Boring v. Treasurer of Missouri, Custodian of the Second Injury Fund

947 S.W.2d 483, 1997 Mo. App. LEXIS 1089, 1997 WL 327329
CourtMissouri Court of Appeals
DecidedJune 17, 1997
DocketNo. 71074
StatusPublished
Cited by2 cases

This text of 947 S.W.2d 483 (Boring v. Treasurer of Missouri, Custodian of the Second Injury Fund) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boring v. Treasurer of Missouri, Custodian of the Second Injury Fund, 947 S.W.2d 483, 1997 Mo. App. LEXIS 1089, 1997 WL 327329 (Mo. Ct. App. 1997).

Opinion

KAROHL, Judge.

The Second Injury Fund (Fund) appeals a Labor and Industrial Relations Commission Award of permanent disability compensation for William Boring (claimant). We affirm.

On October 30, 1991, claimant, a licensed practical nurse, was working for Levering Home. On that day, he was lifting a 250 pound patient out of bed when he felt his back “give”. He immediately felt pain in his back, his left thoracic area, rear thoracic area, groin, right testicle, and down his legs. On February 28, 1992, claimant had back surgery. He was, and is, incapable of performing prescribed back exercises because of his difficulty with breathing associated with chronic obstructive pulmonary disease (COPD).

Claimant settled his claim against Levering Home “for permanent partial disability of 27 1/2% of the body as a whole referable to the low back.” Claimant receives Social Security disability payments for total disability.

Prior to the compensable back injury, claimant had suffered several unrelated injuries. He broke a toe in “the early ’70s” while on the job and “in cold weather temperatures, ... the pain is intense.” He suffered rheumatic fever as a child but “[ejventually, [he] outgrew it....” In 1981 or 1982, while working at a diecasting company, he was diagnosed with COPD and a 40% blockage in one of his lower coronary arteries. He underwent a cardiac catheterization procedure at the time. Twelve weeks after the surgery he returned to his job, but he reexperienced the same problems and was readmitted to a hospital. Since the surgery, he has had shortness of breath and occasional chest pains. When he returned to work, he was transferred to another division. Claimant continued to have pain and shortness of breath. He eventually had to quit that job.

On Memorial Day of 1970, a car fell on claimant’s head. It fractured his skull in three places. He received emergency surgery to stop some internal bleeding. His left cheekbone was fractured and treated surgically. He also received eye surgery twice to correct double vision. As a result of these injuries, claimant has had “terrible headaches constantly. They are getting more severe.” He also has no sense of taste or smell.

In 1990, claimant was employed as a licensed practical nurse at Levering Home. He periodically missed a day or two of work because of his headaches and vision problems.

Claimant injured his left shoulder in 1985, and continues to have pain down to the elbow. He experiences popping, grating and clicking when he moves his shoulder.

Claimant testified his previous conditions hindered his work at Leveling Home prior to his October 30, 1991 back injury. He had difficulty walking up flights of stairs, reading prescriptions for patients, and lifting patients.

A couple of days after the October 30,1991 back injury, claimant returned to work, performing “nonlifting functions and responsibilities .... ” In November 1991, Levering Home fired claimant because of his “hostile attitude.” After his back surgery, he called another nursing home about the possibility of work. He was turned down because of his inability to lift.

Since the surgery, claimant has been “in pain twenty-four hours a day_” He has received no beneficial effect from any of the treatments. Prior to his injury he had no difficulty kneeling, stooping, crouching or getting up; he could “polka with the best of them.” Prior to the accident, claimant was on no restrictions from any doctor.

Claimant’s back problems prevent him from doing even office work because he is in constant pain. His breathing problems prevent him from doing back exercises that were prescribed to lessen the back pain. All of his symptoms and problems physically play on each other, affect each other.

In 1985 claimant’s doctor advised him to stop smoking cigarettes. Other doctors have also advised him to stop smoking. He repeatedly and vehemently refused to quit smoking, both before and after the October 30,1991 back injury.

The deposition testimony of Dr. David Vo-larich D.O. was admitted into evidence. Dr. [486]*486Volarich prepared a report dated April 27, 1994 based on his examination of claimant and of claimant’s previous medical records. He concluded that claimant’s overall disability was greater than the individual disabilities of particular portions of his body. Dr. Vola-rieh testified claimant had several medical problems because of his COPD.

[Claimant] cannot properly take in enough oxygen and get rid of the waste products of carbon dioxide and other materials because of the compromise in the pulmonary system. The chest demonstrates advanced changes now with increased AP diameter, which is the barrel chest as seen in chronic lung disease. He has diminished breath sounds. He has a significant cough and sputum production. All of those limit endurance and create more medical problems with risk factors for other body systems.

Dr. Volarich testified claimant’s COPD hinders him in his employment or reemployment. He recommended in his report that claimant

continue to attempt to maintain as much active motion and range of motion as possible in his spine and peripheral skeleton. He should pursue a non-impact exercise program and limit this to walking only. He should avoid fixed positions for any longer than 15-20 minutes and he should avoid all repetitive activities regarding the low back. I would recommend he lift no more than 15 pounds on an occasional basis. He should avoid all stooping, squatting, lifting, pushing, pulling, twisting, bending and other similar motions in the low back.

At the time Dr. Volarich examined claimant, claimant was smoking between two and three packs of cigarettes per day. Dr. Vola-rich recommended cessation of smoking, because “[sjmoking is a significant health risk from multiple different body systems, whether it’s heart, lung, a cancer risk, risk of developing degenerative disk disease and so forth.” He testified claimant’s COPD will continue to worsen if he continues to smoke. Mso, “based on recent studies and research it appears that smokers have a higher incidence of degenerative disk disease and with that the disk is more prone to damage, specifically herniation.”

In his April 27, 1994 report, Dr. Volarich observed, “[i]n the mid-1980s, Mr. Boring was diagnosed with chronic obstructive pulmonary disease in the form of chronic bronchitis. He has smok[ed] 2-3 packs of cigarettes a day for 36 years.”

Among his conclusions, Dr. Volarich found:

1. ... a 20% permanent partial disability of the body as a whole, as rated at the face, due to the multiple skull fractures, facial fractures and surgical repairs ....
2. ... a 5% permanent partial disability of the left foot, due to the prior left toe fracture,....
3. ... a 20% permanent partial disability of the body as a whole, as rated at the pulmonary system, due to the patient’s chronic obstructive pulmonary disease in the form of chronic bronchitis,....
4. Permanent disabilities from the prior left forearm fracture, right inguinal hernia, single vessel coronary artery disease, peptic ulcer disease and cervical degenerative arthritis are not identified today since the patient is asymptomatic in these areas.

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947 S.W.2d 483, 1997 Mo. App. LEXIS 1089, 1997 WL 327329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boring-v-treasurer-of-missouri-custodian-of-the-second-injury-fund-moctapp-1997.