Fields v. Treasurer of Mo.
| Decision Date | 20 July 2021 |
| Docket Number | No. ED 109251,ED 109251 |
| Citation | 628 S.W.3d 803 |
| Court | Missouri Court of Appeals |
| Parties | Jimmy FIELDS, Appellant, v. TREASURER OF MISSOURI as Custodian of the Second Injury Fund, Respondent. |
For Appellant: Robert D. Arb, 809 Meramec Station Rd., Valley Park, MO 63088.
For Respondent: Rachael K. Houser, 815 Olive St., Ste. 200, St. Louis, MO 63101.
In this consolidated appeal, Jimmy Fields ("Claimant") challenges the final awards of the Labor and Industrial Relations Commission (the "Commission") denying his claims for workers’ compensation benefits from the Second Injury Fund (the "Fund"). Claimant argues the Commission erred in denying permanent total disability ("PTD") benefits for his hearing loss claim, denying permanent partial disability ("PPD") benefits for back injury claims, and alternatively, denying PTD benefits for his last back injury claim. We find the Commission's awards denying PPD for Claimant's back injuries and also denying PTD for Claimant's last back injury are supported by sufficient competent evidence. We also conclude, however, the Commission's award denying PTD for Claimant's hearing loss is not supported by sufficient competent evidence. We therefore reverse and remand with instructions for the Commission to enter an award of PTD based on Claimant's hearing loss consistent with the findings in this opinion.
Claimant worked as a ramp agent for Southwest Airlines ("Employer") from 1995 to November 9, 2012. His job entailed handling baggage and freight that weighed up to 100 pounds and also involved a significant amount of pushing, pulling, twisting, bending and lifting. Claimant testified he handled approximately 200 bags or pieces of freight per plane and was responsible for nine planes during each eight-hour shift.
Claimant testified he had poor grades in school and was placed in remedial classes. He stated he has trouble reading and he was diagnosed with severe dyslexia
around 1974. He also testified that he does not know how to use a computer and he only performed manual labor at the jobs he had before he began working for Employer.
With regard to his injuries, Claimant testified he was lifting a bag from a carousel on August 17, 2011, when he felt pain in his low back and left leg. He also stated that he later hurt his low back while twisting and lifting a 95-pound golf bag and container on May 17, 2012, and that this incident worsened the low back symptoms from his injury on August 17, 2011. Claimant also related that he hurt his low back at work on June 29, 2012, when he pulled a bag and that his low back pain and right leg symptoms worsened from what he had previously experienced with his low back injury on May 17, 2012.
Claimant also described another back injury he suffered on November 9, 2012, when he was working inside the belly of a plane handling baggage. On that day, Claimant pulled a bag and immediately felt pain in his low back. He had only been working for two hours that day when the injury occurred and had been off work for four months since his previous back injury in June 2012. Claimant explained this injury worsened his low back symptoms and increased the pain and numbness in his right leg. He continued to experience these symptoms for the duration of his employment with Employer and up to the time of the hearing.
Claimant also testified his work environment was noisy throughout the entirety of his employment. The noise was caused by airplanes, baggage hitting the side of the carousel, conveyor belts and various other equipment. Employer did not require Claimant to wear hearing protection except on the tarmac and he occasionally did so. He first began noticing problems with his hearing during the last few years of his employment with Employer.
Claimant also described other injuries and conditions he sustained that continue to affect his ability to work. He testified he hurt his right shoulder when he pulled and lifted a bag on March 4, 2009 and that a bag struck and injured his right thigh on December 1, 2010. Additionally, on June 30, 2008, he went to the hospital after an auto accident and was diagnosed with a fracture of the C7 vertebrae. That same year, he was diagnosed with depression and anxiety by his primary care physician, Dr. David Bean.
After his November 2012 back injury, Claimant stopped working for Employer. He explained he did not seek other employment because he believed no one would hire him. He testified he could not perform a full-time job stocking shelves because it would require him to bend over, reach up, pick up heavy objects, stand for significant periods of time and be able to hear people. He added he would have difficulty with any job that had co-workers or customers due to his problems hearing and understanding conversations and because his depression and anxiety would make it difficult to deal with others.
Claimant filed and resolved five PPD claims against Employer. The stipulation for compromise settlement included the injury to his right thigh from December 1, 2010 (1% of right hip) and the back injuries he suffered on August 17, 2011 (3.5% of the low back), May 17, 2012 (3.5% of the low back), June 29, 2012 (3.5% of the low back), and November 9, 2012 (4.5% of the low back). Claimant and Employer also settled a claim for bilateral hearing loss from noise exposure (10.25% at the 180-week level).
Claimant proceeded with his claims against the Fund with the exception of his claim relating to his thigh injury, which he dismissed. On December 6, 2018, an administrative law judge ("ALJ") held a hearing regarding Claimant's PPD claims for his back injuries from August 2011, May 2012, and June 2012, his PPD, or alternatively PTD, for his back injury from November 2012, and his PTD claim for his hearing loss. The ALJ considered Claimant's testimony along with expert testimony, depositions, reports and medical records.
Claimant retained Dr. Robert Margolis, a neurologist, who examined him and reviewed his medical records. Dr. Margolis opined that Claimant's back injuries from August 2011, May 2012, June 2012 and November 2012 were the prevailing factors "causing his resulting medical condition and disability regarding his back pain and radiculopathy
." He rated Claimant as having a 25% PPD to the body as a whole and apportioned that rating equally over the four back injuries, which resulted in a PPD rating of 6.25% for each back injury. Dr. Margolis admitted his apportionment was a "guess" and that he assigned an equal percentage to each injury because Claimant "couldn't apportion his current back condition to how it worsened with each injury." He also concluded Claimant is totally and completely disabled from all forms of employment but deferred to a vocational rehabilitation expert. Dr. Margolis noted in his report that Claimant had hearing loss but deferred to a specialist regarding a disability rating for that condition.
Dr. Margolis testified:
and the hearing loss, do all of those conditions constitute a hindrance or obstacle to obtaining and maintaining employment?
....
Claimant also retained Vincent Stock, a vocational counselor, who opined that Claimant is permanently totally disabled from a vocational perspective. Specifically, Mr. Stock testified:
Q: [W]hat is the combined effect, from an employment perspective, of a person who has disabilities of his back, neck, right shoulder, left wrist, radiculopathy
of his legs, a bilateral hearing loss, sleep deprivation, advanced age, limited education and no transferable skills?
Dr. Russell Cantrell, a physiatrist, examined Claimant and reviewed his medical records at Employer's request. He opined that Claimant sustained no permanent disability attributable to his August 2011, June 2012 and November 2012 back injuries but concluded he sustained a 3% PPD to the body as a whole due to a lumbar strain
superimposed on degenerative disc disease as a result of his May 2012 back injury. He also found Claimant has a 5% PPD that is attributable to degenerative changes in his lumbar spine and is unrelated to any of his work injuries. Dr. Cantrell did not provide an opinion regarding Claimant's hearing loss.
Dr. Cantrell's opinion with regard to Claimant's August 2011 back injury was based on a medical clinic's office note dated August 31, 2011, indicating Claimant stated he was "feeling great," "had experienced a 90% improvement," and no longer...
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