Martin Sanchez-Rivera v. Jorge Calderon Construction

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-059076

Employee: Martin Sanchez-Rivera

Employer: Jorge Calderon Construction

Insurer: State Farm Insurance

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated February 28, 2017. The award and decision of Administrative Law Judge Emily S. Fowler, issued February 28, 2017, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this 21st day of September 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Martin Sanchez Rivera Injury No. 10-059076

Employer: Jorge Calderon Construction Insurer: State Farm Insurance Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund (Dismissed) Hearing Date: January 20, 2017 Record Closed: February 21, 2017 Checked by: ESF/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 16, 2010
5. State location where accident occurred or occupational disease was contracted: Hollister, Taney County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while in the course and scope of his employment was approximately 25 feet off the ground framing in a window when he lost his balance and fell landing on his feet causing the injuries to his bilateral lower extremities and back.
12. Did accident or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Martin Sanchez Rivera Injury No. 10-059076

1. Part(s) of body injured by accident or occupational disease: bilateral lower extremities and back.
2. Nature and extent of any permanent disability: Permanent total disability
3. Compensation paid to-date for temporary disability: $\ 23,334.50 with a credit to employer for overpayment of $\ 2,916.90.
4. Value necessary medical aid paid to date by employer/insurer? $\ 257,158.20
5. Value necessary medical aid not furnished by employer/insurer? Employee seeks $\ 4,980.58 for unpaid medical bills.
6. Employee's average weekly wages: $\ 437.50
7. Weekly compensation rate: $\$ 291.68 / \ 291.68
8. Method wages computation: By agreement

1. Amount of compensation payable from employer/insurer to the employee:

Employer shall pay to Employee permanent total disability benefits beginning November 21, 2011 at the rate of $\ 291.68 per week and thereafter for as long as claimant remains permanently and totally disabled. Employer owes past due permanent total disability from the date of November 21, 2011 to the date of hearing for a total of 268.71 weeks at $\ 291.68 totaling $\ 78,377.33. The amount of $\ 2,916.90 in overpayment of temporary total disability benefits shall be subtracted from this amount making the total amount that employer owes to Employee for past due benefits up to the date of the hearing is $\ 75,460.43. Employer shall pay Employee from the date of hearing forward the amount of $\ 291.68 per week for as long as Employee remains permanently and totally disabled.

1. Second Injury Fund liability: None
2. Future requirements awarded: Employer to provide Employee with such future medical care that shall serve to cure and relieve symptoms from which Employee suffers as a result of his work injury of July 16, 2010.

The compensation awarded to Employee shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of Mr. David Curotto, attorney for Employee.

On January 20, 2017, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The Employee, Martin Sanchez Rivera, appeared in person and with counsel, Mr. David Curotto. The Employer and Insurer appeared through counsel, Mr. Brian Fowler. The Employee dismissed the Second Injury Fund claim at hearing.

The parties stipulated to the following: (1) That the Employer, Jorge Calderon Construction, was an employer operating subject to the provisions of the Missouri Workers’ Compensation Law on July 16, 2010, and was fully insured by State Farm Insurance; (2) That Martin Sanchez Rivera was its Employee and was working subject to the law near Hollister, Taney County, Missouri; (3) That Employee sustained an accident arising out of and in the course of his employment; (4) That Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law; (5) That Employee’s average weekly wage was $\ 437.50 resulting in a compensation rate of $\ 291.68 for temporary total, permanent partial, and permanent total disability compensation; (6) That the Employee reached MMI on November 20, 2011; (7) That the Employer has paid temporary total disability compensation in the amount of $\ 23,334.50 with an overpayment of $\ 2,916.90; (8) That the Employer/Insurer paid $\ 257,158.20 as and for medical care; (9) That the Employer agrees to leave medical care open for any and all medical treatment which will cure or relieve Employee of the symptoms he suffers from his work injury of July 16,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Martin Sanchez Rivera

Injury No. 10-059076

2010, specifically for pain medication and psychiatric counseling as well as blood work and quarterly appointments with a liver specialist.

The issues to be resolved by this hearing are as follows:

(1) Whether the Employer must reimburse the Employee for medical expenses totaling $\ 4,980.58; and

(2) Whether the Employee suffered any disability and, if so, the nature and extent of his disability with regard to the Employer's liability.

Employee Martin Sanchez Rivera testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit A July 26, 2016 Deposition of Dr. P. Brent Koprivica with Exhibits

Exhibit B October 19, 2015 Deposition of Michael J. Dreiling with Exhibits

Exhibit D Contract for Legal Services between Claimant \& Attorney David Curotto

Exhibit E Calderon Deposition

Exhibit F Emergency Medical Services Bill, St. John’s Regional Health Center

The Employee offered the following exhibit into evidence over objection from

Employer's counsel, which was admitted into evidence:

Exhibit C 60 Day Letter Containing Dr. P. Brent Koprivica's January 30, 2012

Report; July 11, 2014 Report; May 17, 2015 Report; Michael J. Dreiling's

August 12, 2014 Report with Exhibits

The Employee offered the following exhibit, which was objected to by Employer and not received into evidence based on lack of foundation:

Exhibit G Olathe Medical Care

The Employer did not call any witnesses, but offered the following exhibits into evidence, all of which were admitted without objection:

Exhibit 1 Rating Report of Dr. Jackson 11/7/2011, with CV

Exhibit 2 Rating Report of Dr. Horton 3/11/2012 with CV

Exhibit 3 Report of Dr. Jackson 9/11/2011

Exhibit 4 MMI Report of Dr. Horton 8/18/2011

Based on a review of the above exhibits and the testimony of the witness, I make the following findings and rulings:

Martin Sanchez Rivera, hereinafter referred to as "Employee", was 34 years old at the time of the hearing. He is married with three children living in Olathe, Kansas. Employee testified that he worked for Jorge Calderon Construction on July 16, 2010. He worked as a framer in residential building. His duties included assembling walls, siding, and building soffits. He worked with wood, nailing it together, carrying wood in bundles, using hammers, hammer guns, nail guns. He had been employed for approximately one month prior to this accident. He had, however, worked for the employer on prior occasions for about two years in the past in the construction trade mostly doing framing of houses. On the date of the accident, Employee was constructing a house in Taney County, Missouri, near Hollister, which is near Branson. At that time he was a full-time employee of the employer.

Employee explained that he was approximately 25 feet in the air putting trim on a window on the outside of a home, which was under new construction. He does not exactly remember how he fell, but he was apparently on a ladder and he fell to the left and the ladder went to the right. He landed standing on his feet on a lot of rocks and cement. He could not get up immediately and felt immediate pain after the fall. There was pain in his heels, ankles, tibias, feet, and back. When he tried to stand up, he could not because he felt like his feet were liquefied. When he sat down and lifted his legs up, the lower half of his calves bilaterally were hanging at 90 -degrees from the ankle bone. He was immediately taken to Skaggs Regional Medical Center in Branson where he stated the staff did nothing. He was then transferred to Saint John's Hospital in Springfield, Missouri, by ambulance where they did x-rays, scans, and some surgery. He stated they offered to amputate his legs. He was then sent to KU Medical Center for treatment to his legs, feet, ankles, and back. It is noted in the medical records that his initial treatment at Skaggs Regional Medical Center included a chest CT scan, which was negative, as was his CT scan of the abdomen and pelvis; however, there were identified lumbar fractures. The CT scan of lumbar spine revealed a 10 to 15 percent compression deformity involving the L1 and a 15 to 20 percent compression deformity of L2; however, the fractures were found to be stable. He also suffered comminuted distal tibial fractures bilaterally. The left was basically a pilon fracture. On the right, there was a distal tibial fracture with comminuted articular involvement. There was also increased density of the left calcaneus suggesting the possibility of a compression fracture of the calcaneus without any loss of bony height.

When Employee was transferred to Saint John's Regional Medical Center in Springfield, Missouri, he was hospitalized from July 16, 2010, through July 22, 2010. Dr. Harbach treated Employee's compression fractures with a TLSO. His lower extremity fractures were treated with external fixation. When he was eventually transferred to the University of Kansas Medical Center, he was followed by Dr. Horton regarding his lower extremity injuries. Dr. Horton removed the external fixators on August 9, 2010, and at that time did an open reduction and internal fixation of the bilateral fractures. There apparently was a complicated protracted course and some concerns about a development of a complex regional pain syndrome in the therapy records. Ultimately, Dr. Horton did a right extensor hallucis longus and extensor digitorum longus tenolysis. He did a right superficialis peroneal neuroplasty. He also did a right toe percutaneous flexor tenotomy. Dr. Sean Jackson followed Employee for his lumbar injuries and was treated non-operatively. Dr. Jackson indicated that Employee was at maximum medical improvement as of April 11, 2011. Dr. Horton continued to follow Employee through August 18, 2011, indicating that Employee's lower extremity injuries were at maximum medical improvement for further non-operative treatment at that time. Dr. Horton restricted Employee to seated work only. It was noted that he was having

persistent swelling problems and would need to continue to use compression garments at the time that he was released by Dr. Horton. Dr. Horton also expressed an opinion regarding further treatment needs in terms of a probable need for bilateral ankle arthrodesis.

Currently, Employee suffers pain in his ankles with loss of movement in his ankles as well. Employee also has pain in his left heel as there is a screw in it that causes him a lot of pain when he stands or puts much weight on it. He states he also has no feeling in his toes. His right heel is a little bit better, but, still, there is severe pain because he cannot put weight on the left, so 60 percent of his weight goes on the right ankle and heel, thus causing additional pain. He has a great deal of pain in his left and right tibia and the pain in his left tibia, ankle, and heel, as well as his right ankle and heel and tibia are constant. He suffers from pain every day, all day and night. He stated he takes Hydrocodone on a daily basis at approximately one every three hours. He also noted that he had a discussion with Dr. Horton who stated that future medical care could possibly include future ankle fusions. He noted that, although he underwent physical therapy, it was stopped because the therapy caused so much pain that he was suffering from high blood pressure. He stated that Dr. Jackson released him with restrictions on his activities of no bending forward or lifting more than 15 to 20 pounds. Employee also stated that he was being treated for depression due to his physical problems. He had never had depression prior to this accident. He stated he is still depressed today because he cannot work, support his family, play with his children, or do anything that he used to do before the accident.

He is now seeing Dr. Hendler for pain management, which includes seeing him every three months to check his medications and he has been referred to a liver specialist to keep an eye on the effects of the pain medication on his liver. He is seeing that doctor two to four times a year. He has been taking pain medication under Dr. Hendler's care ever since Dr. Horton released him from care and he is currently taking pain medications as mentioned before, the Hydrocodone, on a daily basis. Employee has not worked since July 16, 2010.

Employee states that he could not go back to the work he did for Mr. Calderon because he cannot climb ladders, walk on uneven surfaces, stand most of the day or stay on his feet, and he cannot sit more than 15 to 20 minutes at a maximum. He also needs to lay down throughout the day due to pain and he feels that he could not find a job where he could recline as needed. He also noted that his sleep is poor. He gets very little sleep due to pain and the longest period of sustained sleep overnight when he is feeling at his best is about 40 minutes. During an 8 -hour night of sleep, he gets interrupted at least 10 times a night due to pain. There is no specific activity in bed that causes the pain; it simply comes on, on its own. The pain is in his legs and his back. Throughout his day he feels tired and sometimes angry and upset. He cannot concentrate during the day due to his lack of sleep. Before the accident he had no problems with concentration, fatigue or exhaustion. Since this accident, he can no longer walk any distance; he cannot stand for more than 30 minutes, or sit for more than 25 minutes. He uses a cane and he never used a cane prior to this accident. He uses the cane to keep from falling due to pain in his feet, ankles, and heels. The only time he has ever gone through a day without pain medication is when he has run out of the pain medication. Without the pain medication he cannot sleep, sit, or stand up without his pain becoming very severe. He becomes very angry and upset. He cannot pay attention. Employee noted that the only injury he has had prior to the July 2010 injury was a sports-related injury in his left shoulder playing soccer. He apparently dislocated his left shoulder when he fell. He received treatment, including surgery and physical

merely, and had full recovery from it. This injury never limited his ability to work or do any other activity. He noted that he completed approximately the 7th grade in school in Mexico, but stopped because he had to go to work to help his mother with expenses. He was approximately 14 years old and has never returned to school. He has had no schooling in English in the United States, other than attending a class at a church or community center for two to three classes. He understands and speaks a little English, most of this English relates to the tools he uses and the terms of his trade. He does not have a driver's license; he has no typing skills or computer skills such as Microsoft Office, Excel, or Word. He has never held a computer-related job. He has done manual labor his whole life. Initially, his work in Mexico involved construction as well as working for a plastic company filling ovens with pellets to fill jugs or containers and a cement company checking to see how the cement status was. He came to the United States in 2000-2001. He is not a U.S. citizen or resident. His initial job when he came to the U.S. was a helper of a helper of an electrician carrying pipe, digging ditches, carrying cables and ladders. Most of these items weighed more than 10 to 20 pounds. A roll of cord or cable weighed over 60 pounds. He did this work for approximately a year, then started doing framing in the construction trade. He noted that his brother and father and cousins all work for Mr. Calderon and all of them were always paid in cash because they did not have any papers or documentation to work in the United States. He noted that Mr. Calderon was aware that he did not have a Social Security Number when he hired him or at any other time. He stated that Mr. Calderon had given him a Social Security Number to work under.

In his current physical and psychiatric condition he does not feel he can do any job due to the physical problems because of lifting heavy things, walking, and standing all day. He never saw anyone working construction with a cane and when he did any of his construction work, he never had the ability to recline as needed. Every job he has ever had has required some level of concentration. He has looked for work at McDonald's, but could not do the job because of the danger to others because he could fall or drop hot food. Further, he could not do the job because he would be standing and walking all day long. He tried to go back to work for Mr. Calderon, but Mr. Calderon said he could not because he could not fulfill the work duties. If he could work, he would do it because he wishes to support himself, his wife, and his family. He feels embarrassed and he believes that is part of his depression. Prior to his injuries, he did recreational activities such as soccer on Saturdays and Sundays and he would train for soccer on Tuesdays and Thursdays in a soccer league. He also walked with his children, would go fishing and camping. He goes fishing occasionally now, but only does it sitting down. He no longer plays soccer. His typical day includes getting up at 6:00, taking a pain pill, he will take the children to school and then pick them up at the end of the day. During the course of the day, he will sit down and recline watching TV or sleeping. He has gained approximately 30 pounds since the accident.

On cross-examination he admitted that he came into the United States illegally, he has no Social Security Number and has never obtained a driver's license. He does drive, however. He drives every day taking his two children to and from school. He also admitted that he would go to his children's soccer games, but he does not coach his children. He lives on the top floor of an apartment building and helps with the cooking and cleaning at times. He can read in Spanish and he does read quite a bit. He understands some English. He can also fix his daily lunches. He admitted he did not have any surgery for his back and has not had any additional treatment to his back since the injury. He noted that Dr. Horton had stated there was a possible need for ankle fusions, but he did not want the surgery at the time, although he feels he could need it 10 to 15 years in the future.

He was given a back brace initially, but does not wear it any longer. However, he does use the support stockings and sometimes use small braces around his ankles. He admitted that many of his expenses are paid for by other family members. He admitted that he has gone to no rehab agencies since the injury. He is not aware of any rehab agencies that are available. He has not returned to any English classes since he has quit working. He admitted that his upper extremities are fine as there was no injury from the fall to his upper extremity, but he still does his therapies to his lower extremities as shown by his therapists. He does help with the grocery shopping.

On redirect he noted that if he drives for more than 40 minutes, he gets quite a bit of pain in his back and legs. Again, he reiterated that Mr. Calderon knew that he did not have a Social Security Number.

Employee submitted the report of Dr. Koprivica. In his report he outlined that he reviewed medical records and interviewed the Employee as well as performed a physical examination. Based upon the medical records, the interview, and the examination, Dr. Koprivica determined that Employee's work-related fall of July 16, 2010, was a direct, proximate, and prevailing factor in his severe multiple traumatic injuries including compression fractures at L1 and L2 treated non-operatively with ongoing chronic thoracolumbar mechanical back pain. He also noted that Employee suffered severe distal tibial fractures with intra-articular involvement bilaterally treated with open reduction and internal fixation, and there was a more complex clinical course on the right with need for tenolysis as well as superficial peroneal neuroplasty, and also a right little toe percutaneous flexor tenotomy was performed. He ultimately determined that Employee suffered a 15 to 20 percent permanent partial disability to the body as a whole for Employee's thoracolumbar injuries in isolation and, further, for his bilateral lower extremity injuries, he apportioned a 50 percent permanent partial disability for each lower extremity above the ankle. He determined that when looking globally in combination, there is an issue of employability. Dr. Koprivica determined that, in looking at Employee's overall clinical situation, including his limited education, the fact he is Spanish-speaking and the severity of his postural limitations including the need to lie down on an ad lib basis, it was his opinion that practically and realistically the Employee was permanently and totally disabled. He felt that if the trier of fact were to determine that Employee was not totally disabled, that he would be willing to look at a vocational report in which a job task list has been developed for the fifteen years of substantial, gainful employment prior to the work injury in order to apply the restrictions and limitations that he outlined in order to give an opinion regarding the loss of task ability.

He ultimately felt that despite the Employee's young age, it was his opinion that Employee was permanently and totally disabled arising based upon the residual multiple impairments and resultant disabilities attributable to the July 16, 2010, injury alone. He did not find any significant pre-existing industrial disability prior to July 16, 2010 injury. He ultimately felt that Employee had severe restrictions including he would be restricted from working on any uneven surfaces, restricted from climbing activities entirely. He felt that generally he would recommend that standing and walking intervals be limited to less than 20 minutes with the flexibility of sitting whenever necessary. He felt that Employee should be cumulatively on his feet less than 2 hours out of an 8 -hour day and that captive sitting should be limited to less than 30 -minute intervals as a maximum. Employee should have an ability to ad lib, to change positions more frequently between activities than the maximums he has outlined. He also felt that Employee presents with limitations of needing

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Martin Sanchez Rivera

Injury No. 10-059076

to unpredictably recline. He felt that in looking at the severity of the Employee's pain presentation, along with his extreme sleep interruption, it is felt that it would be consistent with his clinical objective impairments. He further felt that separate from the physical impairment and resultant disabilities that he had outlined, there is an issue of potential psychological/psychiatric impairment and resultant disability based on the work injury of July 16, 2010. This was from a January 30, 2012 report by Dr. Koprivica.

Dr. Koprivica submitted a supplemental report on July 11, 2014, which was for the purpose of re-evaluation to update Employee's clinical course since the time of the original report. He again outlines the medical records he had seen as well as educational and work background. He noted that Employee had developed an unstable left shoulder due to an earlier injury for which he underwent left shoulder reconstruction for stabilization in 2009. He felt that this surgery was successful and at the time was given no permanent work restrictions and had no ongoing treatment. Dr. Koprivica felt that Employee was able to do all of his work tasks without limitation and that there was no significant obstacle to re-employment that would exist based upon that condition. In reviewing additional medical records, Dr. Koprivica noted that subsequent to his evaluation of Employee in 2012, that Employee had been rated by Dr. Horton, who assigned a 40 percent permanent partial disability to the right lower extremity as well as a separate 30 percent permanent partial disability to the left lower extremity. He also noted that Employee was subsequently evaluated by Dr. Ibarra, who diagnosed Employee with adjustment reaction with depressed mood. His GAF was estimated to be only 60 . Dr. Ibarra outlined that the work accident and its consequences were the proximal cause for Employee's depression and it was noted that Employee suffered suicidal ideation on an intermittent basis without intent or plan. He felt Employee did require psychiatric treatment with a need for medication as well as psychotherapy. He was concerned about the risk for self-harm, although he did not believe Employee was at immediate risk and that Employee was receiving psychiatric treatment through Dr. Krishna Divadeenam. Dr. Divadeenam saw Employee on January 14, 2013, and gave an Axis I diagnosis of major depressive disorder with a GAF between 46 and 50. He prescribed a trial of Cymbalta and Seroquel, recommending psychotherapy along with care and treatment by a pain specialist.

Dr. Koprivica notes that Employee saw Dr. Hendler on January 21, 2013, who added Vicoprofen and Amitriptyline to the regime being provided by Dr. Divadeenam. He also added Omeprozole because of the gastrointestinal complaints associated with medication use. This was added on February 4, 2013. Employee has continued to receive ongoing psychiatric treatment along with psychotherapy and continues to have renewed medications. Ultimately, Employee was sent to Dr. Connor to be evaluated for blood liver function studies on May 6, 2013, and found to be diagnosed with non-alcoholic fatty liver disease due to weight gain and hypercholesterolemia. It was noted by Dr. Koprivica that Dr. Connor, who saw Employee, is a hepatologist. Dr. Koprivica also noted that Employee is receiving psychotherapy with Dr. Lucke, who is a psychologist. Dr. Lucke's records document depression with suicidal ideation and high suicidal risk. Post-traumatic stress disorder was an additional diagnosis. Dr. Koprivica again noted Employee's current complaints and did a physical exam and ultimately concluded that as well as the previous conclusions that he has found that Employee has developed a post-traumatic arthropathy on lower extremity injuries and has developed a severe psychological impairment diagnosed as Axis I diagnosis including post-traumatic stress disorder along with major depressive disorder with suicidal ideation. He determined the future medical needs, included post-traumatic arthropathy and the need for arthrodesis in both ankles in the

future, continued receipt of chronic pain management on an ongoing basis as well as a need for formal psychological/psychiatric treatment as a component of the chronic pain management. He also would need replacement of his compression hose indefinitely into the future.

Dr. Koprivica again authored a report dated May 17, 2015, after receiving additional medical records, including chronic pain management by Dr. Hendler, psychotherapy treatment records of Dr. Herman Lucke, and a vocational report authored by Mr. Michael Dreiling dated August 12, 2014. After reviewing such records, Dr. Koprivica reiterated that he does not change any of his opinions from his previous reports and determines that Employee is, in fact, permanently and totally disabled.

With regard to Dr. Koprivica's deposition, he was asked on cross-examination that if he did not consider the language barrier, as was discussed in his report, would he still conclude that Employee is permanently and totally disabled and unemployable in the open labor market strictly due to the July 16, 2010 work injury considering restrictions, the need to make the postural changes, sitting, standing, walking, the need to lie down during the day, the narcotic pain medication, the poor sleep. It was still his opinion that if you look just at that and did not consider the language barrier, that the July 16, 2010, work injury would render Employee unemployable and permanently and totally disabled in isolation.

Employee also submitted the report and deposition of Michael Dreiling. In Mr. Dreiling's report, he reviews the educational background, the medical records, the social background, prior medical information, military history, and work background of Employee as well as the Employee's perspective of his injury. Mr. Dreiling did not perform any vocational testing results as Employee's limited English skills would make it difficult to do such testing. Further, he noted that Employee is not a realistic candidate for any type of formal, academic, or vocational retraining. Mr. Dreiling concluded that the Employee's vocational profile presented a 32-year-old who finished eight grades of schooling in Mexico with Spanish as his primary language. He is not a high-school graduate, nor has he obtained a GED and has limited English capabilities. He has no further academic or vocational training, has a work history of physically oriented work, has medical restrictions to sedentary or less work environment, is dealing with depression issues, has no transferable job skills consistent with his medical restrictions, has difficulty sitting or standing for any length of time, is laying down frequently, has poor sleep at night, experiences ongoing pain issues, has ongoing use of pain medication, has not worked in the labor market for the past two years since the work injury, and has limited insight into any type of work that he could perform given his vocational and medical condition.

He felt that based upon that vocational profile, the Employee cannot return to any type of past relevant work, he is essentially and realistically unemployable in the open labor market, and no employer in the usual course of business seeking persons to perform duties of employment in the usual and customary way would reasonably be expected to employ Employee in his condition. He noted that Employee has always performed very physically oriented work in the labor market, which would be consistent with his limited educational background and his limited communication skills. He is not a candidate for academic, college-level training, vocational-technical training, and his vocational prognosis is quite guarded. Based upon the vocational profile and the various factors previously cited, Employee would not be an appropriate referral to the State Vocational Rehabilitation Program for any type of direct job-placement services or formal training services. He

felt that based upon the information available at the time of this assessment, Employee is permanently and totally disabled from a vocational perspective.

In Mr. Dreiling's deposition his report was reviewed and he confirmed his conclusions based upon his report. During the cross-examination by Employer's attorney, Mr. Dreiling was asked a series of questions regarding Employee's employability based upon the fact that he was an undocumented worker or illegal alien. Mr. Dreiling responded that due to current laws that having illegal status in the United States could certainly have the potential to limit their job market and that anybody seeking to hire a person would need to verify they are hiring a documented or legal alien. He further noted on cross-examination by Employee's attorney that he has placed people who have been limited to sedentary work. On cross-examination by the Second Injury Fund, the Fund lays out Dr. Koprivica's restriction of Employee needing to lie down during the day on an ad lib basis and questioned whether that need in and of itself would render one unemployable without consideration of anything else. Mr. Dreiling stated that "with someone who has always done hard, physical work, yes, it does." Further, she asked Mr. Dreiling whether he knew exactly the extent of Employee's understanding of the English language and that it could be possible that he spoke more English than people realized and Mr. Dreiling stated that it is possible. She also reviewed the prior medical information and Mr. Dreiling noted that there was nothing that was a hindrance or obstacle to employment prior to the July 2010 injury. She noted that he did not have any school records and could not determine whether Employee was ever in special education or had a learning disability and that all of his prior work was heavy and sub-level work. Finally, the Second Injury Fund attorney asks Mr. Dreiling, "I'm asking you to give your vocational opinion based upon all of those factors, the restrictions from the last accident, his pain, his functional limitations, his depression, his postural limitations, the need for narcotic pain medication, the poor sleep, the need to lie down during the day, would those issues alone take him out of the open labor market and render him permanently and totally disabled without consideration of his education or his language barrier?" Mr. Dreiling's response was, "Yes."

Employer offered the rating reports of Dr. Jackson and Dr. Horton. Dr. Jackson determined that Employee suffered a whole person permanent partial impairment of 8 percent for his spine only. Dr. Horton determined that, based upon the AMA Guides to the Evaluation of Permanent Impairment, that Employee suffered on the right a 16 percent whole person or 40 percent of the lower extremity; on the left, he suffered a 12 percent whole percent or a 30 percent of the lower extremity. Further, it's noted that a report or Work Status Form from Dr. Horton from August 18, 2011, noted that Employee is restricted to sedentary work only due to his ankles and that this is a permanent restriction.

The first issue to be determined in this matter is whether the Employer must reimburse the Employee for medical expenses totaling $\ 4,980.58. Section 287.140 .1 requires an employer to provide such care "as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." Mo.Rev.Stat. § 287.140.1. A claimant seeking past medical expenses must prove "that the need for treatment and medication flow[s] from the work injury." Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo.App.W.D.2011). A sufficient factual basis exists for the Commission to award compensation for past medical expenses when: (1) the claimant introduces his medical bills into evidence; (2) the claimant testifies that the bills are related to and the product of his work injury; and (3) "the bills relate to

the professional services rendered as shown by the medical records in evidence." Martin, 769 S.W.2d at 111-12, superseded by statute on other grounds, 1990 Mo. Legis. Serv. S.B. 751, Mo.Rev.Stat. § 287.160.3. "The employer, of course, may challenge the reasonableness or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question." Martin, 769 S.W.2d at 112.

In testimony, the Employee testified that the $\ 250 emergency room bill was due to severe pain, that they gave him treatment for the pain, and then just discharged him with pain medications. Regarding the bill for the Olathe Medical Center bill, he did not remember what it was for but he stated he always went for treatment for reactions to medications. Finally, the August 24, 2015, Olathe and Emergency Medicine bill for the electrocardiogram was due to an incident where he stated he, "Went there because his heart was racing and it was due to blood pressure being very high, his heart felt like it was going to pop out and they did it before they did any other testing." These bills were offered into evidence and the Employer objected to the admittance of the bills based on no foundation. This Court sustained the objection as the testimony by Employee did not maintain a proper foundation for these medical bills. Employee did not specifically state in his testimony that any of the medical care given to him was related back to the injuries that he sustained in his July 2010 accident. With the Olathe Medical Center bill he could not remember why he went there for treatment, but simply stated he always had treatment when he had reactions to his medications. And, finally, again, with the August 24, 2015, emergency room visit to Olathe Medical Center for an electrocardiogram, he stated that his heart was racing and his blood pressure was high, but he did not relate how that was connected to his July 2010 accident. Further, this Court can find no medical record submitted by either party which would substantiate the reasons for these medical bills. Employee has failed to carry his burden of proof tying these bills to the medical treatment for his injuries sustained in his July 2010 accident. Wherefore, based upon a lack of foundation this Court finds that the Employer is not responsible for Employee's $\ 4,980.58 in unpaid medical bills.

The final issue to be determined by this Court is whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability. Employee suffered a very traumatic injury when he fell approximately 25 feet landing on his feet causing serious injuries to his legs, ankles, heels, and feet, as well as his low back. He underwent extensive surgery and medical care for his injuries, including external as well as internal fixation of both lower extremities. He also underwent physical therapy for his back and his lower limbs. Further, Employee suffers psychological injury in the form of depression as well as PTSD due to the injuries he has suffered. He is undergoing both psychological counseling as well as taking medications for his depression. Finally, Employee is involved in ongoing pain management due to the pain in his feet and legs in both the form of counseling as well as narcotic medication. Employee testified that he still continues to have extreme pain in his lower extremities as well as his back. He cannot sit, stand, or walk for long periods of time. He walks with a cane and, further, has a need to lie down off and on throughout the day in order to ease his pain. He also suffers from loss of sleep due to his pain. He stated that he gets approximately 40 minutes of sleep at a time and, therefore, awakens numerous times throughout the night due to his pain. He stated that he suffers from confusion and loss of concentration due to his tiredness during the day as well as the effects of his narcotic medications.

Employer's doctors rated him with regard to his back at an 8 percent impairment rating and with regard to his lower limbs at a16 percent impairment to the whole person on the right and a

12 percent impairment to the whole person on the left. Even though these ratings are determined by treating physicians, the Court has a problem interpreting them as they are based on impairment ratings. Missouri Workers' Compensation requires disability ratings as opposed to impairment ratings with regard to determining disability. Employee offered the ratings of Dr. Koprivica, who determined that due to the injuries that Employee received from his July 16, 2010, injury, he was permanently and totally disabled based upon restrictions of limited walking, standing, and sitting, a need to lay down off and on throughout the day, the need for the use of a cane, as well as his lack of concentration due to poor sleep. Further, Employee offered the testimony of Vocational Rehabilitation Specialist, Michael Dreiling, who also echoed Dr. Koprivica's determination of permanent total disability based upon the restrictions as referred to by Dr. Koprivica as well as his need to lie down and use of a cane. Both Dr. Koprivica and Michael Dreiling made mention in their determinations that Employee's inability to speak English was also one of their considerations; however, in deposition testimony, both Dr. Koprivica and Michael Dreiling clearly stated that, even without considering Employee's lack of a full grasp of the English language, they still considered him permanently and totally disabled based upon Employee's physical injuries and the resulting difficulties, problems, and restrictions derived therefrom. In reviewing the Employer's impairment ratings, this Court notes that a combination of Dr. Horton's ratings and Dr. Jackson's ratings are equivalent to a 36 percent permanent partial impairment to the body as a whole. They make no determination with regard to whether Employee was able to return to work, nor do they make any specific statements regarding restrictions except for Dr. Horton's earlier determination on a Work Status Form dated August 18, 2011, that Employee had a permanent restriction to sedentary work.

In reviewing the medical records as well as the reports from Dr. Koprivica and Michael Dreiling, Employee's testimony is consistent throughout his reports to them as well as his other treating physicians. His testimony in court remained consistent with his previous statements to both rating doctors and experts as well as treating physicians. This Court finds that Employee's testimony is credible. In reviewing Employee's testimony it is noted that he stated he walks with a cane in order to aid in his balance, that he needs to lay down consistently throughout the day, and that he is unable to sit or stand for long periods of time. He is unable to walk very far throughout the day. He needs to lay down throughout the day to rest and ease his pain. He has poor sleep at night due to pain and he is taking narcotic medication including Hydrocodone approximately every three hours throughout the day to deal with pain. Further he suffers from difficulty concentrating due to his lack of sleep, the effects of his medications and his depression.

After reviewing this testimony as well as the determinations and reports of the expert physicians and vocational specialist, this Court finds that, in fact, Employee does suffer from disability due to his accident of July 16, 2010. This Court finds that Employee is in fact permanently and totally disabled due to his accident of July 16, 2010. As the parties have agreed that Employee's date of maximum medical improvement was November 20, 2011, this Court orders Employer to pay to Employee the sum of $\ 291.68 per week beginning November 21, 2011. Employer and Employee stipulated that Employer has overpaid Employee $\ 2,916.90 for temporary total disability payments. The amount of past due permanent total disability to the date of the hearing is $\ 78,377.33, therefore, crediting Employee with $\ 2,916.90, Employer owes Employee a balance of past due permanent total disability from the date of November 21, 2011 to the date of hearing of $\ 75,460.43. Thereafter, Employer shall pay to Employee the sum of $\ 291.68 per week for permanent total disability for as long as the Employee remains permanently and totally disabled. Further, the Employer shall provide

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Martin Sanchez Rivera

Injury No. 10-059076

Employee with all necessary medical care to cure and relieve the symptoms from which he suffers due to his injuries from his accident of July 16, 2010, including pain medications, counseling, blood work, and appointments with a liver specialist.

Finally, this Court awards to Employee's attorney, Mr. David Curotto, 25 percent of all benefits awarded herein.

Made by:

Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation