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Wurth v. Treasurer of Missouri as Custodian of Second Injury Fund

Court of Appeals of Missouri, Eastern District, Second Division

October 8, 2019

JAMES WURTH, Appellant,

          Appeal from the Labor and Industrial Relations Commission


          Lisa P. Page, Judge.

         James 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.


         In 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.

         Prior 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.

         Wurth 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 employment opportunities.

         Dr. 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.

         In 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.

         Dr. 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 stretch."

         After 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.

         In 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 [2008] 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 evaluation

[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.

         On 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 ...

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