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
4. Date of accident or onset of occupational disease: September 14, 2006
5. State location where accident occurred or occupational disease was contracted: St. Louis
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 injured his back and body as a whole while lifting steel planks 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: low back \& psychiatric
14. Nature and extent of any permanent disability: 50 % BAW re low back \& 15 % BAW re psychiatric, previously paid by Employer, and permanent and total disability against the SIF beginning 260 weeks after March 1, 2009, due to a combination of the primary and preexisting injuries and disabilities.
15. Compensation paid to-date for temporary disability: $\ 36,265.08
16. Value necessary medical aid paid to date by employer/insurer? $\ 156,536.44

Employee: Thomas Clements

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: unknown
3. Weekly compensation rate: $\$ 311.35 / \ 311.35
4. Method wages computation: Stipulation

1. Amount of compensation payable:

260 weeks of permanent partial disability from Employer

(previously paid)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

$\ 311.35 payable by SIF weekly beginning 260 weeks after

March 1, 2009, and continuing for Claimant's lifetime

TOTAL:

TO BE DETERMINED

1. Future requirements awarded:

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Suzanne Besnia

Employee: Thomas Clements

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

Employer: LFI Staffing (previously settled)

Additional Party: SIF (only)

Insurer: Commerce \& Industry c/o Chartis (previously settled)

Injury No.: 06-100557

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter July 25, 2011. Thomas Clements (Claimant) was represented by attorney Suzanne Besnia. The SIF was represented by Assistant Attorney General Kevin Nelson. Employer and Insurer settled their aspect of the case prior to trial.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award.

The parties stipulated to the following:

1. Claimant was injured by accident September 14, 2006, while in the course and scope of his employment for Employer.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was fully insured by Commerce \& Industry.
4. Employer had notice of the injury and a claim for compensation was timely filed.
5. Claimant's rate for TTD, PTD, and PPD is $\ 311.35.
6. Claimant was paid TTD benefits through March 1, 2009, totaling \36,265.08. Claimant received \ 156,536.44 in medical benefits.
7. On March 30, 2011, Claimant and Employer/Insurer settled the primary case for 50\% BAW re the low back and 15 % BAW re psychiatric and other matters.

The parties stipulated the sole issue to be resolved by trial is SIF liability.

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 42 year-old male who is not married and has no dependents. He is a high school graduate with no additional education or training. Claimant's job history includes mainly laborer positions involving heavy lifting.
2. For five years after high school, he worked as an upholsterer. He had his own work station and stood most of the time. His workstation had padding on it to take the impact off his legs. His right knee swelled while working, but he was able to deal with it. His boss let him take restroom breaks as often as needed.
3. In 1992, he left his job as an upholsterer to live on his family farm in Tennessee. He stayed there about six months, and did not work the farm. Claimant next worked on an assembly line as a Painter full-time. He left this job because of his Hirschsprung's disease. At the end of 1992, he worked as a slitter cutting vinyl rolls at an art studio. He took breaks as needed and was laid off after 11 months. He then worked for a carrier service 28-32 hours a week for five months. He picked up medical supplies, and was able to take breaks as needed.
4. He worked for about 11 months at Merchant's Wholesalers, where he ran the cigarette stamping machine and was on his feet all day. He was able to take restroom breaks as needed and was laid off when the business closed. Claimant then worked for a produce company and drove a forklift arranging inventory in coolers. He worked about 45 hours a week. He was able to sit, stand, and take restroom breaks as needed. He left this job for an increased salary at The Suburban Journal.
5. He worked for the Journal from 2001 through 2005 when the building closed. He worked in the warehouse lifting fifty pound paper bundles. He also worked as the warehouse and circulation manager lifting 2-3 days a week and working at a desk the rest of the week. He was able to take breaks as needed. His next job was at RR Crew Express where he drove a van for a railroad company. He sat about 12 hours a day driving railroad workers. He was able to take restroom breaks as needed. He left this job to work for Employer for increased pay and benefits. He began working for Employer in July 2006. He worked about 72 hours a week.
6. Prior to the work injury, he had Hirschsprung's disease and injuries to his right knee, left knee, and right foot. Hirschsprung's disease is a congenital condition affecting the colon. Claimant had multiple surgeries to treat the condition from the time he was twelve days old until he was three. Following his surgeries, Claimant has only his right colon and the right half of his transverse colon present. Leading up to the primary injury and continuing, he uses the restroom ten to twelve times a day, and up to twenty times on a bad day. He has very little bowel control, constant diarrhea, and stomach pain and cramps. Claimant testified the condition has always limited his work. He has not been

able to work on assembly lines because he can't take breaks when needed. If a job doesn't allow frequent breaks, he can't work that job.

1. In 1981 Claimant had open repair of a torn ligament in his right knee. Since that time, his knee swells if he is on it much. His knee has been worse since his work injury. His back surgery left him with shooting pain in his left leg and he has had to rely more on his right leg. His right knee hurts anytime he walks and it swells when he walks about 40 feet. He has to elevate his right leg and ice his knee frequently.
2. He had left knee lateral retinacular release with debridement in March 1990. He didn't have many complaints until the primary injury, but since the primary injury, his left knee swells. Dr. Poetz noted Claimant had no complaints in his left knee. Claimant settled this case for 25 % PPD to the left knee.
3. Claimant was treated for plantar fasciitis and pain between his fourth and fifth toes beginning in 2003. In May 2005, he had an exostectomy at the base of his right fourth toe. A bone in his toe was removed because it pinched and made calluses grow inside his foot. Claimant testified he did okay following the surgery. While working for Employer he got a staph infection he believes was due to wearing steel toe boots.
4. Leading up to the work injury, his right knee swelled on occasion. His left knee was doing well, and he testified he did not have a lot of problems. These injuries did not stop him from working. He took no pain medications before the work injury. He had no back treatment or psychiatric treatment before the work injury.
5. On September 14, 2006, Claimant was lifting steel planks that weighed up to 100 pounds. He used a suction cup to grab the planks from the floor and put them on a pallet. While lifting, he was in a slightly bent position. Claimant developed back pain with left sided radiation that he initially thought was a pulled muscle. Over the weekend his pain worsened, and he went to the Emergency Room the next Monday, but didn't receive authorized treatment until he saw Dr. Cantrell in January 2007.
6. Dr. Cantrell ordered physical therapy, an MRI, and sent Claimant to Dr. Coyle for surgical consultation. Dr. Coyle diagnosed a massive disc herniation at L5-S1 with significant back and left lower extremity pain. He performed a discectomy in March 2007. Claimant continued to have low back pain radiating into his left leg. An MRI showed the disc was completely collapsed, and Dr. Coyle performed a revision discectomy and anterior lumbar fusion in August 2007.
7. Claimant continued in physical therapy, and was placed at MMI in February 2008. Claimant's complaints continued, and he saw Dr. Wayne in June 2008. Based on his physical exam and the functional capacity evaluation (FCE), Dr. Wayne recommended permanent restrictions and released Claimant at MMI. Claimant's complaints continued and he had pain management with injections.
8. Claimant also saw Dr. Stillings for a psychiatric evaluation on behalf of Employer. He noted Claimant had no psychiatric complaints related to his work injury, and Claimant

felt he did not need psychiatric treatment. Dr. Stillings opined the work injury was the prevailing factor in aggravating the depressive portion of his personality structure. He opined the depressive and avoidant personality features are preexisting and relate to his Hirschsprung's disease, and Claimant would benefit from treatment to address his prior psychiatric conditions.

1. Claimant testified he tried to work at his Uncle's body shop, but could not complete one day of work because his knee was swollen, he had low back pain, and he had to use the restroom a lot. He spent more time in the restroom and resting his knee than he did working.
2. Claimant continues to have constant low back pain, shooting pain in his left leg into his foot, weakness and pain in his left leg, and difficulty climbing stairs. He continues to take Hydrocodone every six hours. This relieves some pain, but he is still uncomfortable most of the time. If he stands 20-30 minutes, his knee and foot swell. When he sits, he has to shift and stand frequently. He testified he has depression associated with this injury. His house went into foreclosure, and he had to pawn or sell his possessions because his TTD was stopped a few times. This financial distress triggered depression.
3. Since the work injury, he has made changes to his lifestyle. He has more difficulty getting dressed. He is not able to cut the grass or shovel snow. His mother helps him with house cleaning. He can't bend forward. He has difficulty sleeping, and has to frequently change positions. His right leg hurts more because he has to put more weight on it.
4. Claimant testified he is unable to work because is body is pretty well shot due to the combination of his injuries. He had problems in the past, but his back injury made it worse. He has been trying to regain flexibility and has lost about 20 pounds.
5. Dr. Poetz reviewed the records, examined Claimant, and issued a report in August 2010. He noted Claimant has an antalgic gait, reduced motion in his knees and low back, decreased sensation in his left foot and leg, and diminished patellar reflexes on the left. He imposed lifting restrictions, opined Claimant needed flexibility to take restroom breaks as needed, and Claimant should avoid operating equipment as he is taking narcotics for pain relief. He opined Claimant is permanently and totally disabled as a result of the combination of his injuries and disabilities. Dr. Poetz testified even if a vocational rehabilitation expert found a job for Claimant that met Dr. Poetz's restrictions, he would be opposed to Claimant working and there aren't any jobs medically consistent with the doctor's recommendations.
6. Claimant's vocational expert, Jim Israel, noted Claimant's academic skills are more than adequate for many entry level unskilled or semi-skilled positions. With the exception of his work as a circulation manager, Claimant has held primarily unskilled positions. While Claimant is a candidate for vocational training, he is young, and his medical restrictions do not preclude all sedentary and light tasks, he is at an insurmountable disadvantage in securing those lesser skilled jobs. He can not apply any of his past background as a laborer, and these lesser skilled jobs do not provide the latitude and

accommodation his overall disabilities would necessitate. Based on Dr. Poetz's restrictions, Claimant could do some sedentary and light tasks, but he could not endure and sustain jobs because of the multiple interruptions needed to go to the restroom and to frequently change from sitting to standing. His combined restrictions preclude him from sustaining employment.

1. Employer's vocational expert, Jim England, opined based on the FCE and Dr. Coyle's restrictions, Claimant would be able to perform a wide variety of light work and entrylevel service employment positions. Dr. Poetz factored in the Hirschsprung's disease and imposed additional restrictions. There are still jobs he could perform based on Dr. Poetz's restrictions, but although Claimant was able to work years despite the restroom breaks issue, someone who has to use the restroom as frequently as Claimant probably couldn't work.

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

Claimant is permanently and totally disabled as a result of the combination of his primary and preexisting injuries and disabilities.

Section 287.220 RSMO provides that in cases of permanent total disability against the Second Injury Fund, there must be a determination of the following:

- the percentage of disability resulting from the last injury alone;

- that there was a pre-existing permanent disability that was a hindrance or obstacle to employment or to obtaining re-employment;

- that all of the injuries and conditions combined, including the last injury, have resulted in the employee being permanently and totally disabled.

Claimant settled his claim with Employer prior to this hearing. Based on my review of the treatment records, the medical opinions and the Claimant's complaints, I find Claimant sustained a 50 % PPD to his low back and 15 % to the body as a whole referable to his psychiatric and other complaints as a result of the September 14, 2006 injury. The settlement is consistent with the medical evidence as well as the Claimant's ongoing complaints.

Claimant had prior difficulties with both knees, including a 25 % PPD of the left knee compromise settlement. Claimant's testimony with regard to his prior knee problems was credible. While his knees worsened after the primary injury, he had limitations as a result of his pre-existing knee injuries. I find Claimant had pre-existing PPD in both knees that caused a hindrance and obstacle to his employment or re-employment.

Claimant credibly testified to numerous problems as a result of Hirschsprung's disease. He was not able to work on the assembly line while working as a painter due to his need for frequent breaks. Each of his other past jobs accommodated his condition. Claimant has preexisting disability as a result of this condition. Clearly this condition has been a hindrance and obstacle to Claimant's employment throughout his life.

The final question is whether the combination of Claimant's injuries rendered him permanently and totally disabled. The test for total disability is whether Claimant is able to adequately compete in the open labor market. The question is whether any employer in the usual course of business would reasonably be expected to employ Claimant given his condition.

Claimant's vocational expert opined Claimant could perform sedentary work if one considered his medical restrictions alone, but he could not endure and sustain a job because of the multiple interruptions needed to use the restroom, to change positions, and to accommodate his lifting restrictions. His combined restrictions preclude him from sustaining employment. Employers in the usual course of selecting job applicants would avoid hiring him, and Claimant is unable to compete in the open labor market.

The SIF offered the vocational report and deposition of Mr. England who agreed there would be some jobs he could perform within his restrictions, but someone who has to use the restroom so frequently could not work.

I recognize Claimant is young and has no restrictions with his upper extremities. However, Claimant's back injury precludes him from returning to jobs involving lifting. He is left with sedentary and light jobs which the vocational experts agree will not allow the frequent breaks necessitated by Claimant's Hirschsprung's disease.

Based upon my observations of Claimant, his credible testimony, the vocational and medical evidence, I find that no employer in the usual course of business would reasonably be expected to employ Claimant.

I find the opinions of Dr. Poetz, Mr. Israel, and Mr. England credible. The pain and physical limitations caused by Claimant's 2006 injury combine with the limitations caused by his prior injuries and his Hirschsprung's disease to create a greater overall disability. I find Claimant is permanently and totally disabled as a result of the combined effects of his 2006 work injury and his pre-existing disabilities.

Claimant received TTD payments through March 1, 2009. His disability became permanent at that time. He received compensation from Employer of $\ 311.35 for 260 weeks. The SIF is hereby ordered to pay permanent total disability benefits of $\ 311.35 per week beginning 260 weeks after March 1, 2009, for as long as provided by law.

Date: $\qquad Made by: \qquad$

KATHLEEN M. HART

Administrative Law Judge

Division of Workers' Compensation