Employee testified that he is 56 years of age and that he graduated from the 8th grade and dropped out of school in the 9th grade. He testified that he repeated kindergarten or the 1st grade. He testified that school was difficult and he often made C's, Ds and F's.
His first job, after dropping out of school, was at a gas station. His duties included pumping gas as well as changing oil and tires. Thereafter, he obtained his GED and went into the Army. He reports that he served in the Armed Forces between 1971 and 1973. He testified that, during this time, he was trained to string telephone poles but was used as a courier and driver. He also testified that during this time, he used crystal meth, marijuana and LSD. He reports, however, that he ceased his drug use in the 1970s and has now not used illegal drugs in more than 30 years.
Following his honorable discharge from the military, Employee obtained jobs at several feed stores and a bottling plant. He also obtained a job for a time as an assistant manager in a service station and convenience store. He testified that this was in the mid-70s and, at that time, they did not use any computers or cash registers. He testified that he would pump gas, stock shelves and use a calculator.
After that job, he obtained work at Christy Minerals in 1977. He started there as a bagger/operator. This required him to lift large bags, weighing 50 pounds to 100 pounds. These bags contained material that was used in the making of cement. He described this work as heavy and repetitious, requiring a great deal of bending, stooping and lifting.
In 1979, he became a maintenance man and an electrician's assistant. This job required him to run conduit, pull wire, install equipment, repair old equipment and trouble shoot electrical problems. He performed this job between 1979 and 2002. He described this as heavy work, requiring him to bend, stoop, walk, climb and get into awkward positions as well as to frequently lift heavy objects and tools.
During that time, the employer sent the Employee to the Mexico Vocational Technical School where he attended classes on Electricity I and II and also reading blueprints and schematics.
In addition, Employee also trained as a police officer. He reported that he took approximately 120 hours of training at the St. Charles Police Academy in or around 1992 or 1993. Thereafter, in addition to his job at Christy Minerals, he became a reserve deputy at the Montgomery County Sheriff's Department from approximately 1993 to 2002. He testified that, in that capacity, he worked county fairs and performed road patrols. He believes that he worked about 16 hours a month in that capacity.
From 1995 through 2001 he also served as the Chief of Police in High Hill, Missouri. He believes that he worked an average of 30 to 40 hours a month. This required him to patrol, hand out speeding tickets and work various traffic accidents or crime scenes. He gave up his police work in 2002 after his last back injury.
He testified that he has never really worked in an office and has no computer or typing skills but acknowledged that he will send e-mails to his daughter.
Employee sustained his first work-related accident at Christy Minerals on or about August 8, 2001. At that time, he injured his right shoulder while pulling on a commercial wrench as he attempted to tighten a bolt. He reported that he felt something pop in his right shoulder and neck. The employer sent him to Dr. Michael Nogalski and, ultimately, to Dr. Ronald Carter.
Dr. Nogalski described this as a right shoulder rotator cuff strain. Employee was treated conservatively with physical therapy, anti-inflammatory medications and, for a time, light duty work.
Although Dr. Nogalski released him on September 10, 2001, with a resolved right shoulder strain, he complained of continuing burning, pinching and a sharp sticking feeling in his right shoulder and neck. Therefore, he went to Dr. Ronald Carter on March 13, 2002. Dr. Carter also noted complaints of neck pain and a history of intermittent pain and numbness in Employee's right hand, post the shoulder injury. Dr.
Carter diagnosed a possible rotator cuff tear and glenoid labrum tear. Subsequent to that, on March 15, 2002, an MRI ordered by Dr. Carter revealed an inflammatory degenerative process of the acromioclavicular joint with edema and joint fluid as well as subdeltoid bursal inflammation. There was also impingement of the rotator cuff.
On March 18, 2002 Employee suffered an injury to his low back while at work. At that time, he and a coworker were lifting a when he felt what he described as a snap in low back. He experienced low back pain as well as pain radiating down his right leg. He denied any prior back or shoulder injuries prior to the ones just described.
Employee received treatment for the back injury and was ultimately seen by Dr. Dennis Abernathie. On April 9, 2002 the doctor recommended an MRI and discussed the possibility of epidural steroid injections. During this time, Employee was released to work light duty with restrictions of no bending, stooping or lifting over 25 pounds.
On April 12, 2002 Employee suffered another low back injury as he was walking backwards while carrying a large steel trough, weighing approximately 250 pounds and tripped over a board. He felt severe pain in his low back, hip and right leg. Employee testified that this accident severely increased his low back pain and right leg radiculopathy.
Employee then returned to Dr. Abernathie who noted a large disk fragment at L4-5 which had migrated proximally to the right. Employee underwent a microlaminotomy with diskectomy on the right at L4-5 by Dr. Abernathie on May 9, 2002. Employee testified this surgery did not improve his low back pain and he underwent another MRI in late May of 2002. This MRI continued to demonstrate a right paracentral disk protrusion and slight extrusion at L4-5 with some impingement at L5.
Employee was referred to Spine Care Rehabilitation and reported worsening symptoms and complaints in his low back and right shoulder. He was discharged by Dr. Abernathie in August of 2002. At that time, Dr. Abernathie agreed with the permanent restrictions provided by Dr. Carter referable to his neck and right upper extremity.
Dr. Carter's report of July 17, 2002, stated that he felt Employee would never have the ability to do any more than 10 pounds of lifting, pushing or pulling at or above shoulder level with the right arm and that these restrictions would be permanent. These limitations were more restrictive than those imposed following the March 2002 accident.
In his report of August 2, 2002, Dr. Abernathie placed Employee at maximum medical improvement, noting he had plateaued in his rehabilitation efforts. Dr. Abernathie placed restrictions of no lifting over 10 pounds with respect to his back and lower extremities. Employee testified that he never returned to work at Christy Mineral or in law enforcement after the May 9, 2002 surgery. Employee testified Dr. Abernathie told him at that time: "You're done".
In addition to his work injuries, Employee he began to experience anxiety in 1982 or 1983 and depression in 1990 following the passing of his mother. He treated with Dr. Keim Baird from 1991 through 1993. Dr. Baird noted that his anxiety was related to childhood traumas. Employee testified he was prescribed valium for the anxiety.
Employee later came under the care of Dr. Peggy Weiler. He treated with her from June of 2000 through September 27, 2001. Dr. Weiler noted that Employee had martial problems and that he worried obsessively about his health and cardiac problems. Employee stated he had problems falling asleep as well as problems with restful sleep. He likewise described financial problems, sexual problems, mood swings and prior
suicidal thoughts. On cross-examination, Employee testified that the Valium helped him control his anxiety and that his law enforcement work helped him deal with his depression.
During the time Dr. Weiler treated Employee, she would periodically perform global assessment function tests ("GAF"). In December of 2000, Dr. Weiler diagnosed general anxiety disorder, panic disorder and GAF of 65. On April 17, 2001 the doctor noted a GAF of 65 and on July 10, 2001, just under a month prior to the August 2001 shoulder injury, a GAF of 68.
Employee testified that his father had died of a heart attack when he was 7 years old and that his stepfather died of a heart attack when he was 16 years old and that he had witnessed that event.
Subsequent to the 2 back injuries and low back surgery, Employee's condition deteriorated. Employee testified that his back injury "wiped him out" and when asked if his anxiety and depression was worse after the second back injury in April 2002 he responded "Oh yes".
After the last back injury, he was referred to The Arthur Center in Mexico, Missouri, by a counselor. The records and Employee's testimony reflect that he was depressed; he had difficulty over his finances and worried about his health. He was experiencing problems with his memory and concentration as well as his energy level. He reported that his pain kept him awake at night. In September 2002 he was diagnosed with major depression and his GAF at that time was 48. In addition, a report dated December 18, 2002, indicated that he had symptoms which included crying, a sense of worthlessness, helplessness, sleep disturbance, decreased appetite and anxiety.
Employee also testified that he thought about suicide in 2003. He testified that his wife caught him lying in bed with a 38 -caliber gun in his hand which scared her. He testified that it kind of scared him so he got the guns out of the house. He testified that he went as far as having the gun cocked and in his mouth but could not pull the trigger because he knew his wife and daughter would come in and find him.
Employee testified that currently he doesn't sleep well. He wakes up hurting and tries to get back to sleep but that the pain will wake him up again. He also testified that he doesn't have a lot of energy. On a typical day, he watches television, does the dishes and runs errands. He testified that he is able to drive himself and he takes care of his personal hygiene. He does report that he does do some furniture refinishing; however, he can only stand 20 to 30 minutes at a time before he has to sit. Mr. Hemp testified that he was able to sit perhaps 2 hours at the most before having to get up and move around.
Dr. Bruce Harry testified that Employee suffers from major depressive disorder, recurrent and severe as well as a generalized anxiety disorder. He testified that he believed that Employee had a 5\% psychiatric disability pre-existing the work injuries and that Employee had an additional 35\% psychiatric disability of the body as a whole, approximately 10 % of it related to the injury of August, 2001, and the remaining 25 % due to the injuries of March and April of 2002. The doctor did not attempt to assign separate disability ratings with respect to the two 2002 back injuries. The doctor states that Employee continues to need ongoing psychiatric care for the management of his condition.
Additionally, Employee has a cardiac condition. He testified that, in 1999, while working at a fair as a security guard, he got dizzy. He noted that testing revealed a blockage in his heart and he ultimately had three stents inserted. Employee testified that he would have chest pain, shortness of breath, fatigue and a lot of anxiety. He testified that he continued to do everything that he was told to do but that sometimes he had problems with some of his duties. For example, with climbing he felt that at times he would be short of breath, fatigued and have chest pain. He occasionally had to take nitro glycerin.
Dr. Thomas F. Musich evaluated Employee with respect to his low back, right shoulder and cardiac condition. Dr. Musich noted that Employee continued to complain of pain and numbness in his cervical
spine and down his right leg. He also noted that Employee complained of chronic pain and weakness in his right shoulder girdle as well as daily low back pain, aggravated by prolonged positioning, or with repetitive flexion, extension, bending or with lifting over 15 - 20 pounds.
Dr. Musich noted that a decompression test of the right shoulder was positive, that there was impingement of the right shoulder, and that there was pain with flexion, abduction and rotation of the right shoulder. Dr. Musich likewise noted neck pain and paracervical muscle spasm.
In reference to the low back, Dr. Musich noted that lumbar extension was diminished by 30\%, right lateral flexion was diminished by 25 % and that there was quadriceps weakness and right ankle weakness consistent with a dermatomal pattern of L5.
Dr. Musich opined that Employee had 35\% disability of the upper extremity at the level of the right shoulder as a result of the injury of August 8, 2001. In addition, he had 25 % disability in the neck for the injury of August 8, 2001. The doctor further opined Employee had a 45\% disability of the body as a whole due to the injuries of March and April, 2002. The doctor did not attempt to separate the percentage of disability attributable to each one of the 2002 back injuries. He also noted that Employee continues to suffer from symptomatic coronary artery disease which had required stents in 1999 but did not assign any restrictions or assign a permanent disability rating for the cardiac condition.
It was Dr. Musich's opinion that Employee is totally and permanently disabled due to a combination of his past and present disabilities as well as his age, limited education, lack of transferable skills, inability to focus and concentrate as well as his need for ongoing narcotic analgesic medication.
Gary Weimholt, a vocational expert, also evaluated Employee. Mr. Weimholt interviewed Employee and attempted to consider jobs that would either be sedentary or possibly some light jobs with no more than 10 pounds of pushing or pulling at above shoulder level of the right arm. (Employee's Exhibit 20, p.23).
Weimholt also took into account the restrictions from Dr. Abernathie of 10 pounds repetitive and 20 pounds occasional lifting, sitting, standing and walking intermittently and nothing above shoulder level or below the knee level. He also noted that, in addition, he then had to take into account the depression and global average functioning (GAF) as opined by Dr. Harry in the mid-40s. This is in the severe range in terms of being able to function occupationally, socially or in school. He had to take that into account and, in addition, noted that he had only a GED, no computer skills, no typing skills and opined this limited Employee in terms of certain sedentary jobs that he could perform. Mr. Weimholt also noted that, due to the limitations, he had to limit climbing jobs and crawling jobs as well as jobs that would have involved kneeling or crouching. Mr. Weimholt also noted that Employee had lost his ability to be in law enforcement and that he was unable to take various tests that require physical dexterity because of his injuries.
After taking all of this into consideration, Mr. Weimholt indicated that he did not believe that Employee could perform a full range of light or sedentary work given his capabilities. In addition, he felt Employee's depression and anxiety limited his ability to function on the job as well as to compete adequately for work in the open labor market.
Mr. Weimholt ultimately concluded that Employee was unable to work or engage in any work in the open labor market. His opinion is that this was based upon a combination of Employee's past and present disabilities.
On cross-examination, Weimholt acknowledged that based simply upon the physical restrictions and limitations imposed by the treating doctors the Employee would be capable of performing light or sedentary duties. (Employee's Exhibit 20, p.33).
I find the Employee to be a credible witness.