Court of Appeals of Missouri, Western District, Second Division
from the Labor and Industrial Relations Commission
Before: Karen King Mitchell, Presiding Judge, Cynthia L.
Martin, Judge and Gary D. Witt, Judge.
Cynthia L. Martin, Judge.
City of Columbia ("City") appeals the decision of
the Labor and Industrial Relations Commission
("Commission") awarding benefits because the
City's employee, William Palmer ("Palmer"), was
permanently and totally disabled due only to a workplace
injury he suffered after being pinned between a trash truck
and a pole while at work. Finding no error, we affirm.
and Procedural Background
was employed by the City as a Refuse Collector I for 38
years, except for a short period of time during which he
worked as a Refuse Collector II. As a Refuse Collector I,
Palmer walked between residences or rode the trash truck to
the next stop, picked up trash from residential curbsides,
and threw the trash into the trash truck.
2, 2011, Palmer was riding on the back of a trash truck when
the driver reversed and pinned him between the truck and a
pole. A lever on the truck pierced and crushed Palmer's
left shoulder ("Injury"). The parties stipulate
that Palmer's Injury arose out of the course and scope of
David Volgas ("Dr. Volgas") performed surgery on
Palmer's left arm and debrided portions of the deltoid,
bicep, and brachialis muscles. Dr. Volgas noted that Palmer
lacerated his bicep and brachialis muscles, and that he did
not expect them to return to function. Dr. Volgas prescribed
physical therapy to preserve as much range of motion as
possible. Palmer participated in most of the ordered therapy
though other medical issues caused him to miss some scheduled
sessions. Dr. Volgas released Palmer on August 10, 2011. He
noted significant limitation in Palmer's range of motion
and opined that Palmer could do a sedentary job, but only if
he used his left arm directly in front of him. Dr. Volgas did
not think Palmer could do repetitive work with his left arm,
even in front of his body.
City's request, Dr. Kevin Komes ("Dr. Komes")
evaluated Palmer on August 17, 2011. Dr. Komes concluded that
there was no evidence of nerve damage and that Palmer was at
maximum medical improvement ("MMI"). He rated
Palmer's disability at 70% permanent partial disability
of the left shoulder. He also imposed the following work
restrictions: no left arm use except in front of and within
40 centimeters of the body; no prolonged forceful grasping
with the left hand; no lifting or carrying with the left arm;
and no tasks above the waist.
9, 2012, Palmer filed a claim for workers' compensation
benefits. During a hearing before an Administrative Law Judge
("ALJ"), Palmer testified and provided his medical
and school records. Deposition testimony and narrative
reports were also received in evidence from Dr. David
Volarich ("Dr. Volarich"), Dr. Russell Cantrell
("Dr. Cantrell"), Dr. Michael Nogalski ("Dr.
Nogalski"), Gary Weimholt ("Weimholt"), and
James England ("England").
testified that he did not return to work after his injury. He
testified that he uses his left arm as little as possible,
that he cannot raise his left arm all the way up, and that he
has to lean in with his body to grab things rather than reach
with his left arm. Palmer reported difficulty dressing, and
that repetitive motion strains his left arm. Palmer has no
pain in his left arm so long as he does not use the arm.
Palmer is restricted to lifting 5-7 pounds with his left arm
and is advised to not reach out to pick up objects. If he
holds something with his left hand, he has to keep it close
to his body.
discussed prior injuries to his right shoulder and to both
ankles, and an arthritic condition in his knees, all of which
had been successfully treated. Palmer denied any permanent
restrictions before his Injury, and testified that none of
his prior injuries had effected how he performed his job.
Palmer is 61 years old with a borderline IQ. Palmer has a
12th grade education but was in Special Education classes
throughout the majority of his schooling. Palmer has always
lived in his parents' home, and though he can drive, he
has difficulty with directions in unfamiliar areas.
Volarich evaluated Palmer on November 29, 2012, at
Palmer's request. Dr. Volarich observed that Palmer had
significant loss of range of motion, atrophy, weakness, and
contractures in his left arm. Dr. Volvarich determined that
Palmer had suffered a severe laceration and crush injury that
required the removal of the entire biceps muscle, the
brachial muscle, and 10% of the deltoid muscle. Dr. Volarich
rated Palmer's disability at 80% permanent partial
disability. Dr. Volarich recommended that Palmer only use his
left arm for activities of daily living and that he avoid
lifting, reaching, or carrying with his left arm. Dr.
Volarich assigned a permanent partial disability rating to
each of Palmer's preexisting conditions as follows: 20%
of the right shoulder, 15% of each knee, 25% of the left
ankle, and 15% of the right ankle. However, Dr. Volarich did
not believe that Palmer required any restrictions for these
injuries prior to the Injury in June 2011. Dr. Volarich thus
opined that Palmer was permanently and totally disabled based
on his June 2, 2011 left shoulder injury alone.
Cantrell evaluated Palmer on April 29, 2013, at the
City's request. At first, Dr. Cantrell found that Palmer
was not at MMI, and ordered further diagnostic testing and an
orthopedic evaluation. Ultimately, Dr. Cantrell found that
Palmer had reached MMI, and opined that he had sustained a
30% permanent partial disability of the left shoulder. Dr.
Cantrell recommended the following permanent restrictions: no
lifting greater than 10 pounds with the left arm; no lifting
greater than 25 pounds with both arms; and no work at the
level of or above the shoulder. Dr. Cantrell found no reason
to assign any restrictions to Palmer's previous medical
conditions. Dr. Cantrell believed that Palmer could work at a
sedentary to light demand level.
Nogalski examined Palmer on December 2, 2013, at the
City's request. Dr. Nogalski diagnosed Palmer with a
complete transection of his coracobrachalis and the short
head of his biceps, and damage to his pectoralis major and
deltoid. He assigned 30% permanent partial disability to
Palmer's left shoulder. Dr. Nogalski imposed the
following permanent restrictions on Palmer: no reaching
beyond 40 centimeters in front of the body; no lifting more
than 5 pounds with the left arm; and no use of the left arm
over chest level within 40 centimeter range. Dr. Nogalski did
not identify any permanent restriction related to
Palmer's prior medical conditions. Dr. Nogalski felt that
Palmer was not totally disabled and that he could compete for
jobs such as a delivery man or courier.
performed a vocational assessment of Palmer on December 6,
2013, at Palmer's request. He determined that Palmer has
a total loss of access to the open, competitive labor market.
Weimholt opined that Palmer's left shoulder restrictions,
work history, limited reading and math skills, and lack of
transferable job skills resulted in a total disability. He
did not believe Palmer was a candidate for any type of
retraining. Weimholt testified that Palmer's left
shoulder injury alone ...