William Head v. Missouri Department of Conservation

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 06-094057

Employee: William Chad Head

Employer: Missouri Department of Conservation (Settled)

Insurer: CARO (Settled)

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 May 31, 2017. The award and decision of Administrative Law Judge Andrea Spillars, issued May 31, 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 23rd day of October 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: William Chad Head

Injury No. 06-094057

Dependents:

Employer: Missouri Department of Conservation (settled)

Address: 2011 WV 11th Street, St. Louis, MO 60617

Address: 2011 WV 11th Street, St. Louis, MO 60617

Address: 2011 WV 11th Street, St. Louis, MO 60613

Address: 2011 WV 11th Street, St. Louis, MO 60613

Address: 2011 WV 11th Street, St. Louis, MO 60613

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: October 2, 2006.
5. State location where accident occurred or occupational disease was contracted: Phelps 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 injured his back and neck while lifting a screen used for pouring concrete.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: low back, neck, cervical spine, lumbar spine, , body as a whole.
14. Nature and extent of any permanent disability: Employer: 20\% PPD cervical spine (BAW); 35\% PPD lumbar spine (BAW). Second Injury Fund: Permanent total disability.
15. Compensation paid to-date for temporary disability: $\ 17,221.41
16. Value necessary medical aid paid to date by employer/insurer? $\ 59,039.28
17. Value necessary medical aid not furnished by employer/insurer? N/A

An evidentiary hearing was held in this case in Rolla on March 6, 2017. William Chad Head (hereinafter "Claimant") appeared personally and by counsel B. Michael Korte. Treasurer of Missouri, as Custodian of the Second Injury Fund (hereinafter "the Fund"), appeared by counsel, David McCain, Assistant Attorney General. The hearing was held to decide the following issues:

1. Whether Claimant sustained any permanent disability as a consequence of the work-related accident of October 2, 2006, and, if so, the nature and extent of the disability; and
2. Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of permanent partial disability or permanent total disability compensation.

For the purposes of this hearing, the parties stipulated as follows:

1. The Division of Workers' Compensation has jurisdiction over this case, and venue for the hearing is Phelps County;
2. Employer had notice of the injury, and a claim for compensation was filed within the time prescribed by law;
3. Claimant was an employee of the State of Missouri Department of Conservation (hereinafter "Employer") at all relevant times, and both Employer and Claimant were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
4. Employer was self-insured for Missouri Workers' Compensation purposes at all relevant times;
5. The average weekly wage is $\ 533.29, with a compensation rate of $\ 355.53 for both permanent total and permanent partial disability benefits;

1. Claimant sustained an accident arising out of and in the course of his employment with Employer on October 2, 2006;
2. With regard to the accident and injury of October 2, 2006, Claimant reached maximum medical improvement on June 11, 2013;
3. The October 2, 2006, work accident is the prevailing factor in causing Claimant's alleged injuries and disabilities.

Claimant and his wife, Rebecca Mahurin, testified in person at the hearing. Claimant also offered the following exhibits, which were admitted into evidence without objection:

1. Curriculum Vitae of Robert P. Poetz, D.O.
2. Report of Robert P. Poetz, D.O., dated May 14, 2014
3. Addendum Report of Robert P. Poetz, D.O., dated August 1, 2016
4. Deposition of Robert P. Poetz, D.O., dated August 8, 2016
5. Curriculum Vitae of Gary Weimholt, M.S. CDMS
6. Report of Gary Weimholt, dated February 25, 2015
7. Deposition of Gary Weimholt, dated October 11, 2016
8. Stipulation for Compromise Settlement, MO DWC Injury No. 06-094057
9. Medical Records - Springfield Neurological \& Spine Institute (Dr. Wade Ceola, M.D.)
10. Medical Records - Springfield Neurological \& Spine Institute (Dr. Wade Ceola, M.D.)
11. Medical Records - Springfield Neurological \& Spine Institute (Dr. Wade Ceola, M.D.)
12. Medical Records - Springfield Neurological \& Spine Institute (Dr. Wade Ceola, M.D.)
13. Medical Records - Richard Campbell, APN ${ }^{1}$
14. Medical Records - Dr. Ted Lennard, M.D.
15. Medical Records - Dr. James Webb, M.D.
16. Medical Records - St. John's Clinic Salem (Dr. Greg Maynard, D.O.)
17. Medical Records - Dr. Peter Yoon, M.D.
18. Medical Records - The Center Clinic (Peggy Fox, L.P.C.)
19. Medical Records - The Center for Psychiatric Services (Peggy Fox, L.P.C.)
20. Medical Records - Dr. Zulfikar Rasool Vali, M.D.
21. Medical Records - Central MO Pain Management (Dr. Glenn Kunkel, M.D.)
22. Medical Records - Dr. David's Family Clinic (Dr. David Myers, D.O.)
23. Records of Missouri Division of Workers' Compensation,

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[^0]: ${ }^{1}$ Claimant's Exhibits 13, 14, 20, 24, 25, 26, 31, 33, 36, and 39 contain uncertified medical records admitted without objection from the Fund.

The Fund did not present witnesses at the hearing. The Fund offered the following exhibit, which was admitted into evidence without objection: A. Deposition of William Chad Head, dated February 24, 2015

Claimant, age 49 at the time of the hearing, is unemployed but previously worked for Employer as a heavy equipment operator from 2001 until his work injury on October 2, 2006. His job duties entailed pouring concrete, laying asphalt, replacing signs, and operating heavy equipment such as bulldozers and back hoes. His work generally required he lift as much as 140 pounds and involved shoveling, standing, bending, stooping, and walking up to eight hours per day. Depending on the job site, he would sit up to two hours per day when operating heavy equipment.

Overall, Claimant's work history has primarily entailed trade and manual labor positions, such as bricklaying, millwork, and heavy equipment operations. Prior to working for Employer, Claimant was self-employed as a heavy equipment operator from 1999-2001 building ponds and lakes, clearing timber, grading, building roads, and straightening creeks. He owned a dozer and, as owner/operator, was responsible for fixing his equipment and lifting from 50 to 100 pounds. His work required walking, bending, stooping, and climbing up to one hour per day, but "mostly sitting up to eight hours a day" ${ }^{3}$ reaching and operating controls on the equipment.

[^0] [^0]: ${ }^{2}$ Claimant's Exhibit 33 contains uncertified medical records admitted without objection from the Fund. ${ }^{3}$ Exhibit 6, p. 9.

Employee: William Chad Head Injury No. 06-094057

For approximately one year in 1998, Claimant worked as a bricklayer and was required to stand, walk, bend and stoop eight hours per day, in addition to lifting 25 to 50 pounds. He worked as a millwright for two years, from 1994 through 1996, drilling commercial water wells and setting new pumps, which required he stand, walk, bend and stoop 7-8 hours per day, in addition to using hand tools. He also operated heavy equipment for approximately six months in 1994, requiring he lift 25-50 pounds, but mostly remain seated for eight hours per day operating controls on the equipment. He also worked at a stave mill for five months in 1992 to 1993 stacking staves for whiskey barrels, which required he reach, bend, stand and walk eight hours per day and lift 25 to 50 pounds. From 1986-1992 he was employed as a bricklayer, which required he lift 50 to 100 pounds, in addition to shoveling, standing and walking up to eight hours per day. Claimant worked in food service for approximately nine months in 1991 and 1992 loading trucks and operating a pallet jack, which required he walk, reach, stoop and bend up to 16 hours per day.

Claimant completed his GED and one year of college at Linn State Technical College, receiving a certification in heavy equipment operations in 1994. He completed a bricklayer apprenticeship in the 1980's, but has no other post-high school education or technical training.

Claimant currently resides with his wife on their family farm near Salem, Missouri. He is currently on social security disability. He has not worked since his October 2, 2006, workrelated accident.

Claimant sustained a work-related accident (primary injury) on October 2, 2006, while working for Employer pouring concrete for a boat ramp on the Missouri River. Along with three coworkers, he was lifting a 25 -foot screen to place it over the poured concrete. As he lifted the screen and started to take a step, he felt a pop in his back and severe pain, causing him to fall backward onto the ground. He felt immediate pain in his low back, leg, hip and neck. After his injury, he was instructed to stop working and sat in a truck for the remainder of the day.

The day after his work injury, on October 3, 2006, Claimant received treatment from a nurse practitioner, Richard Campbell, APN. At that time, Claimant reported a history of L4-L5 laminectomy and pain traveling down his left leg, thigh, and foot, but described his presenting pain as more intense. Claimant was diagnosed with lumbar strain, probable sacroiliac joint involvement with questionable left radiculopathy. He was prescribed a Medrol Dosepak, Lortab, and Flexeril and provided work restrictions.

Claimant saw Dr. Greg Maynard, at St. John’s Clinic, on October 10, 2006, complaining of back discomfort resulting from his October 2nd work injury. Dr. Maynard diagnosed acute back pain with lumbar radiculopathy in the L5 distribution. Claimant was ordered off work pending a MRI and prescribed Prednisone taper, Flexeril, and Percocet. Dr. Maynard also imposed a lifting restriction of 20 pounds. A MRI taken October 18, 2006, revealed moderate L1-L2 disc bulge

and central extruded fragment which extended cephalad to the mid L1 level and narrowing of the lateral recesses without overt neural displacement.

During a follow-up visit with Dr. Maynard in late October 2006, Claimant was diagnosed with acute back pain with lumbar radiculopathy and treated with physical therapy. He was continued on work restrictions and referred to a neurosurgeon for consultation and treatment of his ongoing back pain.

Claimant received treatment from Dr. Ceola, a spine surgeon, beginning in January 2007. Dr. Ceola diagnosed Claimant with herniated nucleus polposus at L1-2 with a superiorly migrated fragment causing proximal leg weakness related to the work stretch injury. Dr. Ceola also noted changes in sexual functioning and bladder dysfunction and ordered video urodynamics to determine whether the disc herniation was causally related. Dr. Ceola noted Claimant's left hip pain was attributable to direct injury to the SI joint. Dr. Ceola also noted Claimant's previous laminectomy, but concluded "this is currently not a problem and is unrelated to the new L1-L2 disc, which I think is directly related to his symptoms." Dr. Ceola initially treated with narcotic medications, sacroiliac (SI) joint injections, and aquatic therapy for pain control.

Claimant received left SI joint injections for his herniated lumbar disc from Dr. Ted Lennard in January 2007. The same month, Claimant saw Dr. James Webb for his bladder and erectile dysfunction. The urodynamics study revealed a large capacity hypotonic appearing bladder, which Dr. Webb attributed to the work-related disc disease, along with Claimant's erectile dysfunction.

When conservative treatment failed to provide pain relief, Claimant underwent a far lateral approach for a L1-2 discectomy from the left side in February 2007. Approximately one month after surgery, Claimant saw Dr. Ceola for follow-up and was sent for water therapy and returned to work at light duty. He began work hardening physical therapy sessions in May 2007, which were discontinued in June 2007 at Claimant's request.

Post-surgery, Claimant continued to experience bowel, bladder, and erectile dysfunction, although he reported to Dr. Webb some improvement in his urinary pattern at a visit in April 2007. Dr. Webb diagnosed Claimant with hypotonic bladder with some urgency, nocturia, and erectile dysfunction. Claimant was treated with Viagra. Claimant also reported worsening pain during a follow-up visit with Dr. Ceola in April 2007. Dr. Ceola prescribed a Medrol Dosepak and advanced Claimant for work hardening, to be followed by a Functional Capacity Exam. Dr. Ceola post-operatively diagnosed Claimant with herniated disc at L1-2 and cauda equine syndrome.

During a follow-up exam with Dr. Lennard in June 2007, Claimant reported continuing low back pain extending into the left buttock, posterior left thigh, calf and foot. He reported surgery helped with the bladder dysfunction and left thigh pain, but he continued to have left leg parathesis. Dr. Lennard diagnosed questionable S1 radicular pain and recommended Claimant continue his exercise program and receive additional epidural injections at left S1. The functional capacity exam was postponed until his leg pain stabilized.

Dr. Lennard administered two separate sessions of epidural injections in July 2007, both at L5 and L5-S1 facet joints, with little relief reported. Dr. Lennard prescribed Lyrica and continued Claimant off work. During a follow-up visit in August 2007, Claimant reported his low back pain was 20 % and his left hip pain 80 %, and that he had popping in his left hip. He reported relief when taking Lyrica, and Dr. Lennard increased his dosage. A lumbar spine MRI taken in August 2007 revealed post-operative changes and central disc protrusion extending superiorly from the L1-2 disc space and impinging upon the thecal sac. A pelvic and hip MRI was unremarkable and no enhancing lesions were identified. Claimant was advised to continue on medication and follow up with Dr. Ceola.

Dr. Lennard released Claimant at maximum medical improvement on September 11, 2007, with permanent work restrictions precluding general construction work, lifting, bending, stooping, climbing, digging, shoveling, operating heavy construction equipment, or operating construction tools. He was continued on Lyrica and Norco as needed for pain. In October 2007, at the request of Employer, Dr. Lennard rated Claimant permanently partially disabled at 30 % body as a whole, with 10 % referable to Claimant's pre-existing lumbar surgery and degenerative changes and 20\% referable to his October 2006 work-related injury. Dr. Lennard attributed Claimant's L1-2 disc herniation and subsequent surgery, bladder dysfunction, and erectile dysfunction to the October 2006 work injury. Dr. Lennard also permanently maintained Claimant on a 40-pound lifting restriction.

Dr. Ceola also released Claimant at maximum medical improvement on September 11, 2007, noting Claimant "continues with pain in radicular pattern" and he would "likely have significant residual issues, but no further surgical [treatment] for this injury. L1-2 HNP not surgical and asymptomatic with mild stenosis and has chronic degenerative changes." Dr. Ceola continued the work restrictions previously imposed, namely no lifting or pushing more than 25 pounds, no bending or twisting, and private vehicle/light truck only.

Claimant was terminated by Employer after his release from treatment.

Claimant subsequently saw a neurosurgeon, Dr. Peter Yoon, in April 2008, complaining of constant back and hip pain with numbness in his left leg and foot. A MRI taken at that time revealed the following:

Post-operative changes. Multi-level degenerative disc and facet changes, in combination with what appears to be some component of congenital pedicular shortening which produces some canal stenosis at several levels. Generalized disc bulge as discussed above with small asymmetric component to the right at the L1-L2 level, suggesting a small disc protrusion in combination with disc bulge. There is some enhancement in this area and some may represent some scarring.

Claimant began treatment with Licensed Counselor Peggy Fox on August 20, 2008, reporting suicidal ideations, depression, sleeping issues, eating problems, chronic pain and marital difficulties. He was diagnosed with major depressive disorder and dependent personality disorder and received counseling. He attended bi-monthly counseling sessions with LPC Fox

until June 2009, then resumed counseling sessions in February 2010 continuing through June 2010.

Claimant saw Dr. Zulfikar Rasool Vali, M.D., on April 14, 2009, complaining that he was "feeling down in the dumps after [his] surgery" in 2007. Dr. Vali diagnosed major depression and rule out bipolar II depression, prescribed Lamictal, increased the Lexapro dosage, and recommended behavioral changes.

In February 2009, Claimant presented to St. Johns Hospital, complaining of low back pain radiating down his left leg for the past nine years. Claimant was sent to Dr. Sami Khoshyomn, a neurosurgeon, in March 2009, who ordered further diagnostic tests. MRIs taken in May 2009 revealed:

Thoracic Spine: Degenerative changes with disk bulging. No focal abnormality seen and no enhancing lesions present.

Lumbar Spine: Mild relative spinal stenosis at L4-5. Postoperative changes at L5 on the left. Worsened degenerative disk disease at L1-2 with central disk protrusion.

Dr. Khoshyomn sent Claimant to Dr. Benjamin Lampert for treatment. Dr. Lampert saw Claimant in October 2009 for evaluation of his lower back. At that time, Claimant reported his symptoms began ten years prior and worsened after his 2006 work-related injury. Dr. Lampert reviewed the EMG, which revealed left peroneal neuropathy, and the MRI, which revealed L4-L5 epidural fibrosis. He recommended conservative treatment and potential diagnostic blocks. Later in October 2009, Claimant was given a lumbar transforaminal epidural injection at L5 on the left, with no significant relief. In November, 2009, Dr. Lampert administered lumbar zygapophyseal joint nerve blocks at L4-L5 and L5-S1 on the left, and post-operatively diagnosed Claimant with lumbar spondylosis without myelopathy. In December 2009, Claimant underwent radiofrequency lumbar facet neurotomy at L4-L5 and L5-S1, and another lumbar transforaminal epidural injection at L5, both procedures on the left. He was referred to Dr. Saide Holland as a result of insurance changes, who diagnosed Claimant in February 2010 with post laminectomy syndrome and sent him for physical therapy.

Claimant saw his primary care physician, Dr. David Myers, in April 2010 and was referred to Dr. Glenn Kunkel at Central Missouri Pain Management. Claimant initially saw Nurse Practitioner Barbara Fulton. He described the same left hip and leg pain, with little relief from physical therapy or medications. Nurse Practitioner Fulton diagnosed lumbar radiculopthy, left lower extremity paresthesia, and depression. She changed Claimant's narcotic prescription to Oxycontin and ordered a CT myelogram for his left leg pain, which showed the following:

Thoracic Spine CT: Degenerative disk disease at multiple levels with minimal disk bulging at several levels without significant focal abnormality seen.

Lumbar Spine CT: Disk protrusions at L1-2 and L4-5 impinging upon the anterior thecal sac. Marked degenerative disk disease L1-2.

Cervical Spin CT: Left central disk protrusion C5-6 with prominent right central disk protrusion C6-7 impinging upon the thecal sac and neural foramen at this level.

Multilevel Myelogram: Degenerative changes with extradural impressions upon the anterior thecal sac at L1-2 and L4-5. No other significant abnormality identified on total myelogram study.

Dr. Kunkel administered injections in April, May, and June of 2010. Specifically, in April Claimant received a lumbar translaminar epidural steroid injection. In May he received a bilateral transforaminal lumbar epidural injection at level L4 (first level). At that time, Dr. Kunkel noted a nerve conduction study in February 2009 showed left distal peroneal mononeuropathy. In June 2010, Dr. Kunkel administered a left sacroiliac joint injection, given Claimant had not responded to prior procedures. A diskogram was recommended if Claimant's pain did not improve.

In July 2010, Dr. Kunkel performed a lumbar diskogram at L1-2, L2-3, and L4-5. A postdiskogram CT revealed prominent left paracentral disk protrusion with annular tear at L4-5 with resulting moderate left neural foraminal narrowing and severe degenerative disk disease at L1-2 without significant disk protrusion.

Claimant received a cervical translaminar epidural injection in August 2010, to address his cervical radicular pain. Dr. Kunkel diagnosed displacement of cervical intervertebral disk without myelopathy. On August 24, 2010, Claimant underwent bilateral cervical facet joint blocks at C3-4, C4-5, and C5-6.

Claimant returned to Dr. Ceola in September 2010, complaining of extreme low back pain into the left hip and the left leg down to his toes. Claimant reported he was bedridden most days because of severe pain and had ED and bladder issues. Claimant rated his pain at 8/10 and never below a five and reported pain killers provided little relief. Dr. Ceola diagnosed Claimant with L4-5 left lumbar herniated disc and discussed further surgical intervention if physical therapy and epidural injections failed.

Claimant underwent a second spine surgery in September 2010, this time for a left-sided redo hemilaminectomy discectomy at L4-5. Dr. Ceola noted the previous diskogram showed leakage through the L4-5 disk and fragments. Claimant was post-operatively diagnosed with recurrent lumbar herniated disc and lumbar radiculopathy and sent for physical therapy. Lift restrictions were increased from 25 to 20 pounds.

Claimant was seen by Nurse Practitioner Fulton in October 2012 for left low back pain radiating down his left posterior leg to the sole of his foot, headaches, and neck pain. He was diagnosed with lumbar radiculopathy, left lower extremity paresthesia, lumbar laminectomy syndrome, headache, and cervical pain. Additional diagnostic imaging was ordered and Claimant was scheduled for lumbar medial branch blocks and re-consultation with Dr. Ceola. Claimant was prescribed Percocet and Lyrica. MRI imaging of the cervical, thoracic, and lumbar spine taken on October 18, 2012, showed mild multilevel degenerative disk disease in the mid and lower

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Im

In October 1995, Claimant injured his right knee again when a pin broke on a 75-pound crane wrench and struck him. Claimant was off work for approximately 11 weeks then released with no restrictions. He initially felt weakness in his knee, which resolved within a year after the injury. Thereafter, he occasionally felt soreness in his knee, but not to the extent he was prevented from doing his job. Claimant was paid 11-4/7 weeks of temporary disability and settled his workers' compensation claim (Injury No. 95-193362) for 7.5\% permanent partial disability of the right knee.

In April 1998, Claimant injured his low back while working for a masonry company building an expansion at Fort Leonard Wood. The injury occurred when he slipped and fell as he was pulling concrete blocks on a pallet jack, landing on his right buttocks. Claimant underwent a lumbar myelogram in October 1998 and was diagnosed with moderate spinal stenosis at L3-4 and L4-5 secondary primarily to short pedicles, small left posterolateral L4-5 herniated disc narrowing the L4-5 left neural foramen and presumably impinging slightly on the exiting L4 nerve root on the left, and possible mild left of center herniated disc at L5-S1. It was noted the L5-S1 herniated disc was a "mild finding of uncertain significance but it may be impinging slightly on the left side of the thecal sac at that level and on the traversing left-sided S1 root." ${ }^{5}$ In December 1998, Dr. Pierce Nunley performed a L4 hemilaminotomy with partial fasciectomy at L4-5 and foraminotomy at L5 on the left. He was post-operatively diagnosed with L4-5 lateral stenosis with left L5 radiculopathy.

On referral from Dr. Nunley, Claimant saw Dr. Ted Lennard in March 1999 for a consultation, complaining of lower back pain extending into his left hip and in the anterior portion of his leg into the foot. He reported no right lower extremity symptoms, but stooping, bending and lifting caused pain. Dr. Lennard diagnosed post lumbar decompression with residual pain and started Claimant on a rehabilitation program. Claimant was placed on modified activity with no bending and lifting restrictions no greater than five pounds. A repeat lumbar myelogram was performed in June 1999, which revealed a moderate sized anterior extradural impression on the thecal sac at the L4-5 level as well as smaller anterior extradural impressions at L2-3 and L3-4, all thought to be related to bulging discs. A lumbar CT scan revealed mild to moderate diffuse bulging of the intervertebral disc at L4-5 causing mild effacement along the anterior aspect of the thecal sac but no significant degree of stenosis.

Claimant was ultimately released at maximum medical improvement and given permanent restrictions of no lifting over 35 pounds. Claimant was off work for over one year and paid 674/7 weeks of temporary disability benefits. Claimant settled his workers' compensation claim (Injury No. 98-044995) against his employer in December 1999 for 27\% permanent partial disability of the body as a whole, referable to his low back. Claimant settled against the Fund in November 2000 related to his pre-existing right knee injury. The Fund settlement documents reference the 1998 work accident as resulting in injury to his right hip, left hip, left leg, low back and body as a whole.

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[^0]: ${ }^{5}$ Exhibit 33.

After settling his 1998 back-injury claim, Claimant continued to seek treatment on his own for back pain and symptoms associated with his injury and subsequent surgery. In November 2001, ${ }^{6}$ Claimant saw Dr. Bob Carnett with St. John's Physician and Clinics in Salem, complaining of chronic back pain since his 1998 injury and was prescribed medications. Claimant saw Dr. Carnett again in October 2004 and reported since his 1998 back surgery he had problems with erectile dysfunction. He was prescribed Viagra at that time. Claimant presented to Dr. Carnett in May 2005 complaining of continued lumbar pain and was prescribed medications. Claimant saw Dr. Myers, his primary care physician, in April 2006 and it was noted his back pain was "getting worse" since his 1998 injury and surgery. Also during the April 2006 visit, it was noted Claimant had erectile dysfunction and received samples of Viagra in the past.

Claimant was diagnosed with hypothyroidism in approximately 2003, in addition to hyperlipidemia and hypertension.

Claimant credibly testified since his 2006 injury he has suffered from debilitating pain, which he is "never free from." The pain radiates down his lower back, left hip, left leg and foot. He has swelling in his back and hip, with pain at six or seven on a scale of ten. He also has pain in his neck, however, it is overpowered by the pain in his back.

Claimant credibly testified he normally spends most of his day lying down to relieve the pain, and his wife does "pretty much absolutely everything in [their] marriage." He cannot stand for longer than five or ten minutes and cannot walk more than 50 to 75 yards at a time. He no longer mows the lawn, tills the garden, cuts logs, or maintains their vehicles. He sold his cattle after the 2006 injury because he was no longer able to take care of them. He occasionally helps with grocery shopping, but walking on concrete is painful.

Water therapy, physical therapy, nerve blocks, surgery and injections have not provided complete relief from pain. Since his 2006 injury, he has bladder and bowel control problems. Specifically, he has a lack of urinary sensation, making it difficult for him to tell when his bladder is full. He credibly testified to several instances when he lost bowel control. He also has erectile dysfunction and sleep difficulties. Claimant has taken muscle relaxers and prescription pain medication for his back pain and is currently taking MS-contin and Percocet.

Claimant has not attended mental health counseling for several years, but continues to experience psychological issues. His inability to work and physical limitations "eat at him" and, as a result, Claimant has daily struggles.

Prior to 2006, Claimant's pre-existing low back injury caused soreness and pain when aggravated by activity. He also had some muscle weakness. However, those conditions were not debilitating and he was able to continue his normal work duties. Claimant also had pain and

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[^0]: ${ }^{6}$ Exhibit 16. The medical intake form includes a handwritten date of "11/23/01," although the totality of the records in chronological order indicate the date is more likely 11/23/00. Nonetheless, the discrepancy is not significant.

soreness in his right knee before the 2006 injury, but not to the extent he was bed bound or debilitated. Claimant lifted up to 130 pounds while working for Employer prior to his 2006 injury. At times, he loaded 400 to 600 straw bales per day as part of "hydroseeding," picking up 100-pound bales and loading them into a blower. He did not request or receive any accommodations from Employer. He credibly testified to a strong work ethic, which motivated him to continue his job duties despite his pre-existing injuries.

Ms. Mahurin has been married to Claimant since 1999 and was married to him at the time of the primary injury. She is a traveling registered nurse and works in the emergency department and intensive care unit. Ms. Mahurin credibly testified Claimant spends most days in bed and is unable to do much of anything physically since his 2006 injury. Prior to that time, they were very active with gardening, farming, and other physical activities. She now does the grocery shopping, mowing, garden tilling, and errands. She also prepares meals he can reheat in the microwave while she is traveling because standing at the stove is painful for Claimant.

Ms. Mahurin credibly testified Claimant's pre-existing knee and back injury caused him to occasionally complain about pain and soreness. However, those injuries did not prevent him from performing physical activity or working.

At the request of Claimant's attorney, Dr. Robert Poetz, M.D., conducted an independent medical evaluation and testified by deposition. Dr. Poetz examined claimant on October 18, 2013, and, at that time, Claimant's chief complaints were constant pain in his lower back and left hip with "half numbness in his left leg." He felt like he had a "Charlie horse-type sensation" in the muscle in his left buttocks and a raw feeling in his left leg "all the way to [his] toes." He had discomfort in his neck with weather changes and numbness in both arms. Claimant also reported anxiety attributable to his inability to work or maintain his previous activities such as caring for his farm. Claimant also reported difficulty sleeping due to pain, and inability to stoop, walk, stand or sit for extended periods of time. Claimant also reported difficulty with his bowel and bladder, describing either a feeling he needed to urinate constantly or no urge at all, and erectile dysfunction.

Dr. Poetz opined Claimant's work-related accident (primary injury) was the substantial and prevailing factor in causing 35 % permanent partial disability to the body as a whole at the lumbar spine, 40 % permanent partial disability to the body as a whole at the cervical spine, and an additional 15 % permanent partial disability to the body as a whole due to depression. Dr. Poetz attributed the following conditions to the primary injury:

1. L1-2 herniated nucleus pulposus with cauda equine syndrome and exacerbation of lumbar discogenic disease
2. Status post far lateral approach for an L1-2 diskectomy from the left side
3. Recurrent L4-5 lumbar herniated disc and lumbar radiculopathy
4. Status post L4-5 left sided redo hemilaminectomy discectomy

Dr. Poetz also opined Claimant had five pre-existing injuries and conditions, which were of such seriousness as to constitute a hindrance or obstacle to employment or obtaining reemployment, and assessed the following disabilities:

1. L4-5 lateral stenosis and L5 radiulopathy; status post L4 hemilaminectomy with partial fasciectomy at L4-5 and foraminotomy at L5 on the left. Residual low back pain with impression upon the thecal sac L4-5 level and bulging disc at L2-3 and L3-4 (1998) - 27\% PPD
2. Depression - 10 % PPD
3. Hypertension - 15 % PPD
4. Hypothyroidism - 10 % PPD
5. Right knee medial meniscus tear and chondromalacia; status post right knee arthroscopy with debridement due to chondromalacia (1994) - 6\% PPD

Dr. Poetz acknowledged during his deposition Claimant worked full time prior to the October 2006 injury, without accommodation or missing time as a result of his pre-existing disabilities. Dr. Poetz testified during cross-examination he believed Claimant's ability to perform his job duties and work on his farm without difficulty prior to the October 2006 work injury did not negate his opinion Claimant was permanently totally disabled based on the combination of his pre-existing disabilities and his primary work injury.

Dr. Poetz recommended the following permanent physical restrictions as a result of the combined effect of the primary injury and pre-existing conditions. ${ }^{7}$

1. Avoid pushing and pulling
2. Avoid heavy lifting and strenuous activity
3. Avoid prolonged sitting, standing, walking, stooping, bending, squatting, twisting or climbing
4. Avoid overhead use of upper extremities
5. Avoid excessive and repetitive use of upper extremities
6. Avoid use of equipment that creates torque, vibration, or impact to the upper extremities
7. Avoid stressful situations
8. Avoid any activity that exacerbates symptoms or is known to cause progression of the disease process

Dr. Poetz believes Claimant's three disabilities resulting from his 2006 work-related injury and the five pre-existing disabilities combine to result in a percentage of disability substantially greater than would have resulted from the last injury considered alone and of itself. If not for the pre-existing disabilities, Dr. Poetz believes Claimant's primary injury would have resulted in partial disability, not total disabilty. He opined the synergistic enhancement resulting from the

[^0] [^0]: ${ }^{7}$ Exhibit 4, p. 29.

combined totality of the employee's disabilities is greater than the sum of their independent parts. ${ }^{8}$ As a result, Dr. Poetz believes Claimant is permanently and totally disabled as a result of a combination of his pre-existing disabilities and the 2006 primary work injury.

As indicated previously, in October 2007, Dr. Lennard provided a rating report at Employer's request after releasing Claimant at maximum medical improvement on September 11, 2007. Dr. Lennard rated Claimant permanently partially disabled at 30 % body as a whole, with 10 % referable to Claimant's pre-existing lumbar surgery and degenerative changes and 20 % referable to his October 2006 work-related injury. Dr. Lennard attributed Claimant's L1-2 disc herniation and subsequent surgery, bladder dysfunction, and erectile dysfunction to the October 2006 work injury. Dr. Lennard also permanently maintained Claimant on a 40-pound lifting restriction and recommended he avoid operating heavy equipment.

At the request of Claimant's attorney, Gary Weimholt, a certified vocational rehabilitation expert, conducted an evaluation and testified by deposition. Mr. Weimholt has over 25 years experience in vocational rehabilitation assessments, loss of labor market access evaluations, job placement services, and labor market analysis. Mr. Weimholt opined Claimant's work history and training has involved manual labor positions, and as such he is more qualified for occupations dealing with things and objects as opposed to working with people. He found Claimant does not have marketable skill sets relating to customer service work or any other technology-related skills. Claimant has limited employability in office-related occupations because he lacks proficiency in basic computer software and is less computer literate than other applicants who are competing for or performing office-related occupations requiring computer proficiency.

Mr. Weimholt testified Claimant's longstanding history of depression would also limit him in working with others or in an occupation that requires considerable public contact or persuasion ability. Given Claimant's work history in manual labor and trade occupations, his continual pain requiring lengthy rest periods during the day would significantly limit his employability in those fields.

Mr. Weimholt testified Claimant's pre-existing disabilities would be a hindrance or obstacle to his employment in many classes of occupations. Further, in Mr. Weimholt's opinion, "were it not for the previous condition of his lumbar spine, right knee and history of depression, Claimant, as a younger individual, would have had more vocational opportunities and alternative employment available to him in the open competitive labor market after the injury of October 2, 2006." ${ }^{9}$

Mr. Weimholt opined Claimant has a total loss of access to the open competitive labor market and is totally vocationally disabled from employment as a result of his pre-existing disabilities in

[^0]

[^0]: ${ }^{8} Exhibit 4, pp. 20-22.

{ }^{9}$ Exhibit 6, p. 15.

The study of the effect of the term "emphasis" on the study of the effect of the term "causation" has been conducted in the last two decades. The study was conducted in collaboration with his October 2006 work injury. He further concluded there is no reasonable expectation that an employer in the normal course of business would hire Claimant for any position, or that he would be able to perform the usual duties of any job that he has done or is qualified to perform. He also believes Claimant is not a candidate for any further vocational rehabilitation, job placement or retraining.

The parties stipulated Claimant sustained a compensable accident on October 2, 2006. The parties also stipulated Claimant's October 2, 2006, accident was the prevailing factor in causing Claimant's injuries and disabilities alleged at the hearing of this claim. Claimant contends he is permanently totally disabled as a result of the combination of his pre-existing disabilities and his work injury on October 2, 2006. In its brief, the Fund contends that if Claimant is permanently totally disabled, his disability is due to the last injury alone.

The burden of proving an entitlement to compensation is on the employee. Section 287.808, RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall construe the provisions of the Workers' Compensation Law strictly, weighing the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts. Section 287.800, RSMo.

Claimant contends he is permanently and totally disabled, and seeks an award of permanent total disability benefits from the Second Injury Fund. Under Section 287.020, "total disability" is defined 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." The test for permanent and total disability is whether Claimant is able to compete in the open labor market given his or her present physical condition. *Messex v. Sachs Elec. Co.*, 989 S.W.2d 206 (Mo. App. E.D. 1999). The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. *Molder v. Mo. State Treasurer*, 342 S.W.3d 406, 411 (Mo. App. W.D. 2011).

I find credible and substantial evidence supports a finding Claimant is unable to compete in the open labor market given his present physical condition. Both Claimant and his wife credibly testified he has debilitating pain and is able to stand or walk for only short periods. He is often bedridden because of pain in his low back, hip, and leg and can no longer perform physical activities such as mowing, gardening, or farming. Ongoing prescription narcotic medications relieve some pain, but do not enable him to return to normal activity. These subjective complaints are supported by competent and substantial medical evidence documenting multiple back surgeries, cervical fusion, epidural injections, physical therapy, ongoing prescription narcotic medications, and physical restrictions. Indeed, Dr. Lennard, a treating physician who rated Claimant at Employer's request, imposed significant permanent work restrictions precluding him from operating heavy equipment, lifting over 40 pounds, bending, stooping, climbing, digging or shoveling, when he released Claimant in September 2007 and referred him for ongoing pain management. Dr. Ceola imposed similar restrictions.

I find credible Dr. Poetz' opinion Claimant is permanently and totally disabled. Dr. Poetz recommended Claimant avoid pushing and pulling, heavy lifting and strenuous activity, prolonged sitting, standing, walking, stooping, bending, squatting, twisting or climbing, stressful situations, overhead use of upper extremities, excessive and repetitive use of upper extremities, and use of equipment that creates torque, vibration, or impact to the upper extremities. These physical restrictions are consistent with the limitations imposed by Claimant's treating physicians.

I also find credible Mr. Weimholt's opinion that Claimant is unable to compete in the open labor market in his present physical condition given his educational and vocational qualifications. He has an extensive medical history involving surgically treated cervical and lumbar spine conditions, which often render him bedridden and result in daily use of narcotic pain medications. Claimant's educational history is limited to a GED, and he has a work history mostly comprised of physical labor, operating heavy equipment, and generally unskilled positions. As a result, Claimant's physical limitations prevent him from performing the tasks necessary to sustain employment and render him unable to compete in the open labor market.

In light of the credible testimony and medical evidence demonstrating significant physical restrictions, vocational limitations, debilitating pain, and ongoing need for prescription narcotic medication, I find there is competent, substantial, and uncontroverted evidence demonstrating Claimant is unable to compete in the open labor market in his present physical condition. As a result, I find Claimant is permanently and totally disabled.

Having found Claimant permanently and totally disabled, the next question is whether he is unemployable in the open labor market as a result of the last injury alone or a combination of the last injury and pre-existing permanent partial disabilities. Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show he suffers from "a pre-existing permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed...." Id.

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

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. E.D. 2007)(emphasis in original).

I find Claimant's pre-existing permanent partial disabilities were serious enough to constitute a hindrance or obstacle to employment. Although Claimant's testimony demonstrated a strong work ethic enabling him to overcome these conditions and continue working in strenuous manual labor positions prior to his October 2006 work injury, his pre-existing

conditions had the potential to combine with subsequent work-related injuries to cause greater disability. In particular, his pre-existing back condition required surgery, resulting in his temporary total disability for a year, permanent restrictions of no lifting over 35 pounds, and ongoing need for prescription pain medications. His two prior knee injuries resulted in surgery and intermittent soreness, creating the potential to present a hindrance to employment from the point of view of a cautious employer. And, his pre-existing depression resulted in ongoing prescriptions for anti-depressants prior to his October 2006 injury. I find Claimant had preexisting partial disabilities of such seriousness to constitute a hindrance or obstacle to employment and those disabilities had the potential to combine with a work-related injury in the future to cause a greater degree of disability.

The next question is whether Claimant has proven the Fund is liable for his permanent total disability. The Fund is liable for PTD benefits when a claimant establishes he is permanently and totally disabled due to the combination of his primary injury and his preexisting partial disability. Lewis v. Treasurer of State, 435 S.W3d 144, 159 (Mo. App. E.D. 2014) citing Highley v. Von Weise Gear, 247 S.W.3d 52, 55 (Mo. App. E.D. 2008).

"In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Until that disability is determined, it is not known whether the second injury fund has any liability." Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. E.D. 2000); Stewart v. Johnson, 398 S.W.2d 850, 854 (Mo. 1966). Thus, Employer's liability must first be considered in isolation before determining Second Injury Fund liability. Kizior v. Trans World Airlines, 5 S.W.3d 195 (Mo. App. W.D. 1999), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. Banc 2003). If Claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and the employer is responsible for the entire amount of compensation. Gassen v. Lienbengood, 134 S.W.3d 75, 79 (Mo. App. W.D. 2004). Accordingly, a claimant's pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined. Hughey, at 847.

Dr. Poetz attributed the following conditions to Claimant's last back injury:

1. L1-2 herniated nucleus pulposus with cauda equine syndrome and exacerbation of lumbar discogenic disease
2. Status post far lateral approach for an L1-2 diskectomy from the left side
3. Recurrent L4-5 lumbar herniated disc and lumbar radiculopathy
4. Status post L4-5 left sided redo hemilaminectomy discectomy
5. C6-7 herniated nucleus pulposus
6. Status post C6-7 cervical fusion
7. Major depressive disorder

Dr. Poetz found Claimant previously suffered from depression and attributed the following conditions to Claimant's pre-existing back injury:

L4-5 lateral stenosis and L5 radiulopathy; status post L4 hemilaminectomy with partial fasciectomy at L4-5 and foraminotomy at L5 on the left. Residual low

Employee: William Chad Head

Injury No. 06-094057

back pain with impression upon the thecal sac L4-5 level and bulging disc at L2-3 and L3-4 (1998)

Based on Dr. Lennard's assessment, Claimant's last back injury resulted in L1-2 disc herniation and subsequent surgery, bladder dysfunction, and erectile dysfunction. However, the medical records indicate Claimant suffered from erectile dysfunction after his 1998 back injury and prior to his October 2006 accident. The medical evidence also indicates Claimant was diagnosed with and received ongoing medications for depression prior to his 2006 injury.

I find credible Dr. Poetz' opinion Claimant's L4-5 disc condition, L5 radiculopthy, residual low back pain with impression upon the thecal sac at L4-5 level, and bulging disc at L23 and L3-4 originated before the 2006 back injury. Based on the medical evidence, I also find Claimant's erectile dysfunction and depressive disorder originated before the 2006 back injury.

I find credible Dr. Poetz' opinion the conditions attributable to the last injury alone are the L1-2 herniated nucleus pulposus ${ }^{10}$ with cauda equine syndrome, C6-7 herniated nucleus pulposus with cervical fusion, and exacerbation of lumbar discogenic disease. Based on the medical evidence, I also find Claimant's bladder dysfunction is attributable to the last injury alone.

I do not find the conditions referable to Claimant's last injury would have resulted in permanent total disability in isolation. It is difficult to distinguish the resulting conditions attributable to Claimant's pre-existing back injury from those associated with his primary back injury, considering the similar nature and symptomatology. However, I find based on all the medical records, expert medical opinions, treating physician reports, and Claimant's testimony, his October 2006 back injury, when considered in isolation, would have rendered him only partially disabled.

Specifically, Claimant's credible testimony and the medical evidence indicates the most debilitating and chronic sequelae associated with his current back condition is ongoing pain in his low back, left hip, left leg and foot. ${ }^{11}$ Claimant's pre-existing back condition also resulted in low back and left-sided hip and leg pain with radiculopathy, ${ }^{12}$ but did not result in his total

[^0]

[^0]: ${ }^{10}$ Dr. Poetz' opinion is also consistent with Dr. Ceola's assessment in January 2007 attributing Claimant's L1-2 disc condition to the October 2006 accident.

${ }^{11}$ The medical evidence and Claimant's own testimony shows his bladder urgency and infrequent bowel incontinence have improved, and the effects of those conditions are not chronic or debilitating.

${ }^{12}$ Exhibit 14. Medical records from Dr. Lennard dated March 5, 1999, relate the following complaint: "At the present time Mr. Head complains of lower back pain extending into the left hip. At times he has pain in the anterior portion of the leg and into the dorsum of the foot. No right lower extremity symptoms. Most activities including stooping, bending and lifting cause pain."

imability to work. The medical evidence shows prior to October 2006 he received ongoing treatment for chronic back pain, including physical therapy and narcotic medications. And, while he obviously did not adhere to the post-1998 permanent restriction of lifting no more than 35 pounds, such a restriction was actually more stringent than the 40-pound limit imposed by Dr. Lennard after Claimant's 2006 injury and surgery.

While the Fund asserts his ability to work despite his pre-existing back condition and physical restrictions is evidence the last injury alone caused Claimant's permanent total disability, I believe his previous ability to work supports the opposite finding. Namely, the last injury if considered in isolation would not have rendered him totally disabled considering he was able to work with a similarly serious back condition prior to October 2006. Rather, the evidence supports a finding the combination of his pre-existing permanent partial disabilities and the primary injury has resulted in Claimant's permanent total disability.

The Fund's argument to the contrary is primarily based on Claimant's testimony minimizing his previous back symptoms as infrequent and relatively insignificant leading up to October 2006. However, he was clearly not pain free or without impairment prior to the October 2006 injury. The medical records demonstrate he received ongoing narcotic pain medication and physical therapy for chronic lumbar pain beginning after his 1998 back injury and continuing up to his October 2006 injury. He was also subject to permanent lifting restrictions prior to 2006. In fact, Claimant's treatment records reflect his own, more temporally relevant assessments describing his lumbar pain as ongoing since his 1998 injury and then worsening after the 2006 accident. Given the medical evidence to the contrary, I do not find Claimant's testimony minimizing the extent of his impairment prior to the primary injury sufficiently competent to support a finding the last injury alone caused his permanent and total disability.

The Fund also contends Dr. Poetz' disability assessment does not sufficiently dispel a conclusion Claimant is permanently and totally disabled as a result of the last injury alone. Specifically, the Fund correctly argues that Dr. Poetz' opinion attributing 90\% permanent partial disability to Claimant's last injury alone leaves little room for any disability associated with preexisting conditions. However, Dr. Poetz also appears to have relied on Claimant's inaccurate, current assessment regarding his own level of impairment prior to the October 2006 injury. Dr. Poetz' report makes no mention of Claimant's medical records showing chronic lumbar pain and treatment after 1998 and prior to October 2006 and, instead, relates Claimant's account "he was always capable of working four days at work and then the other three days on his farm with no problems prior to his 2006 injury." ${ }^{13}$ As a result, I do not find Dr. Poetz' disability assessment for the primary injury persuasive.

[^0]

[^0]: ${ }^{13}$ Exhibit 2, at p. 8.

Finally, the Fund cites this sentence in Dr. Poetz' report as evidence he made a tacit finding the last injury alone caused Claimant's PTD: Employee is PTD "as a direct result of his October 2, 2006 work related injury and in addition to his prior injuries." ${ }^{14}$ I do not believe Dr. Poetz' phrasing in this particular sentence undermines his otherwise apparent and credible conclusion Claimant is PTD as a result of the combination of his pre-existing permanent disabilities and the primary injury. Both his evaluation and subsequent deposition testimony articulate an overall opinion Claimant's last injury alone was not the cause of his PTD. Specifically, this exchange occurred during Dr. Poetz' deposition:

Q: In your opinion, do the three primary injuries and the five -- three primary disabilities and the five pre-existing disabilities combine in such a way that the degree or percentage of disability caused by the combination of all these disabilities is substantially greater than that which would have resulted from the last injury considered alone and of itself?

A: Yes.

Q: In fact, it's your opinion that the combination of the present and prior disabilities results in a total which exceeds the simple sum by 20 percent; is that correct?

A: Yes.

Q: So, therefore, does that mean that the amount of Mr. Head's disability resulting from the combination of the primary, the three primary and the five pre-existing disabilities is greater than the sum of the amount of the disabilities when each disability is considered separately?

A: That's correct.

Q: And so, in your opinion, Doctor, has a synergistic enhancement occurred in which the combined totality of the employee's disability is greater than the sum of its independent parts?

A: That's correct.

Q: So, both in Exhibit 2 and in Exhibit 3, after reviewing the vocational expert's report, you set forth your opinion that Mr. Head is permanently and totally disabled. What do you mean when you saw [sic] that he is permanently and totally disabled?

A: I mean that for the rest of his life he is incapable, from medical, physical and emotional reasons to be gainfully employed.

Q: So, therefore is the combination of the three primary disabilities you've assigned here and the five pre-existing disabilities the prevailing factor and the cause of his permanent total disability, in your opinion:

A: Yes.

[Objection omitted]

Q: Well, I don't mean to suggest an answer to you or to lead you, Doctor. What in your opinion is the prevailing factor in the cause of Mr. Head's permanent and total disability?

[^0]

[^0]: ${ }^{14}$ Fund Brief, p. 23.

A: Give me a moment to read my conclusion. Page 14, conclusion says that the injury which occurred on October $2^{\text {nd }},{ }^{\prime} 06$, are the substantial and prevailing factor to the following disabilities, and in listing those disabilities, and then below that saying that that is in fact the reason for his permanent and total. It is the prevailing and substantial factor.

Q: Is it -- Well, the question I think Mr. McCain and I want to get to is the combination of the primary and the pre-existing disabilities, or is it those last - or is it the last primary accident alone that is exclusively responsible for his permanent total disability?

A: I think my last paragraph says it is the direct result of the October $2^{\text {nd }}$, '06 injury, in addition to his prior injuries.

Q: So, in other words --

A: Combination.

Q: -- a combination? In fact, you read Mr. Weimholt's report; is that correct?

A: I did.

Q: And you noted in that report that Mr. Weimholt said that it's Mr. Weimholt's opinion "that were it not for the previous conditions of his low back, right knee and depression, Mr. Head, as a younger individual, would have had more vocational opportunities following his primary accident." Do you agree with Mr. Weimholt's opinion in that regard?

A: In part, yes.

Q: So, had he not had any of those five, those pre-existing conditions or those five pre-existing disabilities, in your opinion, his nature, the extent of his permanent disability would be partial in its extent?

A: Yes.

Dr. Poetz' testimony, albeit in response to leading questions, supports his overall opinion Claimant's pre-existing disabilities combined with the 2006 work injury to cause PTD. I find credible Dr. Poetz' opinion Claimant is permanently and totally disabled as a result of his preexisting permanent partial disabilities in combination with the October 2, 2006, work-related injury.

Accordingly, based on all the evidence, I find and conclude as a consequence of the October 2, 2006, work-related accident, Claimant sustained a permanent partial disability of 35 % of the body as a whole referable to the lumbar spine, and 20 % permanent partial disability of the body as a whole referable to the cervical spine.

I also find and conclude at the time of the work-related accident Claimant had preexisting permanent partial disabilities that constituted a hindrance or obstacle to his employment or re-employment, specifically lumbar spine and right knee injuries in addition to depression. I find Claimant is permanently and totally disabled as a result of his pre-existing permanent partial disabilities in combination with the October 2, 2006, work-related injury. As previously indicated, the medical records and credible testimony demonstrate significant physical restrictions, vocational limitations, debilitating pain, and ongoing need for prescription narcotic medication, resulting in Claimant's inability to compete in the open labor market in his present physical condition.

The Second Injury Fund is liable to Claimant for weekly permanent total disability benefits at the rate of $\ 355.53 for Claimant's lifetime. The payment of permanent total disability compensation by the Second Injury Fund is effective as of June 11, 2013, and shall take into consideration 220 weeks of permanent partial disability, which is attributable to Employer. As a result, the weekly permanent total disability compensation payments shall commence August 29, 2017.

The Treasurer of Missouri, as Custodian of the Second Injury Fund, is ordered to pay Claimant, William "Chad" Head, weekly permanent total disability benefits of $\ 355.53 for Claimant's lifetime. The payment of permanent total disability compensation by the Second Injury Fund is effective as of June 11, 2013, when he reached maximum medical improvement. Further, the payment of permanent total disability compensation shall take into consideration 220 weeks of permanent partial disability, which is attributable to the employer.

Claimant's attorney, B. Michael Korte is allowed 25\% of the permanent total disability benefits awarded herein, including future benefits, for necessary attorney's fees, and the amount of such fees shall constitute a lien on those benefits. The lien of B. Michael Korte shall be paid to the Bernard Michael Korte Trust Agreement.

Made by $\qquad$

/s/Andrea Spillars 5-30-2017

Administrative Law Judge

Division of Workers' Compensation