James Atchison v Tyson Poultry and Treasurer of Mo.
self-insured
Release Date Oct 16, 2019 (Accident date July 8, 2007)
Venue: St. Louis (venue stipulated to Greene County)
Length: 19 pages
Plot Summary:
The Commission affirms an award of PTD benefits against the SIF on the basis that claimant's multi-level spinal disease (asymptomatic) was a "potential" obstacle or hindrance to employment to support Fund liability when it limited claimant's treatment options for the primary injury, and rejected the assertion that pre-existing disability in the context of a permanent and total disability claim had to be "actual and measurable."
https://labor.mo.gov/sites/labor/files/decisions_wc/AtchisonJames07-08768710-16-19.pdf
Inj. No. 07-087687
Cast:
Elmer, J
DeVoto, atty
Pierce, atty
Garth
Browning
Olive
Weimholdt
Beltz
Memorable Quotes:
"Most importantly, when asked if he could be granted one wish what it would be Claimant responded, "I would like to have "my back" back so I could return to work."
Comments:
Claimant is a 64 year old who fell on some black ice while making a delivery for Tyson Poultry. He established he had an acute disc herniation at L4-5. There is other medical which disputes this diagnosis. He asserts his injury incapacitated his ability to drive and function and he became a "shell" of his former self. (The ALJ notes witness testimony before the accident he was a "machine.") Dr. Garth allocated disability to new and pre-existing conditions and assessed 35% BAW as "new" due to a "inoperable" condition.
The SIF argued there was liability because the prior disability of an asymptomatic back disease was not measurable and did not trigger liability. The Commission found the mandate to find prior disability as "actual and measurable" applied only to partial disability claims, and fund liability was triggered if the prior disability (symptomatic or asymptomatic) represented a potential to employment or to obtaining employment. Claimant treated with injections for the primary injury and was medically advised to avoid a multi-level repair which was "dangerous with many potential complications."
The ALJ found 35% PPD for the primary injury (an unoperated disc herniation) and describes the disc herniation was "inoperable." The ALJ then notes "The fact that there is no medical to the contrary" (that the condition is inoperable) is "not binding upon this Court."
The ALJ finds a synergistic effect because the prior condition (degenerative disc disease) rendered the primary injury inoperable.
Concerning the priors, the ALJ notes the primary injury as a disc herniation. There is testimony summarized that Dr. Garth felt the accident exacerbated the prior condition. The ALJ makes the findings, however, that the multi-level changes were "the result of years of repetitive bending and lifting of 45 pound boxes of chicken for at least the last 12 years of his employment." This would appear to refute the inference that the accident aggravated levels other than L4-5, but the finding exceeds the scope of disputed issues (disability associated with injury by accident, not injury by occupational disease). That finding was not disputed as the only party on appeal was the Fund.
The ALJ allowed the admission of Dr. Myers report under a motion when no objection was filed, although the Fund later asserted a "technical" objection whether the records constituted a report as defined by the statute.
The ALJ awarded total benefits against the Fund. The employer appears to have settled for 35%. The fund's liability of $742.72 weekly benefits for life was tolled for 620 5/7 weeks due to a net settlement in a civil claim against Porter Poultry for more than $460,000.
What's it worth?
35% BAW unoperated disc herniation
Fund total due to intractable pain
