Payne v. Treasurer of State

• Decision Date: 14 January 2014
• Docket Number: No. SD 32541.,SD 32541.
• Citation: 417 S.W.3d 834
• Court: Missouri Court of Appeals
• Parties: Donald PAYNE, Claimant/Appellant, v. TREASURER OF the STATE of Missouri, CUSTODIAN OF SECOND INJURY FUND, Respondent.

417 S.W.3d 834

Donald PAYNE, Claimant/Appellant,

v.TREASURER OF the STATE of Missouri, CUSTODIAN OF SECOND INJURY FUND, Respondent.

No. SD 32541.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 14, 2014.

Patrick J. Platter, of Springfield, MO, for Appellant.

Chris Koster, Attorney General and Stephen N. Freeland, Assistant Attorney General, of Jefferson City, MO, for Respondent.

WILLIAM W. FRANCIS, JR., J.

Donald Payne (“Payne”) appeals from a final award of the Labor and Industrial Relations Commission (“Commission”) in a workers' compensation claim involving the Second Injury Fund (“SIF”). We affirm the Commission's award.

Factual and Procedural Background

Payne was employed by J.B. Hunt Transport, Inc. (“Employer”), out of Lowell, Arkansas, as an over-the-road truck driver from approximately September 2004 until March 5, 2005.

On December 24, 2004, Payne started a trip and fell on ice at a truck stop. He stepped over a curb and as he did so, he slipped and lost his balance falling directly upon his back, landing mainly upon his shoulder blades. Payne tried to bend his neck upward, which meant that his shoulder blades took the brunt of the fall. Payne did not lose consciousness and was on the ground “[j]ust momentarily.” His wife, who was riding with him, witnessed the fall. He arose with some assistance from his wife, walked back to his truck, and took a couple of Tylenol because he did not want to go inside the truck stop after having fallen. Instead he drove to Conway, Arkansas, where he “dropped a load.” He was just feeling sore at that time.

On December 26, 2004, Payne called his dispatcher and informed him what had happened. He told the dispatcher the “biggest thing that was hurt was my pride.” Payne initially thought he did not injure himself, but the discomfort in his shoulders continued to worsen. The pain hurt upon movement, especially around Payne's chest and up both sides of his heart. The muscles would pull causing chest pains and Payne could not tell whether the discomfort was from his shoulders or heart. Payne had a pre-existing heart condition.

Sometime in March 2005, Payne told Employer that he “couldn't put it off no more that I needed to get it checked out.” Employer referred Payne to Tallgrass Immediate Care in Topeka, Kansas, for medical treatment. On March 15, 2005, x-rays were done to both shoulders, which were “normal.” Payne was diagnosed with “bilateral rotator cuff tendonitis” based upon positive impingement signs in both shoulders. Payne reported a decreased range of motion since his fall and it was recommended he start physical therapy. Payne was released to modified duty subject to restrictions of not lifting over twenty pounds, no reaching above shoulder level, or lifting above ankle level. It was anticipated that the duration of treatment for Payne would be two to four weeks.

Payne then moved to Aurora, Missouri, where he established care with Dr. Herman Damek (“Dr. Damek”) upon the referral of Employer. Payne underwent physical therapy in Aurora from April 25, 2005, through May 18, 2005, which enabled him to regain range of movement, but it “did not increase the strength or do anything for the pain.” Payne attended ten out of twelve sessions and reported pain, “grinding,” and “popping” in his left shoulder, and increased soreness.

On May 15, 2006, at the request of Payne's attorney, an independent medical evaluation of Payne was conducted by Dr. Shane Bennoch (“Dr. Bennoch”). After review of Payne's medical records and a physical examination, Dr. Bennoch diagnosed Payne with an injury to his upper back and shoulders as a result of a “slip and fall,” and “[b]ilateral rotator cuff injuries with weakness on abduction bilaterally.” Dr. Bennoch opined that Payne's fall on December 24, 2004, was the “prevailing factor in causing the bilateral injuries of both shoulders and the resulting disabilities.” Dr. Bennoch found Payne had permanent partial impairment of both shoulders; however, he was unable to give a specific impairment rating at that time as it was his opinion Payne required further diagnostic testing. Dr. Bennoch placed restrictions on Payne of occasional lifting and/or carrying of not more than 20 pounds, no frequent lifting of more than ten pounds, and limit pulling to 30 pounds. As for the reason for these restrictions, Dr. Bennoch cited Payne's “[b]ilateral rotator cuff injuries.”

As to Payne's pre-existing conditions, Dr. Bennoch did rate Payne at 30% permanent partial impairment to the body as a whole as to his cardiovascular system due to his myocardial infarction and stent placement; 5% permanent partial impairment to the body as a whole due to hypertension; and 10% permanent partial impairment to the body as a whole due to his diabetes. Because of the combination effect of Payne's impairments, Dr. Bennoch indicated a loading factor should be added.

On March 7, 2008, Payne filed a “Claim for Compensation” and included a SIF claim for pre-existing disability of “[c]ardiovascular system/myocardial infarction resulting stent placement, diabetes” occurring approximately 1997 resulting in “[a]pproximately 35–45% to the body as a whole.”

On or about December 10, 2009, Payne settled his workers' compensation claim with Employer for $18,000, representing 12.5% permanent partial disability to the body as a whole, and received an additional $3, 000 for future medical expense.

In March 2010, Payne saw Dr. Justin Ogden (“Dr. Ogden”), an orthopedic surgeon, on the referral of Dr. Damek. Payne saw Dr. Ogden in March 2010. Dr. Ogden diagnosed Payne with chronic bilateralshoulder pain and noted Payne had not improved with six weeks of physical therapy and recommended MRI scans of both shoulders. The MRI scan to the left shoulder indicated a high-grade tearing of the distal supraspinatus tendon with a complete pinhole, fluid extending into the subacromial and subdeltoid bursa, and severe degenerative changes at the AC joint. The MRI of the right shoulder was limited due to “significant motion artifact.” However, there was a 1.8 cm. complete supraspinatus tendon tear, and a partial tear of the infraspinatus, which appeared to involve about 50% of the tendon thickness along the articular surface. There was also fluid within the subacromial and subdeltoid bursa and severe degenerative changes at the AC joint.

In April 2010, Dr. Ogden reviewed the MRIs with Payne and diagnosed Payne with a “full-thickness rotator cuff tear on the right” and a “small pinhole full-thickness rotator cuff tear on the left.” Dr. Ogden discussed treatment options with Payne, including additional physical therapy, injections, or surgical repair. Dr. Ogden stated that the pain was not typical for rotator cuff tears and recommended proceeding with injections both for therapeutic and diagnostic purposes—injections were performed.

In May 2010,¹ Dr. Bennoch performed a second independent medical evaluation for Payne. Dr. Bennoch's diagnoses for Payne were: (1) traumatic injury to both shoulders; (2) right rotator cuff tear; and (3) left rotator cuff tear. Dr. Bennoch opined Payne had reached maximum medical improvement to both shoulders, unless further surgery was contemplated. Dr. Bennoch assigned an impairment rating for Payne of 40% permanent partial impairment to the right upper extremity at the shoulder due to rotator cuff tear, and 40% permanent partial impairment to the left upper extremity at the shoulder due to rotator cuff tear. Dr. Bennoch indicated these ratings took into account that up until one month prior to this exam, no treatment or testing was done. Dr. Bennoch's prior ratings to Payne's pre-existing conditions remained “[u]nchanged from the Independent Medical Evaluation report on May 15, 2006.” Ultimately, Dr. Bennoch found Payne to be “permanently and totally disabled” unless he had surgery, and that Payne's injuries were directly related to his December 24, 2004 fall. Dr. Bennoch also recommended that Payne be seen by an orthopedic surgeon specializing in shoulder injuries, particularly chronic shoulder injuries.

Dr. Bennoch placed more stringent restrictions on Payne beyond his 2006 restrictions, including no lifting more than 10 pounds, no frequent lifting or carrying, and no pushing or pulling. Dr. Bennoch also restricted two postural activities for Payne—climbing and balancing, as well as one manipulative function, reaching. As to the reason for these restrictions, Dr. Bennoch cited the medical/clinical findings that related to Payne's bilateral shoulder condition stemming from his December 2004 work injury.

In a letter dated May 25, 2010, Dr. Bennoch expounded further on Payne's impairment ratings and his pre-existing conditions. In this letter, Dr. Bennoch noted that in addition to Payne's prior stated pre-existing conditions, he had also been diagnosed with sleep apnea after the accident, but it was Dr. Bennoch's opinion it pre-existed the fall. As a result of these preexisting conditions, and his “present medical status,” Dr. Bennoch found Payne would not be “employable in the open labor market,” and the reason for his unemployability was the “combination of bilateral shoulder disease along with pre-existing coronary artery disease, diabetes and severe obstructive sleep apnea.”

In a second letter of July 6, 2010, Dr. Bennoch noted he failed to give an impairment rating due to Payne's “confirmed severe obstructive sleep apnea,” and rated Payne's severe obstructive sleep apnea at 10% permanent partial impairment to the body as a whole.

On February 15, 2011, at the request of Payne's attorney, Payne was evaluated by Phillip Eldred (“Eldred”), a certified rehabilitation counselor. Eldred found Payne did “have impairments, which were vocationally disabling such as to constitute a hindrance or obstacle to employment before December 24, 2004.” Eldred concluded Payne had “vocational restrictions at less than the sedentary work level[ ]”; there were no...