Patrick Hull v. Dr. Pepper-Seven Up Bottling

Neither the worker's ability to engage in occasional or light duty work nor the worker's good fortune in obtaining work other than through competition on the open labor market should disqualify the worker from receiving such total disability benefits under the Workers' Compensation Law.

Brashers v. Treasurer of the State As Custodian of the Second Injury Fund, 442 S.W.3d 152, 162-63 (Mo. App. 2014)(citation omitted).

Employee's work and his above-described earnings are not, in our view, evidence of an ability to compete for and secure substantial, gainful employment in the open labor market and employee's present accommodations with his employer are at a level that we find to be incompatible with any normal or customary job duty requirements. In other words, we do not find the evidence of employee's ongoing, minimal employment to rebut the credible (and, in our view, overwhelming) evidence that employee is not capable of competing for work in the open labor market.

For this reason, and because we otherwise agree with the administrative law judge's analysis, we affirm the award of permanent total disability benefits from the Second Injury Fund.

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Suzette Carlisle, issued October 26, 2016, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 15th day of August 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Hearing Date: July 20, 2016

Checked by: SC

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 12, 2008
5. State location where accident occurred or occupational disease was contracted: St. Charles 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 moving products on a two-wheeler, Claimant was hit in the head with a soccer ball.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Left knee, right knee, cervical spine, back and psychiatric injuries
14. Nature and extent of any permanent disability: 22.5 percent of left knee, 12.5 percent of right knee, 10 percent BAW neck, back and psychiatric (Settled)
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? $\ 15,115.23

1. Value of necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 588.80
3. Weekly compensation rate: $\$ 392.53 / \ 392.53
4. Method wages computation: Stipulated

1. Amount of compensation payable:

(Settled with Employer and Insurer prior to the hearing)

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

$\ 392.53 per week payable by SIF for 96 weeks beginning

$10 / 23 / 12$ and, thereafter, for Claimant's lifetime

TOTAL: TO BE DETERMINED

1. Future requirements awarded: N/A

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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Attorney Robert Meyers

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patrick Hull

Hearing Date: July 20, 2016

On June 21, 2016, Mr. Patrick Hull ("Claimant") appeared at the Division of Workers' Compensation St. Louis Office ("Division") and requested a hearing for a final award to determine the liability of the Second Injury Fund ("SIF") for either permanent partial disability ("PPD") or permanent total disability ("PTD") benefits. Attorney Robert Meyers appeared on behalf of Claimant. Assistant Attorney General Barbara Toepke appeared on behalf of the SIF.

Prior to the hearing, Dr. Pepper-Seven Up Bottling Company ("Employer") and Zurich American Insurance Company c/o Gallagher Bassett ("Insurer"), settled with Claimant for 22.5 percent of the left knee, 12.5 percent of the right knee, and 10 percent of the body as a whole ("BAW") for the cervical spine, back and psychiatric injuries. The Employer and Insurer did not participate in the hearing. The record closed after presentation of all the evidence. The proceeding was transcribed by Court Reporter Stacy Benoist.

The parties stipulated to the following:

1. That on November 12, 2008, the Claimant was employed by the Employer and sustained an accident that arose out of and in course of his employment in St. Charles County located in the State of Missouri;
2. The parties consent to a hearing in St. Louis, Missouri;
3. The Employer and Claimant operated under the Missouri Workers' Compensation Law ${ }^{1}$;
4. The Employer's liability was fully insured by Zurich American Insurance Company;

[^0]

[^0]: ${ }^{1}$ Any reference to the Employer in this award also refers the Insurer unless otherwise stated. WC-32-R1 (6-81)

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patrick Hull

Injury No.: 08-117368

1. The Employer had proper notice of the injury;
2. A claim for compensation was timely filed;
3. Claimant's average weekly wage was $\ 588.80 which resulted in a rate of $\ 392.53 per week for temporary total disability ("TTD"), permanent total disability ("PTD") and permanent partial disability ("PPD") benefits;
4. The Employer paid no TTD benefits;
5. The Employer paid medical benefits totaling $\ 15,115.23; and
6. Claimant reached maximum medical improvement ("MMI") on December 20, 2010.

The parties identified one issue for disposition: The nature and extent of the SIF's liability for either PPD or PTD benefits, if any.

Claimant offered Exhibits 1 through 18, and Exhibits 1 through 12 and 14 through 18 were admitted into evidence without objections. Exhibit 13 was withdrawn. The SIF offered Exhibits I through III which were admitted without objection. 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.

Claimant is a high school graduate. He was tutored through junior high while he lived with another family away from his home. Claimant is divorced with four children, three of them have been diagnosed with psychiatric problems. At this time, McKenzie is the only child that resides with Claimant and she is dependent on him for support. All four children lived with Claimant until August 2015 and he supervised their activities. In 2015, Claimant moved to Madison, Wisconsin, so McKenzie could play hockey.

a. Claimant's left knee was surgically repaired by Dr. Lehman around 1973. Claimant missed three months from work,

b. Psychiatric conditions: In the 1980s, Claimant was treated after his first wife died in an automobile accident. He attempted suicide and was placed in a three day hold. In 2003 and 2004, he treated with Dr. Dale Anderson for a bipolar condition with depression and anxiety. Leading up to 2008, he had headaches, needed to lie down due to depression and anxiety, and he had thoughts of suicide.

c. Following a car accident unrelated to work in 1991, Claimant had surgery for bilateral carpal tunnel syndromes and his left elbow. Leading up to 2008, his fingers and hands locked with numbness and swelling, which affected his ability to pinch, grip, and grasp. His elbow was sore and ached, which affected his ability to lift, push, pull and carry weight on a repetitive basis.

d. In 2000, a right knee injury following a motor vehicle accident resulted in surgery being performed by Dr. Fagan. Leading up to 2008, Claimant had right knee pain which affected his interaction with his children. He cannot walk the dog. His daughter handles her own laundry.

e. In 2002, Claimant sustained another left knee injury at work that was surgically repaired by Dr. Leslie Thomas. Leading up to 2008, left knee pain made it hard to walk, lift, push, pull, carry weight and perform repetitive activities. After knee surgeries, Dr. Stahle provided injections. Before 2008, he walked with pain but worked 40-60 hours a week. He had some problems with driving more than an hour. He also had knee pain but did not miss work.

f. Claimant received physical therapy and injections for work-related back injuries in 1988, 1991, 1992, 1999, and 2002. In 2002, Dr. Chris Wilson performed surgery at L3-4 and L4-5, followed by injections. Leading up to 2008, he had low back pain with walking and could not run. He could drive up to an hour. He could push 30 pounds on wheels, 10 pounds without wheels.

g. Claimant had two more surgeries on his wrists. Prior to 2008, both wrists/hands had limited mobility. His hands cramped, his fingers locked and swelled, and he had problems with pinching, pulling or carrying items. His hands have gotten worse since 2008.

h. While playing hockey, Claimant sustained concussions at least six times. Each time he suffered a concussion he continued to play. Failure to play would result in him being sent to the minors. Leading up to 2008, he had headaches, depression, anxiety, dizziness, thoughts of suicide and short term memory loss. At work, he took naps on pallets and people in the grocery store woke him.

During Claimant's deposition in 2011, he testified he could lift two or three cases of soda when he worked for Employer, climbed stairs without difficulty, worked up to 60 hours per week, and walked and stood 50 percent of the time at work.

Claimant has prior workers' compensation settlements in Missouri and Kansas.

For three years, Claimant played with the World Hockey Association for the Winnipeg Jets. After the 2008 accident, he coached his children in hockey and several times he wore skates. At one time Claimant worked as a referee for ice hockey games.

Over the years, Claimant worked for a number of bakeries and soda companies. Employer hired Claimant as a merchandiser/driver-trainee. He delivered products to stores and set up merchandise displays.

On November 12, 2008, he sustained a concussion when he was hit in the back of the head with a soccer ball by a co-worker. Claimant treated with Drs. Katz, Stahle, and Lehman but does not remember seeing Dr. Doll. Dr. Stahle prescribed narcotic medication but he does not take it. Claimant was terminated on November 12, 2008, because he failed the CDL examination three times because he could not properly check hoses, parallel park and back up straight.

After the 2008 work injury, Claimant tried working for UPS but quit after two days because he could not climb in and out of the truck and walk as needed.

In November 2013, Claimant began working at Kellogg sales in St. Louis as a merchandiser where he worked until August 2015 when he moved to Madison, Wisconsin, with his youngest daughter, McKenzie. While at work in St. Louis, he took naps in his car. He resigned in St. Louis and was hired on a part-time basis by the Madison location with the help of a friend in Kansas City because of his hockey experience.

He works with a full-time merchandiser. Sometimes the merchandiser will place full cases of crackers in Claimant's shopping cart and wheel them out to the shelf. Claimant lifts 12 ounce boxes of crackers out of the cart and displays them on the shelf one at a time. The work is very similar to the work he has done in the past. Now, he works five hours a day, three or four days a week. He cannot work more than five hours because he cannot maintain his concentration and he needs to lie down and rest. His employer lets him rest in the store or his car.

In 2009, Claimant was awarded Social Security Disability ("SSD") benefits. His current resources include SSD for himself and McKenzie, and wages from his employment, and child support. Recently, Claimant was reviewed and approved to continue receiving SSD benefits.

Records from the Missouri Division of Employment Security show Claimant earned the following wages between 2008 and 2015:

- Fourth quarter of 2008 - $\ 87.00

- First quarter of 2009 total - $\ 247

- Fourth quarter of 2009 - $\ 190.

- Fourth quarter of 2013 - $\ 582

- First quarter of 2014 - \1,967;

- Second quarter of 2014 - \ 1,957;

- Third quarter of 2014 - \$2,247;

- Fourth quarter of 2014 - \$2,342;

- First quarter of 2015 - \$1,851.12;

- Second quarter of 2015 - \$1,890.64; and

- Third quarter of 2015 - \$1,734.82.

Claimant describes himself as "busted up." Periodically, he has to lie down because o pain to his knees, back, elbow, neck and headaches. He has decreased range of motion of the cervical spine. His back pain with no activity is a $3 / 4, with 10 being unbearable. With activity, his back pain increases to 6 / 7$ out of 10 . Claimant has short term memory loss. Since 2008, the pain has worsened in Claimant's knees, back and hands.

In 2012, Claimant stopped coaching and refereeing his children's games. However, he coaches from the stands. He can no longer attend Blues and Cardinal games because his knees are less mobile and it is not comfortable for him to walk. He could not climb onto a bike for physical therapy sessions.

Regarding his psychological problems, Claimant's wife died in the 1980's while carrying twins. He was battered by his children on several occasions. His middle daughter was sent to Lakeside because she hit him. His children received psychiatric treatment from Dr. Schulman. He considered suicide but has not attempted it. His ex-wife Kim hit him and accused him of hitting her. He forgets where he put his wallet and keys in public places. Since 2008, Claimant experiences more anxiety and nervousness.

Claimant only sleeps two to three hours per night because of pain to his back, elbow, neck, and head. He lies awake with anxiety trying to figure out how to relieve the pain. It is hard for him to get up in the morning. Claimant can lift 20 pounds with both hands but pinching items bothers his hands and elbows. His hands tingle.

On a typical day, he struggles to get up. When he is off work, he rests/reclines two to three times a day. At work, he works with a merchandiser who permits him to nap in the car during slow times. When driving, he stops every 40 minutes. This is how he drove from Wisconsin to St. Louis for the hearing. He picks his daughter up from school and takes her to practice. While she is at practice, Claimant alternates between sitting in the car and watching her play. He drove his daughter to two out of state tournaments and alternated between sitting and standing. At home he prepares dinner.

After 2008, his children did more housework. He took the children grocery shopping and used the cart as a walker. McKenzie launders her own clothes and the washing machine is located on the first floor, which enables Claimant launder his clothes.

Claimant does not think he can work full time due to his lack of concentration and his need for naps. Claimant has experienced more dizziness since 2008. He has headaches with activity on a scale of $4 / 5$, with 10 being unbearable.

During the hearing, I observed Clamant stand four on four occasions for 30 about seconds each time. At one point he started to cry. Attorney Meyers described on the record that Claimant has a substantial limp and partially moves sideways when he walks.

James T. Doll, M.D., evaluated Claimant on December 2, 2009, and administered blocks to Claimant's low back to relieve low-back pain. On June 16, 2010, Dr. Doll administered a second round of low-back blocks.

An MRI of the right knee dated March 26, 2009 revealed tricompartmental osteoarthrosis with a chondral defect in the medial femoral parenchymal inferiorly and abnormal signal of the posterior horn of the medial meniscus, which may be related to a prior meniscal surgery, and a small joint effusion with small cysts. A meniscal re-tear cannot be definitely excluded, therefore, further evaluation with an arthrogram was recommended.

The MRI of the left knee dated February 26, 2009, revealed moderate tricompartmental osteoarthrosis with incomplete, if not complete, full thickness articular cartilage loss in the medial femorotibial compartment, cartilage loss in the patellofemoral joint, cysts, and horizontal oblique tearing and the posterior horn of the medial meniscus is "macerated and torn and there is peripheral extrusion of the body of the medial meniscus."

Richard Lehman, M.D., treated Claimant for both knees in 2009. Claimant treated with Dr. Lehman's office and received a left knee surgery on June 19, 2009, to repair a torn medial meniscus and a torn lateral meniscus.

On August 31, 2009, Dr. Lehman repaired Claimant's right medial meniscal tear related to the work injury. Dr. Lehman reported lateral tibial plateau grade 3 changes which he debrided with. Fragmented areas were smoothed out.

Dr. Stahle performed injections on August 3, 2010, October 18, 2010, 25, 2010, November 1, 2010, and November 30, 2010 for degenerative joint disease.

On July 8, 2010, Dr. Stahle treated Claimant for neck complaints related to the work incident on November 12, 2008. Dr. Stahle injected Claimant's cervical spine on March 22, 2010, March 29, 2010, April 6, 2010; and April 13, 2010.

An MRI of the cervical spine dated July 9, 2010, revealed a central disk bulge at C5-6 and C6-7 without herniation or nerve root impingement.

On December 20, 2010, Dr. Solman examined Claimant's bilateral knees at the request of Dr. Stahle. Claimant had a history of receiving cortisone injections when he played hockey, and his knee was drained several times.

Examination revealed mild varus deformity, tenderness to palpation and mild crepitus. X-rays revealed bilateral knee osteoarthritis. A total knee replacement was discussed with Claimant.

Medical records show that Claimant saw Dale Anderson, M.D., from December 16, 2009, to August 2, 2010. During that time, Claimant reported various feelings of depression and anxiousness, incidents where his children verbally and physically abused him. He expressed feelings of hopelessness and suicidal thoughts. He reported he attends NA meetings and has been drug free for 20 years. During the last visit on August 2, 2010, Claimant reported continual severe anxiety but noted that the family arguments had decreased and, therefore, his anxiety had decreased by more than 10 percent.

Dr. Richard T. Katz, M.D., performed an independent medical evaluation on January 14, 2010, at the request of the Employer and Insurer. After a review of Claimant's history of the November 12, 2008, work injury, reported diagnoses, MRIs, treatment, medical reports review and current complaints, Dr. Katz made the following conclusions:

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patrick Hull

Injury No.: 08-117368

1. He was not asked to evaluate Claimant's knees, however, he noted, "clear-cut bilateral long-standing degenerative and traumatic changes to both knees that disputed the November 12, 2008, injury."
2. Dr. Katz also diagnosed that Claimant may have mild dementia, which he recommended neuropsychological testing to confirm, and related it to his prior history of trauma as a hockey player, which would be unrelated to contact with the soccer ball.
3. Dr. Katz also noted Claimant's "slow gait" and that it had been noted over 10 years ago and was unrelated to his date of injury. He found no disorder of the cervical spine that would prevent him from returning to work. At that point, there was no cervical spine MRI and he did not recommend obtaining one.
4. Claimant's complaints of headaches and dizziness were determined to be non specific symptoms of unclear ideology. Therefore, Dr. Katz found no problem in continuing these as neurologic testing. However, he found that they were not severe enough to prevent him from returning to his prior employment. Dr. Katz did not recommend any additional treatment except possibly for further evaluation of the dementia, notwithstanding the knee problems which he did not discuss.
5. Dr. Katz concluded that Claimant could continue to work and he found no permanent partial disability from the accident, not discussing the knees. He was open to reviewing neurologic records if they became available.

David T. Volarich, D.O., an expert independent medical examiner, reviewed medical records, examined Claimant, and wrote a report and testified at the request of Claimant's attorney.

On January 17, 2011, Dr. Volarich made the following diagnoses related to Claimant's primary injury on November 12, 2008:

1. Closed head trauma,
2. Cervical spine contusion with mild disk bulging at C5-6 and C6-7 with no radiculopathy,
3. Partial medial meniscectomy of the right knee, and
4. Partial medial and lateral meniscectomy of the left knee.

With regard to disability from the November 12, 2008 work injury, Dr. Volarich rated the following disabilities:

1. 2.5 percent PPD of the body as a whole for the head due to closed head trauma,
2. 17.5 percent PPD of the body as a whole for the cervical spine,
3. 30 percent PPD of the right knee, and

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patrick Hull

1. 35 percent PPD of the left knee.

Dr. Volarich rated the following medical conditions that existed before November 12, 2008:

1. 45 percent permanent PPD of the left knee,
2. 25 percent PPD of the right knee,
3. 25 percent PPD of the left elbow,
4. 20 percent PPD of the right wrist,
5. 20 percent PPD of the left wrist, and
6. 35 percent PPD of the body as a whole for the low back at L3-4 and L4-5.

Dr. Volarich concluded Claimant's preexisting disabilities were a hindrance to his employment or re-employment.

In addition, Dr. Volarich concluded Claimant had disability from ADHD, dementia, and other psychiatric conditions; however, he deferred to a psychiatric evaluation for an assessment of those conditions.

Dr. Volarich further concluded the combination of Claimant's disabilities created substantially more disability than the simple sum of each separate injury; therefore, a loading factor should be added.

Therefore, Dr. Volarich opined Claimant was unable to work in any type of "substantial gainful activity" and could not perform ongoing work activity in the future. Nor did he expect Claimant to work eight hours a day, five days a week throughout the year or be able to continue the work he performed in the past or any similar type of employment.

In summary, based on the medical evaluation, Dr. Volarich opined Claimant is permanently and totally disabled as a result of the injuries he sustained from the November 12, 2008, work injury combined with his preexisting medical conditions and psychiatric disorders. He notes that Claimant is 53 years old (approaching advanced age), has an education limited to graduation from high school, and has worked as a driver or merchandiser the majority of his career and has not been able to get back to work since November 17, 2008, and now receives SSD benefits.

Dr. Volarich imposed a number of restrictions regarding Claimant's work and other activities related to his lower extremities after the November 12, 2008, injury. He further listed a number of limitations and recommendations related to work and other activities related to his lower extremities before November 12, 2008. In addition, he listed a number of

recommendations and restrictions regarding work and other activities related to his spine prior to November 12, 2008. ${ }^{2}$

Dr. Volarich further concluded the work injury on November 12, 2008 was the prevailing factor that caused injury to Claimant's bilateral knees and neck, and causing a closed head trauma. He further opined Claimant had reached MMI for those injuries.

During Dr. Volarich's deposition he learned Claimant had been working part time moving sale merchandise a few hours at a time. Dr. Volarich did not have a problem with Claimant trying to work; but he did not believe Claimant could perform the type of work he had done leading up to the November 12, 2008 work injury. However, he deferred to a vocational expert to determine if there were jobs in the open labor market that Claimant could perform within the restrictions.

On August 3, 2011, Dr. Katz re-evaluated Claimant. Although Dr. Katz was not asked to evaluate Claimant's knees, he noted that Claimant walked with a distinct, severe limp with considerable left knee pain.

Dr. Katz diagnosed the following medical conditions: mild to moderate dementia, bipolar disorder, and severe anxiety disorder. Dr. Katz continued to recommend neuropsychological testing to confirm this condition was related to his time as playing hockey. In addition, Dr. Katz has found a "psychosocial overlay that is a major factor at work in addition to dementia."

When Dr. Katz first examined Claimant in 2010, he denied receiving psychiatric treatment in the past. Now, Claimant reported a bipolar diagnosis bipolar in the past. He reported Dr. Anderson diagnosed a severe anxiety disorder and depression, which Dr. Katz denied was work related.

Dr. Katz noted Claimant's slow gait was observed over 10 years ago and is unrelated to his work injury. He found no disorder of the cervical spine that would prevent Claimant from working, confirmed by MRI. The headaches were not severe enough to prevent him from returning to his prior employment, which was confirmed by a normal MRI of the brain.

Dr. Katz concluded that Claimant may not be able to work and, if so, it is because of his preexisting dementia and psychiatric disease. He found no disability related to the work accident absent a discussion of Claimant's knees.

[^0]

[^0]: ${ }^{2}$ Dr. Volarich's record is not clear with regard to this last category because it reads, "With regard to work and the activities referable to his spine to 11/12/08." But based on the context of the rest of the report, this writer concluded he was talking about limitations to his spine prior to the November 12, 2008, injury. WC-32-R1 (6-81)

Dr. Katz disagreed with Dr. Volarich's causation opinions and his ratings. He concluded Claimant's injuries are psychiatric, but not work related. He believed their source was neurological, preexisting dementia and severe mood disease.

Michael P. Nogalski, M.D., examined Claimant on August 8, 2011, at the request of the Employer. After a review of Claimant's history at work and his past medical history, a review of x-rays, and based on physical examination and medical records in evidence prior to the 2008 injury and including treatment for the 2008 injury, Dr. Nogalski made the following conclusions:

1. The November 12, 2008, injury was the prevailing factor in causing the need for further treatment of the left knee, which included diagnostic and possibly therapeutic arthroscopy. Dr. Nogalski concluded Claimant's work injury of November 12, 2008, was the prevailing factor that caused a medial meniscal tear, but that meniscus was "macerated and extruded even on the MRI, so much of this was preexisting."
2. Dr. Nogalski's opined; "There is absolutely nothing that suggests he had a right knee injury related to the 2008 work injury." Therefore, the 2008 work injury was not the prevailing factor that caused his need for right knee treatment.
3. Dr. Nogalski further opined the injury of November 12, 2008, was not the prevailing factor in the need for further treatment of his knees. He noted that Claimant had significant preexisting problems in both knees at the time of the November 12, 2008, work injury, which predated the claimed injury.
4. Dr. Nogalski concluded additional medical treatment may include total knee replacements, which was not related to the November 12, 2008 work injury.
5. Dr. Nogalski rated 6 percent permanent partial disability of the left knee for the November 12, 2008, injury. For preexisting disability, Dr. Nogalski rated "at least 20 percent permanent partial disability of both lower extremities at the knee."
6. Dr. Nogalski further recommended Claimant work at a sedentary job. He noted Claimant's gait "appears to be somewhat unsteady." Dr. Nogalski further predicted Claimant would have a difficult time walking or standing for any length of time. The maximum time he could stand or walk was 40 minutes per hour. Dr. Nogalski imposed the following restrictions: no squatting, or climbing more than 2 feet off the ground, or lifting more than 20 pounds. Dr. Nogalski concluded these restrictions were not related to the November 12, 2008, work injury.

Jay L. Liss, M.D., a certified psychiatric physician, examined Claimant on October 26, 2011, reviewed medical records, wrote a report and testified at the request Claimant's attorney. During the evaluation, Dr. Liss performed the following tests: The Beck Depression Inventory, General Adult ADD Symptom Checklist, the Short Michigan Alcohol Screening Test, the Yale-

Employee: Patrick Hull

Injury No.: 08-117368

Brown Obsessive-Compulsive Symptom Checklist, and the Posttraumatic Stress Disorder Checklist.

Dr. Liss identified the following medical conditions which existed before November 2008: Attention Deficit Disorder, Bi-Polar Illness, Anxiety, and Post Traumatic Stress Disorder. ${ }^{3}$ In the past, these conditions limited his ability to succeed professionally. However, after the November 2008 work injury, the conditions worsened to the point Claimant could no longer work or function in any employment.

For the primary injury, Dr. Liss diagnosed 40 percent permanent partial psychiatric disability ("PPPD") of the person as a whole. For preexisting psychiatric disability, Dr. Liss rated 60 percent PPPD of the person as a whole. Therefore, Claimant was totally disabled because of his psychiatric disabilities.

During Dr. Liss' deposition, he learned Claimant worked after his evaluation in 2011. He was not aware of the details of Claimant's work but understood Claimant was stocking boxes in stores, which he concluded was not work. He maintained Claimant could not be trained and was unemployable. Dr. Liss testified that vocational evaluations, assessments and advice are a major part of his psychiatric treatment to patients, and he writes sick slips for patients.

Dr. Liss testified the global assessment function ("GAF") measure was abandoned in the psychiatric field because of misuse. It was not intended to determine a person's ability to work, however, that is what it has been used for. It is only supposed to identify a snapshot in time of a person's psychiatric condition. In Claimant's case, he had a GAF of 30, which according to Dr. Liss, represents very poor function.

Dr. Liss did not review any psychiatric medical records before or after the November 12, 2008, work injury. He supported his opinion by saying there are no diagnostic tests or blood tests that can determine psychiatric conditions and that diagnosis relies heavily on patient history. After Dr. Liss wrote his report, he did review a psychiatric IME report from Dr. Stillings which did not change his opinion about Claimant's ability to work.

Dr. Liss recommended "the usual psychiatric assistance and treatment" that would help Claimant deal with the "complications of survival with the successes of four children, and meeting his household demands and the psychiatric disabilities."

With regard Claimant being a battered spouse and parent, Dr. Liss said that this was a very complicated psychosocial situation. In 2011, Claimant took Cymbalta, an antidepressant, which caused him to be lethargic and have difficulty with coordination and alertness.

[^0]

[^0]: ${ }^{3}$ In Dr. Liss' report, he also lists bipolar illness as a preexisting condition; however, he did not include it on the diagnosis axis under any category.

During the evaluation, Dr. Liss observed Claimant was dressed informally, disheveled, missed lower teeth, appeared to walk with pain, and had difficulty rising from a seated position. Claimant was pleasant, although he expressed frustration with his disability. There was no evidence of delusions or hallucinations, but cognitive deficits were noted. Claimant was slow to answer questions and document dates. Dr. Liss diagnosed some dementia, and brain trauma related to hockey injuries. However, his insight and judgment were reasonable.

In summary, Dr. Liss concluded Claimant's earlier psychiatric diagnoses of ADD, bipolar, anxiety and post traumatic stress disorder interfered with his success earlier in life. Then after the November 2008 accident, Claimant's cognitive impairment, depression and anxiety worsened to the point he could no longer work or function in an employable situation. He relates the increased symptoms and disability to the November 2008 accident, which included both physical and emotional disabilities.

Wayne A. Stillings, M.D., a board certified psychiatrist, performed an independent medical evaluation on February 21, 2012, reviewed medical records and performed the following tests: The MMPI-2, MCMI-III, the SIMS results, wrote a report at the Employer's request.

Based on Claimant's psychiatric and medical histories, record review, family history, psychological testing and a mental status examination, Dr. Stillings reached the following conclusions:

1. The November 12, 2008, work incident is not the prevailing factor in developing Claimant's diagnosed psychiatric problems or in aggravating them or in his current psychiatric state,
2. Dr. Stillings found no psychiatric incident related to the November 12, 2008, work injury, therefore, he did not recommend any psychiatric treatment,
3. Dr. Stillings recommended Claimant begin treatment again for his preexisting psychiatric conditions as outlined under Axis I and II, and
4. Dr. Stillings rated zero percent permanent partial psychiatric disability of the body as a whole related to the November 12, 2008, work injury.

Results from the MMPI-2 revealed had subjective physical complaints that exceed what can be organically confirmed. Claimant was prone to using his subjective complaints to manipulate others and the system. When Claimant was under stress, Dr. Stillings Claimant had symantec reactivity, "his medical history is likely to be characterized by excessive and vague physical complaints, weakness, and pain."

Dr. Stillings concluded that Claimant is probably not incapacitated by his physical problems. He has hysterical defenses of denial and repression. Claimant is likely to have a psychological basis for his symptoms and is not interested in psychiatric treatment. "Some WC-32-R1 (6-81)

individuals with this profile report experiencing intractable pain, although there are no actual organic problems." He is likely to have some family problems that are causing him considerable concern. "His profile pattern indicates an interest in portraying himself as physically disabled. He reported extensive, vague, physical problems that are unlikely to be the result of a physical disorder. This is most likely the result of a long-term, chronic pattern of somatization that stems from basic ingrained personality problems. Individuals with this pattern often obtain substantial secondary gain from their symptoms."

Test results from the MCMI-III on Axis I revealed a somatization disorder and a mood disorder. Axis II revealed a personality disorder with depressive, schizoid, avoidance, and dependent personality traits.

The SIMS test results show Claimant over reported neurological, depressive, and memory dysfunction symptoms and low intelligence. His reporting style is to grossly over report his subjective complaints.

Dr. Stillings diagnosed the following psychiatric conditions:

Axis I -

1. Parent-child relational problems (emotionally and physically abusive mother), preexisting defined as prior to November 12, 2008.
2. Polysubstance abuse/dependence, recovering, preexisting.
3. Adult antisocial behavior (felony conviction in 1981 and at least two misdemeanor assault charges), preexisting.
4. Partner relational problems (marital problems, emotionally abusive ex-wife who is irresponsible), preexisting and ongoing.
5. Bipolar disorder, preexisting.
6. Attention deficit disorder, preexisting.
7. Parent-child relational problems (three children with multiple, significant, chronic and ongoing, severe psychiatric problems), preexisting and ongoing.
8. Somatoform disorder, NOS, preexisting.

Axis II - Personality disorder, NOS, with antisocial, aggressive, depressive, schizoid, avoidance, and dependent personality traits, with elements of exaggeration, preexisting.

Axis III - Per medical records.

Axis IV - Preexisting, ongoing emotional problems caring for four children, three children with major psychiatric problems with disruptive behavior, and interaction with the legal system.

Axis V - GAF equals 60 (low-moderate symptoms, functioning adequately from an emotional standpoint).

Mr. James M. England, Jr., a rehabilitation counselor, performed a record review, reviewed Claimant's two depositions, and wrote a report dated July 18, 2011, at the request of the SIF. He did not interview Claimant.

Mr. England concluded Claimant could not return to the level of work he performed before November 2008, based on Dr. Volarich's restrictions. However, he concluded Claimant could perform less physically demanding work, i.e. inside sales, utilizing knowledge and skills he acquired in the past. In addition, Mr. England concluded Claimant may succeed as a security officer, some cashier positions, customer service, and other sedentary to light occupations that offer the flexibility of movement recommended by Dr. Volarich.

Mr. England further concluded Claimant was not totally disabled unless his headache complaints were so bad he could not function and had to lie down several times a day. If so, Mr. England concluded Claimant's total disability would be the result of the primary injury because Claimant did not report this complaint before November 2008.

In a subsequent report dated December 7, 2011, Mr. England reviewed Dr. Liss' report from October of 2011 and concluded Claimant did not function as poorly as Dr. Liss described. Mr. England testified a person with a true GAF score of 30 was not capable of raising children independently, providing care for a household, monitoring children's behavior, and taking them to school. Furthermore, Claimant would not have been able to work for as long as he had without being laid off, demoted or otherwise disciplined. Mr. England based his opinion in part on Claimant's deposition testimony that he did not feel that his emotional problems affected his ability to do his work before the primary injury.

In another supplemental report dated November 16, 2015, Mr. England concluded Claimant's earnings of $\ 10.00 an hour for ten hours per week shows he can maintain at least a limited amount of employment, which is inconsistent with Dr. Liss' opinion that Claimant cannot be trained or employed.

Mr. England further opined Claimant's need for a knee replacement suggest he may be more functional after knee replacement based upon Mr. England's personal recovery after knee replacement surgery.

Additionally, Mr. England concluded Dr. Stahle's restrictions did not prevent sit-down work because the restrictions did not involve walking, standing or squatting until after knee replacement surgery.

Mr. England testified that it would have been helpful to interview Claimant in person and see how he would present himself to a prospective employer. However, Claimant did not injure his hands in the last injury and that his dexterity is "whatever it is, it is." Therefore, Claimant was able to use his hands effectively now and in the past.

Mr. England concluded that if Claimant was having really bad headaches, as he testified to in his deposition, or if the psychiatric condition was as bad as Dr. Liss indicated, then he would not be employable and it would be due to the last injury alone. Otherwise, based on Dr. Volarich's restrictions for his physical conditions, and based upon what Claimant testified that he was actually doing and capable of doing prior to this accident in 2008, Mr. England concluded that he was capable of doing some kind of work at a less physically demanding level.

Ms. Gonzalez is a vocational rehabilitation counselor. On February 16, 2012, Ms. Gonzalez interviewed Claimant, reviewed medical records and reports, tested Claimant, wrote a report, and testified at the request of his attorney.

Ms. Gonzalez administered the Wide Range Achievement Test, 4th edition, ("WRAT4"). Claimant scored $12.7^{\text {th }} grade in word reading, 12.9^{\text {th }}$ grade in sentence comprehension, and both scores are in the average range. His overall reading composite was also in the average range. In spelling, Claimant scored below average at $6.8^{\text {th }} grade and in math 4.9^{\text {th }}$ grade. Based on test results, Ms. Gonzalez concluded Claimant would not be expected to perform successfully in a postsecondary training program nor would he be successful in performing basic clerical duties due to his poor spelling and math computation skills.

Based upon the medical records in evidence, psychological and academic test results, Claimant's interview, Claimant's educational background and age, Ms. Gonzalez did not believe Claimant had any transferable skills because of his "severely reduced residual functional capacity."

She noted Dr. Katz's diagnosed mild to moderate dementia, bipolar disorder, and severe anxiety disorder, and opined they were the main reason Claimant could not work. Also, she considered Dr. Liss' GAF of 30, which denotes impairment in reality, testing or communication, or major impairment in several areas such as work or school, family relations, judgment, thinking or mood. Ms. Gonzalez noted Claimant was apparently abused by his last wife and his

children. Ms. Gonzalez noted consistent limitations between Dr. Volarich's restrictions, and GAF's assigned by Dr. Liss and Dr. Anderson.

During the interview, Ms. Gonzalez observed Claimant had trouble formulating and verbalizing thoughts. At the conclusion of the interview, Ms. Gonzalez observed Claimant walk with a "really exaggerated type limp." Because of Claimant's back and forth movements, Ms. Gonzalez was concerned he might fall. As Ms. Gonzalez and Claimant walked out of the interview area, several people addressed him as "Coach." Claimant had told her earlier that he had coached his children's hockey teams in the past. Claimant gave a history of needing to lie down or sit during the day to relieve pain from various parts of his body.

Ms. Gonzalez testified that it is important for her to observe the person being interviewed to determine the type of presentation they would make to an employer. She noted Claimant appeared for the interviews in a disheveled manner, with missing teeth, and talked in "tangents." For example, Claimant told her a lot about hockey in response to questions she asked. At times he cried. Periodically he stood and walked around before sitting back down. During the interview Claimant appeared uncomfortable.

At the time of the interview, Claimant was 54 years old with a high school education, limited educational skills, and permanent physical and mental disabilities which prevent him from performing his past job or any job in the open labor market.

Based on a review of all Claimant's medical records and psychological history, test results, age, interview and education, Ms. Gonzalez concluded, no employer can reasonably be expected to hire Claimant with his current mental and physical disabilities over a younger worker who would not have to be accommodated. Furthermore, employers do not allow employees to "rest when needed" as recommended by Dr. Volarich.

Ms. Gonzalez credibly testified that all of Claimant's impairments severely compromise his ability to either return to any past jobs or start new and competitive jobs on a sustained basis. Therefore, Ms. Gonzalez concluded Claimant can no longer compete in the open labor market due to his primary injury and preexisting mental and physical disabilities.

Ms. Gonzalez was unaware that Claimant had worked for Kellogg stocking shelves on a part-time basis starting in 2013 and continuing through at least 2014. She further stated that it would be helpful for her to interview Claimant and talk to him about the job activities and how it affected him in terms of reaching a conclusion about how it would impact her decision about his ability to work. Ms. Gonzalez was not aware of any specific job duties that Claimant had.

Claimant asserts he is PTD due to a combination of his disability from the 2008 work injury and his preexisting disabilities. The SIF contends Claimant has not proven that he is PTD. WC-32-R1 (6-81)

After careful consideration of the entire record, Claimant's demeanor during the hearing, competent and substantial evidence presented during and after the hearing, and the applicable law of the State of Missouri, I find Claimant has met his burden to show he is PTD as a result of his primary injury and preexisting disabilities for the reasons discussed below.

In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence all material elements of his claim including Second Injury Fund liability. Meilves v. Morris, 422 S.W.2d 335, 339 (Mo. 1968).

In addition, Section 287.220 states, the SIF is liable for PTD benefits when three findings are made: 1) The employee has a percentage of disability from the compensable last injury, 2) A preexisting permanent disability exists that was serious enough to constitute a hindrance or obstacle to employment or re-employment, and 3) All of the injuries combine to make the employee PTD.

When deciding SIF liability, the first determination is the degree of disability from the last injury considered alone. Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App.2000). Accordingly, preexisting disabilities are irrelevant until the employers' liability for the last injury is determined. Id. If the last injury in and of itself rendered Claimant PTD, then the SIF has no liability. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo. 2003).

I find Claimant's testimony is credible. At the hearing, Claimant testified he has decreased range of motion of his cervical spine since the 2008 injury. He can no longer attend Blues and Cardinal games because his knees are less mobile. It is difficult for him to walk and sit in the seats. He also can no longer climb onto a bike to take physical therapy. In addition, he has more anxiety and nervousness since the 2008 work injury.

Drs. Volarich, Nogalski and Liss rated disability for physical and emotional injuries Claimant sustained from the primary injury. Based on Claimant's testimony, medical records in evidence, and persuasive opinions from Drs. Volarich, Nogalski and Liss regarding Claimant's disability, I find Claimant sustained the following disability from the November 12, 2008 work injury: 22.5 percent PPD of the left knee, 12.5 percent PPD of the right knee, and 10 percent PPD of the body as a whole for the neck, back, and psychiatric conditions.

To determine if a pre-existing partial disability constitutes a hindrance or obstacle to the employee's employment, the [fact finder] should focus on the potential that the pre-existing injury may combine with a future work related injury to result in a greater degree of disability

than would have resulted if there was no such prior condition. E.W. v. Kansas City, Missouri, School District, 89 S.W.3d 527, 537 (Mo.App.2002). ${ }^{4}$

I further find the following medical conditions existed before November 12, 2008 and were a hindrance or obstacle to Claimant's employment or re-employment: 1) Bilateral knees, 2) Bilateral wrists, 3) Left elbow, 4) Low back, 5) Psychiatric conditions, and 6) Concussions.

Dr. Volarich found each of the preexisting conditions discussed above were a hindrance or obstacle to Claimant's employment and re-employment as well.

Leading up to 2008, Claimant credibly testified his hands locked up, and became numb and swollen, which affected his ability to pinch and grasp. His elbow was sore and ached which affected his ability to lift, push, pull or carry weight and perform repetitive activities.

Claimant's knees impacted his ability to interact with his children or drive for more than one hour without needing to rest and stretch. He had back pain with walking and could not run.

Claimant was diagnosed with a bipolar condition and depression and anxiety. Leading up to 2008, he had headaches and needed to lie down due to depression and anxiety and he had some thoughts of suicide. Medical records show he was placed on a three-day hold for suicide watch after his wife died in an automobile accident in the 1980s. At that time she was pregnant with a set of twins.

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 at 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).

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).

In this case, the physicians and vocational experts disagree on whether Claimant is PTD and if so, what caused it. I find the opinions of Dr. Volarich, Dr. Liss and Ms. Gonzalez more persuasive than the opinions of Dr. Katz, Dr. Nogalski, and Dr. Stillings.

[^0]

[^0]: ${ }^{4}$ Several cases in this award have been overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003) and the Hampton case will not be discussed again in this award. WC-32-R1 (6-81)

Dr. Volarich imposed restrictions, and concluded Claimant was unable to work eight hours a day, five days a week in any capacity based on the November 12, 2008 work injury and preexisting medical conditions. One restriction included the ability to rest as needed due to spine symptoms related to the November 2008 work injury. However, Claimant testified he rested and took naps at work as needed prior to the November 2008 work injury.

Dr. Volarich learned about Claimant's subsequent employment during his deposition in 2015. At that time, Dr. Volarich indicated that he didn't know how consistently Claimant was working or the details of the work performed. However, he believed Claimant could no longer perform his previous work, and it was not clear he could make enough money working part-time to support his family. However, Dr. Volarich did not have a problem with Claimant attempting to work.

I find Dr. Nogalski's opinion is not persuasive that the restrictions he imposed were not related the November 12, 2008, work injury because he rated left knee disability following surgery related to the November 2008 work injury.

I find Dr. Liss' opinion is more persuasive than Dr. Stillings opinion that all of Claimant psychiatric problems existed before November 2008. Claimant's testimony is consistent with the history he gave Dr. Anderson in December 2009 that his psychological problems increased after the work injury. Additionally, the record contains no record of psychiatric treatment before 2008, which is consistent with Dr. Liss' opinion that the November 2008 injury aggravated Claimant's preexisting psychological condition.

Dr. Volarich deferred to a vocational expert about Claimant's ability to work. I find Ms. Gonzalez's opinion is more persuasive than Mr. England's opinion that Claimant can compete in the open labor market.

Mr. England testified it would have been very helpful to observe Claimant during and interview. However, Mr. England did not interview Claimant; therefore he did not see his presentation to a potential employer. From a psychological standpoint, Mr. England did not consider the impact of the death of Claimant's wife or the turmoil with his children on his psychological state.

Moreover, Mr. England's conclusion is not credible that employers would hire Claimant in his current physical and mental condition because he is working part-time. Mr. England did not know Claimant was hired through a friend. Mr. England did not know the number of hours Claimant could physically work each week, the tasks he performed or the accommodations he made to work.

Mr. England identified jobs Claimant could perform. However, given Claimant's physical and emotional disabilities, Drs. Volarich and Liss saw no possibility for Claimant to achieve these tasks from a medical and psychological standpoint.

Mr. England's opinion that if Claimant is PTD it is due to headaches that require him to lie down a result of the primary injury is not supported by the evidence. Also, Mr. England's conclusion invades the province of the medical evaluator and the fact finder. His role is to determine if there are jobs available in the workplace that matches the restrictions imposed by the physicians, not reach a medical conclusion regarding causation.

In contrast, Ms. Gonzalez did interview Claimant and observed how he would present himself to a potential employer. During the interview, Ms. Gonzalez observed Claimant was disheveled, missing teeth, went on "tangents," cried, stood up periodically, walked around the room, appeared to be uncomfortable, and had stability problems when walking. Even Dr. Nogalski noted Claimant's gait "appears to be somewhat unsteady," and imposed restrictions to accommodate the deficiency. And unlike Mr. England, Ms. Gonzalez considered the psychiatric impact of the death of Claimant's wife and abuse by his second wife and his children on his ability to work.

During the hearing, I observed Claimant walk slowly with an awkward gait as he crossed the hearing room. During Claimant's testimony, he alternated between standing and sitting and crying.

Claimant testified that he cannot work more than five hours a day for more than four days a week due to inability to stay focused and the need to lie down. He works with a full-time merchandiser, a job he used to hold. The merchandiser brings products to Claimant and permits him to take a nap or to sit down as needed during his five-hour shift. When Claimant is not at work he rests two to three times per day. After the 2008 injury, Claimant reported more anxiety, dizziness, and headaches.

Like Dr. Volarich, Ms. Gonzalez did not learn about Claimant's subsequent employment until the day of her deposition. She wanted to know more about Claimant's job duties. However, based on earnings records, she concluded Claimant did not make a lot of money from the part-time position.

I find Claimant's limited work hours are not reasonable or normal employment. I find they do not prevent a finding of total disability. The fact that Claimant can work a few hours during a few days only highlights his inability to work a regular schedule.

Based on credible testimony by Claimant and persuasive testimony by Drs. Volarich and Liss and Ms. Gonzalez, medical records in evidence, and less than persuasive evidence presented by Drs. Katz, Nogalski, and Stillings, and Mr. England, I find no employer can reasonably be

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Patrick Hull

Injury No.: 08-117368

expected to hire Claimant in his present physical condition and expect him to work on a full-time basis. I further find Claimant is PTD due to a combination of his primary injuries to his cervical spine, bilateral knees, low back, and psychological conditions in combination with his preexisting disabilities to his bilateral knees, bilateral wrists, left elbow, low back, head trauma, and psychological conditions.

In cases of permanent total disability, payments should have begun when the disability began. Kramer v. Labor \& Indus. Relations Commission, 799, S.W.2d 142, 145 (Mo.App. 1990).

At the hearing, the parties stipulated that Claimant reached MMI on December 20, 2010; therefore, I find Claimant reached MMI on that date. I further find Claimant became permanently totally disabled on December 20, 2010 and benefits should have begun on that date.

I previously found Claimant sustained 22.5 percent PPD of the left knee, 12.5 percent PPD of the right knee and 10 percent PPD of the body as a whole for the cervical spine, low back, and psychiatric conditions related to the November 12, 2008, injury.

I find Employer liable for weekly PPD payments totaling $\ 392.53 for 96 weeks. ${ }^{5}$ I further find the SIF liability should begin retroactively once the Employer's liability has been extinguished. I find no differential payment is owed by the SIF during the Employer's obligation. Once SIF payments begin, I find they should continue for the remainder of Claimant's life.

Claimant is permanently and totally disabled as a result of the November 12, 2008, work injury and his preexisting disabilities. The award is subject to a lien in favor of Claimant's attorney for legal services rendered.

Suzette Carlisle

Administrative Law Judge

Division of Workers' Compensation

[^0]

[^0]: ${ }^{5}$ Employer's liability totaled 96 weeks (December 20. 2010 (MMI) to October 22, 2012). SIF's liability should have begun October 23, 2012.

WC-32-R1 (6-81)

Page 24