James Hillis v. City of Cape Girardeau

Additional Party: Second Injury Fund

Insurer: Self-insured c/o Corporate Claims

Hearing Date: March 26, 2007

Checked by: JK/kh

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease? October 1, 2002 and January 28, 2003
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Undetermined
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured by above insurer? Self -insured
11. Describe work employee was doing and how accident happened or occupational disease contracted: For the October 1, 2002 claim under injury number 02-158218, the employee alleged that he injured his low back while lifting a generator. For the January 28, 2003 claim under injury number 03-009854, the employee alleged that he suffered a re-herniated disc at the L5-S1 level while bending over and picking up trash.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Alleged injuries to low back
14. Nature and extent of any permanent disability: Undetermined (primary claims against employer settled by compromise settlement agreement)
15. Compensation paid to date for temporary total disability: Undetermined
16. Value necessary medical aid paid to date by employer-insurer: Undetermined
17. Value necessary medical aid not furnished by employer-insurer: N/A
18. Employee's average weekly wage: $\ 510.69
19. Weekly compensation rate: $\ 340.12 per week for temporary total disability, permanent total disability and permanent partial disability.
20. Method wages computation: By agreement
21. Amount of compensation payable: The employee's claims against the employer were settled prior to the date of the hearing.
22. Second Injury Fund liability: None. Both Second Injury Fund claims are denied.

On March 26, 2007, the employee, James Hillis, appeared in person and by his attorney, Mr. Ed Gilkerson, for a hearing on his claims against the Second Injury Fund under injury number 02-158218 and injury number 03-009854. The employee's claims against the employer-insurer were settled prior to the date of the hearing. The Second Injury Fund was represented at the hearing by Assistant Attorney General Matt Edwards and Assistant Attorney General Frank Rodman. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. On or about October 1, 2002, the City of Cape Girardeau was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and it was duly qualified as a self-insured employer in care of Corporate Claims.
2. On or about October 1, 2002, James Hillis was an employee of the City of Girardeau, and was working under the provisions of the Missouri Workers' Compensation Act.
3. The employee's claim for compensation against the Second Injury Fund was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 510.69 per week and his rate of compensation is $\ 340.12 per week.
5. No medical aid was furnished by the employer-insurer.
6. No temporary total disability benefits were paid by the employer-insurer.

1. On or about January 28, 2003, the City of Cape Girardeau was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and it was duly qualified as a self-insured employer in care of Corporate Claims.
2. On or about January 28, 2003, James Hillis was an employee of the City of Cape Girardeau, and was working under the provisions of the Missouri Workers' Compensation Act.
3. The employer had notice of the employee's alleged accident.
4. The employee's claim for compensation against the Second Injury Fund was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 510.69 per week and his rate of compensation is $\ 340.12 per week.
6. The employer paid medical benefits totaling $\ 61,575.18.
7. The employer paid temporary total disability benefits in the amount of $\ 13,789.32.

1. Accident
2. Notice
3. Medical Causation
4. Liability of the Second Injury Fund

1. Accident
2. Medical Causation
3. Liability of the Second Injury Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

A. Deposition of Dr. David T. Volarich

B. Deposition of Mr. James M. England Jr.

C. Medical records of Dr. Dennis Mollman of Neurosurgery and Neurology, LLC

D. Medical records of Dr. James Compton

E. Compromise Settlement Agreement under injury number 03-009854

F. Compromise Settlement Agreement and attached letter from the Department of Health and Human Services under injury number 02-158218.

Second Injury Fund Exhibits:

None offered

Based on the employee's testimony, the medical records and the other evidence admitted, I find as follows:

- At the time of the hearing James Hillis ("employee") was 59-years-old. The employee obtained his GED after leaving school at the end of the tenth grade. The employee had additional vocational training while employed by the City of Cape Girardeau in automotive, welding and small engines. The employee's work history included two years in the U. S. Army, operating heavy equipment at several landfills, and twenty-nine years of employment with the City of Cape Girardeau working at the landfill and in other departments in the public works area.

- On or about October 1, 2002 the employee and another co-worker were unloading a generator that weighed 75-100 pounds. The employee did not have any symptoms after lifting the generator, but three or four days later he developed pain in his right leg.

- The employee sought treatment for his leg pain from Dr. James Compton. Dr. Compton's October 4, 2002 records indicate the employee was complaining of pain behind his right knee. Dr. Compton notes that that the employee "denies any back pain, hip pain, no recent trauma or injuries" (Employee's exhibit D).

- Dr. Compton initially thought the employee might have a popliteal cyst, and ordered an ultrasound of his knee. The ultrasound was negative, and when the employee's leg pain increased, Dr. Compton ordered an MRI of the employee's low back. The MRI revealed the employee had a right postural lateral disc extrusion at the L5-S1 level that was displacing the S1 nerve root (Employee's exhibit D).

- After reviewing the MRI, Dr. Compton referred the employee to Dr. Dennis Mollman at Neurosurgery and Neurology, LLC in St. Louis. Dr. Mollman's initial record of November 13, 2002 indicates the employee was complaining of right leg pain, and Dr. Mollman stated "no specific onset of the pain is noted in terms of activities". Neither Dr. Compton's nor Dr. Mollman's records make any reference to the employee's L5-S1 herniated disc being related to the employee lifting a generator at work.

- Based on his review of the MRI, Dr. Mollman admitted the employee to St. Luke's Hospital and performed a L5-S1 microdiscectomy on November 13, 2002. The operative record indicates several large disc fragments were removed. Dr. Mollman's narrative indicates that even after he had removed all of the disc material from the disc space that could be removed, "re-inspection of the nerve root showed one more fragment which was dissected and removed with a blunt hook" (Employee's exhibit C).

- After the November 13, 2002 surgery, the employee was examined at Dr. Mollman's office on January 23, 2003 by Nurse Sherry Elze. Although the employee had significant improvement from his "pre-op status", the employee was still complaining of "intermittent low back ache as well as an occasional right lower extremity discomfort that is intermittent in nature and seems to be worse when turning or getting up from a sitting position that usually lasts thirty minutes and occurs daily" (Employee's exhibit C).

- At the time of this visit, the employee was released to return to work on Monday, January 27, 2003 on a light duty basis. The release indicated the employee should do no repetitive bending greater than ten times a day, and no lifting more than 35 pounds (Employee's exhibit C). On his second day of light duty on January 28, 2003, the employee was assigned to a job that required him to pick up trash and put it in a barrel. Although the employee was offered a stick with a nail on the end so he could avoid bending, the employee said the grass was tall and the ground was frozen, so the stick would not work. Rather than contacting his foreman, the employee decided to pick up the trash by bending over and using his hands. After performing this job for two or three hours, the employee was told by another supervisor to stop because of his restrictions. Although the employee continued working that day, the task of bending over and picking up the trash caused the employee's back to ache, and later that night the employee began experiencing back pain and pain in his right leg.

- The employee reported the increase in his symptoms to his employer, and Dr. Mollman subsequently ordered an MRI that was performed in February 10, 2003 at Southeast Missouri Hospital. The MRI showed the prior microdiscectomy at the L5-S1 level and a "small residual disc bulge just to the right of midline, but this is not sufficiently large to exert pressure upon the S1 nerve root" (February 10, 2003 MRI report, Employee's exhibit C; emphasis added).

- After reviewing this MRI, Dr. Mollman scheduled the employee for surgery on February 14, 2003. Dr. Mollman's diagnosis was "recurrent herniated nucleus pulposus, L5-S1, right." Dr. Mollman's operative record indicates he removed scar tissue from the S1 nerve root sleeve, and removed an additional fragment of disc material that had "migrated caudally". In addition to the microdiscectomy, Dr. Mollman also performed a foraminotomy at the L5-S1, right. Dr. Mollman's medical records do not include any history of the employee's January 28, 2003 work activity. There are also no comments by Dr. Mollman to indicate that he felt the employee's second surgery was causally related to the employee's bending activities at work.

- Dr. Mollman's records confirm that on May 1, 2003, the employee required a third surgery to remove another large disc fragment on the right side of the L5-S1 disc space. During the employee's third surgery, Dr. Mollman also performed a L5-S1 fusion with an allograft and pedicle screws. Dr. Mollman's diagnosis was "recurrent herniated nucleus pulposus. L5-S1, right". In the discharge summary, Dr. Mollman referred to the employee's condition as "third recurrent herniated disc, L5-S1". There was no indication from either the employee's testimony or Dr. Mollman's records that this third surgery to remove an additional disc fragment at the L5-S1 level was related to a specific activity or new injury (Employee's exhibit C).

- Dr. Mollman's final surgery on the employee's low back occurred on May 7, 2003. The employee developed a lumbar cerebrospinal fluid leak, and Dr. Mollman explored the lumbar wound and repaired a dural rent (Employee's exhibit C).

- Following these four low back surgeries, the employee did not return to work, and is currently drawing a pension and social security benefits.

- At the time of the hearing the employee continued to have significant complaints and limitations related to his low back. The employee has daily pain in his low back that reaches a level of six or seven out of ten when he tries to do too much. Both of the employee's legs go to sleep, but his right leg is worse than the left. The employee still has some pain in his right leg that gets worse with movement or walking. The employee is taking Hydrocodone, muscle relaxers and Ibuprofen to relieve his symptoms. As a result of his back and leg pain, the employee has problems sleeping more than four or five hours a night; has difficulty standing, sitting or walking for more than twenty to thirty minutes; avoids vacuuming, house cleaning and yard work; and avoids lifting more than 15 pounds. To obtain relief from his symptoms, the employee takes medication and lies down two or three times a day.

- The employee's claims against the City of Cape Girardeau were both settled on January 26, 2007. The employee's claim for the October 1, 2002 generator incident was not filed until September 27, 2004, and was disputed by the employer-insurer. Although no benefits were paid under the October 1, 2002 claim, as part of the combined compromise settlement, $\ 17,006.00 was paid under the October 1, 2002 claim based on a PPD rating of $121 / 2$ percent of the body as a whole. For the January 28, 2003 claim, the employer-insurer has paid medical expenses and temporary total disability benefits, and the parties allocated $\ 44,215.60 of the total settlement to the 2003 claim based on 33 percent of the body as a whole.

- To support the employee's claim that he had to two separate accidents and injuries that combined to cause him to be permanently and totally disabled, the employee offered the deposition testimony of Dr. David Volarich and Mr. James England. Dr. Volarich examined the employee on July 26, 2004. Dr. Volarich's diagnosis was limited to the January 28, 2003 claim. Dr. Volarich concluded the employee had a recurrent disc herniation at the L5-S1 (Employee's exhibit A, page 15 and 16). On the issue of causation, Dr. Volarich testified that the October 2002 lifting incident "in which he developed back pain radiating into the right leg was the substantial contributing factor causing the initial disc herniation at L5-S1" (Employee's exhibit A, page 15). Dr. Volarich further concluded that the work activities of January 28, 2003 were "the substantial contributing factor causing the recurrent disc herniation at L5-S1" (Employee's A, page 18). Dr. Volarich gave the employee a permanent partial disability rating of 75 percent of the body as a whole and attributed 25 percent of that total to the October 1, 2002 claim and 75 percent to the January 28, 2003 (Employee's exhibit A, page 19). Dr. Volarich felt that these two disabilities combined synergistically (Employee's exhibit, page 20), and concluded that the employee was permanently and totally disabled as a result of both injuries (Employee's exhibit A, page 23).

- Mr. James England is a rehabilitation counselor, and saw the employee on December 22, 2004. Based on his interview of the employee and his review of the medical records, Mr. England concluded that "he is likely to remain totally disabled" (Employee's exhibit B, page 19). Mr. England's response to a second question as to whether the employee was "placeable in employment" was also somewhat equivocal. Mr. England stated "I don't think so, not based on how he described his functioning and how he looked when he was in here. I don't think so." (Employee's exhibit B, page 20).

- In addition to the depositions and reports of Dr. Volarich and Mr. England, the parties also offered the medical records of Dr. Mollman. Dr. Mollman did not believe the employee was capable of returning to his former job. Although he did not believe the employee could perform heavy or medium work, he indicated the employee might be able to perform sedentary or light work. Dr. Mollman gave the employee a ten percent permanent partial disability rating, but offered no opinion to support a finding that the second and third surgeries to remove additional disc fragments were medically causally related to the employee's work activity of picking up trash on January 28, 2003.

- Section 287.020.7 RSMo. provides as follows:

The term "total disability" as used in this chapter shall mean the inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

- The phrase "the inability to return to any employment" has been interpreted as the inability of the employee 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.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Reiner v Treasurer of the State of Missouri, 837 S.W.2d 363, 367(Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". Brown v Treasurer of the State of Missouri, 795 S.W.2d 479, 483(Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The key is whether any employer in the usual

course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner at 365. See also Thornton v Haas Bakery, 858 S.W.2d 831,834(Mo.App.1993).

- The test for finding the Second Injury Fund liable for permanent total disability is set forth in Section 287.220.1 RSMo., as follows:

If the previous disability or disabilities, whether from compensable injuries or otherwise, and the last injury together result in permanent total disability, the minimum standards under this subsection for a body as a whole injury or a major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employee at the time of the last injury is liable is less than compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under Section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in Section 287.414.

The employee's claim for compensation against the Second Injury Fund under injury number 02-158218 is denied.

First, it should be noted that the employee's October 1, 2002 low back injury does not appear to be a work related injury. The reasons for this conclusion include the following:

1. The employee did not experience any symptoms until three or four days after he lifted the generator.
2. The employee denied any history of back pain, hip pain or recent trauma or injury at the time of his treatment by Dr. Compton.
3. On November 13, 2002, Dr. Mollman took a history from the employee and wrote that "no specific onset of pain is noted in terms of activities".
4. The employee admitted that at some point after the MRI, with the benefit of hindsight, he thought about what he had done and concluded that lifting the generator was the most likely thing that caused his herniated disc.
5. Although the employee testified that he later discussed his accident with his foreman, the employee did not ask the employer for medical treatment; his bills were paid under health insurance; no demand was made for temporary total disability benefits; no report of injury was filed by the employer until April of 2004; and no claim for compensation was filed by the employee until almost two years after his accident on September 27, 2004. This claim was filed after the employee filed his claim for compensation on the 2003 injury. Thus, it appears that the employee's decision to file the 2002 claim was an after thought that was part of the employee's strategy to create two separate injuries so he could argue permanent total disability against the Second Injury Fund.

In addition to the fact that the employee's primary injury does not appear to be work related, the employee has failed to offer any evidence of pre-existing condition that might be the basis for a Second Injury Fund claim. The employee testified that he had a prior injury to a toe on his left foot, but did not have any problems with that injury. Other than this comment, there is no medical or other evidence to indicate the employee had any pre-existing injuries prior to October 1, 2002.

The employee has therefore failed to satisfy his burden of proof on his claim against the Second Injury Fund, and the employee's claim against the Second Injury Fund under Injury number 02-158218 is therefore denied.

Although the employee's January 28, 2003 activity of bending over to pick up trash may have exacerbated or aggravated his pre-existing back injury, the medical evidence does not support a finding that the employee suffered a new or different injury that can be combined with the employee's pre-existing back condition to cause either permanent partial or permanent total disability.

The medical records and MRIs establish that the "before and after" diagnosis was the same. The employee had a herniated disc on the right side at the L5-S1 level. It is also significant that the employee's complaints before and after January 28, 2003 were also identical. Five days before his alleged accident, the employee complained to Dr. Mollman's nurse that he was having intermittent low back pain and right lower extremity discomfort that seemed to be getting worse, and these symptoms were occurring daily. These are the same type of complaints the employee made to Dr. Mollman after January 28, 2003 during the time he received his second, third and fourth surgeries.

It is also significant that at the time of his January 28, 2003 work activity, the employee had not been released, and was restricted to light duty with no repetitive bending greater than ten times a day. The employee ignored these restrictions, and consequently may have suffered an exacerbation of his condition with a corresponding increase in his symptoms. The

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 June 27, 2007, and awards no compensation in the above-captioned case.

The award and decision of Chief Administrative Law Judge Jack H. Knowlan, Jr., issued June 27, 2007, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $7^{\text {th }}$ day of December 2007. LABOR AND INDUSTRIAL RELATIONS COMMISSION

NOT SITTING William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member Attest:

Employee: James Hillis Injury No. 02-158218 \& 03-009854 Dependents: N/A

Additional Party: Second Injury Fund Insurer: Self-insured c/o Corporate Claims

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease? October 1, 2002 and January 28, 2003
5. State location where accident occurred or occupational disease contracted: Cape Girardeau County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Undetermined
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured by above insurer? Self -insured
11. Describe work employee was doing and how accident happened or occupational disease contracted: For the October 1, 2002 claim under injury number 02-158218, the employee alleged that he injured his low back while lifting a generator. For the January 28, 2003 claim under injury number 03-009854, the employee alleged that he suffered a re-herniated disc at the L5-S1 level while bending over and picking up trash.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Alleged injuries to low back
14. Nature and extent of any permanent disability: Undetermined (primary claims against employer settled by compromise settlement agreement)
15. Compensation paid to date for temporary total disability: Undetermined
16. Value necessary medical aid paid to date by employer-insurer: Undetermined
17. Value necessary medical aid not furnished by employer-insurer: N/A
18. Employee's average weekly wage: $\ 510.69
19. Weekly compensation rate: $\ 340.12 per week for temporary total disability, permanent total disability and permanent partial disability.
20. Method wages computation: By agreement
21. Amount of compensation payable: The employee's claims against the employer were settled prior to the date of the hearing.
22. Second Injury Fund liability: None. Both Second Injury Fund claims are denied.
23. Future requirements awarded: None

On March 26, 2007, the employee, James Hillis, appeared in person and by his attorney, Mr. Ed Gilkerson, for a hearing on his claims against the Second Injury Fund under injury number 02-158218 and injury number 03-009854. The employee's claims against the employer-insurer were settled prior to the date of the hearing. The Second Injury Fund was represented at the hearing by Assistant Attorney General Matt Edwards and Assistant Attorney General Frank Rodman. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts

and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. On or about October 1, 2002, the City of Cape Girardeau was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and it was duly qualified as a self-insured employer in care of Corporate Claims.
2. On or about October 1, 2002, James Hillis was an employee of the City of Girardeau, and was working under the provisions of the Missouri Workers' Compensation Act.
3. The employee's claim for compensation against the Second Injury Fund was filed within the time allowed by law.
4. The employee's average weekly wage was $\ 510.69 per week and his rate of compensation is $\ 340.12 per week.
5. No medical aid was furnished by the employer-insurer.
6. No temporary total disability benefits were paid by the employer-insurer.

1. On or about January 28, 2003, the City of Cape Girardeau was a covered employer operating under and subject to the provisions of the Missouri Workers' Compensation Act, and it was duly qualified as a self-insured employer in care of Corporate Claims.
2. On or about January 28, 2003, James Hillis was an employee of the City of Cape Girardeau, and was working under the provisions of the Missouri Workers' Compensation Act.
3. The employer had notice of the employee's alleged accident.
4. The employee's claim for compensation against the Second Injury Fund was filed within the time allowed by law.
5. The employee's average weekly wage was $\ 510.69 per week and his rate of compensation is $\ 340.12 per week.
6. The employer paid medical benefits totaling $\ 61,575.18.
7. The employer paid temporary total disability benefits in the amount of $\ 13,789.32.

1. Accident
2. Notice
3. Medical Causation
4. Liability of the Second Injury Fund

1. Accident
2. Medical Causation
3. Liability of the Second Injury Fund

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

G. Deposition of Dr. David T. Volarich

H. Deposition of Mr. James M. England Jr.

I. Medical records of Dr. Dennis Mollman of Neurosurgery and Neurology, LLC

J. Medical records of Dr. James Compton

K. Compromise Settlement Agreement under injury number 03-009854

L. Compromise Settlement Agreement and attached letter from the Department of Health and Human Services under injury number 02-158218.

Second Injury Fund Exhibits:

None offered

Based on the employee's testimony, the medical records and the other evidence admitted, I find as follows:

- At the time of the hearing James Hillis ("employee") was 59-years-old. The employee obtained his GED after leaving school at the end of the tenth grade. The employee had additional vocational training while employed by the City of Cape Girardeau in automotive, welding and small engines. The employee's work history included two years in the U. S. Army, operating heavy equipment at several landfills, and twenty-nine years of employment with the City of Cape Girardeau working at the landfill and in other departments in the public works area.

- On or about October 1, 2002 the employee and another co-worker were unloading a generator that weighed 75-100 pounds. The employee did not have any symptoms after lifting the generator, but three or four days later he developed pain in his right leg.

- The employee sought treatment for his leg pain from Dr. James Compton. Dr. Compton's October 4, 2002 records indicate the employee was complaining of pain behind his right knee. Dr. Compton notes that that the employee "denies any back pain, hip pain, no recent trauma or injuries" (Employee's exhibit D).

- Dr. Compton initially thought the employee might have a popliteal cyst, and ordered an ultrasound of his knee. The ultrasound was negative, and when the employee's leg pain increased, Dr. Compton ordered an MRI of the employee's low back. The MRI revealed the employee had a right postural lateral disc extrusion at the L5-S1 level that was displacing the S1 nerve root (Employee's exhibit D).

- After reviewing the MRI, Dr. Compton referred the employee to Dr. Dennis Mollman at Neurosurgery and Neurology, LLC in St. Louis. Dr. Mollman's initial record of November 13, 2002 indicates the employee was complaining of right leg pain, and Dr. Mollman stated "no specific onset of the pain is noted in terms of activities". Neither Dr. Compton's nor Dr. Mollman's records make any reference to the employee's L5-S1 herniated disc being related to the employee lifting a generator at work.

- Based on his review of the MRI, Dr. Mollman admitted the employee to St. Luke's Hospital and performed a L5-S1 microdiscectomy on November 13, 2002. The operative record indicates several large disc fragments were removed. Dr. Mollman's narrative indicates that even after he had removed all of the disc material from the disc space that could be removed, "re-inspection of the nerve root showed one more fragment which was dissected and removed with a blunt hook" (Employee's exhibit C).

- After the November 13, 2002 surgery, the employee was examined at Dr. Mollman's office on January 23, 2003 by Nurse Sherry Elze. Although the employee had significant improvement from his "pre-op status", the employee was still complaining of "intermittent low back ache as well as an occasional right lower extremity discomfort that is intermittent in nature and seems to be worse when turning or getting up from a sitting position that usually lasts thirty minutes and occurs daily" (Employee's exhibit C).

- At the time of this visit, the employee was released to return to work on Monday, January 27, 2003 on a light duty basis. The release indicated the employee should do no repetitive bending greater than ten times a day, and no lifting more than 35 pounds (Employee's exhibit C). On his second day of light duty on January 28, 2003, the employee was assigned to a job that required him to pick up trash and put it in a barrel. Although the employee was offered a stick with a nail on the end so he could avoid bending, the employee said the grass was tall and the ground was frozen, so the stick would not work. Rather than contacting his foreman, the employee decided to pick up the trash by bending over and using his hands. After performing this job for two or three hours, the employee was told by another supervisor to stop because of his restrictions. Although the employee continued working that day, the task of bending over and picking up the trash caused the employee's back to ache, and later that night the employee began experiencing back pain and pain in his right leg.

- The employee reported the increase in his symptoms to his employer, and Dr. Mollman subsequently ordered an MRI that was performed in February 10, 2003 at Southeast Missouri Hospital. The MRI showed the prior microdiscectomy at the L5-S1 level and a "small residual disc bulge just to the right of midline, but this is not sufficiently large to exert pressure upon the S1 nerve root" (February 10, 2003 MRI report, Employee's exhibit C; emphasis added).

- After reviewing this MRI, Dr. Mollman scheduled the employee for surgery on February 14, 2003. Dr. Mollman's diagnosis was "recurrent herniated nucleus pulposus, L5-S1, right." Dr. Mollman's operative record indicates he removed scar tissue from the S1 nerve root sleeve, and removed an additional fragment of disc material that had "migrated caudally". In addition to the microdiscectomy, Dr. Mollman also performed a foraminotomy at the L5-S1, right. Dr. Mollman's medical records do not include any history of the employee's January 28, 2003 work activity. There are also no comments by Dr. Mollman to indicate that he felt the employee's second surgery was causally related to the employee's bending activities at work.

- Dr. Mollman's records confirm that on May 1, 2003, the employee required a third surgery to remove another large disc fragment on the right side of the L5-S1 disc space. During the employee's third surgery, Dr. Mollman also performed a L5-S1 fusion with an allograft and pedicle screws. Dr. Mollman's diagnosis was "recurrent herniated nucleus pulposus. L5-S1, right". In the discharge summary, Dr. Mollman referred to the employee's condition as "third recurrent herniated disc, L5-S1". There was no indication from either the employee's testimony or Dr. Mollman's records that this third surgery to remove an additional disc fragment at the L5-S1 level was related to a specific activity or new injury (Employee's exhibit C).

- Dr. Mollman's final surgery on the employee's low back occurred on May 7, 2003. The employee developed a lumbar cerebrospinal fluid leak, and Dr. Mollman explored the lumbar wound and repaired a dural rent (Employee's exhibit C).

- Following these four low back surgeries, the employee did not return to work, and is currently drawing a pension and social security benefits.

- At the time of the hearing the employee continued to have significant complaints and limitations related to his low

back. The employee has daily pain in his low back that reaches a level of six or seven out of ten when he tries to do too much. Both of the employee's legs go to sleep, but his right leg is worse than the left. The employee still has some pain in his right leg that gets worse with movement or walking. The employee is taking Hydrocodone, muscle relaxers and Ibuprofen to relieve his symptoms. As a result of his back and leg pain, the employee has problems sleeping more than four or five hours a night; has difficulty standing, sitting or walking for more than twenty to thirty minutes; avoids vacuuming, house cleaning and yard work; and avoids lifting more than 15 pounds. To obtain relief from his symptoms, the employee takes medication and lies down two or three times a day.

- The employee's claims against the City of Cape Girardeau were both settled on January 26, 2007. The employee's claim for the October 1, 2002 generator incident was not filed until September 27, 2004, and was disputed by the employer-insurer. Although no benefits were paid under the October 1, 2002 claim, as part of the combined compromise settlement, $\ 17,006.00 was paid under the October 1, 2002 claim based on a PPD rating of $121 / 2$ percent of the body as a whole. For the January 28, 2003 claim, the employer-insurer has paid medical expenses and temporary total disability benefits, and the parties allocated $\ 44,215.60 of the total settlement to the 2003 claim based on 33 percent of the body as a whole.

- To support the employee's claim that he had to two separate accidents and injuries that combined to cause him to be permanently and totally disabled, the employee offered the deposition testimony of Dr. David Volarich and Mr. James England. Dr. Volarich examined the employee on July 26, 2004. Dr. Volarich's diagnosis was limited to the January 28, 2003 claim. Dr. Volarich concluded the employee had a recurrent disc herniation at the L5-S1 (Employee's exhibit A, page 15 and 16). On the issue of causation, Dr. Volarich testified that the October 2002 lifting incident "in which he developed back pain radiating into the right leg was the substantial contributing factor causing the initial disc herniation at L5-S1" (Employee's exhibit A, page 15). Dr. Volarich further concluded that the work activities of January 28, 2003 were "the substantial contributing factor causing the recurrent disc herniation at L5-S1" (Employee's A, page 18). Dr. Volarich gave the employee a permanent partial disability rating of 75 percent of the body as a whole and attributed 25 percent of that total to the October 1, 2002 claim and 75 percent to the January 28, 2003 (Employee's exhibit A, page 19). Dr. Volarich felt that these two disabilities combined synergistically (Employee's exhibit, page 20), and concluded that the employee was permanently and totally disabled as a result of both injuries (Employee's exhibit A, page 23).

- Mr. James England is a rehabilitation counselor, and saw the employee on December 22, 2004. Based on his interview of the employee and his review of the medical records, Mr. England concluded that "he is likely to remain totally disabled" (Employee's exhibit B, page 19). Mr. England's response to a second question as to whether the employee was "placeable in employment" was also somewhat equivocal. Mr. England stated "I don't think so, not based on how he described his functioning and how he looked when he was in here. I don't think so." (Employee's exhibit B, page 20).

- In addition to the depositions and reports of Dr. Volarich and Mr. England, the parties also offered the medical records of Dr. Mollman. Dr. Mollman did not believe the employee was capable of returning to his former job. Although he did not believe the employee could perform heavy or medium work, he indicated the employee might be able to perform sedentary or light work. Dr. Mollman gave the employee a ten percent permanent partial disability rating, but offered no opinion to support a finding that the second and third surgeries to remove additional disc fragments were medically causally related to the employee's work activity of picking up trash on January 28, 2003.

- Section 287.020.7 RSMo. provides as follows:

The term "total disability" as used in this chapter shall mean the inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

- The phrase "the inability to return to any employment" has been interpreted as the inability of the employee 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.1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Reiner v Treasurer of the State of Missouri, 837 S.W.2d 363, 367(Mo.App.1992). Total disability means the "inability to return to any reasonable or normal employment". Brown v Treasurer of the State of Missouri, 795 S.W.2d 479, 483(Mo.App.1990). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Id. The key is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Reiner at 365. See also Thornton v Haas Bakery, 858 S.W.2d 831,834(Mo.App.1993).

- The test for finding the Second Injury Fund liable for permanent total disability is set forth in Section 287.220.1 RSMo., as follows:

If the previous disability or disabilities, whether from compensable injuries or otherwise, and the last injury together result in permanent total disability, the minimum standards under this subsection for a body as a whole injury or a major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employee at the time of the last injury is liable is less than compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the

completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under Section 287.200 out of a special fund known as the "Second Injury Fund" hereby created exclusively for the purposes as in this section provided and for special weekly benefits in rehabilitation cases as provided in Section 287.414.

The employee's claim for compensation against the Second Injury Fund under injury number 02-158218 is denied.

First, it should be noted that the employee's October 1, 2002 low back injury does not appear to be a work related injury. The reasons for this conclusion include the following:

1. The employee did not experience any symptoms until three or four days after he lifted the generator.
2. The employee denied any history of back pain, hip pain or recent trauma or injury at the time of his treatment by Dr. Compton.
3. On November 13, 2002, Dr. Mollman took a history from the employee and wrote that "no specific onset of pain is noted in terms of activities".
4. The employee admitted that at some point after the MRI, with the benefit of hindsight, he thought about what he had done and concluded that lifting the generator was the most likely thing that caused his herniated disc.
5. Although the employee testified that he later discussed his accident with his foreman, the employee did not ask the employer for medical treatment; his bills were paid under health insurance; no demand was made for temporary total disability benefits; no report of injury was filed by the employer until April of 2004; and no claim for compensation was filed by the employee until almost two years after his accident on September 27, 2004. This claim was filed after the employee filed his claim for compensation on the 2003 injury. Thus, it appears that the employee's decision to file the 2002 claim was an after thought that was part of the employee's strategy to create two separate injuries so he could argue permanent total disability against the Second Injury Fund.

In addition to the fact that the employee's primary injury does not appear to be work related, the employee has failed to offer any evidence of pre-existing condition that might be the basis for a Second Injury Fund claim. The employee testified that he had a prior injury to a toe on his left foot, but did not have any problems with that injury. Other than this comment, there is no medical or other evidence to indicate the employee had any pre-existing injuries prior to October 1, 2002.

The employee has therefore failed to satisfy his burden of proof on his claim against the Second Injury Fund, and the employee's claim against the Second Injury Fund under Injury number 02-158218 is therefore denied.

Although the employee's January 28, 2003 activity of bending over to pick up trash may have exacerbated or aggravated his pre-existing back injury, the medical evidence does not support a finding that the employee suffered a new or different injury that can be combined with the employee's pre-existing back condition to cause either permanent partial or permanent total disability.

The medical records and MRIs establish that the "before and after" diagnosis was the same. The employee had a herniated disc on the right side at the L5-S1 level. It is also significant that the employee's complaints before and after January 28, 2003 were also identical. Five days before his alleged accident, the employee complained to Dr. Mollman's nurse that he was having intermittent low back pain and right lower extremity discomfort that seemed to be getting worse, and these symptoms were occurring daily. These are the same type of complaints the employee made to Dr. Mollman after January 28, 2003 during the time he received his second, third and fourth surgeries.

It is also significant that at the time of his January 28, 2003 work activity, the employee had not been released, and was restricted to light duty with no repetitive bending greater than ten times a day. The employee ignored these restrictions, and consequently may have suffered an exacerbation of his condition with a corresponding increase in his symptoms. The medical records of Dr. Mollman, however, do not support a finding that the employee's work on January 28, 2003 caused a new or different injury.

Although the phrase "recurrent herniation" superficially supports a conclusion that the employee had a new herniated disc, a careful reading of Dr. Mollman's operative records clarifies the surgery he performed and contradicts that conclusion. In the employee's initial surgery on November 13, 2002 Dr. Mollman removed several disc fragments, and gave the impression that he left other disc material behind that could not be removed. It is also significant that the February 10, 2003 MRI concluded the employee had a residual disc bulge. When Dr. Mollman did the employee's second surgery, he discovered another disc fragment that had migrated. There is nothing in his operative report to suggest the employee's work activity had caused a new herniation. When the two operative records are read together, it appears more likely that the employee had multiple disc fragments as a result of his initial herniation, and Dr. Mollman felt that one of the fragments had moved and needed to be removed in a second surgery.

This position is reinforced by the fact that after cleaning out the L5-S1 disc space in the second surgery, another disc fragment had moved without any accident or trauma, and was removed in the employee's third surgery. Thus, a thorough reading of Dr. Mollman's records fails to support the employee's position that his work activity on January 28, 2003 caused a new herniation of his L5-S1 disc. From the Court's perspective, Dr. Mollman's opinion on this issue was a critical, yet missing ingredient, which was needed to satisfy the employee's burden of proof.

Although Dr. Volarich offered boiler plate language in support of the employee's position, Dr. Volarich failed to offer any explanation to support his conclusion that the employee's January 28, 2003 work activity caused a new injury to the employee's back. Dr. Volarich based his opinion primarily on the history provided by the employee, and apparently did not do any in depth analysis of Dr. Mollman's medical records. Based on this lack of analysis, I find that the opinions of Dr. Volarich on the issue of causation are not credible.

Based on these factors, I find that the employee's work activity of picking up trash on January 28, 2003, was not a substantial factor in causing the disc fragments that necessitated the second, third or fourth surgeries by Dr. Mollman. The employee's work activity on January 28, 2003 was not a substantial factor in causing any new or different injury. To the contrary, the employee's low back and right leg symptoms were causally related to the employee's original herniated L5S1 disc that was treated by Dr. Mollman with surgery on November 13, 2002. While the employee's activities of picking up trash may have caused an exacerbation of his symptoms, it did not cause a new herniated disc or other injury that combined with the pre-existing back injury to create any Second Injury Fund liability. The employee had one low back injury in October of 2002, and all of his symptoms and subsequent treatment were causally related to the October of 2002 L5-S1 disc herniation.

I therefore find that the employee has failed to satisfy his burden of proof, and his claim against the Second Injury Fund under injury number 03-009854 must therefore be denied.

Date: $\qquad$ Made by:

Jack H. Knowlan, Jr.<br>Chief Administrative Law Judge<br>Division of Workers' Compensation

A true copy: Attest:

Mr. Lucas Boling

Acting Director

Division of Workers' Compensation