Dunn v. Treas. of Mo., Second Injury Fund

• Decision Date: 30 September 2008
• Docket Number: No. ED 90615.,ED 90615.
• Citation: 272 S.W.3d 267
• Parties: Edward DUNN, Jr., Appellant, v. TREASURER OF MISSOURI AS CUSTODIAN OF SECOND INJURY FUND, Respondent.
• Court: Missouri Court of Appeals

272 S.W.3d 267

Edward DUNN, Jr., Appellant, v. TREASURER OF MISSOURI AS CUSTODIAN OF SECOND INJURY FUND, Respondent.

No. ED 90615.

Missouri Court of Appeals, Eastern District, Division One.

September 30, 2008.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 13, 2008.

Application for Transfer Denied January 27, 2009.

Matthew J. Sauter, Saint Louis, MO, for Employee/Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Da-Niel Cunningham, Assistant Attorney General Saint Louis, MO, for Respondent.

OPINION

GLENN A. NORTON, Judge.

Edward Dunn, Jr. ("Claimant") appeals the denial by the Labor and Industrial Relations Commission ("Commission") of permanent total disability benefits against the Second Injury Fund ("SIF"). The Commission affirmed the Administrative Law Judge's ("ALJ") decision awarding Claimant permanent partial disability benefits from the SIF for a right shoulder injury that occurred in 2001, and denying permanent total disability benefits for that same injury. We affirm.

I. BACKGROUND

Claimant began working for Astoris¹ ("Employer") in 1981. Claimant had various jobs while working for Employer, many of which included heavy lifting. In the early 1990's, Claimant transferred to a control room job where he was able to work at a desk with a helper doing most of the required checks outside of the control room. The heaviest object that Claimant was required to lift while working the control room job was a clipboard.

In March 2001, Claimant injured his right shoulder while at work ("2001 Injury"). Claimant had several injuries and medical problems throughout the twenty years prior to the 2001 Injury. These pre-existing injuries and disabilities consisted of injuries to his right shoulder,² his left knee, his lower back, and three heartattacks.

Following the 2001 Injury, Dr. Michael Nogalski performed surgery on Claimant's right shoulder to repair the torn rotator cuff which resulted from the 2001 Injury. In June 2001, Claimant went to see Dr. Herbert Haupt for further treatment. After a brief period of treatment, Dr. Haupt operated on Claimant's right shoulder to repair his rotator cuff in September 2001. Claimant complained of more pain in his right shoulder, and Dr. Haupt operated on him again in October 2001. After the third surgery related to the 2001 Injury, Claimant continued to have problems with his right shoulder, but Dr. Haupt recommended against further surgeries. In April 2002, Dr. Haupt found that Claimant had reached maximum medical improvement, and released Claimant back to work with specific and detailed permanent lifting restrictions. Dr. Haupt rated Claimant's right shoulder at 25% permanent partial disability for the 2001 Injury and at 5% permanent partial disability for the previous injury, totaling 30% permanent partial disability for Claimant's right shoulder. Claimant did not return to work after this second surgery, but instead decided to retire.

In May 2002, Claimant was evaluated by Dr. J.H. Morrow. Dr. Morrow concluded that Claimant was at 85% permanent partial disability for his right shoulder. Dr. Morrow attributed 20% of the permanent partial disability to the first right shoulder injury, and 65% to the 2001 Injury. Dr. Morrow also recommended more restrictions on Claimant's use of the right shoulder, but deferred to a vocational rehabilitation expert to determine Claimant's employability. Further, Dr. Morrow opined that Claimant's right shoulder disability, combined with Claimant's other medical disabilities, would provide a greater overall disability rating than the simple sum of his injuries and disabilities.

In 2004, Dr. Adeluola G. Lipede examined Claimant at the request of Claimant's attorney. At this examination, Dr. Lipede determined that Claimant had the following permanent partial disability ratings: 78% of the right shoulder; 25% of the right thumb; 25% of the right knee; 10% of the total person for the low back; 10% of the total person for gout; 45% of the total person for chronic heart problems; 35% of the total person for chronic obstructive pulmonary disease; 50% of the total person for cardiopulmonary dysfunction; and 25% of the total person for depression related to illnesses and inability to engage in daily living and gainful employment. Dr. Lipede did not explain how much of the pre-existing right shoulder injury accounted for the 78% permanent partial disability rating for the right shoulder.

Claimant returned to Dr. Lipede in 2006 for another examination. Dr. Lipede's conclusions from this examination are reflected in a letter to Claimant's attorney dated April 4, 2006. Dr. Lipede found little change from his previous determinations of permanent partial disability; however, he did find that Claimant had an observable increase in his limitations and a decrease in his tolerance for work and exercise. Dr. Lipede found a number of limitations that had developed since he had seen Claimant in 2004, including: a decrease in the amount of time that Claimant could spend standing, walking, and sitting; and a decrease in Claimant's ability to lift and carry objects over ten pounds, to reach over his head, to drive, and to type with his right hand.

In 2005, Claimant was evaluated by Mr. James England, a rehabilitation counselor. Upon a review of the restrictions Drs. Haupt, Morrow, and Lipede had placed on Claimant, Mr. England concluded in his Vocational Rehabilitation Evaluation that Claimant would probably be unable to compete in the open labor market. Specifically, Mr. England stated in the Summary and Conclusions section of his Vocational Rehabilitation Evaluation that:

[Claimant] had an extensive work history as a chemical operator which was a rather sedentary position overall with only some occasional light level activity. Unfortunately, he reached the point where he could not longer [sic] sustain even that level of activity. He indicated that had he been able to function at a sedentary to light level on a consistent basis he would still be trying to do that type of work.

As he appears to be functioning and considering his combination of medical problems I do not believe that he is likely to be able to successfully compete for employment or to sustain it in the long run.

After filing a worker's compensation claim, Claimant requested a hearing to determine the extent to which he was entitled to worker's compensation benefits from Employer and the SIF. Before the hearing, Claimant and Employer entered into a settlement agreement.

The hearing went forward on February 14, 2007, in order to determine whether and to what extent the SIF was liable to Claimant. At the hearing, Claimant provided live testimony. He testified about, inter alia, his employment history and his pre-existing injuries. In addition, Claimant offered several exhibits into evidence, including, but not limited to: (1) Dr. Nogalski's records; (2) Dr. Haupt's records; (3) Dr. Morrow's report; (4) Dr. Lipede's deposition; (5) exhibits relating to Dr. Lipede's deposition, including his April 4, 2006 letter setting out his conclusions from his 2006 evaluation of Claimant; (6) Mr. England's deposition; and (7) exhibits relating to Mr. England's deposition, including his Vocational Rehabilitation Evaluation. Dr. Lipede stated in his deposition that the combined sum of Claimant's 2001 Injury to his right shoulder, pre-existing right shoulder injury, chronic obstructive pulmonary disease, coronary artery disease, and knee disabilities are greater than their simple sum. Dr. Lipede also testified that Claimant was not employable due to the restrictions prescribed by Drs. Nogalski and Haupt, despite the fact that neither of the two doctors found that Claimant was unemployable.³ Mr. England testified in his deposition that, even though Claimant was willing to work, he would probably be unable to compete in the open labor market and that it would be "unlikely that an employer would want to hire [Claimant] given his age and medical history." The SIF did not present any witnesses or expert testimony, and did not offer any exhibits into evidence.

After the conclusion of the hearing, the ALJ found that Claimant had the following permanent partial disability ratings: 20% of the right shoulder, 25% of the left knee, 25% of the body for heart problems, and 12.5% of the body for chronic obstructive pulmonary disease. The ALJ also found that the pre-existing conditions in combination with the 2001 Injury created a substantially greater disability than the simple sum, and applied a 10% load factor. Accordingly, the ALJ awarded Claimant 34.66 weeks of permanent partial disability benefits from the SIF. The ALJ made express credibility determinations with respect to Dr. Lipede's and Mr. England's deposition testimonies regarding Claimant's employability, finding that Dr. Lipede's testimony was "not persuasive" and that Mr. England's testimony "lacked foundation" and was "not credible."⁴ Therefore, the ALJ found that Claimant did not prove that he was unable to compete in the open labor market at the time Dr. Haupt determined that Claimant was at maximum medical improvement, and thus, Claimant was not entitled to permanent total disability benefits from the SIF.

Claimant then filed an application for review with the Commission. The Commission affirmed and adopted the ALJ's award. Claimant appeals.

II. DISCUSSION

A. Standard of Review

On appeal, we review only questions of law and may modify, reverse, remand for rehearing, or set aside the Commission's award only on the grounds:

(1) That the [C]ommission acted without or in excess of its powers;

(2) That the award was procured by fraud;

(3) That the facts found by the [C]ommission do not support the award; [or]

(4) That there was not sufficient competent evidence in the record to warrant the making of the award.

Section 287.495.1 RSMo 2000.⁵ We review the decision of the ALJ as adopted by the Commission. Reidelberger v....