report January 6, 2017. Ms. Gonzalez noted Claimant disliked school and obtained his GED in 1983. She obtained a social and a vocational history, an educational history, history of activities of daily living, transferability of skills analysis and vocational testing. She noted Claimant has significant limitation of functional capacity due to a combination of his primary injmy and disability with his

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preexisting hernia, right shoulder and left thumb injuries and disabilities. She opined Claimant does not have transferrable skills due to his significantly reduced functional capacity. Given his restrictions, he is left with a functional capacity of less than sedentary work. She opined Claimant would not present well in a job interview because he appears to be tired, drowsy and confused. She concluded Claimant is not a candidate for vocational rehabilitation and is not capable of any competitive work because of the primary injury in combination with is pre-existing medical conditions.

19. Claimant is credible.

RULINGS OF LAW

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

Claimant is permanently and totally disabled due to the combination of his primary and preexisting injuries and disabilities.

Section 287.220.3(2) RSMo (2013) provides claims for permanent total disability 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:


(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


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."

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Based on the competent and substantial evidence, including Claimant's testimony, medical records, the settlement documents, and the opinions of the experts, I find Claimant sustained permanent partial disability equal to 35% PPD of the body as a whole referable to the left shoulder and 21.5% PPD to the body as a whole referable to psychiatric disabilities attributable to the April 18, 2014 work injury. The primary work injury in and of itself was not permanently and totally disabling.

As I find the primary injury resulted only in permanent partial disability to Claimant, I must now determine the liability of the SIF. Section 287.220 creates the Second Injury Fund and imposes liability on the fund in certain cases of permanent disability where there is a preexisting disability. Claimant has presented ample evidence, including previous settlement stipulations, of his preexisting permanent partial disabilities which constituted a hindrance or obstacle to employment.

Claimant has a number of medically documented preexisting disabilities and these disabilities meet three of the statutory requirements set forth above. Claimant has compensable and non-compensable preexisting injuries and disabilities. Claimant and his medical experts credibly testified his compensable and noncompensable preexisting injuries significantly aggravated or accelerated his primary injury.

Claimant's medical expert, Dr. Volarich, is the only physician who considered all of Claimant's restrictions. He had in his possession all of the medical records including the actual films. He opined the combination of Claimant's prior and primary injuries and disabilities renders him permanently and totally disabled. Claimant's vocational experts opined Claimant is unable to compete in the open labor market and is unemployable due to the combination of his prior and primary injuries and disabilities. Dr. Sky testified as to Claimant's psychiatric disability. Paul W. Rexroat, PhD, documents Claimant's long-standing memory loss and double vision.

The test for permanent total disability is whether the worker is able to compete in the open labor market. A worker is totally disabled if they are unable to return to any normal or reasonable employment; the worker is not required to be inert or completely inactive. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition. Carkeek v. Treasurer of State, 352 S.W.3d 604 (Mo. App. 2011) at 608. Claimant's limited activities of helping his mother prepare her rental units is not sufficient to demonstrate employability in the open labor market. Given Claimant's bilateral upper extremity injuries, his additional disabilities, and the opinions of the experts, I find no employer would reasonably be expected to hire Claimant in his current physical condition.

I find the unrebutted opinions of Dr. Volarich, Dr. Sky, Mr. England, CRC, and Ms. Gonzalez, CRC, credible. Claimant has met his burden and established he is pe1manently and totally disabled as a result of the combination of his primary injury and preexisting disabilities. I find Claimant is unable to return to any normal or reasonable employment and that no employer in the ordinary course of business would reasonably be expected to hire the Claimant in his current physical condition. It was not the last injury alone or the prior injuries alone that rendered Claimant totally disabled. Accordingly, the SIF is liable for PTD benefits at the

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differential rate of $406.23 for 167.2 weeks beginning April 5, 2016, and thereafter, $853.08 per week for as long as provided by law.

I certify that on ,5- :J...,/ q , I delwered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __ "-

Issued by THE LABOR AND INDUSTRIAL RELATIONS …...Employee: Christopher Klecka -5 - (iv) A...

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