James Flannery v. Breckenridge Material Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 99-079558

Employee: James Flannery

Employer: Breckenridge Material Company

Insurer: Missouri Employers Mutual Insurance

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

Date of Accident: July 9, 1999

Place and County of Accident: St. Louis County, Missouri

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by section 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Act. Pursuant to section 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 15, 2005. The award and decision of Administrative Law Judge John Howard Percy, issued August 15, 2005, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\underline{26^{\text {th }}}$ day of July 2006.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

Secretary

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: July 9, 1999
5. State location where accident occurred or occupational disease was contracted: St. Louis County, Mo.
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: Motor vehicle accident.
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: 40% permanent partial disability of body as a whole referable to low back and 10% permanent partial disability of body as a whole due to depression against employer/insurer and 9.625% permanent partial disability of body as a whole against Second Injury Fund.
15. Compensation paid to-date for temporary disability: $\ 36,072.96
16. Value necessary medical aid paid to date by employer/insurer? $\ 83,206.55

Employee: James Flannery Injury No.: 99-079558 17. Value necessary medical aid not furnished by employer/insurer? None 18. Employee's average weekly wages: $\ 883.29 19. Weekly compensation rate: $\ 578.48 PTD/TTD; $\ 303.01 PPD 20. Method wages computation: Stipulation

1. Amount of compensation payable:

1. Second Injury Fund liability: Yes

38.5 weeks of permanent partial disability from Second Injury Fund \$11,665.89

Subrogation credit due Second Injury Fund <$11,665.89>

TOTAL: <$95,,920.20>

1. Future requirements awarded: See Award

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

$\mathrm{N} / \mathrm{A}$

A hearing in this proceeding was held on January 13, 14, and 21, April 2, May 5, September 17, 2004 and April 1, 2005. All parties submitted proposed awards on July 30, 2004. The record comprises 601 pages of medical records reports, 36 pages of vocational reports, 79 pages of other documents reports, and 326 pages of medical and vocational depositions. In addition, two physicians testified at the hearing. Additional time was required in issuing this award due to the voluminous record and complexities of this case.

The parties stipulated that on or about July 9, 1999:

1.the employer and employee were operating under and subject to the provisions of the Missouri Workers' Compensation Law;

2.the employer's liability was insured by Missouri Employers Mutual Insurance Company;

3.the employee's average weekly wage was $\ 883.29;

4.the rate of compensation for temporary total disability and permanent total disability was $\ 578.46 and the rate of compensation for permanent partial disability was $\ 303.01; and

5.the employee sustained an injury by accident arising out of and in the course of employee's employment occurring in St. Louis County, Missouri.

The parties further stipulated that:

1.the employer had notice of the injury and a claim for compensation was filed within the time prescribed by law;

2.compensation for temporary total and temporary partial disability was paid in the amount of $\ 36,072.96 for various periods [1] after July 10, 1999 through January 8, 2001;

3.the employee reached maximum medical improvement and a state of permanency with respect to the work-related injury on January 9, 2001;

4.employer/insurer have paid $\ 83,206.55 in medical expenses; and

5.the employee settled a third-party tort claim pertaining to the work-related accident for $\ 800,000.00.

The issues to be resolved in this proceeding are:

1.whether some or all of the employee's current symptoms are the result of a preexisting condition or the result of the work-related accident;

2.whether the employee should be provided with any future medical treatment;

3.whether and to what extent the employer is entitled pursuant to Section 287.170.3 Mo. Rev. Stat. (2000) to a credit with respect to temporary total disability compensation for unemployment compensation paid to the employee during any period of temporary total disability;

4.the nature and extent of any permanent disability sustained by the employee as a result of the work-related injuries of July 9, 1999;

5.whether and to what extent the employee sustained any additional permanent partial or permanent total disability for which the Second Injury Fund would be liable as a result of the combination of any preexisting disabilities with the primary injuries;

6.the extent of any subrogation credit due the employer/insurer pursuant to Section 287.150.3 Mo. Rev. Stat. (2000); and

7.whether and to what extent the Second Injury Fund is entitled to a subrogation credit under section 287.220 Mo. Rev. Stat. (2000).

There is no dispute that as a result of the July 9, 1999 accident claimant sustained a herniated disk at L5-S1 which required a microdiscectomy and subsequently a laminectomy, diskectomy and fusion. James Flannery, employee herein, claims that he also developed major depression due to unrelenting back and left leg pain. Employer/insurer contend rather that his preexisting depressive personality was aggravated as a consequence of the work-related accident of July 9, 1999.

The employee must establish a causal connection between the accident and the claimed injuries. Davies v. Carter Carburetor Div., 429 S.W.2d 738 (Mo. 1968); McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Blankenship v. Columbia Sportswear, 875 S.W.2d 937, 942 (Mo. App. 1994); Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 198 (Mo. App. 1990); Cox v. General Motors Corp., 691 S.W.2d 294 (Mo. App. 1985); Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974); Smith v. Terminal Transfer Company, 372 S.W.2d 659, 664 (Mo. App. 1963).

Amendments made to Section 287.020 .2 in 1993 require that the injury be "clearly work related" for it to be compensable. An injury is clearly work related "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." The Supreme Court held in Kasl v. Bristol Care, Inc., 984 S.W.2d 852 (Mo. 1999) that the foregoing language overruled the holdings in Wynn v. Navajo Freight Lines, Inc., 654 S.W.2d 87 (Mo. 1983), Bone v. Daniel Hamm Drayage Company, 449 S.W.2d 169 (Mo. 1970), and many other cases which had allowed an injury to be compensable so long as it was "triggered or precipitated" by work. Injuries which are triggered or precipitated by work may nevertheless be compensable if the work

is found to be a "substantial factor" in causing the injury. Kasl, supra at 853. A substantial factor does not have to be the primary or most significant causative factor. Bloss v. Plastic Enterprises, 32 S.W.3d 666, 671 (Mo. App. 2000); Cahall v. Cahall, 963 S.W.2d 368, 372 (Mo. App. 1998). An accident may be both a triggering event and a substantial factor in causing an injury. Id. Subsection 2 also provides that an injury must be incidental and not independent of employment relationship and that "ordinary, gradual deterioration or progressive degeneration of the body caused by aging" is not compensable unless it "follows as an incident of employment." The extent to which the 1993 amendments have further modified prior caselaw will be determined by the appellate courts. See Cahall, supra at 372.

The quantum of proof is reasonable probability. Davies, supra at 749; Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); White v. Henderson Implement Co., 879 S.W.2d 575, 577 (Mo. App. 1994); Fischer at 199; Banner Iron Works v. Mordis, 664 S.W.2d 770, 773 (Mo. App. 1983);Griggs at 703. "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986); Fischer at 198.

Such proof is made only by competent and substantial evidence. It may not rest on speculation. Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974). Expert testimony may be required where there are complicated medical issues. Goleman v. MCI Transporters, 844 S.W.2d 463, 466 (Mo. App. 1993); Griggs at 704; Downs v. A.C.F. Industries, Incorporated, 460 S.W.2d 293, 295-96 (Mo. App. 1970). Expert testimony is required where the cause and effect relationship between the claimed injury or condition and the alleged cause is not within the realm of common knowledge. McGrath v. Satellite Sprinkler Systems, 877 S.W.2d 704, 708 (Mo. App. 1994); Brundige v. Boehringer Ingelheim, 812 S.W.2d 200, 202 (Mo. App. 1991). Expert testimony is essential where the issue is whether a preexisting condition was aggravated by a subsequent injury. Modlin v. Sun Mark, Inc., 699 S.W.2d 5 (Mo. App. 1985). The fact finder may accept only part of the testimony of a medical expert and reject the remainder of it. Cole v. Best Motor Lines, 303 S.W.2d 170, 174 (Mo. App. 1957). Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo. App. 1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo. App. 1992); Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 163 (Mo. App. 1986). An administrative law judge may not constitute himself or herself as an expert witness and substitute his or her personal opinion of medical causation of a complicated medical question for the uncontradicted testimony of a qualified medical expert. Wright v. Sports Associated, Inc., 887 S.W.2d 596 (Mo. 1994); Bruflat v. Mister Guy, Inc., 933 S.W.2d 829, 835 (Mo. App. 1996); Eubanks v. Poindexter Mechanical, 901 S.W.2d 246, 249-50 (Mo. App. 1995). However, even uncontradicted medical evidence may be disbelieved. Massey v. Missouri Butcher \& Cafe Supply, 890 S.W.2d 761, 763 (Mo. App. 1995); Jones v. Jefferson City School Dist., 801 S.W.2d 486, 490 (Mo. App. 1990).

On the other hand, where the facts are within the understanding of lay persons, the employee's testimony or that of other lay witnesses may constitute substantial and competent evidence. This is especially true where such testimony is supported by some medical evidence. Lawton v. Trans World Airlines, Inc., 885 S.W.2d 768 (Mo. App. 1994); Pruteanu v. Electro Core Inc., 847 S.W.2d 203 (Mo. App. 1993); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo. App. 1992);Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 199 (Mo. App. 1990); Ford v. Bi-State Development Agency, 677 S. W. 2d 899, 904 (Mo. App. 1984); Fogelsong v. Banquet Foods Corp, 526 S.W.2d 886, 892 (Mo. App. 1975). The trier of facts may even base its findings solely on the testimony of the employee. Fogelsong at 892. The trier of facts may also disbelieve the testimony of a witness even if no contradictory or impeaching testimony is given. Hutchinson v. Tri-State Motor Transit Co., supra at 161-2; Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo. App. 1980). The uncontradicted testimony of the employee may even be disbelieved. Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, 516 (Mo. App. 1993). Montgomery v. Dept. of Corr. \& Human Res., 849 S.W.2d 267, 269 (Mo. App. 1993).

Based on the evidence adduced at the hearing, some of which comes from the claimant's testimony, and on the medical records, I make the following findings of fact.

Claimant began working for Breckenridge Material Company, employer herein, in June of 1994. He continued to work for Employer through 1999. Among claimant's job duties was the driving of cement trucks. On July 9, 1999 while driving his cement truck claimant was involved in a collision with another vehicle. An automobile pulled in front of him and claimant hit his brakes. He struck the other vehicle going approximately 30 to 45 miles per hour. ${ }^{[2]}$ About 2-1/2 hours after the accident, claimant noticed stiffness in his low back. (Claimant's Testimony)

On the evening of July 9, 1999 claimant went to Unity Corporate Health. He complained of low back pain and thoracic spine pain. X-rays taken of his low back were essentially negative, except for borderline L5S1 disk space narrowing. He was diagnosed with a lumbosacral sprain/strain, prescribed Naprosyn and Skelaxin and returned to work with the restrictions of no lifting over 10 pounds, no repetitive motions or awkward positions, no pushing or pulling, no operating of motor vehicles and no working around hazardous machinery. Claimant was able to work with these restrictions. (Claimant's Exhibit P, Pages 6-9) Claimant returned to Unity Corporate Health on July 12, 1999. Hisback pain was better and he had no complaints of leg pain, numbness or weakness. His diagnosis remained low back strain. Claimant was to continue light duty work. (Claimant's Exhibit P, Pages 5 \& 17-19)

When claimant was seen at Unity Corporate Health on July 19, 1999, his lower back was tight, with pain moving into his left hip. Overall, employee's low back pain was better and he reported no leg symptoms. As of July 19, 1999 his diagnosis remained lumbosacral sprain/strain and claimant was to continue on modified duty. (Exhibit P, Pages 14-16) On July 29, 1999 Mr. Flannery followed up with Unity Health. He reported that his low back pain had decreased, but that he still had some residual stiffness. He was returned to regular duty. (Claimant's Exhibit P, Pages 10-12)

Claimant returned to Unity Corporate Health on August 18, 1999. He felt better, but still had some pain into his left lower back, with radiation into his buttock and thigh. The diagnosis was back strain with sciatica. Claimant was to continue on regular duty. (Claimant's Exhibit P, Pages 20-21) When employee followed up with Unity Corporate Health on September 1, 1999, he complained of back discomfort with shooting pain in left posterior thigh. He was referred to Dr. Barry Sampson. (Claimant's Exhibit P, Pages 22-23)

Dr. Richard Johnston, an orthopedist, examined claimant on September 27, 1999. Mr. Flannery complained of pain when sitting, of a pins and needles sensation in the left leg to the knee, and discomfort in the back if he lifted things in the wrong manner. Examination of the lumbar spine showed decreased range of motion in all plains. Straight leg raising was negative bilaterally. Dr. Johnston's diagnosis was low back pain and possible sciatica. He recommended an MRI of the lumbar spine, along with physical therapy. (Claimant's Exhibit I, Pages 4-5 \& 7-8)

On October 1, 1999 claimant underwent an MRI of the lumbar spine. It demonstrated "a focal disk protrusion or herniation at the L5-S1 level lateralizing to the left within the canal displacing the descending left S1 nerve root" and mild thecal sac effacement at L4-L5, with no significant disc bulge identified. (Claimant's Exhibit I, Page 9)

On October 4, 1999 Dr. Johnston examined Mr. Flannery. Employee continued to have pain in the lower back, left buttock, and left leg and a pins and needles sensation in the left leg to the knee. His range of motion was very poor. Straight leg raising was positive on the left side. Dr. Johnston's changed his impression to herniated nucleus pulposus, left side, at L5S1. He prescribed Vioxx and recommended that claimant undergo physical therapy. (Claimant's Exhibit I, Pages 34) Claimant received physical therapy three times per week at St. John's Mercy Hospital in Washington, Mo. (Claimant's Exhibit Q, Pages 18-36) Employee returned to Dr. Johnston on October 25, 1999. He still had pain in the back and down the left leg. Dr. Johnson indicated that the physical therapy report showed that claimant continued to be substantially limited in his movements. Dr. Johnston recommended that claimant undergo epidural steroid injections and continue physical therapy. Claimant was to continue full work duty. (Claimant's Exhibit I, Pages 2-3) He continued to receive physical therapy. (Claimant's Exhibit Q, Pages 14-18)

Claimant underwent an epidural steroid injection on November 1. He telephoned Dr. Johnston on November 8, 1999 and stated that he could not go to work due to leg and back pain. Dr. Johnston excused claimant from work through November 15, 1999. On November 9, 1999, claimant underwent a second epidural steroid injection. When claimant followed up with Dr. Johnston on November 15, 1999, he reported that he had not received significant improvement from the injections. Claimant had worsened over the preceding several weeks, with increasing pain in his back and leg with any sitting or driving. Straight leg raising was positive on the left side. Dr. Johnston's impression was herniated disc, L5-S1, with left sciatica. Claimant was to continue with physical therapy and Vioxx. (Claimant's Exhibit I, Page 2) He continued to receive physical therapy. (Claimant's Exhibit Q, Pages 11-13)

Mr. Flannery was reexamined by Dr. Johnston on November 29, 1999. Claimant's back was better, but he was having more problems with leg pain. Employee had occasionally experienced a sudden sharp pain that extended down his leg. Reports from physical therapy showed that claimant had made some improvement, but that he still had radicular pain and had developed significant calf atrophy during the preceding month. Dr. Johnston's impression was herniated nucleus pulposus on the left at L5-S1, with left sciatica. Claimant was to remain off work until seen by a spine surgeon. (Claimant's

Dr. David Robson, an orthopedic surgeon, first evaluated claimant on December 15, 1999. Claimant reported that he had failed conservative treatment and had been off work for the past 7 weeks. Employee complained of low back pain and radiating pain in the posterolateral aspect of his left leg. Dr. Robson reviewed claimant's October 1, 1999 MRI. It demonstrated a herniated disc at L5-S1 on the left side, impinging on the S1 nerve root. On examination, claimant had limited forward flexion of the spine. Claimant's neurological examination was normal, but he had a slight decrease in sensation in the lateral aspect of his left small toe. Dr. Robson diagnosed employee with a herniated nucleus pulposus at L5S1. He recommended a microdiscectomy at L5-S1 on the left. (Employer/Insurer's Exhibit 1, depo ex 2, pp 3-5)

Claimant underwent an MRI of his lumbar spine on December 21, 1999. It revealed a posterolateral herniation of the L5-S1 intervertebral disc to the left. (Claimant's Exhibit O \& Employer/Insurer's Exhibit 1, depo ex 2, p. 6) Dr. Robson discussed the MRI findings with employee later that day. He again recommended a microdiscectomy and kept him off work. (Employer/Insurer's Exhibit 1, depo ex 2, pp $5 \& 7$ )

Dr. Robson performed a left L5-S1 lumbar microdiscectomy on January 18, 2000. He found a moderate size, calcified disk herniation just under the nerve root. Several fragments of disk material were removed. (Claimant Exhibit J, Page 127 and Employer/Insurer's Exhibit 1, depo ex 2, p. 9) When claimant followed up on February 10, 2000, his leg pain was much improved, though he still had a positive straight leg raising test. Dr. Robson believed that claimant could begin physical therapy the following week. He kept claimant off work. (Employer/Insurer's Exhibit 1, depo ex 2, p. 8)Claimant resumed physical therapy at St. John's Mercy Hospital. (Claimant's Exhibit Q, Pages 47-66)

When Dr. Robson saw claimant on March 7, 2000, employee reported increased symptoms from physical therapy, including low back pain and mild left leg radiating pain. Claimant had a positive straight leg raise at $70^{\circ}$. His neurological examination was otherwise intact. Because claimant was not progressing to a significant degree in therapy, Dr. Robson added conditioning exercises and prescribed Prednisone. (Employer/Insurer's Exhibit 1, depo ex 2, pp $8 \&$ 13) Claimant continued to undergo physical therapy. (Claimant's Exhibit Q, Pages 43-46)

On March 21, 2000, claimant continued to complain of low back and radiating leg pain. While claimant had significant improvement of his leg pain immediately post-operatively for the first 3 or 4 weeks, his pain had progressively returned. As Dr. Robson was concerned about a possible reherniation, he scheduled an MRI. (Employer/Insurer's Exhibit 1, depo ex 2, p. 11) On March 28, 2000, claimant underwent an MRI. It demonstrated a recurrent herniated disc at L5-S1 on the left. (Claimant's Exhibit O and Employer/Insurer's Exhibit 1, depo ex 2, p. 15) Claimant continued to undergo physical therapy through April 4. Mr. Flannery complained of increasing symptoms in his low back and down the left leg. (Claimant's Exhibit Q, Pages 38-43)

Dr. Robson discussed the results of the MRI with Mr. Flannery on April 4, 2000. Mr. Flannery recalled no specific injury. Dr. Robson opined that claimant had reherniated his disc for unknown reasons. Dr. Robson recommended a repeat discectomy with an instrumented spinal fusion at L5-S1. (Employer/Insurer's Exhibit 1, depo ex 2, p. 11)

On April 21, 2000 claimant underwent a left L5-S1 laminectomy and discectomy performed by Dr. Samson and a posterior spinal fusion with left iliac crest bone graft with Steffee instrumentation at L5-S1 performed by Dr. Robson. Dr. Samson found that the S1 nerve root was encased in scar tissue and beneath the scar tissue was a calcified moveable mass consistent with a recurrent disk herniation. (Claimant's Exhibit J, Pages 19-22 and Employer/Insurer's Exhibit 1, depo ex 2, pp. 17-20)

During claimant's first post-operative visit on May 17, 2000, his neurological examination was intact. X-rays showed excellent position of plate screws and bone graft at L5-S1. Dr. Robson's impression was satisfactory post-operative progress. Claimant remained unable to work. (Employer/Insurer's Exhibit 1, depo ex 2, pp 12 \& 22) On May 23 Dr. Robson prescribed Elavil to help with sleep. (Employer/Insurer's Exhibit 1, depo ex 2, p. 23)

Dr. Jennifer Scheer, claimant's family physician, examined claimant on May 23, 2000 for bilateral foot pain. While claimant had experienced bilateral foot pain for several months before his back began hurting him, it had worsened since then. When claimant stood for any length of time, he had pain in his heels and up into his toes. Dr. Scheer's diagnosis was bilateral plantar fasciitis. ${ }^{[3]}$ (Claimant's Exhibit X; depo ex B, p. 21)

During post-operative examinations on May 30 and June 20 Dr. Robson told claimant to slowly increase his activities. (Employer/Insurer's Exhibit 1, depo ex 2, pp 23-26) When Dr. Robson examined claimant on July 25, 2000, he was functioning at a much better level than he had been in the past. Claimant's preoperative radiating leg pain was gone. He

did, however, have some occasional numbness and tingling about the feet with increased activity. Dr. Robson ordered physical therapy. (Employer/Insurer's Exhibit 1, depo ex 2, pp 26 \& 30) Claimant received physical therapy three times per week at St. John's Mercy Hospital in Washington, Mo. (Claimant's Exhibit Q, Pages 67-71 \& 93)

Dr. Robson reexamined claimant on August 22, 2000. He indicated that claimant was making slow progress in physical therapy. He noted mild left calf atrophy. X-rays showed excellent position of the fixation and graft. Dr. Robson recommended that claimant continue physical therapy for an additional month. He released claimant to 4 hour work days, with a 20 pound weight limit and no excessive twisting, bending or stooping. (Employer/Insurer's Exhibit 1, depo ex 2, pp 26, 31 \& 33) Mr. Flannery continued physical therapy three times per week through September 25. (Claimant'sExhibit Q, Pages $71-80 \& 82$ )

When Dr. Robson examined claimant on September 26, 2000, he was continuing to make progress in therapy. Claimant's neurological examination was intact. Dr. Robson started claimant in daily work conditioning. He took him off light duty. X-rays taken of claimant's back on October 24, 2000 looked excellent with good position of pedicle screws fixation. (Employer/Insurer's Exhibit 1, depo ex 2, pp 31, 35-39) Claimant returned to Dr. Robson on November 7, 2000 and complained about driving 55 miles each way to the Work Center in Fenton, Mo. Dr. Robson allowed him to return to St. John's Mercy Hospital in Washington, Mo. (Employer/Insurer's Exhibit 1, depo ex 2, p. 39)Mr. Flannery continued work conditioning at St. John's Mercy Hospital three times per week through November 14. He was then retransferred to work conditioning in Fenton. (Claimant's Exhibit Q, Pages 101-114)

Dr. Robson reexamined claimant on November 28, 2000. He noted that claimant worked in the light duty range in work hardening. He indicated that the reports showed that he provided slightly submaximal effort during the testing. ${ }^{[4]}$ X-ray showed a solid fusion at L5-S1. Dr. Robson released him to return to light duty with a weight limitation of 30 pounds and no excessive bending, stooping, twisting, or working in awkward positions. (Employer/Insurer's Exhibit 1, depo ex 2, pp 39 \& 44-45) Dr. Robson reexamined claimant on December 19. Claimant told him that he attempted to return to work and his employer sent him on vacation so employee had not yet tried to work with his restrictions. Dr. Robson again released employee to return to work with restrictions. (Employer/Insurer's Exhibit 1, depo ex 2, pp 43 \& 46)

When claimant returned to Dr. Robson on January 9, 2001, he still complained of low back pain with increased activity. He was working minimally due to winter weather. Claimant's neurological examination was intact and x-rays demonstrated a solid fusion. In Dr. Robson's opinion, claimant had reached maximum medical improvement. He opined that claimant could not function at the level required for his job as a cement truck driver. Dr. Robson released claimant with permanent restrictions in the light to moderate work category. Employee could not do repetitive bending, stooping or twisting. He had a weight limit of 30 pounds and was required to make brief position changes on anhourly basis. Dr. Robson indicated that further surgical or medical treatment would not significantly alter claimant's status. He provided a two month supply of medications. He told claimant that he could use over-the-counter medications or contact his internist. (Employer/Insurer's Exhibit 1, depo ex 2, pp 43, 47-49)

In a letter dated January 30, 2001 Dr. Scheer, Dr. Robson advised her that when he released claimant from treatment he was on Elavil, Vicodin on an occasional basis and Vioxx for inflammation. (Employer/Insurer's Exhibit 1, depo ex 2, p. 50) During Dr. Scheer's March 12, 2001 examination, claimant reported daily back pain, intermittent pain down his left leg, and occasional tingling in the bottoms of both feet. On examination, back range of motion was approximately 50 % of normal, with some discomfort. Dr. Scheer's diagnosis was chronic back pain, status post-injury and surgeries, peripheral neuropathic pain and neuropathy. She continued his Vicodin, Vioxx and Elavil. (Claimant's Exhibit X, depo ex B, p. 17)

When examined by Dr. Scheer on May 18, 2001, claimant reported that over the past six weeks, he had increasing pain in his left lower extremity. Employee described a shooting pain, starting in his left lower back, and going all the way down the back of his legs (sic?) to his toes. On examination there was decreased muscle mass in claimant's left calf and numbness and tingling in claimant's left lower extremity. Dr. Scheer's diagnosis was left leg radicular pain, in a patient with a history of low back injury status post-surgery. She again prescribed Vioxx, Elavil, and Vicodin. She contacted Dr. Robson and he recommended a Medrol DosePak. Dr. Scheer prescribed it on May 23. (Claimant's Exhibit X, depo ex B, p. 18) On June 26 employee again complained to Dr. Scheer of low back pain going down the leg. She again prescribed Vicodin, Vioxx, and Elavil. (Claimant's Exhibit X, depo ex B, p. 14) On July 17 Dr. Scheer recommended in writing that employee be reexamined by Dr. Robson. (Claimant's Exhibit X, depo ex B, p. 11)

Dr. Scheer reexamined Mr. Flannery on January 31, 2002. He reported that he continued to have chronic pain in his lower back that had increased in the preceding two weeks. He told her that the pain radiated down the left leg to his toes. He also complained of ongoing numbness and tingling in his leg. Dr. Scheer's diagnosis was chronic low back pain, status-post spinal fusion with recent exacerbation, including increasing radicular pain. She again prescribed Prednisone, Elavil, and

Vicodin. He could resume Vioxx after he finished the Medrol DosePak. (Claimant's Exhibit X, depo ex B, p. 15)

Dr. Robson reexamined claimant on February 26, 2002. Employee told him that during the preceding 13 months, he had experienced several flare ups, without any specific injury. When treated with Prednisone, his symptoms improved temporarily. Claimant was still taking narcotic pain medication. Employee complained of low back pain and left leg radiating pain. X-rays of the spine showed a solid fusion. Neurological testing was normal, with the exception of a longstanding decreased left ankle reflex. As he was concerned about residual impingement on the S1 nerve root, Dr. Robson recommended a CT myelogram. (Employer/Insurer's Exhibit 1, depo ex 2, pp 52-53)

Claimant returned to Dr. Scheer on August 2, 2002. He complained of pain primarily in the lower back that extended down the left leg into his toes. On examination, claimant's lumbar range of motion was almost zero in all planes, with extreme discomfort. Dr. Scheer's diagnosis was acute exacerbation of chronic low back pain. She prescribed Methocarbamol and Percocet. (Claimant's Exhibit X, depo ex B, p.16)

When claimant followed up with Dr. Robson on September 11, 2002, the CT myelogram had yet to be performed. Mr. Flannery was still complaining of pain in his low back, left hip, and down his left leg. X-rays showed a solid fusion at L5-S1, with no evidence of pseudoarthrosis and no significant changes in the juxtafusional area. In Dr. Robson's opinion, claimant had failed to advance his status and continued to complain of low back pain and left leg radiating pain. He again recommended a CT myelogram. (Employer/Insurer's Exhibit 1, depo ex 2, pp 55-58)

A lumbar myelogram performed on September 20, 2002 demonstrated a post-operative fusion at the L5-S1 level and diminished filling of the left L5 nerve root sheath. A CT of the lumbar spine demonstrated mild diffuse bulging of the L4-L5 disc, post-operative changes at the L5-S1 level, and diminished filling at the left L5 nerve root sheath, which appeared to be related to diffuse bulging of the L4-L5 disc with hypertrophic changes in the posterior elements and compromise of the lateral recess. There was opacification of the S1 nerve root bilaterally. There was good evidence of solid bony fusion at L5S1. (Claimant's Exhibit N \& Employer/Insurer's Exhibit 1, depo ex 2, pp 60-63)

During Dr. Robson's September 24, 2002 evaluation, Mr. Flannery complained of low back pain and occasional left hip and buttock burning pain. It was Dr. Robson's impression that claimant likely had some mild juxtafusional problems at the L4-L5 level, lateralizing to the left side. He did not think that it was a surgical lesion. He recommended that claimant consider an epidural injection at the level of the L4-L5 disc. Claimant's restrictions remained the same. (Employer/Insurer's Exhibit 1, depo ex 2, pp 64-66)

When claimant returned to Dr. Scheer on October 18, 2002, hereported that in addition to low back pain, he had recently developed pain and tightness in his upper back. On examination, lumbar range of motion was limited and caused moderate discomfort. (Claimant's Exhibit X, depo ex B, p 6)

Pursuant to Dr. Robson's recommendation, Dr. Patricia A. Hurford administered three transforaminal epidural steroid (Marcaine and Depro-Medrol) injections at the L4-L5 level on November 7, 2002, December 3, 2002, and January 14, 2003. (Claimant's Exhibits K, L, \& M and Employer/Insurer's Exhibit 1, depo ex 2, pp 70-74 \& 76-77)

As of December 31, 2002, Dr. Robson's restrictions for claimant remained the same. Claimant still had a 30 pound weight limit, and was to engage in no repetitive bending, stooping, twisting or awkward positions and was to make brief hourly position changes. These restrictions were in the light to moderate work category and claimant could function in that area. (Employer/Insurer's Exhibit 1, depo ex 2, p.75)

Mr. Flannery returned to Dr. Robson on January 28, 2003. Claimant told him that while the first two epidural steroid injections gave him mild relief, the final injection provided no relief. He complained of low back pain and left hip and buttock radiating pain. Dr. Robson scheduled a follow up MRI. Claimant's work status remained unchanged. Dr. Robson discontinued the Percocet and gave him Vicodin. (Employer/Insurer's Exhibit 1, depo ex 2, pp 78-79)

An MRI with gadolinium was performed on claimant's lumbar spine on February 3, 2003. There was mild lateralization of some material to the left within the canal at the L5-S1 level which had the appearance of scar and granulation tissue, rather than a recurrent disk herniation. There was no evidence of a disk herniation or canal stenosis at the L4-5 level; there was a very minimal diffusely bulging disk. (Employer/Insurer's Exhibit 1, depo ex 2, pp 80-81) Dr. Robson also personally reviewed those films. He testified that the bulge at L4-L5 noted on the September CT myelogram was not quite as large. There was no root impingement. It looked the same or slightly better than the CT scan which had been performed 2 months earlier. (Employer/Insurer's Exhibit 1, Pages 21-22)

Dr. Robson reexamined claimant on February 11, 2003. Mr. Flannery complained of low back pain with intermittent left leg radiating pain and intermittent numbness and tingling of his feet with increased activity. His neurologic examination was intact. Straight leg raise was negative at 90 degrees bilaterally. Dr. Robson told Mr. Flannery that he was encouraged by the MRI findings. He gave claimant a schedule for weaning himself from medication over the succeeding several months. He recommended a follow up visit in 6 months to complete claimant's weaning from his medications. Dr. Robson recommended no other form of treatment, except for the exercise program that claimant had previously been instructed to perform. His restrictions remained the same. (Employer/Insurer's Exhibit 1, depo ex 2, p. 8284) Mr. Flannery was given a Medrol DosePak March 21, 2003 for increased leg pain. (Employer/Insurer's Exhibit 1, depo ex 2, p. 85)

On April 4, 2003 Dr. Scheer reexamined claimant. He reported that his back had been giving him increased difficulty over the preceding two months. The pain was primarily in his mid-back. He could not sit for any length of time and had to constantly switch positions. Claimant was using a TENS unit and sometimes had to wear it all day. ${ }^{[5]}$ He was taking 4-6 Vicodin a day and used Percocet for breakthrough pain. Additionally, claimant took Vioxx every day and Methocarbamol when needed. Employee's concentration was poor and he was very forgetful. He felt depressed and anxious. Dr. Scheer diagnosed claimant with muscular thoracic back pain, likely secondary to altered back mechanics from claimant's lower back pain and surgery. She felt that he had several symptoms of major depression. She recommended that he continue with the TENS unit, daily Vioxx, and Percocet for breakthrough pain. She discontinued Vicodin and prescribed Tramadol. She increased his amitriptyline (Elavil) to 200 mg . for insomnia and depression. (Claimant's Exhibit X, depo ex B, p. 1)

Claimant returned to Dr. Robson on June 26, 2003. He still complained of low back pain and radiating pain down the posterior aspect of his left leg, which had not changed in some time. Employee's neurologic examination was normal, and his strength was intact. X-rays looked excellent, with a solid fusion at L5-S1 and no interval collapse or disc change at L4L5 level. While claimant's scans showed some changes at L4-L5 above the fusion, Dr. Robson did not see any surgical lesion. In Dr. Robson's opinion, there was nothing else to offer claimant surgically or medically, other than medication. He renewed his Elavil, Vioxx, and Vicodin. Claimant's work restrictions remained unchanged. (Employer/Insurer's Exhibit 1, depo ex 3, p. 1) On August 18, 2003 claimant was given a prescription for Medrol DosePak for back and leg pain. (Employer/Insurer's Exhibit 1, depo ex 3, p. 3)

Dr. Robson reexamined claimant on October 7, 2003. Mr. Flannery indicated that the Medrol DosePak helped for a recent flare-up. A neurologic exam of both lower extremities remained intact. In Dr. Robson's opinion, claimant's condition was unchanged. Dr. Robson did not alter claimant's restrictions. He indicated that if employee had another flare up, 1 to 2 visits to physical therapy might be of benefit. Other than that, Dr. Robson had no additional treatment recommendations. (Employer/Insurer's Exhibit 1, depo ex 3, p. 4) On December 5 claimant was given an NSAID for a flare up of back and leg pain. (Employer/Insurer's Exhibit 1, depo ex 3, p. 5)

Claimant returned to Dr. Robson on August 11, 2004. His neurologic examination remained intact. His x-rays looked excellent. Employee's restrictions remained the same. Dr. Robson renewed his medications and planned to see him again in six months for an x-ray. (Claimant's Exhibit GG)

Dr. Robson reexamined claimant on February 9, 2005. Employee complained of low back pain and intermittent leg radiating pain. His neurologic examination remained intact. His x-rays looked excellent. There were no juxtafusional changes. Straight leg raise showed minimally tight hamstrings at 90 degrees bilaterally. He prescribed two weeks of physical therapy three times per week to help with soreness due to weather changes. He prescribed Bextra, Zantac, Norco (acetaminophen and hydrocodone), Percocet, and Elavil ( 100 mg .). Dr. Robson planned to see employee again in six months. (Claimant's Exhibit HH)

Dr. Ronald E. Hoffmann, a retired orthopedic surgeon, testified at the hearing on behalf of claimant. His written reports were admitted into evidence. He evaluated claimant on November 17, 2003. Claimant walked with a slight limp, favoring his left lower extremity. He complained of pain down the spine from his neck to his sacrum and of painful feet. On physical examination, employee had forward flexion to $30^{\circ}$, and came within 3 or 4 feet of touching his fingertips to the floor. Claimant had weakness of the toe and ankle extensors in the left ankle and diminished sensation in the left lower extremity below the knee and left calf atrophy. (Claimant's Exhibit F-1, Page 2)

Medical reports reviewed by Dr. Hoffmann revealed that claimant had continuing problems with his low back, left hip, left leg and radiating leg pain. While Dr. Hoffman did not explicitly state his diagnoses of the work-related injuries, he appeared to adopt the diagnoses made by Dr. Robson. ${ }^{[6]}$ It is assumed that he agreed with Dr. Robson's opinion that the

work-related accident caused a herniated disk at L5-S1 which required a microdiscectomy and subsequently required a laminectomy, discectomy, and fusion. Dr. Hoffman testified that the post myelogram CT scan showed that there were some juxtafusional changes occurring at the L4-5 level. The records of Dr. Hurford showed that claimant received epidural steroid injections at the L4-5 level. The subsequent MRI showed that the bulge was slightly better and that there was no nerve root impingement. Dr. Hoffman opined that there was a medical basis to say that the L4-5 level has been affected by the L5-S1 fusion.

Claimant had multiple other complaints of depression and severe psychotic problems, including suicidal tendencies. Dr. Hoffman testified that there was a question as to whether a portion of claimant's psychiatric problems were present prior to the accident. According to Dr. Hoffmann there was no doubt that claimant's psychiatric condition was at least aggravated by his injury of July 9, 1999. (Claimant's Exhibits F, Page 4 and F-1, Page 3) On cross examination he stated that this opinion was based on the records of Drs. Shuter and Mangelsdorf.

Dr. Robson testified by deposition on behalf of employer/insurer on December 18, 2003. He opined that as a result of the July 9, 1999 work-related accident claimant sustained a herniated disk at L5-S1, underwent a microdiscectomy, sustained a recurrent herniation at L5-S1, underwent a spinal fusion, and had some chronic low back pain as a result of some mild degenerative changes at L4-5. ${ }^{[7]}$ (Employer/Insurer's Exhibit 1, Pages 9, 26 \& 66) On cross examination when asked about employee's claim that he needed help from his wife to put on his socks and shoes, Dr. Robson stated that it demonstrated dependent behavior rather than more symptomatology. (Employer/Insurer's Exhibit 1, Page 51) He opined that claimant did not have any loss of motion at the L4-5 level as the most recent MRI showed that the L4-5 disk was only minimally degenerative. (Employer/Insurer's Exhibit 1, Pages 47-49) Dr. Robson acknowledged that in late December of 2002 he recommended steroid injections in the L4-5 level because of increased symptoms. Dr. Robson assumed that the symptoms were coming from the L4-5 segment because the L5-S1 segment looked fine and there were mild degenerative changes and a disk bulge at L4-5. (Employer/Insurer's Exhibit 1, Pages 20 \& 54) He stressed that the findings at the L4-5 level by the CT myelogram and MRI were mild. (Employer/Insurer's Exhibit 1, Page 67)

Dr. Scheer testified by deposition on behalf of employee on April 16, 2003. She indicated that she and Mr. Flannery discussed the issue of depression on April 4, 2003. She has not formally diagnosed him with depression, nor has she prescribed any medications for depression. (Claimant's Exhibit X, Page 41)

Dr. Thomas K. Mangelsdorf, a psychiatrist, testified by deposition on behalf of employee on October 24, 2003. He reviewed the medical records of Drs. Johnston, Robson, Hurford, Scheer, Samson and Julian Berk, and the physical therapy and work hardening records and evaluated employee on two days in June of 2003.

Claimant related that he never had any previous psychiatric complaints or treatment. While employee reported chemical abuse in his school days, this had not been a problem in recent years. (Claimant's Exhibit G, depo ex B, Page 2)

Employee reported that he had a dysfunctional family. His father was an alcoholic and emotionally abusive to him, damaging claimant's self-esteem. He stated that had his father not lowered his self-esteem, he would have been more successful. Claimant had a poor relationship with his siblings. Over the years, claimant's parents had separated on at least two occasions. In providing his history, claimant did not tell Dr. Mangelsdorf about his father being home bound, or about his mother having a stroke and being in a wheelchair. Nor did claimant tell Dr. Mangelsdorf that he had a poor relationship with his mother. (Claimant's Exhibit G, Pages 33-34 \& depo ex B, p. 7)

Claimant described "a stormy school history". While claimant was a slow learner, he did eventually graduated. (Claimant's Exhibit G, depo ex B, Page 3) He had learning difficulties at school and had to attend summer school much of the time. (Claimant's Exhibit G, Pages 8-9)

Claimant described his home life at the time of his interview as disturbed. He was grouchy and irritable and had a great deal of trouble accepting his dependency. Claimant depended on his step-son, who helped him with many tasks at home. His wife, Lori, worked part time and they were living off of Lori's salary, along with some savings that claimant had accumulated over the years. (Claimant's Exhibit G, depo ex B, Page 3)

Dr. Mangelsdorf performed a mental status examination. Claimant's performance was wanting in a number of ways. "His thoughts and movements [were] slow. He was dull and befuddled." Mr. Flannery was alert, but not really attentive. He had trouble repeating 6 digits. However, he could reverse 5 digits. Claimant stated that he did not catch on easily and had always been a poor reader and poor speller, and that he reversed letters. (Claimant's Exhibit G, depo ex B, Page 5)

Since claimant complained of poor concentration, Dr. Mangelsdorf administered three concentration tests - the "A"

test, the 2 tap test and the serial 7's test. Dr. Mangelsdorf indicated that claimant did poorly on these tests, "confirming that he had a great deal of trouble concentrating, focusing and attending.". (Claimant's Exhibit G, Pages 30-31) Overall, claimant gave the impression of a limited or dull normal intelligence. Dr. Mangelsdorf suggested that this impression could be due to claimant's depressed mood, poor focus and dyslexia. (Claimant's Exhibit G, depo ex B, Page 6)

Dr. Mangelsdorf indicated that Mr. Flannery saw himself as "paranoid". Claimant previously associated with a bad crowd and consumed a lot of alcohol and methamphetamines and got into trouble. Since dissociating with his old companions, employee has felt that they were somehow out to get him. He could not explain why he felt that way. (Claimant's Exhibit G, depo ex B, Page 6)

Dr. Mangelsdorf found evidence of hallucinations. Employee reported that his wife's sister Michelle committed suicide and that whenever he went to her house or to his father-in-law's house, he saw a color vision of Michelle and heard her voice saying: "don't be an ass" or "don't do it." (Claimant's Exhibit G, depo ex B, Pages 6-7)

Dr. Mangelsdorf found claimant's mood and affect to be quite disturbed. He was withdrawn and seemed anxious and uncomfortable. Employee was very upset with his situation in life. While claimant never once referred to himself as depressed, he appeared depressed and admitted to suicidal ideas. Dr. Mangelsdorf felt that employee had remarkably little insight into the severity of his emotional condition. Rather, claimant focused instead on his back, leg and foot pain. He felt that claimant's judgment was questionable. (Claimant's Exhibit G, depo ex B, Page 7)

Dr. Mangelsdorf thought that claimant had a distinct problem focusing and concentrating, both subjectively and as demonstrated by objective tests. He was unable to manage a checking account and was found to be unable to do a desk job when he went back to work after his injury. Dr. Mangelsdorf described him as "miserable, socially withdrawn, dependent on family and altogether deteriorated." (Claimant's Exhibit G, depo ex B, Page 8)

Dr. Mangelsdorf concluded that claimant had become very depressed as a result of his physical injury and surgeries. Dr. Mangelsdorf noted that employee was very limited physically and this limitation had a lot of psychological repercussions. Employee felt worthless because he did not contribute financially to his family and they took care of him. He was in constant pain, though it fluctuated from day to day. Dr. Mangelsdorf described claimant as "very disorganized". He was late whenever he went somewhere and could not follow instructions. Claimant could not focus or concentrate. He was grouchy and irritable at home. His back injury interfered with his sexual life. He told Dr. Mangelsdorf that he had lost hope for the future and entertained the idea of suicide. (Claimant's Exhibit G, Pages 7-8)

Before the July 1999 accident, claimant was actively employed. He told Dr. Mangelsdorf that he was no longer able to balance his checkbook. His wife had taken over many duties. Dr. Mangelsdorf felt that "all of this" had led to a profound impairment of claimant's emotional life, and combined with the problems that claimant had before July 1999, including school problems and learning difficulties. (Claimant's Exhibit G, Page 8)

Dr. Mangelsdorf administered the Rey II test to determine if claimant was malingering. Claimant was given a small piece of paper with 15 designs on it. He was asked to look at it for a very brief period of time. The paper was taken away and claimant was asked to reproduce the designs on a sheet of paper. (Claimant's Exhibit G, Pages 14-15) Initially, Dr. Mangelsdorf concluded that claimant gave a good performance on the Rey II, getting 12 out of 15 designs right, and that there was no evidence of employee trying to do poorly or look incompetent. (Claimant's Exhibit G, depo ex B, Page 9) On cross examination, Dr. Mangelsdorf reviewed the test that claimant completed and noted that he had reproduced only 9 of the designs. This was a borderline result and it caused Dr. Mangelsdorf to wonder if claimant was trying to look incompetent. (Claimant's Exhibit G, Pages 26-27 and depo ex 1)

While Dr. Mangelsdorf administered the MMPI-2, claimant could not cooperate sufficiently to produce a valid, interpretable test. Test participants were told to answer all of the questions and not to write on the answer sheet. Claimant could not carry out these instructions. He left 19 questions unanswered on the test and wrote on his test booklet. (Claimant's Exhibit G, Pages 11-12 \& 28 and depo ex B, p. 9) On cross examination Dr. Mangelsdorf admitted the profile indicated that Mr. Flannery answered an unusually large number of extreme items in a deviant direction suggestive of an indiscriminate and exaggerated response pattern. It noted that the test results suggested conscious distortion or faking. Dr. Mangelsdorf, however, thought that the test results showed that employee was very confused and inattentive. (Claimant's Exhibit G, Pages 29-30)

In Dr. Mangelsdorf's opinion, the MMPI-1 was outdated because of the type of questions that were asked and the way it was scored. The normative population on which the test was based had changed over the years. (Claimant's Exhibit G, Pages 10-11) One of the criticisms of the MMPI-1 was that it did not include a diverse enough group. However, he

acknowledged claimant, as a white male from a rural community, would probably fall into the group that was initially tested. (Claimant's Exhibit G, Page 20)

Based upon his evaluation, record review, mental status examination and testing, Dr. Mangelsdorf reached several diagnoses. The Axis I diagnoses were major depression, single prolonged episode, severe, with psychotic and suicidal features and dyslexia. Dr. Mangelsdorf was not aware if claimant had previous depressive episodes. He could not rule out that claimant had a preexisting depressive disorder as a result of his family history. (Claimant's Exhibit G, Pages 35-36) Axis II - none. As to Axis III, Dr. Mangelsdorf's diagnosis was history of spinal injury with symptoms at L4, L5 and S1, with status post-discectomy and spinal fusion, headaches, and hypertensive cardiovascular disease. The Axis IV diagnosis was severe problems in adjusting to life after a work-related motor vehicle accident. Axis V was the global assessment of functioning (GAF) scale. Claimant's GAF was 28 out of 100 . This number meant that claimant's behavior was influenced by delusions and hallucinations, with serious impairment in communication and judgment, substantial suicidal preoccupation, and inability to function in almost all areas of work, social life, and family life. (Claimant's Exhibit G, depo ex B, p. 9)

As Dr. Mangelsdorf admitted that a GAF rating of 30 referred to a person considerably influenced or having a serious impairment in communication or judgment, sometimes incoherent, having suicidal preoccupations or an inability to function in almost all areas. In Dr. Mangelsdorf's opinion, claimant was slightly worse than that. (Claimant's Exhibit G, Page 60) While he concluded that some of claimant's behavior was influenced by his delusions and hallucinations, Dr. Mangelsdorf agreed that those delusions and hallucinations were present prior to 1999. (Claimant's Exhibit G, Pages 61-62) On cross examination by the Second Injury Fund Dr. Mangelsdorf was not sure when the hallucinations began. (Claimant's Exhibit G, Pages 71-72) ,Dr. Mangelsdorf opined that Mr. Flannery acted grossly inappropriately simply because employee was unorganized and was late all the time. Upon reconsidering his rating, Dr. Mangelsdorf stated that claimant's GAF could be in the low 30's, or even 40 . Nevertheless, he was still very disabled. (Claimant's Exhibit G, Pages 63-65)

Dr. Mangelsdorf concluded that as of July 9, 1999 claimant was free of any psychiatric problems, except for his dyslexia. While claimant had no previous psychiatric treatment, he now suffered from a profound psychiatric disorder. Dr. Mangelsdorf opined that claimant's major depression with psychotic features had arisen because of his difficulty adjusting in life and the forced helplessness that his physical condition has caused. (Claimant's Exhibit G, depo ex B, p. 10) Dr. Mangelsdorf concluded that the pain from claimant's back injury played a role in his psychiatric disability. (Claimant's Exhibit G, Pages 47-48)

On one hand, Dr. Mangelsdorf acknowledged that claimant had a history of prior problems in his family life, which could lead to long term psychological or psychiatric problems. (Claimant's Exhibit G, Pages 20-21) On the other hand, Dr. Mangelsdorf did not see any difference between a functional family and a dysfunctional family as it pertained to a person's long term mental health. He did not know whether the fact that claimant had an alcoholic and emotionally abusive father and a poor relationship with his siblings were the kind of factors that could lead to long term psychiatric difficulties. (Claimant's Exhibit G, Pages 22-24)

Dr. Wayne Stillings, a psychiatrist, testified at the hearing on behalf of employer/insurer. He evaluated claimant on September 9, 2003. Claimant reported pain in his low back and left hip, radiating into the left lower extremity, along with stiffness and tightness in his upper back and neck. (Employer/Insurer's Exhibit 9, Pages 2-3)

Dr. Stillings testified that claimant came from a dysfunctional family. Employee's parents separated during the period when claimant was between 10 and 13. In that interval, claimant had irregular contact with his mother. He primarily lived with his father. Claimant's father was an alcoholic and often denigrated claimant's self-esteem. At age 26, claimant had a significant conflict with his mother, centered around his father's illness. This conflict continued to the date of Dr. Stillings evaluation. In 1992 claimant's father became severely ill with emphysema and was hospitalized on numerous occasions. Employee's father was then housebound as a result of his emphysema. Employee's mother has been confined to a wheelchair since 1992 as a result of a stroke. (Employer/Insurer's Exhibit 9, Page 3)

Dr. Stillings testified that claimant told him that he struggled in school. Most of his grades were in the D range. He often attended summer school. Claimant told him that he was diagnosed with dyslexia. Claimant had many behavioral problems at school, such as acting out and engaging in fights. However, he was able to graduate from high school. (Employer/Insurer's Exhibit 9, Page 3)

During his twenties claimant was a heavy drinker and used marijuana and amphetamines recreationally. Employee had a spotty employment history. From the time he graduated from high school in 1984 until 1989, claimant held many odd jobs in the areas of manual labor and factory work. In one year, claimant received 13 Forms W-2. From 1989 to 1994, claimant held a series of odd jobs. He was unemployed about 50 % of the time. Claimant estimated that he has had more

than 25 jobs. Employer hired claimant in 1994. (Employer/Insurer's Exhibit 9, Page 4)

Employee also reported psychotic symptoms, in particular, a hallucination involving his sister-in-law. Claimant did not like his father-in-law and did not get along with his sister-in-law until one year before she committed suicide in the mid1990s. At that time, the sister-in-law began talking to claimant and indicated that he should go to see his father-in-law with his wife. Beginning in August of 2000, claimant began to occasionally have a vision of his sister-in-law, admonishing him to be a good person and not to be an "ass" towards his wife. This "vision" occurred 1-2 times per year, and often in response to his wife's urging claimant to see her father. (Employer/Insurer's Exhibit 9, Pages 4-5)

Claimant had never received mental health care. Apart from Elavil, he had never taken psychotropic medications. (Employer/Insurer's Exhibit 9, Page 4)

Employee reported feelings of worthlessness because he was unable to provide for his family. As of the time of Dr. Stillings' examination, claimant and his wife were experiencing financial problems and receiving assistance from his sister. (Employer/Insurer's Exhibit 9, Page 5)

Dr. Stillings reviewed employee's deposition which was taken on May 23, 2003 and concluded that it showed that employee had a poor memory and displayed dependent behaviors. (Employer/Insurer's Exhibit 9, Page 7) Dr. Stillings testified that Mr. Flannery had a history of paranoia. He believed that some of his "bad crowd" friends might be following him.

Dr. Stillings disagreed with Dr. Mangelsdorf concerning the effect of social background on one's psychological condition. Dr. Stillings stated that we are the product of our up-bringing. He testified that many of the foregoing items were mental stressors in claimant's life.

Dr. Stillings performed a mental status examination. No psychological distress or physiologic reactivity was manifest in regard to the work incident or its sequelae. However, claimant displayed moderate psychological distress regarding the conflict with his mother and severe psychological distress regarding his father's illness. Dr. Stillings opined that these situations were causing claimant's current problems.

Dr. Stillings observed that employee's affect was strange and somewhat hysteroid. His mood was depressed. Claimant denied hallucinations, delusions, obsessions, compulsions, phobias, and suicidal ideations. Cognitively, and intellectually, claimant functioned in the low normal range. His verbal comprehension and concentration were adequate. His insight and judgment were questionable. (Employer/Insurer's Exhibit 9, Pages 8-9)

Dr. Stillings administered the MMPI-1. He testified that the control group for the MMPI-1 was updated in the 1960s and the university that created the MMPI-1 was still grading the test. In Dr. Stillings' opinion, there was an arbitrary aspect to the MMPI-2.

Dr. Stillings indicated that the MMPI-1 yielded a valid profile. It demonstrated that claimant was probably depressed and pessimistic, but that depression did not occupy claimant's central focus and total psychological status. Employee was histrionic (i.e. over reported complaints). He was also schizoid in makeup. Claimant was likely to report difficulty in thinking and concentration. Also, he was likely to be guilt and worry-ridden, and might overreact to external stimuli. Employee was likely to have a long history of poor interpersonal relationships and had a need to be dependent on others. Although claimant was not malingering, several indexes suggested that he was over-reporting his subjective complaints. The employee's pain scales, including a low back pain scale, were elevated into the functional (non-organic) region. (Employer/Insurer's Exhibit 9, Page 9)

Dr. Stillings indicated that on the Oswestry Disability Index, claimant reported low back pain in the bed bound/exaggerated region. His reports of subjective pain were inconsistent with objective findings and out of proportion to his physical status. (Employer/Insurer's Exhibit 9, Page 9)

Dr. Stillings testified that he examined the Rey II test, which Dr. Mangelsdorf administered to claimant. This is a 15 item test which looks for malingering by a patient. Claimant scored 9 items correct on the test, which is the cut-off for malingering.

Based upon his record review, testing, and evaluation of claimant, Dr. Stillings reached several psychiatric diagnoses. His Axis I diagnoses were: 1) dysfunctional family of origin; 2) parent/child relational problems (mother); 3) rule out narcotic abuse/addiction. None of these diagnoses were related to the July 9, 1999 workincident. Rather, these conditions

were pre-existing. The Axis II diagnoses were: 1) hysteroid, depressive, schizoid and dependent personality traits; and 2) probable dyslexia. Dr. Stillings testified that as with the Axis I diagnoses, the Axis II diagnoses were not related to the work accident and were preexisting conditions. They represented personality and developmental disorders. Axis III contained nonpsychiatric diagnoses. The diagnosis was status-post low back injury and status-post 2 surgeries. Axis IV - psycho/social stressors - included financial, interaction with the legal system, not working, and ongoing conflict with mother. Axis V set forth the global assessment of functioning (GAF) score. Claimant's score was 63, which indicated minimal symptoms with minimal impairment. (Employer/Insurer's Exhibit 9, Page 10)

Dr. Stillings disagreed with Dr. Mangelsdorf's Axis I diagnosis of major depression, single episode. Claimant did not qualify for this diagnosis and it was contrary to claimant's MMPI results. His history demonstrated depressive features to his personality. There was nothing objectively which supported a diagnosis of single episode of major depression. Dr. Stillings also disagreed with Dr. Mangelsdorf's diagnosis for Axis IV. Dr. Stillings saw no evidence of delusions and hallucinations. In Dr. Stillings' opinion, those were aggravated preexisting conditions that had been included under Axis II.

In Dr. Stillings' opinion, the July, 1999 workincident was not a substantial factor in causing any of claimant's psychiatric diagnoses listed under Axis I and Axis II. But the July work accident aggravated claimant's preexisting depressive and dependent personality traits. Dr. Stillings found that claimant had substantial psychiatric problems which preexisted and coexisted the July 1999 work incident, as listed under Axis I and II, and which were causally related to nonoccupational factors. Dr. Stillings concluded that claimant did not need psychiatric treatment in relation to the July 9, 1999 work incident. In this regard, claimant was at maximum medical improvement. From a psychiatric standpoint, Dr. Stillings found that claimant was able to work in any job for which he was suited by background, training, education and experience, within the appropriate physical limitations. Claimant's impoverished educational background and dyslexia were barriers to re-employment. (Employer/Insurer's Exhibit 9, Page 10)

Dr. Stillings testified that there was evidence of symptom magnification. He opined that claimant showed signs of symptom magnification due to the July, 1999 injury.

On cross examination by the Second Injury Fund Dr. Stillings testified that people who come from dysfunctional families always have psychosocial disorders. They rely on other people or the legal system for support. On redirect examination Dr. Stillings testified that claimant's preexisting personal traits were clear on his mental status examination and MMPI. He emphasized that claimant was denigrated by an alcoholic father. He stated that people who grow up in dysfunctional families do not develop self-esteem. They develop systems of other people taking care of them. He stated that this process begins in childhood. Dr. Stillings also indicated that that because people are resistant to psychological treatment, there is often a delay of several decades between the onset of a condition and treatment.

On redirect examination Dr. Stillings testified that claimant does not have major depression, single episode. He has a depressive personality nature which is an outgrowth of being raised in a dysfunctional family where he had difficult relations with his mother and father. This preexisted the July of 1999 injury.

As previously noted there is little disagreement concerning claimant's orthopedic injuries. Based on the credible opinions of Dr. Robson, I find that as a result of the July 9, 1999 work-related injuries claimant sustained a herniated disk at L5-S1, underwent a microdiscectomy, sustained a recurrent herniation at L5-S1, underwent a spinal fusion, and had some chronic low back pain as a result of some mild degenerative changes at L4-5.

In comparing the opinions of the two psychiatrist, I find the opinions of Dr. Stillings more persuasive than the opinions of Dr. Mangelsdorf. Dr. Stillings testified that a couple of the MMPI scales showed that claimant was over reporting his pain and that some of his pain did not have an organic basis. He also noted that most of claimant's distress occurred in discussing his dysfunctional relationship with his parents, which preexisted the work-related accident, and that employee exhibited far fewer depressive symptoms related to the work-related injury. Even Rey II test administered by Dr. Mangelsdorf showed that claimant was on the borderline for malingering. Dr. Robson testified that employee's claim that he needed help from his wife to put on his socks and shoes showed dependent behavior. Based on the credible opinions of Dr. Stillings I find that prior to July 9, 1999 claimant had substantial psychological problems from a depressive personality with dependent personality traits which resulted in part from being raised in a dysfunctional family with an emotionally abusive father. ${ }^{181}$ I further find that claimant did not have a single episode of major depression as a result of the July 9, 1999 accident; but the accident did aggravate claimant's depressive and dependent personality traits.

Employee is requesting an award of future medical care for his low back and alleged depression.

Section287.140 Mo. Rev. Stat. (2000) requires that the employer/insurer provide "such medical, surgical, chiropractic, and hospital treatment $\ldots as may reasonably be required \ldots$ to cure and relieve [the employee] from the effects of the injury." Future medical care can be awarded even though claimant has reached maximum medical improvement. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 278 (Mo. App. 1996). It can be awarded even where permanent partial disability is determined. The employee must prove beyond speculation and by competent and substantial evidence that his or her work-related injury is in need of treatment. Williams v. A.B. Chance Co., 676 S.W.2d 1 (Mo. App. 1984). Conclusive evidence is not required. However, evidence which shows only a mere possibility of the need for future treatment will not support an award. It is sufficient if claimant shows by reasonable probability that he or she will need future medical treatment. Dean v. St. Luke's Hospital, 936 S.W.2d 601, 603 (Mo. App. 1997); Mathia v. Contract Freighters, Inc, 929 S.W.2d 271, 277 (Mo. App. 1996); Sifferman v. Sears, Roebuck and Co., 906 S.W.2d 823, 828 (Mo. App. 1995). "Probable means founded on reason and experience which inclines the mind to believe but leaves room to doubt." Tate v. Southwestern Bell Telephone Co., 715 S.W.2d 326, 329 (Mo. App. 1986); Sifferman at 828.

Where the sole medical expert believes that it is "very likely" that the claimant will need future medical treatment, but is unable to say whether it is more likely than not that the claimant will need such treatment, that opinion, when combined with credible testimony from the claimant and the medical records in evidence, can be sufficient to support an award which leaves the future treatment issue open. This is particularly true where the medical expert states that the need for treatment will depend largely on the claimant's pain level in the future and how well the claimant tolerates that pain. Dean, supra at 604-06.

The amount of the award for future medical expenses may be indefinite. Section 287.140 .1 does not require that the medical evidence identify particular procedures or treatments to be performed or administered. Dean, supra at 604; Talley v. Runny Meade Estates, Ltd., 831 S.W.2d 692, 695 (Mo. App. 1992); Bradshaw v. Brown Shoe Co., 660 S.W.2d 390, 393-394 (Mo. App. 1983). The award may extend for the duration of an employee's life. P.M. v. Metromedia Steakhouses Co., Inc., 931 S.W.2d 846, 849 (Mo. App. 1996). The award may require the employer to provide future medical treatment which the claimant may require to relieve the effects of an injury or occupational disease. Polavarapu v. General Motors Corporation, 897 S.W.2d 63 (Mo. App. 1995). It is not necessary that such treatment has been prescribed or recommended as of the date of the hearing. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo. App. 1996). Where future medical care and treatment is awarded, such care and treatment "must flow from the accident before the employer is to be held responsible." Modlin v. Sun Mark, Inc., 699 S.W.2d 5, 7 (Mo. App. 1985); Talley v. Runny Meade Estates, Ltd. At 694. The employer/insurer may be ordered to provide medical and hospital treatment to cure and relieve the employee from the effects of the injury even though some of such treatment may also give relief from pain caused by a preexisting condition. Hall v. Spot Martin, 304 S.W.2d 844, 854-55 (Mo. 1957). However, where preexisting conditions also require future medical care, the medical experts must testify to a reasonable medical certainty as to what treatment is required for the injuries attributable to the last accident. O'Donnell v. Guarantee Elec. Co., 690 S.W.2d 190, 191 (Mo. App. 1985).

In Dr. Hoffmann's opinion, claimant will require on-going treatment for his back. However, there was little to be done for claimant's back condition, except the continuation of the TENS unit, occasional physical therapy, and medication. He testified that employee needs treatment for depression caused by his back injury. Dr. Hoffman agreed with Dr. Robson that claimant should be weaned from his current narcotic medications. It was possible that claimant might need surgery at L4-L5 in the future.

On re-direct examination Dr. Hoffman testified that the post myelogram CT scan showed that there were some juxtafusional changes occurring at the L4-5 level. The records of Dr. Hurford showed that claimant received epidural steroid injections at the L4-5 level. The subsequent MRI showed that the bulge was slightly better and that there was no nerve root impingement. Nevertheless there was a medical basis to say that the L4-5 level has been affected by the L5-S1 fusion. Dr. Hoffman stated that it is possible that employee will need surgery at the L4-5 level. In response to a question by this ALJ, Dr. Hoffman stated that between 10 % and 20 % of people who have undergone back fusions eventually develop a disk herniation at the level above or below the fusion. Depending on the symptoms the treatment can range from a simple discectomy to an expansion of the fusion.

Dr. Robson testified that he continued to see claimant because he is taking three medications, Vioxx, an antiinflammatory, Elavil, an anti-depressant, and Vicodin, a narcotic pain medication. Dr. Robson also prescribed Percocet for

occasional significant pain. He stated that he has been trying to wean Mr. Flannery off narcotic pain medication for a couple of years. (Employer/Insurer's Exhibit 1, Pages 24-25) As of February 9, 2005 Dr. Robson continued to prescribe Bextra, Zantac, Norco, Percocet, and Elavil. Dr. Robson felt that employee had reached maximum medical improvement on January 9, 2001 with the qualification that employee is still taking some medications. (Claimant's Exhibit HH and Employer/Insurer's Exhibit 1, Pages 25-26)

On cross examination Dr. Robson acknowledged that claimant may continue to have flare-ups from time to time and that he may occasionally need to see a doctor for potentially the rest of his life. (Employer/Insurer's Exhibit 1, Page 31) However, the main reason for seeing employee is to try to keep control of employee's medicine. Dr. Robson also indicated that he might recommend a couple of visits to a physical therapist for a flare-up. (Employer/Insurer's Exhibit 1, Pages 32-33) He thought that he would need to see Mr. Flannery twice per year in order to get him "regulated on his medications and hopefully down on the narcotics." (Employer/Insurer's Exhibit 1, Pages 63 \& 65) Dr. Robson also agreed that he could not rule out the possibility that the L4-5 level might worsen over time because of the original injury. (Employer/Insurer's Exhibit 1, Page 35) He indicated that the failure rate of fusion surgery from pseudoarthrosis or a screw coming loose is zero after 6 months post surgery. (Employer/Insurer's Exhibit 1, Pages 43-45) He thought that there was only a slim possibility that L4-5 level would worsen and claimant would require surgery at that level. (Employer/Insurer's Exhibit 1, Pages 69-70)

Dr. Scheer opined that claimant will require regular checkups, some 3 to 4 times a year, as well as medications to treat his back condition. She conferred with Dr. Robson about the medications on April 15, 2003. (Claimant's Exhibit X, Page 9) She noted that he was wearing a TENS unit on April 4, 2003. ${ }^{[9]}$ (Claimant's Exhibit X, depo ex B, p. 1)

In Dr. Mangelsdorf's opinion, claimant will need future medical treatment as a result of the July 9, 1999 accident. He noted that claimant is currently being treated with a therapeutic dose of Elavil, an antidepressant. (Claimant's Exhibit G, Pages 9-10 \& 58) It was Dr. Mangelsdorf's opinion that claimant would benefit from anti-psychotic medication because of his hallucinations and paranoia. A counselor would be appropriate because of claimant's difficulty adjusting to his impairments, marriage and activities of daily living. (Claimant's Exhibit G, depo ex B, Pages 10-11)

Dr. Stillings opined that the July 1999 work incident was not a substantial factor in causing any of claimant's psychiatric diagnoses listed under Axis I and Axis II. Dr. Stillings found that claimant had substantial psychiatric problems which preexisted and coexisted the July 1999 work incident, as listed under Axis I and II, and which were causally related to non-occupational factors. But he also opined that the July work accident aggravated claimant's preexisting depressive and dependent personality traits. Dr. Stillings concluded that claimant did not need any further psychiatric treatment in relation to the July 9, 1999 work incident. He indicated that claimant was at maximum medical improvement with respect to his psychological condition. (Employer/Insurer's Exhibit 9, Page 10)

Dr. Eli Shuter, a neurologist, examined claimant on May 21, 2003. He reviewed many of the medical records. He also reviewed the films of the September 20, 2002 myelogram and post myelogram and the February 3, 2003 MRI. He indicated that the latter films showed minimal scar formation in the left side of the spinal canal at L5-S1 not involving the nerve roots and no sign of any nerve root compression at L4-5L5. (Employer/Insurer's Exhibit 5, Pages 2-3)

Employee reported symptoms of poor mood, stress, lack of interest, crying spells, insomnia, and some suicidal thinking. Claimant appeared depressed. (Employer/Insurer's Exhibit 5, Pages 3-4)

Dr. Shuter indicated that while claimant had many symptoms of depression, which may have been partially related to the July 1999 accident, he had never been treated for depression. Claimant's current Elavil dosage was not clear, and might not be adequate to treat depression. It was Dr. Shuter's opinion that "claimant's continuing low back and left lower extremity pain may be a somatic symptom of, or worsened by, his depression". He recommended that if claimant's dosage of Elavil was not sufficient to treat his depression, it should be increased. If claimant's dosage of Elavil was sufficient for treatment of depression, Dr. Shuter recommended that claimant be treated with a different antidepressant. (Employer/Insurer's Exhibit 5, Page 5)

Dr. Patrick Hogan, a neurologist, testified by deposition on behalf of employer/insurer on December 9, 2003. He examined Mr. Flannery on November 17, 2003. Claimant described undergoing two back surgeries, including a fusion for a reherniation at L5-S1. (Employer/Insurer's Exhibit 2, depo ex 2, p. 1) His neurological examination showed symptom magnification involving weakness of the left quadriceps, hips, and dorsiflexion of his foot. (Claimant's Exhibit 2, depo ex 2, p. 4)

Dr. Hogan testified that Vicodin is a highly addictive narcotic mediation. He opined that no one should be taking that drug for the rest of his or her life. (Employer/Insurer's Exhibit 2, Page 15)

Drs. Hoffmann and Robson agree that claimant should be examined periodically, as often as twice per year for medication monitoring. They also agree that claimant may have flare-ups of increased back pain from time to time which may require an additional examination, a couple of physical therapy sessions, or pain medication. They also agree that it would be a good idea to wean claimant off narcotic medication. Dr. Scheer agrees that claimant will require periodic physician examinations and medication for his on-going back pain.

Based on the foregoing opinions, I find that claimant will for the foreseeable future require medications, periodic physician evaluations, and occasional physical therapy for his on-going low back pain and intermittent flare-ups of increased back pain attributable to the July 9, 1999 work-related injury. Employer/insurer are hereby ordered to provide and pay for such periodic physician evaluations of employee by Dr. Robson and for any medications, physical therapy or other treatment modalities prescribed by him for any back pain attributable to the July 9, 1999 work-related injury.

Dr. Hoffman opined that it is possible that employee will need surgery at the L4-5 level. His opinion that between 10 % and 20 % of people who have undergone back fusions eventually develop a disk herniation at the level above or below the fusion is unrebutted. As of December 18, 2003 Dr. Robson felt that the chances of employee developing a herniated disk at the L4-5 level and requiring surgery were slim.

In October of 2002 claimant developed increased symptoms which were thought to due to a mild bulging disk at the L4-5 level. He received three transforaminal epidural steroid injections at the L4-5 beginning in December of 2002. The injections improved his symptoms. A subsequent MRI of the low back showed some improvement of the L4-5 disk.

Taking into account that claimant has already developed mild juxtafusional pathology at the L4-5 level and that Dr. Hoffman has credibly opined that there is a 10 % to 20 % likelihood that claimant will eventually develop a herniation at the L4-5 level, I find that future medical treatment of the L4-5 level should be left open until April 20, 200510 to allow claimant to request further treatment of the L4-5 level and to prove that any such requested treatment flows from the July 9, 1999 injury and its sequelae. A risk of 10 % to 20 % for the development of juxtafusional problems is not small. Uniformly closing future medical treatment in fusion surgery cases would transfer to the general health care system the cost of medical treatment for sequelae of fusion surgeries for worker's compensation injuries. Such an outcome would not be fair to a subsequent health care insurer or to the Medicare/Medicaid system.

I further find that most of the treatment recommendations by Dr. Mangelsdorf are not related to any psychological condition which claimant developed as a result of the work-related injury. (Claimant's Exhibit G, Page 67) While Dr. Stillings opined that claimant's preexisting depressive personality traits were aggravated by the July of 1999 back injury, he does not believe that claimant requires additional treatment for this condition. Dr. Robson initially prescribed Elavil for sleep. Dr. Shuter thought that claimant was depressed and opined that his depression may be partially related to the July of 1999 accident. He recommended that the dosage of Elavil should be increased to a therapeutic level. Dr. Robson initially prescribed Elavil for sleep. (Employer/Insurer's Exhibit 1, depo ex 2, p. 23) Dr. Scheer diagnosed depression and increased the dosage to a therapeutic level. 111 (Claimant's Exhibit X, depo ex B, p. 1) Dr. Robson subsequently renewed claimant's prescription for Elavil. I find that Dr. Robson and Dr. Scheer are qualified to determine whether or not to discontinue that medication. Employer/insurer are hereby ordered to continue to pay for amitriptyline, the generic equivalent of Elavil, until Drs. Robson and Scheer determine that it is no longer needed to treat the aggravation of claimant's preexisting depressive personality traits.

Employer/insurer are seeking reimbursement of temporary total disability compensation paid during a period when Mr. Flannery was also receiving unemployment compensation.

Subsection 3 of Section 287.170 Mo. Rev. Stat. (2000) provides that "[t]he employer shall be entitled to a dollar-fordollar credit against any benefits owed pursuant to this section in an amount equal to the amount of unemployment compensation paid to the employee and charged to the employer during the same adjudicated or agreed-upon period of temporary total disability."

Based on the evidence adduced at the hearing I find that claimant received unemployment compensation benefits of $\ 225.00 per week from December 16, 2000 to March 23, 2001. (Employer/Insurer's Exhibit 10)

Based on the stipulation of the parties, I find that employer/insurer paid claimant a total of $\ 36,072.96 in temporary total and temporary partial disability compensation through January 8, 2001 when Dr. Robson determined that he had reached maximum medical improvement. I further find that they paid claimant $\ 578.46 per week from December 16, 2000 through January 8, 2001. (Employer/Insurer's Exhibit 14)

Section 287.170.3 provides that employer/insurer are entitled to a dollar for dollar credit against temporary total disability benefits owed pursuant to Section 287.170. Based on the foregoing findings, I further find that claimant received $\ 771.43 in unemployment compensation benefits charged to the employer between December 16, 2000 and January 8, 2001, a period of three weeks and three days. During that same period employer/insurer paid claimant the sum of $\ 1,983.29 in temporary total disability compensation benefits.

Based on the foregoing findings, I find that employer/insurer are entitled to a credit of $\ 771.43 for the amount of unemployment compensation benefits paid Mr. Flannery between December 16, 2000 and January 8, 2001. ${ }^{[12]}$

Employee claims that he is permanently and totally disabled as a result of the work- related injuries of July 9, 1999, or, alternatively, as a result of the combination of the work-related injury with employee's alleged preexisting disabilities in his right knee and left ankle and due to preexisting depression. The claim of total disability against the employer must be considered first. Where the disability caused solely by the primary injury is total disability, there can be no liability for the Second Injury Fund. Vaught v. Vaughts, Inc., 938 S.W.2d 931, 939 (Mo. App. 1997); Roller v. Treasurer of State of Mo., 935 S.W.2d 739, 740 (Mo. App. 1996).

Section 287.020.7 Mo. Rev. Stat. (2000) defines total disability 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." The words "inability to return to any employment" mean "that the employee is unable to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment." Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo. App. 1982). The words "any employment" mean "any reasonable or normal employment or occupation; it is not necessary that the employee be completely inactive or inert in order to meet this statutory definition." Id. at 922; Brown v. Treasurer of Missouri, 795 S.W.2d 479, 483 (Mo. App. 1990); Crum v. Sachs Elec., 769 S.W.2d 131, 133 (Mo. App. 1989). "[W]orking very limited hours at rudimentary tasks [is not] reasonable or normal employment." Grgic v. P \& G Const., 904 S.W.2d 464, 466 (Mo. App. 1995). The primary determination with respect to the issue of total disability is whether, in the ordinary course of business, any employer would reasonably be expected to employ the claimant in his or her present physical condition and reasonably expect him or her to perform the work for which he or she is hired. Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo. App. 1992); Talley v. Runny Mead Estates, Ltd., 831 S.W.2d. 692, 694 (Mo. App. 1992); Brown v. Treasurer of Missouri, at 483; Fischer v. Archdiocese of St. Louis, 793 S.W.2d 195, 199 (Mo. App. 1990); Sellers v. Trans World Airlines, Inc., 776 S.W.2d 502, 504 (Mo. App. 1989). The test for permanent and total disability is whether given the employee's condition, he or she would be able to compete in the open labor market; the test measures the employee's prospects for obtaining employment. Reiner at 367; Brown at 483; Fischer at 199. A claimant who is "only able to work very limited hours at rudimentary tasks is a totally disabled worker." Grgic v. P \& G Const., 904 S.W.2d 464, 466 (Mo. App. 1995).

The employee must prove the nature and extent of any disability by a reasonable degree of certainty. Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. 1995); Griggs v. A. B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974). Such proof is made only by competent and substantial evidence. It may not rest on speculationIdem. Expert testimony may be required where there are complicated medical issues. Goleman v. MCI Transporters, 844 S.W.2d 463, 466 (Mo. App. 1993); Griggs at 704; Downs v. A.C.F. Industries, Incorporated, 460 S.W.2d 293, 295-96 (Mo. App. 1970). The fact finder may accept only part of the testimony of a medical expert and reject the remainder of it. Cole v. Best Motor Lines, 303 S.W.2d 170, 174 (Mo. App. 1957). Where the opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 877 (Mo. App. 1984). Where there are conflicting medical opinions, the fact finder may reject all or part of one party's expert testimony which it does not consider credible and accept as true the contrary testimony given by the other litigant's expert. Webber v. Chrysler Corp., 826 S.W.2d 51, 54 (Mo. App. 1992); Hutchinson v. Tri-State Motor Transit Co., 721 S.W.2d 158, 163 (Mo. App. 1986).

However, where the facts are within the understanding of lay persons, the employee's testimony or that of other lay witnesses may constitute substantial and competent evidence. This is especially true where such testimony is supported by some medical evidence. Pruteanu v. Electro Core Inc., 847 S.W.2d 203 (Mo. App. 1993); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo. App. 1992); Fisher v. Archdiocese of St. Louis, 793 S.W.2d 195, 199 (Mo. App. 1990); Ford v. Bi-State Development Agency, 677 S.W.2d 899, 904 (Mo. App. 1984); Fogelsong v. Banquet Foods Corp, 526 S.W.2d 886, 892 (Mo. App. 1975). The trier of facts may even base its findings solely on the testimony of the employee. Fogelsong at 892 . The trier of facts may also disbelieve the testimony of a witness even if no contradictory or impeaching testimony is given. Hutchinson v. Tri-State Motor Transit Co., supra at 161-2; Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo. App. 1980). The uncontradicted testimony of the employee may even be disbelieved. Weeks v. Maple Lawn Nursing Home, 848 S.W.2d 515, 516 (Mo. App. 1993); Montgomery v. Dept. of Corr. \& Human Res., 849 S.W.2d 267, 269 (Mo. App. 1993).

The determination of the degree of disability sustained by an injured employee is not strictly a medical question. While the nature of the injury and its severity and permanence are medical questions, the impact that the injury has upon the employee's ability to work involves factors which are both medical and nonmedical. Accordingly, the Courts have repeatedly held that the extent and percentage of disability sustained by an injured employee is a finding of fact within the special province of the Commission. Sellers v. Trans World Airlines, Inc., 776 S.W.2d 502 (Mo. App. 1989); Quinlan v. Incarnate Word Hospital, 714 S.W.2d 237, 238 (Mo. App. 1986); Banner Iron Works v. Mordis, 663 S.W.2d 770, 773 (Mo. App. 1983); Barrett v. Bentzinger Brothers, Inc., 595 S.W.2d 441, 443 (Mo. App. 1980); McAdams v. Seven-Up Bottling Works, 429 S.W.2d 284, 289 (Mo. App. 1968). The fact finding body is not bound by or restricted to the specific percentages of disability suggested or stated by the medical experts. It may also consider the testimony of the employee and other lay witnesses and draw reasonable inferences from such testimony. Fogelsong v. Banquet Foods Corporation, 526 S.W.2d 886, 892 (Mo. App. 1975). The finding of disability may exceed the percentage testified to by the medical experts. Quinlan v. Incarnate Word Hospital, at 238; Barrett v. Bentzinger Brothers, Inc., at 443; McAdams v. Seven-Up Bottling Works, at 289. The uncontradicted testimony of a medical expert concerning the extent of disability may even be disbelieved. Gilley v. Raskas Dairy, 903 S.W.2d 656, 658 (Mo. App. 1995); Jones v. Jefferson City School Dist, 801 S.W.2d 486 (Mo. App. 1990). The fact finding body may reject the uncontradicted opinion of a vocational expert. Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995).

An employer is liable for permanent total disability compensation under Section 287.200 Mo. Rev. Stat. (2000) only where there is evidence in the record that the primary accident alone caused employee to be permanently and totally disabled. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 276 (Mo. App. 1996); Feldman v. Sterling Properties, 910 S.W.2d 808, 810 (Mo. App. 1995); Moorehead v. Lismark Distributing Co, 884 S.W.2d 416, 419 (Mo. App. 1994); Kern v. General Installation, 740 S.W.2d 691, 692 (Mo. App. 1987); accord, Terrell v. Board of Education, City of St. Louis, 871 S.W.2d 20, 23 (Mo. App. 1993); Roby v. Tarlton Corp., 728 S.W.2d 586, 589 (Mo. App. 1987).

Employer is liable for any aggravation of a preexisting asymptomatic condition caused by the primary injury even though the accident would not have produced the injury in a person not having the condition. Gennari v. Norwood Hills Corporation, 322 S.W.2d 718, 722-23 (Mo. 1959); Miller v. Wefelmeyer, 890 S.W.2d 372, 376 (Mo. App. 1994); Weinbauer v. Gray Eagle Distributors, 661 S.W.2d 652, 654 (Mo. App. 1983); Johnson v. General Motors Assembly Division, 605 S.W.2d 511, 513 (Mo. App. 1980); Fogelsong v. Banquet Foods Corporation, 526 S.W.2d 886, 891 (Mo. App. 1975); Mashburn v. Chevrolet Kansas City Div., G.M. Corp., 397 S.W.2d 23 (Mo. App. 1965); Garrison v. Campbell "66" Express, 297 S.W.2d 22 (Mo. App. 1956); accord, Lawton v. Trans World Airlines, Inc, 885 S.W.2d 768, 771 (Mo. App. 1994); Terrell v. Board of Education, City of St. Louis, 871 S.W.2d 20 (Mo. App. 1993). In Weinbauer claimant had preexisting cervical osteoarthritis. In Johnson claimant had preexisting spondylolisthesis.

An employer is not liable for any post-accident worsening of an employee's preexisting disabilities which is not caused or aggravated by the last work-related injury. Kern v. General Installation, 740 S.W.2d 691, 692 (Mo. App. 1987).

Based on that portion of claimant's testimony which I find to be credible, I make the following findings of fact.

Claimant graduated from Union High School in May of 1984. His first job was at a Shell gas station working as a cashier for 3 months in 1984. Between 1984 and 1990, claimant held a number of odd jobs, including clean up, labor, and

factory work. In 1990, claimant went to work for Tradco in Washington, Missouri as a hot press operator for approximately 21 months. After being laid off from Tradco, claimant took a job with Integram Seating for a few weeks in 1993, where he made automotive seats. In the winter of 1993, claimant delivered propane for Ferrell Gas Propane Company for a few months. At each stop he dragged a heavy hose from the truck to propane tanks. In the spring of 1994, claimant worked for Reicher's Oil. At Reicher's, claimant worked as a delivery truck driver hauling 55 gallon drums of refined fuels. (Claimant's Testimony)

In June of 1994, claimant went to work at Breckenridge Material Company. He continued to work for Breckenridge through 1999. Breckenridge is a union employer. Because claimant was the low man on the list, he was occasionally bumped. As a result, claimant's weekly hours were sporadic. There were several weeks when claimant worked fewer than 20 hours. While working at Breckenridge, claimant's duties included lifting and cutting rebar. The rebar weighed 40 to 60 pounds. Claimant also lifted sacks of lime and sand which weighed 50 pounds. Mr. Flannery shoveled sand into bags during down time. Claimant also lifted and moved metal forms which weighed over 100 pounds. He also drove cement trucks. The chutes on the cement trucks weighed 50 pounds when filled up with concrete. (Claimant's Testimony)

Claimant was 34-1/2 years old on January 9, 2001 when he reached maximum medical improvement with respect to his low back injury.

In September 2000, claimant returned to a desk job at Breckenridge Material Company. Claimant testified that he was not able to file the truck reports in the appropriate way, and messed up the paperwork. At the time, claimant was taking a lot of narcotic pain medication. In December of 2000, Breckenridge Material Company had a layoff because of a snow storm. On January 9, 2001, claimant returned to Dr. Robson. Dr. Robson found claimant to be at maximum medical improvement and released him with permanent restrictions. Employee has not worked since January 9, 2001.

After leaving Employer, claimant did not apply for any jobs. While claimant made telephone calls to some employers, he did not fit their job requirements. He never sought help through the Missouri Department of Vocational Rehabilitation. Claimant does not believe he could go back to Breckenridge Material Company and work within his current restrictions.

Currently, claimant has a Class A commercial driver's license, which allows him to drive a vehicle weighing up to 80,000 pounds, the weight equivalent of a tanker truck. Employee is able to drive automobile. Claimant has 2 flat beds with trailer packages for hauling pallets and grass cutting equipment. Employee and his son drive around with the trailer to various grass cutting jobs. He also uses the trailer in his son's pallet business.

Claimant is able to read the newspaper. He can access the internet and knows how to send and receive e-mail.

At the time of hearing, claimant was taking several medications. These included Elavil (200 mgs nightly), Atenolol (for high blood pressure - 50 mgs nightly), Bextra ( 20 mgs nightly), Robaxin ( 75 mgs . nightly), Zantac ( 150 mgs nightly), Vicodin (500 mgs, 6-8 times per day), Oxycodone ( 350 mgs ), and Prednisone as needed.

Mr. Flannery testified that his current complaints include low back pain. Occasionally, claimant stays in bed all day because of excruciating pain. He takes a long time to get moving in the morning and is always drowsy. Claimant stated that he has pain in his back, left hip and left leg, and has a hard time sitting down and standing up. He has learned not to do things that aggravate his back condition. He does not kick things or bend over, and has learned to pick things up the correct way.

Since the accident, claimant has experienced a 25 pound weight gain. Going up and down steps is difficult. He wears a TENS unit 5 days a week, for 1-2 hours per day. He wants to get a neuromuscular stimulator, a device he found on the internet.

Employee testified that he is very forgetful and has problems concentrating. As an example, claimant stated that one day he had set his telephone down and forget where it was. He found it between his legs. Additionally, claimant leaves the stove and the lights on. He has trouble putting on his socks and shoes.

Dr. Hoffmann testified at the hearing on both direct and cross examination that claimant was 100 % disabled as a result of the back injury sustained on July 9, 1999. In his report of October 29, 2003 heconcluded that claimant sustained 75 % permanent partial disability as to his lumbar spine and 25 % permanent partial disability due to aggravation of his preexisting psychiatric condition from the July 1999 accident. (Claimant's Exhibit F, Page 4) Dr. Hoffman testified on cross examination that his opinion on the amount of disability due to the psychiatric condition was a guess based on the records of Drs. Shuter and Mangelsdorf. He indicated that he had seen a lot of depression in failed back syndrome cases. In his November 17, 2003 report Dr. Hoffman opined that claimant was 100 % disabled due to the July 9, 1999 backinjury alone without regard to the any psychiatric disability identified by Drs. Shuter and Mangelsdorf. (Claimant's Exhibit F-1, Page 3)

In rendering his opinion regarding claimant's permanent disability, Dr. Hoffmann testified and wrote that he relied in large part on the findings and permanent restrictions of Dr. Robson, namely 30 pounds restriction on lifting, brief hourly position changes and no repetitive bending, stooping, twisting, or awkward motions. In Dr. Hoffmann's opinion, these restrictions alone would exclude claimant from any type of position. (Claimant's Exhibit F-1, Page 3) At the hearing Dr. Hoffmann also mentioned as factors his examination findings of atrophy of the left calf, absent left Achilles reflex, and atrophy of the left quadriceps. ${ }^{[13]}$ Based upon Dr. Robson's limitations, Dr. Hoffmann felt that claimant was permanently and totally disabled and that there was no job that could accommodate employee's restrictions. Dr. Hoffmann opined that claimant's permanent total disability was a result of the injuries that he sustained in the July 1999 accident.(Claimant's Exhibits F, Pages 4-5 and F-1, Page 3) Additionally, claimant had an aggravation of his on-going, preexisting psychiatric problems that was related to the 1999 work event. (Claimant's Exhibit F-1, Page 3) On cross examination Dr. Hoffmann stated that he did not consider of Dr. Mangelsdorf's psychiatric diagnoses in rending his opinion on total disability. He did not know what role employee's psychiatric conditions may play in his ability to compete in the open labor market. On redirect examination Dr. Hoffman stated that intense prolonged pain can cause depression and an inability to work can also cause depression.

On cross examination Dr. Hoffmann testified that he did not disagree with the restrictions recommended by Dr. Robson, but he disagreed with Dr. Robson's conclusion that claimant was able to work in the light to moderate duty category. He conceded that he did not know what the weight restrictions were for moderate to light work. Dr. Hoffmann acknowledged that he was not a vocational expert. He agreed that he would defer to a vocational expert on this issue. Further, Dr. Hoffmann conceded that he had no knowledge of claimant's employment history or his transferable skills. Nor did Dr. Hoffmann have any independent knowledge of the job market or any job availability in the area. Dr. Hoffmann indicated that he would change his opinion regarding permanent total disability if a vocational expert stated that there were jobs available in the St. Louis area within Dr. Robson's restrictions.

Referring to the medications that claimant is taking on a daily basis, including Vioxx, Vicodin, and Percocet, Dr. Hoffmann opined that no one would let employee work around machinery. He said it would be too dangerous.

Dr. Robson testified that claimant reached maximum medical improvement on January 9, 2001. He opined that claimant could not function at the level required for his job as a cement truck driver. Dr. Robson released claimant with permanent restrictions in the light to moderate work category. Employee could not do repetitive bending, stooping or twisting. He had a weight limit of 30 pounds and was required to make brief position changes on an hourly basis. (Employer/Insurer's Exhibit 1, Pages 16-17) On cross examination he explained that if employee were sitting in a chair answering the telephone, after an hour he would need to get up and go to the drinking fountain after which he could sit back down. (Employer/Insurer's Exhibit 1, Page 51) Dr. Robson stated that claimant's permanent restrictions had not changed during his subsequent examinations through the end of 2003. (Employer/Insurer's Exhibit 1, Pages 25-26)

Dr. Robson opined that claimant sustained 30 % permanent partial disability of the body referable to the low back as a result of the July 9, 1999 injury. (Employer/Insurer's Exhibit 1, Pages 18 \& 27) On cross examination he agreed that his disability rating did not take into account any psychological problems which claimant might have. (Employer/Insurer's Exhibit 1, Page 51)

Dr. Robson opined that claimant was capable of working within his permanent restrictions. (Employer/Insurer's Exhibit 1, Page 26) On cross examination he indicated that he could not drive a cement truck which requires lifting of cement chutes which weigh over thirty pounds. (Employer/Insurer's Exhibit 1, Page 58) On redirect examination he further opined that he could climb in and out of a cement truck and could drive the cement truck around assuming that it is one of the newer trucks with ergonomic dynamic seats that are cushioned. He thought there would be too much bouncing for his back with some of the older model trucks. (Employer/Insurer's Exhibit 1, Page 26)

Dr. Scheer was asked by claimant's attorney to evaluate claimant's preexisting disabilities and his overall disability. (Claimant's Exhibit X, depo ex B, pp 9-10) She examined claimant on October 18, 2002. (Claimant's Exhibit X, depo ex B,

pp 6-7) She admitted her lack of experience in assessing disabilities. (Claimant's Exhibit X, Page 20)

On direct examination Dr. Scheer testified that claimant was permanently and totally disabled primarily because of his back conditions. She opined that his prior right knee injury and left ankle fracture did not significantly contribute to his disability. (Claimant's Exhibit X, Pages 7-8) On cross examination she indicated that she evaluated claimant's right knee and left ankle and opined that it was likely that the reduced ankle range of motion would cause abnormal gait and increase muscular stress to the low back. She stated that the knee would probably do the same although the knee was not as frequent a problem. In response to a specific question she stated that if claimant had no preexisting disabilities, she would still believe that he was permanently and totally disabled. (Claimant's Exhibit X, Pages 18-19) On further cross examination she declined to state that claimant's back was the only reason for his total disability; she preferred to describe it as the "main reason" for his total disability. She added that his preexisting right knee and left ankle problems made his back only slightly worse; they combined to increase his symptoms. But she had difficulty quantifying how much worse. (Claimant's Exhibit X, Pages 2122) She then stated that his back symptoms alone were enough to disable employee. (Claimant's Exhibit X, Page 23)

Dr. Scheer did not place any specific restrictions on the employee. (Claimant's Exhibit X, Page 24) She indicated that her opinions on permanent disability were based primarily on the employee's subjective complaints. (Claimant's Exhibit X, Page 30) Dr. Scheer agreed with Dr. Robson's restrictions of no lifting over 30 pounds, no bending, stooping or twisting, and brief position changes on an hourly basis. (Claimant's Exhibit X, Page 32) Dr. Scheer conceded that she would be in no position to disagree with Dr. Robson's finding that claimant sustained a 30 % permanent partial disability of the back as a result of his injury and surgeries as Dr. Robson was a specialist who had been treating claimant intimately for the entire duration of his condition. (Claimant's Exhibit X, Page 33) Upon being advised of Dr. Robson's restrictions and findings regarding claimant's permanent partial disability and after seeing the Dr. Robson's opinion concerning the February of 2003 MRI, Dr. Scheer changed her opinion regarding the nature of claimant's permanent disability. She did not feel comfortable arguing with or trying to override Dr. Robson's opinions. Claimant's Exhibit X, Pages 31 \& 34) Dr. Scheer then testified that she would rather not render an opinion regarding claimant's disability. (Claimant's Exhibit X, Pages 34-35)

Dr. Scheer agreed that she was not a vocational expert. She did not do any testing on the employee regarding his ability to work. She was unaware of claimant's specific educational background. She did not perform a Functional Capacity Evaluation. (Claimant's Exhibit X, Pages 35-36) Dr. Scheer indicated that she would defer to a vocational specialist with respect to his or her opinion regarding claimant's employability in the open labor market. (Claimant's Exhibit X, Pages 4142)

On redirect examination Dr. Scheer opined that her physical examination findings did not support more than 30\% permanent partial disability.(Claimant's Exhibit X, Page 46) Factoring in all the information, Dr. Scheer opined that claimant sustained permanent disability somewhere between the 30 % permanent partial disability found by Dr. Robson and Dr. Scheer's initial opinion of permanent total disability. (Claimant's Exhibit X, Page 48) She added that claimant had never expressed any desire to return to work if he could. (Claimant's Exhibit X, Page 49) Based on the total facts presented to her during the deposition (which included additional treatment records by Dr. Robson), Dr. Scheer did not feel qualified to "put a number" on claimant's overall disability. (Claimant's Exhibit A, Page 54) She pointed out that much of claimant's post surgery treatment was "subjectively driven" and that his latest MRI showed that the bulging disk (at L4-5) was better. (Claimant's Exhibit X, Page 56) When pressed by claimant's counsel for the reason for her change of opinion, she stated that she was giving a lot of weight to Dr. Robson's opinions because he is an orthopedic surgeon and treated claimant throughout. (Claimant's Exhibit X, Page 57)

Dr. Eli Shuter, a neurologist, examined claimant on May 21, 2003. He reviewed many of the medical records. He also reviewed the films of the September 20, 2002 myelogram and post myelogram and the February 3, 2003 MRI. He indicated that the latter films showed minimal scar formation in the left side of the spinal canal at L5-S1 not involving the nerve roots and no sign of any nerve root compression at L4-L5. (Employer/Insurer's Exhibit 5, Pages 2-3)

Dr. Shuter indicated that Mr. Flannery denied any history of symptoms referable to his low back prior to the July 1999 accident. ${ }^{[14]}$ Claimant reported that he was never free of low back pain. His back pain radiated to his left buttock, posterior thigh, leg, foot and toes. It increased when employee sat for 10 minutes, rode in an automobile for 30 minutes, stood for 5 minutes, or walked, bent or lifted. Claimant had symptoms of weakness and decreased sense of touch in his entire lower left extremity. (Employer/Insurer's Exhibit 5, Page 3)

Claimant reported that he took Vicodin (1-2 pills 2 or 3 times a day), Oxycodone (1-2 pills 3 times a day on days when his pain was severe), and Vioxx (once daily). Claimant also took Methocarbamol, 1-2 tablets each evening for muscle relaxation. To improve his sleep, he took Elavil and Xanax, dosages unknown. Employee was using a TENS unit. (Employer/Insurer's Exhibit 5, Page 3)

Dr. Shuter noted that claimant walked with a normal gait. He was able to walk on the heels and the balls of his feet without any signs of ankle weakness. He was able to bend forward only to an angle of $10^{\circ}. (Normal was at least 80^{\circ}$.) Claimant could not bend backward beyond the erect position and would not attempt to bend to either side or rotate his spine. Straight leg raising, normally at least $80^{\circ}, was limited to 10^{\circ}$ bilaterally by low back and left lower extremity pain. Dr. Shuter indicated that there was severe weakness with pain throughout the muscles of the left lower extremity. There was atrophy of the left calf and diffuse sensory loss throughout the left lower extremity. The left ankle jerk was absent. (Employer/Insurer's Exhibit 5, Page 4)

In Dr. Shuter's opinion, as a result of the July 1999 accident, claimant sustained a herniation of his previously degenerative L5-S1 intervertebral disc, with nerve root compression. Surgical treatment with microdiscectomy was performed with satisfactory initial results. Because of a reherniation of the L5-S1 disc, however, lumbar laminectomy, diskectomy and fusion at L5-S1 were necessary. Post-myelogram CT and MRI tests showed a solid L5-S1 fusion, with no evidence of nerve root compression or scar formation. A possible disc herniation at L4-L5 on the left, which was noted on imaging studies done in September, 2002, had resolved spontaneously on the MRI performed in February 2003. (Employer/Insurer's Exhibit 5, Pages 4-5)

While Dr. Shuter found that claimant had atrophy of his left calf, which may have been due to disuse. Dr. Shuter opined that the severe weakness of claimant's entire left lower extremity was not compatible with claimant's ability to walk normally and his ability to walk on the ball of his left foot and his left heel. He added that the weakness and sensory loss throughout the entirety of claimant's left lower extremity was not compatible with compression of only the first sacral nerve root. In Dr. Shuter's opinion, claimant's inability to extend or laterally flex the lumbar spine, and the severe limitation of his lumbar flexion and straight leg raising were greater than that found in severe cases of lumbar disc disease or nerve root compression. Dr. Shuter concluded that claimant had "severe symptom magnification". In Dr. Shuter's opinion, claimant should be able to perform employment activities within the restrictions recommended by Dr. Robson. (Employer/Insurer's Exhibit 5, Page 5)

Dr. Shuter indicated that claimant had many symptoms of depression, which may have been partially related to the July 1999 accident. It was Dr. Shuter's opinion that "claimant's continuing low back and left lower extremity pain may be a somatic symptom of, or worsened by, his depression". (Employer/Insurer's Exhibit 5, Page 5)

Dr. Patrick Hogan, a neurologist, examined claimant on November 17, 2003. He testified that employee told him that since the accident he has experienced pain in his low back, left hip, and left leg with weakness of his entire leg, including his hip, knee and ankle. (Employer/Insurer's Exhibit 2, Page 9) Employee related that he had not returned to work for any prolonged period of time, even though he was told he could return to work. When he returned to a desk job, it was so confusing he could not continue. (Employer/Insurer's Exhibit 2, depo ex 2, p. 2)

Dr. Hogan performed a neurological examination. Employee had global give-away weakness of the left hip, left quadriceps and the left calf. Employee told Dr. Hogan that he was unable to extend or flex the left foot. In the lower extremities, straight leg raising was negative at $80^{\circ}$. Claimant stated he could not straighten his leg any further. There was significant atrophy of the left calf. Claimant's left thigh and ankle appeared normal. Dr. Hogan stated the global weakness of quadriceps and dorsiflexion of his left foot could not be explained on the basis of an S1 lesion. (Employer/Insurer's Exhibit 2, Page $10 \& depo ex 2, p. 3) Claimant's reflexes were 2+$ in all areas, except for the left ankle where it was absent. His reflexes were compatible with the L5-S1 surgery. Employee had a normal sensory examination in all four extremities, including the S1 distribution on the left. The sensory portion of the S1 root must have been preserved, because claimant was able to feel pin prick and touch in those areas. (Employer/Insurer's Exhibit 2, Page $11 \&$ depo ex 2, p. 3)

Dr. Hogan observed that claimant had a normally based gait. Employee told Dr. Hogan that he was unable to walk on his heels and toes. However, plantar flexion was normal on manual testing. Dr. Hogan testified that there was nothing from a neurological standpoint which prevented him from walking on his heels and toes. ${ }^{[15]}$ Claimant refused to put his feet together or to stand on either foot unassisted. With his feet shoulder width apart, claimant was asked to bend from the waist and come as close to his toes as he could. Claimant bent approximately $5^{\circ}$ at the waist. He made no attempt at extension or lateral trunk movement in the lumbosacral region. (Employer/Insurer's Exhibit 2, Pages 11-12 \& depo ex 2, p. 3)

Dr. Hogan testified that his findings on examination were functional findings (i.e. not real, not due to organic or structural disorder). The only evidence of nerve root impingement or neurological damage was the atrophy present in claimant's left calf. ${ }^{[16]}$ (Employer/Insurer's Exhibit 2, Pages 12-14)

Dr. Hogan stated that claimant had a disc herniation and fusion. His last myelogram showed no evidence of nerve root impingement or scarring, just ordinary post operative changes. Dr. Hogan opined that claimant had symptom magnification and a functional neurological examination. There was no explanation for claimant's left hip, left quadriceps or left foot extension abnormalities on the basis of an S1 nerve root lesion. (Employer/Insurer's Exhibit 2, Page 13 \& depo ex 2, p. 4)

Dr. Hogan opined that claimant sustained a 20 % permanent partial disability of the body as a whole due to his disc herniation, nerve root injury and left calf atrophy. It was Dr. Hogan's opinion that claimant could return to moderate labor (i.e. lifting fewer than 50 pounds and no continuous bending, stooping, lifting, climbing, crawling or activities of that nature) if he would rehabilitate the left leg. (Employer/Insurer's Exhibit 2, Page 12 \& 14-15 \& depo ex 2, p. 4)

Dr. Hogan reviewed the report of Dr. Eli Shuter. He stated his clinical findings were essentially the same as those of Dr. Shuter. He agreed with Dr. Shuter's finding that the weakness and sensory loss throughout claimant's entire left lower extremity was not compatible with the compression of only the first sacral nerve root. Nor was it compatible with the level of the disc herniation or the operations that claimant underwent. The surgery would not produce an inability to extend or laterally flex the lumbar spine to the degree that Dr. Hogan found. He agreed with Dr. Shuter that claimant showed some severe symptom magnification. (Employer/Insurer's Exhibit 2, Pages 15-17)

Dr. Mangelsdorf concluded that as of July 9, 1999 claimant was free of any psychiatric problems, except for his dyslexia. While claimant had no previous psychiatric treatment, he now suffered from a profound psychiatric disorder. Dr. Mangelsdorf opined that claimant's major depression with psychotic features had arisen because of his difficulty adjusting in life and the forced helplessness that his physical condition has caused. (Claimant's Exhibit G, depo ex B, p. 10) In Dr. Mangelsdorf's opinion, claimant was unable to do any physical work or manual labor. Dr. Mangelsdorf believed that claimant could not perform a desk job. In 1999, Breckenridge gave claimant a desk job for a short time. Claimant was unable to perform that job. (Claimant's Exhibit G, Pages 8-9 \& depo ex B, p. 4)

Dr. Mangelsdorf indicated that all of claimant's employment had been as a manual laborer and driver. (Claimant's Exhibit G, depo ex B, pp 3-4) As any physical activity worsened claimant's back pain, Dr. Mangelsdorf opined that claimant's orthopedic illness would preclude any type of manual labor. In Dr. Mangelsdorf's opinion, claimant's mental condition of depression, inability to focus and concentrate, poor comprehension, dyslexia and psychotic features of paranoia, hallucinations and delusions would preclude him from doing any kind of desk job or telephone work. Dr. Mangelsdorf knew of no occupation that claimant could perform, either mentally or physically. He opined that claimant's impairment level was 80 % from a psychiatric viewpoint alone, in addition to claimant's spinal and other health problems. (Claimant's Exhibit G, depo ex B, p. 10)

Dr. Mangelsdorf's opined that claimant was unable to be employed in the open labor market due to a combination of claimant's physical injury and his psychiatric problems. (Claimant's Exhibit G, Pages 6-7) Dr. Mangelsdorf concluded that the pain from claimant's back injury played a role in his psychiatric disability. He thought the contribution from ankle and knee pain were minor. (Claimant's Exhibit G, Pages 47-48)

On cross examination Dr. Mangelsdorf agreed that claimant's dyslexia preexisted the July of 1999 workrelated accident. He stated dyslexia was a condition that would limit claimant's ability to return to work in the open labor market for any kind of job that involved reading and writing. (Claimant's Exhibit G, Pages 51-52) While conceding that claimant's paranoia and hallucinations preexisted the work-related accident, he contended that they would not hinder his ability to compete in the open labor market. ${ }^{[17]}$ (Claimant's Exhibit G, Pages 52-55 \& 61-62) Dr. Mangelsdorf agreed that claimant had cognitive dysfunction before July 1999. ${ }^{[18]}$ (Claimant's Exhibit G, Page 68) On cross examination by the Second Injury Fund Dr. Mangelsdorf was not sure when the hallucinations began, but doubted that they had any effect on his employment as they were localized. (Claimant's Exhibit G, Pages 71-72) He did not have an opinion on whether employee's paranoia affected his employment. (Claimant's Exhibit G, Page 71)

On cross examination Dr. Mangelsdorf agreed that if Mr. Flannery had a desk job it would be more likely that he could return to work. Dr. Mangelsdorf admitted that he was not a vocational expert. He volunteered that Dr. Robson thought employee could return to work with restrictions. Dr. Mangelsdorf stated that he did not know any employer who would hire employee work within those restrictions. He again agreed that was not an area of his expertise. (Claimant's Exhibit G, Pages 50-51) Dr. Mangelsdorf opined that employee was not able to return to the work force because he could not read and write very well, could not concentrate and focus, and experienced back pain which was made worse by everything that he did. (Claimant's Exhibit G, Pages 55-56) Dr. Mangelsdorf admitted that he did not know much about dyslexia. He did not know how it is tested or treated. He did not see any of claimant's school records. (Claimant's Exhibit K, Page 69)

Dr. Stillings made Axis I diagnoses of: 1) dysfunctional family of origin; 2) parent/child relational problems (mother); 3) rule out narcotic abuse/addiction. These conditions were pre-existing. The Axis II diagnoses were: 1) hysteroid, depressive, schizoid and dependent personality traits; and 2) probable dyslexia. These also preexisted the workrelated accident. He opined that the July 1999 work incident was not a substantial factor in causing any of claimant's psychiatric diagnoses listed under Axis I and Axis II. But the July work accident aggravated claimant's preexisting depressive and dependent personality traits. Dr. Stillings found that claimant had substantial psychiatric problems which preexisted and coexisted the July 1999 work incident, as listed under Axis I and II, and which were causally related to non-occupational factors. From a psychiatric standpoint, Dr. Stillings found that claimant was able to work in any job for which he was suited by background, training, education and experience, within the appropriate physical limitations. Claimant's impoverished educational background and dyslexia were barriers to re-employment. (Employer/Insurer's Exhibit 9, Page 10)

In relation to the July 1999 work incident, Dr. Stillings found that claimant sustained a 2-3\% permanent partial psychiatric disability of the body as a whole due to the aggravation of his preexisting Axis II problems and his subjective complaints. (Employer/Insurer's Exhibit 9, Pages 10-11)

Timothy G. Lalk, a vocational expert, interviewed claimant and his wife on January 24, 2003. During the interview, claimant appeared to have difficulty concentrating and displayed "significant affect", which Mr. Lalk viewed as anger, anxiety and possibly depression. Mr. Lalk recommended a psychiatric evaluation by Dr. Mangelsdorf. Subsequent to that evaluation Mr. Lalk prepared a written report dated August 23, 2003 which was admitted into evidence in lieu of his testimony. (Claimant's Exhibit H, depo ex 3, p. 1)

Mr. Lalk reviewed most of the pertinent medical records, including the report of Dr. Mangelsdorf. He did not review the reports of Dr. Shutter, Dr. Hogan, or Dr. Stillings. Though he reviewed the deposition of Dr. Scheer, he mischaracterized her testimony by stating that she opined that employee was permanently and totally disabled. Mr. Lalk failed to note that she completely changed her opinion on cross examination and agreed with Dr. Robson that employee was not totally disabled. ${ }^{[19]}$ (Claimant's Exhibit H, depo ex 3, pp 2-8)

On January 24, 2003 claimant complained that the third transforaminal epidural steroid injection administered on January 14, had brought no lasting relief of his symptoms. Claimant told Mr. Lalk that he felt as though he had a "broken back". He described his primary problem as stabbing back pain, which occasionally went into his left leg and down to his left foot. Employee's back pain became worse with movement. He described left leg pain with bending and sometimes with walking. Employee told Mr. Lalk that his pain developed if he stood or sat too long. He also complained of pain in both feet, often with tingling. ${ }^{[20]}$ It increased with standing, especially on a hard surfaces. Mr. Flannery also reported poor memory and forgetfulness. He had difficulty concentrating and claimed he could not comprehend some items which he read in the newspaper, observed on television, or during simple conversation. ${ }^{[21]}$ (Claimant's Exhibit H, depo ex 3, p. 9)

Mr. Flannery told Mr. Lalk that he avoided stairs. He stated that needed to change position repeatedly while sitting in order to decrease his symptoms. Normally, claimant could drive a maximum of 40 minutes. In order to control his symptoms, claimant used a TENS unit and medication. Employee limited his activities. He had to sit quite a bit during the day and stayed in bed often. (Claimant's Exhibit H, depo ex 3, p. 10)

As to his educational background, claimant reported that he struggled in school. He had to take summer classes for reading in grades 1-8, and took special classes for mathematics. In high school, claimant was in a vocational program. He could not recall whether he was tested for learning disability. As to his vocational history, claimant reported that he worked primarily in manual labor. Although claimant worked briefly in factories, warehouses and construction, he routinely found employment as a truck driver. His vocational history was characterized by many periods of brief employment. He began work for Breckenridge Material Company in 1994. In August or September of 2000, claimant returned to light duty work, which consisted of showing customers their orders and filing papers. Employee told Mr. Lalk that he was unable to do the filing correctly. Mr. Flannery had not made any attempts to find employment since being released on permanent restrictions. (Claimant's Exhibit H, depo ex 3, pp 11-12)

Mr. Lalk administered the reading and arithmetic portions of the Wide Range Achievement Test (WRAT), Revision 3. Employee scored at the high school level in reading, and at the 6th grade level in arithmetic. Additionally, Mr. Lalk administered the reading comprehension portion of the Adult Basic Learning Examination, Level 3. Claimant scored at the 7.2 grade equivalency. Mr. Lalk thought that Dr. Mangelsdorf's speculation that claimant has dyslexia would explain claimant's difficulties in school and the results of his reading test. ${ }^{[22]}$ Mr. Lalk's concluded that claimant would not be a good candidate for post-secondary training, since he would need more than simple remedial training before he could pursue

Based upon the restrictions recommended by Dr. Robson, Mr. Lalk opined that Mr. Flannery would not be able to return to his former employment as a cement truck driver. Mr. Lalk concluded that claimant could not return to other occupations driving a truck, performing delivery, or to most manual labor positions working in a warehouse or in a factory. Claimant's need to change positions every hour and the need to avoid repetitive bending, stooping or twisting would not allow claimant to work in factories performing even assembly or packaging of small parts. Mr. Lalk found that Dr. Robson's restrictions would limit claimant to unskilled, entry level positions that could easily accommodate his need to change position. Typical jobs of this nature included cashier in a self-service/convenience store, unarmed security guard/information clerk, parking lot attendant, desk clerk at a motel or service agency, dispatcher, security monitor, and some customer service representative positions. Mr. Lalk noted that claimant had reported complaints related to his back, left leg, and both feet that were exacerbated by activities well below the level of restrictions set by Dr. Robson. He stated that Dr. Scheer noted those additional complaints and based her opinion that he was permanently and totally disabled on those complaints. Again, Mr. Lalk failed to note that Dr. Scheer changed her opinion on cross examination after being show the findings from the February 3, 2002 MRI and Dr. Robson's opinion concerning the L4-5 disk. ${ }^{[23]}$ (Claimant's Exhibit H, depo ex 3, p. 15)

Based upon Dr. Mangelsdorf's diagnosis of major depression, ${ }^{[24]}$ which was severe with psychotic and suicidal features, the findings of Dr. Sheer, and the surgical treatment by Dr. Robson, it was Mr. Lalk's opinion that claimant was unable to secure and maintain employment in the open labor market and that he would be unable to compete for any position. Mr. Lalk opined that claimant was functioning at a level which would not be acceptable in any work environment. He concluded that no employer would be able to accommodate claimant's need to seek relief by decreasing his activity and resting. It was Mr. Lalk's opinion that claimant would not be a reliable worker, based upon his inability to become active and functional on many days. Claimant's inability to recall even limited information and make appropriate judgments would prevent him from accepting even limited responsibility in a work position. Mr. Lalk did not recommend any vocational rehabilitation services for claimant unless he was able to show substantial improvement in his psychiatric condition, and have better control of his physical symptoms so that he was able to function at the sedentary level through a full work day on a regular basis. (Claimant's Exhibit H, depo ex 3, pp 15-16)

Donna Abram, a vocational rehabilitation consultant, testified by deposition on behalf of employer/insurer on January 8, 2004. She reviewed the deposition of claimant, most of the pertinent medical records and reports, including Mr. Lalk's vocational report. (Employer/Insurer's Exhibit 3, depo ex 2, p. 13) She did not review the reports of Drs. Hogan or Hoffman. (Employer/Insurer's Exhibit 3, Pages $34 \& 51$ ) Ms. Abram noted that claimant had held more than 25 jobs since graduating high school, including working as a cement truck driver, propane deliverer, press operator, shipping department worker, construction laborer, other forms of labor, material mover, dump truck driver, dishwasher and wholesaler. She stated that his prior jobs fell into the fields of structural, fabricating, installing, repairing, pressing or forging, stock checking, transporting, production services, warehousing and material moving. (Employer/Insurer's Exhibit 3, depo ex 2, pp 2-3)

Ms. Abram evaluated claimant's transferable skills. She indicated that his work history demonstrated that he had the ability to work with data to the level of comparing or judging easily observable functional, structural or compositional characteristics to determine that an item was similar to or divergent from a set standard. These activities involved inspecting or proofreading. She indicated that claimant's skills in this area could be used in a number of settings. Additionally, claimant's past job duties required the ability to work with people to the level of conversing with others to give or exchange information, including direction or work assignments. His ability to work with inanimate objects was to the level of operating or controlling machinery in situations where claimant was responsible for starting, regulating, guiding and stopping the machinery. This required claimant to make independent judgments. (Employer/Insurer's Exhibit 3, Page 21 \& depo ex 2, p. 6)

Ms. Abram noted that claimant's work history displayed his ability to reason, use arithmetic and language skills. The demonstrated job duties from claimant's past work used a reasoning ability to the level of applying common sense to carry out instructions that were furnished in a variety of methods and dealing with problems that contained several concrete variables. Employee's work history required the use of basic algebra and geometry, as well as calculating surfaces, weights, measures, selling prices and percentages. Claimant's demonstrated language skills included the ability to read simple novels, magazines, safety rules, instructions, and the use of basic reference materials. Moreover, claimant's work history demonstrated a level of aptitude in various areas, such as general learning ability, spatial perception, form perception, motor coordination, finger dexterity, manual dexterity and hand to eye coordination. (Employer/Insurer's Exhibit 3, depo ex 2, pp 67)

Upon reviewing claimant's work history, it was Donna Abram's opinion that he fell into the semi-skilled level category. Claimant had demonstrated that he had the ability to perform jobs that were more complicated than unskilled work.

She stated that when a person has worked in the semi-skilled level, some work activities can be transferred to other jobs. (Employer/Insurer's Exhibit 3, depo ex 2, pp 7-8) Ms. Abram's opined that there were jobs that claimant could perform in the semi-skilled and unskilled levels. Based on claimant's average general learning, it was possible that he would be able to increase his skill level. At the semi-skilled level, claimant met classifications that existed in the open labor market. Claimant had skills that were transferable and could be used in jobs at the semi-skilled capacity. (Employer/Insurer's Exhibit 3, Pages 19-20)

Ms. Abram's testified that based on Dr. Robson's restrictions claimant was able to work in the light to moderate range of physical demand. (Employer/Insurer's Exhibit 3, Pages 21-22 \& depo ex 2, p. 8) When looking solely at the sedentary and light categories of physical demand, claimant's profile matched 2,325 occupational classifications. When Ms. Abram added the 30 pound weight restriction to the medium range, claimant's profile matched 3,687 classifications. She identified a wide range of occupational alternatives open to claimant. (Employer/Insurer's Exhibit 3, Page 22 \& depo ex 2, p. 8) Ms. Abram testified that given employee's background, the jobs that would be the most realistic for him would be press operator, light truck driver, sport vehicle driver, coin machine collector, or light assembly. Additionally, claimant could work as an overhead crane operator or a general inspector. (Employer/Insurer's Exhibit 3, Pages 22-23 \& 39-40 \& depo ex 2, pp 89) It was Donna Abram's opinion that claimant was employable in the open labor market. (Employer/Insurer's Exhibit 3, Page 23) Ms. Abram disagreed with Mr. Lalk's opinion that Dr. Robson's restrictions limited employee to an unskilled position. She stated that given claimant's work history he was in the semi-skilled range. Employee's physical limitations would not reduce his vocational profile. (Employer/Insurer's Exhibit 3, Pages 23-24 \& 34)

In rendering her opinion regarding claimant's ability to return to work, Ms. Abram took into account claimant's psychiatric problems and the opinions of Dr. Stillings and Dr. Mangelsdorf regarding claimant's psychiatric condition. (Employer/Insurer's Exhibit 3, Pages $43 \& 47$ ) She observed that if claimant's depression problems preexisted the work incident, the manifestations of his illness did not prevent him from working. Claimant was able to maintain employment with Breckenridge Material Company for at least 4 years without significant problems, even if he did find the position stressful. She added that if Mr. Flannery obtained and benefited from treatment for depression, his employability would not be impacted by that illness. (Employer/Insurer's Exhibit 3, depo ex 2, p. 10)

Ms. Abram concluded that taking into account the impairment assessment provided by Dr. Robson, claimant retained the ability to access employment in the open labor market in positions similar to machine operation, vehicle and truck driving, assembly, delivery, crane operation and inspecting. Claimant had some experience in all of these areas, even if he had not performed all the job duties associated with the job titles given. (Employer/Insurer's Exhibit 3, depo ex 2, p. 11)

James Laufeur testified at the hearing on behalf of employer/insurer. He has been the Human Resources Manager for St. Louis Integram Seating in Pacific, Missouri for the past eight and one-half years. He is responsible for recruitment, employment, training, workers' compensation, and insurance matters for his employer ${ }^{[25]}$ He indicated that it is a union plant which make seats for Daimler Chrysler motor vehicles. He said that the company has jobs which require no lifting of greater than ten pounds and no overhead reaching. He indicated that employees can alternate between sitting and standing. The plant is air conditioned during the summer and heated during the winter. The jobs require the use of the hands. He stated that employees are able to work with lifting restrictions of no greater than 20 pounds.

In response to a hypothetical question Mr. Laufeur testified that there were jobs with his employer for people with lifting restrictions of 30 pounds and additional restrictions of no repetitive bending, stooping, twisting, or awkward position and the requirement of brief hourly position changes. He also testified that among his employer's current employees are several who have undergone a one level back fusion.

Based on my observations of Mr. Laufeur during his testimony, I find him to be a credible witness.

Dr. Robson released Mr. Flannery to return to work on January 9, 2001 with permanent restrictions of no lifting of objects weighing greater than thirty pounds, no repetitive bending, stopping, twisting, or awkward positions and requiring brief hourly position changes. In January of 2002 he reexamined employee and recommended a CT myelogram which was not performed until September of 2002. As it showed some mild degenerative changes at L4-5 Dr. Robson prescribed three

transforaminal epidural steroid injections the last of which was administered in January of 2003. A February of 2003 MRI showed that the L4-5 disk bulge had improved. Though Dr. Robson reexamined claimant in June and October of 2003, August of 2004 and February of 2005 and treated employee's occasional flare-ups of back pain with pain medication and muscle relaxers, he has never changed the permanent restrictions. While Dr. Robson indicated that employee could not return to his job at Breckenridge Material Company, he opined that employee could drive other trucks which had cushioned seats.

In October of 2003 Dr. Hoffman opined that claimant was permanently and totally disabled, 75 % referable to the back and 25 % referable to the aggravation of his psychiatric problems. He primarily relied on reports of Drs. Scheer and Mangelsdorf who also thought claimant was permanently and totally disabled. (Claimant's Exhibit F-1) Dr. Hoffman was subsequently given the report of the February of 2003 MRI which showed no abnormality of the L4-5 disk and Dr. Scheer's deposition in which she withdrew her opinion that employee was totally disabled. In his November of 2003 report Dr. Hoffman opined that claimant was permanently and totally disabled due to the back injury alone. Dr. Hoffman thought that claimant's condition had worsened since January of 2001 when he was rated by Dr. Robson. (Claimant's Exhibit F-2)

While Dr. Scheer initially thought that claimant was permanently and totally disabled, she withdrew that opinion on cross examination and stated that she had no basis for disagreeing with Dr. Robson. She agreed with his permanent restrictions and acknowledged that her own physical examination of claimant did not support more than 30 % permanent partial disability. (Claimant's Exhibit X, Pages 31, 34-35 \& 46)

Mr. Flannery has complained of on-going back and left leg pain and physical limitations which exceed those placed on him by Dr. Robson. There is considerable evidence that claimant, while not malingering, is exaggerating the extent of his symptoms. X-rays have consistently shown the fusion to be solid. The MRI of February of 2003 demonstrates that there is no recurrent disk herniation at L5-S1 and that there is only a mild bulge at L4-5 with no nerve root compression. (Employer/Insurer's Exhibit 1, Pages 21-22 \& depo ex 2, pp 80-81) Dr. Shuter and Dr. Hogan, both neurologists who examined claimant in May and November of 2003 respectively, found that claimant was exaggerating his symptoms. Both found severe weakness of claimant's entire left leg, which was not compatible with his ability to walk normally. They also found a sensory loss throughout the entirety of claimant's lower extremity which was not compatible with compression of only the S1 nerve root. Dr. Hogan also pointed out that global weakness of the quadriceps and dorsiflexion of his left foot could not be explained by an S1 lesion. I noted that while claimant was able to walk on his heels and toes for Dr. Shuter, he told Dr. Hogan six months later that he was not able to walk on his heels and toes. Dr. Shuter noted that claimant's ability to walk on the ball of his left foot and his toes was inconsistent with employee's claimed severe weakness of his entire left leg. Dr. Hogan stated that there was nothing from a neurological standpoint which prevented claimant from walking on his heels and toes. ${ }^{[26]}$

Claimant also gave some inconsistent histories during disability examinations. He gave Drs. Mangelsdorf and Scheer different histories about when his memory difficulties developed. ${ }^{[27]}$ Dr. Scheer examined claimant on May 23, 2000 for bilateral foot pain. She recorded that he had experienced bilateral foot pain for several months before his back began hurting him. (Claimant's Exhibit X; depo ex B, p. 21) Claimant testified that her medical record was wrong.

Dr. Stillings also felt that Mr. Flannery was exaggerating the extent of his symptoms. Several indexes of the MMPI-1 suggested that claimant was over-reporting his subjective complaints. On the Oswestry Disability Index employee reported low back pain in the bed bound region, which was inconsistent with his physical status. ${ }^{[28]}$ When asked about employee's claim that he needed help from his wife to put on his socks and shoes, Dr. Robson stated that it demonstrated dependent behavior rather than more symptomatology. (Employer/Insurer's Exhibit 1, Page 51) Even the Rey II test administered by Dr. Mangelsdorf showed that claimant was on the borderline for malingering. ${ }^{[29]}$ Dr. Shuter thought that "claimant's continuing low back and left lower extremity pain may be a somatic symptom of, or worsened by, his depression". (Employer/Insurer's Exhibit 5, Page 5)

Dr. Hogan opined that claimant sustained 20\% permanent partial disability of the body due to the disk herniation, nerve injury and left calf atrophy. (Employer/Insurer's Exhibit 2, Page 14) Both Drs. Shuter and Hogan opined that claimant was capable of performing employment activities with the restrictions recommended by Dr. Robson. They also agreed that employee showed severe symptom magnification. (Employer/Insurer's Exhibits 2, Pages 12 \& 17 and 5, Page 5)

Taking into account the opinions of Drs. Robson, Hogan, Shuter, and Stillings and my observations of claimant's demeanor during the course of many hours of testimony on two different days, I find that claimant is over-reporting his symptoms.

Of all the physicians who have examined Mr. Flannery, I find that Dr. Robson is in the best position to know whether

he is physically capable of returning to the labor force.

I previously found that Dr. Stillings opinions were more persuasive than those of Dr. Mangelsdorf and that based on Dr. Stillings opinions claimant had prior to July 9, 1999 substantial psychological problems from a depressive personality with dependent personality traits which resulted in part from being raised in a dysfunctional family with an emotionally abusive father. I further found that claimant did not have a single episode of major depression as a result of the July 9, 1999 accident as opined by Dr. Mangelsdorf; but the accident did aggravate claimant's depressive and dependent personality traits. ${ }^{[30]}$ Dr. Stillings testified at the hearing that from a psychiatric standpoint claimant was capable of working in any job for which he was suited by background, training, education, and experience with appropriate physical limitations. Dr. Stillings further opined that claimant had sustained 2 to 3 % permanent partial disability of the body due to the work-related aggravation of his preexisting depressive personality traits. While Dr. Mangelsdorf felt that claimant was not capable of competing in the open labor market due to the combination of his physical injury and psychiatric problems, this opinion is not probative on the issue of the extent of permanent disability caused by the work-related injury of July 9, 1999 as I previously found that most of claimant's psychiatric problems were largely preexisting. ${ }^{[31]}$

Turning to the two vocational experts, Mr. Lalk conceded that there were jobs in the open labor market within the restrictions recommended by Dr. Robson. Typical jobs were cashier in a self-service/convenience store, unarmed security guard/information clerk, parking lot attendant, desk clerk at a motel or service agency, dispatcher, security monitor, and some customer service representative positions. However, relying on the opinion of Dr. Scheer and the additional symptoms reported to Mr. Lalk by employee, he felt that claimant would not be able to compete for them given all of his additional subjective symptoms. Because I have found that claimant is over-reporting his symptoms and because Mr. Lalk relied on Dr. Scheer who completely changed her opinion on the extent of claimant's disability, Ifind that Mr. Lalk's opinion is not credible. Ms. Abram opined that claimant was able to work in the light to moderate range of physical demand. At the semiskilled level, employee met classifications that existed in the open labor market. Looking solely at the sedentary and light categories of physical demand, claimant's profile matched 2,325 occupational classifications. After adding the 30 pound weight restriction for the moderate range of physical demand, claimant's profile matched 3,687 job classifications. Ms. Abram opined that given the employee's background, the jobs that would be the most realistic for him would be press operator, light truck driver, sport vehicle driver, coin machine collector, or light assembly. Also, claimant could work as an overhead crane operator or a general inspector. As Ms. Abram primarily used Dr. Robson's restrictions in her job analysis, I find her opinions more persuasive than those of Mr. Lalk.

While both Drs. Hoffman and Mangelsdorf did not believe that there any employers who would hire someone with the restrictions recommended by Dr. Robson, there was direct evidence of availability jobs within the restrictions set forth by Dr. Robson. Mr. Laufeur, Human Resources Manager for St. Louis Integram Seating in Pacific, Missouri, credibly testified that there were jobs with his employer for people with lifting restrictions of 30 pounds and additional restrictions of no repetitive bending, stooping, twisting, or awkward position and the requirement of brief hourly position changes. He also testified that among his company's current employees are several who have undergone a one level back fusion.

Based on the credible opinions of Drs. Robson, Shuter, Hogan, Stillings and the vocational of Ms. Abram and taking into account claimant's educational and employment background, his age of 34-1/2 years as of January 9, 2001, andthe permanent restrictions recommended by Dr. Robson, I find that claimant was not permanently and totally disabled as a result of claimant's back injury of July 9, 1999 and the aggravation of his preexisting depressive personality traits. Based on the opinions of Drs. Robson and Stillings and taking into account the testimony of employee, I find that claimant sustained 40 % permanent partial disability of the body referable to the low back and 10 % permanent partial disability of the body referable to the aggravation of claimant's preexisting depressive personality traits as a result of the July 9, 1999 work-related accident.

Employee claims in the alternative that he is permanently and totally disabled as a result of the combination of the July 9, 1999 back injury with employee's alleged preexisting disabilities in his left ankle and right knee and due to a preexisting psychological depressive disorder and dyslexia.

UnderSection 287.220.1 Mo. Rev. Stat. (2000) where a previous partial disability or disabilities, whether from a compensable injury or otherwise, and the last injury combine to result in total and permanent disability, the employer at the time of the last injury is liable only for the disability which results from the last injury considered by itself ${ }^{[32]}$ and the Second Injury Fund shall pay the remainder of the compensation that would be due for permanent total disability under

Section 287.200. Grant v. Neal, 381 S.W.2d 838, 840 (Mo. 1964); Wuebbeling v. West County Drywall, 898 S.W.2d 615, 617-18 (Mo. App. 1995); Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 366 (Mo. App. 1992); Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo. App. 1990). The employee must prove that a prior permanent partial disability, whether from a compensable injury or not, combined with the subsequent compensable injury to result in total and permanent disability.

The employee must first prove that he or she had a permanent partial disability or disabilities preexisting the present injury and the amount thereof which existed at the time of the compensable injury. Garcia v. St. Louis County, 916 S.W.2d 263, 267 (Mo. App. 1995); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 366 (Mo. App. 1992); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 577 (Mo. App. 1985). It is not necessary that the "previous disability" be due to an injury. Section 287.220 .1 was amended in 1993 to define the nature of the preexisting disability as "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ...." ${ }^{[33]}$ The appellate courts have held that the portion of the 1993 amendment to Section 287.220.1 Mo. Rev. Stat. (2000) which modified the definition of preexisting disability was applicable to all pending cases without regard to the date of injury. Leutzinger v. Treasurer, 895 S.W.2d 591 (Mo. App. 1995); Lane v. Schreiber Foods, Inc., 903 S.W.2d 616 (Mo. App. 1995); Faulkner v. St. Luke's Hospital, 903 S.W.2d 588 (Mo. App. 1996).In Wuebbeling v. West County Drywall, 898 S.W.2d 615 (Mo. App. 1995), the court of appeals stated in dicta that "a previously existing condition that a cautious employer could 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" would constitute a hindrance or obstacle to employment or reemployment. Id. at 620. That test was adopted in Garibay v. Treasurer of Missouri, 930 S.W.2d 57, 60 (Mo. App. 1997). Being able to work, though in pain, following a previous injury is not incompatible with that injury being treated as a preexisting permanent partial disability. Hedrick v. Chrysler Corp., 900 S.W.2d 233, 236 (Mo. App. 1995).

The nature and extent of the preexisting disabilities are determined as of date of the primary injury. Garcia v. St. Louis County, 916 S.W.2d 263, 267 (Mo. App. 1995); Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 366 (Mo. App. 1992); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 577 (Mo. App. 1985). The Second Injury Fund is not liable for any post-accident worsening of an employee's preexisting disabilities which are not caused or aggravated by the last work related injury or for any conditions which arise after the last work-related injury. Garcia v. St. Louis County, supra; Frazier v. Treasurer of Missouri, 869 S.W.2d 152 (Mo. App. 1994); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo. App. 1992); see also Wilhite v. Hurd, 411 S.W.2d 72 (Mo. 1967).

Employee claims that the following conditions constitute "previous disabilities" under §287.220.1: 1986 right knee injury, 1993 left ankle fracture, and psychological conditions and learning disability.

On May 13, 1986 claimant was loading a truck for his employer, Beco Concrete, when a chain binder snapped and struck him on the right knee. After conservative care failed to improve his right knee complaints, claimant underwent a diagnostic arthroscopy and excision of an inflamed medial synovial shelf and of some of the reactive synovitis in the anterior notch performed by Dr. William S. Costen on April 12, 1989. Dr. Costen's last examination of the employee's right knee took place on June 14, 1990. At that time claimant reported two recent flare-ups of fluid in the knee. (Claimant's Exhibit R and Employer/Insurer's Exhibit 7)

Mr. Flannery settled his worker's compensation claim against Beco Concrete, Injury No. 86-055967, on April 18, 1991 for 10 % permanent partial disability of the right knee. (Claimant's Exhibit T and Employer/Insurer's Exhibit 6)

Dr. Scheer evaluated claimant's preexisting conditions on October 18, 2002. Employee described the 1988 accident. He mistakenly described his surgery as a meniscectomy. Claimant told Dr. Scheer that he had experienced intermittent pain in the knee ever since the accident. He said that it flared up 6 to 8 times a year, usually when the weather changed. The pain would last between 2 and 4 days. It consisted of a sharp pain in the medial knee, which was worse with walking. Sometimes, claimant's knee condition made it difficult for him to sit or get out of the car. His knee also swelled occasionally. On examination, claimant's right knee appeared normal. There was no obvious deformity, effusion or asymmetry. The knee was minimally tender to palpation over the medial joint line space. Claimant indicated pain over the inferomedial peripatellar structures. Active and passive range of motion were full without discomfort. The knee was ligamentously intact. (Claimant's Exhibit X, depo ex B, p. 6)

It was Dr. Scheer's opinion that claimant suffered from intermittent pain as a result of his right knee injury which,

when it flared up, limited employee's ability to perform routine daily activities. Dr. Scheer concluded that claimant's right knee injury did not significantly disable him. (Claimant's Exhibit X, depo ex B, p. 7) Dr. Scheer did not provide any ratings with respect to claimant's right knee. (Claimant's Exhibit X, Pages 18-19)

Dr. Hoffman testified that claimant told him that he was no problems from the prior right knee injury. Dr. Hoffmann did not assign any preexisting disability for claimant's knee.

On April 5, 1993 claimant fell while riding his motorcycle, landing on his left lower extremity. He was treated at St. John's Mercy Hospital in Washington, Missouri. On examination, claimant had diffuse tenderness and swelling across the left ankle and foot. X-rays of claimant's left ankle demonstrated subtle changes in the medial dome of the talus, suspicious for a non-displaced fracture. X-rays of the left foot revealed a commuted fracture of the cuboid. (Claimant's Exhibit Q, Pages 2-9 and Employer/Insurer's Exhibit 8)

Claimant described the motor vehicle accident to Dr. Scheer. He reported limited movement in the ankle to the present. He was not able to walk normally because the ankle did not dorsiflex or plantar flex much. He had some ankle pain nearly every day. At times, especially with weather changes, employee's pain became even more severe. Claimant's ankle prevented him from running. It was difficult for him to do tasks which involved a lot of ankle dexterity, such as riding a motorcycle or driving a stick shift for any length of time. (Claimant's Exhibit X, depo ex B, p. 6)

On examination, claimant indicated pain over the medial structure. There was minimal tenderness to palpation. Active and passive range of motion was limited to only $15^{\circ} at dorsiflexion and 15^{\circ}$ of plantar flexion. There was no subtalar motion or subluxation. The employee's left foot fracture resulted in decreased range of motion and pain. This altered employee's gait and prevented him from doing activities involving running. In Dr. Scheer's opinion, this clearly represented a long term disability which was extremely unlikely to improve in the future. (Claimant's Exhibit X, depo ex B, pp 6-7) Dr. Scheer did not provide any ratings with respect to claimant's left ankle. (Claimant's Exhibit X, Pages 18-19)

Dr. Hoffman testified that claimant told him that he was no problems from the prior left ankle injury. Dr. Hoffmann did not assign any preexisting disability for claimant's ankle.

During the October 18, 2002 evaluation, claimant also reported to Dr. Scheer that he suffered memory loss as a result of the 1993 motor vehicle accident. He could not remember the 2 days before and the 3 days following the accident. His memory was sharp before the accident, but ever since the accident, claimant had experienced difficulty with short and long term memory. If someone asked him to do something, five minutes later he could not recall the conversation. While the employee could not give an example of long term memory problems, he stated that he had lost most of his memory back to age 8. Claimant's short term memory problems were most notable when interacting with other people, especially his wife. He was always forgetting to do things she asked him to do. Dr. Scheer indicated that she was not familiar with the medical literature on long-term memory problems following a concussion and she was not able to test his memory. She suggested formal testing by a psychiatrist. She testified that she would defer to a neurologist or psychologist concerning any memory deficit. (Claimant's Exhibit X, Page 40 \&depo ex B, pp 6-7)

Claimant testified that his memory problems did not continue after the 1993 accident. He testified that his current memory problems began after the first surgery performed by Dr. Robson.

While claimant had no psychological treatment prior to July 9, 1999, he reported to Dr. Scheer on August 11, 1998 that he was under stress because of working three jobs. He had complaints of abdominal pain for the preceding several months. He was prescribed Prilosec. (Claimant's Exhibit X, depo ex B, p. 28)

Claimant testified that his father was an alcoholic and was emotionally abusive. Employee had a poor relationship with his siblings. He also had problems with his wife's biological father. Claimant experienced hallucinations regarding his sister-in-law. Employee has feelings of paranoia and thinks he is being followed by prior acquaintances who introduced him to drugs.

Dr. Mangelsdorf diagnosed claimant with single episode of major depression, inability to focus and concentrate, poor comprehension, dyslexia, and psychotic features of paranoia, hallucinations and delusions. He opined that claimant's impairment level was 80 % from a psychiatric viewpoint alone. (Claimant's Exhibit G, depo ex B, p. 10) On cross

examination he agreed that claimant's dyslexia preexisted the July of 1999 work-related accident. He stated that the dyslexia would limit claimant's ability to compete for any job that involved reading and writing. (Claimant's Exhibit G, Pages 51-52) While conceding that claimant's paranoia and hallucinations preexisted the work-related accident, he contended that they would not hinder his ability to compete in the open labor market. (Claimant's Exhibit G, Pages 52-55 \& 6162) Dr. Mangelsdorf expressed the opposite opinion in his June 11, 2003 evaluation report. (Claimant's Exhibit G, depo ex B, p. 10) On cross examination by the Second Injury Fund Dr. Mangelsdorf was not sure when the hallucinations began, but doubted that they had any effect on his employment as they were localized. (Claimant's Exhibit G, Pages 71-72) He did not have an opinion on whether employee's paranoia affected his employment. (Claimant's Exhibit G, Page 71)

Dr. Stillings made Axis I diagnoses of: 1) dysfunctional family of origin; 2) parent/child relational problems (mother); 3) rule out narcotic abuse/addiction. These conditions were pre-existing. The Axis II diagnoses were: 1) hysteroid, depressive, schizoid and dependent personality traits; and 2) probable dyslexia. These also preexisted the workrelated accident. He opined that the July 1999 work incident was not a substantial factor in causing any of claimant's psychiatric diagnoses listed under Axis I and Axis II. But the July work accident aggravated claimant's preexisting depressive and dependent personality traits. Dr. Stillings found that claimant had substantial psychiatric problems which preexisted and coexisted the July 1999 work incident, as listed under Axis I and II, and which were causally related to non-occupational factors. From a psychiatric standpoint, Dr. Stillings found that claimant was able to work in any job for which he was suited by background, training, education and experience, within the appropriate physical limitations. Claimant's impoverished educational background and dyslexia were barriers to re-employment. (Employer/Insurer's Exhibit 9, Page 10)

Claimant testified that he had problems reading and spelling during grade school. he had to struggle to get through school. Claimant attended summer school for reading from the first through the eighth grades. He was placed in special classes in grade school and high school. His grades were mostly D's. He graduated from high school.

While Drs. Mangelsdorf and Stillings diagnosed probable dyslexia, no testing was performed by them to confirm that diagnosis. It was made based on claimant's report of a prior diagnosis in high school. Neither saw claimant's school records. Dr. Mangelsdorf admitted that he knew little about dyslexia. (Claimant's Exhibit K, Page 69) No test results were introduced into evidence to establish that diagnosis. Claimant testified that he can read the newspaper. According to the results of the Wide Range Achievement Test administered by Mr. Lalk, claimant scored at the high school level in reading. On the reading portion of the Adult Basic Learning Examination, he scored at the 7.2 grade equivalency. (Claimant's Exhibit H, depo ex 3, Page 12)

I find the evidence is insufficient to determine whether claimant had any preexisting disability with respect to his alleged dyslexia. The only evidence is claimant's testimony. Both Drs. Mangelsdorf and Stillings based their diagnoses on claimant's report to them of a prior high school diagnosis. No such record was offered into evidence.

While Dr. Stillings opined that claimant had substantial preexisting psychiatric problems, he did not any preexisting permanent disability to those problems. Furthermore, he felt that from a psychiatric standpoint claimant was able to work in any job for which he was suited by background, training, education, and experience. While Dr. Mangelsdorf rated claimant's overall psychiatric disability, he failed to separate the preexisting disability from the disability caused by the work-related accident. Furthermore, I previously found that his diagnosis of major depression was not credible.

Takings into account the opinions of Drs. Stillings and Mangelsdorf, I find that there is little evidence that claimant's preexisting psychiatric problems were a hindrance or obstacle to his employment.

Based on the medical evidence and the opinions of Dr. Scheer, I find that the employee had the following disabilities which were "of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed ...." immediately prior to the July 9, 1999 injury to his low back: 15 % permanent partial disability of the right knee and 25 % permanent partial disability of the left foot. The foregoing disabilities total 61.5 weeks of compensation and are equivalent of 15.375 % of the body as a whole.

Lastly, it must be determined whether the preexisting disabilities to Mr. Flannery's right knee an left ankle as of July 9, 1999 together with the disabilities to his low back which he sustained as a result of the work-related accident of July 9, 1999 result in total and permanent disability. ${ }^{[54]}$ Normally, the determination as to whether an injured employee is permanently and totally disabled would be made as of the date of the primary injury, the Second Injury Fund not being liable

for the post-injury worsening of an employee's preexisting disabilities which are not caused or aggravated by the last workrelated injury or for any conditions which arise after the last work-related injury. ${ }^{[35]}$

As claimant told Dr. Hoffman that he was not having any problems from the prior right knee and left ankle injuries, Dr. Hoffmann did not assign any preexisting disability for those conditions. As Dr. Hoffman opined that claimant was totally disabled as a result of the back injury of July 9, 1999 and did not believe that claimant had any preexisting disabilities from the prior right knee and left ankle injuries, Dr. Hoffman did not offer a separate opinion as to the combination of his low back disability with the right knee and left ankle conditions.

Dr. Scheer testified that claimant was permanently and totally disabled primarily because of his back conditions. She opined that his prior right knee injury and left ankle fracture did not significantly contribute to his overall disability. (Claimant's Exhibit X, Pages 7-8) On cross examination she added that his preexisting right knee and left ankle problems made his back only slightly worse; they combined to increase his symptoms. But she had difficulty quantifying how much worse. (Claimant's Exhibit X, Pages 21-22) She changed her opinion on further cross examination after being advised of Dr. Robson's restrictions and rating and stated that she would rather not render an opinion regarding claimant's disability. (Claimant's Exhibit X, Pages 34-35) Given Dr. Scheer's dramatic change of opinion regarding the extent of disability associated with employee's back injury, I find her prior opinion concerning the combination of disabilities from his back injury and prior right knee and left ankle injuries to be not credible.

Dr. Mangelsdorf's opined that claimant was unable to be employed in the open labor market due to a combination of claimant's back injury and his psychiatric problems. This opinion was based on a diagnosis of single episode of major depression with psychotic and suicidal features. (Claimant's Exhibit G, Pages 6-7 \& depo ex B, p. 10) Dr. Mangelsdorf concluded that the pain from claimant's back injury played a role in his psychiatric disability. He thought the contribution from ankle and knee pain were minor. (Claimant's Exhibit G, Pages 47-48) As I previously found Dr. Mangelsdorf's opinion concerning claimant's psychiatric diagnosis to be not credible, I find that his opinion concerning the combination of disabilities from employee's back injury and his psychiatric problems is not credible.

Dr. Stillings opined that from a psychiatric standpoint claimant was able to work in any job for which he was suited by background, training, education and experience, within the appropriate physical limitations. (Employer/Insurer's Exhibit 9, Page 10)

Neither Mr. Lalk nor Ms. Abram gave separate opinions which added the additional disabilities from claimant's right knee and left ankle to their analysis.

Based on all of the medical evidence adduced, the credible opinions of Dr. Robson, Dr. Stillings and Ms. Abram and taking into account claimant's educational and employment background, his age of 34-1/2 years as of January 9, 2001, and the permanent restrictions recommended by Dr. Robson, I find that the employee was not permanently and totally disabled as a result of the combination of the disability from primary injuries sustained as a result of the July 9, 1999 accident (low back and aggravation of preexisting depressive personality traits) with the preexisting disabilities to his right knee and left ankle. ${ }^{[36]}$

Having found that employee was not permanently and totally disabled as a result of the combination of the primary injuries sustained on July 9, 1999 with the preexisting disabilities, it is next necessary to determine whether employee is entitled to an award of additional permanent partial disability from the Second Injury Fund pursuant to Section 287.220.1 Mo. Rev. Stat. (2000). Under that section an employee who has a permanent partial disability and who subsequently sustains a compensable injury may recover from the Second Injury Fund any additional permanent disability caused by the combination of the preexisting disability and the disability from the subsequent injury. The employer is liable only for the disability caused by the work-related accident. The Second Injury Fund is liable for the difference between the sum of the two disabilities considered separately and independently and the disability resulting from their combination. Cartwright v. Wells Fargo Armored Serv., 921 S.W.2d 165, 167 (Mo. App. 1996); Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995); Brown v. Treasurer of Missouri, 795 S.W.2d 479 (Mo. App. 1990); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576-77 (Mo. App. 1985). In order to recover from the Second Injury Fund the employee must prove a prior permanent partial disability, whether from a compensable injury or not, a subsequent compensable injury, and a synergistic combination of the preexisting and subsequent disabilities.

I have previously determined the extent of claimant's preexisting disabilities and the extent of the disability from the primary injury.

Thresholds

The 1993 amendment to Section 287.220.1 also established minimum threshold requirements with respect to both the preexisting disability and the subsequent compensable injury of 50 weeks for a body as a whole injury or 15% of a major extremity. The appellate courts have held that these requirements are not to be applied retroactively. Smart v. Missouri State Treasurer, 916 Mo. App. 367 (Mo. App. 1996); Fletcher v. Treasurer, 922 S.W.2d 402 (Mo. App. 1996); Cartwright v. Wells Fargo Armored Serv., 921 S.W.2d 165, 167 (Mo. App. 1996); Suarez v. Treasurer of Mo., 924 S.W.2d 602, 604 (Mo. App. 1996); Faulkner v. Chrysler Corporation, 924 S.W.2d 866 (Mo. App. 1996).

As I previously found that the claimant sustained 50% permanent partial disability of the body as a result of the primary injuries, I find that claimant has met the threshold requirements for the primary injury.

As the April of 1993 left ankle injury and 1986 right knee injury both antedate the effective date of the 1993 amendments, I find that the thresholds are inapplicable to claimant's preexisting disabilities.[37]

Combination of Preexisting and Primary Disabilities

The employee must next prove a combination effect. The amendment also added the word "substantially" in describing the greater overall disability.[38] The employee must show that his or her present compensable injury combines with the preexisting permanent partial disability to cause a substantially greater overall disability than the sum of the disabilities considered independently. Cartwright v. Wells Fargo Armored Serv., 921 S.W.2d 165, 167 (Mo. App. 1996); Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 177-78 (Mo. App. 1995); Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo. App. 1990); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576-77 (Mo. App. 1985).

Medical Opinions

Dr. Scheer testified that claimant's reduced ankle motion caused an abnormal gait, and thereby increased muscular stress to claimant's low back, which in turn, exacerbated his back condition. Although claimant's right knee was a less frequent problem, when it flared up, it resulted in the same exacerbation. She stated that it was likely they made his back a bit worse. (Claimant's Exhibit X, Pages 18 & 21 & depo ex B, pp 6-7)

Findings on Additional Permanent Disability

Given the nature of claimant's preexisting disabilities and based on the opinion of Dr. Scheer, I find that there is a combination effect between the preexisting disabilities affecting employee's right knee and left ankle with his July 9, 1999 low back injury which produces a substantially greater overall disability.

It is next necessary to determine "the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained."[39] Based on the medical evidence and the testimony of the employee, I find that the employee is 75% disabled with respect to the body as a whole as a result of "all of the injuries and conditions existing at the time the last injury was sustained."

Having previously determined that the employee's disabilities which existed prior to the last injury were 15% of the right knee and 25% of the left foot (which are equivalent to 15.375% of the body as a whole) and that the disability which resulted from the last injury is 50% of the body as a whole, I hereby find that the Second Injury Fund is liable for the balance of the combined disability (75% less 65.375%), to wit: 9.625% of the body as a whole.

EMPLOYER/INSURER'S SUBROGATION CREDIT

The parties stipulated that claimant settled a third-party tort claim pertaining to the work-related accident for $800,000.00 Employer/insurer are seeking reimbursement of workers' compensation benefits which they previously paid and for a credit against the additional benefits awarded herein.

Employer's right of subrogation is set forth in Section 287.150 Mo. Rev. Stat. (2000). Subsection 1 of Section 287.150 provides:

Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person shall be apportioned between the employer and employee or his dependents using the provisions of subsections 2 and 3 of this section.

The method for calculating the amount of the credit due the employer is set forth in subsection 3 of Section 287.150 which provides:

Whenever recovery against the third person is effected by the employee or his dependents, the employer shall pay from his share of the recovery a proportionate share of the expenses of the recovery, including a reasonable attorney fee. After the expenses and attorney fee have been paid, the balance of the recovery shall be apportioned between the employer and the employee or his dependents in the same ratio that the amount due the employer bears to the total amount recovered if there is no finding of comparative fault on the part of the employee, or the total damages determined by the trier of fact if there is a finding of comparative fault on the part of the employee. Notwithstanding the foregoing provision, the balance of the recovery may be divided between the employer and the employee or his dependents as they may otherwise agree. Any part of the recovery found to be due to the employer, the employee or his dependents shall be paid forthwith and any part of the recovery paid to the employee or his dependents under this section shall be treated by them as an advance payment by the employer on account of any future installments of compensation in the following manner:

(1) The total amount paid to the employee or his dependents shall be treated as an advance payment if there is no finding of comparative fault on the part of the employee; or

(2) A percentage of the amount paid to the employee or his dependents equal to the percentage of fault assessed to the third person from whom recovery is made shall be treated as an advance payment if there is a finding of comparative fault on the part of the employee.

In Ruediger v. Kallmeyer Brothers Service, 501 S. W. 2d 56 (Mo. 1973), the Supreme Court held that Subsection 3 of Section 287.150 requires the following calculation:

1) the expenses of the third party litigation should be deducted from the third party recovery; 2) the balance should be apportioned in the same ratio that the amount paid by the employer at the time of the third party recovery bears to the total amount recovered from the third party; 3) the amounts due each should be paid forthwith; 4) the amount paid the employee should be treated as an advance payment on account of any future installments of compensation; and 5) in a case such as presented here, the employee should be entitled to future compensation benefits in the event that the amount paid to him as an advance is exhausted under the provisions of the statute.

The parties have stipulated that the employer had paid the following amounts prior to the third party recovery: $\ 83,206.55 in medical bills, $\ 36,072.96 in temporary disability compensation; and $\ 25,000.00 as an advance on permanent partial disability for a total of $\ 144,279.51.

The expenses of the third party litigation totaled \$271,395.75. (Employer/Insurer's Exhibit 13) After deducting that amount from the third party recovery of $\ 800,000.00, the balance of the recovery is $\ 528,604.25.

The ratio which the amount paid by the employer at the time of the third party recovery bears to the total amount recovered from the third party is calculated as $\ 144,279.51 divided by $\ 800,000.00. The ratio is 18 %.

The balance of the third party recovery is allocated 18 % to the employer/insurer and 82 % to the employee. The amount due to the employer is $\ 95,148.77. The amount due the employee is $\ 433,455.48. Those amounts should be paid forthwith.

The $\ 433,455.48 paid to the employee is treated as an advance payment on account of any future installments of compensation.

Based on the application of Section 287.150 .3 to the recovery from the third party litigation, I find that the employer/insurer are entitled to be reimbursed $\ 95,148.77 of the $\ 144,279.51 in workers' compensation benefits which they

paid prior to the third party recovery. Employee is hereby ordered to pay that amount to employer/insurer forthwith. I further find that employer/insurer are entitled to a credit against all of the permanent partial disability benefits awarded herein in the amount of $\ 60,602.00 ( 200 weeks multiplied by $\ 303.01 per week). Employer is also entitled to a subrogation credit for future medical payments awarded herein. McCormack v. Stewart Enterprises, Inc. 916 S.W.2d 219, 226 (Mo. App. 1995). The amount of the remaining credit is $\ 361,187.59 ( $\ 372,853.48 less $\ 11,665.89 Second Injury Fund credit).

The Second Injury Fund is seeking a subrogation credit against the permanent partial benefits awarded herein.

The Missouri Supreme Court held in Cole v. Morris, 409 S.W.2d 668 (Mo. 1966) that the Second Injury Fund has a right to subrogation against a third party who is responsible for the injury to the claimant. This right arises by operation of law. The decision sets forth the manner in which the calculation is to be made. Accord, Manley v. Mulligan Construction Co., 107 S.W.3d 285 (Mo. App. 2003).

The Supreme Court held that the net recovery from the third party litigation is to be held by the employee and treated as an advance payment on account of any future installments of compensation.

Based on the decision in Cole v. Morris, supra, I find that the Second Injury Fund is entitled to a subrogation credit against the permanent partial benefits awarded herein. After deducting the $\ 60,602.00 credit due the employer/insurer for permanent partial disability compensation awarded herein from the remaining balance of $\ 433,455.48 leaves a balance of $\ 372,853.48 which shall be retained by employee and treated as an advance payment on account of future installments of compensation from the Second Injury Fund.

Date: $\qquad Made by: \qquad$

John Howard Percy

Administrative Law Judge

Division of Workers' Compensation

A true copy: Attest:

Patricia "Pat" Secrest

Director

Division of Workers' Compensation

See also Employer/Insurer's Exhibit 14.

He told the initial treating physician that he was traveling 30 miles per hour.

Claimant testified that he did not have bilateral foot pain in May of 2000 and that Dr. Scheer's medical record was wrong.

The Work Center records are not in evidence. Dr. Robson testified that the functional capacity report showed that employee functioned at the light duty work range with a 30 pound weight limit, with no repetitive bending, stooping, twisting or awkward positions, and that he required brief changes of position on an hourly basis. (Employer/Insurer's Exhibit 1, Page 15)

This is the first indication in the treatment records of the claimant wearing a TENS unit. The only evidence of who prescribed it was claimant's testimony that Dr. Scheer prescribed it.

He summarized Dr. Robson's medical reports and gave his opinion on permanent disability based on those reports and the permanent

restrictions recommended by Dr. Robson. (Claimant's Exhibit F, Pages 2-3)

[7] Dr. Robson was not certain of the precise cause of the reherniation. (Employer/Insurer's Exhibit 1, Pages 66 \& 69)

[8] Claimant told Dr. Mangelsdorf that he would have been more successful had his father not lowered his self-esteem. (Claimant's Exhibit G, depo ex B, p. 7)

[9] See footnote 5 supra.

[10] As there was no evidence concerning the period of time that usually elapses between a fusion surgery and the development of juxtafusional pathology at the adjacent segment which requires treatment, I have decided that 10 years following the date of the fusion at L5-S1 would be appropriate. Future medical cases involving knee and hip replacement, where no time limit is placed on when the future surgery must be performed, are distinguishable because the evidence in such cases is usually that the employee will eventually require the joint replacement with the timing being postponed until the employee can no longer tolerate his or her symptoms. Delaying surgery in those cases is justified by the limited life expectancy of the prosthesis and the desire of limiting the number of repeat surgeries.

[11] Dr. Mangelsdorf described the dosage as therapeutic for depression. (Claimant's Exhibit G, Pages 10 \& 58)

[12] Employer/insurer sought reimbursement of $\ 1,983.29, the total amount of temporary total disability compensation benefits which they paid during the period when claimant was also receiving unemployment compensation benefits. The statute limits the credit to only the amount of unemployment compensation benefits paid and charged to the employer. It does not provide for a forfeiture of temporary total disability compensation during the period of joint payments.

[13] On direct examination Dr. Hoffmann testified that the finding of diminished filling of the left L5 nerve root sheath on the October 20, 2002 post myelogram CT scan showed that there was tremendous scar tissue present. On cross examination he acknowledged that he had not reviewed the February 3, 2003 MRI which reported that there was no abnormality at L4-5.

[14] Claimant described prior injuries to his left ankle and right knee.

[15] He was able to walk on his toes and heels on May 21, 2003 for Dr. Shuter.

[16] Dr. Hogan indicated that the atrophy could indicate that claimant had left S1 nerve root injury at the time of surgery. Dr. Hogan was incorrect as claimant had developed significant left calf atrophy by November 29, 1999 as documented by Dr. Johnston. See Page 8 supra.

Dr. Hogan also thought some of the atrophy was from disuse since claimant had no active physical therapy. This is also incorrect. Claimant had active physical therapy before and after the first surgery and after the second surgery. See Pages 7, 8, \& 9 supra.

[17] Dr. Mangelsdorf expressed the opposite opinion in his June 11, 2003 evaluation report. (Claimant's Exhibit G, depo ex B, p. 10)

[18] Dr. Mangelsdorf admitted that claimant gave him a different history of his memory difficulties than he apparently gave to Dr. Scheer in October of 2002. Employee told Dr. Scheer on October 18, 2002 that they developed following a concussion which he sustained in a 1992 motor vehicle accident and continued to the preset. Employee told Dr. Mangelsdorf that his memory problems arising out of the 1992 accident lasted only a few weeks and his memory was okay after that. (Claimant's Exhibit G, Pages 40-41)

[19] See Page 34 supra.

[20] Dr. Scheer noted that claimant complained of pain in both feet on May 23, 2000. Her diagnosis was bilateral plantar fasciitis. See Page 9 supra.

[21] Claimant was then taking Vioxx and hydrocodone, which were prescribed by Dr. Scheer, and Methocarbamol, Ranitidine (zantac), and amitriptyline, which were prescribed by Dr. Robson. (Claimant's Exhibit W, Page 3)

[22] As Dr. Mangelsdorf admitted that he did not know much about dyslexia, Mr. Lalk's opinions concerning the effect of any dyslexia are misplaced. (Claimant's Exhibit K, Page 69)

[23] See Page 34 supra.

[24] Mr. Lalk did not review the report of Dr. Stillings who reached very different conclusions from Dr. Mangelsdorf.

[25] Claimant testified that he worked for this company for a few months during 1993. See Page 30 supra.

[26] See footnote 15 and accompanying text supra.

[27] See footnote 18 supra.

[28] See Page 20 supra.

[29] See Page 17 supra.

[30] See Page 22 supra.

[31] See Page 22 supra.

[32] The employer's liability for permanent partial disability compensation is determined under Section 287.190. Stewart v. Johnson, 398 S.W.2d 850 (Mo. 1966).

[33] The amendment also established minimum threshold requirements with respect to both the preexisting disability and the subsequent compensable injury which do not apply in determining permanent total disability.

[34] Section 287.220.1 Mo. Rev. Stat. (2000).

[35] Garcia v. St. Louis County, 916 S.W.2d 263 (Mo. App. 1996); Frazier v. Treasurer of Missouri, 869 S.W.2d 152 (Mo. App. 1994); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo. App. 1992); see also Wilhite v. Hurd, 411 S.W.2d 72 (Mo. 1967).

[36] I previously found that there was no measurable disability attributable to employee's preexisting psychiatric condition or alleged dyslexia. See Page 51 supra.

[37] I also found that claimant's preexisting disabilities were 25 % of the left foot and 15 % of the right knee, both of which also meet the threshold requirements.

[38] It is unclear whether the word "substantially" would be applied to any case with pre-1993 preexisting disabilities.

[39] Section 287.220.1 Mo. Rev. Stat. (2000); Garcia v. St. Louis County, 916 S.W.2d 263 (Mo. App. 1995); Frazier v. Treasurer of Missouri, 869 S.W.2d 152 (Mo. App. 1994); Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo. App. 1992); Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576-77 (Mo. App. 1985).