Thomas Clements v. LFI Staffing

that, given these circumstances, we must not consider any testimony from Dr. Poetz and Mr. Israel.

After carefully considering the Fund's arguments, we are not convinced. While the statutory framework unquestionably controls our own analysis, it does not dictate the particular form or content of the opinions from the experts who testify. See Elmore v. Mo. State Treasurer, 345 S.W.3d 361, 370-71 (Mo. App. 2011) (rejecting an argument "that one expert's opinion may be more or less credible than another's as a matter of law"). We believe we are entitled to consider and, if we find them credible, to rely upon the testimony and ultimate opinions from Dr. Poetz and Mr. Israel-so long as we perform the requisite statutory analysis to first determine employer's liability for the last injury, considered alone. We turn now to that analysis.

Employee suffered a herniated disc at L5-S1 as a result of the last injury. Dr. Coyle performed multiple surgeries in an effort to alleviate employee's back and lower extremity symptoms. When Dr. Coyle released employee from care, he adopted the opinion of an unidentified physical therapist with regard to employee's ability to function, and issued the following set of restrictions referable to the primary back injury: lifting 25 pounds on an occasional basis, 10 pounds on a frequent basis, pushing 60 pounds, and pulling 80 pounds. Dr. Coyle believes the effects of the primary injury do not prevent employee from full-time work; he rated the primary injury at 20 % permanent partial disability of the body as a whole.

Dr. Poetz's first report (following a 2008 examination) identifies the following "recommendations": avoid heavy lifting and strenuous activity; avoid prolonged sitting, standing, walking, stooping, bending, squatting, twisting, or climbing; avoid pushing and pulling; and avoid any activity that exacerbates symptoms or is known to cause progression of the disease process. Dr. Poetz's second report (following a 2010 examination) reiterates the 2008 recommendations with the following additional "restrictions": no lifting from the floor and only lifting five to ten pounds occasionally from table level; no sitting or standing for greater than 30 minutes at a time or longer than two hours per day; employee needs to be able to alter positions frequently and lie down when the pain is severe; and avoid working around machinery and operating equipment due to narcotic pain use. Dr. Poetz also increased his rating of the primary back injury from 50 % to 60 % permanent partial disability of the body as a whole between the 2008 and 2010 examinations.

Unfortunately, Dr. Poetz did not specify which of these recommendations or restrictions are referable to the primary injury, or to employee's preexisting bilateral knee problems, or to both, and as a result they are of little use to us in evaluating the effects of the primary injury.

Employee offered his own testimony describing the effects of the work injury. Ultimately, owing to the nonspecific nature of Dr. Poetz's recommendations/restrictions, and to Dr. Coyle's reliance on an unknown physical therapist's conclusions resulting from a functional capacity evaluation that was not provided for our review, we consider employee's own testimony the best source of evidence as to the effects of the primary

injury upon him. Employee testified (and we so find) that, as a result of his low back injury, he has constant pain in the middle part of his back, and shooting pains and weakness in his left leg. Employee takes Hydrocodone every six hours to control this pain. With medication, the pain is tolerable, but it makes employee feel pretty uncomfortable most of the time. Employee avoids stairs and uneven terrain if possible. If employee has to sit for a long time, his back gets stiff and he has to constantly shift his position. Employee experienced some depression resulting from the back injury. We note that employee did not identify any need to lie down during the day due to the back injury; consequently, we find this restriction from Dr. Poetz particularly unreliable.

When we consider the foregoing, we conclude that, although employee sustained a considerably disabling primary injury, he is not permanently and totally disabled as a result of the last injury considered alone. Rather, we affirm and adopt the administrative law judge's finding that, as a result of the work injury, employee suffered a 50\% permanent partial disability of the body as a whole referable to the low back, and a 15\% permanent partial disability of the body as a whole referable to depression.

We turn now to the question whether employee is permanently and totally disabled, and if so, whether it is owing to a combination of the effects of the primary injury and his preexisting conditions of ill, such that the Second Injury Fund is liable for permanent total disability benefits under § 287.220.1 RSMo.

Dr. Coyle believes employee is physically able to work full-time, and Mr. England believes employee is able to successfully compete for jobs on the open labor market. We find their ultimate opinions in this regard lacking credibility. Dr. Coyle, as we have noted, specifically adopted the findings of an unidentified physical therapist, and also appeared to limit the scope of his inquiry to the effects of the work injury, without taking into account employee's knees or his need, owing to Hirschsprung's disease, to take bathroom breaks at frequent and unpredictable intervals. Although it appears that no party asked Dr. Coyle to consider the question, we note that in his testimony Dr. Coyle hinted at a belief that employee's preexisting difficulties are seriously disabling, when he described the surgeries he performed as follows: "If you've got four bald tires on a car and a flat tire, you can fix the flat and the car goes on its way, but you've still got four bad tires." Transcript, page 477.

Mr. England identified some jobs that employee should be able to perform given Dr. Coyle's restrictions and the first set of restrictions from Dr. Poetz, but failed to credibly explain how employee will be able to compete for those jobs in the open labor market given his considerable preexisting difficulties with his knees and Hirschsprung's disease. Ultimately, Mr. England conceded that someone who needs to take bathroom breaks at unpredictable intervals and up to 20 times per day will have trouble competing for work.

Meanwhile, we have employee's testimony that he tried to go back to work for his uncle's body shop after the work injury, but was unsuccessful completing even one day of this work. When asked what caused him to be unable to complete even one full day of work, employee specifically identified back pain, swollen knees, and constantly

Injury No.: 06-100557

Employee: Thomas Clements

- 4 -

running back and forth to the bathroom. In other words, employee believes he was unable to finish the day due to the synergistic combination of disabilities from his work injury and preexisting conditions of ill. This testimony lends support to the ultimate opinions from Dr. Poetz and Mr. Israel that the combination of employee's primary injury and preexisting disabling conditions renders him permanently and totally disabled.

We credit employee and the ultimate opinions from Dr. Poetz and Mr. Israel. We also credit the opinion from Mr. England that an employee with an unpredictable need to take a bathroom break up to 20 times per day will have considerable difficulty competing for jobs in the open labor market.

We conclude employee is permanently and totally disabled owing to a combination of the last injury and his preexisting conditions of ill.

**Conclusion**

We supplement the award of the administrative law judge with the foregoing findings, conclusions, and comments.

The award and decision of Administrative Law Judge Kathleen M. Hart, issued October 17, 2011, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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 16th day of August 2012.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

VACANT

Chairman

James Avery, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: Thomas Clements

Injury No.: 06-100557

Dependents: $\mathrm{n} / \mathrm{a}$

Before the

Injury for Workers'

Employer: LFI Staffing (previously settled)

Department of Labor and Industrial

Additional Party: Second Injury Fund (SIF)

Relations of Missouri

Injury: Commerce \& Industry c/o Chartis

Jefferson City, Missouri

Hearing Date: July 25, 2011

Checked by: KMH

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