The permanent impairment to his lumbar spine and 5% permanent impairment to his left knee as a result of his 1991 accident.
Next, in 2000, Claimant sustained a work-related injury to his right shoulder when a large insulation bundle struck his shoulder. Claimant was treated by Dr. Jones and underwent an arthroscopic subacromial decompression and debridement of a partial rotator cuff tear. He completed post-operative rehabilitation at HealthSouth and ultimately received a compromise settlement for this injury. On November 3, 2000, Dr. Koprivica performed an independent medical evaluation on Claimant's right shoulder and concluded that Claimant sustained a 31% permanent partial impairment to the shoulder as a result of his workplace accident. Dr. Koprivica testified that Claimant's right shoulder injury was significant and that he continued to have problems with the shoulder following surgery, which resulted in Dr. Koprivica imposing permanent work restrictions as a result of this injury. These work restrictions included: avoiding repetitive or sustained activities above shoulder girdle level on the right, avoid weighted activities above shoulder level on the right, any one-time lift should be limited to 20 pounds or less, avoid awkward postures of the cervical spine, and avoid forceful pushing/pulling activities at the right shoulder girdle level, especially repetitive activities. Additionally, Claimant told Dr. Koprivica that he was unemployed for a short period of time in November 2000 because of his physical inability to sustain employment due to his right shoulder injury.
While the Claimant did advise Dr. Koprivica that he did not have ongoing problems with his right shoulder, he testified that he did have problems with the shoulder but that they were mainly weather-related. These problems mostly caused him to not be able to move his shoulder as he wanted and limited his lifting at times. From Employee's description of these problems, it appears that his shoulder injury caused minor residual problems, which mainly surfaced due to weather-related effects. These problems apparently did not keep him from performing his job duties.
With regard to Claimant's most recent workers' compensation claim with a date of accident of December 8, 2010, several doctors have provided opinions regarding Claimant's permanent disability. First, as stated above, Dr. Kelly, Claimant's treating doctor for his head injury, found that Claimant had no permanent disability due to his head injury. However, he did state that should these headaches return a continued treatment of Amitriptyline for a few weeks or months would be advisable. Second, as stated above, Dr. Ketcherside found that Claimant was not permanently disabled due to his eye injury. Third, Dr. Jones, Claimant's treating doctor for his left arm injuries, found that Claimant sustained a 10% permanent partial disability to the left upper extremity as a result of his December 8, 2010 accident. Dr. Jones's rating included impairment to both his left wrist and left shoulder. Dr. Jones stated that the injury on December 8, 2010 aggravated Claimant's pre-existing asymptomatic arthritis.
Dr. Koprivica performed an independent medical evaluation at the request of Claimant's attorney and issued a report dated September 26, 2011, finding that Claimant sustained a 15% permanent partial disability to the body as a whole due to residual headache complaints, a 35% permanent partial disability of the left upper extremity at the level of the shoulder, and a 10% permanent partial disability of the left upper extremity at the level of the forearm due to his wrist complaints. Dr. Koprivica did not assign any permanent disability rating based on visual injury. In total, Dr. Koprivica found that Claimant sustained a 50% permanent partial disability to his body as a whole based on the combination of his injuries from December 8, 2010. Dr. Koprivica also
suggested that future medical treatment would be necessary for his injuries including ongoing treatment from Dr. Kelley for his chronic headaches, a second opinion with regard to his ocular complaints, and consideration of a left shoulder arthroplasty. However, Dr. Koprivica did state that he would defer to Dr. Jones with regard to ongoing treatment to the left shoulder.
Additionally, Dr. Koprivica concluded that work restrictions would be necessary which included: restriction from repetitive hand use on the left, avoid repetitive grasping or gripping types of activities using the left upper extremity, avoid repetitive reaching activities with the left upper extremity at the shoulder, avoid repetitive pushing or pulling activities using the left upper extremity, avoid overhead activities on the left, limit the lifting and carrying activities to an occasional activity in terms of frequency and to less than 20 lbs , and avoid sustained or awkward postures of the cervical spine. Dr. Koprivica further stated, "Although I would not consider the nature of these injuries to typically be totally disabling, if Claimant was found to be permanently totally disabled by a vocational expert with his history of lack of industrial disability prior to December 8, 2010, I would consider the permanent total disability to arise based on the restrictions necessitated by the primary injury of December 8, 2010 in and of itself." Furthermore, Dr. Koprivica found no Second Injury Fund liability based on the history that Claimant provided.
On April 23, 2012, Mr. Michael Dreiling performed a vocational evaluation on Claimant and concluded that Claimant was permanently and totally disabled. Mr. Dreiling admitted that his opinion that Claimant is permanently and totally disabled is not limited to Claimant's December 8, 2010 injuries alone, but encompasses his prior injuries, vocational factors, and medical restrictions. Specifically Mr. Dreiling testified that "Mr. Roberston is unemployable in the open labor market based on the totality of the factors including his prior work restrictions and then those recommended by Dr. Koprivica currently."
Finally, it should be noted that Mr. Dreiling's report indicated that Claimant was physically able to drive a personal car and is even able to mow his lawn. Indeed, Mr. Dreiling testified that Claimant could physically perform a job driving a taxi-cab or delivery vehicle which does not require a DOT certification. Furthermore, Claimant's education history revealed he has completed high school, two years of college, and even owned his own small loan business. However in his deposition, Mr. Dreiling appeared to waiver on what the cause of Claimant's permanent total disability was. He testified that if there were no restrictions from the previous injuries Claimant's unemployability was due to has last accident given Dr. Koprivica's current restrictions.
The first issue to be determined is whether Claimant is permanently totally disabled or permanently partially disabled. Further if he is permanently and totally disabled, whether the liability is against the Employer or The Second Injury Fund?
In Missouri workers' compensation cases, the law clearly provides that the employee has the burden of proving all material elements of the claim. Fischer v. Archdiocese of St. LouisCardinal Richter Institute, 793 S.W.2d 195 (Mo. App. E.D. 1990). It is the claimant's burden to prove "not only causation between the accident and the injury, but also that a disability resulted and the extent of such disability." Griggs v. A.B. Chance Company, 503 S.W.2d 697 (Mo. App. W.D. 1973). Further, "proof of permanency of injury requires reasonable certainty." Id. This
proof must be based on competent and substantial evidence and not merely on speculation. Moriarty v. Treasurer of the State of Missouri, 141 S.W.3d 69 (Mo. App. E.D. 2004).
The claimant alleges that he is permanently and totally disabled. However, to show that the disability constitutes a permanent and total disability under the Missouri workers' compensation law, the claimant must show that, given the employee's situation and condition, he or she is not competent to compete in the open labor market. Under the Missouri Workers Compensation Act, total disability is defined as the inability to return to any employment. Messex v. Sachs Elec. Co., 989 S.W. 2d 206, 210 (Mo. App. E.D. 1999). The words inability to return to any employment mean that the employee is unable to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. Kowalski v. M-G Metals and Sale, 631 S.W.2d 919, 922 (Mo.App. S.D. 1982). The primary determination for permanent total disability is whether the employee is able to compete in the open labor market. Messex, 989 S.W.2d at 210. A determination of permanent total disability focuses on the ability or inability of the employee to perform the usual duties of various employments in the manner that such duties are customarily performed by the average person engaged in such employment Gordon v. Tri-State Motor Transit, 980 SW 2d 849, (Mo. App. 1995). There are many factors that may be considered in this assessment including a claimant's physical and mental condition, age, education, job experience and skills in order to determine whether a claimant is permanently and totally disabled. See Tiller v. 166 Auto Auction, 941, SW 2d 863 (Mo. App. 1997).
If a claimant is found to be permanently and totally disabled, it becomes a determination for the finder of fact to determine whether the claimant is permanently and totally disabled due to the last accident alone or as a result of a combination of the claimant's pre-existing injuries, triggering Second Injury Fund liability. The statutory basis for determining Second Injury Fund liability is found at Section 287.220.1 R.S.Mo. By unambiguous language, the legislature has imposed potential liability on the Second Injury Fund for claimants who, "at the time of the last injury, had some partial disability" Section 287.220.1 R.S.Mo. The administrative law judge is to consider the degree of the employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained. This statutory formula for determining Second Injury Fund liability incorporates a medical causation component. The employer's liability must be determined first, and the statute provides that the employer shall be liable only for the disability resulting from the last injury considered alone, in and of itself. The statute then provides if the compensation for which the employer at the time of the last injury is less than the compensation provided in the chapter for permanent and total disability, then, in addition to the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent and total disability from the Second Injury Fund. Applying this language, if it is clear that the last injury considered alone and of itself results in permanent and total disability, the employer is responsible for the full permanent and total disability benefits and the Second Injury Fund has no liability. Gasson v. Treasurer of the State of Missouri, 134 S.W.3d 75 (Mo. App. W.D. 2004).
When these cases and the relevant statutes are applied to the facts of this case, based upon all of the evidence, the medical records, Claimant's testimony at hearing, and the medical and vocational testimony, it is clear that the permanent and total disability results from the last accident considered in isolation as explained below.
Dr. P. Brent Koprivica testified on behalf of the Claimant. Dr. Koprivica concluded by opining that if Claimant was found to be permanently totally disabled by a vocational expert, with his history of lack of industrial disability prior to December 8, 2010, "I would consider the permanent total disability to arise based on the restrictions necessitated by the primary injury of December 8, 2010, when considered in isolation, in and of itself."
Vocational expert, Michael J. Dreiling, testified on behalf of the Claimant. He opined that when taking account the totality of Claimant's vocational profile and the medical restrictions, along with his presentation to prospective employers, no employer in the usual course of business seeking persons to perform duties of employment in the usual and customary way would reasonably be expected to employ this individual in his existing physical condition. He ultimately agreed with Dr. Koprivica's assessment that it is the restrictions resulting from the 12/8/10 injury which render Claimant unemployable and permanently and totally disabled without consideration of any preexisting conditions
All of Claimant's current pain and complaints of physical and functional limitations result from the last accident. He has pain, cracking, and a feeling that the bone in his left shoulder "grabs" when he raises his arm. He cannot sleep on his left shoulder. He cannot raise his left arm above shoulder level. He cannot reach around to his back with his left arm, and he has lost strength in the left shoulder. It bothers him in cold and wet weather. His left shoulder severely limits his ability to do lifting activities. He still uses the prescription pain cream given to him by Dr. Jones following the 12/8/10 injury. It appears from Employee's testimony as well as the medical records that Employee was asymptomatic regarding his left shoulder prior to his last accident. Dr. Jones found that Employee suffered from an underlying arthritic condition which he found to be pre-existing and not related to his December8, 2010 accident,. However he did state that the accident did "aggravate" the underlying arthritis thus rendering it painful. This aggravation is a permanent change to Employees shoulder as opposed to an irritation which usually implies a temporary change. Therefore it appears that Employee's current shoulder problems do in fact stem from his December 8, 2010 accident.
Due to the primary injury, he has ongoing left wrist pain and stiffness. There is loss of movement of the left wrist and loss of left hand strength. He has no normal movement/range of motion in his left wrist, side to side or up and down. He must keep it straight. He is having to limit himself to the 10-20 pound recommendation by Dr. Jones on lifting and carrying because of loss of left wrist strength and these residuals. He wore a wrist brace to the hearing. Claimant testified that he is left-hand dominant.
Claimant testified that he still has some neck pain related to the 12/8/10 fall. He still has severe headaches which he described as sharp pains in his head all times of the day. His sleep is interrupted by his headaches. He described being up and down all night with the headaches that last all night, every single night. Due to these post-injury headaches, the most sleep he gets at one time during the night is 3-4 hours. Then he has to get up, take some aspirin; and when that Aspirin wears off, he is up again from the headaches. As a result of the headaches resulting from the 12/8/10 injury, he has to lie down during the day for extended periods, usually 2-3 times per day. His headaches are so bad that he sought further treatment from Dr. Kelley after his MMI release; whereas, he had no headaches before the 12/8/10 primary injury and certainly was not lying down during the day prior to the primary injury. Dr. Koprivica opined that Claimant's need to lie down during the day due to his complaints resulting from the primary injury is totally
disabling in and of itself. Mike Dreiling concurred, opining that Claimant's need to lie down during the day for complaints resulting from the 12/8/10 injury renders him unemployable in the open labor market and, therefore, permanently and totally disabled. He acknowledged that Claimant did not need to lie down during the day before 12/8/10 and there were no accommodations made for him on the job by the Employer for any condition prior to the primary injury.
Claimant also complained of having ongoing visual complaints with seeing shadows out of the left eye (superior temporal field area) resulting from the injury. He also complained of memory problems since the primary injury. Further, he has low back pain since the primary injury. Dr. Koprivica confirmed these low back pain complaints resulted from the primary injury and acknowledged that claimant injured his low back in the 12/8/10 injury. Granted, the Claimant had undergone some type of lumbar surgery back in the 1970's. Despite this surgery some 35 years ago, Claimant stated that he had a good recovery and never had problems. He was always able to perform his required job duties without accommodation from any employers.
In any case, Claimant told Dr. Koprivica that the prior lumbar injury and surgery did not limit or hinder him in his work prior to the primary injury. Claimant testified that once he was found to be at MMI from the prior low back surgery, no restrictions were placed on his work, he was able to return to his full time, full duty job at the Sheriff's Department and the Leawood Police Department, that he thereafter missed no time from work, nor did his employer ever give him any help or accommodations with his work due to any low back problems prior to the primary injury. Dr. Koprivica confirmed these claims and acknowledged that the prior lumbar condition did not constitute a hindrance or obstacle to Claimant's work prior to the primary. Dr. Koprivica commented that Claimant made a good recovery from the lumbar surgery, was able to return to heavy demand work, and that he had no hindrance or obstacle to his work due to the lumbar condition prior to the primary injury. "On an ongoing basis, he told me he could do any kind of work without limitation." Mike Dreiling made the same acknowledgements, noting that Claimant was able to return to heavy, full time work without restriction or limitation due to the lumbar condition. Claimant did admit to some lingering back pain when the weather got cold or wet. Nevertheless, that did not hinder him in his work prior to the primary injury.
Claimant also had a prior right shoulder injury requiring surgery by Lowry Jones, M.D., in 2000 from which he made a full recovery with no lingering problems. He testified that once he was released at MMI, no restrictions were placed on his work, he was able to return to his heavy full time, full duty work, he missed no time from work, nor did the employer ever give him any help or accommodation with his work due to right shoulder problems prior to the primary injury and he had no ongoing treatment for the right shoulder, nor did he need or take any prescribed pain medication for the right shoulder prior to the primary injury. Dr. Koprivica confirmed that Claimant made these same assertions to him and opined that the prior right shoulder condition was not a hindrance or obstacle to Claimant's work prior to the primary. "Yeah. I understood from him that he was not accommodating for any condition when he was working from this time frame between the time I saw him in November of 2000 and up until December $8^{\text {th }}$ of 2010. I understood from him that he wasn't seeking treatment and that he was - that he was successful in maintaining his employment, that there was no reason he was being terminated for his lack of performance at work. He really denied being - he thought he was doing well is what he told me." The Employer was not accommodating Claimant for any preexisting condition prior to the
primary injury either, according to Dr. Koprivica. Dr. Koprivica acknowledged that Claimant was able to perform medium to heavy work prior to the primary injury. "I actually put restrictions on him for his shoulder that would have limited him to light physical demand, and what I understood from him is that he did better than what I had projected he was going to do, he had recovered, and that he was functioning at medium to heavy physical demand without limitation" before 12/8/10 . Dr. Koprivica testified that Claimant was not having any problems sleeping through the night prior to 12/8/10: "He - basically -basically told me he was fine before, so I - there's no evidence that - in terms of history he provided me, that he was interrupted on sleep before December 2010."
Due to the pain and limitations he experiences from the primary injury, Claimant is currently not able to perform any household repairs, gutter cleaning, or climbing or lifting a ladder. Since the injury, he has problems with prolonged sitting and prolonged standing. He did not have these problems with these activities before the primary injury. He did testify that he could mow his lawn with a self-propelled mower and that he does shoulder strengthening exercises daily. He also stated that he lays down due to the lack of sleep from his headaches almost daily. He reported to Mr. Dreiling that prior to the primary he was in good physical health and had no problems performing his work. He was able to maintain his job as a truck driver, and when hired by Transport America, he was able to pass the DOT physical exam. In addition, he was able to perform all the heavy physical requirements of his job and was able to unload the truck and lift up to 100 pounds of freight before 12/8/10. Since the primary injury, however, he was not able to return to his job because, due to the problems with the left upper extremity as well as the other injuries resulting from the primary, he was unable to pass the DOT lifting requirements for a truck driver position.
Claimant testified that, prior to the 12/8/10 injury he had no problems sleeping through the night, he did not need to lie down during the day due to headaches, he was taking no chronic prescription pain medication, he was able to perform his job duties satisfactorily, he always received good evaluations and regular raises, and he was never written up, demoted or fired for failure to perform his job properly. Further, he admitted that if he had not had the 12/8/10 injury he would still be working for Transport America as a truck driver hauling freight, and that it is the primary injury that has rendered him unable to work. After having reviewed all the medical records as well as the testimony this Court finds Claimant's testimony to be credible. He was consistent in his reporting of his problems to the medical and vocational experts. Further his testimony was consistent with the medical records.
When pertinent case law and the relevant statutory authority are applied to the facts in this case, it is clear that Claimant is permanently and totally disabled and unable to compete in the open labor market strictly due to the restrictions and residuals resulting from the primary injury. All of the substantial and competent evidence demonstrates that his inability to access the open labor market results from the effects of the primary injury. Therefore, Claimant is found to be permanently and totally disabled and such permanent and total disability is the responsibility of the Employer, and all liability for Claimant's permanent total disability should be assessed against the Employer. Under the terms of the Statute, there is no need to even consider Second Injury Fund liability because the Claimant has been rendered unemployable and, therefore, permanently and totally disabled solely as a result of the primary injury. Thus, no liability can be assessed against the Second Injury Fund.
The next issue to be determined is whether Claimant is entitled to future medical care resulting for injuries sustained on December 8, 2010. RSMo §287.140.1 states in relevant part,
"In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury..."
Section 287.140.1 places on the claimant the burden of proving entitlement to benefits for future medical expenses. Rana, 46 S.W.3d at 622. The claimant satisfies this burden by establishing a reasonable probability that he will need future medical treatment. Smith v. Tiger Coaches, Inc., 73 S.W.3d 756, 764 (Mo.App.2002). To be awarded future medical benefits, the claimant must show that the medical care " 'flow [s] from the accident.' " Crowell v. Hawkins, 68 S.W.3d 432, 437 (Mo.App.2001)(quoting Landers v. Chrysler Corp. 963 S.W.2d 275, 283 (Mo.App.1997)).
In the present case, the evidence suggests it is reasonably probable that Claimant will need future medical treatment for his December 8, 2010 injuries in Dr. Koprivica's opinion. First, Dr. Koprivica recommended that Claimant go back to Dr. Kelley for management of his chronic headaches. Dr. Kelley's January 18, 2012 report stated, "I would not expect him to have any long term needs for medical treatment for his posttraumatic headaches." However, he also suggested that if such headaches returned an additional course of Amitriptyline for a few weeks or months would be appropriate. Employee testified that his headaches have indeed returned. He has asked for medical care related to these headaches from the V.A. Hospital but has yet to receive such care. Therefore, the evidence indicates it is reasonably probable that Claimant will need future treatment with regard to his December 8, 2010 head injury.
Dr. Koprivica suggested a second opinion regarding Claimant's eye complaints to insure that there has not been any significant structural eye injury based on the trauma. Besides Claimant's subjective complaints of blurriness in his eyes, there is no objective evidence that Claimant suffered from an injury to his eyes at all due to the December 8, 2010 accident. Indeed, Dr. Ketcherside reported, "His left eye appeared perfectly normal, and his right eye had a very faint area where he did not see quite as well, but it is most likely normal." Furthermore, Claimant admitted that he was diagnosed with glaucoma in his eyes in 2012. A diagnosis of glaucoma in 2012 would not be related to his accident in 2010 and most likely is the cause for his current symptoms in his eyes. Therefore, Claimant has failed to establish a reasonable probability that he will need future medical treatment for his eyes that flows from the December 8,2010 accident.
Finally, Dr. Koprivica's opinion states, "With end-stage degenerative disease of the left shoulder, there is the consideration of a left shoulder-arthroplasty. I would defer these issues of ongoing treatment need to Lowrey Jones or another appropriate orthopedist." In a report dated January 17, 2012, Dr. Jones stated that he did not believe future medical treatment is necessary as a result of his December 8, 2010 injury to his left shoulder or left wrist. Dr. Jones stated that although Claimant might eventually need a total shoulder replacement this is due to his underlying arthritic condition and not his injury sustained on December 8, 2010. As a result, the
Issued by Division of Workers' Compensation
Employee: John W. Robertson
Injury No. 10-102401
total shoulder replacement does not "flow from the December 8, 2010 accident." Therefore, Claimant has failed to meet his burden of proving he is entitled to future medical benefits relating to any injury to his left shoulder arising from the December 8, 2010 accident.
The next issue to be determined is whether Claimant is entitled to reimbursement for the dental treatment in the amount of $\ 650.00. Claimant submitted to the Court a bill for an amount totaling $\ 650.00. Per the Claimant's testimony, this bill was for treatment to a tooth to repair damage caused by the work-related fall on December 8, 2010. Claimant testified that he had the tooth fixed but had problems with the crown coming off. He stated he contacted the employer's insurance carrier but they never responded to him concerning the need to repair the crown which was necessitated by the accident of December 8, 2010. Employee explained what the bill was for and that the work his dentist did fixed the problem he was having. The bill clearly stated that it was for a crown. Employee requested the work be done through employer's insurance carrier, but there was no response from the carrier. Wherefore, this Court finds that the bill is reasonable for the work done and finds that Employee was free to have the work done after he requested it from the insurance company and they failed to respond. Therefore, the Employer owes to Claimant the $\ 650.00 for payment of the bill for dental work required due to his accident of December 8, 2010.
Wherefore, this Court orders Employer to pay to Claimant permanent total disability payments of $\ 627.58 per week beginning April 28, 2011 for as long as Employee remains permanently and totally disabled. Employer shall also pay to Employee the sum of $\ 650.00 as and for unpaid medical treatment required to cure and relieve Employee from the injuries he sustained in his December 8, 2010 accident. And, finally, Employer shall provide Claimant with medical care as may be reasonably required to cure and relieve the effects of the symptoms associated with the headaches he suffers as advised by Dr. Kelly.
Emily S. Fowler
Administrative Law Judge
Division of Workers' Compensation