Simmons v Mercy Hospital
Inj No. 12-001723
DOLIR 10-4-2018
The Commission affirms a 2-1 PTD award against the second injury fund for a primary shoulder injury combined with two prior knee disabilities which previously limited the claimant to sedentary work.
A 64 year old office worker slipped and fell on a laminated floor in 2012. She underwent two shoulder surgeries including ORIF for a humerus fracture. She declined a third surgery to repair a cuff tear because of a "low probability" of success. She was awarded social security disability benefits on the basis of the medical records related to the shoulder. The ALJ awarded 45% PPD, which match the settlement with the employer.
Her expert concluded she had pre-existing disability of 30% of each knee related to prior internal derangement that required surgeries. Her disability from 2 to 3 extremities demonstrated a synergistic effect.
The second injury fund relied upon vocational expert who performed a records review and found no disability based on medical opinion imposing no prior permanent restrictions. The Fund offered no other ratings.
The ALJ noted the complaints were "legitimate" and reflected a desire to maintain employment for "financial and social reasons." The absence of prior restrictions did not preclude an award of SIF total benefits as it did not credit other medical evidence or claimant's own testimony about self-imposed limitations. Claimant testified she did not plan to retire until 65.
A dissenting commissioner would have modified the ALJ award from PTD to PPD against the Fund and found the medical records which did not show restrictions more persuasive than claimant's testimony about her limitations.
The employer settled the case before a final hearing. The employer had lost a previous temporary award in 2012 when it contested the compensability of the claim.
ALJ Boresi
Atty: Wagner, Hudson
Experts: Musich, Gonzales, Hughes
