Robert Kasza v. Midwest Marble and Granite Corp.

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 16, 2002
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee suffered low back pain while assisting to lift a heavy marble slab onto a polishing machine.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 20% Permanent partial disability referable to the low back
15. Compensation paid to-date for temporary disability: $19,404.22
16. Value necessary medical aid paid to date by employer/insurer? 16,026.31

Employee: Robert Kasza Injury No.: 02-133434

1. Value necessary medical aid not furnished by employer/insurer? $3,584.00
2. Employee’s average weekly wages: 694.77
3. Weekly compensation rate: 463.18/$340.12
4. Method wages computation: By agreement

1. Amount of compensation payable:

Unpaid medical expenses: $3,584.00

26 3/7 weeks of temporary total disability (or temporary partial disability) $12,241.19

This workers' compensation case raises several issues arising out of an alleged work related injury in which the claimant suffered low back pain while assisting to lift a heavy marble slab onto a polishing machine. The issues for determination are (1) Accident or occupational disease arising out of and in the course of employment, (2) Medical causation, (3) Liability for Past Medical Expenses, (4) Future medical care, (5) Temporary Disability, (6) Permanent disability, and (7) Liability of the Second Injury Fund. The evidence compels an award for the claimant for medical expenses, future medical care, temporary total disability benefits, and.

At the hearing, the claimant testified in person and offered depositions of Raymond F. Cohen, D.O., and Anthony Guarino, M.D., a wage statement, records from the Missouri Division of Workers’ Compensation, Medical bills from Barnes-Jewish West County Hospital, and medical records from BarnesCare, NYDIC Open MRI of America, and St. John’s Mercy Medical Center. The defense offered a deposition of John R. Wagner, M.D., and Employee/Claimant’s Response to Employer/Insurer’s Motion to Stack Orthopedists.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident was alleged to have occurred in Missouri.

This forty-nine year old claimant was born September 21, 1955, in Krakow, Poland, and finished high school there and had one year of trade school as a bricklayer. In Poland, he supervised bricklayers for four years. He fractured his left arm, had two different surgeries, and still has plates and pins in his left arm. He immigrated to the United States in 1978 and obtained his citizenship in 2001. From 1980 to 1983, he worked at a bakery and then worked for Midwest Marble \& Granite Corp. for one year and three months from 1984 to 1985. He worked for Marble Craft for five years from 1985 to 1989. At Marble Craft, he did plant payroll inventory and supervised. He can read blueprints. He then returned to Midwest Marble \& Granite Corp. and worked there from December 1989 to October 16, 2002, when he injured his low back.

On October 16, 2002, the claimant felt a sudden severe pain in his low back while cutting a large piece of three hundred fifty to four hundred pound granite for a hearth and trying to put a huge slab onto a machine. He testified that he felt his back was "broken" and reported the incident to his foreman. Five to seven days later, the pain went down his left leg to his knee. He went to BarnesCare and underwent about one month of physical therapy. See Exhibit C. The claimant reported that he tried to lift forty to sixty pounds as part of the therapy, but it made his back much worse. On October 30, 2002, plain films revealed mild degenerative spondylosis in the lumbar spine with facet sclerosis prominent at L5-S1 and marked irregularity of the lateral left iliac crest consistent with probable enthesopathy. See Exhibit C. On November 24, 2002, a lumbar spine MRI revealed osteoarthritic changes of the apophyseal joints at the L4-5 and L5-S1 levels disc protrusion at T12-L1, disc extrusion at L1-2, L2-3, and L3-4, and a disc bulge at L4-5. See Exhibit D. On November 27, 2002, BarnesCare discharged the claimant to an orthopedic specialist, Dr. Lange, who referred the claimant for injections and physical therapy. See Dr. Wagner deposition, Exhibit 1. The claimant's condition slowly improved, and Dr. Lange returned him to work. See Dr. Wagner deposition, Exhibit 1. The claimant returned to work, but within two weeks, he could not stand, sit, walk, or lift due to severe pain. See Dr. Wagner deposition, Exhibit 1. Dr. Lange obtained a second MRI, and opined that the claimant "was not a candidate for surgery and that he should live with it." He took medication at home and return to work." See Dr. Wagner deposition, Exhibit 1.

On July 10, 2003, Dr. Wagner examined the claimant and ordered a lumbar myelogram to determine whether the claimant was a surgical candidate. See Dr. Wagner deposition, Exhibit 1. The claimant elected against a myelogram and any surgery based on his own personal risk assessment. See Dr. Wagner deposition, Exhibit 1. Dr. Wagner gave him a tenpound lifting restriction and discharged him from care. See Dr. Wagner deposition, Exhibit 1. The claimant has not received any temporary disability benefits since he declined the disc surgery, and the defense offered no further treatment. See Dr. Wagner deposition, Exhibit 1.

When the defense offered no further treatment, the claimant went to Dr. Guarino on January 14, 2004. Dr. Guarino assessed the claimant's condition as sciatica and degenerative disc disease. He referred the claimant for additional physical therapy and administered three injections in his back on March 22, April 8, and April 15, 2004. See Dr. Guarino deposition, page 12. None of these injections "gave him sufficient relief to warrant continued pursuit of treatment in the area." See Dr. Guarino deposition, page 11 .

The claimant testified that he cannot work now due to back and leg pain. He cannot sleep well and has to shift positions every hour. He testified that he cannot work, sit, or sleep for long periods. He rated his current pain as seven to eight out of ten and said he can lift only five to ten pounds. He cannot work on his house, play tennis, swim, is unable now to carry out the trash, and has problems having marital relations with his wife due to back and left leg pain. He testified that he cannot do any job, even a light job. He has a backpack hot and cold that he bought from Walgreens. He testified that he can only drive, at the most, one hour when driving his automobile. He testified that if he reaches a point that he cannot walk, then he would consider surgery.

Dr. Cohen

Dr. Cohen examined the claimant on November 6, 2003, and opined that the October 31, 2002, MRI and lumbar spine films revealed age related degenerative changes. Dr. Cohen testified that the lumbar spine revealed multiple trigger points over the right lumbosacral area. He found that flexor and extension were reduced 40 %, with left and right side bending reduced to 20 %. Dr. Cohen diagnosed multiple lumbar disc protrusions, left lumbar radiculopathy, and lumbar myofascial pain disorder as a result of the October 16, 2002, accident with pre-existing severe left radial and ulnar fracture requiring extensive surgical repair. He rated the claimant's disability at a five percent pre-existing permanent partial disability of the lumbar spine and a thirty percent permanent partial disability of the low back as a direct result of the primary work related injury. He restricted the claimant from any type of work that has to do with repetitive bending, lifting, stooping or twisting at the waist, and five to ten pounds at any one time, as well as no prolonged, walking, climbing or standing. He opined that the tests, including the two MRI's, revealed a disc herniation at the L2-3 level and at other levels, and the acute pain on

October 16, 2002, was due in part to the disc herniation or protrusions. See Dr. Cohen deposition, page 5. Dr. Cohen also opined that "some of the findings that are identified in those studies are the degenerative findings seen in a patient in his age group that does a significant amount of heavy lifting and repetitive bending for a number of years, and those repeated stresses on the lumbar spine cause those types of changes." See Dr. Cohen deposition, pages 5, 6. Dr. Cohen opined that the claimant can never return to lifting marble, granite, and heavy objects because of the ongoing chronic pain and because those activities would increase the probability of future "problems with those discs. See Dr. Cohen deposition, page 7.

Dr. Guarino

Dr. Guarino testified that the claimant had degeneration in his back that occurred over years and is a by-product of the use of his back, his health history, and genetic factors. See Dr. Guarino deposition, page 7. "This man has done a stressful job for the back and then he is repetitively lifting heavy weights, so that's contributed to the degeneration. See Dr. Guarino deposition, page 7. Degeneration of discs in the back results in loss of elasticity. See Dr. Guarino deposition, page 7. Loss of elasticity means one "can't handle the same stress as time goes on." See Dr. Guarino deposition, page 8. Dr. Guarino testified that on October 16, 2002, the claimant lifted an object that his back was unable to sustain and he suffered an injury. See Dr. Guarino deposition, page 8. Most likely, a tear or a change in the structure and chemicals within the disc, which are known to cause pain, were released. It appears, due to the persistence of pain, that there is a continued release of chemicals from this are of the body causing him continual back pain. See Dr. Guarino deposition, page 8. Dr. Guarino testified that a myelogram can be properly administered, but can still have life threatening complications, such as an allergic reaction to the dye, excess intracranial pressure, a bleed in a confined area, or an infection. See Dr. Guarino deposition, page 23. The complications could lead to paralysis, meningitis, or death. See Dr. Guarino deposition, page 23. Dr. Guarino testified that although the claimant had a long history of back problems with medical treatment, he never required surgery, injections, or hospitalization. He opined that the specific event on October 16, 2002, was different, because the claimant developed pain that radiated into his legs, in addition to his typical back pain. See Dr. Guarino deposition, pages 26-27. Dr. Guarino testified that the claimant's back problems are a result of a combination of wear and tear over time, aging, genetics, his history of two prior back injuries, and the traumatic event that occurred on October 16, 2002. See Dr. Guarino deposition, page 33. Dr. Guarino testified that there can be false, negative electrodiagnostic studies and reports. See Dr. Guarino deposition, page 34. The claimant incurred expenses of $\ 3,584.00 for pain management for his low back condition from Dr. Guarino. See Exhibit H.

On July 10, 2003, Dr. Wagner, an orthopedic surgeon, examined the claimant and reviewed X-rays and MRIs. The X-rays of the lumbar spine showed a very dense facet degenerative disease in lower lumbar spine and facet and lamina anomalies in the lower lumbar spine at L5-S1. See Dr. Wagner Deposition, page 10. The MRI of November 24, 2002, showed evidence of herniated disc at L2-3 to the left accompanied by some forminal narrowing. See Dr. Wagner Deposition, page 10. Dr. Wagner concluded that there was a question as to how much herniated disc he had and advised the claimant to undergo a myelogram to determine how much and exactly where the disc is herniated or protruded and the deformity of the root. See Dr. Wagner Deposition, page 11.

On July 24, 2003, the claimant informed Dr. Wagner that he did not want a myelogram. See Dr. Wagner Deposition, page 12. Dr. Wagner testified that the dangers with the myelogram are extremely small. See Dr. Wagner Deposition, page 13. Dr. Wagner told the claimant that the claimant needed a myelogram, because he had multiple problems in his back and the claimant already had extensive conservative care. See Dr. Wagner Deposition, page 12. Since he did not want a workup, there was no reason to treat him additionally and Dr. Wagner discharged from care with a ten pound lifting restriction. See Dr. Wagner Deposition, page 13. Dr. Wagner testified that he did not recommend surgery, only a myelogram. See Dr. Wagner Deposition, page 16 .

Dr. Wagner testified that the claimant had a functional capacity evaluation on August 5, 2003, that found the claimant at the medium duty level. Dr. Wagner opined that the claimant would function very well at the light duty level. Dr. Wagner opined that the claimant was at maximum medical improvement and rated the claimant's permanent partial disability from the occurrence at ten percent of the lumbar spine. See Dr. Wagner Deposition, page 16. Dr. Wagner restricted the claimant to light duty work, not lifting over twenty-five pounds. See Dr. Wagner Deposition, page 35. Dr. Wagner also reviewed the records of Dr. Guarino and opined that no further treatment was indicated, including multiple injections. See Dr. Wagner Deposition, page 18.

On May 22, 1986, the claimant injured his left ear, head, and body as a whole due to a grinder flying off its assembly, hitting him in the head resulting in a seven percent permanent partial disability to his head in Workers' Compensation Injury No. 86-51917. See Exhibit F. On June 28, 1990, and April 2, 1991, the claimant suffered low back strains in Workers' Compensation Injury Numbers 90-082273 and 91-033698. See Exhibit F. However, none of the experts found any preexisting permanent partial disability from any of these conditions. Dr. Cohen opined that the claimant's prior lumbar strains "resolved" and that the claimant suffered from a preexisting five percent permanent partial disability to his low back, presumable from the claimant's degenerative condition. See Dr. Cohen deposition, Exhibit B. Dr. Cohen also found a forty percent preexisting permanent partial disability to the claimant's left elbow, based on a medical history and examination from a severe radial and ulnar fracture thirty-five years ago. See Dr. Cohen deposition, Exhibit B. As stated above, Dr. Cohen also opined that the claimant had a five percent preexisting permanent partial disability to his low back. See Dr. Cohen deposition, Exhibit B.

The claimant has the burden to establish that he has sustained an injury by accident arising out of and in the course of her employment, and the accident resulted in the alleged injuries. Choate v. Lily Tulip, Inc., 809 S.W.2d 102, 105 (Mo.App. 1991).

Claimant must establish a causal connection between the accident and the injury. Claimant does not, however, have to establish the elements of her claim on the basis of absolute certainty. It is sufficient if she shows them by reasonable probability. "Probable means founded on reason and experience which inclines the mind to believe but leaves room for doubt." The Commission's awards on disability claims are not solely dependent on medical evidence given by expert witnesses, but its findings are to be judged on the basis of the evidence as a whole. The testimony of the claimant, or other lay witnesses, as fact within the realm of lay understanding can constitute substantial evidence of the nature, cause and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence. The Commission is authorized to base its findings and awards solely on the testimony of the claimant; her testimony alone, if believed, constitutes substantial evidence. Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 198, 199 (Mo.App. 1990).

Where the performance of duties of an employee leads to physical breakdown or a change in pathology, the injury is compensable. Wolfgeher v. Wagner Cartage Service, 646 S.W.2d 781, 784 (Mo. banc 1983). However, there are statutory limitations on compensability:

An injury is compensable if ... work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor. ... Ordinarily, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment. An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent ... that the employment is a substantial factor in causing the injury; and

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

(d) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life. Section 287.020, RSMo 1994.

The claimant bears the burden of proving that not only did an accident occur, but it resulted in injury to him. Thorsen v. Sachs Electric Co., 52 S.W.3d 611, 621 (Mo.App. W.D. 2001); Silman v. William Montgomery \& Associates, 891 S.W.2d 173, 175 (Mo.App. E.D. 1995); McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo.App. E.D. 1994). For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. Silman, supra. The testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause, and extent of disability when the facts fall within the realm of lay understanding. Id. Medical causation, not within the common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. McGrath, supra. Where the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of preexisting disability and its extent, the proof of causation is not within the realm of lay understanding nor -- in the absence of expert opinion -- is the finding of causation within the competency of the administrative tribunal. Silman, supra at 175, 176. This requires claimant's medical expert to establish the probability claimant's injuries were caused by the work accident. McGrath, supra. The ultimate importance of the expert testimony is to be determined from the testimony as a whole and less than direct statements of reasonable medical certainty will be

sufficient. Id.

On October 16, 2002, the claimant felt a sudden severe pain in his low back while cutting a large piece of three hundred fifty to four hundred pound granite for a hearth and trying to put a huge slab onto a machine. He testified that his back felt that it was "broken". The claimant suffered prior low back strains and sprains in the twelve years working for this employer before the occurrence. Dr. Cohen diagnosed multiple lumbar disc protrusions, left lumbar radiculopathy, and lumbar myofascial pain disorder, and opined that the diagnoses were a direct result of the occurrence and that the work was a substantial factor in the additional disability. See Dr. Cohen deposition, Exhibit B. He also opined that the claimant suffered a thirty percent permanent partial disability to his low back as a result of the occurrence. Dr. Wagner opined that the claimant suffered a ten percent permanent partial disability to his low back as a result of the occurrence. See Dr. Wagner deposition, page 16. The claimant had met his burden of proof on this issue and is entitled to a finding of compensability.

The statutory duty for the employer is to provide such medical, surgical, chiropractic, and hospital treatment ... as may be reasonably required after the injury. Section 287.140.1, RSMo 1994.

The intent of the statute is obvious. An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. It is only when the employer fails to do so that the employee is free to pick his own provider and assess those against his employer. However, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment. Blackwell v. Puritan-Bennett Corp., 901 S.W.2d 81, 85 (Mo.App. E.D. 1995).

The method of proving medical bills was set forth in Martin v. Mid-America Farmland, Inc., 769 S.W.2d 105 (Mo. banc 1989). In that case, the Missouri Supreme Court ordered that unpaid medical bills incurred by the claimant be paid by the employer where the claimant testified that her visits to the hospital and various doctors were the product of her fall and that the bills she received were the result of those visits.

We believe that when such testimony accompanies the bills, which the employee identifies as being related to and are the product of her injury, and when the bills relate to the professional services rendered as shown by the medical records and evidence, a sufficient, factual basis exists for the Commission to award compensation. The employer, may, of course, challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question. Id. at 111, 112.

The claimant incurred expenses of $\ 3,584.00 for pain management for his low back condition from Dr. Guarino. See Exhibit H. Dr. Guarino detailed the treatment in his deposition and testified that the accident was a substantial factor in the condition that he treated. See Dr. Guarino deposition, page 14. Dr. Cohen opined that pain management was indicated. See Dr. Cohen deposition, page 17. Dr. Wagner opined that pain management was not indicated, because the time to provide medical care had passed. See Dr. Wagner deposition, pages 17, 18. Based on the weight of the evidence and Dr. Guarino's expertise in this field, the treatment was indicated and a result of the accident. The claimant testified that the employer offered no other medical treatment. The claimant has met his burden of proof on this issue and is awarded \$3,584.00.

Awards may and often do include an allowance for the expense of reasonable future medical care and treatment. Rana v. Landstar TLC, 46 S.W.3d 614, 622 (Mo. App. W.D. 2001). Future medical care and treatment are provided for in Section 287.140.1, which states:

In addition to all other compensation, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

This statute has been interpreted to mean that a claimant is entitled to compensation for care and treatment "which gives comfort [relieves] even though restoration to soundness [cure] is beyond avail." Id. Of course, the appellant bears the burden to prove an entitlement to benefits for such care and treatment. Id. To prove an entitlement to workers' compensation benefits for future medical care and treatment, an employee must show something more than a possibility that he will need such medical care and treatment. Id. However, the claimant is not required to present evidence demonstrating with absolute certainty a need for future medical care and treatment. Id. Rather, it is sufficient for the claimant to show his/her need for additional medical care and treatment by a "reasonable probability." Id. "'Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt." Id. "In determining whether this standard has been met, the court should resolve all doubt in favor of the employee." Id. "[A] claimant is not required to

present evidence of specific medical treatment or procedures which will be necessary in the future in order to receive an award for future medical care." Id. Such a requirement could "put an impossible and unrealistic burden" upon the claimant. Id. The only requirement is that the finding of a need for future medical care and treatment be shown to be reasonably probable and be founded upon reason and experience. Id. To merit an award for future medical care, there must be evidence of a "subsistent condition of injury and a need of treatment proven beyond speculation by competent and substantial evidence...and a causal flow between the original and compensable injury and the subsistent condition." Williams v. A.B. Chance Company, 676 S.W.2d 1, 4 (Mo.App. 1984). The mere possibility of need of future care does not constitute substantial evidence to support an award of future care. See Modlin v. Sun Mark, Inc., 699 S.W.2d 5, 7 (Mo.App. 1985).

"The worker's compensation act permits the allowance for the cost of future medical treatment in a permanent partial disability award." Sharp v. New Mac Electric Cooperative, 92 S.W.3d 351, 354 (Mo. App. S.D. 2003), overruled on other grounds. There is no requirement for a claimant to prove specific medical treatment will be required in order for payment of future medical expenses to be made available. Id. What is required is proof there is a "reasonable probability" that additional medical care will be needed to treat the work-related injury. Id.

The claimant seeks two aspects for future medical care based on Dr. Cohen's recommendations, (1) pain management and if that didn't work, then (2) "surgery that was recommended by Dr. Wagner." See Dr. Cohen Deposition, page 17. With respect to pain management, the claimant received three pain management injections from Dr. Guarino in January 2004, which provided short-term relief, at best. However, Dr. Guarino offered no opinion whether further pain management treatment was indicated. See Dr. Guarino deposition, page 32. On the other hand, he testified, "More likely than not" the claimant will have to have more treatment in the future. See Dr. Guarino deposition, page 14. He did not specify the procedures that are or may be indicated. Dr. Guarino would appear to have the expertise regarding whether further pain management procedures would be medically indicated.

Looking to the second aspect, the surgical option, the claimant declined the surgical procedure, and Dr. Wagner testified that the time for the surgical repair has passed. Given Dr. Wagner's credentials as an orthopedic surgeon, his findings are entitled to more weight than those of the claimant or the other experts.

In its brief, the defense contends that the claimant's future medical requirements are not a product of the work related accident exclusively:

Even if future medical care is deemed necessary, to secure an award of future medical benefits, claimant must show by a reasonable probability that he is in need of additional medical treatment by reasonof his work related accident. Bock v. Broadway Ford Truck Sales, 55 S.W.3d 427, 437 (Mo.App. E.D. 2001). Claimant has failed to meet this burden of proof. Dr. Guarino testified that within a reasonable degree of medical certainly, the condition of the claimant's back was a result of the combination of wear and tear over time, aging, genetics, and two prior back injuries in addition to the 10/16/02 injury. See Dr. Guarino deposition, page 33. This work accident would not be the reason for additional treatment, rather, the combination of his past medical history and problems would he the need for treatment.

On the other hand, the work accident does not have to be the sole factor compelling the medical treatment. The legal standard appears to be satisfied if the work was a substantial factor causing the need for the medical treatment. Dr. Guarino testified that the prior pain management procedures that he performed were indicated as a result of the accident. See Dr. Guarino deposition, page 14. Dr. Cohen testified that over eighty five percent of the claimant's permanent partial disability to his low back from the accident resulted from the accident. See Dr. Cohen deposition, Exhibit B. The defense offered no contrary evidence. Based on the evidence the claimant requires future medical treatment by way of pain management, because his work related accident was a substantial factor causing the need for future medical treatment. The claimant is awarded pain management as future medical to be performed by a medical provider selected by the employer. However, based on the findings of the orthopedic surgeon, no surgery is indicated.

When an employee is injured in an accident arising out of and in the course of his employment and is unable to work as a result of his or her injury. Section 287.170, RSMo 2000, sets forth the TTD benefits an employer must provide to the injured employee. Section 287.170.7, RSMo 2000, defines the term "total disability" as used in workers' compensation matters as meaning the "inability to return to any employment and not merely mean[ing the] inability to return to the employment in which the employee was engaged at the time of the accident." The test for entitlement to TTD "is not whether an employee is able to do some work, but whether the employee is able to compete in the open labor market under his physical condition." Thorsen v. Sachs Electric Co., 52 S.W.3d 611, 621 (Mo.App. W.D. 2001). Thus, TTD benefits are intended to cover the employee's healing period from a work-related accident until he or she can find employment or his

condition has reached a level of maximum medical improvement. Id. Once further medical progress is no longer expected, a temporary award is no longer warranted. Id. The claimant bears the burden of proving his entitlement to TTD benefits by a reasonable probability. Id.

In this case, the defense paid temporary total disability benefits from the date of the occurrence through October 3, 2003. Before terminating payment of benefits, the claimant disputed the reasonableness of a myelogram, an invasive test to determine whether a surgical repair of the injury was indicated. Dr. Wagner testified that a myelogram was essential in this case since the herniated disc had a strange configuration. See Dr. Wagner Deposition, page 25. The myelogram would put contrast material in the neural canal. Dr. Wagner claimed that while he could not guarantee anything, the dangers of a myelogram were extremely small and it was now, through technological advancement, a benign procedure. See Dr. Wagner Deposition, page 14. Dr. Cohen testified that the myelogram would be important in identifying the level at which the claimant's problems were occurring. See Dr. Cohen Deposition, page 19. Dr. Cohen further noted that since claimant was having problems in his legs, surgery is helpful in that situation. See Dr. Cohen Deposition, page 18. Nonetheless, the claimant refused all invasive procedures. On August 22, 2003, Dr. Wagner opined that the claimant was at maximum medical improvement, because the claimant refused treatment.

Based on this, the defense argued in its brief:

Claimant's refusal of the myelogram was unreasonable and therefore the employer had a right to terminate benefits when Dr. Wagner, on August 22, 2003, indicated that the claimant was at maximum medical improvement since the claimant was refusing treatment. However, the employer waited until Oct 13, 2003 to terminate TTD benefits. The employer, if anything, should be entitled to a credit for the extra TTD that was paid to the employee from 8/22/03-10/13/03.

On the other hand, the claimant sought additional treatment for pain management from January 14 to April 15, 2004, from Dr. Guarino. On January 14, 2004, Dr. Guarino opined that the claimant was not at maximum medical improvement and that refusal of Dr. Wagner's surgical option was reasonable. See Dr. Guarino deposition, Exhibit B-2. However, Dr. Guarino's last consultation was on April 15, 2004, and the claimant has not been under active medical treatment since then. Further, Dr. Guarino reported that the injections did not provide much relief. See Dr. Guarino deposition, Exhibit G.

Based on the above, the claimant is awarded 26-3/7 weeks of temporary total disability benefits from October 14, 2003, through April 15, 2004. Based on Dr. Guarino's finding that refusal of surgical repair was reasonable, the claimant's medical care should not be isolated to surgery. Although Dr. Guarino found that the claimant was not at maximum medical improvement in January 2004, the claimant stopped medical treatment on April 15, 2004, marking the end of his medical treatment for this condition. The remaining treatment appears to be for reducing the pain associated with the claimant's condition.

Workers' compensation awards for permanent partial disability are authorized pursuant to section 287.190. "The reason for [an] award of permanent partial disability benefits is to compensate an injured party for lost earnings." Rana v. Landstar TLC, 46 S.W.3d 614, 626 (Mo. App. W.D. 2001). The amount of compensation to be awarded for a PPD is determined pursuant to the "SCHEDULE OF LOSSES" found in section 287.190.1. "Permanent partial disability" is defined in section 287.190 .6 as being permanent in nature and partial in degree. Further, "[a]n actual loss of earnings is not an essential element of a claim for permanent partial disability." Id. A permanent partial disability can be awarded notwithstanding the fact the claimant returns to work, if the claimant's injury impairs his efficiency in the ordinary pursuits of life. Id. "[T]he Labor and Industrial Relations Commission has discretion as to the amount of the award and how it is to be calculated." Id. "It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered." Id. In a workers' compensation case in which an employee is seeking benefits for PPD, the employee has the burden of not only proving a work-related injury, but that the injury resulted in the disability claimed. Id.

In a workers' compensation case, in which the employee is seeking benefits for PPD, the employee has the burden of proving, inter alia, that his or her work-related injury caused the disability claimed. Rana, 46 S.W.3d at 629. As to the employee's burden of proof with respect to the cause of the disability in a case where there is evidence of a pre-existing condition, the employee can show entitlement to PPD benefits, without any reduction for the pre-existing condition, by showing that it was non-disabling and that the "injury cause[d] the condition to escalate to the level of [a] disability." Id. See also, Lawton v. Trans World Airlines, Inc., 885 S.W.2d 768, 771 (Mo. App. 1994) (holding that there is no

apportionment for pre-existing non-disabling arthritic condition aggravated by work-related injury); Indelicato v. Mo. Baptist Hosp., 690 S.W.2d 183, 186-87 (Mo. App. 1985) (holding that there was no apportionment for pre-existing degenerative back condition, which was asymptomatic prior to the work-related accident and may never have been symptomatic except for the accident). To satisfy this burden, the employee must present substantial evidence from which the Commission can "determine that the claimant's preexisting condition did not constitute an impediment to performance of claimant's duties." Rana, 46 S.W.3d at 629. Thus, the law is, as the appellant contends, that a reduction in a PPD rating cannot be based on a finding of a pre-existing non-disabling condition, but requires a finding of a pre-existing disabling condition. Id. at 629, 630. The issue is the extent of the appellant's disability that was caused by such injuries. Id. at 630.

The standard for determining whether Claimant was permanently and totally disabled is whether the person is able to compete on the open job market, and the key test to be answered is whether an employer, in the usual course of business, would reasonably be expected to employ the person in his present physical condition. Joultzhouser v. Central Carrier Corp., 936 S.W.2d 908, 912 (Mo.App. S.D. 1997). "Total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Section 287.020.7, RSMo 2000. The test for permanent total disability is whether, given the claimant's situation and condition, he or she is competent to compete in the open labor market. Sutton v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 Mo.App. 2001). The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hired. Id.

Dr. Cohen diagnosed multiple disc protrusions, left lumbar radiculopathy, and lumbar myofascial pain disorder as a result of the accident resulting in a thirty percent additional permanent partial disability to the claimant's low back. See Dr. Cohen deposition, Exhibit B. Dr. Guarino did not rate the claimant's disability, but he assessed sciatica and degenerative disc disease. See Dr. Guarino deposition, page 32. He testified that the claimant's low back condition "was a result of a combination of wear and tear over time, aging, genetics, and his health history of the two prior back injuries an this traumatic event that occurred on 10-16-02. See Dr. Guarino disposition, page 33. Dr. Wagner opined that the claimant suffered a ten percent permanent partial disability to the claimant's low back as a result of the accident. See Dr. Wagner deposition, page 16 .

The claimant takes the position that he is unemployable in the open labor market and, therefore, eligible for permanent total disability benefits. However, the claimant has the burden to prove eligibility for permanent total disability benefits but elected not to offer any expert evidence to support his position. The record reveals no medical or vocational evidence compelling a finding that the claimant cannot return to work or that no employer would hire him for any position. He has not looked for work, applied for Social Security Disability, or sought vocational rehabilitation. Every medical doctor that examined the claimant opined that the claimant could speak English and that the doctors could understand him. He has been in the United States since 1978 and is a U.S. Citizen. He has had previous supervisory positions. He testified that he does drive and has even driven to Chicago since the date of accident. He does not have any restrictions on his ability to drive. All of the experts opined that the claimant was unable to return to his prior occupation and generally restricted him to medium or light duty. Although the claimant has been unemployed since the accident, none of the experts opined that the claimant was unemployable in the open labor market.

Based on the evidence as a whole, the claimant suffered a twenty percent permanent partial disability to his low back as a result of the work related accident, and the claimant is awarded permanent partial disability benefits in that amount.

To recover against the Second Injury Fund based upon two permanent partial disabilities, the claimant must prove the following:

1. The existence of a permanent partial disability preexisting the present injury of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed. Section 287.220.1, RSMo 1994; Leutzinger v. Treasurer, 895 S.W.2d 591, 593 (Mo.App. E.D. 1995).
2. The extent of the permanent partial disability existing before the compensable injury. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. W.D. 1999).
3. The extent of permanent partial disability resulting from the compensable injury. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. W.D. 1999).
4. The extent of the overall permanent disability resulting from a combination of the two permanent

partial disabilities. Kizior v. Trans World Airlines, 5 S.W.3d 195, 200 (Mo.App. W.D. 1999).

1. The disability caused by the combination of the two permanent partial disabilities is greater than that which would have resulted from the pre-existing disability plus the disability from the last injury, considered alone. Searcy v. McDonnell Douglas Aircraft, 894 S.W.2d 173, 177 (Mo.App. E.D. 1995).
2. In cases arising after August 27, 1993, the extent of both the preexisting permanent partial disability and the subsequent compensable injury must equal a minimum of fifty weeks of disability to "a body as a whole" or fifteen percent of a major extremity unless they combine to result in total and permanent disability. Section 287.220.1, RSMo 1994; Leutzinger, supra.

To analyze the impact of the 1993 amendment to the law, the courts have focused on the purposes and policies furthered by the statute:

The proper focus of the inquiry as to the nature of the prior disability is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition. That potential is what gives rise to prospective employers' incentive to discriminate. Thus, if the Second Injury Fund is to serve its acknowledged purpose, "previous disability" should be interpreted to mean a previously existing condition that a cautious employer could reasonably perceive as having the potential to combine with a work related injury so as to produce a greater degree of disability than would occur in the absence of such condition. A condition satisfying this standard would, in the absence of a Second Injury Fund, constitute a hindrance or obstacle to employment or reemployment if the employee became unemployed. Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo.App. E.D. 1995).

Section 287.220 .1 contains four distinct steps in calculating the compensation due an employee, and from what source, in cases involving permanent disability: (1) The employer's liability is considered in isolation - "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability;" (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and (4) The balance becomes the responsibility of the Second Injury Fund. Nance v. Treasurer of Missouri, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).

The claimant suffered a twenty percent permanent partial disability to his low back as a result of the work related accident. On May 22, 1986, the claimant injured his left ear, head, and body as a whole due to a grinder flying off its assembly, hitting him in the head resulting in a seven percent permanent partial disability to his head in Injury No. 8651917. See Exhibit F. On June 28, 1990, and April 2, 1991, the claimant suffered low back strains in Injury Numbers 90082273 and 91-033698. See Exhibit F. However, none of the experts found any preexisting permanent partial disability from any of these conditions. Dr. Cohen opined that the claimant's prior lumbar strains "resolved" and that the claimant suffered from a preexisting five percent permanent partial disability to his low back, presumable from the claimant's degenerative condition. See Dr. Cohen deposition, Exhibit B. Dr. Cohen also found a forty percent preexisting permanent partial disability to the claimant's left elbow, based on a medical history and examination from a severe radial and ulnar fracture thirty-five years ago in his native Poland. See Dr. Cohen deposition, Exhibit B. He also opined that the claimant had a five percent preexisting permanent partial disability to his low back. See Dr. Cohen deposition, Exhibit B.

The defense contends that Dr. Cohen's rating is not accurate, because the claimant was unable to provide medical records from thirty-five years ago in Poland to corroborate his verbal medical history. However, the defense did not substantially challenge the claimant's credibility, and one can conclude that recovering thirty-five year old medical records from Poland can be very difficult, given the difficulty some have in recovering domestic medical records that are much less old.

Dr. Cohen opined that the forty percent preexisting permanent partial disability to the claimant's left elbow "combines with the primary work-related injury to create a greater overall disability than their simple sum and that his preexisting condition or disability was a hindrance or obstacle to his employment or reemployment. There are no other preexisting conditions or disabilities which in my medical opinion combine with the primary work-related injury." See Dr. Cohen deposition, Exhibit B. In this case, the overall disability exceeds the sum of the individual disabilities by fifteen percent.

Based on the evidence, the claimant is awarded 24.6 weeks of additional permanent partial disability benefits from the Second Injury Fund.

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation