Robin Barnes v. Park Express, LLC

(3) in finding employer responsible for unauthorized past medical expenses; (4) in calculating the total medical expenses for which employer was held responsible; (5) in awarding future medical expenses related to treatment for the L4-5 disc on the right and the L5-S1 disc; (6) in admitting Exhibit 17; (7) in refusing to admit or consider the January 21, 2009, report of Dr. Berkin into evidence; (8) in finding employee permanently and totally disabled as a result of the November 11, 2009, work injury in isolation; and (9) in finding that there is no evidence that the employer authorized surgery at any level.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issues of: (1) the nature and extent of employer's liability for permanent disability; and (2) the nature and extent of the Second Injury Fund's liability for permanent disability. In addition, we modify the administrative law judge's decision with regard to the parties' evidentiary objections, and supplement her award and decision with respect to the issue of interest on uncontested, past due weekly temporary total disability benefits pursuant to $\S 287.160 .3$ RSMo.

Employer objects to employee's Exhibit 17 on the basis of relevance. This exhibit consists of a price quotation from Lasting Impressions Home Remodel Center, Ltd., for the cost of modifications to employee's home. The parties did not ask the administrative law judge to resolve the issue whether employee is entitled to home modification, nor did employee seek an award of the amount identified in this exhibit. Given these circumstances, we fail to see the relevance of this document, as it would appear that there is no need for us to consider the cost of home modifications in this matter, and to the extent the exhibit is advanced as evidence of employee's severe disability, we deem it unduly cumulative of the voluminous expert testimony on the topic, as well as employee's own firsthand testimony describing, in detail, his limitations. Consequently, we find employer's relevance objection to be well-taken. Exhibit 17 is hereby excluded from the record, and the administrative law judge's decision is modified accordingly.

With regard to the January 21, 2009, report of Dr. Shawn Berkin (which employer offered into the record via myriad exhibits and theories of admissibility), we acknowledge the hearsay objections from both employee and the Second Injury Fund. Section 287.550 RSMo, however, specifically provides, in relevant part, that "[a]ll proceedings before the commission or any commissioner shall be simple, informal, and summary, and without regard to the technical rules of evidence[.]"

Missouri's evidentiary rules with regard to hearsay evidence are numerous, complex, and unquestionably "technical." In keeping with the specific instruction of $\S 287.550$, and the obvious legislative intention that all relevant evidence in workers' compensation proceedings be admitted into the record for whatever worth it may have, we are ultimately inclined to admit Dr. Berkin's report into the record, despite the fact that it unquestionably amounts to, and contains, hearsay.

For the foregoing reasons, we admit Dr. Berkin's report wherever it appears in the exhibits, and thereby modify the administrative law judge's decision accordingly. Having admitted this evidence, we find the purported statements from employee contained in Dr. Berkin's report lack substantial probative value, as they constitute hearsay-upon-hearsay. Accordingly, we will not rely on Dr. Berkin's report to modify or otherwise disturb the administrative law judge's relevant factual findings.

The administrative law judge determined that employee is permanently and totally disabled as a result of the effects of the November 2009 work injury, such that employer is liable for permanent total disability benefits. In reaching this determination, the administrative law judge appeared to rely solely upon the fact that employee was, despite his considerable preexisting disability referable to the low back and left shoulder, able to maintain his heavy-duty work for employer prior to the work injury; whereas, following that injury, employee is incapable of competing for work in the open labor market.

After careful consideration, we agree with the administrative law judge's finding that employee is now incapable of competing for work in the open labor market. However, we disagree with the analysis with regard to the nature and extent of disability resulting from the work injury considered alone, for the following reasons.

Practically speaking, in every case where the employee is permanently and totally disabled after suffering a compensable work injury, the employee will be capable of working prior to the injury, but incapable of working thereafter. If this circumstance, standing alone, were sufficient to support an award of permanent total disability benefits against the employer, the Second Injury Fund would never be liable. By the same token, an assessment of employee's overall level of functioning following the work injury would appear to necessarily include the contribution of preexisting disabling conditions. As the relevant case law makes clear, however, we must exclude the effects of employee's preexisting disabling conditions to properly assess the nature and extent of disability referable to the work injury alone:

In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Until that disability is determined, it is not known whether the second injury fund has any liability. Accordingly, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined.

Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000)(citations omitted).

This analysis, of course, is especially difficult in a case such as this, where the nature of the last injury and requisite treatment therefor are significantly intertwined with the fact that employee suffered preexisting lumbar spine pathology and disability. For example, it is unclear whether the treating surgeon, Dr. Keith Wilkey, would have recommended a bi-level fusion at L4-5 and L5-S1 after the work injury, if employee had not previously undergone a microdiscectomy at the level of L5-S1. Nevertheless, in order to apply the

Injury No.: 09-099109

Employee: Robin Barnes

- 4 -

appropriate analysis, we must try to isolate the effects of the work injury upon employee, and evaluate them as if he had never experienced any preexisting disability.

We acknowledge the arguments from both employee and the Second Injury Fund that the medical expert and vocational opinions offered in this case suggest that employee is permanently and totally disabled as a result of the last work injury. We are not persuaded:

In determining the extent of disability, the Commission may reject the uncontradicted opinion of a vocational expert. Additionally, while it is true that the Commission may not reject uncontradicted medical testimony in favor of the ALJ's opinion on the issue of medical causation[,] the extent of an employee's disability, and thus employability, is not an issue of medical causation, nor does it exclusively require medical testimony. The extent and percentage of disability is a finding of fact within the special province of the Industrial Commission. As a result, in determining the degree of a claimant's disability, the Commission may consider all the evidence and the reasonable inferences drawn from that evidence.

*Palmentere Bros. Cartage Serv. v. Wright*, 410 S.W.3d 685, 692 (Mo. App. 2013).

As the foregoing makes clear, we are not required to adopt the opinions from the vocational and medical experts in this case as to the question of the nature and extent of disability resulting from the November 2009 work injury.

Second, we note that the vocational and medical experts who testified in this case did not appear, in rendering their opinions, to apply the requisite "last injury in isolation" analysis. Instead, it appears that they (like the administrative law judge) focused solely on employee's overall level of functioning after the work injury—which, again, necessarily includes employee's disability referable to preexisting conditions. For example, Dr. Wilkey agreed to a leading question that proposed that a need for narcotic medication; a need to alternate sitting, standing, and walking; and a need to lie down during the day would be sufficient to render employee unable to work "without any preexisting conditions." *Transcript*, page 315. Yet, this question posed by counsel for the Second Injury Fund assumed facts not in evidence: that all of these circumstances and limitations resulted solely from the last work injury considered in isolation.

For this reason, we do not find persuasive the opinions from Dr. Wilkey or Timothy Kaver that suggest employee is permanently and totally disabled due to the last injury alone, as they did not appear to properly exclude the contributions from employee's preexisting disability from their assessments.

Instead, our own analysis on this question is as follows. Employee's last injury is comprised of the following specific medical conditions or pathology: a herniated disc at L4-5, and recurrent injury/aggravation of the disc at L5-S1. The record suggests, and we so find, that the primary sequelae from these medical conditions are low back pain, left leg radicular symptoms, and decreased sensation in the right leg. When we reconsider these sequelae in isolation, we are not convinced that they would result in this employee

suffering a total inability to compete for work in the open labor market, if his back was otherwise healthy, and if he was not suffering preexisting disability referable to the left shoulder.

We note the uncontested fact that employee was able to maintain heavy work for many years, despite a considerable prior low back disability that caused intermittent flare-ups of severe low back pain. If employee's only injury were that suffered on November 11, 2009, it stands to reason that employee would be capable, despite ongoing low back pain, left leg radicular symptoms, and right leg numbness, to return to some kind of gainful work in the open labor market.

Ultimately, we find that, as a result of the last work injury considered in isolation, employee suffered 35 % permanent partial disability of the body as a whole referable to the lumbar spine. We conclude that employer is liable for 140 weeks of permanent partial disability benefits, at the stipulated weekly permanent partial disability rate of $\ 422.97, for a total of $\ 59,215.80. We modify the administrative law judge's award on this point accordingly.

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed..." Id. The Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007)(citation omitted).

The administrative law judge thoroughly discussed employee's preexisting conditions of ill-being affecting his low back and left shoulder; we additionally find that employee suffered considerable permanent partial disability with respect to each condition. After careful consideration, we are convinced that employee's preexisting disability referable to these conditions was serious enough to constitute hindrances or obstacles to employment for purposes of $\S 287.220$. This is because we are convinced that employee's preexisting disabling conditions had the potential to combine with a future work injury to result in worse disability than would have resulted in the absence of this preexisting condition. See Wuebbeling v. West County Drywall, 898 S.W.2d 615, 620 (Mo. App. 1995).

We turn now to the question whether the Second Injury Fund is liable for permanent total disability benefits:

Fund liability for PTD under Section 287.220.1 occurs when [the employee] establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For [the employee] to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD.

Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014).

As we have thoroughly discussed above, $\S 287.220$ requires us to first determine the compensation liability of the employer for the last injury, considered alone. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003). If employee is permanently and totally disabled due to the last injury considered in isolation, the employer, not the Second Injury Fund, is responsible for the entire amount of compensation. Id.

We have found that the last injury did not render employee permanently and totally disabled in isolation, but instead resulted in a 35\% permanent partial disability of the body as a whole referable to the lumbar spine. Turning to the effects of the combination of the last work injury with employee's preexisting conditions of ill-being, however, we agree with the administrative law judge's finding that employee is now incapable of competing for work in the open labor market. Employee now suffers from bilateral radicular symptoms, and daily, debilitating low back pain that is overwhelmingly severe. He is now reliant on the daily use of prescription medications, including muscle relaxants and narcotics, to manage his symptoms. We find that employee's inability to compete for work is a product of the combination of employee's preexisting conditions of ill-being and the effects of the work injury.

We conclude, therefore, that the Second Injury Fund is liable for permanent total disability benefits.

In her award, the administrative law judge noted that, although no stipulations or issues with regard to employer's liability for temporary total disability were presented at trial, the parties stipulated and agreed, in their post-hearing briefs, that employer owes temporary total disability benefits to employee from the date of his November 2011 surgery through the date he reached maximum medical improvement. Accordingly, the administrative law judge incorporated the parties' post-hearing stipulation into her award, and ruled that employer is liable for temporary total disability benefits from November 15, 2011, through September 26, 2012, for a total of $\ 25,465.09.

Employee: Robin Barnes

- 7 -

Employer did not appeal any issue pertaining to its liability for temporary total disability benefits to the Commission. Given these circumstances, we find that the issue of employer's liability for temporary total disability benefits is not contested by the employer. At oral argument in this matter, employer's counsel indicated that, although employer does not contest the award of temporary total disability benefits, employer has yet to pay this sum to employee.

We supplement the administrative law judge's award to note that § 287.160.3 RSMo provides, in relevant part, as follows:

Where weekly benefit payments that are not being contested by the employer or his insurer are due, and if such weekly benefit payments are made more than thirty days after becoming due, the weekly benefit payments that are late shall be increased by ten percent simple interest per annum.

Because employer does not contest its liability for the weekly payment of temporary total disability benefits during the applicable time period, and because more than thirty days have elapsed since payment of such weekly benefits became due, we conclude that, pursuant to the foregoing provision, these late weekly benefit payments are hereby increased by ten percent simple interest per annum. Such interest shall continue to accrue until the date that the award of temporary total disability benefits is paid to employee.

**Conclusion**

We modify the award of the administrative law judge as to the issues of: (1) the nature and extent of employer's liability for permanent disability; and (2) the nature and extent of the Second Injury Fund's liability for permanent disability. In addition, we modify the administrative law judge's decision with regard to the parties' evidentiary objections, and supplement the award and decision with respect to the issue of interest on uncontested, past due weekly temporary total disability benefits.

Employer is liable for a total of $59,215.80 in permanent partial disability benefits.

The Second Injury Fund is liable for weekly permanent total disability benefits beginning on the date of maximum medical improvement, September 26, 2012, at the differential rate of $141.13 for 140 weeks, and thereafter at the stipulated weekly permanent total disability rate of $564.10. The weekly payments shall continue for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge Suzette Carlisle, issued August 16, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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

Any past due compensation, including but not limited to the past due temporary total disability benefits specifically discussed above, shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $15^{\text {th }}$ day of March 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: November 11, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis County
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: While walking and carrying a bus tire, Claimant felt a pop in his back.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Lumbar spine
14. Nature and extent of any permanent disability: Permanent Total Disability
15. Compensation paid to-date for temporary disability: $\ 0
16. Value necessary medical aid paid to date by employer/insurer? \$15,257.77

1. Value necessary medical aid not furnished by employer/insurer? $\ 180,391.01
2. Employee's average weekly wages: $\ 846.16
3. Weekly compensation rate: $\$ 564.10 / \ 422.97
4. Method wages computation: stipulated

1. Amount of compensation payable:

Unpaid medical expenses:

Unpaid temporary total disability benefits:

Permanent total disability benefits from Employer

beginning September 27, 2012, for $\ 564.10,

and continuing for Claimant's lifetime

$\ 205,856.10

TOTAL:

TO BE DETERMINED

1. Second Injury Fund liability: Denied
2. Future requirements awarded: See award

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney Crista Johnson.

Employee: Robin Barnes

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Park Express, LLC

Additional Party: Second Injury Fund (Denied)

Insurer: Accident Fund Insurance Company of America

Injury No.: 09-099109

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

On April 21, 2016, Mr. Robin Barnes, ("Claimant"), appeared at the Missouri Division of Workers' Compensation, St. Louis Office ("Division"). Claimant requested a hearing for a final award to determine the liability of Park Express, LLC "(Employer"), and Accident Fund Insurance Company of America ("Insurer"), for permanency, medical bills, and future medical treatment.

Attorney Crista Johnson appeared on behalf of Claimant. Attorney John Fox appeared on behalf of the Employer along with Attorney Daniel Luebbering. Assistant Attorney General Leslye Winslow appeared on behalf of the Second Injury Fund ("SIF"). At the close of the day, the case was continued for a second day of evidence to be presented.

On May 11, 2016, the hearing continued. All the same parties were present except for Attorney Daniel Luebbering. The record closed after presentation of the evidence on May 11, 2016. Court Reporter Lori Sanders recorded the proceedings.

The parties stipulated that on November 11, 2009:

1. Claimant was employed by Employer and sustained an accidental injury which arose out of and in the course of his employment in St. Louis County; ${ }^{1}$
2. Employer and Claimant operated under the Missouri Workers' Compensation Law; ${ }^{2}$
3. Employer's liability was insured by Accident Fund Insurance Company of America;
4. Employer had proper notice of an injury;
5. A claim for compensation was timely filed;

[^0]

[^0]: ${ }^{1}$ All references in this award to the Employer also refer to the Insurer unless otherwise stated.

${ }^{2}$ Unless otherwise stated, all statutory references are to RSMo 2005.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 09-099109

1. Claimant's average weekly wage was 846.16, with a rate of 564.10 for temporary total

disability (“TTD”) and permanent total disability benefits (“PTD”), and $422.97 for

permanent partial disability (“PPD”) benefits;

1. Employer paid no TTD benefits; and

1. Employer paid medical benefits totaling $15,257.77;

1. Claimant's injury at L4-5 to the left was medically causally related to the November 11,

2009, work injury; and

1. The parties further stipulate Claimant is seen on videotapes labeled Employer's Exhibits

P and Q, which were admitted into evidence at the hearing.

**ISSUES**

The parties identified eight issues for disposition:

1. Are Claimant's disc herniations at L4-5 to the right and L5-S1 medically causally related to

the November 11, 2009, work injury? Yes

1. Are the exhibits listed below admissible with respect to the attached medical bills: Exhibits

4-6-7-8-9-10-11-12-13-14-16-18 and 19? Yes

1. Is Employer responsible for unauthorized and unpaid medical expenses related to medical

treatment for L4-5 to the right and L5-S1 totaling $180,391.01? Yes

1. Is the Employer liable for future medical expenses related to treatment for L4-5 to the left,

L4-5 to the right, and L5-S1? Yes

1. Is Exhibit 17 is admissible? Yes

1. Has Claimant reached maximum medical improvement (“MMI”)? If so, when? Yes, 9/27/12

1. What is the nature and extent of the Employer's liability for PPD or PTD benefits, if any?

PTD benefits

1. What is the nature and extent of the SIF's liability for PPD or PTD benefits, if any? Denied

**EXHIBITS**

At the start of the hearing, a lengthy and contentious discussion was held over objections

raised to the admission of numerous exhibits. A number of rulings were reserved, incorporated

into the final award, and discussed below:

**Claimant:**

1 Mr. Timothy Kaver's deposition - Admitted no objections.

2 Dr. Keith Wilkey's deposition - Admitted except for Dr. Shawn Berkin's report dated

March 14, 2009, which is retained. The SIF objection is sustained.³

³ The report was offered five times by the Employer based on an admission against interest and a prior inconsistent

statement. The SIF objected to the admission of Dr. Berkin's report dated March 14, 2009 based on hearsay. In

this case, Dr. Berkin was not a treating physician or expert. His report was contained in the Division's records. The

SIF objection was sustained.

WC-52-B1 (6-81)

Page 4

Dr. Keith Wilkey's deposition - Admitted except for Dr. Berkin's report dated March 14, 2009, which is retained. The SIF objection is sustained.

Dr. Keith Wilkey's medical records and bills - Medical records admitted, medical bills admitted over Employer's objection.

Dr. George Schoedinger deposition - Admitted no objections.

Dr. Schoedinger's medical records - Medical records admitted, medical bills admitted over Employer's objection.

Dr. William Droege - Medical records and bills - Medical records admitted, medical bills admitted over Employer's objection.

Dr. Chad Shelton - Medical records and bills - Medical records admitted, medical bills admitted over Employer's objection.

9 Professional Imaging - Medical records and bills - Medical records admitted, medical bills admitted over Employer's objection.

10 Metro Imaging - Medical records and bills - Medical records admitted, medical bills admitted over Employer's objections.

11 Excel Imaging - Medical records and bills - Medical records admitted, medical bills admitted over Employer's objection.

12 Greater Missouri Imaging - Medical records and bills - Medical records admitted, medical bills admitted over Employer's objection.

St. Anthony's Medical Center - Medical records and bills - Medical records admitted, medical bills admitted Employer's objection.

ProRehab - Medical records and bills - Medical records admitted, medical bills admitted over Employer's objection.

Dr. Yolanda Bledsoe - Medical records and bills - Medical records admitted. No objections made.

16 Injured Workers Pharmacy Medical bills admitted over Employer's objection.

17 Lasting Impressions - Certified record and bills, admitted over Employer's objection.

18 Barnes-Jewish St. Peters Hospital - Medical records admitted, bills admitted over Employer's objection.

19 Employee's Summary of disputed medical bills- Admitted over Employer's objection.

20 Employee's Summary of rates and calculations - Admitted no objections.

21 Social Security Administration Decision - Admitted at hearing over Employer's objection. No offer of proof made.

A Sixty day letter to Attorney Crista Johnson - Dr. Lange's reports (2) - Admitted for medical records. Dr. Berkin's report is not admitted. Dr. Lange's report is admitted against the Employer but not the SIF. ${ }^{4}$

B Affidavit from Dr. Frank Petkovich - Admitted no objections.

C ProRehab certified medical records - Admitted no objections.

[^0]

[^0]: ${ }^{4}$ The Employer did not provide the SIF with a 60 day letter about Dr. Lange's report, therefore Employer agreed not to use the report against the SIF.

D Certified copy of Dr. Shawn Berkin's report dated March 14, 2009 is not admitted but is retained. The SIF objection is sustained. Offer of proof made on the record.

E Dr. Michael Spezia's certified medical records - Admitted no objections.

F Claim payment report - Admitted no objections.

G Deposition of Mr. Stephen Dolan - Admitted for the vocational report but not Dr. Berkin's report dated March 14, 2009, which is retained. The SIF objection is sustained.

H Deposition of Dr. James Doll - Admitted no objections.

I Deposition of Dr. David Lange - Admitted for medical records. The SIF objection is sustained to the admission of Dr. Berkin's report dated March 14, 2009, which is retained.

J Personnel file Normandy School District - Admitted no objections.

K Claim for Compensation - 2007 - Admitted no objections.

L Stipulation for Compromise Settlement - 07-081138. Admitted no objections.

M Claim for Compensation - 2000 - Admitted no objections.

N Stipulation for Compromise Settlement - 2000 injury - Admitted no objections.

O Notice of Mediation - Admitted no objections.

P DVD of surveillance - April 13, 14, and 16, 2016. Admitted no objections.

Q DVD of surveillance - May 9 and 10, 2016. Admitted no objections.

The SIF offered no Exhibits.

The Court took judicial notice of the claim for compensation and stipulation for compromise settlement, contained within the Division's file, but not Dr. Berkin's March 14, 2009 report. Any objections made during the hearing or contained in the depositions but not ruled on during the hearing or in this award are now overruled. To the extent there are marks or highlights contained in the exhibits, they were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

All evidence was reviewed, but only evidence that supports this award is discussed below.

At the time of the hearing, Claimant was 50 years old, married with six children, two of them dependent upon him for support, ages 14 and 15 . He appeared for the hearing using a cane. Claimant completed ten years of schooling but did not graduate or obtain a GED. He does not use a computer, has no specialized vocational training, and did not serve in the military.

Low back: Medical records in evidence show Claimant treated with Dr. Spezia for low back pain in May 1993 following a motor vehicle accident. In May 2000, Claimant injured his low back again in a motor vehicle accident while working for MoDOT. Immediately after the accident, Claimant had pain in his low back, left buttocks, and right leg.

In September 2000, Frank O. Petkovich, M.D. performed a laminectomy and microdiscectomy at L5-S1 to remove a herniated disc. Claimant missed work for about eight months and settled with his employer for 25\% PPD of his lumbar spine. In February 2001, Dr. Petkovich treated Claimant for a flare-up of low-back pain. Between 2000 and 2004, Claimant was involved in three or four automobile accidents.

In 2004, he received chiropractic treatment for whiplash sustained to his upper back and neck following one of the motor vehicle accidents. Following treatment, Claimant's symptoms resolved. He only received medical treatment for one of the motor vehicle accidents.

In 2005, Claimant testified an MRI was performed of his low back, but he continued to work full time and overtime. The MRI revealed an annular tear with disc protrusion, central and to the right, L5-S1 old right-sided laminotomy repair, and extruded disc fragments at L1-2 and L4-5 with desiccation at L1-2, L4-5, and L5-S1.

In 2007, Claimant informed Michael Spezia, D.O., he had a consultation for back surgery. Dr. Spezia treated Claimant again for low back pain in January 2008.

Left shoulder: In 2007, while cleaning a concrete truck for Ready Mix, Claimant fell and injured his left shoulder. Dr. Emanuel performed a left rotator cuff surgery with subacromial decompression and resection of the distal clavicle, followed by physical therapy. In October, 2008, medical records show Claimant experienced severe back pain which prevented him from getting physical therapy for a left shoulder injury. Claimant reported back pain made it difficult for him to stand more than a few minutes.

After shoulder treatment ended, a work hardening re-evaluation in November 2008 revealed Claimant could work in the Medium demand level with some function in the Heavy demand level. Claimant settled with his prior employer for 25 % PPD of the left shoulder. Ongoing problems leading up to 2009 included pain and weakness. After Claimant's medical release, he received no additional treatment for his left shoulder.

Prior to 2009, Claimant performed heavy labor work on a full time basis without accommodation. Claimant continued to work full duty with no restrictions, and occasional flare-

ups with overexertion, with recovery after three days' rest. ${ }^{5}$ He was relatively healthy, free from high blood pressure and diabetes, and could do whatever he chose to do. However, he stopped fishing and performing yard work before 2009.

Claimant held the following jobs before working for Employer: Normandy Bowling Alley, Johnny on the Spot, BFI Waste Systems, MoDOT, and Riley Ready Mix. For several months, Claimant operated his own mechanic shop and supervised one employee.

In January 2009, Employer hired Claimant as a mechanic to maintain a fleet of shuttle buses that travel to and from the airport. He made repairs, changed oil and tires, performed brake jobs, and worked on transmissions. Claimant lifted turbo coolers, transmissions, and other heavy objects. Also, he worked on rear ends and springs, and installed tires on rims. He kept the facility clean and organized. Claimant was the only fleet mechanic employed by Employer and he worked 40 to 60 hours per week, and took calls whenever there was a need.

While working for Employer, Claimant maintained an auto repair shop for about four months and hired an employee to handle the business. Leading up to November 2009, Claimant worked in the medium to heavy level of labor.

While walking and carrying a bus tire on November 11, 2009, Claimant felt a pop in his back, which caused him to fall to the floor. Immediately, Claimant notified the supervisor on duty. BarnesCare Westport treated Claimant for severe pain in his low back and buttocks that radiated into his right leg. Medical treatment included medication and physical therapy.

By December 2009, Claimant's pain had increased to include two inches above his waist, hips, and thighs, and radiated into his left leg and foot. Right leg pain was greater than left leg pain. Dr. Doll ordered two MRIs, prescribed three epidural steroid injections and physical therapy, and imposed the following work restrictions: No lifting over 10 pounds, no repetitive bending and squatting. Eventually, Dr. Doll released Claimant from medical care; however, he continued to have pain.

Claimant asked Employer for additional medical treatment, but Employer declined to provide more treatment. Claimant sought treatment on his own from Dr. Droege on February 3, 2010, for pain to his low back, hips, thighs, and legs into his feet. Dr. Droege ordered two

[^0]

[^0]: ${ }^{5}$ During Claimant's deposition on February 5, 2015, Claimant testified he did not have trouble doing his job after low back surgery in 2000 and leading up to 2009. During the hearing, Employer made an offer of proof regarding Claimant's October 13, 2010, deposition where he told Dr. Berkin in January, 2009, he was not having problems with his low back. The offer of proof is not considered in the evidence presented during the hearing.

additional MRIs on February 4, 2010, and February 19, 2010, physical therapy, and referred Claimant to Dr. George Schoedinger, a neurosurgeon.

Claimant saw Dr. Schoedinger May 9, 2011. Dr. Schoedinger took Claimant off work on May 25, 2011, ordered a myelogram and discogram and recommended surgery at two levels of his lower back. Dr. Schoedinger retired, and Claimant continued medical treatment with Dr. Wilkey on July 5, 2011. Claimant did not recall telling Dr. Wilkey he had no radicular pain. Dr. Wilkey discussed surgery, which Claimant initially declined, but later changed his mind due to increased pain. Dr. Wilkey recommended another discogram, ${ }^{6}$ and then recommended a twolevel surgery on Claimant's lumbar spine.

However, Employer only authorized repair at one level and a cleanup at the second level. Lumbar surgery was performed at Barnes-Jewish Hospital in St. Peters on November 15, 2011, followed by physical therapy at ProRehab. Dr. Droege provided physical therapy. The procedure relieved numbness for a while, but all symptoms have returned over time. Dr. Wilkey continues to treat Claimant and prescribe pain medication. Claimant last saw Dr. Wilkey on September 29, 2015. ${ }^{7}$

In April 2010, Claimant testified Employer terminated him after Dr. Droege recommended more treatment. ${ }^{8}$

Claimant received unemployment benefits for 14 weeks before he started working fulltime for the Normandy School District ("District") as a mechanic on August 2, 2010. Claimant worked for the District eight hours per day, five days a week. He performed oil changes on District school buses, and maintained vehicles for other districts.

To change the oil, buses were driven over a pit. Claimant was inside the pit. He drained the oil and changed filters. For other district vehicles, Claimant leaned over the engine to change belts, alternators, and brakes on F-150 pickup trucks and security vehicles. The heaviest item Claimant lifted for the District was an oil pan. A machine lifted tires for Claimant. Claimant testified the District permitted Claimant to take frequent breaks, leave work early or take off entirely because of back pain.

On August 9, 2011, the District approved Claimant's time off from work to have surgery under the Family and Medical Leave Act. He expected to return to work in 12 weeks. After surgery, Claimant testified he did not return to the District because he did not believe he could

[^0]

[^0]: ${ }^{6} Dr. Chad Shelton ordered the second discogram.

{ }^{7}$ Claimant testified he told BarnesCare, Dr. Doll, Dr. Droege, and Dr. Schoedinger about his back surgery in 2000.

${ }^{8}$ Mr. Kaver, Claimant's vocational expert, testified Claimant told him Employer terminated him because he could not obtain a medical release to full duty.

perform the work due to ongoing pain. ${ }^{9}$ Claimant worked for the District from April 2010 to November 2011, when surgery was performed.

On April 4, 2013, the District notified Claimant that no updates had been received about his ability to work since May 21, 2012. Claimant was instructed to contact the office by April 9, 2013, or his position would be considered abandoned. On November 15, 2013, the District notified Claimant that his job had not been eliminated. No further personnel records are in evidence.

Claimant's current low back symptoms include: Pain in his low back, hips, and legs, and bilateral leg weakness that causes his legs to give away, which causes him to fall. For the past three months, he keeps a cane in his car and at home in case he needs it. Claimant's problems continue to worsen. Claimant has muscle spasms in his back and legs.

The following activities increase Claimant's pain level: Buttock pain when he moves his left leg, excessive walking, sitting on the toilet, climbing stairs, standing, getting in and out of a vehicle, bending and twisting and sexual relations. He cannot sleep on his back or his side due to pain in his back and hip. He cannot play with his grandchildren. It takes Claimant longer to dress or brush his teeth due. He wears jogging pants and slip-on shoes because they are easier to handle. Typically, Claimant hurts all over when he gets up.

After low-back surgery in 2011, Claimant began to recline during the day. He alternates between sitting and reclining. Claimant also developed problems sleeping due to pain in his low back and hips. Claimant rated his pain level a 7 out of 10 on a good day, and 10 out of 10 on bad days, where a pain level of 1 is almost no pain, and a 10 is very severe pain. Claimant stays in bed because of pain two to three days during a two-week period. Claimant cooks some meals for his wife and himself. He washes laundry with the help of his daughter. He does not perform any other household chores. Claimant's children help with cooking and housework.

In the past, Claimant's symptoms waxed and waned. Recently, Claimant's pain is constant. Claimant tires easily because of pain. To relieve pain, he reclines three to four times per day, and spends most of the day lying down. Some days Claimant does not get out of bed due to pain. Medications include: Hydrocodone, Flexeril, and Tylenol. Claimant has dizziness, constipation and nausea from the medication. The most weight Claimant can lift is a gallon of milk.

Claimant testified he experienced depression because of his limited activities. He relies on his children to assist his wife who suffers from seizures, fibromyalgia, and strokes. He stopped taking medication for depression due to the side effects, such as constipation.

[^0]

[^0]: ${ }^{9}$ Claimant told Mr. Kaver he did not return to work because he became dependent on a walking cane and Dr. Wilkey did not release him.

Claimant has been awarded Social Security Disability benefits and he receives Medicare. Claimant does not believe he can return to work in any capacity because he does not believe employers would permit him to take off or sit and lay down as needed when he is having a bad day.

Lasting Impressions Home Remodel Center, Ltd. evaluated Claimant's home to recommend accommodations to Claimant to live safe and comfortably in his home. They recommended modifications to the following areas of the home: 1) Installation of a safety bar in the hall bathroom and master bathroom, and 2) Remove carpet from the basement staircase and install new carpet, a handrail, and iron balusters. The recommended cost to modify Claimant's home is $\ 5,716.51.

Initially, Claimant received physical therapy at BarnesCare Westport for sharp pain in his back, leg and neck after picking up a tire that weighed 50 to 80 pounds. After examination, Claimant was diagnosed with a lumbar sprain and possible disc displacement, placed on restricted duty, restricted to lifting no more than 10 pounds, and prescribed physical therapy and medication.

On November 25, 2009, an MRI and x-rays were performed. The MRI revealed disc degeneration at L1-L2, L4-5, and L5-S1, postsurgical changes at L5-S1 right, epidural scarring vs. recurrent disc herniation on the right, facet joint degeneration at multiple levels, spinal stenosis at L1-L2, and epidural lipomatosis which compromises the canal. A referral was made to a physiatrist.

James T. Doll, D.O., a physiatrist board certified in physical medicine and rehabilitation, testified at the request of the Employer. Claimant reported pain in his low back and both legs, right greater than left. Examination revealed limited range of motion in all planes, lumbar pain with side bending to the right and flexing forward, and straight leg raise was positive for lowback pain on the right and leg pain during bilateral straight leg raise tests.

Dr. Doll opined the L5-S1 disc was believed to be the center of Claimant's problems for several reasons. First, a diminished plantar flexor reflex on the right affects the L5-S1 disc. Second, Claimant's symptoms were on the right, where he had prior surgery; therefore, it may be more easily aggravated during an event. Third, the MRI showed epidural scarring ${ }^{10}$ vs. recurrent disc herniation on the right, which points to structural changes that narrow the space around the nerve and make irritation more difficult to heal or take longer and more effort to heal.

[^0]

[^0]: ${ }^{10}$ Dr. Doll testified epidural scarring would be consistent with Claimant's surgery in 2000.

Dr. Doll examined Claimant on December 14, 2009, reviewed multiple medical records and MRIs, and concluded the November 11, 2009, work injury was not the prevailing factor in causing his L4-5 disc condition, inability to work, or need for more treatment. On December 21, 2009, Dr. Doll noted a negative straight leg raise on the left, positive on the right, which confirmed his opinion of a right lumbar radiculopathy.

Dr. Doll prescribed medication and several injections, first at L4-5 and then L5-S1. The second injection helped Dr. Doll identify the problem area as L5-S1 because Claimant received much right leg relief. This result was confirmed by repeat straight leg raise which was negative on the left with mild discomfort on the right.

However, Dr. Doll testified Claimant reported an increase in left leg complaints at the next visit, which presented a "mismatch" because he injected the right side and the left side became more symptomatic. Dr. Doll noted that if a patient had a disc herniation that pushed on a nerve root, the roots are on one side or the other. So if the nerve is pushed on the right side, symptoms will be on that side of the body. Therefore, Dr. Doll concluded Claimant's left leg symptoms were not medically causally related to the work injury on November 11, 2009.

Dr. Doll interpreted the MRI report dated January 26, 2010, to show L5-S1 disc bulge to the right, laminotomy defect consistent with surgery, and small soft tissue intensity to the right adjacent to the right S1 nerve root. Also, he found mild epidural fibrosis on the right adjacent to the S1 root without root displacement.

Dr. Doll testified there was no new disc herniation on the right at either L4-5 or L5-S1. He compared the November 2009 MRI report to the January 2010 report with contrast and found the 2010 report confirmed epidural fibrosis existed, which is scar tissue from the previous surgery. Dr. Doll concluded Claimant's ongoing pain in late January 2010 was related to the preexisting degenerative condition and referred Claimant to his personal physician for additional care.

Dr. Doll testified Claimant sustained inflammation to the L5-S1 disc from the November 2009 injury and the injections were appropriate to treat the inflammation. However, Dr. Doll concluded the MRIs contained no change in the disc, ligament, scar tissue or bony structures. Dr. Doll released Claimant at MMI on January 28, 2010, and returned him to full activities. He found Claimant sustained no disability from the work injury but found 9 % PPD of the lumbar spine for the preexisting low-back condition.

Dr. Droege, a chiropractor, referred Claimant to George R. Schoedinger, III., M.D, a board certified orthopedic surgeon. He performed one independent medical examination ("IME") and wrote two reports. Dr. Schoedinger initially examined Claimant on March 15, 2010.

Claimant gave a history of back and leg pain after lifting a tire that weighed 50 to 80 pounds and feeling a pop in his low back. ${ }^{11}$ Since surgery in 2000, Claimant reported catching his right toe on rough or uneven surfaces. Additional complaints included bilateral leg weakness with increased symptoms when he coughs, sneezes, or strains; left leg pain and tingling on the front of his left thigh which started after the third epidural injection he received from Dr. Doll.

Examination revealed decreased sensation on the lateral side of the right thigh, calf and foot, and inner distal calf and foot. Also, absent ankle jerk on the right and depressed ankle jerk on the left. ${ }^{12}$ Dr. Schoedinger testified these findings typically relate to L4-5.

Dr. Schoedinger reviewed an MRI report and film dated July 26, 2005, an MRI film dated February 4, 2010, and MRI films dated January 26, 2010 and November 25, 2009. Dr. Schoedinger diagnosed a disc rupture at L4-5, and retained disc material at L5-S1, and opined the November 2009 work injury was the prevailing factor that injured Claimant's lumbar spine and caused the need for medical treatment.

Dr. Schoedinger identified retained disc material fragment at L5-S1 to the right, central disc protrusion at L4-5, ${ }^{13}$ and scar formation, which the January 26, 2010, radiology report does not discuss. He further opined the disc fragment existed before the 2009 work injury, but may have been aggravated or enlarged as a result of the 2009 injury. Based on the 2005 MRI, Dr. Schoedinger concluded Claimant had an abnormality at L4-5 along with the retained fragment at L5-S1. Furthermore, he concluded one or both of the discs may have been injured in 2005, but Claimant's symptoms improved after the 2009 injury.

Due to Claimant's persistent pain, Dr. Schoedinger recommended a myelogram, post myelogram CT, discogram, and surgery at L4-5 and L5-S1, if needed. He believed the discogram would reveal whether Claimant's symptoms came from L4-5, L5-S1 or both. He further testified the right-sided lesion could produce left-sided complaints. But if there is another lesion at L4-5, he predicted L5-S1 was the problem due to scarring at L5-S1. He could not be certain without more tests.

Dr. Schoedinger testified Claimant has "tethering of neural elements on the right side." Therefore, anything above the lesion could produce right-sided symptoms. The fact that Claimant had an operation in 2000 made it difficult to conclude he would have left sided symptoms before the third epidural injection following the November 2009 accident. Dr.

[^0]

[^0]: ${ }^{11}$ Claimant gave Dr. Schoedinger a history of treating with Dr. Petkovich conservatively in the past for a nonworkrelated injury to his low back. Claimant reported good recovery after treatment.

${ }^{12}$ Given these examination findings and Claimant's ability to work leading up to November 11, 2009, Dr. Schoedinger concluded the accident accelerated the disease process and more likely than not caused the changes found during examination. Also, he opined the lack of ankle jerks and sensory changes may involve a lesion at L4-5. ${ }^{13}$ Dr. Schoedinger opined retained disc material was seen on the 2005 MRI. He did not opine whether the disc pathology at L4-5 was to the left or right.

Schoedinger could not conclude with certainty because the surgery in 2000 repaired a central lesion which can result in symptoms on either side or both.

Dr. Schoedinger's review of medical records from Missouri Baptist Hospital shows Dr. Petkovich performed a laminectomy and discectomy with removal of disc material at L5-S1. The radiology report of the 2005 MRI showed right-sided laminar removed at L5-S1, probable residual or recurrent disc fragment, intruding on the right S1 nerve root. Dr. Schoedinger concluded the intrusion would cause pain in the back of the leg if symptomatic. He was unaware of Claimant having low-back symptoms between 2005 and 2009.

After a review of the 2009 MRI, Dr. Schoedinger noted the same pathology seen on the 2005 MRI, a lesion at L4-5, and abnormality at L5-S1. Given Claimant's bilateral leg complaints, Dr. Schoedinger concluded the tire injury aggravated a preexisting problem at L5-S1 with injury extended to L4-5. Although Claimant had a history of back and leg pain before November 2009, Dr. Schoedinger had no knowledge that Claimant could not function.

Dr. Schoedinger further concluded the November 2009 injury was the "prevailing cause" of Claimant's increased symptoms at L5-S1 and new symptoms at L4-5 in the form of an aggravation. ${ }^{14}$

A three-level discogram on June 7, 2011, was positive at L4-5 and L5-S1 for severe lowback pain and annular tear at L4-5. The pain at both levels was similar to pre-procedure symptoms. Dr. Schoedinger diagnosed the findings as posterior disc protrusions at L4-5 and L5S1.

On January18, 2011, Dr. Kitchens performed an IME at Employer's request and placed Claimant at MMI. He interpreted the November 25, 2009, MRI of the lumbar spine to show disc degeneration at L1-2, L4-5 and L5-S1 with post-surgical changes at L5-S1 to the right, and epidural scarring vs. recurrent disc herniation on the right. A January 26, 2010, MRI revealed degeneration at multiple levels and epidural lipomatosis in particular at L4-5 and L5-S1.

Dr. Kitchens found no disc herniation on the MRI, and no signs of radiculopathy. A lumbar myelography and post myelographic CT scan dated June 6, 2011, revealed extradural defects at L4-5 and L5-S1. He diagnosed chronic degenerative disc disease and chronic lowback pain. Dr. Kitchens concluded the November 11, 2009; work accident was not the prevailing factor that caused degenerative disc disease or chronic low-back pain. He further opined Claimant had reached MMI from the work injury, required no additional medical treatment, and sustained no permanent disability.

[^0]

[^0]: ${ }^{14}$ Dr. Schoedinger testified Claimant's L4-5 disc rupture had been there a long time.

Keith D. Wilkey, M.D., initially examined Claimant at the request of his attorney on July 5, 2011. Complaints included back pain and left leg radiculopathy to the left foot and right buttock pain with numbness on the bottom of the foot. To date, Claimant's treatment included chiropractic care and medication, including hydrocodone, and a surgical recommendation from Dr. Schoedinger.

A CT myelogram and MRI showed a disc bulge at L4-5 with desiccation, and L5-S1 lateral recess and foraminal disc herniation, and paracentral herniation to the right at L1-2. Dr. Wilkey diagnosed recurrent disc herniation at L5-S1, disc herniation at L4-5 and possible disc herniation at L1-2. Options included surgery, which Claimant declined. Dr. Wilkey recommended weight reduction.

In August 2011, Claimant reported increased pain which caused him to miss work. Dr. Wilkey interpreted the MRI to show recurrent herniation to the right at L5-S1, small to moderate size, a broad-based central disc herniation at L4-5, an insignificant herniation at L1-2 with desiccation at other levels. He further opined the herniations at L4-5 and L5-S1 were causally related to November 2009 work injury. However, Dr. Wilkey concluded the disc disease at upper levels was not related to the November 2009 work injury.

In September 2011, a discogram, CT scan and MRI revealed recurrent herniated disc to the right at L5-S1 and broad based central disc herniation at L4-5. Dr. Wilkey recommended a two-level fusion and concluded the L4-5 and L5-S1 discs were related to the injury Claimant sustained on November 11, 2009. Further, he opined the November 2009 injured "preexisting desiccated discs at L4-5 and L5-S1, which resulted in derangement and was only partially treated."

The Insurer authorized a one-level fusion for recurrent disc herniation at L5-S1. On November 15, 2011, Dr. Wilkey performed a revision decompression at L4-5 and L5-S1, and a fusion at L5-S1. The postoperative diagnoses were left leg radiculopathy, herniated disc at L4-5, recurrent herniated disc right at L5-S1 and internal disc derangement at L5-S1 and L4-5. Following surgery, physical therapy and medication were prescribed.

On September 26, 2012, Dr. Wilkey opined Claimant had reached MMI and rated 60\% PPD of the lumbar spine for the November 2009 work injury. Dr. Wilkey testified the rating accounted for all of Claimant's current low-back symptoms and medications. He did not review medical records for the preexisting low-back injury. He testified Claimant had disability from the back injury in 2000, but did not know how much disability he had. However, Dr. Wilkey concluded it did not have a significant impact on Claimant's ability to function based on Claimant's history of no complaints leading up to 2009.

On May 8, 2012, Claimant treated with Yolanda E. Bledsoe, M.D. for low-back pain.

In June 2013, Dr. Wilkey opined Claimant may need future doctor's appointments, narcotic medication with biannual follow-up, liver and kidney testing, and pain management at a cost of $\ 1,000.00 per year. Physical therapy and chiropractor treatment may cost up to $\ 5,000.00. Dr. Wilkey could not say Claimant would need more surgery in the future. However, if needed it could cost up to $\ 100,000.00.

Dr. Wilkey imposed the following restrictions: No lifting over 20 pounds, and perform the following activities as tolerated: Bend, twist, push/pull, sit/ stand and drive, and be able to lay and /or recline for 20 minutes every four hours worked.

On March 3, 2014, Dr. Wilkey imposed the following restrictions: Work eight hours per day, five days a week, in a sedentary position provided he is able to lie or recline for 20 minutes every four hours worked.

On March 10, 2014, Dr. Wilkey concluded Claimant had reached MMI and opined Claimant would need vocational rehab, and updated the restrictions to include the ability to lie down for 15 minutes every two hours, and change positions as often.

After an unsuccessful attempt to wean Claimant from narcotic medication in September 2014, Dr. Wilkey concluded Claimant will be dependent on narcotics for the rest of his life. Dr. Wilkey opined his medical charges related to the November 2009 injury were reasonable, customary, and necessary to cure and relieve Claimant the effects of the work injury.

Dr. Wilkey testified Claimant gave him a history of no low-back problems following surgery in 2000. During cross-examination, Dr. Wilkey reviewed a medical report that revealed Claimant had low-back pain in 2005 that felt like the pain he had in 2000. Dr. Wilkey conceded a 2005 MRI showed herniated discs at L4-5 and L5-S1 with desiccation at L1-2, L4-5, and L5S1, and nerve impingement. Claimant reported he "had surgery in 2000 and feels like his pain returned just like previously." Therefore, Dr. Wilkey conceded Claimant had back pain with radiation into his right leg in 2005. However, Dr. Wilkey concluded the 2005 report and MRI did not change his opinion because Claimant gave a history that he did not recall having lowback complaints for three or four years after the 2005 incident.

Prior to Dr. Wilkey's first deposition, he did not review reports from Michael Spezia, M.D regarding low-back treatment he provided to Claimant. In September, 2007, Claimant reported a recent low-back surgery consultation for disability, and reported one of his medications as Naproxen. Claimant did not tell Dr. Wilkey he had a surgical consultation for his low back before the 2009 work injury. Dr. Wilkey testified he could not opine whether a surgical consultation would affect his causation opinion without reviewing the records.

In January 2008, Claimant sought treatment for low-back pain, and listed his medications as Flexeril, Vicodin, and Celebrex. However, Dr. Wilkey did not change his causation opinion because this type of complaint is commonly made by workers who perform heavy labor.

Also, ProRehab records dated October 7, 2008, show Claimant reported "severe lower back pain the first week of October which has prevented him from standing for any length of time. ${ }^{15}$ This has prevented him from completing any strength training in his shoulder since his visit of September 29, 2008." Another note from October 7, 2008 states, "Claimant was progressing very well through his strengthening regimen until he suffered an exacerbation of lower back complaints." Claimant was identified as having "infrequent attendance due to exacerbation of back pain and attending to his wife. ${ }^{16}$

Prior to deposition, Dr. Wilkey did not review the medical records or the medical history contained in ProRehab records dated October 28, 2008, which stated Claimant's back still gives out at times since surgery in 2001.

Dr. Wilkey did not review a ProRehab report dated November 10, 2008, where Claimant gave a history of a lumbar fusion in 2001 and was told he needed another surgery to his low back. Dr. Wilkey testified that 95 % of his surgical consultations do not get surgical recommendations. During physical therapy, Claimant reported low-back pain into his left leg from a 2001 injury. After a review of ProRehab records, Dr. Wilkey acknowledged Claimant had experienced intermittent pain. Dr. Wilkey had no comment about the affect of the discomfort or Claimant's back giving out on causation for the November 2009 work injury.

Dr. Wilkey testified that his causation opinion would change if a physician told Claimant in 2008 that he needed another back surgery. Dr. Wilkey testified Claimant's history to Dr. Spezia contradicted the history Claimant gave him. However, Dr. Wilkey testified the records from ProRehab and Dr. Spezia were significant but he had not reviewed the records prior to deposition and could not comment on the extent of Claimant's preexisting disability without reviewing the records and talking to Claimant.

David R. Lange, M.D., performed one IME on May 20, 2014, wrote two reports and testified at the Employer's request. Examination revealed an absent right ankle jerk, which Dr. Lange found to be consistent with the 2000 injury at L5-S1. He interpreted the February 4, 2010 MRI to show degeneration at L1-2 and L4-5 with herniation to the left, and post-operative changes at L5-S1 with degeneration. Dr. Lange noted the L4-5 herniation was consistent with Claimant's symptoms. He noted degenerative changes at L5-S1.

Dr. Lange interpreted the August 28, 2000, MRI to show disc herniation at L5-S1 to the right and poor filling of the right L5 nerve root sheath. He noted Dr. Andrew Wayne reported on September 25, 2007, that Claimant continued to have low-back problems seven years after surgery in $2000 .{ }^{17}$

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[^0]: ${ }^{15} Claimant reported low-back pain while treating for a shoulder injury.

{ }^{16} Medical records in evidence show Claimant attended 21 of 27 sessions.

{ }^{17}$ Dr. Wayne noted a chronic history of low-back problems and treatment since back surgery in 2000.

Based on past history and examination, Dr. Lange diagnosed: 1) history of L5-S1 disc herniation, surgically treated in 2000, 2) A small herniation at L4-5 to the left, 3) Post L5-S1 fusion in 2011, and 4) Post L4-5 laminotomy partial discectomy to the left in 2011. Dr. Lange's review of the February 5, 2010 MRI found no acute herniation. He noted the 2005 MRI was identical to the February 4, 2010 MRI at L5-S1.

Dr. Lange opined the need for surgery was caused by the preexisting condition at L5-S1 based on the following: 1) Prior low back herniation to the right in 2000, 2) Symptoms eight months before the November 11, 2009 work injury, 3) MRI after the 2009 work injury showed a symptomatic left side, consistent with Claimant's reported symptoms.

Dr. Lange reviewed a MRI dated July 26, 2005, which showed post-operative changes at L5-S1 and degeneration at L4-5 to the left. Dr. Lange noted the 2005 MRI at L5-S1 was identical to the February 4, 2010 MRI. He could not apportion the restrictions between the medical conditions in 2005 and 2010.

Dr. Lange concluded the November 2009 accident was the prevailing factor that caused a herniation at L4-5. He noted Claimant did not have left leg symptoms before November 2009. Also, the MRI after the November 2009 incident showed a herniation to the left in the location that would produce symptoms Claimant reported. Also, an MRI before November 2009 did not show a herniation to the left at L4-5. The disc was not "significantly symptomatic" before November 2009. Therefore, Dr. Lange concluded the herniation seen in 2010 was new. He concluded the surgery performed by Dr. Wilkey was appropriate to relieve Claimant's symptoms at L4-5.

However, Dr. Lange concluded Claimant had significant permanent disability before the November 11, 2009 injury, therefore, the L5-S1 fusion performed by Dr. Wilkey was related to the old lumbar condition, not the accident in November 2009. He noted the L5-S1 disc was "anything but normal" at the time of the November 2009 accident. The 2005 MRI revealed a postoperative laminotomy defect on the right at L5-S1. ${ }^{18}$ He found no acute/recurrent herniation at L5-S1 on the diagnostic studies taken after the November 2009 accident.

Dr. Lange agreed with Dr. Wilkey that Claimant reached MMI in September 2012 and the light demand level restrictions of occasional lifting to 20 pounds, with less weight more frequently. Dr. Lange concluded that Dr. Wilkey's restriction applied more to the L5-S1 level than to the L4-5 level, but saw no way to apportion the restrictions between the compensable L45 injury and the fusion to the old injury.

Dr. Lange rated 15\% PPD of the lumbar spine for the L4-5 injury and 25\% PPD for the preexisting herniation at L5-S1. He further opined the treatment Claimant received for the L4-5

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[^0]: ${ }^{18}$ Dr. Lange opined the fact that the pathology is to the right of the midline is important. Dr. Lange concluded the February 4, 2010, MRI failed to show a herniation to the right at L5-S1, despite the radiologist's opinion to the contrary. Also, Dr. Lange concluded the 2005 and 2010 MRIs were identical.

injury was reasonable and necessary to cure the lumbar condition. In addition, the fusion at L5S1 was not reasonable and necessary to cure Claimant's work-related lumbar condition. Dr. Lange further opined Claimant would need medication for life, but referred to Claimant's family physician for the details.

On September 29, 2015, Amber L. Abeln, APRN-BC, again placed Claimant at MMI with instructions to follow up with Dr. Shelton.

Dr. Wilkey was deposed again on October 22, 2015 to address three questions raised during cross-examination in the first deposition because he was presented with medical records he had not reviewed prior to the deposition. He reinterviewed Claimant, reviewed medical records, and wrote a report dated August 11, 2015.

First, Dr. Wilkey testified Claimant gave a history of a "self-limiting" event in 2005 that affected his low back. He obtained an MRI and treated with Dr. Petkovich. Claimant has no recollection that Dr. Petkovich told him he needed repeat surgery. Dr. Wilkey did not review any records from Dr. Petkovich and he relied on Claimant's history that the condition only lasted a few weeks or months. However, Dr. Wilkey was not surprised by flare-ups since Claimant worked as a laborer.

Second, Dr. Wilkey spoke to Claimant about medical records which show Dr. Spezia prescribed Flexeril, Vicodin, and Celebrex for his low back in early 2008. Claimant did not recall the back incident or taking the medicine. However, Claimant did not return for follow-up treatment.

Third, Claimant informed Dr. Wilkey that he reported upper back problems to his physical therapist in October 2008, not low back problems. Dr. Wilkey concluded Claimant missed four sessions because of upper back pain and his wife's medical problems.

Dr. Wilkey concluded the events in 2005 and 2008 were self-limiting aggravations with no restrictions imposed or work loss. Dr. Wilkey rated 65\% PPD of the lumbar spine for the November 2009 work injury and 25\% PPD of the lumbar spine for the low-back injury in 2000.

Claimant treated with the office of Chad C. Shelton, M.D. for pain management for lowback pain on between September 22, 2011, and September 28, 2015. Diagnosis included thoracic or lumbosacral neuritis or radiculitis, degeneration of lumbar disc. Discogram results from September 11, 2011, show back pain at L4-5 with leakage of dye to the left side consistent with annular tear, and pain at L5-S1. Treatment included medication.

Mr. Jim Donahue is a private investigator hired by Employer to perform surveillance of Claimant and he testified at the hearing. On April 13 and 14, Mr. Donahue operated a Sony hand held camera, videotaped Claimant at his home, and recorded his level of daily activity. Mr. Donahue gave the videotape to Mr. Martin Hickle who downloaded the video onto two DVDs. Mr. Donahue testified he reviewed the videos and they accurately reflect his observations on those dates. To Mr. Donahue's knowledge, the contents of the videotapes were not edited or altered. During the hearing, the DVDs were in the possession of Mr. Hickle.

Mr. Martin Hickle, another private investigator hired by Employer, performed surveillance of Claimant on April 16, 2016 and May 9 and 10, 2016. Mr. Hickle operated a Sony hand held camera to record Claimant's activities and downloaded the surveillance onto DVDs.

I reviewed the DVDs and observed Claimant carrying several bags, walking around outside his house without a cane, bending over to handle a hose, waving his hands while talking to a female outside his home, and walking to a car without his cane.

After viewing the videotapes, Claimant testified the woman on the video is his daughter. She had shopped and Claimant took the grocery bags in the house. The bags weighed about 5 pounds each. Also, he picked up the watering hose and turned it off because someone left the water running. He was not watering the bushes. Claimant keeps one cane in the car and one in the house. Claimant brought trash out of the house and emptied it in a receptacle. The bag of trash weighed about 7 pounds. His son usually performs this task but the can was full and his son was at school. Claimant did not recall standing over the car, but he recalled his son working on his car and asked Claimant a question. Claimant was sitting in the garage, and he walked over to the car, pointed and answered his son.

Mr. Timothy Kaver is a certified rehabilitation counselor. Mr. Kaver interviewed Claimant twice, administered tests, reviewed medical records, wrote four reports and testified on behalf of Claimant at the request of his attorney. During both interviews Claimant walked slowly, with a limp and used a cane. Mr. Timothy Kaver administered the Wide Range Achievement Test ("WRAT") and the Adult Basic Learning Examination, ("ABLE"). The combination of the two tests develops a grade equivalency level. During testing, Mr. Kaver observed Claimant move about the room and stretch.

Mr. Kaver listed jobs Claimant may be able to perform within Dr. Wilkey's restrictions, including parking lot attendant. Mr. Kaver concluded Claimant could not perform these jobs because he does not have a GED and he scored low on the tests.

In Mr. Kaver's December 12, 2012 report, he concluded Claimant was unemployable in the open labor market as a result of Claimant's November 2009 work injury, based on a letter from Dr. Wilkey dated March 9, 2012, and medical restrictions he imposed.

Even if you assume Claimant could work at the sedentary level, Mr. Kaver concluded Claimant would be unsuccessful because he lacks a GED. It may take Claimant up to two years to obtain a GED. The GED was not needed for medium to heavy labor work. Also, Mr. Kaver concluded no employee would continue to be employed if they needed to lie down frequently during the work day, and missed 24 work days per year.

Mr. Kaver noted Claimant's history of no permanent restrictions before November 2009 is consistent with the medical records he reviewed. Mr. Kaver opined Claimant would remain unemployable unless he obtained a GED and computer skills.

In Mr. Kaver's December 17, 2012 report, he concluded Claimant could not maintain employment based on Dr. Wilkey's prediction that Claimant would miss 24 days from work per year due to pain. Also, Dr. Wilkey limited Claimant to sitting/standing for two hours during an eight-hour shift, breaks every two hours, lifting less than 10 pounds frequently, 20 pounds occasionally, rarely twisting, stooping/bending, crouching, climbing ladders or stairs.

On February 11, 2014, Mr. Kaver reinterviewed Claimant and updated his opinion about Claimant's ability to work in a report dated April 2, 2014. Based on Dr. Wilkey's reports dated September 26, 2012 and June 3, 2013, Mr. Kaver testified Claimant's condition had deteriorated since the first interview, which is consistent with the medical reports, and he updated Claimant's list of medications. Mr. Kaver reaffirmed his opinion that Claimant could not compete in the open labor market, and added Claimant may be unable to obtain a GED based on the use of narcotic pain medication.

On May 15, 2014, Mr. Kaver wrote a fourth report after reading a report from Dr. Wilkey dated March 10, 2014, which permitted Claimant to lie down for 15 minutes for every two hours he works, which eliminated Claimant's ability to perform sedentary work. In Mr. Kaver's opinion, Claimant remained unable to compete in the open labor market.

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[^0]: ${ }^{19}$ In Mr. Kaver's April 2, 2014 report, he refers to the second interview date as February 11, 2013 and February 11, 2014. The correct date is believed to be February 11, 2014.

Mr. Kaver testified Claimant would not be hired if he walked into an interview with a manufacturing company using a cane. Therefore, Claimant would still be unable to compete in the open labor market. Mr. Kaver testified that absent the cane, there were sedentary manufacturing jobs Claimant could perform. As a result, use of a cane in an office setting would be acceptable.

Mr. Kaver concluded the November 2009 injury made Claimant unemployable in the open labor market based on: 1) Dr. Wilkey's restrictions, 2) the reinterview with Claimant, 3) two projected absences from work each month, 4) the need for narcotic medication, 5) the need to alternate between sitting and standing, and 6) the need to lie down every two hours. Mr. Kaver further concluded Claimant is not likely to recover enough to return to the workplace and, therefore, is PTD.

To reach his conclusion, Mr. Kaver relied on Claimant's history of recovery from the 2000 back surgery and 2005 left shoulder surgery, including a history of no restrictions after treatment for those injuries. Mr. Kaver did not review any medical records from those procedures, or IME reports. Mr. Kaver relied on Claimant's account of why he did not return to work. He did not review Claimant's personnel records. Also, Mr. Kaver was unaware that Claimant operated his own mechanic shop in 2008 and he denied having supervisory experience.

Mr. J. Stephen Dolan, a certified vocational expert, interviewed Claimant on November 19, 2014, administered a test, wrote two reports, assessed Claimant's ability to find employment, and testified at the request of the Employer. He observed Claimant use a cane and flinch when he moved his left arm during the interview on several occasions.

Mr. Dolan testified Claimant left school in the tenth grade, did not obtain a GED, and held a number of jobs for short periods of time. Many jobs involved cleaning, auto mechanic work, dishwasher, metal sorter, truck driver, trash collector, and bus driver. Claimant informed Mr. Dolan he did not know why Employer terminated him, however, according to Mr. Dolan, personnel records show he failed to comply with company policies and procedures. The reference to Claimant being fired is not contained in the personnel record that is in evidence.

Claimant reported his children help with cooking, shopping and cleaning. Claimant tries to keep his spouse safe from seizures and other medical conditions. On the computer, Claimant can access Google and Facebook, but cannot send an email.

Results of the WRAT reveal below average scores including a fifth grade reading level, fourth grade spelling, and sixth grade math. Mr. Dolan developed two vocational profiles based on 20-pound restrictions imposed by Dr. Wilkey and Dr. Lange.

Mr. Dolan identified the following transferable skills possessed by Claimant: The ability to safely remove and replace dysfunctional parts from vehicles, perform routine maintenance on

vehicles, i.e. oil changes, check fluid levels, lubricate vehicles, make repairs, drive a commercial vehicle, and use mechanic's tools although he is not a certified mechanic.

Mr. Dolan believes Claimant could find work if he seriously looked for it. Therefore, Mr. Dolan reached the following conclusions: 1) He questioned Claimant's report that his back pain is an 8 out of 10 based on his ability to drive, answer questions, and test for $31 / 2$ hours. 2) Based on medical records, Mr. Dolan testified Claimant's history is not correct that he had no back problems before 2009. 3) Dr. Lange's restrictions prevent Claimant from returning to his former occupations. However, he can continue to work in the light to sedentary levels such as an office and building cleaner, cashier, fast-food counter worker, shuttle bus driver with no luggage, and a small product assembler.

Mr. Dolan opined Dr. Wilkey's restrictions suggest Claimant may need to change position from sitting to standing, which would reduce the number of available jobs Claimant can work. However, he may still be able to work as a shuttle bus or school bus driver and some cashier positions.

After reviewing deposition testimony of Claimant and Drs. Lange and Wilkey, the only change in Mr. Dolan's opinion occurred when Dr. Wilkey said Claimant needs to lie down periodically to relieve pain. Based on this added restriction, Mr. Dolan concluded the need to lie down eliminated any jobs Claimant would have been qualified to perform.

During cross-examination, Mr. Dolan testified Claimant told him he suffered memory issues from taking narcotic medication.

After careful consideration of the entire record, based upon the above testimony, the competent and substantial evidence presented during the hearing, and the applicable law of the State of Missouri, I make the following findings:

Claimant asserts he sustained injury to his low back at L4-5 to the right and L5-S1 as a result of lifting a tire at work on November 11, 2009. The Employer contends the November 2009 injury only resulted in injury to Claimant at the L4-5 level to the left and not the L4-5 to the right or at L5-S1. Chapter 287.020.2 defines "accident" as:

1. 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. An injury is not compensable because work was a triggering or precipitating factor.

Chapter 287 defines "injury" as:

1. (1) An injury that arose out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined as the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

Under the Missouri Workers' Compensation Law, the employee bears the burden of proving all the essential elements of his claim, including medical causation. Roberts v. Mo. Highway \& Trans. Comm., 222 S.W.3d 322, 331 (Mo. App. 2007). For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. Id. "Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." Gordon v. City of Ellisville, 268 S.W.3d 454, 461 (Mo. App. 2008) (citations omitted).

Questions regarding medical causation of an injury are issues of fact for the [fact finder] to decide, as are questions regarding medical treatment. Id. The [fact finder] is the sole judge of the weight of the evidence and credibility of the witnesses. Id. When conflicting medical opinions are in evidence, the [fact finder] determines which expert's opinion is more credible. Bock v. Broadway Ford Truck Sales, Inc., 55 S.W.3d 427, 439 (Mo.App.2001). The weight to be given the expert's opinion on medical causation is within the sole discretion of the [fact finder]. Id. at 438. (Citations omitted).

While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." Sanderson v. Porta-Fab Corp,, 989 S.W.2d 599, 603 (Mo.App. 1999). ${ }^{20}$ 'Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App. 1996). I find Claimant met his burden.

At the hearing, the parties stipulated that the November 2009 work accident caused injury to Claimant's low back at L4-5 to the left. The question is whether Claimant also sustained injuries to his low back at L4-5 to the right and L5-S1 as a result of the November 11, 2009, work injury. I find Claimant met his burden.

I find Claimant's testimony is generally credible. Claimant testified that leading up to November 2009; he had occasional low back flare-ups with overexertion, which is consistent

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[^0]: ${ }^{20}$ Several cases herein were overruled by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003) on grounds other than those for which the cases are cited. No further reference will be made to Hampton in this award.

with medical records in evidence. Although Claimant did not give Dr. Wilkey a history of intermittent low-back flare-ups before November 2009, he was not surprised to learn Claimant had occasional low-back symptoms given the type of work he performed.

In this case five physicians offered causations opinions, with varying conclusions. As for the L4-5 disc, I find the opinions of Drs. Schoedinger and Wilkey more persuasive that the November 2009 accident was the prevailing factor that caused a herniation at L4-5.

Dr. Schoedinger identified a retained disc material fragment at L5-S1 to the right, central disc protrusion at L4-5, and scar formation. He noted Claimant has "tethering of neural elements on the right side," and anything above that lesion (including L4-5) could produce right-sided symptoms. He compared MRIs before and after the 2009 work injury and concluded Claimant had abnormalities at both levels before the 2009 injury. Therefore, based on Claimant's current bilateral leg complaints, he concluded the tire injury aggravated the preexisting problem at L5S1, which caused injury that extended to L4-5. In addition, he read findings from a three-level discogram dated June 7, 2011 to show positive findings at L4-5 for severe low-back pain and annular tear.

Dr. Wilkey is the only physician in the case that visualized Claimant's low back during surgery, in addition to reviewing the diagnostics and interviewing Claimant. Both Dr. Wilkey and Dr. Lange diagnosed a broad based central disc herniation at L4-5 which they attributed to the work injury in November, 2009. Dr. Schoedinger credibly testified that a central disc lesion can result in symptoms on either side or both.

Although Dr. Lange attributed the L4-5 herniation to the left to the 2009 work injury based on Claimant's left leg symptoms, he did not comment on whether the injury caused right leg complaints. Dr. Kitchens' opinion is not persuasive that Claimant had no herniations or radiculopathy in light of the opinions of Drs. Wilkey, Schoedinger, and Lange, Claimant's complaints, and diagnostics from June 6, 2011 which revealed extradural defects at L4-5 and L5S1.

In light of the above evidence, I find Dr. Doll's conclusion is not persuasive that the L5S1 disc was the problem because the right side was the problem area when the first surgery occurred.

Based on credible testimony by Claimant and persuasive testimony by Drs. Schoedinger and Wilkey, medical reports and records in evidence, and less than persuasive testimony by Drs. Kitchens and Doll, I find Claimant established a causal connection between the tire lifting accident on November 11, 2009, and injury he sustained at the L4-5 level to the right.

As discussed above, Dr. Schoedinger concluded the tire lifting accident aggravated a preexisting disc problem at L5-S1. Dr. Wilkey agreed, finding a recurrent herniated disc to the right at L5-S1 based on results of a discogram, CT scan and MRI and Claimant's complaints. Even Dr. Doll diagnosed inflammation at L5-S1 from the November 2009 work injury. Medical evidence shows Claimant had intermittent flare-ups between 2000 and 2009, but he continued to work at the heavy demand level until the tire lifting accident in November 2009.

On the other hand, Dr. Lange's opinion is not persuasive that the November 2009 incident did not cause injury to Claimant's L5-S1 disc because of the prior surgery and low-back complaints before November 11, 2009, which are consistent with the 2009 MRI that showed symptoms on the left.

Dr. Wilkey conceded Claimant had back pain with radiation into his right leg in 2005. However, this did not change his opinion because Claimant gave a history that he did not recall having low-back complaints for three or four years after the 2005 incident, and is consistent with medical records in evidence. Dr. Wilkey testified his causation opinion may change if there was evidence that a physician recommended surgery before 2009, but the record contains no such evidence.

In addition, Dr. Doll concluded Claimant's left leg complaints are not related to the tire lifting accident because he injected the right side and the left side became more symptomatic, which is inconsistent. But, Dr. Schoedinger credibly opined a right-sided lesion at L5-S1 can produce left-sided complaints. Also, Dr. Doll concluded the MRIs showed degenerative disc disease, but no change in the disc, ligament, scar tissue or bony structures. As discussed above, Dr. Schoedinger based his opinion on the fact that now Claimant has bilateral leg complaints, unlike in 2000.

Employer places great weight on Claimant's history to doctors of a surgical consultation and low-back pain between 2000 and 2009. However, the record contains no recommendation from a physician for surgery during that time and Claimant testified he does not recall such a consultation. More importantly, Claimant continued to work at the medium to heavy demand level leading up to November 2009 without additional surgery or extensive treatment.

Based on credible testimony by Claimant and persuasive opinion testimony by Drs. Schoedinger and Wilkey, medical reports and records in evidence, and less than persuasive testimony by Drs. Kitchens, Doll and Lange, I find Claimant established a causal connection between the tire lifting accident on November 11, 2009 and injury to the L5-S1 disc level.

Claimant asserts the medical bills should be admitted because they are relevant to prove or disprove a fact in issue, namely the cost of medical services received. Guess v. Escobar, 26 S.W.3d 235, 242 (Mo.App. 2000). Employer contends the bills are not admissible because Claimant did not testify on direct examination that the bills were related to and the product of his work injury. As a result, the Employer could not question Claimant about the bills during crossexamination. Moreover, no physician separated the bills for treatment of the two discs. Chapter 287.140.7 states:

Every hospital or other person furnishing the employee with medical aid shall permit its record to be copied by and shall furnish full information to the division or the commission, the employer, the employee or his dependents and any other party to any proceedings for compensation under this chapter, and certified copies of the records shall be admissible in evidence in any such proceedings.

Based upon strict construction, as required by $\S 287.800$, I find Claimant's certified copies of his medical bills are admissible into evidence.

Claimant asserts Employer is liable for past medical expenses totaling $\ 180,391.01 that were needed to cure and relieve the effects of his work-related injury. Employer denies liability because Claimant failed to testify that the bills are related to and the product of a work injury. Or alternatively, there is no expert testimony to show what medical treatment was reasonable and necessary for each disc level considered separately. Section 287.140 1. Provides:

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.

Both Drs. Wilkey and Lange concluded the treatment Claimant received for the L4-5 injury was reasonable and necessary to cure his lumbar condition. I further find Dr. Wilkey's opinion is more persuasive than Dr. Lange's opinion that his medical charges were reasonable, customary, and necessary for treatment of the L5-S1 disc condition as well.

A sufficient factual basis exists for the [fact finder] to award compensation for past medical [expenses when: (1) the claimant introduces his medical bills into evidence; (2) the claimant testifies that the bills are related to and the product of his work injury; and (3) "the bills relate to the professional services rendered as shown by the medical records in evidence." Maness v. City of De Soto, 421 S.W.3d 532, 544 (Mo. Ct. App. 2014) (Citations omitted). "The

employer, of course, may challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question." Martin v, Mid-America Farm Lines, Inc., 769 S.W.2d 105, 12 (Mo 1989). ${ }^{21}$

At the hearing, Claimant testified he sought additional medical treatment on his own after Dr. Doll released him from care and the Employer denied his request for more treatment. Claimant submitted medical bills that correspond with voluminous medical records that gave rise to treatment for the November 2009 work injury. Claimant testified he received the treatment for his low back as reflected in the medical records. The Employer did not assert that liability for the bills has been extinguished; the charges were not fair, unreasonable, incorrectly totaled or otherwise unsupported by the bills or medical records. Therefore, I find Employer is liable for Claimant's past medical expenses totaling $\ 180,391.01.

Claimant asserts he is entitled to future medical care based on his needs and Dr. Wilkey's recommendations. Employer contends Dr. Wilkey did not testify that Claimant's future medical needs are related to the November 11, 2009, work injury. I disagree. As discussed above, Section 287.140 1. provides:

...[t]he 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.

An employer will be responsible for future medical benefits only if the evidence establishes to a reasonable degree of medical certainty that the need for future medical care flows from the accident. Sickmiller v. Timberland Forest Products, Inc., 407 S.W.3d 109, 122 (Mo. App. 2013). To receive an award of future medical benefits, a claimant need not show 'conclusive evidence' of a need for future medical treatment. Stevens, 244 S.W.3d at 237 (quoting ABB Power T \& D Co. V. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007)). "Instead, a claimant need only show a 'reasonable probability' that, because of a work-related injury, future medical treatment will be necessary. A claimant need not show evidence of the specific nature of the treatment required." Id.

As previously discussed, Dr. Wilkey connected the November 2009 work accident to Claimant's current low back complaints, and predicted Claimant may need more medical care, and will remain dependent on narcotic medication for life. Also, Dr. Lange predicted Claimant would need medication for life and referred him to his personal physician. Claimant continues to

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[^0]: ${ }^{21}$ Superseded by statute on other grounds, 1990 Mo. Legis. Serv. S.B. 751, Mo. Rev. Stat. § 287.160.3.

treat with Dr. Wilkey every six months and take narcotic medication. He does not recall taking prescription medication before 2009, although Dr. Spezia's records show he took Celebrex, Vicodin, and Flexeril in 2008. But the record is void of any medications taken by Claimant on a regular basis before November 2009. Therefore, I find Claimant met his burden to show his need for future medical treatment flows from the November 2009 work injury to his low back.

Claimant asserts Exhibit 17 is admissible because it is a business record from a contractor. Employer contends Exhibit 17 is not admissible because it contains expert opinion testimony without a proper foundation. In the alternative, if the exhibit contains facts, it is inadmissible because it is irrelevant.

Claimant relies on Section 490.692, which permits business records to be submitted by affidavit of a custodian or other qualified witness in lieu of testifying personally, and states in pertinent part:

1. Any records or copies of records reproduced in the ordinary course of business... that would be admissible under sections 490.660 to 490.690 shall be admissible as a business record, subject to other substantive or procedural objections, in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of sections 490.660 to 490.690 , that the records attached to the affidavit were kept as required by section 490.680 .
2. No party shall be permitted to offer such business records into evidence pursuant to this section unless all other parties to the action have been served with copies of such records and such affidavit at least seven days prior to the day upon which trial of the cause commences.
3. The affidavit permitted by the section may be in form and content substantially as follows: ...

In Tebow v. Director of Revenue, 921 S.W.2d 110, 113 (Mo.App. 1996) (Citations omitted), the Court held Section 490.692 provides a practical way to avoid the necessity of a personal appearance by a records custodian. Upon compliance with Section 490.680 and 490.692, business records may be admitted into evidence without any additional direct testimony.

In this case, I find the records contained facts that were kept in the ordinary course of business by Lasting Impressions. In a post hearing brief, Claimant asserts that copies of the modification were given to all parties of record at least seven days before the hearing with an affidavit that contains all required information. The record was properly executed and notarized. Employer does not object to the admission of the exhibit based on a lack of proper service. Employer's contention that Exhibit 17 is inadmissible based on relevance is not persuasive. The Employer's objection to the admission of Exhibit 17 is overruled and the exhibit is admitted.

At the hearing, the parties did not reach an agreement on when Claimant achieved MMI. Drs. Wilkey and Lange agree Claimant reached MMI on September 26, 2012. Therefore, I find Claimant reached MMI on that date.

Claimant asserts he is PTD as a result of the November 11, 2009, injury alone. Employer contends Claimant cannot prove he is PTD if the November 2009 injury did not cause the injury to both disc levels. But if both levels are found to be related to the November 2009 work injury, Employer contends Claimant is still not PTD because his testimony is not credible.

Section 287.020 6.defines "total disability "as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Any employment means any reasonable or normal employment or occupation; it is not necessary that the employee be completely inactive or inert in order to meet this statutory definition. Kowalski v. M-G Metals and Sales, Inc. 631 S.W.2d 919, 922 (Mo. App. 1982) (Citations omitted).

To be entitled to permanent total disability benefits from SIF, claimant must prove the last injury, combined with preexisting permanent partial disabilities, result in permanent total disability. Michael v. Treasurer, 334 S.W.3d 654 (Mo. App. 2011). In deciding whether SIF has any liability, the first determination is the degree of disability from the last injury considered alone. Section 287.220.1, and Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App.2000). If the last injury rendered Claimant permanently and totally disabled, SIF has no liability and Employer is responsible for the entire amount of compensation. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo.2003).

The critical question in determining whether a claimant is permanently and totally disabled is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Radar v. Werner Enterprises, Inc. 360 S.W.3d 285 (Mo. App. 2012). I find Claimant met his burden.

While Claimant had some effects from the low-back injury in 2000, I find the effects of the November 11, 2009 work injury are too great for Claimant to overcome and compete in the open labor market for the reasons discussed below.

At the time of the hearing, Claimant continued to treat with Dr. Wilkey periodically and will be on narcotic medication for life. The restrictions imposed by Drs. Wilkey and Lange restricted lifting to no more than 20 pounds. Dr. Wilkey restricted frequent lifting to no more than 10 pounds and Dr. Lange restricted frequent lifting to less than 20 pounds. Dr. Wilkey

limited Claimant to driving a personal vehicle occasionally and no operation of heavy equipment. He can lie down for 15 minutes every two hours and change position as often.

During both interviews with Claimant, Mr. Kaver observed him walk slowly with a limp and use a cane. Mr. Kaver concluded the November 2009 injury made Claimant unemployable in the open labor market based on: 1) Dr. Wilkey's restrictions, 2) Claimant's deterioration when reinterviewed, 3) the predicted two absences from work per month, and 4) Claimant's need for narcotic medication. Mr. Kaver further concluded Claimant is not likely to recover enough to return to the workplace and, therefore, he is PTD as a result of the November 11, 2009, work injury.

In contrast, Mr. Dolan concluded Dr. Lange's restrictions prevent Claimant from returning to his former occupations, however, he could continue to work a variety of jobs at the light to sedentary level. Claimant scored low on tests administered by both Mr. Kaver and Mr. Dolan. Mr. Kaver predicted Claimant may be unable to obtain a GED given his use of narcotic medication.

Both vocational experts agree Claimant cannot return to his former employment and Dr. Wilkey's recommendation that Claimant lie down eliminates his ability to compete in the open labor market.

In addition, Mr. Dolan questioned Claimant's credibility when he reported a 7 out of 10 pain level with no apparent sign of distress during the interview. Also, Mr. Dolan concluded Claimant's history of no back problems before 2009 is inconsistent with the medical records. I find Claimant's testimony is credible and consistent with the medical records in evidence.

Claimant testified after he left the Employer he worked for the District in a heavily accommodated position. The heaviest item he lifted was an oil pan. A machine lifted tires for Claimant. He was permitted him to take frequent breaks, leave work early or take off work entirely as needed because of back pain. Dr. Wilkey predicted Claimant would lose 24 days from work per year because of back pain. Mr. Kaver testified that no employer would permit an employee to remain employed if they needed to lie down frequently during the work day, and miss 24 work days per year.

Employer further questions Claimant's credibility because he was seen on video walking outside his home without a cane, carrying bags and bending to pick up a water hose. I find the videotapes are not persuasive to contradict Claimant's testimony about his complaints. Claimant testified the bags weighed five to ten pounds, he emptied the trash because it was full and his son was at school, he turned off a hose someone left running, and he leaves a cane in the car and at home to use as needed. Mr. Kaver testified Claimant would not be hired if he walked into an interview with a manufacturing company using a cane. During the hearing, I observed Claimant walk slowly and use a cane.

Mr. Dolan concluded Dr. Lange's restrictions prevent Claimant from returning to his former occupations, however, he could continue to work a variety of jobs at the light to sedentary level. But Claimant scored low on tests administered by both Mr. Kaver and Mr. Dolan. Mr. Kaver predicted Claimant may be unable to obtain a GED given his use of narcotic medication.

Given his low test scores, and lack of a GED and computer skills, it does not seem likely that Claimant will be hired in a sedentary position. Even if Claimant obtained employment, neither vocational expert believes he can maintain it due to his limitations and medical restrictions.

Based on credible and persuasive testimony by Claimant, Mr. Kaver, and Dr. Wilkey, and less than persuasive testimony by Mr. Dolan and Dr. Lange, I find no employer in the ordinary course of business would reasonably be expected to hire Claimant in his current physical condition. Therefore, I find Claimant is no longer able to compete in the open labor market and is, therefore, PTD as a result of the November 11, 2009 work injury alone.

In cases of permanent total ...disabilit[y], payment should have begun when the disability began. Kramer v. Labor \& Indus. Relations Commission, 799 S.W.2d 142, 145 (Mo. App. 1990). I previously found Claimant reached MMI on September 26, 2012. I further find Employer liable for a weekly rate of $\ 564.10 beginning retroactively on September 27, 2012, and continuing for the remainder of Claimant's life.

Here, the parties extensively discussed pretrial matters with the Court; however, TTD was not stipulated as owed nor was it raised as an issue. In post-hearing briefs, both Claimant and Employer agree Claimant is owed TTD benefits. Claimant asserts TTD benefits are due from November 15, 2011 to September 26, 2012, for a total of \$25,384.50. Employer concedes Claimant is owed TTD benefits from November 15, 2011, until he reached MMI, for a total award of $\ 25,546.12.

TTD benefits are intended to cover a period of time from injury until such time as claimant can return to work. Phelps v. Jeff Wolk Construction Co., 803 S.W.2d 641 (Mo.App. 1991). The test for entitlement to TTD "is not whether an employee is able to do some work, but whether the employee is able to compete in the open labor market under his physical condition." Boyles v. USA Rebar Placement, Inc., 26 S.W.3d 418, 424 (Mo.App. 2000). Therefore, TTD benefits are intended to cover the employee's healing period from a work-related accident until he can find employment or his condition has reached a level of maximum medical improvement. Id. Once further medical progress is no longer expected, a temporary award is no longer warranted. Id.

Surgery was performed November 15, 2011 and Dr. Wilkey released Claimant at MMI on September 26, 2012. Therefore, I find Employer is liable for TTD benefits totaling $\$ 25,465.09 .^{22}$

Having found the Employer liable for PTD benefits, I further find SIF has no liability.

The November 11, 2009 work injury is the prevailing factor that caused injury to the discs at L4-5 and L5-S1. Claimant reached maximum medical improvement on September 26, 2012. Employer is liable for the following benefits: temporary total disability, permanent total disability, past medical expenses, and future medical treatment. The SIF claim is denied.

Medical bills related to the following exhibits are admitted: 4,6,7,8-14,16,18, and 19 . Exhibit 17 is admitted. The award is subject to a lien in favor of Claimant's attorney for legal services rendered.

Date: $\qquad$

Suzette Carlisle

Administrative Law Judge

Division of Workers' Compensation

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[^0]: ${ }^{22}$ The TTD amount was calculated as follows: Benefits were owed from November 15, 2011 to September 26, 2012 ( 45 weeks and 1 day). Therefore, $\$ 564.10 \times 45 weeks =\$ 25,384.50+\ 80.59 (one day) $=\ 25,465.09.