Treasurer of Mo. v. Parker
| Decision Date | 14 July 2020 |
| Docket Number | WD83030 |
| Parties | TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Appellant, v. JONATHAN PARKER, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Labor and Industrial Relations Commission
Before Division Two: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge
The Treasurer of the State of Missouri as Custodian of the Second Injury Fund ("Fund") appeals the final award of the Labor and Industrial Relations Commission ("Commission") finding that Jonathan Parker ("Parker") is permanently and totally disabled in part due to preexisting disabilities, triggering Fund liability. We affirm.
Factual and Procedural Background1
Parker is a 46-year-old man with a ninth grade education who has performed manual labor throughout his career. He has unsuccessfully attempted to earn his GED multiple times. Parker has had no other formal education and possesses minimal computer skills.
Parker began working for his family's tree service at the age of sixteen splitting firewood and trimming trees. He left the family business to work in a box factory feeding corrugated paper into a machine. This job required constant standing, bending, twisting, and continuous use of his arms. Parker later worked at another box factory making printed dyes. At this factory, Parker had to lift a five-gallon bucket full of ink, climb onto a machine, pour the ink into a trough, and later climb onto the machine to retrieve the dyes. Parker returned to tree service work with his family for a period of time, before going to work at Asplundh in 2004. At Asplundh, he performed duties exclusively for Independence Power and Light Company. He was responsible for trimming and removing tree branches near power lines.
While with Asplundh, Parker worked as a groundsman, a tree trimmer, and a foreman. As a groundsman, Parker set up cones and signs, got tools for coworkers, removed branches and fed them through the wood chipper, and raked lawns after the work was complete. Parker later worked as a tree trimmer climbing trees and using equipment like ladders, chainsaws, and tree spikes. As a tree trimmer, he wore a tree saddle, whichheld all of his tools and equipment. Trim work required a trim saw that weighed approximately five pounds, but groundwork required use of a bigger and heavier saw.
On June 18, 2014, Parker filed a claim against his employer and the Fund for repetitive injury to his neck and body as a whole ("Primary Injury") with a date of injury listed as before and after June 12, 2014. The injury related to his work including but not limited to heavy lifting and looking up on a repetitive basis to trim trees that resulted in injury. Parker had sustained multiple injuries prior to the injuries giving rise to this claim. In May of 2012, Parker injured his back. He was seen in the emergency room and prescribed a muscle relaxer. An MRI showed degenerative changes at the L5-S1 level of his low back. In the years following, Parker was prescribed pain medication on a few occasions and had one epidural injection. In November of 2012, Parker was also diagnosed with a knee sprain.
On March 8, 2014, Parker suffered a work injury to the right elbow at Asplundh. Parker went to remove his chainsaw from a ring on his left hip and as he extended his arm out away from his body he felt a "pop" in his arm. Parker reported his injury to Asplundh and received treatment. An MRI showed a partial tendon tear, and Parker was prescribed medications and physical therapy and was placed on light duty with a ten-pound weight restriction.
In May of 2014, Parker underwent electrodiagnostic studies of the right upper extremity, but all findings of the right upper extremity and neck were normal. An MRI revealed moderate spinal stenosis at C3-4 and mild stenosis at C4-5 and C7-T1. Parkerhad an orthopedic consult on May 22, 2014. Parker was also diagnosed with a right elbow distal bicep tear, right elbow lateral epicondylitis with partial thickness common extensor tear, and right shoulder complaints, as well as right upper extremity paresthesia complaints. Parker was released to full duty on January 13, 2015. Thirty days later, Parker received a diagnosis of tendonitis and bursitis. Parker was released to return to work without permanent restrictions on March 26, 2015.
Following the March 26, 2015 release, Parker never returned to work on a full duty status. He never returned to climbing trees or performing tree-trimming work but continued in light duty positions until taken off work following a cervical fusion on September 3, 2015 (a surgery necessitated by his June 12, 2014 work injury). Parker always worked full time before June 12, 2014, with some occasional help from coworkers if he was not able to climb. After filing his June 2014 claim for his Primary Injury, Dr. Steven Wilkinson ("Dr. Wilkinson"), an orthopedic surgeon, initially evaluated Parker and believed there was a disc herniation in Parker's neck causing numbness and tingling in the hands and pain that radiated down into the arm.
In October of 2014, Parker underwent evaluation for ongoing neck complaints with Dr. Harold Hess ("Dr. Hess"), an orthopedic specialist. Dr. Hess related the neck pain, numbness that extended down into both legs when he laid down, weakness in both legs, worsening trouble with balance, and electrical shocks down his left arm to the repetitive work injury. At the time of Dr. Hess's evaluation, Parker had previously received physical therapy related to neck complaints from October 16, 2013, through November 15, 2013.During that time, he continued to work as a foreman constantly looking upwards, which Dr. Hess opined exacerbated Parker's complaints. Parker had also undergone right elbow surgery on August 13, 2014, but continued to have neck pain. Dr. Wilkinson recommended epidural injections, but Dr. Hess believed Parker had a cervical spinal cord contusion and that Parker needed an anterior cervical discectomy and fusion at C3-C4.
A third surgeon, Dr. Adrian Jackson ("Dr. Jackson") saw Parker for ongoing neck complaints. Dr. Jackson assessed Parker with a C3-C4 spinal cord compression with evidence of intrinsic spinal cord changes and mild edema. Dr. Jackson recommended Parker undergo physical therapy and reconditioning exercises following surgery. Dr. Jackson placed work restrictions on Parker of no repetitive bending or lifting with no overhead work and no lifting over fifteen pounds. On November 25, 2015, Dr. Jackson released Parker return to regular duty without restrictions.
Parker has had ongoing problems since the neck surgery including choking when he tries to take pills, difficulty with eating and swallowing, difficulty looking up, and grinding and popping in his neck when he turns his head. Parker has constant pain in his neck, even when it is not moving. Parker offered to return to work at Asplundh as a trainer, training people on tree trimming, but notified them he could no longer climb trees. He never received a response from Asplundh nor did he receive a termination letter.
Next, Parker attempted to work at Dollar Tree retail establishment. He told his manager about his physical problems during his interview and was hired and allowed to attempt to perform the job in the summer of 2016. His duties at Dollar Tree includedstocking shelves, which required him to walk, bend, and move up and down throughout the day. Parker was employed by Dollar Tree a few weeks in June and July of 2016 before quitting due to pain from his injuries. He has not worked since that time.
Parker changes body positions throughout the day and has shooting pain down his left leg that cause him to fall unexpectedly. He has fallen several times because of the shooting pains in his leg, once causing him to break his wrist and his first finger knuckle. He is currently prescribed Gabapentin for pain. Parker testified that his back pain is currently intense and constant. He has used his riding lawn mower but he is not able to finish mowing his whole lawn without stopping due to increased back pain symptoms.
Dr. James Stuckmeyer ("Dr. Stuckmeyer") performed a medical evaluation on February 15, 2016, at the request of Parker. Treatment for the March 8, 2014, and June 12, 2014, work injuries overlapped, but Dr. Stuckmeyer separately addressed the disability related to each injury. Dr. Stuckmeyer opined that Parker sustained a significant injury to his right upper extremity on March 8, 2014, requiring the operative reconstruction of the right elbow performed by Dr. Daniel Stechschulte ("Dr. Stechschulte"). Dr. Stuckmeyer opined within a reasonable degree of medical certainty that Parker has ongoing problems and issues with his right elbow post right elbow reconstruction and further found that as a direct, proximate and prevailing factor of the March 8, 2014, accident Parker suffered a 30% permanent partial disability to the right upper extremity at the shoulder.2
Dr. Stuckmeyer stated that as a direct, proximate and prevailing factor of the intense repetitive nature of the occupational duties at Asplundh, Parker sustained a work injury on June 12, 2014. Dr. Stuckmeyer indicated that Parker developed symptoms consistent with chronic neck pain and early myelopathy, which necessitated the anterior cervical discectomy and fusion. Dr. Stuckmeyer noted that Parker continued to have ongoing symptoms of significant neck pain primarily with extension, which was required for his work as a tree trimmer. Dr. Stuckmeyer opined that within a reasonable degree of medical certainty the direct, proximate, and prevailing factor of the injury to Parker's neck was repetitive overuse culminating on June 12, 2014. Dr. Stuckmeyer opined that Parker sustained a 35% permanent partial disability of the neck. Dr. Stuckmeyer provided restrictions of no repetitive flexion/extension, no repetitive side bending and lateral rotation of the cervical spine, and no torsional...
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