Guinn v. Treasurer of Mo.

• Decision Date: 04 May 2020
• Docket Number: SD 36410 Consolidated,No. SD 36380,SD 36380
• Citation: 600 S.W.3d 874
• Parties: Phillip GUINN, Appellant, v. TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Respondent.
• Court: Missouri Court of Appeals

600 S.W.3d 874

Phillip GUINN, Appellant,

v.TREASURER OF the STATE of Missouri as Custodian of the Second Injury Fund, Respondent.

No. SD 36380

SD 36410 Consolidated

Missouri Court of Appeals, Southern District, Division One.

FILED: May 04, 2020

Appellant's attorney: E. Joseph Hosmer.

Respondent's attorney: Eric S. Schmitt, Atty. Gen. and Cara Lee Harris, Asst. Atty. Gen.

GARY W. LYNCH, P.J.

Phillip Guinn ("employee") appeals the Final Award Denying Compensation (the "Award") by the Labor and Industrial Relations Commission (the "Commission") on his workers compensation claim for benefits against the Treasurer of the State of Missouri as custodian of the Second Injury Fund (the "Fund").¹ In two points relied on, Employee asserts that the Commission erred in denying his claim "because it incorrectly determined Employee was permanently totally disabled solely because of his preexisting disability at the time he left employment in March 2006" and "in ruling Employee's hearing loss and tinnitus disability did not combine with his preexisting Parkinson's disease

disability to render him permanently totally disabled." Determining that neither point has merit, we affirm the Award.

Factual and Procedural Background ²

Employee began working with Solo Cup Company ("employer") in February 1987. He left that employment on March 1, 2006, when he was about 56 years old. Employee has not worked nor attempted to work since that date.

Employee filed a claim against employer and its insurer on January 17, 2013, alleging hearing loss and tinnitus due to harmful noise. The parties’ settlement of the claim was approved on April 11, 2014, for a lump sum ($14,500.00) prorated as $10.56 a week relative to tinnitus. On May 7, 2014, employee filed a claim against the Fund, based on a primary injury of hearing loss and tinnitus, and a preexisting disability referable to Parkinson's disease

.³

Employee developed symptoms of Parkinson's disease

as early as 2002, and was diagnosed with the condition in August 2003. He continued to work for employer until March 1, 2006. In the last year or more of his employment, employee was highly accommodated by employer due to his declining health, tremors, weakness, lack of balance, and difficulty concentrating. At times, employee was present at work but doing very few of the physical tasks. He was unable to do certain tasks requiring dexterity and coordination. In the last year, he would show up for work and essentially stand around. Even the lesser duties, such as vacuuming and picking up things from the floor or stacking cups were difficult for employee to do. All of employee's job duties in 2006 were affected by his muscle spasms.

Fatigue, muscle weakness, muscle spasms, tremors, trouble walking due to balance, tenseness of his left arm, fatigue, a sensation of pins going up his left side, lack of dexterity, dropping things, and slower reflexes were symptoms employee described that inhibited his ability to work in the last year of employment. He also indicated that he would have to rest after walking about 60 yards. When employee decided to retire in 2006, it was because he could no longer do the job due to symptoms of his Parkinson's disease

. It was not because of any hearing loss or tinnitus. Hearing issues were not mentioned by employee in any discussion of his choice to retire, and were not identified by him to his employer as a reason for leaving at that time. Employee indicated that he would arrive at work already feeling "muscle tired." At the time he quit working, employee was concerned about his safety and the dangers posed in the workplace due to his Parkinson's symptoms.

Upon leaving work in 2006, employee applied for Social Security disability. He was awarded such benefits in 2006 on the basis of his Parkinson's disease

.

Dr. Allen Parmet, the Fund's medical expert, found that Parkinson's was clearly present in 2003, but there was evidence of it even before that year. The condition was deteriorating from 2003 to March 2006, with worsening tremors and other symptoms. In September 2005, Dr. Michael North, employee's treating physician, expressed the opinion that he did not believe employee would be able to continue working. Likewise, Dr. R. Scott Duff, another of employee's treating physicians, also opined in 2005 that the disease was affecting employee to the degree that he did not think employee "could maintain gainful employment anymore." Dr. Parmet opined that employee was permanently and totally disabled in 2006 due to the Parkinson's disease

alone.

Employee was exposed to harmful industrial noise in employer's workplace for a prolonged period, and he sustained some level of disability in the form of hearing loss. Some of the hearing loss, however, may be from age or other non-occupational causes. During his employment, industrial hygiene studies established an excessive noise level was present in the extruder area where he worked. The noise level was rated at over 90 decibels. Employer began to require employees to wear ear plugs and ear muffs during the time of his employment. Employees had to remove the protection temporarily, when there was a need to hear co-workers. Aside from the use of hearing protection required for all employees, employee did not request or receive any special accommodation relative to hearing loss or tinnitus during the time of his employment.

There was a decline in employee's hearing during his employment which reached a plateau in the early 2000's. Employee's hearing impairment and tinnitus did not improve after leaving the employer. Nevertheless, he did not seek any treatment for his hearing issues during his employment or thereafter until after he filed his workers’ compensation claim against employer in January 2013. About five months after filing that claim, a doctor suggested that employee might benefit from hearing aids. Employee waited about two years after that suggestion, however, to obtain hearing aids to see if they would help.

Dr. Parmet, opined "the results of the objective evidence of speech-reception thresholds and discrimination scores cause me to believe, to a reasonable degree of medical certainty, that there is no measurable degree of Disability due to tinnitus." He opined that no restrictions would be placed on employee due to this condition. He noted employee's audiogram

of January 15, 2013, identified a speech reception threshold score within normal range, (bilaterally), and his speech discrimination score was considered in the lower part of the "good" range, (bilaterally), effectively, "normal ability to discriminate words." After reviewing medical records, he opined employee's hearing loss is probably "mixed-hearing loss" with contributions from age, Parkinson's, infections, and allergies, as well as occupational noise and that "any or all of these could be causing and contributing to tinnitus."

Dr. Parmet also opined that some of employee's documented hearing loss could be attributable to the sensorineural forms of hearing loss that can be associated with Parkinson's or other neurodegenerative diseases

or conditions affecting the nerves in the organs of hearing due to infection, hereditary conditions, aging, medications, etc. This type of hearing loss is contrasted with conductive hearing loss, most often associated with noise exposure. Dr. Parmet noted that Parkinson's onset can be preceded by hearing loss or other non-motor neurologic loss (e.g. loss of smell, taste). The fact that employee's hearing declined during employment, despite wearing both earplugs and earmuffs raised the question in his mind that the hearing loss could derive from the progression of the illness.

In the Award, as opposed to the opinions of employee's medical expert, the Commission found "Dr. Parmet's opinion persuasive that the Parkinson's disease

is the reason for employee's permanent total disability" and "the opinion of Dr. Parmet to be credible and persuasive as to the nature, causes, and level of disability attributable to hearing disorders." The Commission also found credible Dr. Parmet's opinions "that employee was permanently and totally disabled in 2006 due to the Parkinson's disease alone" and "that [employee's] hearing loss and subjective complaints of tinnitus could have been secondary to his Parkinson's disease, in whole or in part."

The Commission concluded that "[e]mployee has not persuasively shown that the disability from his hearing loss issues combined with the disabling disease of Parkinson's

to create a total disability" but rather that "employee was permanently and totally disabled solely as a result of his preexisting condition alone." The Commission in the Award denied employee's claim against the Fund "because employee has not met his burden of proof to show that his preexisting disability referable to Parkinson's disease combined with his primary injury or hearing loss, to make him permanently and totally disabled."

Employee timely appeals the Commission's Award.

Standard of Review

This Court reviews all final decisions, findings, rules, and orders of the Commission to determine "whether the same are supported by competent and substantial evidence upon the whole record." Mo. Const. art. V, § 18. The Commission's decision will be affirmed unless: "(1) the Commission acted without or in excess of its powers; (2) the award was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was not sufficient competent evidence in the record to warrant the making of the award." White v. ConAgra Packaged Foods, LLC , 535 S.W.3d 336, 338 (Mo. banc 2017) ; § 287.495.1, RSMo 2000. "Upon appeal no additional evidence shall be heard and, in the absence of fraud, the findings of fact made by the [C]ommission within its powers shall be conclusive and binding." § 287.495.1, RSMo 2000. In addition to findings of fact, this Court also defers to the Commission's determinations as to credibility of witnesses and the weight

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