Donald Clift v. Queen City Winnelson Company

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-051327

Employee: Donald Clift

Employer: Queen City Winnelson Company

Insurer: Travelers Insurance Company of America

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 November 3, 2016. The award and decision of Administrative Law Judge Victorine R. Mahon, issued November 3, 2016, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 22^{\text {nd }} \qquad$ day of February 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

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: May 8, 2013.
5. State location where accident occurred or occupational disease was contracted: Springfield, 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: Clamant injured his back while performing repetitive heavy lifting.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. $\operatorname{Part}(\mathrm{s})$ of body injured by accident or occupational disease: Body as a whole referable to the back.

The undersigned Administrative Law Judge conducted a final hearing in Springfield, Missouri, to determine the liability of the Employer/Insurer and the Second Injury Fund. Attorney John Wise represented Donald Clift. He seeks a 25 percent fee of any amounts awarded. Assistant Attorney General Catherine Goodnight represented the Treasurer of Missouri, as Custodian of the Second Injury Fund. Christina Madrigal represented Queen City Winnelson Co., and its insurer, Travelers Insurance Company of America. The parties reached the following stipulations of fact:

1. On May 8, 2013, Donald Clift (Claimant) sustained an injury by occupational disease from repetitive trauma that arose out of and in the course of Claimant’s job duties while working for Queen City Winnelson Co. (Employer).

2 At the time of this injury, Employer was fully insured with Travelers Insurance Company of America (Insurer). Both Claimant and Employer were subject to and protected by the Missouri Workers’ Compensation Act. 3. Venue and jurisdiction are proper in Springfield, Greene County, Missouri, where the injury occurred. 4. There is no challenge to the statute of limitations or notice. 5. Claimant’s average week wage was $\ 576.93, yielding a compensation rate of $\ 384.62 for all purposes. 6. Employer/Insurer paid no temporary total disability and no medical benefits under the Workers’ Compensation Law. 7. Claimant reached maximum medical improvement on August 5, 2013.

The sole issues for the hearing are as follows: ${ }^{1}$

- What is the nature and extent of any disability from the last injury?

- What is the nature and extent of any liability of the Second Injury Fund?

- Is Claimant entitled to future medical to cure and relieve the effects of the work injury?

- Is Claimant entitled to 6 and $4 / 7 weeks in past temporary total disability totaling \ 2,527.50 ?

The parties offered the following exhibits which were admitted:

Exhibits offered by Claimant:

1. Deposition - Dr. Allen Parmet
2. Vocational Report - Phillip Eldred
3. Curriculum Vitae - Phillip Eldred
4. Medical Records - Mercy Hospital System
5. Medical Records - Neurological and Spine Institute
6. Medical Records - Neurological and Spine Institute
7. Medical Records - CoxHealth
8. Medical Records - Typaldos Physical Therapy
9. Medical Records - Mercy Hospital System
10. Medical Records - University Hospital
11. Medical Records - Phelps County Hospital
12. Medical Records - Barnes Jewish Hospital

Exhibits offered by Employer/Insurer

A. Deposition - Dr. Brent Koprivica

B. Deposition - Michael Dreiling

C. Deposition - Donald Clift

Exhibits offered by the Second Injury Fund

I. Deposition - Donald Clift

Claimant, Donald Clift, testified credibly. He was born on March 21, 1971. He presently is 45 years old. Claimant began his employment at Queen City Winnelson on January 2, 2013. He last worked for that employer on May 17, 2013, at which time he was terminated based on his employer's representation that it no longer had work available for him. Claimant has not worked anywhere since that date.

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[^0]: ${ }^{1}$ Although the records of the Division of Workers' Compensation indicate that there is an unreleased Medicaid/Medicare lien of $\ 910.17 connected to this case, Claimant has not sought reimbursement for any medical benefits, and the parties did not identify the lien as an issue. Moreover, no evidence was presented indicating that the lien related to medical treatment for Claimant's work injury. This Award, therefore, does not include a provision for the lien.

Claimant described a limited educational background. He possesses an 11th grade education, but never obtained a diploma or a GED. He has no formal post-secondary academic or vocational training. He never served in the military. He has a varied work career.

Following high school, Claimant worked less than two years at a Chinese restaurant in Chesterfield, Missouri, and with Conoco Pipeline, performing general labor work. In approximately 1990, Claimant went to work for his father's construction business, Gary Clift Construction. He worked for approximately two years with that employer as a foreman. This job required Claimant to lift and carry up to 100 pounds and use saws, hammers, and other construction tools.

After leaving the construction business, Claimant established a career in the automobile sales industry. He worked for a variety of dealerships selling cars and in customer service. It was during this time that Claimant suffered an injury to his right knee, necessitating an arthroscopic procedure. After receiving treatment for his right knee injury, he experienced only mild, intermittent soreness about once every six weeks. Claimant was adamant, however, that the right knee symptoms never interfered with his job activities.

In approximately 2000, Claimant suffered a laceration to his right hand while pushing a shopping cart in a Wal-Mart. As a complication of that injury, he developed reflex sympathetic dystrophy in his right upper extremity. Claimant underwent a series of stellate ganglion blocks at Barnes-Jewish Hospital and eventually underwent a right dorsal sympathectomy on February 1, 2000, also performed at BarnesJewish Hospital. Claimant missed approximately one week of work following the right hand injury. He had some residual problems, including an inability to sweat on the right side of his body. His right hand also gets cold when he is outside during cold temperatures, and he sweats excessively on his left side because of his inability to sweat on his right side. Again, however, Claimant fiercely denied that this condition ever impacted any employment that he had throughout the years, and doubted it would have prevented him from performing any job tasks.

From 2002 through 2006, Claimant returned to work for his father as a general carpentry foreman at Gary Clift Construction Company. Claimant said the prior hand injury and resulting condition never prevented him from performing any job tasks.

In 2009, while working for Kingdom Kia as a salesman and floor manager, Claimant suffered a heart attack. He underwent treatment with Dr. John Hawkins at Mercy Hospital, in Springfield, Missouri, which included an angioplasty and placement of a stent. Although he did experience some shortness of breath with exertion following the heart attack, he testified that this resolved. He no longer experiences that problem. He said that following the heart attack, there were no jobs he was unable to perform because of the heart condition.

That same year, Claimant was also diagnosed with sleep apnea and underwent treatment for that condition. He uses a CPAP machine. Again, Claimant clearly said he had no ongoing problems from that condition. The sleep apnea did not cause him any problems performing job activities.

In 2010 and 2011, Claimant worked with Super Lifts in Nixa, Missouri, selling hydraulic car lifts. After that job, he worked for approximately six to eight months as a restaurant and bar manager with

Claimant took the job at Queen City Winnelson with the understanding he was to perform outside sales. For the first three months of his employment, however, Claimant had to work in the warehouse loading and unloading heating and air conditioning equipment, rearranging the warehouse, and stocking items. He pulled and lifted items weighing 600 pounds with a pallet jack, and up to 200 pounds without a jack. He performed this physically-demanding work 10 hours per day, 5 days a week. Even after Claimant eventually was reassigned to outside sales in April 2013, Employer still required that Claimant work at least one 10 -hour shift per week in the warehouse. Claimant said prior to this last job at Queen City Winnelson he never had problems working his normal job duties.

Soon after he began working in the warehouse, Claimant developed low back complaints. During the first week of May 2013, Claimant felt a sharp, stabbing pain in his lower back extending down his right leg to his right foot. The symptoms became so severe that Claimant went to the Cox Medical Center emergency room on May 20 and May 27, 2013. On those visits, he was experiencing the above-described lower back pain and a pulling sensation in his right leg, along with numbness in his right leg down to his right foot. At the time of the May 27, 2013 emergency room visit, an MRI performed on his low back revealed a herniated disc that necessitated surgery.

Dr. Mark Crabtree performed a right-sided hemilaminotomy and microdiscectomy at L5-S1 on June 19, 2013, at Cox Medical Center. Dr. Crabtree's post-surgical diagnosis was a herniated nucleus pulposus at L5-S1 on the right. The surgery did not resolve Claimant's complaints.

A post-surgery MRI at SNI Imaging revealed evidence of "enhancing epidural fibrosis in the right lateral recess as well as slight enhancement of the right S1 nerve root possibly due to an element of arachnoiditis in this region." (Ex. 6). In medical records of July 18, 2013, and August 9, 2013, Dr. Crabtree said Claimant was not to return to work. He also noted that Claimant had continued to have significant pain and numbness in his leg and foot, accompanied with difficulty sitting. Although Dr. Crabtree referred Claimant to a physiatrist, Claimant said in deposition that he had lost his insurance by the end of July 2013 and had no method of paying for any further treatment. Claimant has never returned to work.

Claimant has continuing profound problems with his lower back. He experiences a constant sharp pain in his lower back as well as numbness and a constant throbbing pain in his right leg. His cannot lift more than 10 pounds. He can sit for only 30 minutes, after which time he will have to stand up and stretch. He can stand for only 45 minutes, after which he must sit or lie down. He can walk for 30 minutes, after which he must sit and lie down. The leg and low back pain causes him to lie down several times during the day. ${ }^{2}$ He can ride in a car for no more than one hour. He has difficulty sleeping at night. The pain in his lower back wakes him up four to five times per night. He also utilizes a heating pad at times to

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[^0]: ${ }^{2}$ There is some discrepancy in the record as to how often or for how long Claimant must lie down during the day due to his low back and leg pain. I find the discrepancy insignificant. Irrespective of whether he lies down twice or four times a day, or for minutes or hours, the record is clear he must lie down every day due to the symptoms stemming from the last injury alone. During the hearing, Claimant clearly demonstrated the need to change positions frequently.

Employee: Donald Clift

Injury No.: 13-051327

alleviate his low back and right leg pain. Claimant now takes Hydrocodone for low back and right leg pain every three to four hours, as needed. He states that he now has problems with concentrating due to the pain in his back and right leg. He does not believe he could return to any of his former jobs even on a part-time basis, due to the low back and right leg complaints.

On cross-examination by the Second Injury Fund, Claimant described his health prior to 2013 as being "good." He also testified that he had no intention to stop working before his 2013 low back injury.

Dr. Allen Parmet examined Claimant on January 9, 2014. Dr. Parmet discussed the significance of the findings of the post-operative MRI of Claimant's lower back. Dr. Parmet testified the film disclosed "some new swelling and scar formation in the area, particularly around that right S1 nerve root. This was felt to represent inflammation of the lining around the spinal cord, which is called arachnoiditis." (Ex. 1, pp. 13-14) He explained that the findings represented inflammation in and around the spinal cord. He said the "nerves become encompassed with scar tissue which compresses and irritates the nerves and virtually mimics the same thing as before where you had the compression by herniated disc, now we have compressed by scar tissue, but unfortunately this in not very amenable to treatment." (Ex. 1, p. 14). Dr. Parmet testified that the arachnoiditis was an objective source of pain and the fibrosis resulting from that condition would be a permanent problem and a continuing source of pain and irritation of the nerves. Dr. Parmet explained that once the scar tissue is present, there was no viable treatment available.

Dr. Parmet observed that Claimant had decreased sensation in the right L5 and S1 dermatomes, which he said was compatible with the history of the herniated disc at L5-S1 and the subsequent arachnoiditis and fibrosis. Dr. Parmet said Claimant's occupational activities, including frequent heavy lifting at Queen City Winnelson, were the prevailing factor in causing a herniated disc at L5-S1, with a complication of post-operative arachnoiditis and fibrosis resulting in residual sciatica. He concluded that Claimant had reached maximum medical improvement with respect to his 2013 back injury.

Dr. Parmet limited Claimant to sedentary activity in which Claimant would be allowed to change positions frequently, alternating between sitting and standing. He attributed those restrictions to the 2013 low back injury. He said Claimant would require ongoing pain management for the low back injury. Although Dr. Parmet initially rated Claimant as having suffered a 30 percent PPD to the body as a result of the low back injury, he ultimately concluded that Claimant was permanently and totally disabled due to the combined effect of all Claimant's disabilities along with his rather limited vocational and educational experience.

On cross-examination, Dr. Parmet conceded that Claimant had found no need to take breaks during his work for the last employer, and sought no modifications or accommodations, nor missed work because of any preexisting conditions. Prior to the last injury, Claimant had not been reporting any pain in his back or leg, did not need to alternate sitting or standing, and his sleep-apnea was well-controlled. Finally, with respect to Claimant returning to work, Dr. Parmet testified:

Q. Do you believe he [Claimant] could go back to any of his past work given the restrictions and limitations you've found from just his last injury?

A. I doubt that he could. He never had any skilled labor at all. He would have to be vocationally retrained.

Q. So as you saw him and assessed restrictions on that day, he didn't have any skill set to return to a job at that moment, he would need essentially voc rehab; is that what you're saying?

A. As I understand the vocational assessment, and I must defer to the vocational experts on that part.

(Exhibit 1, pp. 32-33).

Dr. Brent Koprivica examined Claimant on May 27, 2015. Dr. Koprivica reviewed medical records, as well as the transcript of Claimant's deposition testimony from September 16, 2013. Dr. Koprivica opined, as did Dr. Parmet, that Claimant's occupational activities at Queen City Winnelson were the prevailing factor in causing a lumbar spine herniated disc which necessitated the surgical procedure performed by Dr. Crabtree. He also diagnosed post-laminectomy syndrome resulting from the surgery. Dr. Koprivica also testified on cross-examination regarding the significant findings on the post-operative MRI of Claimant's lower back.

Q. Now, on page 18 of your report, you discuss an August 5, 2013, MRI and you indicate that it disclosed post-operative epidural fibrosis, correct?

A. Yes.

Q. That is obviously a result of the surgery performed by Dr. Crabtree, true?

A. Yes.

Q. That is an objective finding?

A. Yes.

Q. And the epidural fibrosis is a subjective source of pain, true?

A. It can be. And in this case I think it is.

Q. Also, on page 18 of your report I think you opined that the appropriate MMI date was August 5, 2013? Is that correct?

A. Yes.

Q. Now, on your physical exam you make the comment about some behavior issues. But in general the lower back examination was consistent with the nature of the injury and the postlaminectomy syndrome, was it not?

A. In my opinion it was. There's some self-limitation I thought was very mild. Overall I thought he was genuine in his presentation and what I saw was representative of his disability.

(Ex. A, pp. 34-35).

Dr. Koprivica also opined that Claimant would require indefinite medical treatment for the injury to his lower back. He testified that his use of medication would need to be monitored by a physician. He attributed the need for future medical care to the last work accident.

Dr. Koprivica identified significant permanent restrictions. Dr. Koprivica opined that Claimant should limit lifting or carrying to occasional tasks of 20 pounds. He should avoid frequent or constant lifting or carrying. He should avoid frequent or constant bending at the waist, pushing, pulling, or twisting. He should avoid sustained or awkward position of the low back. Claimant has limitations on fine dexterity tasks as a result of his right upper extremity injury. Claimant should only occasionally squat, crawl, or kneel. He restricted Claimant from climbing entirely. Dr. Koprivica also testified that Claimant required an ad lib ability to change between sitting, standing, and walking. He said Claimant had to capacity to engage in captive sitting, standing, and walking up to one hour. Dr. Koprivica attributed such restrictions primarily to a combination of the 2013 low back injury and one or more of the prior disabling conditions.

Dr. Koprivica testified unequivocally that Claimant was totally disabled. Dr. Koprivica opined that Claimant's permanent and total disability resulted from a combination of the 2013 injury and preexisting disability conditions, including reflex sympathetic dystrophy in the right upper extremity, a myocardial infarction in 2009, obstructive sleep apnea, and degenerative joint disease of the right knee after arthroscopic meniscectomy. He said these preexisting conditions had posed a hindrance or obstacle to employment or reemployment.

Phillip Eldred, a certified vocational rehabilitation counselor, conducted a vocational evaluation of Claimant on May 15, 2014. Mr. Eldred testified live at the hearing in this matter. Mr. Eldred reviewed medical records from various treating providers and the deposition testimonies of Claimant, Dr. Koprivica, Dr. Parmet, and Mr. Dreiling, who is another vocational expert.

Mr. Eldred identified a number of physical conditions which existed prior to May 2013, including a right knee injury, right upper extremity reflex sympathetic dystrophy, and a heart condition. Mr. Eldred opined that none of those conditions constituted a hindrance or obstacle to employment or reemployment prior to May 2013.

During his evaluation of Claimant, Mr. Eldred noted that Claimant was fidgety and alternated between sitting and standing. Mr. Eldred administered a back function questionnaire during his evaluation of Claimant. He explained that it is a self-reporting survey of 15 activities which ask the individual to rate the degree of pain he experiences when performing such activity. Claimant identified significant restrictions attributable to his lower back condition, including limitations on sitting, standing, walking, squatting, stair climbing, and lifting. Of significance, Claimant indicated he was unable to work because of his lower back condition alone.

Claimant indicated to Mr. Eldred that he needed to lie down multiple times during the day for at least 30 minutes to an hour. Mr. Eldred said that fact alone would preclude employment in the open labor market. Mr. Eldred also testified that Claimant's limited educational background, no high school degree or GED, and no post-high school training, would adversely impact his prospects for employment. Mr. Eldred noted that Mr. Dreiling agreed with that assessment. Mr. Eldred described Claimant's prior work history as falling into the light to heavy exertional level.

Mr. Eldred said the restrictions assessed by Dr. Parmet and Dr. Koprivica placed Claimant at the less than sedentary exertional level. At such exertional level, Claimant would have no transferable skills. Mr. Eldred noted that Mr. Dreiling also agreed with that assessment. Mr. Eldred concluded that Claimant could not return to work in his prior jobs, a conclusion with which Mr. Dreiling also agreed.

Mr. Eldred opined that no reasonable employer would be expected to hire Claimant for competitive, gainful employment. While Dr. Parmet suggested that Claimant might return to work if he was vocationally retrained, Mr. Eldred concluded that Claimant had no capacity to be retrained. Mr. Eldred concluded that Claimant was permanently totally disabled solely as a result of the May 2013 lower back injury in isolation. All of Mr. Eldred's conclusions were offered within a reasonable degree of professional and vocational certainty.

Michael Dreiling, a vocational counselor, conducted a vocational evaluation of Claimant at the request of the employer/insurer, on February 11, 2016. Mr. Dreiling testified by way of deposition.

Mr. Dreiling found that Claimant's limited education, with the lack of a diploma or GED, would eliminate a large number of jobs, including entry-level jobs. He also thought that Claimant's absence of typing skills was a significant factor, especially for someone like Claimant who has a background in sales and customer service.

Mr. Dreiling identified Claimant has having four preexisting medical conditions that Mr. Dreiling found vocationally significant: heart, right upper extremity, right knee, and sleep apnea issues. Mr. Dreiling testified that Claimant's father was aware of Claimant's right upper extremity problems and was able to accommodate for work environments during his employment with Gary Clift Construction. Mr. Dreiling said Claimant left car sales because his physician had recommended that he do so because of his heart problem. Mr. Dreiling agreed with the opinions of Dr. Parmet, Dr. Koprivica, and Mr. Eldred that Claimant was permanently totally disabled. Mr. Dreiling equivocated, however, as to whether the total disability was attributable to the last injury in isolation or from a combination of it with Claimant's preexisting conditions. He testified in relevant part, as follows:

A. I believe that based upon the combination of the vocational profile factors for this gentleman, based upon the medical input and medical restrictions recommended for this gentlemen, I don't think it's realistic that he is going to be able to go back, compete for and obtain employment in the open labor market.

Q. Do you believe that his inability to compete in the open labor market is due to the last injury alone or due to a combination of all of his injuries?

A. I believe that if I look at the medical input from Dr. Koprivica and the medical restrictions that he recommends for the combination of the medical conditions, to me it looks like from a vocational perspective it's a combination of preexisting problems along with the last injury alone. If we look at what Dr. Parmet indicates in terms of the restrictions for the last injury alone, I believe then you could argue that it was that injury in and of itself that would cause his inability to access the labor market.

Q. And just so we're clear, it's your opinion that Mr. Clift is permanently and totally disabled when you look at all the doctor's restrictions and the information you reviewed, correct?

A. Correct.

Q. Now, whether or not that total disability is attributable to the last injury alone or a combination is really based on whether you accept the restrictions of Dr. Koprivica or the restrictions of Dr. Parmet; is that correct?

A. Correct.

Q. So if a judge were to find Dr. Parmet's restrictions to be more persuasive, you would find permanent total based on the last injury alone, correct?

A. Correct.

Q. Alternatively, if a judge accepted Dr. Koprivica's restrictions and his opinion that they flow from a combination of the back injury and prior disabling conditions, you would then opine that total disability results from a combination of the last injury and the prior disabling conditions, correct?

A. That is correct.

(Ex. 2, pp. 21 - 22). Mr. Dreiling said if he considered Mr. Clift's description of restrictions which he attributes to his lower back condition, he would find Claimant permanently totally disabled as a result of his back injury alone.

The experts generally agree that Claimant cannot work on the open labor market as he currently presents. The parties dispute whether Claimant's permanent and total disability is from the last injury alone, or as a result of the last injury in combination with preexisting disabilities. Vocational expert Mr. Eldred testified live. I find his testimony in this case particularly credible and persuasive. To the extent that his testimony differs from that of Mr. Dreiling, I find Mr. Eldred's opinion more persuasive and worthy of belief in this case.

Claimant has the burden of proving all elements of his claim to a degree of reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo. App. E.D. 2008). Claimant seeks permanent total disability against either Employer/Insurer or the Second Injury Fund. When an injured employee alleges permanent total disability, as in the instant case, the Administrative Law Judge first must consider the liability of the employer in isolation by determining the degree of disability due to the last injury. APAC Kansas, Inc. v. Smith, 227 S.W.3d 1, 4 (Mo. App. W.D. 2007), and Hughey v. Chrysler Corp. 34 S.W.3d 845, 847 (Mo. App. E.D. 2000). If Claimant's last injury in and of itself renders Claimant permanently and totally disabled, the Second Injury Fund has no liability and Employer is responsible for the entire amount. Feld v. Treasurer of Missouri as Custodian of Second Injury Fund, 203 S.W.3d 230, 233 (Mo. App. E.D. 2006).

The term "total disability" means 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 last injury. § 287.010.6

RSMo 2000. The test for permanent total disability is the worker's ability to compete in the open labor market, with the critical question being whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker given his present physical condition. A B B Power T \& D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo. App. W.D. 2007); Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo. App. W.D. 2000) overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003). While "total disability" does not require that Claimant be completely inactive or inert, Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo. App. S.D. 1996), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W. 2d 220 (Mo. banc 2003), it does require a finding that Claimant is unable to work in any employment in the open labor market, and not merely the inability to return his last employment. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. S.D. 2001), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003). It is within the province of the Administrative Law Judge to determine the extent of any permanent disability. Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo. App. E.D. 1998).

Claimant has no prior history of back pain. He now suffers constant low back and right leg pain. Since the last work injury, he cannot lift more than 10 pounds. Prior to the last injury, he was performing repetitive heavy lifting. He now lies down multiple times per day, something he does solely because of the pain emanating from his back and leg due to the last injury. Both Dr. Koprivica and Dr. Parmet identified the presence of arachnoiditis and epidural fibrosis. Both doctors testified that was an objective source for ongoing pain in Claimant's lower back. Mr. Eldred credibly opined that the restrictions of the physicians place Claimant at the less than sedentary exertional level, that Claimant has no transferable job skills. He has limited education, no GED, and cannot be retrained. Mr. Eldred was unequivocal in his opinion that Claimant is permanently and totally disabled from the last injury alone. Mr. Dreiling agreed with that assessment if one considered the restrictions of Dr. Parmet. Having found the live testimonies of Mr. Eldred and Claimant credible, and having considered the whole record, I find and conclude that Claimant is permanently and totally disabled from the last injury alone. Employer is liable for permanent total disability. The Second Injury Fund has no liability.

Employer/Insurer insists that the Second Injury Fund is liable for permanent total disability given Claimant's numerous injuries and medical conditions which were potentially disabling prior to May 2013. Having found that Claimant is unemployable as a consequence of the last injury, alone, there is no need to consider the effect of these preexisting conditions. Feld, 203 S.W.3d at 233. Moreover, Claimant unequivocally testified, without impeachment, that none of his prior conditions caused him problems at work, nor would they have limited his ability to work at other jobs. Mr. Eldred opined from a vocational perspective, that none of the preexisting conditions constituted a hindrance or obstacle to employment or reemployment prior to May 2013.

Section 287.140 RSMo, requires Employer/Insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. banc 2003). Both Drs. Parmet and Koprivica indicated that Claimant needs chronic pain management to treat the work injury. Employer/Insurer shall provide future medical treatment to cure or relieve the effects of the work injury.

Claimant was incapable of any work between the date of his surgery on June 19, 2013 and August 5, 2013, at which time Dr. Volarich said Claimant had reached maximum medical improvement. Employer/Insurer had paid no temporary total disability during this time period of 6 and $4 / 7 weeks. At the weekly benefit rate of \ 384.62, Employer/Insurer is liable for $\ 2,527.50 in temporary total disability.

Beginning August 5, 2013, and continuing for the remainder of his lifetime, Employer/Insurer shall pay Claimant the weekly sum of $\ 384.62 for permanent total disability benefits. From August 5, 2013 (date of maximum medical improvement) to September 27, 2016 (date of hearing), Claimant is due 164 and 1/7 weeks in back permanent total disability benefits. This totals $\ 63,132.63.

Employer/Insurer shall provide future medical benefits to cure and relieve the effects of the work injury.

Employer/Insurer shall pay Claimant $\ 2,527.50 for 6 and $4 / 7 weeks of temporary total disability at the weekly rate of \ 384.62. This is for the period beginning June 19, 2013 through August 4, 2013.

Because Claimant is permanently and totally disabled from the last injury in isolation, the Second Injury Fund has not liability.

Attorney John Wise shall have a lien of 25 percent of all amounts awarded herein as a reasonable fee for necessary legal services provided to Claimant.

This Award is subject to review and modification as provided by law. Interest shall accrue as provided by law.

Made by: $\qquad$

Victorine R. Mahon

Administrative Law Judge

Division of Workers' Compensation