Ricky Fielder v. NBA

requirements contemplate an unequivocal affirmative finding as to what the pertinent facts are.

**Stegman v. Grand River Reg'l Ambulance Dist., 274 S.W.3d 529, 533 (Mo. App. 2008) (citations omitted).**

Because the award of the administrative law judge lacks the findings mandated by § 287.460.1 RSMo, we are constrained to issue this supplemental opinion.

The initial inquiry in any case against the Second Injury Fund is the extent of employer's liability for the primary injury. **Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003)** overruled on other grounds by **Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003)**. "[P]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined." *Id.* (citation omitted). The primary claim in this matter is for repetitive trauma injuries to employee's bilateral upper extremities. Treating doctors diagnosed carpal tunnel syndrome and employee underwent carpal tunnel release surgeries in May and November 2006. Employee settled a workers' compensation claim against his employer for 15% of each wrist. Dr. Volarich opined that employee suffered a 35% permanent partial disability of each wrist as a result of the primary injuries, with a 15% multiplicity factor of the body as a whole. We agree with Dr. Volarich that employee suffered permanent partial disability as a result of the primary injuries, but find Dr. Volarich's ratings excessive; employee's limited testimony describing lingering discomfort does not convincingly support 35% permanent partial disability ratings for each wrist.

We find employee's settlement with his employer persuasive as to the extent of permanent partial disability employee sustained as a result of the primary injuries. We affirm the administrative law judge's finding that employee suffered 15% permanent partial disability of each wrist as a result of the primary injuries.

In order to establish entitlement to compensation from the Second Injury Fund under § 287.220.1 RSMo, employee must demonstrate that he suffered from a preexisting permanent partial disability which constituted a hindrance or obstacle to employment.

[T]he basis for liability of the Fund is a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed.

**Loven v. Greene County, 63 S.W.3d 278, 283 (Mo. App. 2001).**

*Landman* is one of many cases that were partially overruled by **Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)**. We cite other cases herein that were partially overruled by Hampton; because these cases are cited for principles that were not overruled, we make no further mention of Hampton's effect.

Employee has significant lower back problems dating back to 1983, when employee was injured while helping move a television at work. As a result of that injury, employee underwent a total laminectomy at L-5 with an iliac bone graft and fusion from L-4 to S-1. Employee was off work for approximately 4 to 5 years. Employee essentially changed career paths due to the 1983 fusion surgery; employee's limitations precluded him from the types of jobs he had previously done. In order to return to work, employee retrained himself and sought degrees in health care administration so that he could perform sedentary jobs.

Employee credibly testified that he experienced ongoing problems with his back following the 1983 surgery. Dr. Houchin credibly testified that he treated employee from 1988 to the present for back pain related to the 1983 surgery. Employee usually complained of a moderate exacerbation of pain, but occasionally complained of severe pain. Employee used Vicodin for his intermittent back pain. Dr. Volarich opined that employee's preexisting back condition was a hindrance or obstacle to employment at the time of the primary injury; we find Dr. Volarich credible in this regard. Dr. Volarich rated employee's preexisting low back disability at 45 % of the body as a whole, and explained that his rating takes into account employee's chronic back pain syndrome, lost motion, and recurrent lower extremity radicular symptoms.

Given the foregoing, we find that employee's preexisting low back condition amounted to a hindrance or obstacle to employment as of August 18, 2004. Faced with the risk that employee's problematic low back condition might combine with a later work injury to further disable employee, a prospective employer, in the absence of the Second Injury Fund, would have an incentive not to hire employee. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995). We affirm the administrative law judge's finding that employee suffered a 43 % preexisting permanent partial disability of the body as a whole referable to the low back.

Employee injured his right shoulder in 1991 when he fell down some icy steps at work. Dr. Morris performed an intra-articular debridement and arthroscopic subacromial decompression. Employee settled a workers' compensation claim against his employer for 30 % permanent partial disability of the right shoulder. As a result of the 1991 right shoulder injury and surgery, employee continues to feel discomfort and pain in his right shoulder when he lifts heavy objects. Employee treats these complaints with aspirin. Employee can't lift over his head or open jars. Employee has difficulty carrying things with his right hand. Employee also has trouble sleeping on his right side. Dr. Volarich rated employee's preexisting right shoulder disability at 35 %. Dr. Volarich's rating accounts for pain, lost motion, crepitus, and weakness, as well as atrophy in employee's dominant arm. Sherry Browning, the Second Injury Fund's vocational expert, acknowledged that employee's shoulder condition was a hindrance and obstacle to employee's returning to work as a nurse or another physically demanding job. Dr. Volarich opined that employee's preexisting right shoulder disability was a hindrance or obstacle to employment at the time of the primary injury; we find Dr. Volarich credible in this regard.

Given employee's credible testimony, the evidence of his workers' compensation settlement for 30 % permanent partial disability of the right shoulder, and Dr. Volarich's credible testimony, we find that employee suffered from a preexisting right shoulder disability that was a hindrance or obstacle to employment as of August 18, 2004. We affirm the administrative law judge's finding of a 35 % preexisting permanent partial disability of the right shoulder.

Employee injured his left shoulder on June 5, 1997. Employee underwent surgery in connection with that injury. Employee settled a workers' compensation claim against his employer on March 28, 2000, for 20\% of the left shoulder. As a result of the 1997 left shoulder injury, employee experiences ongoing discomfort, has difficulty lifting items, and experiences pain if he turns his left arm in certain ways. Employee also has difficulty working overhead and is unable to pull out file cabinets above his shoulder. Dr. Volarich opined that employee's 1997 left shoulder injury left him with disability that constituted a hindrance or obstacle to employment; we find Dr. Volarich credible in this regard. Dr. Volarich rated employee's disability at 25 % of the left shoulder. Dr. Volarich's rating accounts for pain, lost motion, crepitus, and weakness.

We find employee's settlement with his employer more persuasive than Dr. Volarich's testimony as to the extent of permanent partial disability employee sustained as a result of the 1997 left shoulder injury. We affirm the administrative law judge's finding that employee suffered a 20 % preexisting permanent partial disability of the left shoulder. We find that employee's left shoulder condition was a hindrance or obstacle to his employment as of August 18, 2004.

We note that employee's vocational expert, James England, admitted on crossexamination that he was not aware of employee missing any work related to his preexisting back and shoulder conditions. We do not find this testimony determinative on the issue whether employee suffered preexisting permanent partial disabilities that were hindrances or obstacles to employment.

The Second Injury Fund statute recognizes that employers have a financial incentive to discriminate against individuals who have a condition which renders them more susceptible to a greater degree of disability compared to workers who have no such condition. That incentive to discriminate is precisely the same whether the condition has previously caused the employee to miss work or not.

Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

We proceed to consider the nature and extent of Second Injury Fund liability.

In cases against the Second Injury Fund for permanent partial disability, § 287.220.1 RSMo, imposes minimum thresholds of fifteen percent permanent partial disability for major extremity injuries, and fifty weeks for injuries to the body as a whole. Both the

Injury No.: 04-095916

Employee: Ricky Fielder

- 5 -

primary injury and the preexisting permanent partial disability must meet these thresholds:

If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability.

Section 287.220.1 RSMo.

Given our findings in the foregoing sections, employee has met the minimum thresholds. The only remaining question is whether employee met his burden of proving that his preexisting and primary injuries and disabilities combined to result in greater disability than that which would have resulted from their simple sum.

Under § 287.220, when the combination of a preexisting disability with a compensable disability results in a greater disability than the sum of the two disabilities considered independently, the Second Injury Fund is liable for the difference between the sum of the two disabilities and the disability resulting from their combination.

Nance v. Treasurer of Mo., 85 S.W.3d 767, 772 (Mo. App. 2002) (quotations and citations omitted).

Dr. Volarich opined that employee's preexisting disabilities combine with the primary injuries to create greater disability than their simple sum. Dr. Volarich was the only doctor to specifically opine as to the combinative effect of employee's preexisting permanent partial disabilities and the effects of the primary injuries, and we find his opinion persuasive. We find that employee's preexisting disabilities combine with the primary 2004 repetitive trauma injuries to create more disability than the simple sum of employee's conditions considered independently.

Employee has met his burden of demonstrating his entitlement to compensation from the Second Injury Fund for permanent partial disability.

We affirm the administrative law judge's calculation of Second Injury Fund liability.

The Commission supplements the award of the administrative law judge with the foregoing findings, analysis, and conclusions. Because the Commission otherwise agrees with the findings, conclusions, and analysis of the administrative law judge, the award dated April 13, 2010, is affirmed. Employee is entitled to 35.19 weeks of multiplicity at the rate of $\ 354.05 per week, which amounts to $\ 12,459.00 in compensation from the Second Injury Fund.

The award and decision of Administrative Law Judge Cornelius T. Lane, issued April 13, 2010, is affirmed, and is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $8^{\text {th }}$ day of December 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

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: August 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant alleges injury to his right and left upper extremities due to repetitive lifting at work
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: Right and left upper extremities
14. Nature and extent of any permanent disability: 15 % of each wrist
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages:
3. Weekly compensation rate: $\$ 615.39 / 354.05$
4. Method wages computation: Agreement of parties

1. Amount of compensation payable:
2. Second Injury Fund liability:

35.19 weeks at amount of $\ 354.05 for permanent partial disability for a total sum of $\ 12,459.00 payable to Claimant.

TOTAL: $\ 12,459.00

1. Future requirements awarded: None

Said payments to begin 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Nile Griffiths

A hearing was held in the above mentioned matter on February 2, 2010. The Claimant, Ricky Fielder, was represented by attorney Nile Griffiths. The Second Injury Fund was represented by Assistant Attorney General Da-Niel Cunningham.

1. Liability of the Second Injury Fund for permanent partial disability.

The Claimant offered the following exhibits into evidence:

Exhibit A: Stipulation for Compromise Settlement.

Exhibit B: Stipulation for Compromise Settlement.

Exhibit C: Stipulation for Compromise Settlement.

Exhibit D: Stipulation for Compromise Settlement.

Exhibit E: Deposition of Dr. Volarich.

Exhibit F: Deposition of James England.

Exhibit G: 1983 Barnes Medical records.

Exhibit H: Deposition of Dr. Houchin.

Exhibit I: Medical records of Dr. Allan Morr

Exhibit J: Medical records of Barnes - St. Peters, October 1997

Exhibit K: Medical records of Barnes - St. Peters, January 1998

Exhibit L: Medical records of Dr. Houchin.

Exhibit M: Medical records of Dr. Polineni.

Exhibit N: Medical records of Dr. Polineni.

Exhibit O: Medical records of Dr. Turpin.

Exhibit P: Medical records of Dr. Raskas.

The Second Injury Fund offered the following exhibits into evidence without objection:

Exhibit I. Deposition of Sherry Browning with report and exhibits.

Exhibit II. Medical records of Dr. James Coyle.

Exhibit III. Deposition of Dr. Coyle with report and exhibits.

Exhibit IV. Medical records of Dr. Richard Howard.

Exhibit V. Medical records of Dr. David Brown, and

Exhibit VI. Medical records of Dr. Bernard Randolph.

1. Weekly compensation rate $\$ 615.39 / 354.05$,
2. Exhibits of Claimant and Second Injury Fund accepted into evidence and all objections made with regard to depositions and the admission of Stipulation for Compromised Settlement were overruled.

1. Claimant, at the time of the hearing was 52 years of age having been born on March 4, 1958. Claimant earned his GED while serving in the military and also has an LPN which he earned in 1981.
2. Claimant in August 2004 testified he started having problems with his hands because of having to do typing at a computer all day at his place of employment. As a result of the Claimant's wrist problems he came under the care of Dr. Polineni, who diagnosed the Claimant with carpal tunnel syndrome and did right carpal tunnel surgery in May 2006 on the right wrist and the left carpal tunnel surgery on the left wrist in November 2006. As a result of the carpal tunnel problems, Claimant brought a Workman's Compensation Claim which was settled against the Employer for fifteen percent of the left wrist and fifteen percent of the right wrist.
3. Claimant prior to the wrist surgeries as a result of the date of accident August 18, 2004 had the following pre-existing conditions or injuries:

A. CLAIMANT'S RIGHT SHOULDER: In 1991 Claimant while working for his Employer, Cardinal Ritter, slipped and fell injuring his right shoulder and underwent arthroscopic right shoulder surgery with intra-articular debridement of the partial thickness tear and arthroscopic subacromial decompression. The operation was performed by Dr. Morris.

B. LEFT SHOULDER AND LEFT ELBOW: Claimant on June 5, 1997, while working for Employer, St. Joseph Carondelet Home, sustained injury to his left shoulder when lifting a patient. Claimant underwent nerve conduction studies which showed that he had ulnar nerve entrapment of the cubital tunnel, and then on October 24, 1997 Claimant underwent a left cubital tunnel release with sub muscular transposition of the ulnar nerve. Claimant on January 8, 1998, was operated on by Dr. Spezia for left shoulder arthroscopic subacromial decompression.

C. LOW BACK: Claimant while working for his Employer, Lutheran Christian Association, on August 16, 1983, was admitted to Barnes Hospital for a back injury resulting from Claimant's assisting someone to move a television at the Lutheran Convalescent Home slipped and fell and struck the back and experienced pain in his low back and right lower extremities. Claimant after being released from the hospital continued to have problems with his low back and was admitted and he treated at the hospital until on August 19, 1983, Claimant underwent a laminectomy of the L5 and iliac bone graft spinal fusion at the L4-S1.

D. SETTLEMENTS RIGHT SHOULDER: The Claimant settled the 1991 right shoulder injury for thirty percent of the right shoulder and settled a prior back injury, against the Fund, for forty-three percent of the low back.

E. LEFT ELBOW AND LEFT SHOULDER: In 1997 the Claimant while working sustained an injury to his left upper extremity which was operated on at the left elbow and left shoulder. Claimant settled that Workman's Compensation case for twenty percent of the left shoulder and 12.3 percent of the left elbow as well as against the Second Injury Fund for prior disability of the thirty percent of the right shoulder and forty three percent of the low back.

F. EXPERT TESTIMONY: Dr. Volarich testified on behalf of Claimant that the Claimant's left and right wrist injuries as well as right shoulder injury and his left shoulder and left elbow injuries and the low back injury resulted in a permanent partial disability which injuries were a hindrance to his employment and/or re-employment and that the sum of these disabilities was greater than the simple total.

1. The Claimant sustained permanent partial disability with regard to the primary case of fifteen percent of the left wrist and fifteen percent of the right wrist with a ten percent load which amounts to 5.25 weeks; Claimant had pre-existing disability of thirty-five percent of the right shoulder with a ten percent load for a total of 8.1 weeks; Claimant had a twenty percent disability of the left shoulder with a ten percent load factor amounting to 4.64 weeks; Claimant had a prior disability of the low back in the amount of forty-three percent of the body as a whole for a total of 17.20 weeks. Thus, Claimant has a total of 35.19 weeks of multiplicity.
2. Thus, 35.19 weeks of multiplicity at the agreed amount of $\ 354.05 for permanent partial disability Claimant is entitled to $\ 12,459.00.

A true copy: Attest:

We agree that employee is entitled to compensation from the Second Injury Fund for permanent total disability benefits. Because the award of the administrative law judge lacks the findings mandated by $\S 287.460 .1$ RSMo, we are constrained to write this supplemental opinion.

Although the administrative law judge summarized the testimony of Dr. Volarich regarding the primary injury, the award contains no affirmative findings to resolve the issue of employer's liability for the primary injury or when employee reached maximum medical improvement following that injury. By ordering the Second Injury Fund to begin payment of permanent total disability benefits on April 22, 2005, the administrative law judge impliedly determined that employee reached maximum medical improvement from the primary injury on that date. We have searched the record for evidence as to when employee reached maximum medical improvement. We find no medical significance to the date April 22, 2005.

Although the statutes involving temporary total disability and permanent disability do not set out a specific time line, there is an intended timing of benefits paid by employers. Temporary total disability benefits are due from the date of the injury through the date the condition has reached the point where further progress is not expected. Courts have used various terms to determine when an employee's condition has reached the point where further progress is not expected, including the term maximum medical improvement. Vinson v. Curators of the University of Missouri, 822 S.W.2d 504, 508 (Mo. App. E.D. 1991)(interpreting a doctor's testimony of employee's maximum treatment potential to mean maximum medical improvement); Cooper, 955 S.W.2d at 575 (using the term maximum medical progress to define the point where no further progress is expected for an employee's condition).

After reaching the point where no further progress is expected, it can be determined whether there is either permanent partial or permanent total disability and benefits may be awarded based on that determination. One cannot determine the level of permanent disability associated with an injury until it reaches a point where it will no longer improve with medical treatment. Furthermore, an employers' liability for permanent partial or permanent total disability does not run concurrently with their liability for temporary total disability.

Although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated.

Cardwell v. Treasurer of Mo., 249 S.W.3d 902, 910 (Mo. App. 2008).

**Enployee: Ricky Fielder**

Correspondence from employee's treating doctors suggests employee reached maximum medical improvement in July 2005. Dr. Randolph determined that employee was at maximum medical improvement on July 12, 2005, in his correspondence dated that day. After that date, employee underwent an MRI, a nerve conduction study/EMG, and two CT scans. Dr. Coyle, in a letter dated November 9, 2005, opined that he would agree with Dr. Randolph that employee was at maximum medical improvement, pending a review of the CT scan results. Dr. Coyle reviewed those results and, in a letter dated December 16, 2005, opined that he was in agreement with Dr. Randolph that employee was at maximum medical improvement.

We find Dr. Coyle's and Dr. Randolph's findings persuasive on this issue. We find that employee reached maximum medical improvement in relation to the primary injury on July 12, 2005. We turn now to the question of the nature and extent of disability resulting from the primary injury. The employer's liability for the primary injury must be determined before we consider whether employee is entitled to compensation from the Second Injury Fund. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003) overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 224 (Mo. banc 2003).[^1] "[P]re-existing disabilities are irrelevant until the employer's liability for the last injury is determined." *Id.* (citation omitted).

Following the October 8, 2004, work injury, Dr. Houchin diagnosed cervical, thoracic, and lumbar spasm with lumbar radiculopathy and MRI findings consistent with severe spinal stenosis. Dr. Houchin's course of treatment included a Toradol injection and Percocet (employee also had a prescription for Vicodin in connection with a preexisting chronic back pain condition). Dr. Houchin took employee off work and recommended physical therapy. Dr. Houchin acknowledged that there was not a significant change in pathology demonstrable on findings from an MRI taken in August 2005 compared to an MRI taken in June 1997. Dr. Houchin opined, however, that the October 8, 2004, work injury caused a significant change in employee's back condition; we find Dr. Houchin credible in this regard. Dr. Houchin explained that he treated employee from 1988 to present for pain related to a 1983 back surgery, and each time, employee responded in a reasonable amount of time to therapy. Dr. Houchin explained that, during this long-term course of treatment for intermittent back complaints, there was never a time that employee had a loss of functional ability to the degree seen after the 2004 work injury. Dr. Houchin recommended further medical treatment and did not indicate that employee was at maximum medical improvement or issue permanent partial disability ratings specific to the 2004 work injury.

Dr. Volarich provided an independent medical evaluation on behalf of the employee. With regard to the October 8, 2004, work injury, Dr. Volarich diagnosed aggravation of employee's lumbar syndrome due to neuroforaminal narrowing at the L5-S1 level, with mild disc bulging causing recurrent L5 radiculopathy and worsening of lumbar radicular symptoms. Dr. Volarich opined that employee was at maximum medical improvement.

[^1]: *Landman* is one of many cases that were partially overruled by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003). We cite other cases herein that were partially overruled by *Hampton*; because these cases are cited for principles that were not overruled, we make no further mention of *Hampton's* effect.

and assigned a 20\% permanent partial disability of the body as a whole referable to the lumbo-sacral spine due to the aforementioned progression and aggravation of employee's lumbar syndrome. Dr. Volarich explained that his rating accounts for worsening of employee's back pain syndrome as well as loss of motion and lower extremity radicular symptoms.

We find Dr. Volarich's diagnosis credible. We also find Dr. Volarich credible to the extent that we agree that employee sustained permanent partial disability referable to the primary injury. We find his rating, however, somewhat excessive. We find that employee suffered a 15\% permanent partial disability of the body as a whole referable to the lumbo-sacral spine due to the primary injury.

The Second Injury Fund is liable for permanent total disability benefits only if employee establishes that: (1) he suffered from a permanent partial disability as a result of the last compensable injury; and (2) that disability has combined with a prior permanent partial disability or disabilities to result in total permanent disability. ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 50 (Mo. App. 2007). "[I]f claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability." Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. 2004).

The administrative law judge noted correctly that employee's vocational expert, James England, opined that employee is permanently and totally disabled due to a combination of the primary injury and his preexisting disabilities. The award makes no mention of the Second Injury Fund's vocational expert, Sherry Browning. Ms. Browning agreed that employee is permanently and totally disabled, but opined that employee's inability to return to employment is due to the effects of the primary injury alone. Ms. Browning opined that, assuming the restrictions of Dr. Volarich, employee would be employable if it were not for the last injury to the low back.

On cross-examination, Ms. Browning acknowledged that employee's preexisting shoulder, bilateral wrists, and right knee conditions would all be hindrances or "inhibitors" to employee's returning to work. Ms. Browning also acknowledged that employee's preexisting back fusion from 1983 caused him to have to pursue more sedentary work. Ms. Browning denied, however, that employee's preexisting back condition plays a factor in his current permanent and total disability.

We find Mr. England's opinion more credible than Ms. Browning's. Ms. Browning's opinion that employee was permanently and totally disabled due to the primary injury alone appears to be premised solely on the fact that employee was able to maintain employment prior to that injury. Ms. Browning admits that employee's 1983 fusion essentially restricted employee to sedentary work, but steadfastly refuses to acknowledge that this restriction plays a key role in employee's current inability to return to any employment. We find Ms. Browning's opinion unrealistic and contrary to the evidence of employee's fusion surgery, longstanding chronic back pain, and resultant work history which was primarily limited to sedentary positions after 1983.

In sum, we conclude that employee is permanently and totally disabled due to the combined effect of his preexisting disabilities and the effect of the primary work injury. Employee has met his burden of demonstrating entitlement to permanent total disability benefits from the Second Injury Fund.

The Commission modifies the award of the administrative law judge with the foregoing findings, analysis, and conclusions. Employee is entitled, and the Second Injury Fund is hereby ordered to pay, weekly benefits commencing July 12, 2005, and thereafter for 60 weeks at the rate of $\ 261.34 (the difference between the stipulated rates for permanent total and permanent partial disability). Thereafter, employee is entitled, and the Second Injury Fund is hereby ordered to pay, $\ 615.39 per week for employee's lifetime, or as provided by law.

The award and decision of Administrative Law Judge Cornelius T. Lane, issued April 13, 2010, is attached and incorporated by this reference to the extent it is not inconsistent with our findings, conclusions, award and decision herein.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fees 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 $8^{\text {th }}$ day of December 2010.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

William F. Ringer, Chairman

Alice A. Bartlett, Member

John J. Hickey, Member

Attest:

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: October 8, 2004
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant tripped over a mop and fell injuring his low back.
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: 15 % of BAW referable to the low back.
15. Compensation paid to-date for temporary disability: 60 weeks at $\ 354.05 for a total of $\ 21,243.00.
16. Value necessary medical aid paid to date by employer/insurer? \$28,654.49

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages:
3. Weekly compensation rate: $\$ 615.39 / 354.05$
4. Method wages computation: Agreement of parties

1. Amount of compensation payable:
2. Second Injury Fund liability:

Permanent total disability payable by SIF for weeks April 22, 2005 thru June 16, 2006, at $\ 261.34 for 60 weeks for a total of $\ 15380.40, and thereafter, for Claimant's lifetime $\ 615.39 from June 17, 2006, as provided by law.

TOTAL:

1. Future requirements awarded: None

Said payments to begin 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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Nile Griffiths

A hearing was held in the above mentioned matter on February 2, 2010. The Claimant, Ricky Fielder, was represented by attorney Nile Griffiths. The Second Injury Fund was represented by Assistant Attorney General Da-Niel Cunningham. The Claimant's primary case was settled with the Employer/Insurer.

1. Claimant's average weekly compensation rate would be $\$ 615.39 / 354.05$,

1. Liability of the Second Injury Fund for permanent total disability.

The Claimant offered the following exhibits into evidence:

Exhibit A: Stipulation for Compromise Settlement.

Exhibit B: Stipulation for Compromise Settlement.

Exhibit C: Stipulation for Compromise Settlement.

Exhibit D: Stipulation for Compromise Settlement.

Exhibit E: Deposition of Dr. Volarich.

Exhibit F: Deposition of James England.

Exhibit G: 1983 Barnes Medical records.

Exhibit H: Deposition of Dr. Houchin.

Exhibit I: Medical records of Dr. Allan Morr

Exhibit J: Medical records of Barnes - St. Peters, October 1997

Exhibit K: Medical records of Barnes - St. Peters, January 1998

Exhibit L: Medical records of Dr. Houchin.

Exhibit M: Medical records of Dr. Polineni.

Exhibit N: Medical records of Dr. Polineni.

Exhibit O: Medical records of Dr. Turpin.

Exhibit P: Medical records of Dr. Raskas.

The Second Injury Fund offered the following exhibits into evidence:

Exhibit I. Deposition of Sherry Browning with report and exhibits.

Exhibit II. Medical records of Dr. James Coyle.

Exhibit III. Deposition of Dr. Coyle with report and exhibits.

Exhibit IV. Medical records of Dr. Richard Howard.

Exhibit V. Medical records of Dr. David Brown, and

Exhibit VI. Medical records of Dr. Bernard Randolph.

All Exhibits were accepted into evidence and the objections noted are all overruled. All the Exhibits of the Claimant and the Second Injury Fund were taken into evidence.

1. Claimant testified very credibly and stated that he was born on March 4, 1958. Claimant stated he completed only up to $10^{\text {th }}$ grade and then went into military service and earned his GED in 1981. The Claimant while working as an LPN in the early 1980s sustained a work injury to his low back and he had surgery including a fusion, which had to be repeated, and included bone grafts from his hip and leg. Claimant testified he was off work as a result of that injury for four or five years and did collect Social Security Disability benefits, and after four or five years he returned to work. Dr. Volarich found Claimant sustained 45 % permanent partial disability as a result of his low back injury.
2. Claimant in January 1991 slipped and fell on ice, landing on his right side. Claimant in March of 1991 underwent arthroscopic surgery of the right shoulder with debridement of partial thickness, supraspinatus tendon and arthroscopic subacromial decompression as a result of the fall. Claimant testified that he still has many complaints with regard to his right shoulder. Claimant settled this Workers' Compensation case with the Employer for 30 % permanent partial disability of the right shoulder.
3. Claimant on June 5, 1997, while lifting a patient, slipped and twisted when lifting and experienced left arm and shoulder pain. On January 8, 1998, Dr. Spezia performed surgery on the Claimant's left shoulder, arthroscopic subacromial decompression as well as left cubital syndrome release and submuscular transposition of the ulnar nerve on his left elbow. Claimant settled this Workers' Compensation case against the Employer for 20 % of the left shoulder and 12.3 % of the left elbow.
4. Claimant's work injury of October 8, 2004, had bilateral hand complaints as a result of the repetitive use of his hands at work, which the Claimant as well as doctors said was due to his using his keyboard at work. The Claimant also testified he could no longer do any keyboarding, and his grip has weakened. Claimant underwent bilateral carpal tunnel

surgery. Claimant's Workers' Compensation case settled against the Employer for 15\% of the right wrist and 15 % of the left wrist.

1. On October 8, 2004, the Claimant while working for the Employer was carrying a bundle of cloths weighing approximately 15-20 pounds into a shelter when he tripped on a mop and fell. After having fallen he had complaints of cervical, right knee, and low back pain. Claimant as a result of his fall on October 8, 2004, sustained a permanent partial disability of 20 percent of the body as a whole due to the aggravation of his spinal syndrome causing worsening at L5, radiculopathy and worsening of the bulging disc and narrowing L5-S1 according to Dr. Volarich. Claimant still continues to have a great deal of pain as has to take a great deal of medicine and antidepressant medicines. Claimant can no longer walk or sit for any prolonged period of time due to his injury of October 8, 2004.
2. Dr. Volarich testified by deposition and felt that Claimant as a result of the work injury of October 8, 2004, had sustained a permanent partial disability at 20 percent of the body as a whole due to the aggravation of his spinal syndrome causing worsening at L5 radiculopathy, and worsening of the bulging disc and narrowing at L5-S1.
3. Dr. Volarich testified very credibly that the Claimant, Mr. Fielder, is permanently and totally disabled as a result of the work related activities leading up to August 18, 2004, and October 10, 2004, in combination with a pre-existing medical condition. Thus, Dr. Volarich was of the opinion that the Claimant was permanently and totally disabled as a result of his combination of disabilities.
4. Mr. England, a vocational rehabilitation expert, testified on behalf of the employee. Mr. England testified very credibly that the Claimant is not employable in the open labor market due to the combination of his injuries and that with the combination of physical problems that he has, he was of the opinion that the Claimant is not capable of maintaining any type of work.

1. The Second Injury Fund is to pay the Claimant for weeks beginning from April 22, 2005, to June 16, 2006, for 60 weeks at $\ 261.34 for a total of $\ 15,680.40, and thereafter for Claimant's lifetime $\ 615.39 from June 17, 2006 as provided by law.

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