Court of Appeals of Missouri, Western District, Second Division
LABOR AND INDUSTRIAL RELATIONS COMMISSION.
Christine Kiefer, Jefferson City, MO, for Appellant.
Maggie Ahrens, Jefferson City, MO, for Respondent.
Before Division Two: Mark D. Pfeiffer, P.J., Lisa White Hardwick, and James Edward Welsh, JJ. All concur.
James Edward Welsh, J.
Frederick Winingear appeals the Labor and Industrial Relations Commission's denial of his claim for permanent partial disability benefits from the Second Injury Fund. We affirm.
On February 23, 2011, Frederick Winingear was working as a Security Aide at the Fulton State Hospital when he suffered an injury to his neck (" the primary injury" ) from a patient putting him in a " choke hold." Winingear promptly reported the incident to his employer, and the employer sent him for medical treatment. Winingear was diagnosed with neck strain. Winingear eventually entered into a settlement agreement with his employer and the employer's insurer for 4% permanent partial disability of the body as a whole, referable to the neck.
Winingear filed a claim against the Second Injury Fund alleging Fund liability for his permanent partial disability due to the combination of his primary neck injury and various preexisting disabilities. On August 4, 2014, the parties appeared before an Administrative Law Judge (ALJ) for a hearing. At the outset, the parties stipulated that Winingear was an employee of Fulton State Hospital when he sustained the injury to his neck on February 23, 2011, and that the injury occurred while he was working in the course and scope of his employment. The issues to be resolved included: (1) whether the claim was timely filed; (2) the nature and extent of his permanent partial disability, and (3) the liability, if any, of the Second Injury Fund.
Winingear testified at the hearing about his primary injury and his preexisting disabilities. He stated that, even after being treated for the February 2011 primary injury, he continues to have stiffness and range of motion problems in his neck but that the problems were not as bad as they were before. He testified that, following treatment, his neck pain has averaged a 3 or 4 on a 10-point scale. As to his prior injuries, Winingear stated that he injured his left shoulder, chest, and ribs in an incident on September 17, 2010, when he and other staff members were dealing with a combative patient. He sought treatment for those injuries and eventually had an arthroscopic repair of the left shoulder. Winingear thereafter settled with his employer for 20% of the left shoulder and 3% of the body as a whole, referable to the chest. Winingear testified about ongoing problems with his neck and left shoulder as they relate to his current job at the Dollar General Warehouse. He stated that he limits himself at work as to how much and how high he lifts due to his preexisting shoulder injury and that he has problems with looking up and working overhead, which he attributed to both his neck and his shoulder injury.
In September 2012, Winingear was evaluated by Dr. Raymond Cohen. Winingear introduced the doctor's report into evidence at the hearing. Dr. Cohen concluded, based on his examination of Winingear and his review of Winingear's medical records, that Winingear had diagnoses and resulting medical conditions that were a direct result of his 2010 and 2011 work injuries. He found that, as a result of the September 17, 2010 work injury, Winingear has permanent partial disabilities of 40% at the left shoulder level and 5% of the whole person at the chest level. Regarding the February 23, 2011 injury, Dr. Cohen opined that Winingear has a 10% permanent partial disability of the whole person at the cervical spine level. Dr. Cohen also agreed with Winingear's other ...