Court of Appeals of Missouri, Eastern District, Second Division
from the Labor and Industrial Relations Commission
P. Page, Judge.
Wurth ("Wurth") appeals the Labor and Industrial
Commission's ("Commission") award affirming and
adopting the Administrative Law Judge's ("ALJ")
award denying permanent disability benefits from Second
Injury Fund ("Fund"). In his sole point on appeal,
Wurth argues the Commission erred in finding he was
permanently and totally disabled before his work injury on
November 4, 2008 because it did not base its decision on
substantial competent evidence. We affirm.
2002, Wurth began working for Commercial Electronics, Inc.
("Employer"), which serviced headsets used by fast
food workers at drive-thru windows. On November 4, 2008,
Wurth sustained a low back disc injury while carrying a heavy
cable box. Wurth settled with Employer for 25% disability to
the body as a whole and proceeded with a claim for
compensation against the Fund. A hearing was held before the
ALJ on January 2, 2018.
to his November 2008 injury, Wurth sustained previous
work-related injuries in 1987, 1999, and 2001, while employed
at Allied Gear and Machine Company ("Allied").
After treatment for the 2001 injury, Allied discharged him.
sought other employment and was retained by Employer as an
hourly computer technician and assembler. Despite ongoing
treatment and symptoms from his previous injuries, Wurth
worked as an assembler, eventually becoming an assembly
manager. Wurth testified that prior to his November 2008
injury, he worked up to ten hour shifts and seldom required
time off. After treatment for his November 2008 work-related
injury, Wurth was released to return to work in March 2009.
He became a salaried employee, serving as an electrical tech
supervisor. This position provided more flexible hours off
the production lines, and allowed him to rest as needed. On
January 23, 2012, Employer dismissed Wurth from employment.
After being discharged, Wurth unsuccessfully sought other
David Volarich ("Dr. Volarich") testified on behalf
of Wurth and was the only medical expert to testify in this
case. Dr. Volarich conducted four independent medical
evaluations of Wurth in February 2000, December 2001, January
2008, and September 2009. Dr. Volarich testified after every
injury, Wurth's spine worsened. As a result, he
recommended specific physical restrictions. His 2000
evaluation recommended a 20-pound lifting restriction, avoid
remaining in a fixed position for more than 30 minutes at a
time, that Wurth stretch, move about frequently, and rest
when needed. The 2001 evaluation was similar, but decreased
Wurth's lifting limit to 10-15 pounds and specified he
should rest in a supine position. In his 2008 report, Dr.
Volarich further restricted handling any weight greater than
10 pounds and he should not remain in a fixed position for
any more than 20-30 minutes at a time (including both sitting
and standing). He also recommended that he "change
positions frequently to maximize comfort and rest when
needed, including resting in a recumbent fashion." In
his 2009 report, Dr. Volarich's restrictions were similar
to those in his 2008 report, with the exception of decreasing
the time Wurth should remain in a fixed position.
addition to these recommended restrictions, Dr.
Volarich's January 2008 report included a description of
Wurth's then existing job duties and physical
limitations. He noted Wurth worked 10 hours days performing
light assembly duties in February 2007. During the
evaluation, when asked how his injury affected his ability to
perform his work, Wurth replied that "he has pain with
climbing stairs and being on his feet for long periods of
time. He takes breaks when needed and often lies down in his
office. He can't do any heavy lifting now and has slowed
down considerably." He also advised that Wurth could
maintain his job as a manufacturing manager, but needed to be
in a sedentary to light duty capacity. He opined that if
Wurth lost his job at that time, it would be difficult for
him to find employment in the open labor market.
Volarich testified Wurth's job had become more
administrative in nature as a manufacturing manager since
this position required him to oversee employees and "he
really wasn't doing labor type work." He also
explained that Employer "allowed him to lie down in the
office during the day when needed to take a break . . . He
could come and go as he pleased pretty much." He further
opined Wurth's employability in the open labor market was
based on Wurth "being accommodated and allowed to lie,
down, take a nap, rest, go home early, come in late . . .
That's not typical in the open labor market by any
Wurth's November 2008 injury, Dr. Volarich again examined
and evaluated Wurth in September 2009. He noted Wurth's
low back complaints had become more severe and now included
right leg radiant pain. He concluded Wurth is permanently and
totally disabled as a direct result of the work-related
November 4, 2008 low back injury in combination with his
preexisting medical conditions. However, Dr. Volarich
reiterated on cross-examination that without the
accommodations made by Employer, Wurth would not have been
employable in the open labor market as of January 2008.
March 2010, approximately 14 months after the accident, James
England, Jr. ("England"), a vocational
rehabilitation counselor, evaluated Wurth. He opined that
Employer provided him with "quite a bit of
accommodation" prior to his injury in November 2008, and
he had been "more and more accommodated after the 
injury." In January 2017, Gary Weimholt
("Weimholt"), a vocational rehabilitation
counselor, performed a vocational assessment and testified on
behalf of the Fund. He reviewed the medical records of the
treating doctors, Dr. Volarich's reports and depositions
as well as the depositions of Wurth and England. He concluded
Wurth had been unemployable in the open labor market since
December 2001 or January 2008, as either assessment would
have independently taken Wurth out of the open labor market.
He explained that the restrictions in Dr. Volarich's 2001
[N]ever got better, [Wurth] had this specialized situation
when he returned to work with a great deal of accommodation.
He required further evaluation and treatment, significant
treatment. He was on narcotic medication. I think you can go
back to there. But I also think that Dr. Volarich['s]
[assessment] in 2008 takes him out as well.
March 29, 2018, the ALJ entered his award denying
compensation for benefits holding Wurth was ineligible
because he was already permanently and totally disabled prior
to his November 2008 accident. The ALJ held "the
evidence compels a conclusion that [Wurth's]
accommodations at work in January 2008 were sufficient to
reduce his employability to characterize his employability as