Kenneth Spencer v. Jack Cooper Transport Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 08-056051

Employee: Kenneth Spencer

Employer: Jack Cooper Transport Company (Settled)

Insurer: American Zurich Insurance Company (Settled)

Additional Party: Treasurer of Missouri as Custodian of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated April 16, 2013, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued April 16, 2013, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $21^{\text {st }}$ day of August 2013.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

James G. Avery, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

1. Are any benefits awarded herein? No
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: June 26, 2008
5. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? 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: The employee, a transport driver, fell off an automobile transport truck while loading automobiles on the truck injuring his low back and pelvis and suffering urinary incontinence and depression.
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 and pelvis
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 83,287.80
16. Value necessary medical aid paid to date by employer/insurer: $\ 107,373.13

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,300.00
3. Weekly compensation rate: $\$ 742.72 / \ 389.04
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

None

TOTAL:

NONE

1. Future requirements awarded: None

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: Jonathan Isbell, Esq.

Employee: Kenneth Spencer

Injury No.: 08-056051

Dependents: N/A

Employer: Jack Cooper Transport Company (Settled)

Additional Party: Second Injury Fund

Insurer: American Zurich Insurance Company (Settled)

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/lsn

This workers' compensation case requires a determination of Second Injury Fund liability arising out of a work related injury in which the claimant, a transport driver, fell off an automobile transport truck while loading automobiles on the truck injuring his low back and pelvis and suffering urinary incontinence and depression. The sole issues for determination are (1) Permanent disability and (2) Second Injury Fund liability. The evidence compels an award for the defense, because the claimant suffered permanent total disability from the disability from the last injury alone.

At the hearing, the claimant testified in person and offered a medical report from Robert P. Poetz, M.D., a vocational report from Delores Gonzalez, two claimant's Workers' Compensation settlements, and voluminous medical records. The defense offered a vocational report from James M. England, Jr. The claimant objected to Mr. England's vocational report alleging that the vocational counselor was expressing medical opinions, and the defense objected to certain questions posed to Dr. Poetz alleging that Dr. Poetz is not a vocational expert. Both objections are overruled, and the evidence is received for any value that it may have.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

On June 26, 2008, the claimant, a transport driver, delivering loads of new trucks and cars for the past 25 years, fell off his truck, and suffered a low back injury. While loading his first vehicle that day onto the top deck, the claimant lost his balance and fell 13 feet from the top rail onto the concrete below, trying to land on his feet, but not succeeding. In the process, he fractured his pelvis, his SI joint, a few transverse processes in the lumbar spine and injured his low back. After falling, the claimant went to the St. Joseph's Hospital emergency room, by ambulance. X-rays revealed that he had fractured the right side of the L3 and L4 transverse processes as well as fracturing the sacral ala extending into the SI joint with mild SI widening. It was observed that there appeared to be a symphysis pubis diastasis less than 2 cm (suggesting a pelvic fracture). After being stabilized in the emergency room and spending a day admitted to

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Spencer

Injury No.: 08-056051

the hospital, Dr. Albus, orthopedist, provided conservative care, from chair to walker to cane.

Dr. Albus foresaw no need for surgical intervention. The claimant's primary complaint of pain

was in the low back, and he was unable to lie down.

On August 25, 2008, Dr. King, another orthopedist, examined the claimant and ordered

progressively more challenging physical therapy. The claimant appeared to make significant

progress in terms of getting back on his feet and getting around, although throughout Dr. King's

treatment the claimant complained of pain in his groin and hip, low back, buttock and SI region.

Other than clinical examinations, there did not appear to be any determination by Dr. King as to

the root cause of the claimant's pain. He characterized it as "residual discomfort".

On October 27, 2008, Dr. King opined the claimant was at maximum medical improvement

noting that he continued to take Darvocet, Naprosyn, and Ambien for pain and that the claimant's

lumbar flexion was 50% of normal. Dr. King imposed permanent restrictions of limited

squatting and bending to 10 minutes every hour. No lifting or carrying more than 30 pounds. No

standing or walking for more than 20 minutes of every hour. At that he was released from

medical care and the employer's workers' compensation medical benefit program initially

refused any further medical treatment.

On November 18, 2008, Dr. Ricci, chief of the orthopedic trauma service at Washington

University Orthopedics, examined the claimant and ordered various X-rays, CT and MRI scans,

revealing a pelvic shift of 2 cm. On December 23, 2008, Dr. Ricci noted that the claimant had

experienced severe pain walking on uneven ground. Dr. Ricci diagnosed pelvic ring injury with

instability caused by the work injury and recommended an open reduction internal fixation of the

anterior pelvis which he believed would substantially improve but not eliminate the pain. Dr.

King concurred with the diagnosis and treatment plan. Surgery was performed on April 30,

2009, after the claimant was able to get his diabetes blood sugar under control. In essence the

surgery fused the fractured pubic bone using allograft bone and the right sacroiliac joint fracture

was reduced by screw fixation. The repair was stabilized with a surgically applied multiplanar

external fixator, which the claimant described to be in the nature of an external halo cast around

the area of his abdomen. He was discharged from surgery to his home with a prescription for a

hospital bed and a wheel chair. The claimant testified that his wife took care of him at home.

On June 16, 2009, the external fixator was removed, and x-rays showed that two surgical

screws had loosened in the area of the pelvic fusion but overall a "healing symphyseal fusion".

On July 21, 2009, the claimant reported that his pelvic pain was "much improved", and x-rays

again showed the pelvic fusion was healing. Dr. Ricci ordered physical therapy for range of

motion and strengthening. After 8 weeks of physical therapy, x-rays showed a non-union of the

pelvic fusion and a loose and fractured surgical screw. On September 22, 2009, Dr. Ricci

realized that the fusion had failed and he was uncertain whether an additional fusion surgery

would be successful. He prescribed two additional months of physical therapy and a week later

provided the claimant with a hydrocodone prescription for pain. On November 24, 2009, Dr.

Ricci noted that physical therapy was helping the claimant to walk without assist devices, that his

greatest complaint at this point was back pain, and that he had developed urinary incontinence.

X-rays showed no interval change in the non-united pelvic fracture, therefore Dr. Ricci believed

the condition to be stable. Dr. Ricci ordered more physical therapy as well as work hardening

and released the claimant to return to work four hours a day with restrictions of no climbing and

to avoid bending, kneeling, and squatting. He recommended that the claimant consult a

WC-32-R1 (6-81)

Page 4

physiatrist for back pain. The employer declined physiatry treatment on the basis that "the back was never authorized".

On February15, 2010, Dr. King examined the claimant for an independent medical examination and noted that although the surgery failed to reunite the pelvis, he had achieved stability in both the posterior and anterior aspects of the pelvic ring with physical therapy to a point where his ability to walk "significantly improved" and "nearly all of his pubic discomfort has gone way". Dr. King noted that throughout the claimant's "entire treatment course from the time of his injury on June 29, 2008, he has complained of low back pain." He opined that the claimant suffered a 22 % permanent partial disability to the body as a whole related to the pelvic ring injury, but that his low back pain should be evaluated by a physiatrist and that diagnostic and therapeutic injections would be appropriate to determine the exact origins of the pain. He opined that in such circumstances "it is very common that [the] focus is solely on the pelvic ring injury and the lumbar spine is overlooked." As to the pelvic ring injury alone, Dr. King issued permanent restrictions of no lifting or carrying of more than 20 pounds; avoiding climbing, squatting and kneeling; standing and walking for no more than 30 minutes of each hour; sitting limited to no more than four hours a day, and; he should be allowed frequent position changes.

On April 20, 2010, Dr. Cantrell, a physical medicine and rehabilitation specialist, examined the claimant and observed that the claimant had been experiencing consistent pain in his lumbar back and buttocks since the injury, which had not been addressed medically. He attributed the claimant's low back pain to the fixation of the sacroiliac joint on the right placing adverse mechanical stresses acting on the lumbosacral junction. He recommended a trial of median branch blocks at the L5-S1 facets bilaterally, a TENS unit and anti-inflammatory and non-narcotic analgesics such as Tramadol.

On June 16, 2010, Dr. Doll performed the fluoroscopic guided nerve branch blocks. The claimant noted a 75 % reduction of pain for two days and then it gradually returned to its previous level. The claimant reported that the total relief of pain for two days was if he "had died and gone to heaven". Dr. Doll recommended a radiofrequency ablation at L5-S1 bilaterally. On July 16, 2010 Dr. Rachel Feinberg performed ablations at the L5-S1 level as well as at the sacroiliac joint. On August 25, 2010, the claimant returned to Dr. Cantrell reporting no improvement from the ablation procedure. Finding that the back pain was due to the injury, Dr. Cantrell released him from care at maximum medical improvement with no restrictions or limitations and opined that the claimant suffered a 17 % permanent partial disability of the body as a whole, including all the "lumbopelvic" injuries, the "transverse process fractures", "pelvic injury", "the need for pelvic stabilization" and "his residual subjective complaints thought to be predominantly coming from the lumbosacral junction." Dr. Cantrell released the claimant to return to work, regarding his activities, pursuant to a Work Status Report issued by Dr. Cantrell at the same time.

On October 14, 2010, the claimant consulted an orthopedist, Dr. Graven, who noted that the straight leg test was positive for low back pain and ordered a lumbar CT scan that revealed degenerative disc disease from L-1 to S-1 with no focal disc herniation, but mild to moderate spinal canal stenosis at L3-4 and L4-5. The claimant received a Medrol Dosepak and an antiinflammatory. On November 2, 2010, Dr. Graven noted that the claimant's low back pain had responded to the medication and he was doing "the best he has done in two years". Dr. Graven discharged the claimant with a home exercise program and told him to continue his Mobic. Dr.

Graven opined that his treatment and the claimant's continuing low back pain were related to the 2008 injury and stated that it was reasonably foreseeable that he would require similar treatment in the future.

The claimant attributed the following conditions to the 2008 injury: not being able to get around, not being able to walk far, a lot of pain in back and pelvis, not a pleasant person, very irritable, has to take steps one at a time, cannot walk well, and difficulty with uneven surfaces. The claimant has had incontinence since the 2008 injury. The claimant had to get a different car that was more comfortable for him after the primary injury. The claimant testified that it ruined his life.

On May 22, 1998, while attempting to stow a 14' ramp underneath a trailer, the ramp suddenly jammed and stopped, transferring all the forces of the claimant's forward motion into his left shoulder. Dr. Haueisen, an orthopedic surgeon, examined the claimant, provided a series of steroid injections, and ultimately a left rotator cuff repair and partial acromioplasty on August 17, 1998. On November 9, 1999, Dr. Haueisen opined that the procedure left his arm fatigued and feeling "like a rag". His grip strength was diminished to 85/110. He had returned to work with pain and ongoing difficulties when performing "forceful ratcheting down of the cars on his car hauler". Pain was noted at various locations and positions, by the doctor, primarily about the left shoulder girdle into the trapezius muscle region - also when extending his arm back or stretching far overhead and sometimes at night while trying to sleep. X-rays revealed an incomplete acromioplasty and a slight anterior lip of bone remaining. Dr. Haueisen also noted elements of ongoing shoulder bursitis, "which may be related to his chronic repetitive and forceful activities." The doctor noted that the claimant was trying to avoid the pain by attempting to use his non-dominant right arm as often as possible at work. He offered to perform another surgery, completing the acromioplasty so as to remove the anterior bone lipping or another steroid injection. The claimant chose the injection and has not received any more left shoulder treatment. The claimant testified that he has been plagued by continuous left shoulder pain and weakness since1998. The claimant testified that prior to the 2008 injury, his left shoulder was painful every day and has become progressively weaker, slowing down his speed loading and unloading and reducing his income. He also testified that the left shoulder was partially responsible for interfering with his sleep at night, when he'd roll onto his left side. The claimant has not had any medical treatment on his left shoulder since 1999. The claimant settled his workers' compensation claim with his employer, No. 99 WC 19375, on the basis of a 20\% permanent disability of the left arm.

The claimant also testified that he had pre-existing adult onset type II diabetes, which he had tried to control with oral medication and diet. As a result, throughout the day while he was working prior to the 2008 injury, his blood sugar went to a certain level and his mind would become "foggy" and he would have a "nervous stomach" feeling and need to stop his rig and eat immediately. He testified that stopping to control his blood sugar slowed down his productivity at work. He testified that after the 2008 injury, he has become insulin dependent and that the manner in which his current diabetes condition has progressed and is largely responsible for his present inability to concentrate. The claimant testified that in July 2009, his doctor switched him to insulin since he no longer would be a transport driver.

Transport drivers were paid by the mile and given so much time to load and unload. The claimant testified that each of his prior medical conditions slowed down his work and reduced his income. He testified that some transport drivers at the Wentzville facility performing the same duties, earned $\ 30,000 to $\ 40,000 more per year than the claimant because they were able to work more quickly.

Dr. Robert P. Poetz, M.D.

Dr. Poetz examined the claimant on March 3, 2011, and took medical history that the claimant's chief complaints were:

I have difficulty walking and cannot walk very far without stopping to rest. I have difficulty climbing stairs and have to take steps one at a time. I have pain and numbness down the outer portion of my left leg to above the knee. I also cannot bend over to pick an item up without having support to straighten back up. I have chronic lower back pain. I cannot sit on a hard surface. I am unable to sit or stand very long. I only sleep for an hour at a time and I have to go back and forth from my bed to my recliner. Since surgery, I have had urinary incontinence. The incontinence occurs when I stand up and I have to watch what I drink, especially if I go out somewhere. .... I also have pain in my pelvis, which feels like the strap they inserted, especially when walking. Some days I can barely walk. Walking long distances and climbing steps increase my pain.

Dr. Poetz noted that the claimant had a pre-existing left shoulder surgery as well as preexisting diabetes, becoming insulin dependent after the accident. The claimant reported that he had become depressed since the 2008 injury, because he did not want to quit working. As to the pre-existing shoulder injury, the claimant reported that his left arm had become increasingly weak since the surgery. The claimant rated his general pain at a level at 7-8 out of 10 on his worst days and 3-4 out of 10 on his better days. Dr. Poetz' testing of the claimant's left shoulder showed significant deficits on abduction and flexion. Dr. Poetz found that the claimant lacked internal rotation of his left hip as he only had 5 degrees. Dr. Poetz' testing of range of motion of the hip showed significant deficits for both hips. The doctor noted that the claimant exhibited palpable lumbar myospasm, left and right rotation of the spine only to the extent of 5 degrees, decreased pinprick sensation in the L-3 dermatome pattern on the left, straight leg raising bilaterally in a supine position at 40 degrees for low back pain. After examining the claimant and reviewing medical records, Dr. Poetz imposed the following physical activity restrictions:

- Avoid heavy lifting and strenuous activity;

- Avoid prolonged sitting, standing, walking, stooping, bending, squatting, twisting or climbing;

- Avoid overhead use of upper extremities;

- Avoid excessive and repetitive use of upper extremities;

- Avoid use of equipment that creates torque, vibration, or impact to the upper extremities;

- Avoid stressful situations;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Spencer

Injury No.: 08-056051

• Avoid any activity that exacerbates symptoms or is known to cause progression of the disease process;

Based on his physical examination, medical history from the claimant and review of medical records, Dr. Poetz opined that the claimant suffered from the following permanent partial disabilities from the 2008 accident: a 25% permanent partial disability to the lumbar spine, a 20% permanent partial disability to the sacrum, a 25% permanent partial disability to the pelvis, a 15% permanent partial disability to the body as a whole due to urinary incontinence, and a 15% permanent partial disability to the body as a whole due to depression. Dr. Poetz also opined that the claimant suffered a 5% pre-existing permanent partial disability to the lumbar spine and a 35% pre-existing permanent partial disability to the left shoulder.

Dr. Poetz also opined that the combination of the present and prior disabilities resulted in a total which exceeds the simple sum by 20%. He opined that the claimant is permanently and totally disabled as a direct result of his June 26, 2008 work injury in addition to his prior injuries and conditions and will remain permanently and totally unemployable in the open labor market. He testified, “It’s my opinion that it’s a combination of his present and prior disabilities which renders him permanently and totally disabled.” He also testified, “It’s not only the injury of June 26th ‘08 alone. That, in my opinion would not have rendered him permanent and total by itself, but coupled with the pre-existing injuries, it does.” Dr. Poetz also opined that the claimant’s pre-existing conditions constituted a hindrance to his ability to perform at work prior to the primary injury and that the impairment was even more significant because he had to work with an injured dominant arm.

Dr. Poetz opined that he would not defer to a vocational expert regarding issues of employability. “[B]etween the two, the medical judgment has to supersede the vocational rehab judgment. Vocational rehab judgment is based upon a piece of paper whereas my judgment is based upon my physical examination of the patient and my understanding of the medical risks involved.”

Dr. Poetz testified generally that individuals with the genetic predisposition for diabetes become insulin dependent following weight gain. He opined that the claimant’s weight gain resulted from inactivity resulting from the primary injury. Dr. Poetz testified generally that the requirement for insulin dependence is very strongly related to patient’s weight or weight gain, so that increased weight gain causes increased insulin resistance, which causes a decrease in a hormone related to intravisceral fat. Dr. Poetz testified that decreased hormone causes insulin resistance eventually resulting in insulin dependence because the pancreas is not able to produce its own insulin because it has been over working. Dr. Poetz testified that it is a well known complication of progression of the disease based on increased weight causes increased progression of diabetes. Dr. Poetz opined that the progression of the diabetes to requiring insulin occurred after the date of injury.

In addition, Dr. Poetz testified that the claimant denied having any injuries to his back or hips prior to 2008 and the claimant was not suffering from any injuries with his sacrum, pelvis, urinary incontinence, depression, and lumbar spine before the primary injury. Dr. Poetz testified that you can show degenerative changes on an x-ray or on a diagnostic but still be asymptomatic. Dr. Poetz testified that his rating of disability of the claimant’s pre-existing lumbar spine

WC-32-B1 (6-81)

Page 8

degenerative disc disease was based on the pre-existing disease the claimant had on the x-ray and not based on the claimant's symptoms.

On July 22, 2011, Kimberly Gee, a vocational counselor, interviewed and tested the claimant and generated a September 19, 2011, report. Delores Gonzalez, another vocational counselor, used that report and reviewed the claimant's employment, educational history, and medical records. Ms. Gonzalez opined that based upon the medical records relating to the claimant's residual functional capacity, his lack of post-secondary education, his age, limited vocational experiences, and lack of transferable skills, the claimant would not be expected to obtain or maintain employment in the open labor market. Ms. Gonzalez noted that Dr. King's permanent restrictions would not allow for even sedentary work, but she also noted that Dr. King had issued a rating of 17 % permanent partial disability of the person as a whole. Ms. Gonzalez opined that because the claimant has a diagnosis of insulin dependent diabetes mellitus, must avoid occupations which pose a risk of serious injury due to his delayed healing time, as well as requiring a set work schedule and opportunity to eat regular meals. Ms. Gonzalez opined that the claimant would not pass a DOT physical if he is insulin dependent.

Mr. England who interviewed the claimant, reviewed his employment and educational history as well as the medical records, and vocational test results of Ms. Gonzalez. On September 10, 2012, Mr. England opined that the claimant is permanently and totally disabled in that he is and will remain totally unemployable from a vocational standpoint. Mr. England opined that assuming the restrictions of the doctors that were mentioned in his report, as a result of the primary injury alone, the claimant would not be able to return to any of his past work nor would he be able to sustain any type of regular work activity. Moreover, Mr. England opined that considering the restrictions of the doctors that were mentioned in his report as well as the claimant's description of his functioning, that the problems he is experiencing related to the primary injury would prevent him from sustaining regular work regardless of any pre-existing shoulder conditions. Mr. England concluded:

"Assuming the restrictions that have been mentioned [earlier in the report] as a result of the primary injury alone, I do not believe that he would be able to return to any of his past work nor do I feel that he would be able to sustain any type of regular work activity.

"Considering the restrictions mentioned by the doctors as well as Ken's description of his functioning, I believe that the problems he is experiencing just related to the primary injury would prevent him from sustaining regular work activities regardless of any pre-existing shoulder problems."

"This is a gentleman who was working 12-14 hours a day, 6-7 days a week and was able to climb up and down off of the truck doing repetitive squatting, reaching, pulling, pushing, etc., and able to effectively bow hunt prior to the injury."

"He indicated to me that had it not been for the last injury he would still be working and had hoped to be able to go back to his regular job after a successful

surgery by Dr. Ricci. Unfortunately, he said that things didn't go as planned and that his pain level remained so high that he has difficulty accomplishing anything during the day."

"He was clearly able to function in at least a medium level job on a fulltime basis without any apparent difficulty before the primary injury. Since the primary injury he is now limited to the point where I don't believe he would be able to last in any job setting even if he were able to secure a position. Someone getting limited sleep and who has to recline periodically to get through the day is simply unemployable." See Exhibit I.

Prior to expressing his conclusions, Mr. England stated that Dr. Cantrell did not address specific limitations in his report and therefore Mr. England did not rely upon any medical opinion of Dr. Cantrell regarding functional limitations. However, on August 25, 2010, Dr. Cantrell addressed specific limitations in a Work Status Report in which he opined that the claimant had "no restrictions as of today 8-25-10". The claimant currently only takes aspirin for his pain as needed and there is no evidence that he has received any treatment for his primary injury or since October 14, 2010.

Missouri courts have routinely required that the permanent nature of an injury be shown to a reasonable certainty, and that such proof may not rest on surmise and speculation. Sanders v. St. Clair Corp., 943 S.W.2d 12, 16 (Mo.App. S.D. 1997). A disability is "permanent" if "shown to be of indefinite duration in recovery or substantial improvement is not expected." Tiller v. 166 Auto Auction, 941 S.W.2d 863, 865 (Mo.App. S.D. 1997).

"Total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Section 287.020.7, RSMo 2000. The test for permanent total disability is whether, given the claimant's situation and condition, he or she is competent to compete in the open labor market. Sutton v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 Mo.App. 2001). The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hired. Id.

The claim against the employer was resolved between the employer and employee by means of a settlement based on a 73.8 % permanent partial disability of the body as a whole, referable to the low back and pelvis, notwithstanding Dr. Poetz' evaluation that the claimant suffered a total of a100\% permanent partial disability to the body as a whole from the 2008 accident. The overwhelming evidence supports a finding that the claimant is unemployable in the open labor market and permanently and totally disabled.

The claimant argues in his brief that the claimant did not become totally disabled from employment solely from the last injury alone, but rather from a combination of his permanent partial disabilities from the last injury and from pre-existing permanent partial disabilities to his low back and left shoulder. The claimant relies on testimony from Dr. Poetz, "It's not only the injury of June $26^{\text {th. }} \cdot 08$ alone. That, in my opinion would not have rendered him permanent and

total by itself, but coupled with the pre-existing injuries, it does." See Dr. Poetz deposition, pages 18, 19. Dr. Poetz also opined that he would not defer to a vocational expert regarding issues of employability. "[B]etween the two, the medical judgment has to supersede the vocational rehab judgment. Vocational rehab judgment is based upon a piece of paper whereas my judgment is based upon my physical examination of the patient and my understanding of the medical risks involved." See Dr. Poetz deposition, page 33.

On the other hand, the substantial and competent evidence in the opinions of Dr. King, Dr. Ricci, and both vocational experts supports a finding that the claimant is permanently and totally disabled due to the severe disability from the last injury to the pelvis and back alone. Dr. King initially treated the claimant and examined the claimant on at least 3 occasions. On February 15, 2010, Dr. King examined the claimant after the claimant's pelvic surgery and opined that the claimant should have the following restrictions for the primary injury: no lift or carry more than 20 pounds; avoid climbing, squatting, and kneeling; standing and walking for no more than 30 minutes of each hour; limited to sitting to four hours a day; and allowed frequent position changes. The claimant testified that his employer would no longer allow him to work for the employer because of those limitations and/or restrictions. In addition, Dr. Ricci opined that the claimant could not sit for more than an hour at any one time for any reason.

Ms. Gonzalez, a vocational expert, opined that Dr. King's restrictions would not allow for even sedentary work. See Gonzalez report, Exhibit F, page 18. Mr. England, another vocational expert, opined that when considering the restrictions that have been mentioned as a result of the primary injury alone, the claimant would not have been able to return to his past work or able to sustain any type of regular work activity:

Assuming the restrictions mentioned by the doctors as well as Ken's description of his functioning, I believe that the problems he is experiencing just related to the primary injury would prevent him from sustaining regular work regardless of any pre-existing shoulder problems. This is a gentleman who was working 12-14 hours a day, 6-7 days a week and was able to climb up and down off of the truck doing repetitive squatting, reaching, pulling, etc., and able to effectively bow hunt prior to the primary injury. He indicated to me that had it not been for the last injury, he would still be working and had hoped to be able to go back to his regular job after a successful surgery by Dr. Ricci. Unfortunately, he said that things didn't go as well as planned and that his pain level remained so high that he has difficulty accomplishing anything during the day. See England report, Exhibit I, page 14 .

Thus, both vocational experts opined that the restrictions from the primary injury would render the claimant unemployable. The claimant testified that the 2008 injury has ruined his life. Therefore, the substantial and competent evidence supports that when looking at the extent of the last injury alone, the claimant is permanently and totally disabled.

In evaluating, the opinions of the various experts, Dr. Poetz' conclusions are less probative, because he testified that he is not a vocational expert and was not qualified as a vocational expert. Although Dr. Poetz opined that the claimant could have sought employment had he only had the restrictions and limitations from the last injury alone, Ms. Gonzalez and Mr.

England have an expertise as vocational experts to opine whether any employer would entertain the claimant's employment application. Thus, their findings that the restrictions relating to the employment opportunities based on the claimant's age, education, past relevant employment history, and the restrictions and limitation from the last injury alone are very probative.

Further, Dr. Poetz was unable to state what impact the restrictions from the primary injury would have on the claimant's employability. Dr. Poetz could not determine whether the claimant would be able to work in any capacity under Dr. King's restrictions. See Dr. Poetz' deposition, pages 27, 28, 29. Dr. Poetz testified that Dr. King's restrictions were not all inclusive, and therefore, he could not tell if the claimant would be able to work because the restrictions were not inclusive to include other parts of the claimant's body. See Dr. Poetz' deposition, pages 2829. Dr. Poetz testified that because Dr. King's restrictions were not all inclusive, they have no value. See Dr. Poetz' deposition, page 29. Yet, both vocational experts in this case found no difficulties performing an analysis of whether or not one would be employable under specific medical restrictions from the primary injury. For instance, Ms. Gonzalez used Dr. King's restrictions to find that the claimant could not even perform sedentary work within those restrictions. Also, Dr. King examined and treated the claimant on at least four occasions after the primary injury, both before and after the pelvis surgery, whereas Dr. Poetz only saw the claimant on one occasion. Dr. Poetz' evasion of the questions also reduces the credibility of his conclusions.

Also, when determining permanent total disability, Dr. Poetz considered the claimant's pre-existing asymptomatic lumbar spine condition. The claimant testified at the hearing that he had no prior problems with his lumbar spine. Dr. Poetz testified that his rating of disability of the claimant's pre-existing lumbar spine degenerative disc disease was based on the pre-existing disease the claimant had on the x-ray and not based on the claimant's symptoms. Dr. Poetz was aware that the claimant had no prior low back complaints yet opined that the claimant suffered from a 5 % permanent partial disability to his low back. Dr. Poetz opined that the claimant was permanently and totally disabled due to his primary injury and pre-existing conditions. However, the claimant never had any prior complaints or symptoms for low back problems before the primary injury nor did he have any medical treatment. Thus, the claimant's pre-existing low back condition may have had defects but was not disabling in any respect. Therefore, Dr. Poetz' opinion of permanent and total disability is less probative than those of the vocational experts based on the restrictions from the treating physicians.

Based on the credible and substantial evidence in the record, the claimant suffered permanent and total disability from the 2008 accident at work based on his age, education, past relevant work history, lack of transferable skills, his restrictions from the last accident alone, and his inability to perform sedentary work.

"Section 287.220 creates the Second Injury Fund and sets forth when and in what amounts compensation shall be paid from the [F]und in '[a]ll cases of permanent disability where there has been previous disability." For the Fund to be liable for permanent, total disability benefits, the claimant must establish 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 to result in total permanent disability. Section 287.220.1. The Fund is liable for the permanent total disability only after the employer has paid the compensation due for the disability resulting from the later work-related injury. Section 287.220.1 ("After the compensation liability of the employer for the last injury, considered alone, has been determined ..., the degree or percentage of ... disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined...."). Thus, in deciding whether the Fund is liable, the first assessment is the degree of disability from the last injury considered alone. Any prior partial disabilities are irrelevant until the employer's liability for the last injury is determined. If the last injury in and of itself resulted in the employee's permanent, total disability, then the Fund has no liability, and the employer is responsible for the entire amount of compensation. ABB Power T \& D Company v. William Kempker and Treasurer of the State of Missouri, 263 S.W.3d 43, 50 (Mo.App. W.D. 2007).

The test for permanent, total disability is the worker's ability to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Id. at 48 .

Section 287.220.1, RSMo 1994, contains four distinct steps in calculating the compensation due an employee, and from what source:

1. The employer's liability is considered in isolation- "the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability."
2. Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered;
3. The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and
4. The balance becomes the responsibility of the Second Injury Fund. Nance v. Treasurer of Missouri, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).

"If the employee's last injury in and of itself rendered the employee permanently and totally disabled, the Fund has no liability; the employer is responsible for the entire amount of compensation." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. banc 2003); Paul Birdsong v. Waste Management and Insurance Company of the State of Pennsylvania, et al., Slip Op. Case No. 25996 (Mo.App. S.D. October 26, 2004). "For this reason, pre-existing disabilities are irrelevant" if the last injury in and of itself rendered the claimant unemployable in the open labor market without regard to his preexisting permanent partial disabilities. Id.

Based on the evidence of record, the claimant suffered permanent total disability as a result of the severe restrictions and limitations from the last accident combined with his age, education, past relevant employment history, his lack of transferable skills, and his inability to

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kenneth Spencer

Injury No.: 08-056051

perform sedentary work. The claimant also suffers from a 35 % pre-existing permanent partial disability to his left shoulder that was a hindrance or obstacle to employment or reemployment and combined with the claimant's severe disabilities from the 2008 injury. However, since the claimant suffered permanent and total disability from the last injury considered alone, the Second Injury Fund bears no liability.

Made by: /s/ EDWIN J. KOHNER

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation