Calvert v. Treasurer of State, s. SD 31751

• Decision Date: 04 February 2014
• Docket Number: Nos. SD 31751,SD 31807.,s. SD 31751
• Court: Missouri Court of Appeals
• Parties: Larry D. CALVERT, Claimant/Appellant, v. TREASURER OF the STATE OF Missouri, Custodian of Second Injury Fund, Respondent/Cross–Appellant.

417 S.W.3d 299

Larry D. CALVERT, Claimant/Appellant,

v.TREASURER OF the STATE OF Missouri, Custodian of Second Injury Fund, Respondent/Cross–Appellant.

Nos. SD 31751, SD 31807.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 27, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 16, 2013.

Application for Transfer Denied Feb. 4, 2014.

Michael Moroni, of Bloomfiled, MO, for Appellant.

Chris Koster, Attorney General and Jonathan J. Linter, Assistant Attorney General, of Cape Girardeau, MO, for Respondent.

WILLIAM W. FRANCIS, JR., J.

In this consolidated appeal, Larry D. Calvert (“Calvert”) and the Second Injury Fund (“SIF”) appeal from a final award of the Labor and Industrial Relations Commission (“Commission”) in a workers' compensation claim. We affirm the Commission's award in part and reverse and remand in part.

Factual and Procedural Background

Calvert, who was 59 years old at the time of hearing, was employed with Noranda Aluminum (“Noranda”) for approximately 30 years and had performed numerous “heavy manual labor” jobs for Noranda throughout that time. Calvert had numerous pre-existing work-related injuries prior to the injury at issue here. In 1985 Calvert settled a workers' compensation claim for right knee surgery for 5% permanent partial disability; in 1988 he settled a workers' compensation claim for left knee surgery for 15% permanent partial disability; in 1991 he settled a workers' compensation case for back strain for 15% permanent partial disabilityto the body as a whole; and in 1998 he settled a workers' compensation claim for neck fusion surgery for 22% permanent partial disability to the body as a whole. These prior injuries affected Calvert in that he continuously had a stiff neck, which impacted his ability to turn his head such that he had “a really hard time” driving; had regular headaches; had to take Xanax for muscle spasms; had “pain in [his] right elbow and numbness in [his] right hand at times”; had a weak grip; and continued to have lower back pain. At some point in time, Calvert also suffered an injury to his right thumb. After each of these injuries, Calvert returned to work for Noranda with no accommodations, although he was off work for 16 months beginning in approximately 1998 following his neck injury.

The primary injury in this matter occurred on July 12, 2003, when Calvert, who was working for Noranda as a “furnace operator[,]” got his jeans caught “on a piece of rebar” and “fell backwards” while trying to avoid a forklift being operated by a co-worker. He fell on his “rear-end and both [his] arms” including his elbows. After visiting first aid, Noranda sent him to the emergency room at a hospital in Sikeston, Missouri. Thereafter, he was treated by Dr. Kevin Vaught (“Dr. Vaught”), his personal physician; Dr. David G. Yingling (“Dr. Yingling”); Dr. David M. Brown; as well as other physicians. As a result of the fall, Calvert ultimately had surgery on his left elbow and hand, in addition to having injuries to his low back, neck, and right hand. ¹ He also had ongoing issues with pain and sought treatment for pain management consisting of physical therapy. Following the primary injury, Calvert also had problems with his left pinkie finger; suffered from “normal pains”; began having increasing trouble with his left elbow; had ongoing issues with carpal tunnel syndrome such that he had “carpal tunnel release” surgery performed on his right hand in October 2004; and he had numbness in his hands if he slept on his back.² As a result of this primary injury, Calvert could no longer hunt with a shotgun, fish from his canoe, play golf, ride his motorcycle, or swim. Further, he was unable to sit for long periods of time due to pain in his neck and back; the heaviest thing he could lift was a “case of soda”; took numerous pain medications on a regular basis; could no longer do his own housekeeping; took “two to three days” to mow his lawn with a riding lawnmower; had to lie down during the day several times a week; and used a TENS ³ unit and heating pads on his neck and back several times a week. Calvert supported himself by drawing social security disability in the amount of $1,848 per month, and “one-half [his] retirement” from Noranda totaling about $455 per month. Calvert did not return to work following the primary injury, and was eventually terminated by Noranda, although he would have preferred to continue working in some capacity.

Calvert filed his “Claim for Compensation” on October 15, 2003. A hearing was held on November 30, 2010. At the hearing, Calvert introduced the deposition testimony of Dr. Raymond Cohen (“Dr. Cohen”),a neurologist, who evaluated Calvert on July 18, 2006. After reviewing various medical records provided by Calvert, as well as interviewing and examining him, Dr. Cohen reported Calvert disclosed the following prior medical issues: a 1999 neck surgery performed by Dr. Yingling, which caused subsequent “periods of muscle spasms and headaches” and required Calvert to change jobs within Noranda; an incident in 1991 where he had a “ruptured and protruded disc in his low back”; and surgeries in 1998 “for a left knee cartilage tear” and in 1986 for “a right knee cartilage tear.” Upon physical examination, Dr. Cohen determined Calvert had weak arm strength, as well as grip strength, for someone of his age; the muscles in his lower extremities below the knees were weak; his “gait was somewhat slow with limp favoring the left leg[ ]”; he had knee “grinding” in the area of his kneecaps; diminished reflexes; “sensory loss to pain and temperature” on portions of his body; he was tender to palpitation on both elbows; and he had a limited range of motion in his various joints. Dr. Cohen concluded there was “a causal relationship” between Calvert's pre-existing conditions and the injury of July 2003, such that “within a reasonable degree of medical certainty” Calvert's post-injury ailments were a direct result of the accident and the pre-existing injuries were a substantial factor in the current state of his health.

Dr. Cohen determined Calvert had a “42 percent whole person disability at the level of the cervical spine, of which 22 percent is pre-existing, and 20 percent is from the primary work-related injury[ ]”; a “30 percent whole person disability at the level of the lumbar spine, of which 15 percent is pre-existing, and 15 percent is as a direct result of the primary work-related injury[ ]”; a “30 percent permanent partial disability at the left elbow [ ]”; and a “30 percent permanent partial disability at the right wrist [ ]”; with these last two disabilities being due to the primary work-related injury. Additionally, due to his prior injuries, Dr. Cohen determined Calvert had a “30 percent permanent partial disability at the left knee, and a 30 percent permanent partial disability at the right knee.” Dr. Cohen concluded Calvert's combination of disabilities rendered Calvert permanently and totally disabled. It was also Dr. Cohen's opinion that Calvert's pre-existing and current disabilities “were a hindrance or obstacle to his employment or re-employment.”

Calvert also introduced the deposition testimony of Susan Shea (“Shea”), a “Certified Rehabilitation Counselor,” who performed an evaluation of Calvert on October 8, 2008. Shea concluded to “a reasonable degree of professional certainty” that Calvert was not “employable in the open labor market” and that “a normal and rational employer [would not] employ [Calvert] in a typical job in the open labor market[.]”

Calvert also offered the deposition testimony of Bret Derrick (“Derrick”), a physical therapist who performed a functional capacity evaluation on Calvert. Derrick reported that based on certain testing, he felt Calvert's physical issues relating to his back caused him to be severely disabled, and his issues relating to his neck caused him to be classified as “crippled.” He related he performed a test on Calvert's hand in which the average score was typically in the 58th percentile while Calvert's left hand scored in the 12th percentile and his right hand scored in the 10th percentile. It was Derrick's opinion that Calvert “is able to function at the light/sedentary physical-demands classification[,]” but that if he could lift slightly more weight, as was reported in one of the other vocational reports, he would be classified in the medium physical-demands category.

Noranda presented the deposition testimony of Dr. James Coyle (“Dr. Coyle”), an orthopedic spine surgeon who evaluated Calvert on August 17, 2005. Dr. Coyle related Calvert complained of neck, back, and shoulder pain, as well as numbness in his right arm and lower extremities which Calvert believed began at the time of the primary injury. He noted that while he observed Calvert limping while in his office, he was able to see Calvert walking through the parking lot after the examination and at that time saw no noticeable limp. He related Calvert “declined” to perform most of the physical tests requested of him and “groaned” and performed slowly during the tests he did perform. Dr. Coyle related he saw signs of “symptom magnification” in his evaluation of Calvert; noted that “ ‘[d]espite his claim that he's severely disabled over a two-year period, he had no evidence of muscle wasting or atrophy [ ]’ ”; and observed there were “inconsistencies in his movement.” In reviewing Calvert's medical records, he noted the previous findings by the various physicians were normal and there was never any specific diagnosis for his various pains with the exception that Dr. Vaught indicated Calvert had “chronic cervical and low back pain.” Dr. Coyle related a previously performed functional capacity evaluation stated Calvert did not give his best effort in that evaluation because his heart rate never became elevated and there was evidence of symptom magnification. Based on the fact that he “could see no...