David Sanderson v. Dolgencorp, Inc.

Employee: David Sanderson

Employer: Dolgencorp, Inc.

Additional Party: Second Injury Fund

Insurer: Self-insured

Hearing Date: April 4, 2017

Injury No. 09-108286

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: RJD/cs

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 27, 2009.
5. State location where accident occurred or occupational disease was contracted: Callaway 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? Employer is self-insured.
11. Describe work employee was doing and how accident occurred or occupational disease contracted:

Employee was loading cardboard into a baler as part of his work for Employer; while performing this work task, Claimant picked up a large load of cardboard, twisted to put the load into the baler, and noted immediate pain in his lower back.

1. Did accident or occupational disease cause death? No. Date of death? N/A.
2. Part(s) of body injured by accident or occupational disease: Low back, body as a whole.
3. Nature and extent of any permanent disability: 20 % permanent partial disability of the body as a whole due to the October 27, 2009 accident; Employee is totally and permanently disabled.
4. Compensation paid to-date for temporary disability: None.
5. Value necessary medical aid paid to date by employer/insurer? None.

1. Value necessary medical aid not furnished by employer/insurer: 18,160.97.
2. Employee's average weekly wages: 536.83.
3. Weekly compensation rate: $357.89.
4. Method wages computation: Stipulation.

1. Compensation payable from Employer and Insurer: $28,631.20

Employer is also ordered to provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required to cure and relieve Claimant from the effects of the work-related injury.

1. Second Injury Fund liability:

Permanent total disability benefits of $357.89 per week, beginning July 19, 2011, for Claimant's lifetime.

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

R. L. Veit

Employee: David Sanderson

Injury No. 09-108286

Dependents:

Employer: Dolgencorp, Inc.

Additional Party: Second Injury Fund

Insurer: Self-insured

Hearing Date: April 4, 2017

An evidentiary hearing was held in this case on April 4, 2017, in Jefferson City. David Sanderson ("Claimant") appeared personally and by counsel, Rudy Veit. Dolgencorp, Inc. ("Employer") appeared by counsel, Jeffrey Mullins. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appeared by counsel, Eric Doner, Assistant Attorney General. The parties requested leave to file post-hearing briefs, which leave was granted, and the case was submitted on May 9, 2017. The hearing was held to determine the following issues:

1. Whether Employee sustained a compensable accident or occupational disease arising out of and in the course of his employment with Dolgencorp, Inc. on or about October 27, 2009;
2. If found to have been sustained, whether the work-related accident or occupational disease is the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence;
3. Employer's liability, if any, for temporary total disability benefits;
4. Employer's liability, if any, for permanent partial disability benefits or permanent total disability benefits;
5. Employer's liability, if any, to reimburse Claimant for medical bills incurred before October 27, 2010 and after May 30, 2012;
6. Employer's liability, if any, to provide Claimant with future medical benefits pursuant to $\S 287.140$, RSMo; and
7. The liability of the Second Injury Fund, if any, for permanent partial disability benefits or permanent total disability benefits.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this case;
2. That venue for the evidentiary hearing is proper in Callaway County and adjoining counties, including Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, Section 287.430;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That the average weekly wage is $\ 536.83, with compensation rates of $\ 357.89 for temporary total disability and permanent total disability and $\ 357.89 for permanent partial disability;
6. That Employer has paid no benefits under Chapter 287, RSMo;
7. That the notice requirement of Section 287.420 is not a bar to Claimant's Claim for Compensation herein; and
8. That Dolgencorp, Inc. was an authorized self-insurer for Missouri Workers' Compensation purposes at all relevant times.

The evidence consisted of the testimony of David Sanderson ("Claimant"), and the following exhibits:

Employee's Exhibits 1-9.

Exhibit 1 Claim for Compensation and Amended Claim for Compensation

Exhibit 2 03/04/14 Deposition of David Volarich, M.D. with attached exhibits

Exhibit 3 Notice of Filing of Medical Report Pursuant to Section 287.210 of Dr. Volarich Report dated March 23, 2015

Exhibit 4 09/25/14 Deposition of Gary Weimholt with attached exhibits

Exhibit 5 11/09/16 Deposition of Gary Weimholt with attached exhibits

Exhibit 6 Prior Workers' Compensation Records

Exhibit 7 Photograph of Cardboard Sheets on Rolltainer, undated

Exhibit 8 Social Security acceptance

Exhibit 9 First Report of Injury

Employer's Exhibits A-C.

Exhibit A 06/21/10 Deposition of David Sanderson

Exhibit B 09/07/16 Deposition of Terry Cordray

Exhibit C Division of Employment Security record dated 03/24/10

The Second Injury Fund Exhibits I and II.

Exhibit I 11/26/14 Deposition of David Sanderson

Exhibit II 02/02/16 Deposition of James M. England

Claimant testified to being sixty-five (65) years old as of the date of the hearing. He was born on September 22, 1951. Claimant began working for Employer, DOLGENCORP, INC ("Dollar General"), in early February, 2006. Claimant was employed as a warehouse worker at the Dollar General Distribution Center in Fulton, Missouri. Claimant typically worked Monday through Thursday with normal work hours of 6:00 am to 4:30 pm. Claimant worked overtime and sometimes worked on Fridays. Claimant's rate of pay was $\ 13.10 per hour.

Claimant testified he was injured while working for Dollar General on October 27, 2009. On the day in question, Claimant testified that he was working loading cardboard into a baling machine. Claimant stated that the injury occurred when he picked up a heavy load of cardboard, twisted to put it in the baler, and injured his back. Claimant testified that he felt immediate pain in his back. Claimant testified that he told his Supervisor, Norm, about the accident approximately 15 minutes after it happened. Claimant did finish his work shift that day. That was the last day Claimant worked for Dollar General or at any employer.

Claimant contacted his personal physician, Dr. Wells, at Callaway Physicians in Fulton Missouri. Claimant testified that he saw Dr. Wells who prescribed physical therapy. Claimant completed that physical therapy at Callaway Hospital Rehab. Claimant testified that after rehab he was still having pain in his back. He testified to having x-rays and an MRI of the back. Medical records show x-rays of the back taken 10/30/09. The MRI was obtained on 12/09/09.

Claimant was seen by Dr. William Hopkins on 12/24/09 and noted back pain radiating into his right leg. Dr. Hopkins reviewed the treatment records and the films and recommended epidural steroid injection in the back. Claimant had the injection on 02/10/10.

Claimant applied for Unemployment Compensation in March 2010. Claimant testified he was granted those benefits and received them for about seven weeks. Claimant applied for and was granted Social Security benefits in April 2010. Claimant was deemed to be disabled for Social Security benefits as of October 28, 2009.

Claimant also treated with Dr. Joel Jeffries. He began treating with Dr. Jeffries on October 19, 2010. On that visit it was noted that Claimant was returning for care following his appointment with Dr. Hopkins in December 2009 and his subsequent injection. Dr. Jeffries' note specifically states that Claimant "enjoyed significant relief of his symptoms" following his epidural steroid injection. The note goes on to state Claimant had a friend pass away later in February, was lifting the casket as a pallbearer and "noted a resurgence of his discomfort." Dr. Jeffries provided additional treatment and a second injection.

Claimant was seen by Dr. Christopher Main for an IME on October 25, 2010. Dr. Main reported that Claimant had reached Maximum Medical Improvement from the alleged work injuries from October 2009. In fact, Dr. Main opined that the work at Dollar General and the alleged accident from October 2009 was not the prevailing factor in Claimant's condition. Dr. Main indicated that Claimant required no further medical care and no work restrictions. Dr. Main found Claimant to have suffered no ( 0 % ) permanent partial disability.

Claimant went an extended period of time following the IME with Dr. Main without additional medical treatment. Claimant did return to see Dr. Jeffries on May 30, 2012. Dr. Jeffries recommended an updated MRI. The second MRI was obtained on June 6, 2012. Dr. Jeffries reviewed the MRI and recommended repeat epidural steroid injection. That injection was administered on July 18, 2012. Dr. Jeffries followed up with Claimant after the injection and noted improvement in Claimant's symptoms. Dr. Jeffries recommended a home exercise program. Claimant has not received significant treatment for his work injuries since 2012.

Claimant was seen for an evaluation with Dr. David Volarich on July 10, 2013. Dr. Volarich indicated that Claimant was at Maximum Medical Improvement for his work injuries of October 27, 2009. Dr. Volarich stated Claimant was not a surgical candidate. Dr. Volarich opined Claimant had sustained 35 % permanent partial disability to the body as a whole, rated at the lumbar spine, due to the work injury from October 27, 2009. Dr. Volarich also opined that Claimant had pre-existing disabilities that are a hindrance to his employment or re-employment of 20 % permanent partial disability to the body as a whole, rated at the lumbar spine. Dr. Volarich continued his disability opinion stating that based on his medical assessment alone, Claimant is permanently and totally disabled as a direct result of the work injury of October 27, 2009 in combination with his pre-existing lumbar syndrome.

Dr. Volarich provided an Addendum to the evaluation of July 10, 2013 which is dated December 6, 2013. In the addendum Dr. Volarich reviewed the vocational assessment of Gary Weimholt. Dr. Volarich notes that the assessment by Mr. Weimholt confirms his opinion that Claimant is permanently and totally disabled as a direct result of the work injury from October 27, 2009 in combination with the pre-existing lumbar syndrome. Dr. Volarich also reviewed medical bills from various providers and indicated they were fair, reasonable, customary, and necessary to cure and relieve Claimant's work condition.

Dr. Volarich provided a Second Addendum to the evaluation of July 10, 2013 which is dated March 23, 2015. In this addendum, Dr. Volarich indicates that he reviewed additional medical records regarding Claimant's past back problems, pre-dating the work accident of

October 27, 2009. After reviewing the additional records, Dr. Volarich had no changes to his opinions offered in his IME of July 10, 2013.

Claimant was seen by vocational specialist Gary Weimholt on September 26, 2013. Mr. Weimholt performed a vocational rehabilitation assessment. After reviewing the medical reports and records, meeting with Claimant and performing testing, Mr. Weimholt provided his opinion that Claimant had been determined to be at maximum medical improvement. He further opined that from a vocational standpoint Claimant is totally disabled from employment. He went on to state that it was his opinion that the injury of October 27, 2009, coupled with the pre-existing conditions in Claimant's low back, resulted in the total disability.

Mr. Weimholt provided a supplemental report dated June 29, 2016. That report indicates that additional records/reports were reviewed by Mr. Weimholt. The additional records include addendum report from Dr. Volarich, report from Dr. Levy re: pre-existing disability of Claimant, second addendum report from Dr. Volarich and Vocational report from James England. After reviewing the additional materials, Mr. Weimholt did not change his previous conclusions.

Mr. Weimholt provided a second supplemental report dated October 28, 2016. That report indicates that Mr. Weimholt reviewed the vocational report of Terry Cordray. After reviewing this material, Mr. Weimholt again indicated his opinions from his first report were unchanged.

Mr. James England provided a vocational evaluation dated August 24, 2015. Mr. England reported that Claimant may be employable as a watchman or alarm monitor. He also opined that under the restrictions from Dr. Volarich, Claimant would not be employable. Mr. England went on to state that if Claimant were totally disabled it would appear to be only after the last injury.

Mr. Terry Cordray provided a vocational assessment in a report dated May 2, 2016. Mr. Cordray indicated that, using the restrictions of Dr. Main, Claimant was capable of returning to work at a sedentary position. He went on to state that using the restrictions from Dr. Volarich, Claimant is totally vocationally disabled. Mr. Cordray opined that if Claimant is totally disabled it is not from the work injury of October 27, 2009 alone but rather the combination of the significant pre-existing back limitations in combination with the work injury.

Claimant provided testimony at the hearing and at two previous depositions about his work history and his prior injuries. Claimant testified that he graduated high school in 1969. Following high school he enlisted in the Air Force. Claimant's work in the Air Force was primarily in the maintenance of jet aircrafts. He received an honorable discharge from the Air Force in 1972. He then worked for a short time for the Missouri Department of Transportation as a laborer and dump truck driver. Claimant also worked for approximately seven (7) years at A.P. Green doing heavy labor unloading and loading bricks.

In approximately 1983, Claimant began working at the Callaway Nuclear Power Plant. He started at the plant as a laborer but was promoted to the security department. He received another promotion, while working in the security department, to central alarm station supervisor.

While working for Borg-Warner Protective Services at Callaway Nuclear Power Plant, Claimant sustained a work-related injury to his back in 1998. Following that back injury Claimant was no longer able to pass the physical requirements to work in security and thus was forced to leave his profession of the previous 16 years.

Claimant's Exhibit \#6 is a copy of Missouri Workers' Compensation records from the 1998 accident and injury. Those records show Claimant was injured on or about February 4, 1998 while employed with Borg-Warner Protective Services. Claimant's injury was to his low back. Claimant settled that case based on permanent partial disability of 11 % body as a whole. A medical report attached to the settlement worksheet is from Dr. Jerome Levy. That report is dated November 18, 1998. Dr. Levy finds that Claimant had permanent partial disability of 25 % of the body as a whole from the 1998 accident and a pre-existing 5\% PPD to the body as a whole, all relating to the back. Dr. Levy specifically opined that Claimant had pre-existing 30\% PPD to the man as a whole and that the disability was and is a hindrance and obstacle to employment and re-employment should Claimant become unemployed.

Claimant testified at the hearing that following his 1998 work injury he was no longer able to perform the work duties required of his position with Borg-Warner Protective Services and as such he was forced to lose his job at the Callaway Nuclear Power Plant. Claimant went on to testify that he was out of work for quite some time following his accident in 1998. He needed a lengthy recovery from this back injury. Claimant stated that the accident in 1998 changed his life both at work and at home. Following the 1998 accident Claimant was unable to work out as much as he used to and as such became less physically fit. Claimant testified he was no longer able to run with his dogs. He also testified he could not do the same work at home. Because of the injury in 1998 Claimant was unable to complete the physical requirements necessary to continue his work in security. Therefore, Claimant had to find a new career path.

When Claimant did return to work, he worked for Osage Construction as a bridgeman/welder. This job required Claimant to read blue prints, cut steel and weld. Claimant specifically testified that he took this job because the work requirements were less strenuous than his previous work. He testified that he watched how he did the work and that he made accommodations and changes when he had to do heavy lifting. Claimant worked that job for approximately four (4) years.

Claimant went to work for Dollar General as a warehouseman in 2006. Claimant testified that he took the job at Dollar General with the idea that the physical requirements would be less than those in security or at Osage Construction. Claimant specifically testified that he would restrict and accommodate his work so as not to hurt his back. Claimant testified to having back pain from time to time while he worked for both Osage Construction and Dollar General. Claimant testified that, prior to his injury in October 2009, he had complained to his supervisors at Dollar General on a number of occasions about having pain in his low back. There were also medical records from Claimant's personal physician, Dr. Wells, from July 15, 2009 indicating Claimant was having back pain and needed medical care and medications.

Dr. Volarich was the only physician who provided testimony in this case. Dr. Volarich provided deposition testimony on March 4, 2014. Dr. Volarich testified that he believed

Claimant had sustained pre-existing disability, prior to the October 2009 work accident, which was rated at 20 % of the body as a whole rated at the lumbar spine. He specifically testified that the prior disability was a hindrance or obstacle to Claimant's employment or re-employment. He went on to testify that Claimant had sustained 35 % permanent partial disability to the body as a whole rated at the lumbar spine from the October 2009 injury. Dr. Volarich opined that Claimant was permanently and partially disabled from a medical standpoint as a result of the combination of the pre-existing disabilities and the disability from the October 2009 injury.

On cross-examination Dr. Volarich was asked about Claimant's pre-existing back disability. Dr. Volarich testified that Claimant had back problems dating back to the early 1990's. Dr. Volarich testified regarding the previous injury from 1998 and noted Claimant indicated not only pain in his back, but pain that radiated into both the right and left legs on different occasions. Dr. Volarich was specifically questioned about two (2) MRI studies which took place after the October 2009 work incident. The first of those MRI's was performed on December 9, 2009, and the second was performed on June 6, 2012. Dr. Volarich reviewed the radiologist report about the study as well as the actual films. Dr. Volarich testified that the results of the two MRI's were basically the same, except the 2012 MRI showed an annular tear at L4-5. Dr. Volarich testified that the annular tear was not on the 2009 MRI and was present on the 2012 MRI. Dr. Volarich was asked about the reason for the new condition. Dr. Volarich was specifically asked if he reviewed the records from Dr. Jeffries indicating the lifting incident from the funeral in February 2010. Dr. Volarich testified he had reviewed those records and he had no reason to doubt the content of the records. Dr. Volarich also testified that a lifting incident could cause the annular tear as found in the 2012 MRI. Dr. Volarich also re-testified that in his opinion Claimant's permanent total disability was the result of the combination of the October 2009 accident and the pre-existing disabilities.

Vocational Specialist Gary Weimholt testified on two separate occasions in this case. He provided deposition testimony on September 25, 2014, and again on November 9, 2016. In both depositions Mr. Weimholt testified to a reasonable degree of vocational certainty that Claimant was not employable in the open labor market. He went on to testify that Claimant's inability to work was as a result of the combination of the October 2009 injury and the preexisting disabilities. Mr. Weimholt specifically testified that it was his opinion that the preexisting back condition was a hindrance to Claimant's employment or re-employment. He continued that testimony by stating that the preexisting disability stopped Claimant from qualifying for more physical jobs. On cross-examination Mr. Weimholt testified that he had reviewed the report from Dr. Volarich. He also testified that he agreed with Dr. Volarich's conclusion that Claimant was permanently and totally disabled, and that the permanent total disability was due to a combination of the pre-existing disability and the work injury from October 2009. Mr. Weimholt was consistent in his responses in his second deposition. In the second deposition Mr. Weimholt was questioned both on direct and cross-examination about his conclusions on Claimant's permanent total disability. Mr. Weimholt testified that his conclusions had not changed from his first deposition and he was still of the opinion that Claimant was/is permanently and totally disabled, and the condition is due to the combination of the pre-existing disabilities and the disability from the October 2009 work injury.

Vocational Specialist James England provided deposition testimony on February 2, 2016. Mr. England testified on direct examination that he did not feel Claimant had a hindrance to employment before the 2009 work injury. He went on to testify that he believes, under the restrictions provided by Dr. Main or Dr. Jeffries, Claimant is capable of returning to work as a watchman or alarm monitor. He concluded his opinions by testifying that, under Dr. Volarich's restrictions, and specifically looking at the recumbency need, Claimant would not be able to sustain any kind of work activity. On cross-examination Mr. England was asked about the work injury from 1998 and the fact that Claimant had to leave his job due to that work injury and was not employed for two (2) years. Mr. England testified that those factors were a hindrance to Claimant's employment or re-employment at that time. Mr. England also testified that Claimant could not do his security job after the 1998 injury because he was unable to lift 100 pounds, which was a requirement of the job. Mr. England testified that he reviewed the medical report from Dr. Levy following the 1998 accident/injury and was aware the report noted 22 % loss of flexion in the back and 25 % loss of lateral bending in the back. He testified that those limitations could affect Claimant's ability to do jobs.

Also providing deposition testimony was Vocational Specialist Terry Cordray. Mr. Cordray provided testimony on September 7, 2016. Mr. Cordray testified that after reviewing all the medical records he felt that Claimant had pre-existing disability that was a hindrance to his employment or re-employment prior to the 2009 work injury. He testified that using restrictions from Dr. Main or Dr. Abernathie, Claimant was capable of working sedentary jobs including those mentioned by Vocational Specialist England. He also testified that using the restrictions given by Dr. Volarich, Claimant would be totally disabled. Mr. Cordray opined that if Claimant is totally disabled, the condition is due to the pre-existing work disability and the disability from the 2009 work injury in combination. Mr. Cordray was clear in his testimony that the 1998 back injury was a hindrance to Claimant's employment or re-employment because Claimant made a vocational change due to that accident and injury.

Did Claimant sustain a compensable accident or occupational disease? Section 287.020.2, RSMo, defines an accident for the purposes of workers' compensation proceedings. That Section states:

The word "accident" as used in this chapter shall mean an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

Claimant suffered an accidental injury as a result of a work-related incident occurring on October 27, 2009. On the date in question, Claimant was working in the course and scope of his employment with Employer, Dollar General, when he suffered a specific trauma. Claimant testified to loading cardboard into a baler as part of his work for Dollar General. While performing this work task, Claimant picked up a large load of cardboard and twisted to put the load into the baler. While doing this, Claimant noted immediate pain in his lower back. Claimant rested for approximately fifteen (15) minutes after his accident hoping the pain would go away. When the pain did not subside, he reported the accident and injury to his supervisor,

Norm. I find that Claimant suffered an accident and objective symptoms of injury as a result of a specific traumatic event occurring on October 27, 2009 while employed with Dollar General.

Was the October 27, 2009 work injury the prevailing factor in the cause of any or all of the injuries and/or conditions alleged in the evidence? According to Missouri Workers Compensation laws, in order for an accident/injury to be compensable the injury must arise out of and in the course of employment and the accident must be the prevailing factor in causing the injury. Missouri Statutes Section 287.020.3(2) states in pertinent part:

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

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

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

The work-related accident of October 27, 2009 occurred as a result of placing huge pieces of cardboard in a baling machine. This type of hazard or risk is not of a type to which workers would have been equally exposed outside of employment.

The question of prevailing factor for causing the injury is one which must be supported by medical testimony. Medical causation not within lay understanding or experience requires expert medical evidence. Wright v. Sports Associated, Inc., 887 S.W. $2^{\text {nd }} 596,600$ (Mo. banc 1994); Bond v. Site Line Surveying , 322 S.W.3d 165, 170 (Mo. App. W.D. 2010).

There are conflicting opinions regarding the prevailing factor for Claimant's injury. Dr. Main issued a report dated October 25, 2010, wherein he opined that Claimant's work accident was not the prevailing factor in the development of his low back pain and condition. Dr. Main noted Claimant has an extensive history dating back to the early 1990's of pain and treatment for low back issues. Dr. Main stated that Claimant's current condition was as a result of a nonoccupational hazard. Dr. Volarich issued a report dated July 10, 2013, at the request of the Claimant. Dr. Volarich opined in that report, as well as in two supplemental reports, that Claimant had sustained an accident on October 27, 2009 while lifting cardboard to put in a baler when he developed back pain radiating to the right leg. Dr. Volarich stated that this work injury was the prevailing factor causing the symptoms, need for treatment and resulting disabilities. (Dr. Volarich also provided this opinion in his deposition testimony).

I find the findings and opinions of Dr. Volarich, as indicated in his reports and deposition testimony, to be more credible than those of Dr. Main. I find that the work accident of October 27, 2009 was the prevailing factor in the cause of Claimant's low back injury.

Employer's liability, if any, for payment of temporary total disability benefits. The purpose of Temporary Total Disability ("TTD") benefits is to cover the Claimant's healing period. Chatmon v. St. Charles County Ambulance Dist., 55 S.W.3d 451, 459 (Mo. App. E.D. 2001). Temporary Total Disability awards are owed until the Claimant can find employment or reaches the point of Maximum Medical Improvement. Id.

Missouri Statutes Section 287.149.1 is germane to the issue of when Temporary Total Disability benefits are to be paid. Greer v. Sysco Food Service, 475 S.W.3d 655 (Mo. banc 2015). That Section states as follow:

Temporary total disability or temporary partial disability benefits shall be paid throughout the rehabilitative process.

Claimant has never returned to any employment since the October 27, 2009 work accident and injury. It is often difficult in a case such as this, where Claimant sought his own treatment, and did so sporadically over a number of years, to determine when maximum medical improvement has been achieved. Employer makes the salient argument that Claimant never improved from the date of injury, and thus October 27, 2009 is the date for beginning permanent total disability benefits, and is, likewise, the de facto maximum medical improvement date. I find from the evidence that Claimant was actively engaged in the rehabilitative process for a short period of time post-injury, despite noticeable improvement. I find that Claimant was engaged in the rehabilitative process until January 4, 2010, as it appears that Claimant's subsequent treatment (meager and sporadic as it was) was focused on maintenance rather than improvement or rehabilitation. Claimant is entitled to TTD from October 29, 2009 through January 4, 2010, a period of $95 / 7$ weeks.

As an additional consideration, however, Section 287.170.4 states:

An employee is disqualified from receiving temporary total disability during any period of time in which the claimant applies and receives unemployment compensation.

Claimant testified that he received unemployment compensation of $\ 200 per week for a period of approximately seven weeks. Although there was no direct evidence concerning what period of time Claimant received the unemployment compensation benefits, a reasonable inference from the evidence is that they were received for the first seven weeks Claimant was off work. I find, therefore, that Claimant was disqualified from receiving temporary total disability benefits during the first seven weeks of the $95 / 7 week period. Claimant should be awarded 25 / 7 weeks of TTD benefits, totaling \ 971.42.

Liability of Employer and/or the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits. Claimant alleges that he is permanently and totally disabled, and is seeking permanent total disability benefits from Employer or from the Second Injury Fund.

Under section 287.020.7, "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. Fletcher v. Second Injury Fund, 922 S.W.2d 402, 404 (Mo.App. W.D.1996). The test for permanent and total disability is the worker's ability to compete in the open labor market in that it measures the worker's potential for returning to employment. Knisley v. Charleswood Corp., 211 S.W.3d 629, 635 (Mo.App. E.D. 2007). The primary inquiry is whether an employer can reasonably be expected to hire the claimant, given his present physical condition, and reasonably expect the claimant to successfully perform the work. Id.

Second Injury Fund liability exists only if Employee suffers from a pre-existing permanent partial disability that constitutes a hindrance or obstacle to employment or reemployment that combines with a compensable injury to create a disability greater than the simple sums of disabilities. § 287.220.1 RSMo 2000; Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576, (Mo.App.E.D. 1985). When such proof is made, the Second Injury Fund is liable only for the difference between the combined disability and the simple sum of the disabilities. Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo.App. 1990). In order to find permanent total disability against the Second Injury Fund, it is necessary that Employee suffer from a permanent partial disability as a result of the last compensable injury, and that disability has combined with prior permanent partial disability(ies) to result in total disability. 287.220.1 RSMo 1994, Brown v. Treasurer of Missouri, 795 S.W.2d 479, 482 (Mo.App. 1990), Anderson v. Emerson Elec. Co., 698 S.W.2d 574, 576 (Mo.App. 1985). Where preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the employee for the permanent total disability after the employer has paid the compensation due the employee for the disability resulting from the work related injury. Reiner v. Treasurer of State of Mo., 837 S.W.2d 363, 366 (Mo.App. 1992) (emphasis added). In determining the extent of disability attributable to the employer and the Second Injury Fund, an Administrative Law Judge must determine the extent of the compensable injury first. Roller v. Treasurer of the State of Mo., 935 S.W.2d 739, 742-43 (Mo.App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Id. It is, therefore, necessary that the Employee's last injury be closely evaluated and scrutinized to determine if it alone results in permanent total disability and not permanent partial disability, thereby alleviating any Second Injury Fund liability.

In this case there are two medical opinions regarding Claimant's disability. The medical opinion from Dr. Main indicates Claimant has no disability from the 2009 work event, because Dr. Main does not believe Claimant's work accident was the prevailing factor in his condition. However, Dr. Main does believe Claimant to be disabled from his back condition, and specifically states that he did not review vocational rehabilitation records to determine Claimant's employability. He goes on to state that Claimant should be evaluated by a vocational rehabilitation counselor to make a determination of employability.

The second medical opinion was provided by Dr. Volarich. Dr. Volarich authored a primary report and two supplemental reports. Dr. Volarich also provided deposition testimony. Dr. Volarich opined that Claimant sustained permanent partial disability as a result of the

October 27, 2009 work accident while employed with Dollar General. Dr. Volarich quantified that disability at 35 % permanent partial disability to the body as a whole rated at the lumbar spine. Dr. Volarich also opined that Claimant has pre-existing disability prior to the October 29, 2009 work injury at Dollar General. Dr. Volarich felt that the pre-existing disability was a hindrance to Claimant's employment or re-employment. Dr. Volarich stated that the pre-existing disability would be rated at 20 % permanent partial disability to the body as a whole rated at the lumbar spine. Dr. Volarich went on to state that based on his medical assessment, it is his opinion that Claimant is "permanently and totally disabled as a direct result of the work related injury of 10/27/09 in combination with his pre-existing lumbar syndrome." Dr. Volarich also was presented with the vocational report and first deposition transcript from Gary Weimholt prior to his deposition. Dr. Volarich confirmed he read Mr. Weimholt's report and deposition transcript. Dr. Volarich testified that the findings/opinions of Mr. Weimholt confirm his opinion that the Claimant is permanently totally disabled and that the cause for the permanent and total disability is the result of the combination of the October 27, 2009 injury in combination with the pre-existing disabilities.

Claimant was evaluated by three vocational specialists, Gary Weimholt at the request of Claimant, James England at the request of the Second Injury Fund, and Terry Cordray at the request of Employer. Both Mr. Weimholt and Mr. Cordray found Claimant to be permanently and totally disabled as a result of the combination of the October 27, 2009 work injury and the pre-existing disabilities. (For Mr. Cordray this is assuming the restrictions from Dr. Volarich). Mr. England found Claimant to be permanently and totally disabled as a result of the October 27, 2009 injury in isolation (assuming the restrictions from Dr. Volarich).

In looking at the reports from the three vocational specialists the only real difference is the treatment of the 1998 work injury. Both Mr. Weimholt and Mr. Cordray acknowledge the significance of the 1998 injury and resulting disability. They both agree that the injury suffered by Claimant was of such a nature that it was a hindrance to Claimant's employment or reemployment. They both note that Claimant was changed as a result of the 1998 accident and injury and they both acknowledge that Claimant was no longer able to work in his chosen profession of security. They also both note that Claimant sought less demanding jobs following the 1998 injury because Claimant was unable to physically perform as he was prior to that accident and injury. Mr. England's report does acknowledge the 1998 injury, but fails to acknowledge Claimant's loss of employment and inability to return to heavy labor.

Mr. England provided deposition testimony in this case. Mr. England was specifically asked about the 1998 injury and its effect on Claimant. Mr. England agreed on crossexamination that Claimant losing his security job and his inability to work for two years after that injury were a hindrance to his employment. Mr. England also acknowledged Claimant's inability to continue working in the security field following the 1998 injury. This was primarily due to Claimant's inability to pass the physical requirements of his position which included lifting over 100 pounds. Finally Mr. England acknowledged under cross-examination that Claimant had limitations to his back as noted by Dr. Levy of 22 % loss of flexion in the back and 25 % loss of lateral bending in the back. Mr. England testified that those limitations could affect Claimant's ability to work.

I find the evidence, including the medical and vocational evidence, overwhelmingly supports a finding of permanent total disability. I must closely evaluate and scrutinize Claimant's October 27, 2009 injury to determine if same, standing alone, results in permanent total disability. In so doing, I again have considered all the evidence and I find that Claimant's October 27, 2009 injury resulted in permanent partial disability only. Indeed, I note that vocational expert England was the only opinion supporting a finding that the last injury alone resulted in permanent total disability; however, England's cross-examination testimony largely erodes the force of that opinion.

I find, therefore, that Claimant sustained a permanent partial disability of 20 % of the body as a whole as a result of the October 27, 2009 injury. I find that Claimant was rendered permanently and totally disabled as a result of the combination of the October 27, 2009 work injury and the pre-existing disabilities. The Second Injury Fund is therefore liable for permanent total disability benefit payments of $\ 357.89 per week, beginning January 5, 2010, subject to a credit for Employer's liability for permanent partial disability benefits ( 80 weeks, also at $\ 357.89 per week); after applying the credit, the Second Injury Fund's liability commenced on July 19, 2011.

An employee has the right to employ his own physician at his own expense, but when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails and neglects to provide needed treatment, the employer is held liable for the medical treatment procured by the employee. Hawkins v. Emerson Electric Co., 676 S.W.2d 872, 879 (Mo. App. S.D. 1984).

Claimant suffered a compensable injury as a result of an accident sustained on October 27, 2009 while working for employer, Dollar General. As a result of that accident Claimant did require medical treatment in an attempt to cure and or relieve the effects of that accident. Employer had notice of the need for treatment, but failed and/or refused to provide the treatment. Therefore, I find that Employer is responsible for the medical bills incurred by Claimant for treatment for this accident. The medical bills were presented into evidence, and Dr. Volarich provided testimony as to the fact that the bills were fair, reasonable, customary and necessary to cure and relieve the effects of the work related injury.

The parties stipulated that although all the bills from the date of accident to the present were submitted in evidence, the bills from October 27, 2010 through May 30, 2012 are not to be considered. Claimant submitted bills for Callaway County Community Hospital in the amount of $\ 8,339.00 and bills from University Hospital with an amount of $\ 11,543.97. The bills from Callaway County Community Hospital are reviewed and found to all be related. The bills from University Hospital contain entries from the dates to be excluded. The amount of the bills to be excluded is $\ 1,722.00. This leaves $\ 9,821.97 related medical bills from University Hospital. Employer shall be ordered to pay Claimant the amount of $\ 18,160.97 for past medical treatment.

Employer's liability for future medical benefits. Section 287.140, RSMo, requires an employer/insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 249 (Mo. banc 2003). The claimant must prove the need for treatment by "reasonable probability" rather than "reasonable certainty." Downing v. Willamette Industries, Inc., 895 S.W.2d 650, 655 (Mo. App. W.D. 1995), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003). "Probable" means founded on reason and experience, which inclines the mind to believe, but leaves room for doubt. Sifferman v. Sears, Roebuck \& Co., 906 S.W.2d 823, 828 (Mo.App. S.D.1995), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003).

In his July 10, 2013 report, Dr. Volarich stated: "(i)n order to maintain his current state, he will require ongoing care for his pain syndrome using modalities including but not limited to narcotics and non-narcotic medications (NSAID's), muscle relaxants, physical therapy and similar treatments ...". This language more than satisfies the "reasonable probability' standard. Employer shall be ordered to provide Claimant with future medical treatment.

In addition to those facts and legal conclusions to which the parties stipulated, I find the following facts and make the following rulings of law:

1. Claimant sustained an accident arising out of and in the course of his employment with Employer on October 27, 2009, while loading cardboard into a baler as part of his work for Employer; while performing this work task, Claimant picked up a large load of cardboard, twisted to put the load into the baler and noted immediate pain in his lower back.
2. Claimant suffered an accident and objective symptoms of injury as a result of a specific traumatic event occurring on October 27, 2009 while employed with Employer.
3. The work accident of October 27, 2009 was the prevailing factor in the cause of a lumbar injury with right lower extremity radiculopathy.
4. Claimant never returned to any employment since the October 27, 2009 work accident and injury.
5. Claimant has been unable to compete in the open labor market since October 27, 2009.
6. Temporary total disability or temporary partial disability benefits shall be paid throughout the rehabilitative process. Section 287.149.1, RSMo.
7. Claimant was engaged in the rehabilitative process until January 4, 2010.
8. An employee is disqualified from receiving temporary total disability during any period of time in which the claimant applies and receives unemployment compensation. Section 287.170.4, RSMo.

1. Claimant received unemployment compensation for seven weeks between October 27, 2009 and January 4, 2010.
2. Employer is responsible for the payment of awarded $25 / 7 weeks of temporary total disability benefits, totaling \ 971.42.
3. Prior to October 27, 2009, Claimant was working with significant disabilities due to prior back injuries, including lumbar syndrome.
4. Claimant's prior low back injuries resulted in permanent disability, and were of such seriousness as to constitute a hindrance or obstacle to employment or reemployment.
5. Claimant is unable to compete in the open market for employment.
6. Claimant is permanently and totally disabled.
7. The injuries sustained by Claimant in the October 27, 2009 accident were not sufficient to render Claimant permanently and totally disabled.
8. The injuries sustained by Claimant in the October 27, 2009 accident resulted in 20 % permanent partial disability of the body as a whole.
9. The injuries sustained by Claimant in the October 27, 2009 accident, in combination with the preexisting low back injuries, resulted in Claimant's permanent and total disability.
10. The Second Injury Fund is liable for permanent total disability benefits of $\ 357.89 per week for Claimant's lifetime, beginning January 5, 2010, subject to a credit for Employer's liability for 80 weeks of permanent partial disability benefits. After application of the credit, the Second Injury Fund's liability commenced on July 19, 2011.
11. Claimant required medical treatment in an attempt to cure and or relieve the effects of the work injury of October 27, 2009.
12. Employer had notice of the need for treatment, but failed and/or refused to provide the treatment.
13. Employer is liable to reimburse Claimant the amount of $\ 18,160.97 for past medical treatment.
14. Section 287.140, RSMo, requires an employer/insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail.
15. Claimant reasonably requires medical treatment to cure and relieve him from the effects of the October 27, 2009 injury.

Employer is ordered to pay Claimant the sum of $\ 28,631.20 for permanent partial disability benefits, the sum of $\ 971.42 for temporary total disability benefits and the sum of $\ 18,160.97 for medical benefits.

Employer is ordered to provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance, and medicines, as may reasonably be required to cure and relieve Claimant from the effects of the work-related injury.

The Second Injury Fund is ordered to pay Claimant the weekly amount of $\ 357.89 beginning July 19, 2011, for permanent total disability benefits.

Claimant's attorney, R. L. Veit, is allowed 25 % of all benefits awarded herein, including future benefits, as and for necessary attorney's fees, and the amount of such fees shall constitute a lien on those benefits.

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

Made by

/s/ Robert J. Dierkes 6/20/2017

Chief Administrative Law Judge

Division of Workers' Compensation