Lawrence v. Treasurer of Mo., WD 77998

• Decision Date: 28 July 2015
• Docket Number: WD 77998
• Citation: 470 S.W.3d 6
• Parties: Ronald Lawrence, Appellant, v. Treasurer of the State of MISSOURI—Custodian of the 2nd Injury Fund, Respondent.
• Court: Missouri Court of Appeals

470 S.W.3d 6

Ronald Lawrence, Appellant

v.Treasurer of the State of MISSOURI—Custodian of the 2nd Injury Fund, Respondent.

WD 77998

Missouri Court of Appeals, Western District.

OPINION FILED: July 28, 2015 Motion for Rehearing and/or Transfer to Supreme Court Denied September 1, 2015

David Whipple, Independence, MO, Counsel for Appellant.

Kimberley Fournier, Cara Harris, Kansas City, MO, Counsels for Respondent.

Before Special Division: James Edward Welsh, P.J., Anthony Rex Gabbert, J., and Robert M. Clayton, III, Sp. J.

Opinion

James Edward Welsh, Presiding Judge

Ronald Lawrence appeals the Labor and Industrial Relations Commission's decision denying him workers' compensation benefits for a permanent total disability from the Second Injury Fund. We reverse the judgment and remand to the Commission.

Background

Lawrence began working for Southwestern Bell Telephone, LP (“Employer”) in November 1973 as a lineman. In 1984, he began working as a cable-splicer and continued in that position for twenty-two years. Lawrence's job involved a lot of bending, twisting, and stooping, and his job duties required him to carry up to 150 pounds of gear.

On May 11, 2005, Lawrence injured his lower back at work when he slipped and fell while helping to place a cable on a rack. Following the injury, Lawrence experienced a sudden increase in back pain and pain shooting into his legs. He sought treatment from Dr. William Miller, who treated the injury with prescription pain medication and physical therapy.

Lawrence filed a claim for workers' compensation benefits against both the Employer and the Second Injury Fund (“the Fund”)¹ for the May 11, 2005 work injury (the “primary injury”). In his claim against the Fund, Lawrence alleged the following preexisting disabilities: back surgery, right rotator cuff surgery, left rotator cuff surgery, heart attack, and right knee surgery.

Lawrence and his Employer eventually entered into a settlement agreement under which Employer agreed to pay Lawrence $21,243 for a permanent partial disability representing approximately 15% of the body as a whole due to the primary injury. On April 10, 2013, an Administrative Law Judge (ALJ) approved that settlement agreement.

In August 2013, the same ALJ held a hearing on Lawrence's claim against the Second Injury Fund. The issues to be resolved were: (1) whether Lawrence sustained an injury by accident arising out of and in the course of his employment; and (2) the nature and extent of disability, whether permanent partial disability or permanent total disability, and the Second Injury's Fund's liability therefor. The latter issue is the subject of this appeal.

At the hearing, Lawrence testified about the primary work injury and his preexisting disabilities, and he introduced his medical records into evidence. Lawrence also presented the deposition and report of Dr. P. Brent Koprivica, an occupational medicine specialist, and the deposition and report of Michael Dreiling, a specialist in vocational rehabilitation. Neither the Employer nor the Fund had Lawrence evaluated or presented any expert testimony.

Lawrence testified about his limitations on the job prior to and after the 2005 injury. He stated that, as a result of his 2005 injury, he has had a marked increase in back pain and has had to self-limit his activities. He stated, for example, that he must lie down during the day at times to relieve his back symptoms. Lawrence further testified that, based upon all of his various physical conditions, he is unable to work.

Lawrence's medical records showed that Dr. Miller had diagnosed him with severe low back pain and acute radiculopathy. Following an MRI, Dr. Miller further diagnosed Lawrence with degenerative disc disease and lumbar disc disease with disc bulging. Dr. Miller indicated that Lawrence's squatting at work caused further bulging of the disc that led to his neurologic symptoms, and he restricted Lawrence from working under those conditions.

Employer placed Lawrence on light duty working in the office. This required him to sit for long periods of time. Lawrence continued to complain of severe pain in his low back and right leg. On June 9, 2005, Dr. Miller restricted Lawrence from bending or lifting over ten pounds. Three weeks later, Dr. Miller made those restrictions, and restrictions on continually sitting, climbing poles, or doing heavy lifting, permanent. On September 27, 2005, when Lawrence was still having back pain, Dr. Miller recommended that he not return to work. Lawrence retired from his job two days later and has not worked since September 29, 2005.

At the hearing, Lawrence also presented evidence of his various preexisting disabilities. That evidence showed that he first injured his back at work in 1978 and underwent back surgery in 1983. He was off work for nine months following surgery but then returned full time to his job as a lineman. His back injury slowed him down, but he was not placed under any doctor's restrictions at that time. He continued to periodically seek treatment for his on-going back pain. His last doctor visit for back pain was in April 2005, a month before the primary work injury.

Lawrence had been prescribed Xanax to treat anxiety and hyperactivity for approximately twenty-five years at the time of the 2005 work injury. He attributed those conditions to stress from his job. He mentioned that the Xanax also gave him some relief from his back pain.

In January 1995, Lawrence had surgery on his right shoulder to repair a rotator cuff tear. Two years later, he underwent rotator cuff repair surgery on his left shoulder. As to both surgeries, he was released without restrictions and eventually resumed his full-time work duties.

On October 4, 2000, Lawrence had surgery on his right knee. Also in October 2000, he was diagnosed with mild cubital tunnel syndrome in the right upper extremity, which caused numbness in his hand. Lawrence's other maladies included Raynaud's Phenomenon, which caused circulation problems in his hands and feet in cold temperatures, a “silent heart attack ” in 2000, and chronic asthma since childhood.

Dr. Koprivica evaluated Lawrence in July 2006. He testified, via deposition, that the May 11, 2005 injury represented a new injury that aggravated Lawrence's preexisting low back condition and concluded that Lawrence had suffered a 15% permanent partial disability as a result of this injury. Dr. Koprivica found that Lawrence suffered preexisting permanent partial disability to his lower back as well as a permanent partial disability as to both the right upper extremity and the left upper extremity at the shoulder level.² He concluded that Lawrence's preexisting permanent partial disabilities combined with the additional disability attributable to the 2005 injury and created a “synergistic effect” that resulted in an enhancement over and above the simple sum of the separate disabilities.

Dr. Koprivica's report does not indicate that Lawrence informed him of his need to lie down during the day to alleviate his back pain. Dr. Koprivica testified in his deposition, however, that if Lawrence had such a need subsequent to the May 2005 injury, then that would be “totally disabling” and would be a result of the “overall lumbar impairment.” Dr. Koprivica did not conclude that Lawrence was permanently and totally disabled but stated, rather, that if a vocational expert found Lawrence to be permanently and totally disabled, he would defer to that expert. However, Dr. Koprivica further stated that, if it were the case that Lawrence had to lie down during the day to alleviate his back pain, then it was his opinion that the primary work injury was not totally disabling in isolation but that the resulting total disability would be from the “synergism of combining those disabilities.”

Vocational rehabilitation specialist Michael Dreiling assessed Lawrence in November 2006. He testified, via deposition, that Lawrence was “unemployable in the open labor market” due to his 2005 injury in combination with all his preexisting conditions, including his right knee and hands. Dreiling concluded that Lawrence was totally and permanently disabled.

The ALJ found that Lawrence had a preexisting permanent partial disability when he sustained the primary injury on May 11, 2005. The ALJ concluded that the 2005 injury combined with his preexisting disability, resulting in a permanent partial disability of 12.5% of the body as a whole and awarded him permanent partial disability benefits from the Fund.

Lawrence appealed, alleging that the ALJ erred in finding that he is not permanently and totally disabled. The Labor and Industrial Relations Commission affirmed and adopted the ALJ's award but made modifications.³ The Commission found, contrary to the ALJ's opinion, that “none of the witnesses ... lack[s] credibility” and “that the evidence suggests that employee is permanently and totally disabled.” The Commission concluded, however, that Lawrence failed to meet his burden of proving that the Fund is liable for permanent total disability benefits because the record was insufficient to resolve “several important fact questions.” Those “fact questions” pertained to: (1) the lack of “an opinion from a medical expert that employee has a need to lie down during the day, or that such a need is referable to a combination of the primary injury and his preexisting conditions,” (2) whether there “may be a psychiatric component” to Lawrence's back pain and how his “preexisting psychiatric diagnoses may factor into his permanent total disability,” and (3) the incongruence between Dreiling's and Dr. Koprivica's assessments of Lawrence's preexisting disabilities to his right knee and right upper extremity.

Discussion

Lawrence argues on appeal that the Commission erred in concluding that the Second Injury Fund is not liable for his permanent and total disability due to his failure to provide expert testimony on the issues of his need to lie down during the day and the...