Gregory Pulliam v. RPCS, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 11-056403

Employee: Gregory Pulliam

Employer: RPCS, Inc.

Insurer: Fuel Marketers Insurance Trust

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 1, 2016. The award and decision of Chief Administrative Law Judge L. Timothy Wilson, issued September 1, 2016, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this $\qquad 28^{\text {th }} \qquad$ day of April 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Gregory J. Pulliam

Injury No. 11-056403

Dependents: N/A

Employer: RPCS, Inc.

Insurer: Fuel Marketers Insurance Trust

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

Hearing Date: June 10, 2016

Checked by: LTW

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: July 4, 2011
5. State location where accident occurred or occupational disease was contracted: Yes
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 engaged in employment with Employer and performing his work duties, Employee lifted a box of meat, weighing approximately 70 pounds, from a shelf about 1 to $11 / 2$ feet off the floor. As he lifted the box up to approximately chest-level, in order to place it on a shelf, he felt a sharp pain and an "electrode" sensation in his middle back, resulting in Employee sustaining a physical injury in the nature of a herniated disc of the thoracic spine at the level of T7 - T8 with the development of thoracic myelopathy for which employee required a surgical decompression with fusion from T7 - T9. Further, as a consequence of this work injury, Employee sustained a psychological injury in the nature of psychological overlay.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Back \& BAW
14. Nature and extent of any permanent disability: Permanent Total Disability

Employee: Gregory J. Pulliam

Injury No. 11-056403

Dependents: N/A

Employer: RPCS, Inc.

Insurer: Fuel Marketers Insurance Trust

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

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on June 10, 2016. The parties were afforded opportunity to submit briefs or proposed awards, resulting in the record being complete and submitted to the undersigned for issuance of a decision on or about July 11, 2016.

The employee appeared personally and through his attorney, John Wise, Esq. The employer and insurer appeared through their attorney, Steven Marsh, Esq. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about July 4, 2011, RPCS, Inc. was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Fuel Marketers Insurance Trust.

(2) On the alleged injury date of July 4, 2011, Gregory Pulliam was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about July 4, 2011, the employee sustained an accident, which arose out of and in the course of his employment with the employer.

(4) The above-referenced employment and accident occurred in Greene County, Missouri. The parties agree to venue lying in Greene County, Missouri. Venue is proper.

(5) The employee notified the employer of his injury as required by Section 287.420, RSMo.

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the claimed accident the employee's average weekly wage was $\ 580.65, which is sufficient to allow a compensation rate of $\ 387.10 for temporary total disability compensation, and a compensation rate of $\ 387.10 for permanent partial and permanent total disability compensation.

(8) Temporary disability benefits were provided to the employee in the amount of $\ 13,435.12. (It is noted that the employee reached maximum medical improvement on or about March 19, 2012. However, the employer and insurer paid additional temporary disability compensation in the mount of \$5,297.43 from March 19, 2012 to October 12, 2012.)

(9) The employer and insurer provided medical treatment to the employee, having paid $\ 122,307.41 in medical expenses.

(10) The employee reached maximum medical improvement as of March 19, 2012.

(11) Employee's attorney, John Wise, seeks an attorney's fee of 25 percent and acknowledges an attorney lien in favor of Mark \& Burkhead in the amount of $\ 660.59.

The issues to be resolved by hearing are as follows:

(1) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee of effects of the work injury?

(2) Whether employee sustained any permanent disability as a consequence of the accident of July 4, 2011; and, if so, what is the nature and extent of the permanent disability?

(3) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation?

(4) Whether the employer and insurer are entitled to a credit for overpayment of temporary total disability benefits in the amount of $\ 5,297.43, representing benefits paid for the period of March 19, 2012 through October 12, 2012?

The employee testified at the evidentiary hearing in support of his case. Also, the employee presented at the hearing of his case one additional witness - Phillip Eldred, CRC, a vocational consultant. In addition, the employee offered for admission the following exhibits:

Exhibit 1. Deposition - Dr. Brent KoprivicaExhibit 2. Deposition - Dr. Dale HalfakerExhibit 3. Medical Records - Dr. Samuel SandersExhibit 4. Medical Records - Dr. BrockmanExhibit 5. Medical Records - ConcentraExhibit 6. Medical Records - Mercy Spine CenterExhibit 7. Medical Records - Dr. HopkinsExhibit 8. Medical Records - Mercy Clinic (Dr. Corsolini)Exhibit 9. Medical Records - Mercy HospitalExhibit 10. Medical Records - Work Evaluations \& Ergonomic AssessmentsExhibit 11. Medical Records - Dr. LilyExhibit 12 Curriculum Vitae - Phillip EldredExhibit 13. Vocational Report - Phillip Eldred

The exhibits were received and admitted into evidence.

The employer and insurer presented one witness at the hearing of this case - Randy Dallen Gettling. In addition, the employer and insurer offered for admission the following exhibits:

Exhibit A. Deposition of Employee - Gregory PulliamExhibit B. Medical Report and Curriculum Vitae - Susan McKenna, Ph.D. Exhibit C. Printout reflecting TTD benefits paid by employer/insurer Exhibit D. Reports and surveillance video from Blue Eagle Investigations Exhibit E. Reports and surveillance video from Blue Eagle InvestigationsExhibit F. Report of Investigation (November 2 - 9, 2015)Exhibit G. Report of Investigation (April 7, 2016)Exhibit H. Report of Investigation (April 21, 2016)

The exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses or offer any additional exhibits at the hearing of this case.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned administrative law judge took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Entry of Appearance by Attorney John Wise

- Motion \& Order Granting Leave to Withdraw as Attorney for Employee by Attorney Leah B. Burkhead

- Attorney Lien by Leah B. Burkhead

- Answer of Second Injury Fund to Claim for Compensation

- Answer of Employer/Insurer to Claim for Compensation

- Claim for Compensation

- Report of Injury

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

The workers' compensation law for the State of Missouri underwent substantial change on or about August 28, 2005. The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

The employee, Gregory Pulliam, is 54 years of age, having been born on January 6, 1962.

Mr. Pulliam graduated from high school in 1981. He did not attend college and did not serve in the military. He has no formal academic or vocational training after high school.

The employee last worked on or about February 19, 2013, at Price Cutter, in Springfield, Missouri. Mr. Pulliam was terminated from his job at Price Cutter on or about February 19, 2013. He testified that it was his understanding he was terminated because his employer could no longer accommodate light-duty restrictions under which he was working. At the time of his termination, he was working 2 to $21 / 2$ hours per day, sitting at a table handing out food and drink samples. His light-duty work was being performed at that time pursuant to restrictions issued by treating physicians, Dr. Sunghoon Lee and Dr. Thomas Corsolini. Before his termination from Price Cutter, Mr. Pulliam had worked at the employer for approximately 8 years, as a meat cutter.

During the 15 years prior to beginning his employment with Price Cutter, Mr. Pulliam worked as a meat cutter at Missouri Purveyors and Turners IGA, both of which employments were located in Springfield, Missouri. He testified that his work as a meat cutter at all three locations was substantially similar. He would stand throughout most of the work day and was required to cut meat and lift boxes of meat weighting from 40 to 130 pounds throughout the course of his workday. Prior to working as a meat cutter, Mr. Pulliam worked for approximately 4 years at Don Wessel Oldsmobile checking in new cars and detailing automobiles. Prior to that,

he had worked a short time for Milwaukee Railroad cleaning up derailments and in fast food restaurants.

Mr. Pulliam described an accident in which he was involved during his employment at Price Cutter on July 4, 2011. At that time, he lifted a box of meat, weighing approximately 70 pounds, from a shelf about 1 to $11 / 2$ feet off the floor. As he lifted the box up to approximately chest-level, in order to place it on a shelf, he felt a sharp pain and an "electrode" sensation in his middle back. The accident occurred between approximately 11:00am and 1:00pm. He began his shift on that day at 6:00 a.m. and concluded it at 2:00 p.m. Although he was in pain, he was able to finish his shift on that date.

According to Mr. Pulliam, he reported his injury to Shawn Burks, the store manager. He testified that he told him how the accident had happened but was offered no medical treatment at that time. Mr. Pulliam was also questioned regarding the report of injury filed by the employer and insurer. That form reflects that the employer was notified of the accident on July 4, 2011 and reflects that he described injuring himself while lifting a box. Mr. Pulliam testified that the information set out on the form was consistent with his recollection of what and when he had reported to Shawn Burks.

Because Mr. Burks offered no medical treatment to employee initially, Mr. Pulliam sought treatment on his own through Dr. Samuel Sanders, a chiropractor, in Willard, Missouri. He learned of Dr. Sanders through a referral from a co-employee. Dr. Sanders' records reflect that he first saw employee on July 6, 2011 and that employee had complaints of "sharp pain mid back." Mr. Pulliam testified that was consistent with what he told Dr. Sanders. However, Dr. Sanders' records reflect a history of "pain ongoing past 3 weeks moving meat boxes". Mr. Pulliam testified that he did not give that history to Dr. Sanders and clearly recalled telling him that the pain started after the accident of July 4, 2011.

Also, Mr. Pulliam testified that prior to July 4, 2011 he had never suffered an injury to his back nor received any treatment for his back. Before July 4, 2011, employee had sustained no injury or suffered any medical condition that limited him in any way.

Following his visit with Dr. Sanders, Mr. Pulliam next sought treatment with his primary care physician, Dr. Brockman. Dr. Brockman's records reflect that he first examined Mr. Pulliam for his back complaints on July 14, 2011. Dr. Brockman's records reflect that Mr. Pulliam complained of "pain in mid and lower back and legs 'both tingle-numb'". Mr. Pulliam testified that such history was accurate and that his leg complaints had started shortly after the accident of July 4, 2011. Although Dr. Brockman's notes reflect a history of "burning sensation in the midline of the upper lumbar spine for the past several weeks", Mr. Pulliam testified that he also told Dr. Brockman that the pain started after the accident of July 4, 2011.

Dr. Brockman eventually referred Mr. Pulliam for a lumbar spine MRI, which the employee underwent at St. John's Hospital, in Springfield, Missouri.

After he underwent the MRI, the employee was finally able to obtain referral for treatment from the employer. The employer referred Mr. Pulliam to Concentra Medical Center, in Springfield, Missouri, for treatment regarding his back complaints. Mr. Pulliam was first seen at that facility on July 27, 2011, with complaints involving his middle back. Mr. Pulliam treated at Concentra for approximately 7 weeks, and received medication and physical therapy.

The record entry of July 27, 2011 from Concentra reflected a history of "lifting meat boxes c/o back". The diagnosis at that time was as follows: "the patient examination is consistent with the medical diagnosis of lumbar strain". Dr. Qureshi's record entry of August 19, 2011 reflects the following opinion regarding causation: "In my professional opinion, with a reasonable degree of medical probability, I conclude that there is consistency to these elements and that the aforementioned diagnoses (lumbar radiculopathy and lumbar disc degeneration) is/are related to the alleged work-related injury".

Mr. Pulliam was referred by a physician at Concentra to Dr. Sunghoon Lee, whom he first saw on September 1, 2011. At that time, the employee's complaints had worsened significantly. He still experienced intense pain in the mid part of his back, with some pain in his lower back. However, the numbness and tingling in his legs had worsened to the point where he was having difficulty walking. Subsequent to the September 1 visit to Dr. Lee, claimant returned to the Mercy Hospital Emergency Room on September 5, 2011. At approximately 8:00 a.m. on that date, Mr. Pulliam was standing in front of his refrigerator and reached for an item when his legs went numb, causing him to collapse. Mr. Pulliam called his brother to assist him and an ambulance was called. He was taken by ambulance to Mercy Hospital, where he underwent emergency surgery for a herniated disc in his thoracic spine, on September 5, 2011. Dr. Lee performed the following surgery: decompression with fusion from T7 to T9 to treat a T7 - T8 thoracic disc herniation with the development of thoracic myelopathy.

Following the September 5, 2011 surgery and discharge from the hospital, Mr. Pulliam continued to follow up with Dr. Lee and, eventually, Dr. Corsolini. He also underwent a course of physical therapy at Peak Performance. Mr. Pulliam noted some improvement after surgery but continued to experience problems.

Eventually Mr. Pulliam returned to work at Price Cutter on light-duty work in approximately November 2012 and performed that light-duty work through February 2013. Although the doctor's restrictions permitted him to work up to 4 hours per day, Mr. Pulliam testified that he could only make it through 2 to $21 / 2$ hours per day and then would have to use sick time to go home. During his light-duty work, he was still taking Oxycodone and Morphine prescribed by Dr. Lee and Dr. Corsolini. He was never able to return to full-time employment or full-duty employment at Price Cutter. Subsequent to his termination from Price Cutter, on February 19, 2013, Mr. Pulliam has worked nowhere.

Mr. Pulliam was last seen by Dr. Lee on April 5, 2012. At that time, Dr. Lee assessed permanent restrictions of "no lifting over 5 pounds and no working over 4 hours per day."

Mr. Pulliam was last seen by Dr. Thomas Corsolini on March 19, 2012, at which time Dr. Corsolini placed him at maximum medical improvement and assessed the following permanent restrictions: "My opinion is that he should be able to tolerate standing and/or walking at least 4 hours in a normal working day, ideally distributed somewhat evenly between a sitting position and time spent upright. I think that a limitation of 20 pounds maximum lifting and carrying on an occasional basis during that time would also be reasonable."

According to Mr. Pulliam, during the period of March to April 2012, he was still experiencing pain in his mid and lower back and numbness and pain in his legs.

After having been released by Dr. Lee and Dr. Corsolini, Mr. Pulliam underwent an independent medical examination with Dr. Koprivica on March 11, 2013 and a psychological evaluation with Dr. Dale Halfaker on July 9, 2013. Both of those evaluations were conducted at the request of his attorney. Also, Mr. Pulliam underwent a vocational evaluation with Phillip Eldred at the request of his attorney, on January 8, 2014 and an examination with Dr. Susan McKenna, at the request of the employer/insurer, on May 27, 2016.

Mr. Pulliam described profound ongoing problems, which he attributed to the injury of July 4, 2011. He continues to experience a constant sharp pain in his mid-back and lower back. The worst pain in focused in his mid-back, which he described as the location of his surgical incision. He still experiences constant numbness and tingling in his legs, with the right leg being worse than the left.

Mr. Pulliam testified that he can sit for no longer than 15 to 20 minutes at a time and then will have to stand up because of pain in his mid and lower back. He is unable to stand for more than 10 to15 minutes and can only walk 15 to 20 minutes at a time because of the pain in his mid and lower back. He also uses a cane at all times to assist with stability; he feels unstable without it. Employee testified that he is unable to lift more than 10 to 15 pounds and experiences sharp back pain when bending and squatting. Although he enjoyed fishing and hunting prior to the injury of July 4, 2011, he is no longer able to participate in those hobbies because of back pain. Employee is able to do some chores around the house, such as loading his dishwasher, and doing his laundry, one - half load at a time. He can no longer garden as he did before the injury of July 4, 2011. He modified his garden by creating two raised gardens, $4 \times 8$ feet. He is able to sit on a chair and tend to his plants. He now owns a rider mower, which he operates in approximately 20 minute intervals.

The pain in his back and legs interferes with the employee's concentration, making it difficult for him to remember what he has read and to maintain a train of thought. He has difficulty sleeping because of pain and anxiety. Also, Mr. Pulliam testified that he must lie down 3 to 4 times per day, for 20 to 40 minutes each time, to relieve the pain in his back and legs. Employee continues to take Oxycodone for pain, Lorazepam for anxiety, and Ambien to help him sleep. Those medications are currently prescribed by Dr. John Lily.

Because of the problems he continues to experience regarding his back and legs, Mr. Pulliam testified that he did not he feel he could return to work in any of his former employments and could work nowhere on a full-time basis.

Dr. Brent Koprivica testified by way of deposition. Dr. Koprivica performed an independent medical examination at the request of Mr. Pulliam's attorney on March 11, 2013. Dr. Koprivica discussed findings of a September 5, 2011 MRI of the thoracic spine. That showed a large disc herniation at T7 - T8 that was causing compression of the spinal cord. He also discussed why Dr. Lee performed surgery on September 5, 2011, shortly after employee underwent the foregoing MRI. He explained that employee was experiencing "myelopathy" and having difficulty walking. Dr. Koprivica described the surgery performed by Dr. Lee as an emergency surgery. He explained that once a doctor recognizes that a patient has "spinal cord compression and a person who can't walk or they were collapsing and having to use a wheelchair, that is an emergent situation."

Dr. Koprivica also testified that the employee's complaints were consistent with the nature of the injury he sustained. He also thought that Mr. Pulliam's complaint of having to lie down three or more times per day to relieve his back pain was "consistent with the severity of his objective physical impairment and disability."

Dr. Koprivica testified that he identified no condition existing before July 4, 2011 which constituted a hindrance or obstacle to employment or reemployment. He identified no preexistent industrial disability which would trigger Second Injury Fund liability.

Dr. Koprivica also discussed the side effects of the pain medication taken by Mr. Pulliam. He testified that he would not recommend that a person operate equipment while taking such medication and noted that it can affect an individual cognitively. Dr. Koprivica thus explained, "Concentration can be impacted. Your attention to detail and doing paperwork or clerical tasks, those will be impacted by that and it is common that they are." Dr. Koprivica also noted that employee was using a cane at the time of his examination.

During his physical examination of Mr. Pulliam, Dr. Koprivica found a severe loss of range in motion in flexion and extension, and mild loss of range in motion in lateral flexion.

Dr. Koprivica opined that the accident of July 4, 2011 was the prevailing factor in causing a herniated disc at T7 - T8 with the development of thoracic myelopathy for which employee required a surgical decompression with fusion from T7 - T9. Dr. Koprivica further testified that he noted ongoing finding of myelopathy on his examination, noting that Mr. Pulliam was hyperreflexic in the lower extremities involving the patella and Achilles deep tendon reflexes. He also had five to six beat clonus on the right and two to three beat clonus on the left. Those findings are indicative of ongoing myelopathy.

Although Dr. Koprivica found Mr. Pulliam to be at maximum medical improvement from the July 4, 2011 injury, he opined that Mr. Pulliam would require ongoing pain management, including some psychological support. He also opined that Mr. Pulliam should have access to a spine surgeon for ongoing evaluations. Dr. Koprivica opined that the accident and resulting injury of July 4, 2011 necessitated the future medical treatment he recommended.

Dr. Koprivica also opined that a number of significant permanent physical restrictions were necessitated by the accident of July 4, 2011 and resulting injury. Of significance, he opined that Mr. Pulliam should have ad lib ability to change between sitting, standing, and walking. He recommended sitting intervals of 30 minutes or less. He also opined that Mr. Pulliam should be allowed the use of a cane for balance and gait assistance. He restricted him from squatting, crawling, kneeling, or climbing entirely and opined that he should limit waist high lifting to a sedentary physical demand, which is 10 pounds.

In addition, Dr. Koprivica testified that Mr. Pulliam would be unable to return to his former work as a meat cutter. Dr. Koprivica finally concluded that employee was permanently totally disabled based on the development of the thoracic disc herniation with myelopathy for which he had undergone a decompression and fusion and the neurological residuals along with the psychological response to that injury.

With respect to the psychological aspect, Dr. Koprivica recommended a psychological evaluation following his examination of employee. Mr. Pulliam later underwent an evaluation with Dr. Dale Halfaker. Dr. Koprivica testified that he reviewed Dr. Halfaker's report and indicated that he thought Dr. Halfaker's findings were supportive of his belief that Mr. Pulliam was totally disabled. Dr. Koprivica felt that Mr. Pulliam was having a significant psychological problem related to disability from his work injury. Dr. Koprivica testified that his ultimate conclusion was that employee was "permanently, totally disabled solely as a result of the injury of July 4, 2011? ...Yes, considering the physical as well as psychological impairments from that injury." All of Dr. Koprivica's opinions were given within a reasonable degree of medical certainty.

Dr. Koprivica was cross-examined extensively regarding the fact that, initially, treating physicians were apparently focused on employee's lower back complaints. He noted that the findings of the lumbar MRI were not significant in that he would not have expected the lower back to be the pain generator in this case given the MRI results. He also noted that Mr. Pulliam did not undergo a thoracic spine MRI prior to September 5, 2011, which is how the herniated disc in that area could be definitively diagnosed. Further, Dr. Koprivica testified that the bilateral leg pain Mr. Pulliam was suffering prior to September 5, 2011 was from the herniated disc in the thoracic spine.

Although Dr. Koprivica was cross-examined extensively regarding the incident of September 5, 2011 when Mr. Pulliam collapsed while getting something out of his refrigerator, Dr. Koprivica opined that the incident was "a consequence of his disc herniation at T7 and T8 where it was compressing his spinal cord, so I think he collapsed because he had a disc herniation, not vice versa,". He also explained that it was not atypical for an individual with a large herniated disc in the thoracic spine to complain of pain between his shoulder blades and

lower back, in addition to complaining of pain in his mid-back. As he explained, an individual with a large herniated disc at T7 - T8 commonly has pain in the low back as well. He also testified that it would be common for an individual with a herniated a disc at T7 - T8 to have pain between the shoulder blades.

Dr. Dale Halfaker testified by way of deposition. Dr. Halfaker conducted a psychological evaluation of employee on June 4, 2013, at the request of Mr. Pulliam's attorney. Dr. Halfaker noted that Mr. Pulliam's complaints at the time of his evaluation were primarily anxiety. According to Mr. Pulliam, the anxiety affected his ability to sleep, and that he felt anxious about things. Dr. Halfaker also testified there appeared to be some indication of depression present, as well as anxiety. Dr. Halfaker identified no preexisting psychological problem or impairment prior to July 4, 2011.

Dr. Halfaker noted that Mr. Pulliam was using a cane on the day of his assessment of Mr. Pulliam. Dr. Halfaker administered the MMPI-2 as part of his evaluation of Mr. Pulliam. Dr. Halfaker explained that the MMPI-2 test was an empirically derived, well established, well accepted bellwether test within his profession. He found the results of that test to be valid and genuine.

Dr. Halfaker diagnosed a pain disorder associated with both psychological factors and a general medical condition, chronic, and an adjustment disorder with mixed anxiety and depressed mood, chronic. In light of his examination and evaluation of Mr. Pulliam, including his review of the medical records and the testing he performed, Dr. Halfaker opined that the accident of July 4, 2011, was the prevailing factor in causing Mr. Pulliam to sustain a psychological injury in the nature of (1) pain disorder associated with both psychological factors and a general medical condition, chronic (Axis I, 307.89); and (2) an adjustment disorder with mixed anxiety and depressed mood, chronic (Axis I, 309.28). In identifying this psychological injury to involve psychological overlay, Dr. Halfaker opines that it has caused Mr. Pulliam to suffer "a significant degree of psychological impairment and accompanying disability." According to Dr. Halfaker, this psychological injury "affects Mr. Pulliam's occupational, educational, and social functioning. Psychologically, Mr. Pulliam appears to have serious symptoms or impairment in his ability to function such that he is likely to have great difficulty in getting and keeping a job."

In considering the nature and extent of the psychological disability, Dr. Halfaker opined that the employee had reached maximum psychological improvement relative to this work injury. Further, Dr. Halfaker opined that as a consequence of this work injury, the employee had sustained permanent partial psychological disability of 15 percent to 25 percent to the body as a whole, with his best estimate being 20 percent to the body as a whole. Additionally, Dr. Halfaker opined that Mr. Pulliam's use of anti-anxiety medication was necessitated by the accident and resulting injury of July 4, 2011. All of Dr. Halfaker's opinions were given within a reasonable degree of psychological certainty.

Notably, in identifying this psychological disorder (work injury) as "psychological overlay" Dr. Halfaker provided an explanation and description of this injury, describing this psychological disorder as a somatoform disorder. In doing so, he ruled out a psychological disorder involving a factitious disorder or malingering. Further, in describing the nature and effect of Mr. Pullium's psychological disorder, causally related to the July 4, 2011, accident, and explaining why it is not a factitous disorder or malingering, Dr. Halfaker propounds the following comments:

The interaction of his [Employee] anxiety and depression results in somatization in which his anxiety and depression are being expressed to some degree somatically or conversion of emotional problems into physical complaints. Somatization is generally defined as a tendency to experience and communicate somatic distress in response to psychosocial stress and to seek medical help for it. It is thought that psychological factors in this case impact the onset, duration, severity, and maintenance of his complaints. The psychological overlay in this case is thought to exaggerate the expression of the underlying objective physical impairment.

Psychological overlay is a general term that represents a psychological condition and/or an emotional response or consequence of an injury that may account for differences between what is expected from a medical or physical perspective with regard to functionality / degree of disability and the actual level of functioning being exhibited by the patient. Such psychological overlay can be of either conscious or unconscious origination and is not always synonymous with malingering. Another term often used for such a range of conditions is symptom magnification or symptom magnification syndrome.

Symptom magnification syndrome is not a psychological diagnosis in and of itself, and is not by definition always the same thing as malingering. Rather, symptom magnification can be associated with a number of psychological disorders such as somatoform disorders, factitious disorders, and malingering. Symptom magnification is essentially a self-destructive, socially reinforced behavioral response pattern consisting of reports or displays of disability related symptoms that function to control a patient's life circumstances.

The psychological overlay in this case is thought to be associated with anxiety, depression, and insecurity about what his future holds. Factitious disorders are psychological disorders characterized by physical or psychological symptoms that are intentionally produced or feigned in order to assume the sick role. The presence of factitious symptoms does not preclude the coexistence of true physical or psychological symptoms and serves as part of the psychological overlay. For factitious disorder, external incentives for the behavior such as economic gain, avoiding legal responsibility, etc. are absent. ...

In Mr. Pullium's case, there are external motivators except for assuming the sick role in the form of a workers' compensation settlement. This may make the

diagnosis of a factitious disorder less likely. According to the DSM-IV-TR, malingering is characterized as the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives. Malingering is strongly considered when:

1. There is a medicolegal context of presentation (e.g., person is referred for evaluation by legal counsel);
2. There is marked discrepancy between the person's claimed stress or disability and the objective findings;
3. There is a lack of cooperation during the diagnostic evaluation and in complying with the prescribed treatment regimen; and
4. The presence of antisocial personality disorder.

Obviously, in this case there is a medicolegal context of presentation due to the workers' compensation setting in which it occurs. There may be some degree of discrepancy between Mr. Pullium's claimed disability and the objective findings, as seen in instances in which he may have exhibited positive Waddell's signs or other non-organic findings. I do not specifically see in the records any clear instances of a lack of cooperation in complying with the prescribed treatment regimen. I do not believe that there is the presence of antisocial personality disorder in this case.

It is my opinion that malingering is likely less probable than the presence of a somatoform disorder associated with a chronic pain syndrome.

The March 19, 2012 rating report from Dr. Corsolini was also admitted into evidence. With respect to the issue of causation, Dr. Corsolini noted, as follows: "In my opinion, Mr. Pulliam has reached maximum medical improvement from the effects of mid-back injury originally sustained July 4, 2011. This resulted in the need for decompression and fusion procedure to T7 - T9 levels by Dr. Lee in the first week of September 2011."

The work restrictions assessed by Dr. Corsolini are noted above. He also assessed permanent partial disability of 25 percent to the body as a whole for the injury of July 4, 2011. With respect to ongoing medical treatment, Dr. Corsolini noted that "I would be able to continue to prescribe medication for Mr. Pulliam, until such time that he is able to settle his case, at which time I would request that he continue receiving those medications, should he still need them, through his primary care physician." He also noted that, as of March 19, 2012, the "ongoing use of medication may include Ambien, to help maintain normal sleep, and Oxycodone, 5 mg 3 times daily."

Susan McKenna, Ph.D.

Susan McKenna, Ph.D. testified on behalf of the employer and insurer through the submission of her psychological evaluation report and CV. Dr. McKenna performed a psychological evaluation of the employee on May 18, 2016.

Dr. McKenna's report reflects that Mr. Pulliam brought a cane with him to the appointment. "He stated that he carries it more for safety purposes should he experience weakness or numbing in his legs." Dr. McKenna noted that Mr. Pulliam "seemed to provide open, honest information during the interview." The doctor noted Mr. Pulliam "stood up several times during the evaluation. About 90 minutes into his 4 hour evaluation, Mr. Pulliam asked to lie down on the couch for about 10 to 15 minutes." She also noted that Mr. Pulliam "never really felt depressed about his injury" and "denied being anxious daily and stated that his medication helps with this."

Dr. McKenna administered a number of tests, including the MMPI-2. Although the doctor noted that the employee's responses to the MMPI-2 reflected an apparent "attempt to appear in an overly positive light and minimize any faults", she also noted that his responses to that test "resulted in a clinic profile that is often seen in individuals with chronic pain conditions". She further noted that his responses "suggest the presence of chronic pain with some anxiety related to the pain". The doctor also noted that his score on the GAD-7 test indicated the "presence of mild anxiety."

Dr. McKenna noted that the "majority of Mr. Pulliam's test results suggest only mild levels of anxiety. He stated that his medication helps him to maintain low levels of anxiety". Dr. McKenna opined that "Mr. Pulliam meets the criteria for an adjustment disorder with anxiety, chronic stress. His anxiety is largely controlled by medication and is reported to be mild at most." Dr. McKenna did not think that Mr. Pulliam met the criteria for somatic symptom disorder or any other mental health condition.

Dr. McKenna again noted that Mr. Pulliam stated he "uses a cane because he is concerned that he will fall should he experience numbness or weakness in his legs."

Phillip Eldred testified at the hearing in this matter. Mr. Eldred is a certified rehabilitation counselor. He conducted a vocational evaluation of employee, at the request of his attorney, on January 8, 2014. His report, prepared following that evaluation, was admitted into evidence.

Mr. Eldred testified that he found no condition existing prior to July 4, 2011 which constituted a hindrance or obstacle to employment or reemployment. Both on direct and cross examination, Mr. Eldred opined that the part-time light-duty job, which employee performed at Price Cutter during the period from November 2012 to February 2013, did not constitute competitive gainful employment in the open labor market. He explained that it was highly

accommodated and only for several hours a day. During his evaluation of employee, Mr. Eldred noted that he used a cane and had to alternate sitting and standing. He also noted that Mr. Pulliam stated that he needed to lie down during the day to relieve back pain. Mr. Eldred explained that was significant vocationally because no reasonable employer will accommodate an employee who has to lie down during the day to relieve back pain.

Mr. Eldred testified that Mr. Pulliam had a limited educational history which would negatively impact employability. He also administered the Wide Range Achievement Test - 4. Mr. Eldred testified that the results of that test would negatively impact employee's ability to be retrained or reemployed.

Mr. Eldred testified that Mr. Pulliam's prior work history fell within the light, medium and heavy exertional levels. Also, Mr. Eldred explained that Mr. Pulliam's use of narcotic pain medications negatively impact his employability. In this regard, Mr. Eldred explained that most employers will not hire people on narcotic pain medications.

Mr. Eldred also explained that functional restrictions assessed by treating or examining doctors are significant. He explained that in this case he had reviewed restrictions from Dr. Lee, the treating surgeon; Dr. Corsolini, a treating physician; and Dr. Koprivica, an examining physician. Mr. Eldred opined that the restrictions assessed by each of those doctors placed Mr. Pulliam in the less than sedentary exertional level. He noted that Dr. Corsolini's restriction with respect to lifting, if viewed in isolation, would place Mr. Pulliam in the light exertional level. However, when considering Dr. Corsolini's additional restrictions concerning sitting and standing, Mr. Pulliam would be limited to a less than sedentary exertional level. In this case, Mr. Eldred opined that from a vocational perspective, he found Mr. Pulliam to be at the less than sedentary exertional level. That was true regardless of which of the doctors' restrictions he considered.

Of significance, Mr. Eldred testified that at the less than sedentary exertional level, Mr. Pulliam would have no transferable skills. At the less than sedentary exertional level, Mr. Eldred opined that employee would be unable to return to past work, would not have the capacity to be retrained, and would not be employable in the open labor market. He concluded by opining that employee was permanently totally disabled solely as a result of the occupational injury of July 4, 2011. All of Mr. Eldred's opinions were given within a reasonable degree of vocational and professional certainty.

Although cross-examined regarding the potential psychological impairment Mr. Pulliam might have, Mr. Eldred explained that was largely irrelevant because Mr. Pulliam was permanently totally disabled based on physical restrictions alone. Although he was crossexamined regarding potential work Mr. Pulliam might be able to do, Mr. Eldred repeatedly opined that the employee was unable to work in the open labor market.

On cross-examination Mr. Eldred testified at some length regarding the impact of the Americans with Disability Act and whether the requirements of that act would allow Mr. Pulliam to return to the open labor market. Mr. Eldred testified on redirect that the ADA requires employers to provide reasonable accommodations. However, an employer accommodating the

need to lie down is not a reasonable accommodation. Also, he testified that restrictions necessary to permit an individual at the less than sedentary exertional level to return to work would not be reasonable accommodations.

A private investigator, Randy Dallen Gettling with Blue Eagle Investigation, testified at the hearing on behalf of the employer and insurer. As part of his testimony, he played highlights of a surveillance DVD. Moreover, the parties admitted into evidence the master copy of the video surveillance, which the undersigned reviewed subsequent to the hearing.

This surveillance shows Mr. Pulliam sitting on several occasions for approximately 25 minutes, or longer, and engaging in activities of daily living, such as rolling his trash container. Having watched the video surveillance, the undersigned makes the following observations:

1. During the surveillance Mr. Pulliam gets in and out of his vehicle, as well as a pick-up truck, with limited or no assistance.
2. Mr. Pulliam is able to drive his car on his own, and is able to travel around the area.
3. Mr. Pulliam is able to shop and walk while carrying his purchases.
4. Mr. Pulliam is noted to walk with a cane, similar to a walking stick. He does not use the cane to assist him with walking. At times he extends the cane above his out stretched arm as a pointer. In most instances, he does not use the cane to bear his weight. He is shown in the video to walk freely around his yard - he goes up and down steps, enters and exits vehicles, and climbs in and out of a pickup truck, all without using his cane. At times, the cane does not touch the ground. At one point he is shown using his cane to point to his roof while he is walking around his front yard. However, at all times Mr. Pulliam is noted to have a cane with him.
5. Mr. Pulliam walks with a gait that appears steady and deliberate, but demonstrates no apparent physical difficulty and/or hesitation in his movements.
6. Mr. Pulliam is noted to go up and down the steps of his home. He is able to push and later pull his trash receptacle to and from the end of his driveway.
7. Mr. Pulliam is seen driving a riding lawn mower from his backyard and across the street to his neighbor's driveway. He then helps load the lawn mower into the back of a pickup truck.
8. Mr. Pulliam is noted to sit and eat a meal at a Mexican restaurant for over 20 minutes. This occurred after shopping for plants at a greenhouse earlier that morning.

1. Mr. Pulliam sat and rode a shopping scooter at Wal-Mart for over 50 minutes, and without having to stand up. While shopping, Mr. Pulliam was able to reach, bend, and stretch to reach products from the shelves.

I.<br>Accident \& Injury

The parties readily acknowledge that on July 4, 2011, while engaged in employment and performing his work duties for the employer, RPCS, Inc., Mr. Pulliam sustained a compensable injury, sustained by an accident that arose out of and in the course of his employment with RPCS, Inc. Notably, this incident occurred as Mr. Pulliam was lifting a box of meat, weighing approximately 70 pounds, from a shelf about 1 to $11 / 2$ feet off the floor. As he lifted the box up to approximately chest-level, in order to place it on a shelf, he felt a sharp pain and an "electrode" sensation in his middle back.

Although the parties are in agreement that Mr. Pulliam sustained a compensable injury on July 4, 2016, the parties dispute the nature and extent of the work injury. In context of this issue, Mr. Pulliam was questioned on both direct and cross-examination regarding histories contained in the records of Dr. Sanders and Dr. Brockman. Mr. Pulliam testified that he told both doctors that his back problems began after the accident of July 4, 2011. In regard to this concern, the report of injury filed by the employer and insurer in this matter reflects a history consistent with Mr. Pulliam's testimony, i.e., that he reported the injury to his employer on the date of the accident and described it as occurring when he lifted a box of meat. Moreover, both Dr. Koprivica and Dr. Halfaker testified that there was nothing inconsistent with the histories reflected in the records of Dr. Sanders and Dr. Brockman.

Also, Mr. Pulliam provided testimony regarding an incident of September 5, 2011, when he collapsed because of numbness in his legs. The relevance and significance of this September 5 event is examined in context of Mr. Pulliam's medical history. Notably, prior to September 5, on September 1, Mr. Pulliam presented to Dr. Sunghoon Lee, a nuerosurgeon. At that time, Mr. Pulliam's complaints had worsened significantly. He still experienced intense pain in the mid part of his back, with some pain in his lower back. However, the numbness and tingling in his legs had worsened to the point where he was having difficulty walking. Later, on September 5, 2011, Mr. Pulliam presented to the Mercy Hospital Emergency Room, which resulted in him undergoing emergency surgery for the herniated disc in his thoracic spine.

The presentation to the emergency room occurred immediately following the September 5 incident. Notably, at approximately 8:00 a.m. on that date, Mr. Pulliam was standing in front of his refrigerator and reached for an item when his legs went numb, causing him to collapse. Mr. Pulliam called his brother to assist him and an ambulance was called. He was taken by ambulance to Mercy Hospital, where he underwent emergency surgery for a herniated disc in his thoracic spine, on September 5, 2011. Dr. Lee performed the following surgery: decompression with fusion from T7 to T9 to treat a T7 - T8 thoracic disc herniation with the development of thoracic myelopathy.

The lifting of an item out of the refrigerator is not an independent intervening incident causing the herniated disc. Dr. Koprivica testified at length that the September 5 incident did not cause an injury, but rather occurred because of the herniated disc at T7 - T8, for which employee underwent emergency surgery on September 5, 2011. Also, all doctors who have addressed the issue of causation in this matter opined that the accident of July 4, 2011 caused the herniated disc at T7 - T8 and necessitated the surgery performed by Dr. Lee on September 5, 2011. Dr. Koprivica expressly so opined, as did Dr. Corsolini. Dr. Qureshi also opined that the accident of July 4, 2011 resulted in injury.

After consideration and review of the evidence, I find and conclude that the accident of July 4, 2011, was the prevailing factor in causing Mr. Pulliam to sustain an injury in the nature of a herniated disc of the thoracic spine at the level of T7 - T8 with the development of thoracic myelopathy for which employee required a surgical decompression with fusion from T7 - T9. Further, I find and conclude that the injury caused by the accident of July 4, 2011, is not limited to the physical injury sustained by Mr. Pulliam - it includes a psychological injury. Although this psychological injury may not be readily visible or understood by the casual observer, it is no less real to Mr. Pulliam.

In context of Mr. Pulliam sustaining a psychological injury, characterized by Dr. Halfaker as psychological overlay, I find and conclude that the accident of July 4, 2011, was the prevailing factor in causing Mr. Pulliam to sustain a psychological injury in the nature of a (1) pain disorder associated with both psychological factors and a general medical condition, chronic (Axis I, 307.89); and (2) an adjustment disorder with mixed anxiety and depressed mood, chronic (Axis I, 309.28). In rendering this decision I am persuaded by the testimony and opinions of Dr. Koprivica and Dr. Halfaker. To the extent there are differences of medical opinion and/or psychological opinion, I resolve such differences in favor of Dr. Koprivica and Dr. Halfaker, who I find credible, reliable and worthy of belief.

In light of the foregoing, I find and conclude that the employee, Gregory Pulliam, is governed by the physical restrictions imposed by Dr. Koprivica. These restrictions include having ad lib ability to change between sitting, standing, and walking, with sitting intervals of 30 minutes or less. Further, the restrictions imposed by Dr. Koprivica include restrictions from squatting, crawling, kneeling, or climbing entirely; and Mr. Pulliam is limited to waist high lifting to a sedentary physical demand, which is 10 pounds. Moreover, the psychological injury serves as a hindrance and an obstacle to Mr. Pulliam performing occupational, educational, and social activities. Psychologically, because of the work injury, Mr. Pulliam suffers serious symptoms or impairment in his ability to function and perform activities.

The employee seeks an award for future medical care. The adjudication of this issue requires consideration of Section 287.140 RSMo, which provides, in pertinent part:

1. [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.

In order to receive an award of future medical benefits under Chapter 287, RSMo, an employee does not need to show "conclusive evidence" of a need for future medical treatment. Instead, the employee need only show a "reasonable probability" that because of his workrelated injury, future medical treatment will be necessary. Stevens v. Citizens Memorial Healthcare Foundation, 244 S.W. 3d 234, 237 (Mo. App. S. D. 2008). In this context it must be shown that the need for future medical care "flows(s) from the accident." Landers v. Chrysler Corp., 963 S.W. 2d 275 (Mo. App. 1997) at 283. Further, the phrase "to cure and relieve" has been construed to mean treatment that "give comfort even though restoration to soundness is beyond avail." Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo. App. 1996) (parenthesis omitted).

In regards to the issue of future medical care, multiple physicians opine that as a consequence of the work injury of July 4, 2011, the employee will require additional or future medical care in order to cure and relieve him from the effects of the injury. In this context, Dr. Koprivica opined that Mr. Pulliam would need future medical treatment, indefinitely, for the injury of July 4, 2011, including psychological treatment, medication, and evaluations with a neurosurgeon. Similarly, Dr. Corsolini indicated in his final report that Mr. Pulliam could continue to take medication for his injury of July 4, 2011, as needed. In addressing the psychological injury, Dr. Halfaker opined that Mr. Pulliam will need ongoing use of psychological medication in order to treat the injury of July 4, 2011. Dr. Koprivica and Dr. Halfaker thus agree that Mr. Pulliam will need continuing medical treatment as a result of the injuries he sustained on July 4, 2011, and this treatment is an ongoing need in order to cure and relieve him from the effects of his injuries. This treatment includes medical and psychological care for both his physical and mental conditions.

In responding to the issue of medical care, Mr. Pulliam testified credibly regarding the medication he currently takes. This medication is prescribed by his personal physician, Dr. Lily. Dr. Lily's prescriptions for those medications are reflected in his medical records, which were admitted into evidence.

Accordingly, based upon the testimonies of Dr. Koprivica and Dr. Halfaker, as well as Mr. Pulliam, there is substantial and competent evidence to find and conclude that the employer and insurer are responsible for providing the employee with future medical care in order to help alleviate the effects of the injuries. Therefore, the employer and insurer are ordered to provide the employee, Gregory Pulliam, with such medical and psychological care as may be reasonable, necessary and causally related to the work injury of July 4, 2011.

The parties dispute the nature and extent of permanent disability caused by the work injury of July 4, 2011, including consideration of whether the employee is permanently and totally disabled as a consequence of the work injury, considered alone, or in combination with a

preexisting injury or disability. The adjudication of this issue requires consideration of Section 287.020.6, RSMo, and applicable case law. Section 287.020.6, RSMo states:

The term 'total disability' as used in this chapter [Chapter 287] shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

In giving meaning to this provision the courts have provided instruction and guidance. "The test for permanent total disability is whether, given the claimant's situation and condition, he or she is a competent to compete in the open labor market. [citation omitted] The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hire." Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 367 (Mo. App. 1992).

Also, where permanent total disability is alleged, the Administrative Law Judge must first consider the liability of the employer in isolation by determining the degree of disability due to the last injury. APAC Kansas, Inc. v. Smith, 227 S.W.3d 1,4 (Mo. App.W.D. 2007). If the claimant (employee) is not permanently and totally disabled from the last accident, then the degree of disability attributable to all injures is determined. 227 S.W.3d at 4. Further, in considering employer liability several additional principles bear reprise.

The inability to return to any employment means the inability to perform the usual duties of the employment in a manner that such duties are customarily performed by the average person engaged in such employment. Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849 (Mo. App. S.D. 1995). In determining whether the claimant can return to employment, Missouri law allows the consideration of the claimant's age and education, along with physical abilities. BAXI v. United Technologies Automotive, 956 S.W.2d 340 (Mo. App. E.D. 1997). While "total disability" does not require that the claimant be completely inactive or inert, Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo. App. S.D. 1996), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. Banc 2003), it does require a finding that the employee is unable to work in any employment in the open labor market, and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. S.D. 2001), overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003). The central question is: In the ordinary course of business, would any employer reasonably be expected to hire Claimant in his [or her] physical condition? Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 732 (Mo. App. W.D.2000) overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003).

In asserting his claim, Mr. Pulliam contends that the work injury of July 4, 2011, causes him to be governed by work restrictions that restrict him to less than full sedentary work, and these restrictions render him unemployable in the open and competitive labor market. Mr. Pulliam relies principally upon the medical opinion of Dr. Koprivica, the psychological opinion of Dr. Halfaker and the vocational opinion of Mr. Eldred. The employee further asserts that he has difficulty sleeping because of pain and anxiety. Also, Mr. Pulliam asserts that he must lie

down 3 to 4 times per day, for 20 to 40 minutes each time, to relieve the pain in his back and legs. He continues to take Oxycodone for pain, Lorazepam for anxiety, and Ambien to help him sleep.

The employer and insurer dispute Mr. Pulliam's contention that he is permanently and totally disabled. The employer and insurer assert that Mr. Pulliam need not be governed by the work restrictions imposed by Dr. Koprivica, and Mr. Pulliam need not be governed by the selfimposed restriction of needing to lie down during the day. In this regard, the employer and insurer rely principally upon the psychological opinions of Dr. McKenna and the video surveillance of Mr. Pulliam, taken on multiple days. The employer and insurer suggest that Mr. Pulliam is malingering and magnifying the severity of his injury and symptoms. The employer and insurer thus contend that that Mr. Pulliam could engage in more vigorous physical activities and could work, if he wished to work. In support of their contention, the employer and insurer point to the video surveillance activities, which highlight Mr. Pulliam's use of his cane as a pointer, as well as his ability to walk with minimal or no difficulty.

I agree that the video surveillance suggests that Mr. Pulliam need not use or be dependent upon his cane. He uses his cane as a pointer, and much like a walking stick, similar to how a hiker might use a walking stick while traversing a walking trail. As such, I do not believe that Mr. Pulliam suffers physically the severity of his symptoms, as intensely as he alleges. Nor am I persuaded that physically, because of his physical injury, Mr. Pulliam must lie down during the day. Thus, I am in agreement that Mr. Pulliam is magnifying the severity of his symptoms.

However, as testified to by Dr. Halfaker, symptom magnification is not equivalent to malingering, and can be associated with a number of psychological disorders such as somatoform disorders, factitious disorders, and malingering. In this regard, Dr. Halfaker opines that the symptom magnification presented in this case by Mr. Pulliam is not malingering, and Mr. Pulliam does not suffer from a factitious disorder. Rather, Dr. Halfaker opines, Mr. Pulliam suffers from a psychological injury in the nature of a somatoform psychological disorder, and the symptom magnification exhibited by Mr. Pulliam is associated with the psychological injury sustained by Mr. Pulliam as a consequence of the work injury of July 4, 2011. Dr. Halfaker thus concludes that "the psychological factors presented in this case impact the onset, duration, severity, and maintenance of his [Mr. Pulliam's] complaints. The psychological overlay in this case is thought to exaggerate the expression of the underlying objective physical impairment."

The accident of July 4, 2011, was the prevailing factor in causing Mr. Pulliam to sustain an injury in the nature of a herniated disc of the thoracic spine at the level of T7 - T8 with the development of thoracic myelopathy for which Mr. Pulliam required a surgical decompression with fusion from T7 - T9. The nature of this physical injury causes Mr. Pulliam to suffer residual and continuing pain in his midback to his low back, as well as numbness and pain radiating into low extremities. Further, I find and conclude that as a consequence of suffering this physical injury, Mr. Pulliam sustained additional injury in the nature of psychological overlay, which impacts the onset, duration and maintenance of Mr. Pulliam's complaints, causing him to suffer significant psychological impairment and accompanying disability that affects his occupational, educational, and social functioning.

As a consequence of this injury Mr. Pulliam is governed by significant permanent work restrictions. Three physicians have addressed permanent restrictions attributable to the injury of July 4, 2011; Dr. Sunghoon Lee (the authorized treating surgeon), Dr. Thomas Corsolini (an authorized treating physician), and Dr. Brent Koprivica (an examining physician). Each physician imposes significant permanent restrictions upon Mr. Pulliam. It is particularly significant that Dr. Lee, the treating surgeon, assessed permanent restrictions limiting employee to lifting no more than 5 pounds, and working no more than 4 hours per day. Dr. Koprivica also assessed a number of significant restrictions, including the ability to alternate between sitting and standing on an ad lib basis as well as other significant restrictions.

Mr. Pulliam takes a number of medications, including narcotic pain medication. He explained that he has difficulty concentrating and maintaining information. Dr. Koprivica testified that those problems are consistent with the use of narcotic pain medication. In light of the nature of the injury sustained by employee and his ongoing problems, I find the restrictions of the doctors noted above to be credible and persuasive. I also note that there is no medical opinion contradicting the restrictions noted above.

Although Dr. Halfaker and Dr. McKenna disagree regarding the severity of the employee's psychological problems, it is apparent that both find that he suffers from a chronic pain disorder. Yet, to the extent there are differences, I find Dr. Halfaker's testimony to be both credible and persuasive.

Finally, only one vocational expert testified in this matter. Of particular significance, Mr. Eldred opined that the restrictions of Dr. Lee, Dr. Corsolini and Dr. Koprivica place employee into the less than sedentary exertional level. At that exertional level, he cannot return to any of his prior employments, has no transferable skills, cannot be retrained, and is unemployable in the open labor market. Mr. Eldred opined that employee was permanently totally disabled solely as a result of the injury of July 4, 2011. Although questioned about the issue of psychological disability, Mr. Eldred testified that Mr. Pulliam was totally disabled when considering only his physical restrictions. I find Mr. Eldred's testimony to be credible and persuasive. Although Mr. Eldred was questioned regarding isolated tasks that employee might be able to perform, Mr. Eldred repeatedly and unequivocally opined that the employee would not be able to perform any job in the open labor market.

Therefore, after consideration and review of the evidence, I find and conclude that the restrictions caused by the accident of July 4, 2011, in combination with both the physical and psychological injury, the employee is unemployable in the open and competitive labor market. Similarly, I find and conclude that as a consequence of the accident of July 4, 2011, considered alone, the employee is permanently and totally disabled. The employer and insurer are thus ordered to pay to the employee, Gregory Pulliam, the sum of $\ 387.10 per week for the employee's lifetime. The payment of permanent total disability compensation by the employer and insurer is effective as of March 19, 2012, when he reached maximum medical improvement and his condition became permanent. As such, the employer and insurer are entitled to a credit the amount of $\ 5,297.43 relative to payment of permanent total disability compensation. (The parties acknowledge that the employer and insurer paid additional temporary disability

compensation in the mount of $\ 5,297.43, subsequent to Mr. Pulliam's condition being rendered permanent, from March 19, 2012 to October 12, 2012. Accordingly, the employer and insurer are entitled to a credit for overpayment of temporary total disability compensation.)

In rendering this decision, I am not unmindful of the video surveillance and the apparent symptom magnification exhibited by Mr. Pulliam. To be sure, without the presence of the psychological injury Mr. Pulliam's response to the physical injury would likely be better. However, Mr. Pulliam is not malingering; the psychological injury is real and its effect upon him is real. He is governed by restrictions that render him unemployable in the open and competitive labor market.

In light of the foregoing, the Claim for Compensation, as filed against the Second Injury Fund is denied.

III.

Attorney Lien

The compensation awarded to employee shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of John Wise, Esq. for necessary and reasonable legal services rendered to employee. Attorney Wise is responsible for satisfying the outstanding lien filed by the law firm of Mark \& Burkhead in the amount of $\ 660.59.

This award is subject to review and modification as provided by law. Interest shall be paid as provided by law.

Made by: /s/ L. Timothy Wilson

L. Timothy Wilson

Chief Administrative Law Judge

Division of Workers' Compensation