Kenneth Jones v. Harley Davidson Motor Company

The Commission also received a timely application for review filed by Darren Fulcher, Attorney at Law, alleging the Division of Workers' Compensation (Division) failed to notify him of the hearing or issuance of a final award in this case, despite his assertion of a fee lien in his request for withdrawal filed with the Division. ${ }^{1}$

On July 24, 2017, the Commission invited employee's present counsel, Kristi Pittman, and Mr. Fulcher to advise, in writing, whether they were able to reach an agreement with regard to the issue of Mr. Fulcher's assertion of a lien in this case.

On August 14, 2017, the Commission received correspondence from Mr. Fulcher indicating he had reached an agreement with Ms. Pittman, and that the agreed total amount of the lien in favor of the Fulcher Law Firm, P.C., was agreed to be $\ 12,500.00.

On August 30, 2017, the Commission received correspondence from Ms. Pittman indicating her agreement to the amount of Mr. Fulcher's fee lien as indicated in his correspondence of August 14, 2017.

The parties asked the administrative law judge to resolve the issue whether employee sustained an accident for purposes of the Missouri Workers' Compensation Law. The administrative law judge determined this issue in employee's favor, but we note that he did not, in his award, cite or apply the controlling statutory provision. Consequently, we must provide the appropriate analysis herein.

Section 287.020.2 RSMo provides, in relevant part, as follows:

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

In adopting employee's testimony with regard to what happened during his work shift on July 13, 2011, the administrative law judge implicitly found that employee made a credible witness. After careful consideration, we do not discern a compelling basis to second-guess the administrative law judge's credibility determination in this regard. ${ }^{2}$ Consequently, we adopt the administrative law judge's findings that on July 13, 2011, while engaged in his work shift for employer, employee was using a large pneumatic gun in an attempt to loosen a bolt that had become stuck; that the gun jerked suddenly and caused employee to twist at the waist; and that employee suffered right elbow and low back pain in connection with this event.

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[^0]: ${ }^{1}$ Taking administrative notice of the records of the Division in connection with this case, we note that Mr. Fulcher was employee's attorney of record from May 17, 2013, through June 4, 2014.

${ }^{2}$ We acknowledge that employer vehemently attacks employee's credibility. However, employer's substantive arguments regarding employee's credibility are, in our view, largely undermined by the discourteous, hyperbolic, and inflammatory tone and tenor of employer's briefing in this matter.

Employee: Kenneth Jones

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Employer argues that because employee did not notice immediate pain in his low back on the date of the accident, but instead first noticed these symptoms two or three days later, employee cannot meet his burden of proving he sustained an accident. We are not persuaded. We are required, pursuant to § 287.800.1 RSMo to strictly construe the definition of accident set forth above. Section 287.020.2 requires an employee to demonstrate only that he experienced "symptoms of an injury" to prove that an accident occurred. Employer asks us to read the definition as if it required employee to demonstrate that he experienced "symptoms referable to each and every injury ultimately claimed" at the time of the accident. This we cannot do, because "a strict construction of a statute presumes nothing that is not expressed." *Allcorn v. Tap Enters.*, 277 S.W.3d 823, 828 (Mo. App. 2009).

The fact that employee did not immediately notice low back pain is certainly pertinent to the issue of medical causation, but is not, in our view, particularly relevant to the issue of accident, where employee credibly testified that he suffered symptoms of an injury at the time of the event in question. As further discussed below, we believe this to be a case where it falls within the expertise of the medical witnesses to thereafter determine the exact nature of the injury (or injuries) employee sustained as a result of the accident, including any sequelae affecting the low back.

We conclude that the facts we have summarized above, as found by the administrative law judge and as we have adopted, satisfy the statutory definition of accident, in that they unquestionably involve an unexpected traumatic event or unusual strain that is identifiable by time and place of occurrence, and that produced at the time objective symptoms of an injury caused by a specific event. Consequently, we conclude that employee suffered an accident for purposes of § 287.020.2.

**Medical causation**

The parties asked the administrative law judge to resolve the issue of medical causation of employee's injuries. The administrative law judge determined this issue in employee's favor, but did not, in his award, cite or apply the controlling statutory provision. Consequently, we must provide the appropriate analysis herein.

Section 287.020.3(1) RSMo provides, in relevant part, as follows:

> An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

Employer argues that the accident cannot be deemed the prevailing factor causing employee to suffer any low back injury, because employee suffered from preexisting low back pain prior to the accident, and because the August 8, 2011, records from employee's chiropractor, Dr. Michael Emery, suggest employee reported that these preexisting complaints were unchanged.

Arter careful consideration, we are not persuaded. Employee's testifying medical expert, Dr. P. Brent Koprivica, specifically acknowledged and discussed these treatment records, and ultimately opined that the accident was the prevailing factor causing employee to suffer permanent and disabling injury to the lumbar spine with new structural change with resultant destabilization of the spondylolisthesis associated with an annular injury and resulting in the development of symptomatic stenosis.

Dr. Koprivica explained that employee's history to him was that although he had preexisting ongoing low back pain, this was a tolerable situation prior to the accident of July 13, 2011. Dr. Koprivica also addressed the fact that employee did not immediately notice low back pain on the date of accident as follows:

My understanding from [employee] is that over time, the issues regarding his low back following this injury became much more significant. ... [H]e is clear that there were new and increased pain complaints in his low back that actually progressed following the injury sustained on July 13, 2011.

Transcript, page 340.

Again, we have deferred to the administrative law judge's implicit finding that employee's testimony at the hearing was credible. Consequently, we likewise discern no compelling reason to overturn the administrative law judge's implicit determination that Dr. Koprivica's causation opinions relying on employee's history are persuasive. Instead, we find that Dr. Koprivica provided the more persuasive medical causation testimony in this case. We conclude that the accident of July 13, 2011, was the prevailing factor causing employee to suffer the resulting medical conditions of permanent and disabling injury to the lumbar spine with new structural change with resultant destabilization of the spondylolisthesis associated with an annular injury and resulting in the development of symptomatic stenosis, as well as a right elbow injury that resolved without permanent disability.

The parties asked the administrative law judge to resolve the issue whether employee sustained an injury arising out of and in the course of the employment. The administrative law judge did not specifically address this issue or apply the controlling statutory test. Consequently, we must provide the appropriate analysis herein. ${ }^{3}$

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[^0]: ${ }^{3}$ Because employer did not file a request that we consider additional evidence in this matter, and because the proposed awards submitted by the parties to the administrative law judge were not made a part of the transcript or legal file provided to us by the Division, we decline to address employer's allegation that the administrative law judge adopted, nearly verbatim, employee's proposed award. We would be remiss, however, if we failed to caution that one of the primary risks attendant to a fact-finder's policy of adopting proposed awards would appear to be the issuance of awards lacking the pertinent statutory citations and the sort of careful, impartial analysis that only an administrative law judge exercising his or her independent judgment can provide.

Enployee: Kenneth Jones

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Injury No.: 11-062102

Section 287.020.3(2) RSMo provides, in relevant part, as follows:

An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

We have already determined that the accident was the prevailing factor causing employee's injuries, so we must conclude that § 287.020.3(2)(a) is satisfied. Turning to the unequal exposure test under § 287.020.3(2)(b), we have found that employee's injuries resulted when the pneumatic gun he was using to loosen a bolt caused his body to twist and jerk suddenly. Consequently, we find that the risk or hazard from which employee's injuries came was that of a pneumatic gun becoming stuck and jerking or twisting employee's body suddenly.

There is no evidence on this record that would support a finding that workers would have been equally exposed, outside of and unrelated to the employment in normal, nonemployment life, to the risk or hazard of a pneumatic gun becoming stuck and jerking or twisting one's body suddenly. Instead, the evidence overwhelmingly demonstrates that the risk or hazard from which employee's injuries came was a direct product of his performance of his necessary work duties. We conclude, therefore, that employee's injuries arose out of and in the course of the employment.

**Notice**

The parties asked the administrative law judge to resolve the issue whether employee's claim is barred by his failure to provide the requisite notice of his injuries to employer. The administrative law judge determined this issue in employee's favor, but we note that he cited and appears to have applied the version of § 287.420 RSMo that predates the 2005 legislative amendments to the Missouri Workers' Compensation Law. 4 Consequently, we must and do hereby disclaim the administrative law judge's discussion with regard to the issue of notice, and instead provide our own analysis herein.

4 The 2005 amendments to § 287.420 RSMo removed prior language permitting the fact-finder to consider whether there was good cause for an employee's failure to provide statutory notice; the administrative law judge's award suggests he felt the "good cause" exception was available to employee in this case. However, employee's injury occurred on July 13, 2011, with the result that the 2005 amendments to § 287.420 unquestionably apply.

Section 287.420 RSMo provides, in relevant part, as follows:

No proceedings for compensation for any accident under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the accident, unless the employer was not prejudiced by failure to receive the notice.

It is undisputed that on July 13, 2011, employee reported his accident to his supervisors with employer, and participated in completing employer's form entitled "Employee Report of Incident/Injury." See Transcript, page 1891. But because this report does not include employee's address, and given that neither party has identified any other written notice from employee to employer within thirty days after the accident, it appears that employee failed to provide a written notice that strictly satisfies each of the elements of the statute. See Allcorn v. Tap Enters., 277 S.W.3d 823, 830 (Mo. App. 2009). Thus, the question is whether employee demonstrated that employer was not prejudiced by failure to receive a written notice meeting each of the statutory requirements. "The most common way for an employee to establish lack of prejudice is for the employee to show that the employer had actual knowledge of the accident when it occurred." Soos v. Mallinckrodt Chem. Co., 19 S.W.3d 683, 686 (Mo. App. 2000)(citations omitted). "Notice or knowledge is imputed to the employer when it is given to a supervisory employee." Dunn v. Hussman Corp., 892 S.W.2d 676, 681 (Mo. App. 1994) (citation omitted).

We conclude that employer had actual knowledge of employee's injury on the date that it occurred. Because employer had actual knowledge of employee's work injury, the burden shifts to employer to demonstrate that it was prejudiced by employee's failure to provide a written notice meeting each of the statutory requirements. Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 511 (Mo. App. 2011). After a thorough review of the record, we are convinced that employer failed to meet that burden.

"The purpose of section 287.420 is to give the employer timely opportunity to investigate the facts surrounding the accident and, if an accident occurred, to provide the employee medical attention in order to minimize the disability." Sell, 333 S.W.3d at 510. Clearly, employer had an opportunity to investigate the circumstances of the accident on the same date that it occurred. With regard to providing medical attention in order to minimize employee's disability, we acknowledge employer's argument that because employee's low back symptoms did not manifest until later, employee's claim should be barred because he did not provide additional statutory notice of a specific back injury to employer. We are not persuaded, for the following reasons.

First, the statute requires only that an employee report the "nature of the injury." Chapter 287 defines "injury," in relevant part, as "violence to the physical structure of the body." See § 287.020.3(5) RSMo. So, employee was required to report to employer the nature of the violence he suffered to the physical structure of his body. In our view, employee accomplished this in his initial notice, by reporting to employer that the

Improve: Kenneth Jones

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pneumatic gun suddenly jerked and twisted his body. Stated differently, employee reported to employer, in his initial notice, the violent forces his body suffered in the accident. The fact that employee later experienced additional symptoms from this violence to his body does not automatically prove that employer suffered some prejudice from the lack of any mention of a low back injury in the initial notice. Instead, it was employer's burden to prove that it was actually hampered, in some fashion, in either investigating the accident or providing treatment. Employer identifies no such evidence.

Second, and in that regard, we note that employee made employer aware that he was claiming additional sequelae from the injury as soon as he became aware that his increased low back complaints could have resulted from the accident. Specifically, employee testified a physician did not inform him his increased back complaints were possibly related to the accident until he saw Dr. Robert Drisko on October 4, 2011, and that he immediately thereafter reported to individuals with both employer and insurer that he believed he'd injured his low back in the accident.

Again, the administrative law judge appears to have credited employee's testimony in this regard, and after a careful review of the entire transcript in this matter, we have not found a compelling reason to second-guess that finding. Accordingly, we find employee first discovered that his increased low back complaints could be referable to the July 13, 2011, accident on October 4, 2011, and that he immediately thereafter reported this to employer. At that point, employer had an opportunity to provide treatment to employee to minimize any low back disability referable to the accident, but declined to do so. At any time, employer could have changed course and exercised its right to direct medical treatment, and certainly cannot now reasonably claim to have been hampered in its ability to investigate the circumstances of the accident, as employee had already reported those circumstances on the same date that the accident occurred.

We simply do not find sufficient evidence on this record to support a finding that employer was prejudiced, in any fashion, by employee's failure to provide a written notice to employer meeting each of the requirements under § 287.420. Instead, we find that employer was not prejudiced by employee's failure to provide statutory notice. We conclude, therefore, that employee's claim is not barred by § 287.420.

Nature and extent of permanent disability - Second Injury Fund liability

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

Remarkably, employer's application for review and brief filed in this matter do not argue that employee's permanent total disability is the combination of his primary injury and his preexisting disabling conditions, such that the Second Injury Fund, rather than employer, should be liable for permanent total disability benefits.

Dr. Koprivica, whom we have already credited as providing the more persuasive expert medical testimony in this matter, specifically opined that employee is permanently and totally disabled based on the effects of the primary injury of July 13, 2011, considered in isolation. Particularly in the absence of any argument that the Second Injury Fund should be liable for employee's permanent total disability, we are not inclined to disturb the administrative law judge's findings, analysis, or conclusions on this point, in any fashion. Instead, we hereby adopt them as our own and affirm the award of permanent total disability benefits from the employer.

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

The award and decision of Administrative Law Judge Mark Siedlik, issued July 5, 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 an attorney's fee herein in the amount of 25 % of the compensation awarded as being fair and reasonable in favor of the following: the Fulcher Law Firm, P.C., and Kristi L. Pittman, Attorney at Law. Specifically, the Fulcher Law Firm, P.C., is to receive $\ 12,500.00 in full and final satisfaction of its lien, and Ms. Pittman is thereafter entitled to receive the balance of the 25 % fee awarded.

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

Given at Jefferson City, State of Missouri, this $14^{\text {th }}$ day of September 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Kenneth Jones

Injury No: 11-062102

Dependents: N/A

Employer: Harley Davidson Motor Company

Insurer: American Casualty Co. of Reading PA

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

Hearing Date: $\quad 1 / 5 / 2016 \& 1 / 7 / 2016$

Checked by: MSS/drl

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 13, 2011
5. Location where accident occurred or occupational disease was contracted: Kansas City, Platte County, Missouri
6. Was the above employee in the employ of the above employer at time of alleged accident or occupational disease? Yes
7. Did the employer receive proper notice? Yes.
8. Did the accident or occupational disease arise out of and in the course of employment? Yes.
9. Was the claim for compensation filed within time required by Law? Yes.
10. Was the employer insured by the above insurer? Yes.
11. Describe the work employee was doing and how the accident occurred or the occupational disease contracted: Employee was using a pneumatic gun went it became jammed and caused his body to twist.
12. Did the accident or occupational disease cause death? No.

1. Part(s) of body injured by accident or occupational disease: Alleged low back and right elbow.
2. Nature and extent of any permanent disability: Permanent Total Disability
3. Compensation paid to-date for temporary disability: $\ 0
4. Value of necessary medical aid paid to date by employer? $\ 4,132.94
5. Value of necessary medical aid not furnished by employer? $\ 129,236.63
6. Employee's average weekly wages: $\ 1,058.24
7. Weekly compensation rate: $\$ 705.50 / \ 425.19
8. Method of wages computation: By agreement

1. Amount of Compensation payable from the Employer:

55 4/7 weeks of temporary total disability totaling \$39,205.64

Permanent Total Disability benefits from Employer, beginning on October 5, 2012, and thereafter, for claimant's lifetime at the rate of $\ 705.50 per week, pursuant to the Missouri Workers' Compensation Laws.

Past Medical Benefits in the amount of $\ 129,236.63

1. Second Injury Fund Liability: None
2. Future requirements awarded:

Future medical care and treatment to relieve claimant from this injury as it relates to this injury.

Said payments to begin October 5, 2012, 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: Kristi L. Pittman

Employee: Kenneth Jones

Injury No: 11-062102

Dependents: N/A

Employer: Harley Davidson Motor Company

Insurer: American Casualty Co. of Reading PA

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

Hearing Date: $\quad 1 / 5 / 2016 \& 1 / 7 / 2016$

Checked by: MSS/drl

Employee's Exhibits:

A. Dr. P. Brent Koprivica report dated September 15, 2014

B. Dr. James A. Stuckmeyer report dated April 7, 2014

C. Terry Cordray deposition dated December 14, 2015

D. Deposition of Kenneth Jones dated January 6, 2012

E. Medical records from ARC Physical Therapy

F. Medical records from Barry Road Chiropractic

G. Medical records from Corporate Care

H. Medical records from Dickson Diveley Midwest Orthopedic

I. Medical records from Drisko Fee Parkins Orthopedic Surgery

J. Medical records from Heartland Primary Care

K. Medical records from St. Luke's Northland Hospital

L. Medical records from St. Joseph Medical Center

M. Medical records from Metro Spine \& Rehab

N. Medical records from Rockhill Orthopedics

O. Harley Davidson Motor Company Medical Department Records

P. Medical records from Research Medical Center

Q. Medical records from Northland Bone \& Joint

R. Medical records from Mosaic Life Care at Shoal Creek

S. Medical Bills Summary

a. Drisko Fee Parkins

b. Barry Road Chiropractic

c. St. Joseph Medical Center

d. North Kansas City Hospital

e. Mosaic Life Care

T. Financial Responsibility Forms (Mosaic Life Care in with medical records - Exhibit S)

U. Prior Workers’ Compensation Records V. Correspondence faxed to Tom Billam dated December 29, 2015, and December 30, 2015 W. Letter to Gallagher Bassett Services dated December 2, 2011, from Stephen W. Lynn X. Medical records from North Kansas City Hospital

Employer’s Exhibits:

1. Submission of Dr. Drisko report of Dec. 10, 2013, with attachments, filed Jan. 2, 2014
2. Deposition of Dr. Drisko, March 20, 2012
3. Submission of Dr. Nassab report of Oct. 26, 2012, with attachments, mailed to Mr. Jones Feb. 7, 2013
4. Worker Report of Incident form dated July 13, 2011
5. Corporate Care office visit note of July 13, 2011 (2 pages; same as pages 152-153 of Drisko Submission)
6. Take Care Health Systems medical treatment records (13 pages)
7. Barry Road Chiropractic treatment records (6 pages)
8. St. Joseph Medical Center treatment records (14 pages)
9. ARC physical therapy treatment records (13 pages)
10. DWS Stipulation on 10-009540, with attachments, approved May 3, 2011 (11 pages)
11. Employer/Insurer Objection to Claimant’s Submission (filed 9-25-14)
12. Letter by Samantha Benjamin of Sept. 26, 2012, sharing medical records with claimant
13. Letter by Samantha Benjamin of Oct. 8, 2013, sharing medical records with attorney Darren Fulcher
14. Faxed letter by Kristi Pittman of Dec. 29, 2015, showing fax completion at 5:16 p.m. Dec. 29
15. Faxed letter by Kristi Pittman of Dec. 30, 2015, showing fax completion at 8:31 a.m. Dec. 30

Second Injury Fund’s Exhibits: None.

There were several exhibits the Court took under advisement. After reviewing those documents, I make the following findings:

Employer and Insurer objected to Employee’s Exhibits A and B. This exhibit was submitted via $287.210 RSMo., and timely objected to at the time of submission on the grounds Dr. Koprivica and Dr. Stuckmeyer in their respective reports reference and rely upon a prior opinion of Dr. Zimmerman which was not submitted via $287.210. Employee, pursuant to

statute, requested a ruling on the objections. On October 9, 2014, I overruled the objection and stated:

I have received employer's objection to the submission of Drs. Koprivica and Stuckmeyer. I have also read the entirety of all reports in the objection and overrule the employer's motion. Dr. Koprivica and Stuckmeyer form their own opinions and have not adopted or deferred to any opinions of Dr. Zimmerman in the forming of their own conclusions. As with all opinions they are given the weight and credibility as merited in each case.

Although those objections were renewed at the time of trial, my ruling remains unchanged and those objections are overruled. Employee's Exhibits A and B are admitted into evidence.

All other objections taken under advisement are hereby overruled.

1. On or about July 13, 2011, Harley Davidson Motor Co., was an employer operating under the provisions of the Missouri Workers' Compensation Laws;
2. On or about July 13, 2011, Kenneth Jones was an employee of Harley Davidson Motor Co., and was working under the provisions of the Missouri Workers' Compensation Laws;
3. All parties stipulated to venue in Kansas City, Missouri, for purposes of a final hearing to be held;
4. All parties stipulated that claimant's average weekly wage was $\ 1,058.24 and the appropriate compensation rate for weekly benefits is $\ 705.50 for temporary total and $\ 425.19 for permanent partial disability benefits;
5. All parties stipulated that Employee's claim for compensation was filed within the time allowed by law; and

The issues to be determined by the hearing are as follows:

1. Whether on or about July 13, 2011, Employee sustained an accident arising out of and in the course and scope of his employment;
2. Whether the employer had notice of the alleged injury;

1. Whether Employee's injuries are causally related to his accident;
2. Whether Employee is entitled to past medical benefits of $\ 129,236.63;
3. Whether Employee is entitled to future medical care and treatment as a result of the alleged injury;
4. Whether Employee is entitled to temporary total disability benefits;
5. Whether Employer is liable for nature and extent of employee's disability; and
6. Liability of the Second Injury Fund.

A hearing was held on January 5, 2016, before the Honorable Mark Siedlik. Employee appeared in person and was represented by Kristi L. Pittman. Employer and Insurer were represented by Tom Billam and the Second Injury Fund was represented by Jacob Colling.

Mr. Kenneth Jones suffered an injury on July 13, 2011, to his back and body as a whole. Mr. Jones was using a pneumatic drill approximately $21 / 2$ to 3 feet long to torque a large diameter bolt to assemble a motorcycle wheel and swing arm when the drill kicked back, jerking his body directly causing injuries to his right elbow and back.

Mr. Jones initially felt more pain in his arm than he did his low back following the injury on July 13, 2011. He was initially seen at Corporate Care by Dr. Gil Wright and was assessed as having a right elbow sprain. Mr. Jones was placed in a sling and given significant restrictions; however, his care was transferred to Dr. Paul Nassab at Drisko, Fee \& Parkins.

He saw Dr. Nassab on August 1, 2011, for his right elbow. Dr. Nassab noted Mr. Jones had surgery on the same elbow in the past for cubital tunnel and a medial epicondylitis but did well after a slightly protracted recovery course. Dr. Nassab felt it was likely a neuropraxia of the ulnar nerve and strained the medical epicondylar origin of the flexor/pronators of the wrist. He prescribed physical therapy and medications. He continued to follow with Dr. Nassab and on September 26, 2011, Dr. Nassab reported Mr. Jones was suffering back pain that was shooting down into his foot on the right side. Dr. Nassab referred Mr. Jones to Dr. Drisko for evaluation of his low back.

Mr. Jones saw Dr. Drisko on October 4, 2011. Dr. Drisko noted Mr. Jones had pain in his back with radiation into his right leg. He further stated Mr. Jones injured himself in a work-related accident on July 13, 2011, and had neurogenic claudication type symptoms. Dr. Drisko felt Mr. Jones was suffering from acquired spondylolysthesis and Mr. Jones was very disabled. He felt, at this point in time, Mr. Jones was essentially homebound and on bed rest. He ordered an MRI and prescribed a Medrol Dosepak as well as Oxycodone. Mr. Jones returned on October 26, 2011, and Dr. Drisko reported the MRI confirmed his assessment. Dr. Drisko offered surgical intervention. Accordingly, on January 9, 2012, Dr. Drisko and Dr. Arthur Jenny performed a decompressive medial facetectomies bilateral inferior L4, L5 and S1 with microscope for stenosis, right L5 nerve root gill decompression with microscope and free fat transfer graphs. They also inserted pedicle screw instrumentation at L4 - S1 with a placement of a bone growth stimulator at L4 - S1, posterior lateral fusion L4 - S1.

Following the surgery, Mr. Jones continued to have ongoing back pain as well as difficulty with activities. He underwent injections. On September 21, 2012, the battery for the bone growth stimulator was removed. On October 4, 2012, Dr. Drisko noted Mr. Jones had constant pain in his low back, which increased with activity. He was taking Hydrocodone for pain. Dr. Drisko felt Mr. Jones was doing well but he would never be pain free. He released him from his care at that time and to come back as needed. Mr. Jones was released by Dr. Nassab on October 11, 2012, however, he believed the treatment necessitated by the July 13, 2011, injury was in exacerbation of a prior medical condition which had resolved, therefore, he did not provide any further disability rating due to the July 13, 2011, injury.

Mr. Jones returned to Dr. Drisko on December 27, 2012, and noted some improvement with the steroid injections. Dr. Drisko felt he had developed a transition syndrome, which was causing his sacroiliac dysfunction. Mr. Jones did not wish to undergo another injection or physical therapy. Dr. Drisko noted he showed Mr. Jones on diagrams on a skeleton how the transition syndrome develops. He ordered Mr. Jones to follow up at any time, and again, released him from his care.

Mr. Jones had a work injury in November 2003, when he was doing assembly tasks and injured his right shoulder and shoulder blade region. Dr. Maeda performed a right scapular bursa injection on January 5, 2004. Mr. Jones was referred to Dr. Lowry Jones and underwent a right endoscopic scapular bursectomy on April 16, 2004, by Dr. Jones. He continued to see Dr. Jones through June 15, 2004, until he was released at maximum medical improvement.

In 2007, Mr. Jones had a work injury to his left shoulder that occurred when trying to break fixtures free that had hardened in acrylic. He was trying to manually break these loose and lift it when he injured his left shoulder. Mr. Jones underwent an MRI scan on October 3, 2007, which was interpreted as normal. He was referred for definitive treatment to Dr. Stephen J. Smith at Northland Bone \& Joint. Dr. Smith felt clinically, there were symptoms of an interior superior labral tear and recommended surgery. Dr. Smith performed a subacromial decompression and rotator cuff debridement arthroscopically. Following the surgery, Dr. Smith

injected Mr. Jones' shoulder on April 21, 2008, for ongoing symptoms. He was released to return to full duty on March 19, 2008.

Mr. Jones injured his right upper extremity at the elbow, due to repetitive trauma on January 22, 2010. He was eventually treated at Corporate Care before being referred to Dr. Ann Rosenthal at Rockhill Orthopedics on March 8, 2010. Dr. Rosenthal diagnosed right medial elbow pain and lateral aversion from the right elbow. An MRI scan was ordered, which was interpreted as normal. Dr. Rosenthal referred Mr. Jones to a physiatrist and began treating with Dr. Galate on May 26, 2010. Dr. Galate ordered electrodiagnostic studies, which demonstrated cubital tunnel syndrome. Dr. Galate diagnosed Mr. Jones with right medial epicondylitis along with right cubital tunnel syndrome. Mr. Jones was then referred to Dr. Nassab. Dr. Nassab performed an in situ decompression of the ulnar nerve at the medial right elbow.

Mr. Jones also had chiropractic treatment for his low back beginning May 2011, but had no diagnostic testing or further medical care.

Mr. Jones testified he was born on July 26, 1966, and obtained a high school education. After graduating from high school in 1984, Mr. Jones joined the army from 1985 to 1988 working in tactical communication installation. He then worked various jobs until 2002 when he began working for Harley Davidson. Mr. Jones testified he worked everywhere but HR and maintenance in the assembly plant.

Mr. Jones suffered an injury on July 13, 2011, while working on the Excel assembly line. He was working on the rear modules on the frame of the bike with a large pneumatic gun. The gun was approximately four feet long and was held by both hands. The bolt got stuck and Mr. Jones tried to back it out. When the bolt became stuck, it caused his body to torque and twist at his waist. This also caused the electrical box on the ceiling immediately above him to blow up after the bolt stopped.

Mr. Jones went to the clinic and reported the injury. Mr. Jones had immediate pain in his elbow, which he had hurt prior. The following day, Mr. Jones woke up with his back in pain. He went to work and kept working until the afternoon. As his back pain increased in intensity over the upcoming weeks, he went to a chiropractor. Mr. Jones testified he hoped the pain would decrease but it did not. During the time in which he was having difficulty with his back, he was on light duty for his elbow, which made it easier for him to work with the back pain. Mr. Jones testified he was treating with Dr. Nassab for his elbow when he mentioned his low back pain to Dr. Nassab. Dr. Nassab referred Mr. Jones to Dr. Drisko. Mr. Jones testified Dr. Drisko showed him on the x-ray what caused the problems. Immediately following the examination, Dr. Drisko sent Mr. Jones to meet with the workers' compensation coordinator. Dr. Drisko also indicated to Mr. Jones that he needed to address the injury with his employer, as there were time limitations in which he needed to deal with. Mr. Jones testified he reported the low back condition to health and safety as well as Aida Johnston of Gallagher Bassett following his appointment with Dr. Drisko. Mr. Jones testified he continued on light duty during that time.

Mr. Jones stated he initially went to the chiropractor on May 9, 2011, prior to this injury for soreness and stiffness in his back and muscles. He also had pain and tightness in his hamstring. During this time, Mr. Jones continued to work full duty without any difficulties. He also testified he felt the pain in his back was more muscular than in his spine. However, following the incident, he went to the chiropractor on August 8, 2011, at which time the pain in his low back was more so in his spine than his muscles. Mr. Jones stated this was completely different in intensity and would not go away. Unfortunately, it only got worse. Mr. Jones returned to the chiropractor very shortly thereafter, on August 12, 2011. It was on September 26, 2011, in which Mr. Jones reported the difficulties to Dr. Nassab.

Unfortunately, his pain became unbearable on September 27, 2011, and he went to the emergency room at St. Joseph Hospital. Following the initial appointment with Dr. Drisko on October 4, 2011, he underwent an MRI and ultimately surgery on January 9, 2012. Since the surgery, he had a bone stimulator implanted as well as injections and pain medications. Mr. Jones testified there was a period of time in which he did not have health insurance and was unable to obtain pain medications. However, he was since approved for social security disability as well as Medicare and is currently treating with the physicians at Mosaic Life Care Center. He is prescribed cyclobenzaprine, tizanizine and gabapentin as a result of his injuries.

Mr. Jones testified he incurred significant medical bills as a result of his injuries. These were evidenced by Exhibit S. Mr. Jones testified he was required to sign financial responsibility forms and it was his understanding that regardless of whether insurance paid or not, he would be responsible for the entire bill.

Mr. Jones continues to suffer significant problems as a result of his back. Although he can walk better, he still has persistent pain and requires pain medications as well as sleeping pills. He also uses a TENS unit. He has difficulty sleeping at night and tosses and turns because of the pain. He is unable to walk very far and sitting requires him to alternate between sitting and standing. How long he can sit also depends on the chair. Mr. Jones testified he needs to lie down approximately twice a day because of the pain. He is able to do some housework, which is a little bit at a time. Prior to this injury, he was able to play softball and play with his grandkids. He is unable to do that anymore. He limits his lifting and tries to avoid over ten pounds. Unfortunately, if he does too much, he suffers the consequences the next day.

Mr. Jones also had prior injuries for which he still has difficulties. With regard to his right elbow, he has pain at night when sleeping on that side. He also had difficulty reaching and grabbing and trouble lifting heavy things. Mr. Jones settled his claim for his right elbow at 29.5 % of the elbow. Mr. Jones also has difficulties with his right shoulder. He believed he had permanent restrictions of no lifting above chest and reaching overhead with his right shoulder. This limited his ability to work in certain positions at Harley Davidson. He continued to have pain in his right shoulder but not as consistent as his current back pain. He also suffers flare-ups in his right shoulder pain. He believes he settled this claim for 22.8 % of the shoulder. Mr. Jones also suffered an injury to his left shoulder. He also has more difficulty with his left shoulder as he uses it more because of the difficulties with his right shoulder. As a result of his left shoulder injury, he believes he settled this claim for 18 % to the body as a whole.

Mr. Jones also addressed the physical therapy notes in which it was reported he rode a jet ski. Mr. Jones testified he went on his honeymoon after being married on August 21, 2011. The honeymoon was previously paid for in full and they were unable to get a refund. Therefore, they went ahead and went on the honeymoon despite Mr. Jones' significant pain. He testified he did not ride any jet skis as his wife could not swim and he did not swim very well. They went on a honeymoon for relaxation but were unable to do very much besides sit on the beach because of his pain.

Dr. P Brent Koprivica evaluated Mr. Jones on September 15, 2014. Dr. Koprivica reviewed all of the medical records, took a person history from Mr. Jones and performed a physical examination. Dr. Koprivica reported when the gun Mr. Jones was working on kicked back unexpectedly, it torqued his right arm at the elbow and his whole body was forcefully rotated and jerked, resulting in an injury to his low back. Dr. Koprivica stated over time, Mr. Jones' symptoms regarding his low back following this injury became much more significant. He noted Mr. Jones was not aware of the relationship to the injury until he discussed the matter with Dr. Drisko. As a result of the injury, Dr. Drisko performed a decompression at the L4-5 and L5-S1 levels with pedicle screw instrumented fusion on January 9, 2012. A bone stimulator was also placed. The bone stimulator was removed on September 21, 2012. Unfortunately, Mr. Jones developed a transition syndrome producing a sacroiliac dysfunction that was noted in Dr. Drisko's records on December 27, 2012.

After completing his evaluation, Dr. Koprivica stated, "the work injury of July 13, 2011, was felt to represent the direct, proximate and prevailing factor in permanent injury to the lumbar spine with new structural change with resultant destabilization of the spondylolisthesas associated with the annular injury development, resulting in the development of symptomatic stenosis. He noted with the failure of conservative treatment, it was reasonable Mr. Jones underwent the two-level decompression and fusion at L4-5 and L5-S1. Unfortunately, Mr. Jones developed a failed back syndrome as an outcome of the surgical treatment. Associated with failed back syndrome, he developed sacroiliac arthralgia as a complication arising from the fusion in the lumbar region with the development of transition syndrome. Dr. Koprivica also noted separately, Mr. Jones suffered an injury to his right upper extremity on July 13, 2011, but he did not feel there was any permanent injury to the right elbow based on that injury.

Dr. Koprivica considered Mr. Jones to be at maximum medical improvement and felt the medical care and treatment he received from the July 13, 2011, injury, as outlined in his report, including the care and treatment of the lumbar region, was medically reasonable and a direct necessity in an attempt to cure and relieve Mr. Jones of the effects of the permanent injury suffered on July 13, 2011. Dr. Koprivica stated even though Mr. Jones is at maximum medical improvement, he felt it was medically probable Mr. Jones will have ongoing indefinite treatment needs. He reported Mr. Jones will need prescribed medications over time and there were concerns about needing invasive intervention in the future as a result of adjacent segment disease.

In looking at the severity of Mr. Jones' limitations based on the failed back syndrome attributable to the surgical treatment necessitated by the July 13, 2011, injury, Dr. Koprivica felt

Mr. Jones was permanently and totally disabled. Even though Mr. Jones had pre-existent disabilities, he felt the failed back syndrome, based on the surgery necessitated by the July 13, 2011, injury was so overwhelming that in his opinion, Mr. Jones is permanently and totally disabled based on the July 13, 2011, injury and its resulting disability when considered in isolation, in and of itself. Dr. Koprivica also noted Mr. Jones needs to recline unpredictably based on his failed back syndrome and has severe postural restrictions with ad lib needed to change between sitting, standing or walking. Dr. Koprivica stated Mr. Jones is limited physically to less than sedentary physical demand. Dr. Koprivica stated, as he reviewed these limitations, it is his opinion that they are so overwhelming that realistically Mr. Jones is permanently and totally disabled based on the primary injury of July 13, 2011, when considered in isolation in and of itself.

Dr. Koprivica noted, hypothetically, if it was determined Mr. Jones was not permanently and totally disabled based on the primary injury of July 13, 2011, he believed Mr. Jones had suffered a 50 % permanent partial disability to the body as a whole for the new structural injury in the lumbar region and the outcome of care and treatment necessitated by the work injury of July 13, 2011. Dr. Koprivica gave restrictions including no frequent or constant bending at the waist, pushing, pulling, or twisting. He also noted Mr. Jones should avoid sustained or awkward postures to the lumbar spine and avoid squatting, crawling, kneeling or climbing as well. He also noted Mr. Jones should be restricted from whole body vibration exposure or jarring such as operating heavy equipment or driving over the road commercially.

Dr. Koprivica also noted Mr. Jones had pre-existing industrial disabilities. He reported Mr. Jones suffered in November 2003, an injury to his right shoulder for which he had endoscopic right subscapular bursectomy performed. As a result, he felt Mr. Jones had suffered a 22.5 % permanent partial disability at the right upper extremity level of the shoulder. Additionally, as a result of Mr. Jones' prior injury to his left shoulder in 2007, for which decompression and rotator cuff debridement was performed arthroscopically, he felt Mr. Jones had suffered an 18 % permanent partial disability of the left upper extremity at the level of the shoulder. Dr. Koprivica noted when looking at the disabilities involving both shoulder girdles, Mr. Jones is restricted from repetitive or sustained activities above shoulder girdle level. He also felt Mr. Jones should be restricted from repetitive pushing or pulling activities at chest level or repetitive reaching types of activities. He also recommended Mr. Jones limit overheard lifting activities to an occasional activity and, in general, would recommend that as a maximum, overhead lifting be restricted to less than 20 pounds and avoid all climbing activities where Mr. Jones would have to rely on his shoulders.

Dr. Koprivica also evaluated Mr. Jones' prior right upper extremity injury to his elbow. For this, he felt Mr. Jones had suffered a 24 % permanent partial disability of the right upper extremity at the level based on his history of development of right cubital tunnel syndrome for which a cubital decompression was performed. He felt Mr. Jones would be restricted from repetitive elbow flexion/extension activities as well as any vibration exposure. Lastly, Dr. Koprivica felt Mr. Jones had symptomatic chronic back pain with intermittent right radicular symptoms and, as a result, felt a 5 % to 10 % permanent partial disability to the body as a whole was attributable to the low back prior to July 13, 2011.

Dr. Koprivica felt, hypothetically, if it was determined Mr. Jones was not totally disabled based on the primary injury of July 13, 2011, in isolation, it is his opinion there was significant synergistic effect when one combined the pre-existing industrial disabilities he identified with additional disability attributable to the primary injury of July 13, 2011. Under that hypothetical, Dr. Koprivica considered the synergism of combining the multiple pre-existing industrial disabilities with the additional disability attributable to the July 13, 2011, injury to result in Mr. Jones being realistically permanently and totally disabled. I find Dr. Koprivica's testimony that the failed back syndrome alone is the cause for the permanent and total disability as opposed to the other hypothetical scenarios proposed for his opinion.

Dr. Stuckmeyer evaluated Mr. Jones on February 11, 2014. He reviewed the medical records and performed a physical examination prior to rendering his opinions. Dr. Stuckmeyer gave a history of the torquing injury at Harley Davidson on July 13, 2011. Dr. Stuckmeyer noted the medical records by Dr. Arthur Jenny related the onset of symptoms to mid-July 2011 when Mr. Jones was at work putting a swing arm of the motorcycle wheel well onto the frame. He noted the gun stopped suddenly and twisted Mr. Jones' entire body. He further reported Mr. Jones developed immediate pain in his right elbow and the next day he had tingling in the lower back and right posterior thigh and leg. Dr. Stuckmeyer gave a history of Mr. Jones medical treatment including surgery performed by Dr. Drisko. Dr. Stuckmeyer also noted Mr. Jones had prior medical conditions to his right elbow, right shoulder, and left shoulder.

As a result of the pre-existing conditions, Dr. Stuckmeyer felt Mr. Jones had suffered a 22.5 % permanent partial disability to the right shoulder as indicated by the Stipulation for Compromise Settlement. He also felt Mr. Jones had suffered a 25\% permanent partial disability to the right elbow due to the January 22, 2010, accident. He also felt Mr. Jones had suffered an 18 % permanent partial disability to the left shoulder, as indicated in the Stipulation for Compromise Settlement. Dr. Stuckmeyer noted pre-dating July 13, 2011, Mr. Jones was seen in consultation for symptoms of back and leg pain for chiropractic treatment. Dr. Stuckmeyer stated although he had some conservative treatment for low back pain, he had not undergone and MRI and continued to work in a regular duty status. Accordingly, Dr. Stuckmeyer felt within a reasonable degree of medical certainty, Mr. Jones suffered a significant injury to his low back on July 13, 2011, with the development of disabling back and leg pain. Furthermore, his work was the direct, proximate prevailing factor of the accident occurring on July 13, 2011. Pre-dating the accident, Dr. Stuckmeyer felt Mr. Jones suffered a 10\% permanent partial disability of the body as a whole due to his whole back. However, due to the ongoing symptoms of significant lower back pain with right lower extremity radiculopathy, Mr. Jones suffered an additional 30 % permanent partial disability to the lumbar spine.

Dr. Stuckmeyer also felt the medical treatment Mr. Jones received including the surgery by Dr. Jenny and Dr. Drisko was necessary to cure and relieve the significant back and right lower extremity radicular symptoms resulting from the work place accident on July 13, 2011. Dr. Stuckmeyer also felt restrictions were necessary, including no prolonged standing or walking greater than tolerated, with no repetitive lifting, bending or twisting of the lumbar spine, no lifting below waist height to exceed 15 pounds on an occasional basis and no lifting above shoulder height to exceed 10-15 pounds on an occasional basis. Dr. Stuckmeyer also

recommended Mr. Jones not be exposed to vibratory or torque tools with right upper extremity due to the right elbow condition. He also recommended no repetitive pushing, pulling, lifting, or reaching activities with the right and left shoulders and Mr. Jones should be accommodated at his workplace and allowed to utilize a cane for ambulatory support. Dr. Stuckmeyer opined due to the significant ongoing symptoms of lower back pain, he felt it would be reasonable for Mr. Jones to be allowed frequent bouts of recumbency throughout the day. With those restrictions in mind, Dr. Stuckmeyer recommended a vocational assessment to determine Mr. Jones' employability in the open labor market. Dr. Stuckmeyer felt should Mr. Jones be deemed permanently and totally disabled, it is his opinion the permanent total disability resulted from a combination of Mr. Jones' significant pre-existing disabilities involving the right and left shoulder, right elbow and lower back in combination with the disability resulting from the July 13, 2011, accident.

Dr. Drisko's deposition was taken by the Employer in this case. Dr. Drisko noted Mr. Jones had considerable pain when he saw him initially as well as difficulty walking before he had to sit down. Dr. Drisko attempted conservative treatment, which was unsuccessful. Ultimately, he performed surgical intervention. Dr. Drisko's diagnosis was spondylolisthesis. Dr. Drisko explained spondylolisthesis as a condition where there is instability in the back. He explained there is a fracture of the pars interarticularis, which is part of the backbone. This allows the lower vertebrae to shift forward and causes instability as well as pinching off nerves. He opined people with this condition are far more susceptible to have back conditions later in life and this is the condition he observed on an x-ray.

Dr. Drisko stated he received a letter from Employee's counsel and on that letter, he checked that he believed Mr. Jones' work condition injury was the prevailing factor in his medical condition. Dr. Drisko noted while Mr. Jones had a pre-existing condition, he saw where Mr. Jones had a torque injury and a torque injury very commonly causes back problems "to go." Dr. Drisko reported initially, he did not focus on causation, but focused on the treatment. Dr. Drisko stated it was his understanding Mr. Jones was torquing something at the time when he was injured. Dr. Drisko felt it was certainly possible that Mr. Jones could have a fracture of the pars, not have a lot of problems until he has a torquing incident and, at that time, it slips over enough to cause the pain such as what he presented to Dr. Drisko. Dr. Drisko stated it was certainly credible that Mr. Jones' torquing incident was the prevailing factor in causing his injuries, as illustrated in the following series of questions:

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Q. You indicated that Mr. Jones indicated he had torquing - he was torquing something at the time that he felt he was injured, is that your understanding?

A. That's correct.

Q. Would it be 100 percent consistent that Mr. Jones could have this fracture of the pars, not be having a lot of problems until he does this torquing incident at that time it slips over just enough that it cause the pain that he presented to you with?

A. That's certainly possible.

Q. Doctor, I would ask that you assume as true that on July 13, 2011, while employed at Harley-Davidson Motor Company that Mr. Jones was using a pneumatic drill approximately $21 / 2$ foot to 3 -foot long to torque a large anchor bolt to assemble a motorcycle wheel and swing arm when the drill kicked back, jerking his body. And that within a day or so of that he started having symptoms in his back that he described as stinging, and the stinging was from the back to the foot. I would ask that you assume those things as true, and assume as true also that Mr. Jones did not experience any pain like this prior to this episode.

A. Where was that document?

Q. I could tell you off the record later on. I would just ask that you assume as true that that's what his history is of the event.

A. Okay.

Q. And further assume that he didn't have any symptoms of back pain immediately. But within a few days later he starting having this stinging sensation from his back to his foot. And, again, assuming that he had not prior pain like this prior to the incident, and assuming that subsequent to the incident to the time that he presented to you he had no other accident or event that he knows of that could cause any pain at all.

Doctor, assuming those things as true, and again, your opinion is based upon me proving these things, so there's no reflection on you if you give an opinion if what I give you is faulty then it's on me, not you.

A. Okay.

Q. Now, based on - assuming those things are true, do you have an opinion based on a reasonable degree of medical certainty as to whether or not the incident at work described by Mr. Jones was the prevailing factor in causing the disability he presented to you with?

A. From your history it certainly would be compatible.

Q. Getting right to the opinions, how they are expressed, they mean something to doctors, to a judge and a lawyer. We have to have a certain amount of certainty. Are you saying that's compatible, would that be based on a reasonable degree of medical certainty?

A. Yes.

Q. So if I hear you correctly, you're saying it's certainly credible this is the prevailing factor?

A. That's correct.

There was also some discussion in Dr. Drisko's deposition as to whether Mr. Jones was engaging in jet ski activity while attending physical therapy. Dr. Drisko did not feel this was something he would expect an individual who sustained an injury to his low back in a torquing incident to be able to do. He felt somebody with a very symptomatic spondylolisthesis would not have been able to use a jet ski. Dr. Drisko, after being read the entry from physical therapy, was asked as to the prevailing factor, whether he had an opinion. His answer was no. The basis of why he did not have an opinion was not elaborated on. This leaves the employer/insurer's best evidence of disability to the low back to be in favor of compensation. Dr. Drisko, when faced with inquiry of a jet ski incident, had no opinion on whether it was the prevailing factor in the claimant's condition. If believed, the Employer/Insurer have no opinion on causation, and to the

contrary, if it is believed there was no jet ski event, Dr. Drisko finds the work injury as the prevailing factor in the claimant's injury and permanent and total disability.

Terry L. Cordray, vocational rehabilitation expert, had the only vocational opinion to be considered in this case. Mr. Jones saw Mr. Cordray on November 9, 2014. At the time of the interview, Mr. Cordray reported he took an in-depth vocational interview as well as 2-1/2 hours of vocational testing. Additionally, Mr. Cordray reviewed significant medical records and took an educational and military background history from Mr. Jones. He noted Mr. Jones' lack of any sedentary or light vocational or academic training as well as his lack of any computer keyboard or office clerical software skills has a significant limited effect upon his ability to access jobs in the labor market, especially when one considers his current physical problems and limitations. For the purposes of rehabilitation purposes, Mr. Jones is considered a high school graduate. He also noted all of the training Mr. Jones received at Harley Davidson was regarding heavy work in assembling motorcycles that does not transfer to sedentary or light jobs.

Mr. Cordray also noted Mr. Jones had prior medical conditions. He noted in 2003, Mr. Jones had a right shoulder surgery and returned to work with restrictions of limitations and overhead reaching, pushing and pulling. Mr. Cordray also noted Mr. Jones left the assembly area and went to the paint line for four years in order to stay within those restrictions. In 2008, Mr. Jones had left shoulder surgery and was off for several weeks when he returned to working the paint job. Mr. Jones was working within his limitations and restrictions until forced by seniority back into the assembly area in 2010. Mr. Cordray opined Mr. Jones' pre-existing right and left shoulder surgeries resulted in permanent restrictions and limitations which prevented him from performing his usual job in assembly and caused him to make his seniority move to the paint line which should be considered a significant hindrance and obstacle to employment or re-employment especially given Mr. Jones' only obtained a high school education and has always performed heavy physical demand jobs since 1986.

Mr. Cordray performed vocational testing and determined Mr. Jones is slightly above average intelligence, but given his need to constantly alternate between sitting and standing, he is not a good candidate for vocational rehabilitational training. He reported Mr. Jones would need to be in a situation where he could maintain some captive sitting or position in order to participate in vocation retraining for light clerical skills. He also noted a review of the job postings within 30 miles of Mr. Jones' zip code showed there were no jobs available that Mr. Jones could reasonably perform given his education, skill level, and his need to constantly alternate between sitting and standing, especially with the use of narcotic pain medications. He did not feel there were any jobs Mr. Jones could realistically apply.

Mr. Cordray stated, prior to his injury on July 13, 2011, Mr. Jones presented as an individual who had a high school education, specific vocational preparation performing medium strength demand production assembly machine operator jobs as well as heavy motorcycle assembly work. Prior to his injury on July 13, 2011, he had pre-existing right shoulder and left shoulder surgeries as noted by the medical records. Mr. Cordray felt these prior pre-existing physical limitations constituted a hindrance or obstacle to his employment or re-employment prior to July 13, 2011.

Mr. Cordray also noted Mr. Jones had significant restrictions assigned by Dr. Stuckmeyer regarding Mr. Jones' upper extremities as well as his low back. Based upon those restrictions, Mr. Cordray felt Mr. Jones could not return to the heavy job as a motorcycle assembly person as this job was heavy in strength demands, requiring one to stand throughout the day and requires one to lift and carry in excess of 50 pounds. He felt this job could not be performed while using a cane and certainly would not be allowed frequent bouts of recumbency throughout the day. He also felt, given these same restrictions, Mr. Jones could not perform his previous job as production machine operator in which he is required to stand throughout the day operating his machine with the inability to use a cane while using both hands to on-load and off-load the machine and certainly not allowed the ability for frequent bouts of recumbency throughout the day.

Based upon those restrictions, Mr. Cordray stated Mr. Jones is precluded from all occupations in the labor market. He also noted in the sedentary physical demand category with the need for no prolonged standing or walking, Mr. Jones is required to use his upper extremities. Mr. Cordray stated sedentary unskilled workers such as Mr. Jones are assembling small products, operating cash registers, taking payment or making change, all were tasks and activities require constant use of the upper extremities and reaching, handling, fingering, and feeling. He did not feel Mr. Jones would be able to do these tasks.

Mr. Cordray also looked at the restrictions of Dr. Koprivica as well. Based upon those restrictions, Mr. Cordray also felt Mr. Jones was unable to perform all of his past work and is now limited based on the failed back syndrome in isolation to sedentary sit, stand jobs and extremely narrow range of jobs in the labor market and that these jobs would include a cashier in a parking garage, requiring one to constantly use the upper extremities to reach, handle, finger and feel. He also noted Dr. Koprivica reported Mr. Jones has to recline unpredictably based upon his failed back syndrome. Based upon Dr. Koprivica's recommendations, Mr. Cordray felt Mr. Jones is precluded from all jobs in the open labor market. However, based on Dr. Koprivica's restrictions, attributable to the failed back syndrome, the permanent total disability is the result of the July 13, 2011, injury in isolation.

Elayna Jones testified she was married to Mr. Jones on August 21, 2011. They were subsequently divorced in September 2012. Following their wedding, they went on a honeymoon from September 12, 2011, to September 16, 2011. She testified they went to Cancun. Unfortunately, as the honeymoon was already paid for, they were unable to cancel their plans. Instead, they went on their honeymoon and primarily sat on the beach. They were unable to swim in the ocean or do any other physical activities because of Mr. Jones' condition. She stated unequivocally, they did not ride jet skis and given Mr. Jones' condition, she did not believe he would have been capable of riding a jet ski. She testified she observed him progressively get worse following the July 13, 2011, accident. This progressed until the time he saw Dr. Drisko in October 2011. She also testified they continued to interact following the divorce at least one time a week due to the children they have together. She stated she has continued to watch him suffer significant pain and difficulties as a result of the July 13, 2011, injury. Ms. Jones was very clear; Mr. Jones had no financial obligations to her.

Ms. Van Horn testified she's an occupational therapist that concentrates on upper extremities. She was Mr. Jones' physical therapist not only for this injury but for his prior injuries as well. She is given a prescription by the physician as to what she needs to concentrate on with the patient and works on that area only. Ms. Van Horn was asked to testify about her physical therapy notes, specifically her entry with regards to Mr. Jones riding a jet ski on his honeymoon. She testified she had no independent recollection of the conversation. She reported she takes notes during the course of the evaluation and then dictates them after the evaluation, which is sometimes later that same evening. However, there was no entry in her handwritten notes regarding any report of Mr. Jones using a jet ski. She testified because of her process, she did not believe there was any possible way she could make any mistakes. Counsel for the Employer/Insurer spent a great deal of time and questions regarding the statement regarding jet ski use on vacation, and reportedly had this witness testify that she was not hired to treat any back complaints, did not treat or deal with them to the point of asking why she had to confirm over and over that she was only hired to treat the upper extremity.

Employer and Insurer have challenged whether Mr. Jones suffered an accident in the course and scope of his employment and whether his injury to his back was causally related to the accident.

Mr. Jones testified he suffered an injury on July 13, 2011, while working on the Excel assembly line. He was working on the rear modules of the frame of the bike with a large pneumatic gun. The gun was approximately four feet long and was held by both hands. The bolt got stuck and Mr. Jones tried to back it out. When the bolt became stuck, it caused his body to torque and twist at his waist. This also caused the electrical box on the ceiling immediately above him to blow up after the bolt stopped.

Mr. Jones testified he went to the health clinic at Employer's facility and immediately reported the accident. A report of injury was completed at that time, although Mr. Jones had to have someone complete the form due to the pain in his right elbow. Employer did not challenge whether the incident occurred. There is no question Mr. Jones suffered an accident during the course and scope of his employment. Accordingly, the next question to address is whether Mr. Jones' injuries are causally related to the accident.

The courts have held when a condition is beyond the understanding of a lay person, expert testimony is required. "For an injury to be compensable the evidence must establish a causal connection between the accident and the injury. The testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause and extent of the disability when the facts fall within the realm of lay understanding...An injury may be of such a nature (however) that expert opinion is essential to show that it was caused by the accident to which it is ascribed." (Citations omitted). Griggs v. A. B. Chance Company, 503 S.W.2d 697, 704 (Mo.App. 1974).

Whether Mr. Jones suffered an accident and whether it is causally related is an issue that must be left to medical experts. The courts have noted that, "medical causation not within common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause." Daly v. Powell Distrib., Inc., 328 S.W.3d 254, 259 (Mo. Ct. App. 2010) citing Selby v. Trans World Airlines, Inc., 831 S.W.2d 221, 222 (Mo.App. 1992). "[D]isregarding uncontradicted expert's testimony as to causation must be supported by substantial and competent evidence. Id: see also Wright v. Sports Assoc., Inc., 887 S.W.2d 596, 600 (Mo. banc 1994), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). Moreover, "[t]he Commission cannot find there is no causation if the uncontroverted medical evidence is otherwise." Id. (internal citation and quotation marks omitted)(see also Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 522 (Mo. Ct. App. 2011)).

Dr. Koprivica opined Mr. Jones suffered destabilization of the spondylolisthesas associated with the annular injury development. Likewise, Dr. Drisko's diagnoses with spondylolisthesis. Dr. Drisko, Employer's testifying physician, stated it was his understanding Mr. Jones was torquing something at the time when he was injured. Dr. Drisko felt it was certainly possible Mr. Jones could have a fracture of the pars, not have a lot of problems until he had a torquing incident and, at that time, it slipped over enough to cause the pain such as what he presented to Dr. Drisko. Dr. Drisko stated it was certainly credible that Mr. Jones' torquing incident was the prevailing factor.

Likewise, Dr. Koprivica reported when the gun Mr. Jones was working on kicked back unexpectedly, it torqued his right arm at the elbow and his whole body was forcefully rotated and jerked, resulting in an injury to his low back. Dr. Koprivica stated over time, Mr. Jones' symptoms regarding his low back following this injury became much more significant. After completing his evaluation, Dr. Koprivica stated, "the work injury of July 13, 2011, was felt to represent the direct, proximate and prevailing factor in permanent injury to the lumbar spine with new structural change with resultant destabilization of the spondylolisthesas associated with the annular injury development, resulting in the development of symptomatic stenosis. He noted with the failure of conservative treatment, it was reasonable Mr. Jones underwent the two-level decompression and fusion at L4-5 and L5-S1. Unfortunately, Mr. Jones developed a failed back syndrome as an outcome of the surgical treatment. Associated with failed back syndrome, he developed sacroiliac arthralgia as a complication arising from the fusion in the lumbar region with the development of transition syndrome. Dr. Koprivica also noted separately, Mr. Jones suffered an injury to his right upper extremity on July 13, 2011.

There was some discussion as to whether Mr. Jones was riding a jet ski on his honeymoon based on one entry in the physical therapy notes with the argument being Mr. Jones injured his back following the honeymoon. The physical therapist testified the entry was not in her handwritten notes but only in the typewritten notes, which was done some time after the evaluation. Although, she does not believe she could be inaccurate, I find the testimony of Mr. Jones and Elayna Jones to be more credible than that of Sonia Van Horn. Mr. Jones testified he did not jet ski as he was in too much pain. He stated they would have cancelled the honeymoon trip but it was nonrefundable. Elayna Jones, who has since been divorced from Mr. Jones, testified Mr. Jones did not ride a jet ski on their honeymoon. Furthermore, she

testified she did not believe he would have been physically capable of riding a jet ski at the time of the honeymoon. By that time, Mr. Jones' condition had deteriorated to the point he had difficulty walking or doing much more than sitting on the beach. I do not believe Mr. Jones was riding a jet ski on his honeymoon or that he suffered an accident subsequent to that time.

There was no expert testimony stating the accident on July 13, 2011, as described, was not the prevailing factor in causing his work related injury. Dr. Drisko never opined Mr. Jones' injury was not related to his work. When asked about a jet ski incident, Dr. Drisko testified he did not have an opinion as to the prevailing factor based on the physical therapy notes Employer's attorney had read to him - he never opined work was not the prevailing factor. Mr. Jones has consistently testified he did not relate his back injury to the accident until Dr. Drisko told him he believed it was related to the accident. This is consistent with the reports of Drs. Koprivica and Stuckmeyer as well the records from Dr. Jenny at North Kansas City Hospital.

Given the nature of the alleged injury, expert testimony is required. Although Dr. Koprivica's testimony is more definitive than Dr. Drisko's, both physicians opine Mr. Jones' work was the prevailing factor in causing his low back condition and resulting disability as did Dr. Stuckmeyer. There is no evidence to the contrary. Accordingly, I find Mr. Jones proved that an accident occurred in the course and scope of his employment.

Section 287.420, RSMo, requires notice to be given to the employer notice of the time, place and nature of the injury, and the name and address of the person injured, as soon as practicable after the happening thereof but not later than thirty days after the accident, unless there was good cause for failure to give the notice or employer was not prejudiced by failure to receive the notice.

"The purpose of section 287.420 is to give the employer timely opportunity to investigate the facts surrounding the accident and, if an accident occurred, to provide the employee medical attention in order to minimize the disability." Gonzales v. Butterball, L.L.C., 457 S.W.3d 363, 368 (Mo. Ct. App. 2015) citing Sell v. Ozarks Med. Ctr., 333 S.W.3d 498, 510 (Mo.App.2011) (internal quotation omitted). "A claimant may demonstrate lack of prejudice where evidence of actual notice was uncontradicted, admitted by the employer, or accepted as true by the factfinder." quoting Pursifull v. Braun Plastering \& Drywall, 233 S.W.3d 219, 223 (Mo.App.2007) (internal quotation omitted).

Section 287.420, RSMo, requires notice of the time, place and nature of the injury, and the name and address of the person injured-it does not require the exact nature of an employee's injuries. In Dunn v. Hussman Corp., 892 S.W.2d 676 (Mo. Ct. App. 1994), the Commission found employer had notice of a potentially compensable work related injury. Employee reported her hospitalization to Francine Bogar, employer's benefit representative, within three days of the date of her January 3, 1989, accident. Id. at 681. Employer's representative then completed the request for personal medical leave, thus, acknowledging claimant's inability to work as a result of her hospitalization. Id. Additionally, by January 17, 1989, employer's representative was notified of the true nature of claimant's injuries, a ruptured cervical disc. Id. Ms. Bogar received a

benefits request from the employee on May 23, 1989, stating her condition was work related. This was the first time Employee notified Ms. Bogar her condition was work related. Each month prior, the forms were marked "not related to employment." The Commission believed these facts constituted constructive knowledge and the Court of Appeals agreed stating, "employer had reasonable notice of claimant's condition and could have, if it had so chosen, investigated the cause of her disability." Id.

As in Dunn, Mr. Jones provided notice of his accident, including the time, place and nature of the injury as evidences by Employer's Exhibit 4. Nothing in §287.420 RSMo requires the exact nature of the injuries to be stated on the notice. I believe Mr. Jones gave Employer notice of the accident as required by the statute. Regardless, I believe Mr. Jones did not discover his back condition was related to his work injury until Dr. Drisko informed him his condition was related to the July 13, 2011, injury. Mr. Jones testified after Dr. Drisko directed him to the workers' compensation department, he immediately contacted the health department at Harley Davidson. They then directed him to contact the adjuster at Gallagher Bassett, which he did. Mr. Jones notified his employer of the extent of his injuries as soon as he reasonably became aware of the association.

I find Mr. Jones provided an accident occurred in the course and scope of his employment and notice was given to the employer as required by statute.

Mr. Jones is seeking temporary total disability compensation for the period of September 12, 2011, through October 4, 2012.

Section 287.270, RSMo, provides that an injured employee is to be paid compensation during the continuance of temporary total disability up to a maximum of 400 weeks. Total disability is defined in Section 287.020 .7 as the "inability to return to any employment and not merely...[the] inability to return to the employment in which the employee was engaged at the time of the accident." Compensation is payable until the employee is able to find any reasonable or normal employment or until his medical condition has reached the point where further improvement is not anticipated. Vinson v. Curators of Univ. of Missouri, 822 S.W. 2d 504 (Mo. App. 1991); Phelps v. Jeff Wolk Const. Co., 803 S.W.2d 641, 645 (Mo. App. 1991); and Williams v. Pillsbury Co., 694 S.W.2d 488 (Mo. App. 1985).

The employee has the burden of proving that he or she is unable to return to any employment. Such proof is made only by competent and substantial evidence. It may not rest on speculation. Griggs v. A.B. Chance Company, 503 S.W.2d 697, 703 (Mo. App. 1974). The employee's testimony alone can constitute substantial evidence to support an award of temporary total disability. Evidence of temporary disability given by the employee is not necessarily beyond the realm of understanding by lay persons. Riggs v. Daniel Intern, 771 S.W.2d 850, 851 (Mo. App. 1989).

I believe Mr. Jones' testimony supports his claim for temporary total disability compensation. Mr. Jones' testimony and the corroborating medical records evidence his inability

to work from September 12, 2011, through October 4, 2012. Further, the medical records indicate Mr. Jones was not released by Dr. Drisko until October 4, 2012, at which time he was not set to return for one year following the low back surgery on January 9, 2012. Mr. Jones testified he was unable to work during this time as well. There is no evidence to the contrary.

I find Mr. Jones has met his burden of proof in his claim for temporary total disability compensation. Mr. Jones was temporarily disabled from September 12, 2011, through October 4, 2012. The Employer shall pay Mr. Jones $\ 39,205.64, representing $554 / 7$ weeks for the claimed time period in which Mr. Jones was temporarily totally disabled.

"Employee had the burden of proving his entitlement to benefits for care and treatment authorized by $\S 287.140 .1$ i.e., that which is reasonably required to cure and relieve from the effects of the work injury." Bowers v. Hiland Dairy Co., 132 S.W.3d 260, 266 (Mo.App. 2004); Rana v. Landstar TLC, 46 S.W.3d 614, 622 (Mo.App. 2001). Meeting that burden requires that the past bills be causally related to the work injury. Bowers, 132 S.W.3d at 266; Pemberton v. 3M Co., 992 S.W.2d 365, 368-69 (Mo.App. 1999).

The employee must prove that the medical care provided by the physician selected by the employee was reasonably necessary to cure and relieve the employee of the effects of the injury. Chambliss v. Lutheran Medical Center, 822 S.W.2d 926 (Mo.App. 1991), overruled in part on the grounds by Hampton, 121 S.W.3d at 229; Jones v. Jefferson City School District, 801 S.W.2d 486, 490-91 (Mo.App. 1990), overruled in part on other grounds by Hampton, 121 S.W.3d at 230; Roberts v. Consumers Market, 725 S.W.2d 652, 653 (Mo.App. 1987); Brueggemann v. Permaneer Door Corporation, 527 S.W.2d 718, 722 (Mo.App. 1975). The employee may establish the causal relationship through the testimony of a physician or through the medical records in evidence that relate to the services provided. Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo. 1989); Meyer v. Superior Insulating Tape, 882 S.W.2d 735, 738 (Mo.App. 1994), overruled in part on other grounds by Hampton, 121 S.W.3d at 228; Lenzini v. Columbia Foods, 829 S.W.2d 482, 484 (Mo.App. 1992), overruled in part on other grounds by Hampton, 121 S.W.3d at 229; Wood v. Dierbergs Market, 843 S.W.2d 396, 399 (Mo.App. 1992), overruled in part on other grounds by Hampton, 121 S.W.3d at 229. The medical bills in Martin were shown by the medical records in evidence to relate to the professional services rendered for treatment of the product of the employee's injury. Martin, 769 S.W.2d at 111 .

Mr. Jones submitted the medical records and bills reflecting the treatment he received in to evidence. The total medical bills were itemized and admitted as Employee's Exhibit S. The medical records correlate with the medical bills entered into evidence. Further, Dr. Koprivica reviewed the medical records and found that the treatment was reasonable and necessary to cure and relieve Mr. Jones of the symptoms of his injuries dated July 13, 2011. Although Employer argued the bills were paid by Mr. Jones' insurance company and reflect a zero balance, Employer is still liable for the entire amount of the bills.

Similarly in the recent case of Maness v. City of De Soto, 421 S.W.3d 532, 545-46 (Mo. App. 2014), Employer attempted to establish Employee had no liability for the fee reductions by introducing an affidavit of Des Peres Hospital employee Grace Ya. In Ms. Ya's affidavit, she stated she is the custodian of records for medical billing at Des Peres Hospital and she personally reviewed Employee's account information. Ms. Ya stated that:

1) For services on August 13, 2007, "facility billing records indicate an initial charge of $\ 678.00 that was reduced to $\ 314.79 " and paid by Claimant; and

2) For services on August 22, 2007, "facility billing records indicate an initial charge of $\$ 52,178.68^{7} that was reduced to \ 31,033.96 " and paid by Claimant's health insurance provider, AETNA.

Ms. Ya stated that the billing records show Employee has no outstanding obligation to pay amounts related to the August 2007 services. However, the Court of Appeals found, Ms. Ya's affidavit was insufficient to prove Employee's liability to Des Peres Hospital for the fee reductions has been extinguished. The record contained documents Employee signed in 2007 and 2008 agreeing to be responsible "for the total charges for services rendered" by Des Peres Hospital. Ms. Ya did not purport to have any authority to fix, change, or extinguish a patient's liability for medical expenses. In addition, Ms. Ya's affidavit did not state whether Des Peres Hospital allowed the fee reductions for its own purposes or whether it would have made the reductions in the absence of Employee's health insurance policy. Therefore, the Court of Appeals found the Employer was liable for the entire amount of the medical bills.

Likewise, Mr. Jones entered into evidence the financial responsibility forms showing his liability for the entire amount. There was no evidence whether any reductions of benefits were made for the facility's own purposes or whether it would have made the reductions if Mr. Jones did not have health insurance. Nor was there any evidence Mr. Jones would not have any liability beyond the co-pay. To the contrary, the financial responsibility forms show Mr. Jones is liable for the entire amount billed.

I find Mr. Mr. Jones met his burden of proof regarding the past medical expenses and order Employer to pay the sum of $\ 129,236.63.

Mr. Jones has asserted a claim for permanent and total disability benefits, with the liability of such resting with either the Employer and Insurer or the Second Injury Fund.

Section 287.020.7, RSMo, provides, "The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely inability to return to the employment in which the employee' was engaged at the time of the accident." The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment." Kowaiski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App. 1982). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884

(Mo.App. 2001), overruled in part on other grounds by Hampton, 121 S.W.3d at 225; Reiner v. Treasurer of the State of Mo., 837 S.W.2d 363, 367 (Mo.App. 1992), overruled in part on other grounds by Hampton, 121 S.W.3d at 229; and Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789, 792 (Mo.App. 1992). The key question is whether any employer in the usual course of business would be reasonably expected to hire the employee in that person's present physical condition, reasonably expecting the employee to perform the work for which he or she is hired. Brown v. Treasurer of Missouri, 795 S.W.2d 479, 483 (Mo.App. 1990); Reiner at 367; and Kowalski at 922. See also Thornton v. Hass Bakery, 858 S.W.2d 831, 834 (Mo.App. 1993).

Section 287.220, RSMo, creates the Second Injury Fund and sets forth when and in what amounts compensation shall be paid from the fund in "[a]ll cases of permanent disability where there has been previous disability." In deciding whether the fund has any liability, the first determination is the degree of disability from the last injury considered alone. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 248 (Mo.banc 2003), overruled in part on other grounds by Hampton, 121 S.W. 3d at 224 (Mo banc 2003); Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo.App. 2000). Accordingly, pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined. If the last injury in and of itself renders the employee permanently and totally disabled, then the fund has no liability and the employer is responsible for the entire amount of compensation. Id. at 248.

In looking at the severity of Mr. Jones' limitations based on the failed back syndrome attributable to the surgical treatment necessitated by the July 13, 2011, injury, Dr. Koprivica felt Mr. Jones was permanently and totally disabled. Even though Mr. Jones had pre-existent disabilities, he felt the failed back syndrome, based on the surgery necessitated by the July 13, 2011, injury was so overwhelming that in his opinion, Mr. Jones is permanently and totally disabled based on the July 13, 2011, injury and its resulting disability when considered in isolation, in and of itself. Dr. Koprivica also noted Mr. Jones needs to recline unpredictably based on his failed back syndrome and has severe postural restrictions with ad lib needed to change between sitting, standing or walking. Dr. Koprivica stated Mr. Jones is limited physically to less than sedentary physical demand. Dr. Koprivica stated, as he reviewed these limitations, it is his opinion that they are so overwhelming that realistically Mr. Jones is permanently and totally disabled based on the primary injury of July 13, 2011, when considered in isolation in and of itself.

Mr. Cordray also noted Mr. Jones had significant restrictions assigned by Dr. Stuckmeyer regarding Mr. Jones' upper extremities as well as his low back. Based upon those restrictions, Mr. Cordray felt Mr. Jones could not return to the heavy job as a motorcycle assembly person as this job was heavy in strength demands, requiring one to stand throughout the day and to lift and carry in excess of 50 pounds. He felt this job could not be performed while using a cane and certainly would not be allowed frequent bouts of recumbency throughout the day. He also felt, given these same restrictions, Mr. Jones could not perform his previous job as production machine operator in which he is required to stand throughout the day operating his machine with the inability to use a cane while using both hands to on-load and off-load the machine and certainly not allowed the ability for frequent bouts of recumbency throughout the day.

Based upon those restrictions, Mr. Cordray stated Mr. Jones is precluded from all occupations in the labor market. He also noted in the sedentary physical demand category with

the need for no prolonged standing or walking, Mr. Jones is required to use his upper extremities. Mr. Cordray stated sedentary unskilled workers such as Mr. Jones are assembling small products, operating cash registers, taking payment or making change, all were tasks and activities require constant use of the upper extremities and reaching, handling, fingering, and feeling. He did not feel Mr. Jones would be able to do these tasks.

Mr. Cordray also looked at the restrictions of Dr. Koprivica as well. Based upon those restrictions, Mr. Cordray felt Mr. Jones was unable to perform all of his past work and is now limited based on the failed back syndrome in isolation to sedentary sit, stand jobs and extremely narrow range of jobs in the labor market and that these jobs would include a cashier in a parking garage, requiring one to constantly use the upper extremities to reach, handle, finger and feel. He also noted Dr. Koprivica reported Mr. Jones has to recline unpredictably based upon his failed back syndrome. Based upon Dr. Koprivica's recommendations, Mr. Cordray felt Mr. Jones is precluded from all jobs in the open labor market. However, based on Dr. Koprivica's restrictions, attributable to the failed back syndrome, the permanent total disability is the result of the July 13, 2011, injury in isolation.

The evidence demonstrates Mr. Jones was injured on July 13, 2011. Following the injury, he underwent continual medical treatment and is still under medical care of the physicians at Mosaic Life Care. During the lengthy course of Mr. Jones' treatment history, no physicians questioned his veracity or his level of pain. As a result of the injury, Mr. Jones testified he suffers severe pain and physical restrictions. He takes ongoing medications to help control and decrease his pain and consistently uses a TENS unit. As a result of the medications, Mr. Jones suffers side effects including drowsiness. Further, he needs to lie down and change positions frequently and unpredictably to decrease the pain. Mr. Jones testified that he has good days and bad days.

After observing Mr. Jones throughout the course of the hearing and reviewing all of the evidence, I find Mr. Jones credible. Throughout the hearing, both the appearance of Mr. Jones and his observed behavior patterns support the conclusion that he is suffering from a significant level of pain in his low back. During the course of the first day of the hearing which began at 9:00 a.m. and went until 4:30, Mr. Jones was unable to sit comfortably, was changing positions and was alternating between sitting and standing in an effort to reduce his pain.

I find the testimony of Dr. Koprivica and Mr. Cordray to be credible.

Based upon the evidence presented, I find that Mr. Jones is permanently and totally disabled. I find that no employer could reasonably be expected to hire Mr. Jones in his current condition, particularly when one considers the chronic pain he experiences, the need for narcotic medications and the requirement to lie down unpredictably throughout the day. There was no contrary medical or vocational evidence to show Mr. Jones is capable of gainful employment. I further find that the total disability is a result of last accident in isolation.

The evidence establishes that Mr. Jones reached maximum medical improvement on October 4, 2012. The Employer and Insurer is therefore directed to pay Mr. Jones the sum of $\ 705.50 per week for permanent total disability commencing on October 5, 2012, and continuing for the remainder of Mr. Jones' life pursuant to Missouri Workers' Compensation laws.

Mr. Jones seeks an award leaving open future medical care and treatment to relieve and cure him of the work related injuries he has suffered.

Section 287.140, RSMo, requires that the employer/insurer provide "such medical, surgical, chiropractic, and hospital treatment...as may reasonably required...to cure and relieve [the employee] from the effects of the injury." Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App. 1996). The standard of proof for entitlement to an allowance for further medical treatment cannot be met simply by offering testimony that it is "possible" that the claimant will need further medical treatment. Modlin v. Sun Mark, Inc., 699 S.W.2d 5,7 (Mo.App. 1995). Employees are required to show by a reasonable probability that they will need future medical treatment. Sharp v. New Mac Elec. Co-op., 92 S.W.3d 351, 354 (Mo.App. 2003), overruled in part on other grounds by Hampton, 121 S.W.3d at 224; Dean v. St. Luke's Hospital, 936 S.W.2d 601, 603 (Mo.App. 1997), overruled in part on other grounds by Hampton, 121 S.W.3d at 227 .

Dr. Koprivica stated even though Mr. Jones is at maximum medical improvement, he felt it was medically probable Mr. Jones will have ongoing indefinite treatment needs. He reported Mr. Jones will need prescribed medications over time and there were concerns about needing invasive intervention in the future as a result of adjacent segment disease. Mr. Jones has continued to receive ongoing conservative treatment, consistent with this opinion.

When the standards for awarding future medical aid are applied to the facts of this case, I find that Mr. Jones has satisfied his burden of proof on this issue.

Based on this evidence, Employer and Insurer is directed to provide all additional medical treatment reasonable and necessary to cure and relieve Mr. Jones from the effects of his July 13, 2011, injury in accordance with the provisions of Section 287.140, RSMo. This requirement for future medical aid shall include any care and treatment that is causally related to his July 13, 2011, accident.

Because I found Mr. Jones to be permanently and totally disabled as a result of the last accident, I find the Second Injury Fund has no liability.

Interest shall be provided as by law.