James Broekhoven v. Bass Pro, Inc.

Injury No.: 07-012863

Employee: James Broekhoven

Employer: Bass Pro, Inc. (Settled)

Insurer: Travelers Indemnity Company of America (Settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480 RSMo. { }^{1}$ We have read the briefs, heard the parties' arguments, reviewed the evidence, and considered the whole record. Pursuant to $\S 286.090$ RSMo, we reverse the award and decision of the administrative law judge.

Employee had longstanding orthopedic problems in his lumbar spine. On January 25, 2007, employee suffered a new injury to his lumbar spine, which injury arose out of and in the course of his employment. Employee entered into a settlement with his employer to resolve employee's workers' compensation claim against employer. Employee proceeded to trial on his claim against the Second Injury Fund. The parties agree that employee is permanently and totally disabled. The issue for our consideration is whether the effects of the work injury considered in isolation caused employee to be permanently and totally disabled or whether it was the effects of the work injury in combination with employee's preexisting disabilities that caused employee to be permanently and totally disabled.

The administrative law judge found that "based on [employee's] testimony in December 2009,..his back condition did not interfere with his daily activities to any significant degree. The problems he is currently having, and the restrictions that have been imposed that interfere with his ability to work, arose from the last injury alone." The administrative law judge then concluded that employee is permanently and totally disabled solely as a result of the effects of his work injury. We disagree.

The administrative law judge's findings of fact are, for the most part, thorough and accurate. We adopt her findings to the extent they are not inconsistent with our findings, conclusions, award and decision as articulated herein.

As early as 1996, employee was diagnosed with degeneration and herniated discs in his lumbar spine. The orthopedic problems in employee's lumbar spine before the work injury are well-documented. Dr. Ferguson recommended employee undergo surgery at the time. Employee declined the surgical recommendation, opting instead for conservative treatment. Employee enrolled in back school at the Shealy Institute to learn how to protect his back while performing lifting and other physical activities.

[^0]

[^0]: ${ }^{1}$ Statutory references are to the Revised Statutes of Missouri 2006, unless otherwise indicated.

Employee stopped participating in vigorous athletic activities and exercises to protect his back. Employee altered his lifestyle and limited his activities to protect his back and prevent further injury.

Notwithstanding his low back problems, employee worked full-time for employer and successfully completed his duties until January 25, 2007, when he suffered the lift-andtwist accident at work that is the subject of this claim. After missing some time due to his work injury, employee returned to work for employer for approximately ten months. Employee did not return to work after his first surgery in January 2008. He subsequently underwent two more surgeries.

The administrative law judge found that employee, at hearing, exaggerated the nature and extent of his preexisting back problems. The administrative law judge found that employee was not credible. We acknowledge that, in his deposition testimony and at hearing, employee's description of his prior back problems became increasingly more detailed. We are not entirely unsympathetic to the administrative law judge's concerns in this regard.

We note, however, that employee consistently testified that he was able to limit symptoms referable to his low back only by significantly limiting his level of physical activity. We find this evidence credible, particularly in view of the medical evidence documenting the seriousness of employee's preexisting spine condition.

Dr. Lennard was charged with employee's follow-up care and rehabilitation after his first two surgeries. Dr. Lennard issued a report on May 12, 2009, wherein he recommended a 20-pound lifting restriction and also recommended that employee limit bending to occasionally. Dr. Lennard believes employee's overall lumbar permanent partial disability is 30 % of the body as a whole with 20 % permanent partial disability attributable to the primary injury and 10 % permanent partial disability attributable to employee's preexisting lumbar condition. Dr. Rahman performed another lumbar surgery after Dr. Lennard issued his May 2009 report so Dr. Lennard's opinions, while helpful, do not reflect employee's ultimate condition.

In April 2010, Dr. Weber performed an independent medical examination for the purpose of reviewing employee's "prior care and his function, activities, limitations, work, former physical examinations and determine his abilities and lack thereof." Dr. Weber believed employee should limit lifting to 20 pounds occasionally, five to ten pounds frequently. Employee should also limit pushing and pulling to 20 pounds. Employee should avoid frequent stooping, squatting, crawling, or repeated bending below the knees but can do some bending and twisting. Dr. Weber did not believe employee could return to an executive environment like his job for employer but believed employee could perform some phone, computing, reading or writing work.

Dr. Corsolini prepared a report dated July 2, 2010. Unfortunately the transcript does not appear to contain the complete July 2 report. The copy of the report in the record is only

Injury No.: 07-012863

Employee: James Broekhoven

- 3 -

one page and ends with an incomplete sentence: "His need for..."2 Fortunately, Dr. Corsolini testified by deposition. Dr. Corsolini believed employee has a 35% permanent partial disability of the body as a whole referable to the lumbar strain and that 10% of the permanent partial disability is due to his preexisting lumbar condition. Dr. Corsolini recommended that employee limit lifting and carrying to no more than 20 pounds on an occasional basis and that employee should not bend more than occasionally. Dr. Corsolini believed the lift/carry and bending restrictions are due solely to the work injury. Dr. Corsolini indicated in his report that employee had reached maximum medical improvement. Dr. Corsolini testified that "[employee's post-injury back problems] were simply extended versions of what I think was most likely present before 2007. In other words, they became symptomatic to the point he had surgery performed."

Dr. Volarich examined employee on November 11, 2010. Dr. Volarich believed employee sustained a 65% permanent partial disability of the body as a whole rated at the lumbar spine due to the work injury because it resulted in employee's disc herniations at L4-5 and L5-S1 causing bilateral lower extremity radicular symptoms requiring three surgical repairs. Dr. Volarich believed that immediately before the primary injury, employee was operating with a 20% permanent partial disability of the body as a whole rated at the lumbar spine. Dr. Volarich explained that employee's preexisting disability manifested itself through employee's low back discomfort and in employee's need to eliminate all strenuous work, sporting activities, and impact activities. As regards employee's present condition, Dr. Volarich believed employee should restrict or alter the way he performs many activities including lifting, bending, twisting, pushing, pulling, carrying, climbing, and other similar tasks. Dr. Volarich also believed employee should avoid remaining in a fixed position for any more than 30 minutes at a time including both sitting and standing. Employee should change positions frequently and rest when needed, including resting in a recumbent fashion. Finally, employee should participate in an appropriate stretching, strengthening, and range of motion exercise program and perform some non-impact aerobic conditioning such as walking, biking, or swimming to tolerance daily.

Dr. Volarich stated "it is my opinion that Mr. Broekhoven is permanently and totally disabled as a direct result of the work related injury of 1/25/07 in combination with his preexisting lumbar syndrome and psychiatric disorders." Dr. Volarich opined that "[t]he combination of his disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness..." Dr. Volarich explained that "[h]ad [employee] not had those preexisting disc problems, this current injury would not be nearly as bad, maybe a strain injury. And, you know, it was the preexisting problems that set him up to have the injury as bad as it was." Dr. Volarich agreed that employee's preexisting disabilities were hindrances or obstacles to employment or reemployment and that "those hindrances or obstacles" combined with "what happened in the last injury" to produce "this situation."

We find credible the testimony of Dr. Volarich. We find that before the work injury, employee had a 20% permanent partial disability of the body as a whole referable to the

2 Tr. 615.

Improvement

- 4 -

Iumbar spine. We find that as result of the work injury, employee sustained a 65% permanent partial disability of the body as a whole referable to the lumbar spine.

Employee reached maximum medical improvement on July 2, 2010.

**Law**

Section 287.200.1 RSMo provides, in relevant part:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability...the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special find known as the "Second Injury Fund" hereby created exclusively for the purposes in this section provided...

**Discussion**

Our analysis is guided by the recent holdings in *Lewis v. Treasurer*³ and *Premium Standard Farms, Inc. v. Treasurer*⁴.

The *Lewis* court clarified the proper analysis of a permanent total disability claim against the Second Injury Fund. The *Lewis* court explained that to prevail on a claim for permanent total disability benefits from the Second Injury Fund, an injured worker must prove 1) he had a permanent partial disability or disabilities of such seriousness as to constitute a hindrance or obstacle to employment as of the time he sustained the work injury, and, 2) he is permanently and totally disabled as a result of the work injury and the preexisting disability or disabilities.

The *Premium Standard Farms* court articulated how we are to determine if a preexisting condition constitutes a hindrance or obstacle to employment or reemployment. In *Premium Standard Farms*, the court considered whether an injured worker's preexisting chronic obstructive pulmonary disorder (COPD) was of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. The Second Injury Fund argued that it should not be liable for the injured worker's permanent total disability benefits because the worker's preexisting COPD had not affected the worker's ability to do her job before the work injury. In rejecting the Sec