Carl Schwarzen v. MCS National, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 16-102117

Employee: Carl Schwarzen

Employer: MCS National, Inc.

Insurer: Travelers Property Casualty Company

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by $\S 287.480$ RSMo, which provides for review concerning the issue of liability only. Having reviewed the evidence and considered the whole record concerning the issue of liability, the Commission finds that the award of the administrative law judge in this regard 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 and adopts the award and decision of the administrative law judge dated June 30, 2017.

This award is only temporary or partial, is subject to further order and the proceedings are hereby continued and kept open until a final award can be made. All parties should be aware of the provisions of $\S 287.510$ RSMo.

The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued June 30, 2017, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 16^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Carl Schwarzen

Imjury No. 16-102117

Dependents:

Employer: MCS National, Inc.

Imbre the

DIVISION OF WORKERS' COMPENSATION

Insurer: Travelers Property Casualty Company

Department of Labor and Industrial

Relations of Missouri

Add'l Party: (None)

Jefferson City, Missouri

Hearing Dates: May 15, 2017 and June 8, 2017

Checked by: RJD/cs

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: July 20, 2016.
5. State location where accident occurred or occupational disease was contracted: Callaway 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:

Employee was traveling to a job site in Lincoln, Nebraska when his vehicle was struck from behind, causing Claimant's vehicle to leave the roadway and turn over multiple times.

1. Did accident or occupational disease cause death? No. Date of death? N/A.
2. Part(s) of body injured by accident or occupational disease: Head, neck, low back, knees, body as a whole.
3. Compensation paid to-date for temporary disability: None.
4. Value necessary medical aid paid to date by employer/insurer? Unknown.
5. Value necessary medical aid not furnished by employer/insurer? Unknown.

1. Employee's average weekly wages: $\ 1,312.17.
2. Weekly compensation rate: $\$ 874.78 / \ 477.33.
3. Method wages computation: Section 287.250.4.

Employer and Insurer are ordered to provide Claimant with such medical, surgical and hospital treatment as may reasonably be required to cure and relieve Claimant from the effects of the work related injuries, to-wit: concussion, with continuing intermittent headaches, aggravation of pre-existing cervical osteoarthritis, with continuing neck pain, aggravation of pre-existing knee osteoarthritis, with continuing bilateral knee pain, soft tissue injuries of the low back, with continuing low back pain, and aggravation of preexisting anxiety disorder, with continuing increased anxiety.

Employer and Insurer are ordered to pay Claimant temporary total disability benefits of $\ 874.78 per week, from and after July 21, 2016, until such time as Claimant is able to compete in the open market for employment, or until such time as Claimant's condition reaches maximum medical improvement, or until Claimant's death, or until 400 weeks of TTD benefits have been paid, or until further order of an administrative law judge of the Missouri Division of Workers' Compensation, whichever shall first occur.

Claimant's attorney, Thomas Fagan, is allowed 25\% of all temporary total disability benefits payable hereunder, as and for necessary attorney's fees.

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

Employee: Carl Schwarzen

Injury No. 16-102117

Dependents:

Employee: MCS National, Inc.

Injury No. 16-102117

Insurer: Travelers Property Casualty Company

Address of MCS National, Inc.

Address of MCS

Department of Labor and Industrial

Relations of Missouri

Address of Missouri

Address of Missouri

Add'l Party: (None)

Hearing Dates: May 15, 2017 and June 8, 2017

An evidentiary hearing was commenced in this case in Jefferson City on May 15, 2017, on Claimant's request for a temporary or partial award. The record was left open until June 8, 2017 for the submission of additional medical records, the filing of the transcript of the deposition of Dr. David Schlitt, taken May 11, 2017, and for the filing of the transcript of the deposition of Dr. Matthew Collard, taken June 6, 2017. The parties requested leave to file posthearing briefs, which leave was granted, and the case was submitted on June 16, 2017. The evidentiary hearing was held to decide the following issues:

1. Whether Claimant sustained an accident arising out of and in the course of his employment with MCS National, Inc. on July 20, 2016;
2. If found to have been sustained, whether the work accident of July 20, 2016 is the prevailing factor in the cause of any or all of the injuries and conditions alleged in the evidence;
3. Claimant's average weekly wage and resultant compensation rates;
4. Employer-Insurer's liability, if any, for the payment of temporary total disability ("TTD") benefits and/or temporary partial disability benefits;
5. Whether Employer-Insurer shall be ordered to provide Employee with additional medical care and treatment pursuant to Section 287.140, RSMo; and
6. Whether attorney's fees and expenses may be ordered pursuant to Section 287.560, RSMo.

The parties stipulated as follows:

1. The Division of Workers' Compensation has jurisdiction over this case;
2. Venue for the hearing is proper in Callaway County and adjoining counties, including Cole County;
3. The claim is not barred by Section 287.420 or Section 287.430, RSMo;

1. Both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times; and
2. Travelers Property Casualty Company fully insured the Missouri Workers' Compensation liability of MCS National, Inc. at all relevant times.

The evidence consisted of the testimony of Claimant, Carl Schwarzen; as mentioned above, Dr. David Schlitt and Dr. Matthew Collard testified by deposition. Exhibits included medical records, reports of Dr. David Schlitt and Dr. Matthew Collard, photographs of Claimant's vehicle after the July 20, 2016 motor vehicle accident, the Missouri Highway Patrol Report of the July 20, 2016 motor vehicle accident, medical bills, affidavit of Claimant's counsel, and a listing of Claimant's counsel's expenses.

Evidentiary objections, others than those previously sustained, are overruled.

Carl Schwarzen ("Claimant") was born on August 29, 1943. Claimant lives in O'Fallon, MO and is the owner and president of MCS National, Inc. (hereinafter referred to as "MCS" or "Employer").

Claimant has run several businesses focused on construction or remodeling since the 1970's. Initially, these businesses were part-time or seasonal, and Claimant had other employment. Beginning in the early 1990's, Claimant concentrated on the construction and remodeling business.

Claimant started MCS in 2008. The business of MCS was arranging and supervising remodeling projects on hotel properties. The only client of MCS is John Q. Hammons hotel properties ("Hammons"). MCS has performed remodeling work for Hammons' properties in Branson, Missouri, Denver, Colorado, Norman, Oklahoma, Normal, Illinois, Peoria, Illinois, and Lincoln, Nebraska.

Claimant functioned as estimator, bidder, and superintendent on projects. He does not work on a time clock. When MCS is the successful bidder, MCS is paid by Hammons upon the completion of the project. MCS then pays all of the subcontractors, material costs, etc. If and when MCS makes a profit on a project, Claimant gets paid. Claimant reported income of $\ 73,286 from MCS on his 2015 taxes. At the time of the hearing, MCS had not filed its 2016 taxes, although Claimant testified that he would be reporting income of approximately \$33,000 from MCS on his 2016 taxes. Claimant testified that all of the income he personally received for 2016 was received prior to July 20, 2016. ${ }^{1}$

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[^0]: ${ }^{1}$ Claimant testified that the Lincoln, Nebraska project, to which he was traveling on July 20, 2013, did not make a profit.

On July 20, 2016, Claimant was involved in a motor vehicle accident on Interstate 70 in Callaway County, Missouri. That motor vehicle accident is the subject of this workers' compensation claim.

Prior to the July 20, 2016 motor vehicle accident, Claimant had several medical conditions. Claimant has had two surgeries on his low back, most recently in 2013. Claimant has a long history of bilateral knee problems; Claimant underwent a left total knee replacement in December 2015 and a right total knee replacement procedure had already been tentatively scheduled prior to July 20, 2016. Claimant had also been diagnosed with degenerative disc disease in his neck which was symptomatic. He had a history of cataracts. Claimant also had an accident in Minnesota in June 2016 when he hit a deer; Claimant complained of headaches thereafter. Despite these medical conditions, Claimant was able to successfully run MCS and was also able to engage in physical exercise regularly prior to July 20, 2016.

As noted above, Claimant underwent left total knee replacement surgery in December 2015. Claimant was informed by his knee surgeon that it would take six to twelve months to recover from the procedure. Claimant did not work for over six months. ${ }^{2}$ In July 2016, MCS was to perform a window replacement project on a Hammons' hotel property in Lincoln, Nebraska. This was Claimant's first project after the left knee replacement.

Claimant testified that he left his home in O'Fallon at approximately 6:00 AM and was driving west on Interstate 70, on his way to the job site. He was planning on meeting with engineers at the hotel later that day. He was driving a sedan, and he had with him a MCS check for a subcontractor on the job. Claimant was alone in the vehicle.

Claimant was approximately 15 to 20 miles from Columbia with his vehicle on cruise control at 68 mph . His vehicle was in the right hand lane when he looked up in the mirror, but there was an impact from behind. The impact was so hard Claimant could not tell it was a vehicle. Claimant testified that his right hand flew off the steering wheel; the vehicle went into a ditch, rolled a few times, and landed upside down. He heard a woman yelling, "Are you ok", and then Claimant received a phone call from his secretary, and he told her he had been in an accident. The paramedics were called, and they had to extricate Claimant from the vehicle.

The paramedics arrived within 15 to 20 minutes. The ambulance personnel had to open the door. They put a cervical collar on Claimant's neck and assisted him out of the car before putting him on a stretcher and administering an IV. They also monitored his blood pressure.

The ambulance personnel transported Claimant to University of Missouri Medical Center in Columbia where the emergency room personnel monitored his blood pressure, cut off his shirt, attended to the loose skin that was on his arms and elbows, and ran tests on his spine, pelvis, abdomen, neck, hand, and chest. They also ran blood tests.

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[^0]: ${ }^{2} As noted above, Claimant is reporting \$ 33,000 \pm$ on his 2016 income taxes for income received prior to July 20, 2016, even though he essentially performed no work between January 1, 2016 and July 20, 2016. This is due to the nature of MCS's business. Claimant was not paid until all the bills were paid on a project, and the project turned a profit. The $\$ 33,000 \pm$ Claimant receive in 2016 was for profitable projects completed in prior years.

The emergency room personnel wanted Claimant to spend the night at the hospital, but he wanted to get home. Claimant's son came and drove him home that night.

Dr. David Schlitt, his primary care physician, was on vacation, so Dr. Margaret Edwards saw Claimant on July 25, 2016. She checked him physically, and re-bandaged his wounds on his arms and legs. Claimant then went to Dr. Tekwani, an eye specialist, because he had blurred spots in his eyes and floaters, which he still has today. Claimant testified that he did not have the floaters prior to July 20, 2016.

Dr. David Schlitt then examined Claimant on July 29, 2016 and has continued to treat Claimant since that time. Claimant also sought treatment with a dermatologist to look at his arms because he has bumps and scars as well as itching.

Because Claimant's nerves were being affected, he went to Dr. Philip Lee who performed nerve conduction studies and referred Claimant to therapy for his back, buttocks, legs, and feet.

The physical therapy facility has given Claimant a heat pad/vibration, patches, stretching exercises, he lifts weights, and he walks on steps. He is still having pain in his right shoulder and arm, and it is a needles sensation going down his arm. His neck is very stiff, and he has trouble turning to the left and to the right. His left arm is sore in his elbow, and it aches. He takes ibuprofen for his conditions.

The Claimant has had complaints with the following parts of his body in the month prior to the hearing, and Claimant described them on a pain scale of 0 to 10 as follows:

1. right shoulder $-6-7 / 10
2. right elbow -3-4 / 10
3. right wrist -3-4 / 10
4. left forearm -4 / 10
5. left knee -5-6 / 10
6. right knee -7 / 10
7. neck 5-6 / 10
8. back -7 / 10$

Claimant testified that, as a result of the July 20, 2016 motor vehicle accident, he can no longer work out, he cannot run, ride a bike, play piano or engage in any of his hobbies. He has trouble picking up his grandkids, and he has to sleep in a different position. Claimant has not worked since July 20, 2016, and he does not feel he is capable of working in his present condition. ${ }^{3}$

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[^0]: ${ }^{3}$ Claimant testified that he incorporated Epic Cheesecake Company in December 2016. He had hoped to make some money baking cheesecakes at home for sale to businesses. Claimant felt that he might be able to do that work. As of the date of the hearing, Claimant had no customers and no cheesecake sales.

Dr. David Schlitt has been Claimant's treating doctor for many years and has been treating Claimant for the injuries from the July 20, 2017 accident. Dr. Schlitt testified by deposition taken May 11, 2017.

Dr. Schlitt first saw Claimant after the motor vehicle accident on July 29, 2017. Claimant gave a history of a head injury with a scalp laceration, painful knees, painful hip, pain in the back of his neck, and it was very difficult for him to turn his head to the right. Claimant's blood pressure was elevated. Dr. Schlitt diagnosed Claimant with multiple soft tissue injuries and lacerations, and noted that Claimant's headache may represent the early signs of a concussion, which is a bruise on the brain. Dr. Schlitt testified that one does not have to lose consciousness to sustain a concussion. Claimant had not sustained a concussion prior to July 20, 2016.

Dr. Schlitt re-examined Claimant on 8/10/16, and found that he had soft tissue injuries and psychological problems suggesting post traumatic stress type problems, including nightmares. Claimant's left hip was painful, his left knee felt weak, his right thigh and right knee were painful, and he needed a cane to walk. Claimant complained of both shoulders and neck being painful. Claimant also complained of constant headaches, more stiffness and soreness, stiffness in his hands and wrists, pain in his low back and buttocks, neuropathic pain in his feet and ankles. Claimant also reported feeling "off balance" when trying to go down steps and also reported increased left sided hip pain.

Dr. Schlitt re-examined Claimant on 8/24/16 for multiple soft tissue injuries which continued with neck pain, headaches, and posterior cervical pain, along with some new vision disturbance.

On 9/14/16 Claimant complained of headache, neck pain, both arms hurting, and knee pain above the knee cap. He also described right knee pain which was new, and it was more difficult for him to ambulate.

Dr. Schlitt re-examined Claimant on 10/5/15 and felt he was slowly recovering.

On 11/2/16 Claimant continued to have headaches, shoulder pain, thigh pain, and his left knee felt looser. Dr. Schlitt did not believe Claimant could work as of 11/2/16, and he had trouble getting out of the chair in the waiting room in Dr. Schlitt's office. Dr. Schlitt recommended Claimant see a neurologist, Dr. Kyeong Lee.

Dr. Lee ordered physical therapy. Claimant currently undergoes physical therapy three times a week.

On the 12/2/16 visit to Dr. Schlitt, Claimant continued to complain of neck pain. Dr. Schlitt felt both shoulders were improving.

Dr. Schlitt opined on 1/4/17 that Claimant's medical condition was the same, with hypertension, headaches, neck pain, and pains of a chronic nature. Claimant was depressed on $2 / 1 / 17$ because he could not work. Dr. Schlitt was still prescribing prednisone for neck pain

since on physical exam Claimant had a lot of muscle tightness in his right trapezius muscle, spasticity, and painful range of motion of the right shoulder, and his right knee was inflamed with warmth and crepitus.

Dr. Schlitt prepared a letter dated 2/14/17 in which he opined that Claimant had not completely healed and had sustained multiple soft tissue injuries as a result of the motor vehicle collision.

When seen by Dr. Schlitt on 3/1/17, Claimant was still depressed, had left sided back pain, was attending physical therapy, but felt he had a limited ability to perform daily activities. He had headaches and low back pain, and these were all new since the motor vehicle collision along with tender areas in his left upper outer gluteus region. Claimant also had insomnia.

Dr. Schlitt re-examined Claimant on 4/5/17. Claimant continued to complain of problems related to the motor vehicle collision at Dr. Schlitt's last examination on 5/10/17.

Claimant has also treated with Dr. Joseph Duvall, a dermatologist, for bumps and bruises he received in the July 20, 2016 accident.

Did Claimant sustain an "accident"? Section 287.020.2, RSMo, defines "accident". It states:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. ${ }^{4}$

Claimant is Employer's owner and president. As such, he functioned as estimator, bidder, and superintendent on projects. He lives in St. Charles County, Missouri, and Employer's office is located in St. Charles County, Missouri. All of Employer's projects were outside of St. Charles County. There is absolutely no question that driving was a necessary and integral component of Claimant's work.

Claimant testified that he was traveling to the Lincoln, Nebraska jobsite on July 20, 2016. He testified that in 2015, Employer had performed a project at the Embassy Suites Hotel in Lincoln, Nebraska, replacing approximately half of the windows in the hotel. Claimant testified that Employer was also the successful bidder for the replacement of the remaining windows at the same hotel in 2016, and that the work was ongoing on July 20, 2016. Claimant testified that he was headed to Lincoln to bring a check to one of the subcontractors and also to meet with the engineers on the project and assess its progress. I find Claimant's testimony credible in this regard. There was absolutely no evidence to the contrary. Claimant was on a direct route from St. Charles County to Lincoln, Nebraska. Claimant was working at the time of the motor vehicle

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[^0]: ${ }^{4}$ Sec. 287.020.2 contains an additional sentence which reads: "An injury is not compensable because work was a triggering or precipitating factor." This sentence should logically be contained in Sec. 287.020.3 (which defines "injury") and not in Sec. 287.020.2 (which defines "accident).

accident. The motor vehicle accident was an unexpected traumatic event. It was a specific event during a single work shift. (Claimant was Employer's president, and thus had significant autonomy over his work schedule, therefore the term "work shift" has a slightly different meaning for Claimant than it does for an hourly worker. Nevertheless, the motor vehicle accident was a specific event occurring during a single working day, as opposed to a series of events occurring over multiple days, weeks, or months.) The specific traumatic event was clearly identifiable by time and place of occurrence (as evidenced by the Highway Patrol's accident investigation report). It did produce, at the time, objective symptoms of an injury, as evidenced by the contemporaneous medical records and Claimant's testimony. I find, therefore, that Claimant did sustain an accident arising out of and in the course of his employment with MCS National, Inc. on July 20, 2016.

Whether the work accident of July 20, 2016 is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence. Dr. David Schlitt has been Claimant's primary care physician for over twenty-five years. Dr. Schlitt has provided most of Claimant's medical treatment since the July 20, 2016 accident. Dr. Schlitt testified by deposition on May 11, 2017.

At pages 54 and 55 of Dr. Schlitt's deposition, the following testimony was elicited:

Q. And do you have an opinion as to whether the motor vehicle collision is the prevailing factor in his resulting medical condition?

A. Yes, I do.

Q. Doctor, is it your opinion that Mr. Schwarzen is going to continue to need additional medical care and treatment in the future as a result of this motor vehicle collision?

A. Yes, I do.

Q. Doctor, the medical conditions we're referring to, are those all the diagnoses you've given us in your testimony here today?

A. Yes, sir.

Q. With the exceptions of the ones you don't think are related to the motor vehicle collision?

A. Correct.

Prior to giving the above-quoted testimony, Dr. Schlitt had identified the following conditions:

- Head injury with scalp laceration

- Headaches

- Neck pain

- Bi-lateral arm and shoulder pain

- Left knee pain

- Right knee pain

- Concussion

- Vision changes

- Bi-lateral lower extremity neuropathy

- Left foot drop

- Left-sided back pain

- Bi-lateral hip pain

- Depression

- Insomnia

Also prior to giving the above-quoted testimony, Dr. Schlitt testified that the bi-lateral lower extremity neuropathy had no connection to the July 20, 2016 accident, and that he could not relate the left foot drop to the July 20, 2016 accident. He also testified that a portion of the vision changes could not be explained by the July 20, 2016 accident.

On cross-examination, Dr. Schlitt was asked to identify "specific medical conditions that you believe (were) caused or aggravated by" the July 20, 2016 accident; Dr. Schlitt answered as follows:

Now all of his current conditions that are limiting his ability to function in his previous job are related to the accident, and they are as follows: neck pain, in the presence of a preexisting condition consisting of cervical osteoarthritis, low back pain, right knee pain, from his previous condition of osteoarthritis, intermittent headaches, increased anxiety, insomnia, gait instability ${ }^{5}$, persistent pain in legs and shoulders, if I'm leaving something out, I'll go over it later.

In his remaining cross-examination testimony, Dr. Schlitt did not identify any other conditions related to the July 20, 2016 accident. In his cross-examination, Dr. Schlitt agreed that he was not relating any of the vision changes to the July 20, 2016 accident.

At the request of Insurer, Claimant was evaluated by Dr. Matthew Collard on April 18, 2017. In his report of the same date, Dr. Collard detailed his conclusions as follows:

It is my opinion within a reasonable degree of medical certainty the patient's current complaints regarding his knees are soft tissue in nature. Certainly he has likely reached maximum medical improvement in regards to his left knee. I think most of his issues look fairly benign, as he has had a total knee arthroplasty that looks to be in good working order, although he continues to complain of some pain into his quadriceps. He has some atrophy over his quadriceps. He has a foot drop on that side, which seems to be sequela of his previous lumbar surgery. He has severe degenerative joint disease in his right knee and was previously offered a total knee arthroplasty, which I do think he should consider,

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[^0]: ${ }^{5}$ The deposition transcript says "gait disability".

WC-32-R1 (6-81)

Page 10

as I think at this time most of his complaints are related to his pre-existing degenerative joint disease.

In regard to his shoulder pain, he is no longer complaining of any left shoulder pain or problems. His right shoulder looks to be clinically normal and his pain is really based out of his neck. He certainly has degenerative changes at C5-6 and C6-7, which have been aggravated from the motor vehicle accident, but it is my opinion his ongoing symptoms are not causally related to this motor vehicle accident, and that his ongoing pain pattern is related to these degenerative changes.

He certainly had a bad motor vehicle accident. As he had no bony injuries from his accident but continues to have some ongoing soft tissue issues, I think he would benefit from some further physical therapy or even potentially work conditioning. However, given his age and his reported feeling that he can't return to work, and that he states rehab will not get him to a place where he can return to inspecting roofs, this is uncertain. He reports that he is unable to walk long distances. This is potentially secondary to his ongoing degenerative joint disease of his right knee that would have pre-existed his injury, as well as his left total knee arthroplasty.

He does have a foot drop as well as atrophy of his left leg and some neural changes. I cannot find by the medical record that this did or did not pre-exist his injury, although he reports he had neuropathy as well as potentially a drop foot prior to his motor vehicle accident. However, this is not clear in the medical record provided. That being said, I do not think he can return to his work in his current condition. He may benefit from work conditioning and potentially a functional capacity examination.

Overall, it is my opinion the patient has had sufficient time since July 2016 to recover from his motor vehicle accident. I do not see any significant issue as it relates specifically to his motor vehicle accident, as most of it looks to be aggravation to his pre-existing arthritic disease or previous surgery rather than ongoing sequelae related specifically to his motor vehicle accident. It is my opinion the patient would have ongoing issues with the base of his neck as well as both knees without the motor vehicle accident and may be the reason for his limitations in regard to being able to return to work. He has a left total knee arthroplasty as well as some quadriceps weakness and foot drop, which looks to be sequelae of previous pathology. His right knee shows severe degenerative joint disease and he was previously offered a total knee arthroplasty. He has significant degenerative changes of the cervical spine that I think are affecting the range of motion of his neck as well as causing him pain into the base of his neck and portions of his right shoulder. These degenerative issues are the reason for his ongoing complaints and current disability, and in my opinion have no direct causal relation to his motor vehicle accident, as certainly the motor vehicle accident where his car was rolled over did not cause this degenerative pathology from which he continues to suffer.

After receiving additional medical records, Dr. Collard authored additional reports dated May 26, 2017, June 2, 2017 and June 5, 2017. Dr. Collard's opinions remained the same.

Dr. Collard's deposition testimony was consistent with his written opinions quoted above. On cross-examination, Dr. Collard testified that he did not believe Claimant could return to work in his current condition. He testified that Claimant might benefit from a work conditioning program.

Dr. Schlitt and Dr. Collard both appear to be straightforward and truthful. I note that there are many aspects of the case on which Dr. Schlitt and Dr. Collard agree. They agree that Claimant had numerous significant pathologies that preexisted the July 20, 2016 accident. They agree that Claimant was working despite the preexisting pathologies. They agree that the July 20, 2016 motor vehicle accident was a serious accident. They agree that Claimant cannot return to work in his current condition.

Another area of (partial) agreement is that the July 20, 2016 accident aggravated several of Claimant's preexisting conditions. Dr. Collard believes that such aggravations were temporary only, that Claimant was at maximum medical improvement regarding the July 20, 2016 aggravations as of April 18, 2017, and that Claimant's current disabling conditions are wholly the result of his preexisting conditions. Dr. Schlitt believes that Claimant is not at maximum medical improvement, and that the injuries Claimant sustained in the July 20, 2016 accident are the prevailing factor in Claimant's continued disability.

Aggravation of a preexisting condition is a compensable injury if the claimant establishes a direct causal link between the job duties and the aggravated condition. Rader v. Werner Enterprises, Inc., 360 S.W.3d 285, 298 (Mo. App. E.D. 2012).

I believe Claimant has established a direct causal link between the "job duties" (i.e., the work related July 20, 2016 automobile accident) and the aggravated conditions. Dr. Schlitt's testimony establishes that direct causal link, and Dr. Collard's testimony confirms that direct causal link. The real question, then, is whether Claimant is at maximum medical improvement.

Considering all the evidence, including the physicians' testimony, Claimant's testimony, and the fact that the July 20, 2017 automobile accident was a very serious and violent accident, I find that the evidence clearly establishes that Claimant's condition is not at maximum medical improvement.

I find, therefore, that the work accident of July 20, 2016 is the prevailing factor in the cause of:

- Concussion, with continuing intermittent headaches

- Aggravation of pre-existing cervical osteoarthritis, with continuing neck pain

- Aggravation of pre-existing knee osteoarthritis, with continuing bilateral knee pain

- Soft tissue injuries of the low back, with continuing low back pain

- Aggravation of preexisting anxiety disorder, with continuing increased anxiety

Average weekly wage and compensation rates. Section 287.250, RSMo is used to compute average weekly wage. It sets forth methods to compute the average weekly wage for employees who are paid by the week, month, year, day, or hour. Claimant was not paid by the week, month, year, day, or hour. Claimant was paid if, and only if, a project was profitable. Such a calculation is not contained in $\S 287.250$.

Section 287.250.4 states:

If pursuant to this section the average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 of this section, the division or the commission may determine the average weekly wage in such manner and by such method as, in the opinion of the division or the commission, based upon the exceptional facts presented, fairly determine such employee's average weekly wage.

It is obvious that Claimant's average weekly wage cannot fairly and justly be determined by the formulas provided in subsections 1 to 3 . Therefore, $\S 287.250 .4 must be invoked.

Claimant made \ 73,286 in 2015 (52 1/7 weeks) from Employer. Claimant made \$33,000 between January 1, 2016 and July 20, 2016 (28 6/7 weeks) from Employer. Thus, Claimant made $\ 106,286 in the 81 weeks prior to the accident, an average of $\ 1,312.17. This results in a compensation rate of $\ 874.78 for TTD benefits and $\ 477.33 for permanent partial disability benefits.

TTD benefits. Claimant is requesting payment of TTD benefits from and after July 21, 2016.

"Temporary total disability awards are owed until the Clamant can find employment or the condition has reached the point of maximum medical progress." Vinson v. Curators of the University of Missouri, 822 S.W.2d 504, 508 (Mo App. 1991). "The Claimant is capable of forming an opinion as to whether she is able to work, and her testimony alone is sufficient evidence on which to base on award of temporary total disability." Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. Banc 2003). "In determining whether an employee is totally disabled, the main issue is 'whether any employer, in the usual course of business, would reasonably be expected to employ the [employee] in [the employee's] present physical condition.' This standard is applied to temporary total disability, as well as permanent total disability." Cooper v. Medical Center of Independence, 955 S.W.2d 570, 575 (Mo.App.W.D. 1997).

Claimant's condition from the July 20, 2016 accident has not reached the point of maximum medical progress. Claimant has not found employment. Claimant, Dr. Schlitt and Dr. Collard all agree that Claimant cannot work in his present physical condition. Considering Claimant's medical condition and his age, it is clear to me that no employer, in the usual course of business, would reasonably be expected to employ Claimant in his present physical condition. Claimant is entitled to TTD benefits.

Medical treatment. Claimant's condition has not reached maximum medical improvement. Employer is required by Section 287.140 to provide Claimant with medical care.

In Claimant's post-hearing brief, he requested that Insurer reimburse him for certain past medical bills. This was not raised as an issue at the hearing, and therefore will not be addressed in this temporary, partial award.

Whether attorney's fees and expenses may be ordered pursuant to Section 287.560, RSMo. Claimant is requesting that Insurer be ordered to pay his costs and attorney's fees pursuant to Section 287.560, RSMo, which states (in part):

All costs under this section shall be approved by the division and paid out of the state treasury from the fund for the support of the Missouri division of workers' compensation; provided, however, that if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. (Emphasis added.)

The term "whole cost of the proceedings" as used in Section 287.560 includes attorney's fees. Landman v. Ice Cream Specialties, 107 S.W.3d 240 (Mo. 2003).

Insurer has not defended this case without reasonable ground. While I do not agree with Dr. Collard's ultimate findings that Claimant is at maximum medical improvement, Dr. Collard's opinions are not unreasonable in any respect. No attorney's fees or expenses are awarded.

In addition to those facts and legal conclusions to which the parties stipulated, I find the following facts:

1. Claimant sustained an accident arising out of and in the course of his employment with Employer on July 20, 2016.
2. The July 20, 2016 work accident is the prevailing factor in the cause of concussion, with continuing intermittent headaches, aggravation of pre-existing cervical osteoarthritis, with continuing neck pain, aggravation of pre-existing knee osteoarthritis, with continuing bilateral knee pain, soft tissue injuries of the low back, with continuing low back pain, and aggravation of preexisting anxiety disorder, with continuing increased anxiety.
3. Claimant's condition has not reached maximum medical improvement.
4. Claimant's average weekly wage is $\ 1,312.17, yielding a compensation rate of $\ 874.78 for TTD benefits and $\ 477.33 for permanent partial disability benefits.
5. Claimant is in need of additional care and treatment to cure and relieve him from the effects of the July 20, 2016 work accident.

1. Due to the injuries Claimant sustained in the July 20, 2016 work accident, Claimant is unable to compete in the open labor market in his current physical condition, and thus is entitled to temporary total disability benefits.
2. Insurer has not defended this case without reasonable ground, and thus no attorney's fees and costs may be awarded pursuant to $\S 287.560$, RSMo.

Employer and Insurer are ordered to provide Claimant with such medical, surgical and hospital treatment as may reasonably be required to cure and relieve Claimant from the effects of the work related injuries, to-wit: concussion, with continuing intermittent headaches, aggravation of pre-existing cervical osteoarthritis, with continuing neck pain, aggravation of preexisting knee osteoarthritis, with continuing bilateral knee pain, soft tissue injuries of the low back, with continuing low back pain, and aggravation of preexisting anxiety disorder, with continuing increased anxiety.

Employer and Insurer are ordered to pay Claimant temporary total disability benefits of $\ 874.78 per week, from and after July 21, 2016, until such time as Claimant is able to compete in the open market for employment, or until such time as Claimant's condition reaches maximum medical improvement, or until Claimant's death, or until 400 weeks of TTD benefits have been paid, or until further order of an administrative law judge of the Missouri Division of Workers' Compensation, whichever shall first occur.

Claimant's attorney, Thomas Fagan, is allowed 25\% of all temporary total disability benefits payable hereunder, as and for necessary attorney's fees.

This award is only temporary or partial, is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made.

Made by $\qquad$

/s/Robert J. Dierkes 6/30/2017

Chief Administrative Law Judge

Division of Workers' Compensation