James Hood v. City of Kansas City, Missouri

Improve: James Hood

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Because we are convinced that the administrative law judge's findings with regard to the nature and extent of employee's disability are supported by the evidence on record, and because we agree, based on those findings, that employee's claim satisfies the statutory requirements for proving a claim of permanent total disability against the Second Injury Fund under § 287.220.2 RSMo, we decline to disturb the award of permanent total disability benefits against the Second Injury Fund.

**Conflation of the issues identified for hearing**

We note some apparent confusion as to the scope or nature of the issues identified at the hearing for determination by the administrative law judge. The parties asked the administrative law judge to determine "whether [employee] sustained an accident arising out of and in the course and scope of employment[.]" *Transcript*, page 3. This question, stated in this fashion, would appear to implicate at least two statutory elements of an employee's claim under Chapter 287. Specifically, the question whether employee sustained an "accident" implicates the statutory definition under § 287.020.2 RSMo, which provides as follows:

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

Meanwhile, the question whether employee's accident arose out of and in the course and scope of employment seemingly implicates § 287.020.3(2) RSMo, which provides, in relevant part, as follows:

(2) An injury¹ shall be deemed to arise out of and in the course of the employment only if:

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

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

In his award, the administrative law judge did not address either of the foregoing statutory provisions. Instead, he discussed the competing expert medical opinions in this case, found the opinions of Dr. P. Brent Koprivica to be more persuasive, and

¹ It is worth noting here, as we have in the past, that § 287.020.3(2) does not require an employee to prove an "accident" arising out of and in the course of employment, but rather an "injury" arising out of and in the course of employment; the distinction is not merely academic where both "accident" and "injury" have specific definitions for purposes of Chapter 287, and where we are required to strictly construe the provisions of the Missouri Workers' Compensation Law. See § 287.800.1 RSMo. We additionally note that the word "scope"—which seemingly implicates common law principles related to whether an employee's activities fall within the reasonable parameters of the employment relationship—does not appear in § 287.020.3(2).

Enployee: James Hood

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concluded employee "did suffer an accident arising out of and in the course and scope of employment." Award, page 7. In other words, the administrative law judge addressed and resolved the question of medical causation under § 287.020.3(1) RSMo, which provides, in relevant part, as follows:

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

At the hearing, the parties did not expressly identify, on the record, any issue of medical causation for the administrative law judge's consideration.

To summarize, we are now faced with a record where the parties appear to have asked the administrative law judge to consider and resolve at least two statutory tests, and an award wherein the administrative law judge resolved neither, but instead addressed and resolved a third question that was not expressly identified for trial. This is troubling because the courts have routinely cautioned us against delving into issues the parties have not specifically identified for hearing. See, e.g., Anhalt v. Penmac Pers. Servs., 505 S.W.3d 842 (Mo. App. 2016), concluding the Commission erred in considering, without additional proceedings, an issue of joint service where the parties did not specifically identify that issue at the hearing, but instead disputed the more general issue whether the employee's injuries arose out of and in the course of employment.

Here, we note that no party to this claim has specifically challenged the administrative law judge's choice to regard the issue identified as "whether employee sustained an accident arising out of and in the course and scope of employment" as one of medical causation; nor has any party suggested the administrative law judge's award is deficient for failure to consider or resolve either of the aforementioned statutory tests under §§ 287.020 or 287.020.3(2). We infer from these circumstances that employer and the Second Injury Fund effectively agree that those statutory tests, to the extent that they may have been implicated in this claim, are satisfied. For this reason, we will not further explore the issue whether the administrative law judge appropriately resolved the relevant issues, or exceeded his authority by delving into an issue that was not specifically identified.

We would, however, take this opportunity to remind the parties as to the critical importance of obtaining a statement of the particular issues in dispute that is not only complete, but precise in terms of the specific statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal.

Conclusion

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

The award and decision of Administrative Law Judge Lawrence Rebman, issued February 1, 2017, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 10^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: James Hood

Injury No: 14-018909

Employer: City of Kansas City

Kansas City, Missouri

Insurer: Self-insured

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

Hearing Date: November 8, 2016

Checked by: LGR/drl

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident or occupational disease under the law? Yes.
4. Date of accident or onset of occupational disease: February 21, 2014
5. State location where accident occurred or occupational disease was contracted: Kansas City, Jackson County, Missouri.
6. Was the above Employee in the employ of the above Employer at the time of the alleged accident or occupational disease? Yes.
7. Did the Employer receive proper notice? Yes.
8. Did the accident or occupational disease arise out of and in the course of employment? Yes.
9. Was Claim for Compensation filed within time required by law? Yes.
10. Was Employer insured by above insurer? Yes.
11. Was the accident alleged the prevailing cause of the injuries and need for medical care? Yes.
12. Describe work Employee was doing and how accident occurred or occupational disease was contracted: While in the course and scope of Employee's work, Employee sustained an injury to his neck and low back while mopping a floor for two and one half hours.
13. Did accident or occupational disease cause death? No. Date of death? N/A

Issued by DIVISION OF WORKERS’ COMPENSATION

Employee: James Hood

Injury No: 14-018909

1. Part(s) of body injured by accident or occupational disease: Neck and low back
2. Compensation paid to date for temporary disability: $\ 0
3. Value of necessary medical aid paid to date by Employer/Insurer? \$5,372.08
4. Value of necessary medical aid not furnished by Employer/Insurer? Undetermined
5. Nature and extent of permanent partial disability: 15 % to the low back
6. Amount of compensation paid for permanent partial disability: $\ 7,706.94
7. Employee’s average weekly wage: $\ 832.15
8. Weekly compensation rate: $\$ 554.77 / \ 446.85
9. Method of wage computation: By agreement
10. Second Injury Fund liability: Permanent Total Disability

1. Amount of compensation payable:

Fifteen (15) percent permanent partial disability of the body as a whole at a 400-week level from the employer. This would be a total of 60 weeks of compensation at the permanent partial disability rate of $\ 446.85 for a total of $\ 26,811.00

The employer is ordered to provide medical care that is necessary to cure and relieve Mr. Hood of the effect of the injuries of February 21, 2014.

1. Second Injury Fund liability:

The Second Injury Fund is liable for permanent total disability benefits from November 1, 2014 at the rate of $\ 554.77 per week for the remainder of Mr. Hood’s life or until he is no longer permanently and totally disabled. The Second Injury Fund is entitled to a credit of 60 weeks of permanent partial disability at the rate of $\ 446.85.

Compensation awarded to the Employee shall be subject to a lien in the amount of 25 % of all payments made in favor of Michael Downing for necessary legal services rendered to the Employee.

Employee: James Hood

Injury No: 14-018909

Employer: City of Kansas City

Kansas City, Missouri

Insurer: Self-insured

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

Hearing Date: November 8, 2016

Checked by: LGR/drl

On November 8, 2016, the Employee, the Employer, and the Second Injury Fund appeared for a final hearing before Administrative Law Judge Lawrence Rebman. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The employee, James Hood, appeared in person with counsel, Michael Downing. The employer, City of Kansas City, appeared through counsel, David M. Roberson. The Second Injury Fund appeared through counsel, Jacob Colling.

The parties stipulated that:

1. On or about February 21, 2014, the City of Kansas City, Missouri (employer) was an employer operating subject to the Missouri Workers' Compensation law and was self-insured;
2. Mr. James Hood (employee) was its employee working subject to the law in Kansas City, Jackson County, Missouri;
3. Mr. Hood sustained an injury by accident within the course and scope of his employment on February 21, 2014;
4. Mr. Hood notified his Employer of his injury and filed his claim for compensation within the time allowed by law;
5. Mr. Hood earned an average weekly wage of $\ 832.15;
6. Mr. Hood's average weekly wage is sufficient to render a compensation rate of $\ 446.85 for permanent partial disability and $\ 554.77 for permanent total disability.
7. Mr. Hood's medical expenses were paid in the full amount of $\ 5,372.08 by the employer.

1. Mr. Hood reached maximum medical improvement on May 5, 2014.

Claimant testified on his own behalf and presented the following exhibits, all of which were admitted into evidence without objection:

A Koprivica 60 Day 5-30-15 \& 10-8-15 with Exhibits

B Dreiling Deposition 3-28-16 with Exhibits

C Division of Workers' Compensation Records

Employer/Insurer did not call any witnesses to testify, but presented the following exhibits, which were admitted without objection:

1 Curriculum Vitae of Dr. Eden Wheeler, M.D.

2 Medical Report of Dr. Wheeler dated May 5, 2014

3 Visit Notes from Urgency Care dated March 13, 2014

4 Visit Notes from Urgency Care dated March 24, 2014

5 Visit Notes from Urgency Care dated March 27, 2014

6 MRI Report by State Line Imaging MRI dated May 1, 2014

7 SERC Physical \& Hand Therapy Dated April 11, 2014

8 SERC Physical \& Hand Therapy Dated April 14, 2014

9 SERC Physical \& Hand Therapy Dated April 17, 2014

10 SERC Physical \& Hand Therapy Dated April 18, 2014

11 SERC Physical \& Hand Therapy Dated April 21, 2014

12 SERC Physical \& Hand Therapy Dated April 23, 2014

13 SERC Physical \& Hand Therapy Dated April 25, 2014

14 SERC Physical \& Hand Therapy Dated April 28, 2014

15 SERC Physical \& Hand Therapy Dated May 2, 2014

16 SERC Physical \& Hand Therapy Dated May 5, 2014

17 SERC Physical \& Hand Therapy Dated May 7, 2014

18 Work Status Report dated April 8, 2014

19 Work Status Report dated April 29, 2014

20 Dr. Wheeler's Outpatient conclusion dated April 8, 2014

21 Dr. Wheeler's Outpatient conclusion dated April 29, 2014

22 Medical report of Dr. Reintjes, MD, dated June 13, 2014

23 Medical report of Dr. Reintjes, MD, dated July 18, 2014

24 Medical report of Dr. Reintjes, MD, dated July 25, 2014

Second Injury Fund did not call any witnesses to testify, but presented the following exhibit, which was admitted without objection:

1 James R. Hood January 21, 2016, Deposition

The parties requested the Division determine:

1. Whether Mr. Hood sustained an accident arising out of and in the course and scope of employment;
2. Nature and extent of disability from the current accident;
3. Employer's obligation to provide future medical care;
4. What is the liability of the Second Injury Fund for Permanent Partial or Permanent Total Disability, if any?

At the hearing, Mr. James Hood (hereinafter referred to as "Claimant") testified he was working as a stock clerk for the City of Kansas City on February 21, 2014 and was mopping the floor for about two-and-a-half hours. Mr. Hood testified that after mopping the floor he noticed the pain in his back once he sat down. He stated that once the muscles in his back relaxed the pain in his back intensified and he could hardly stand. Mr. Hood alerted his manager on February 21, 2014, and his manager asked if he wanted to go to the doctor. Mr. Hood stated: "Not right now because the pain usually subsides after a couple of days." After returning to work the following week, Mr. Hood informed his supervisor his back wasn't getting better and he was sent to urgent care to see Dr. Shafe. He was diagnosed with a lumbar strain and early symptoms of cervical radiculopathy. An X-ray of his spine was taken during this visit and he was informed he had non-work related arthritis in his neck.

Mr. Hood was placed on light duty and advised to apply heat to his lower back. He returned to urgent care on March 24, 2014, where he was referred to orthopedics as well as therapy and a cervical MRI. Mr. Hood was referred to Dr. Eden Wheeler and, after his initial assessment, Mr. Hood was advised to engage in conservative physical therapy. Hood was placed on a modified duty with a 50 pound light limit and the ability to change position at will. The MRI revealed changes to his back condition.

Claimant received conservative care and was reevaluated by Dr. Wheeler after an MRI was conducted and it was determined that Mr. Hood experienced a vocational exacerbation of his low pain with a prevailing factor to be a pre-existing lumbar chronic pain condition from his previous back surgery. Dr. Wheeler opined that Mr. Hood's symptoms were not work related, that his cervical problems had resolved, and that his low back condition had returned to pre-injury levels, and released Claimant from medical care and advised that he had reached Maximum Medical Improvement on May 5, 2014. In his evaluation by Dr. Koprivica, Mr. Hood denied telling Dr. Wheeler that his low back had returned to its pre-injury levels.

Claimant still was suffering from lumbar pain and went to see Dr. Stephen Reintjes, M.D., on June 13, 2014. Dr. Reintjes performed Claimant's back surgery in 1995 and Claimant testified that he had seen Dr. Reintjes sporadically for his back issue in the years that followed the surgery. During the June $13^{\text {th }}$ visit, Dr. Reintjes' impression was that he was suffering from

cervical and lumbar pain. He recommended Mr. Hood undergo physical therapy three times a week.

On July 18, 2014, Claimant saw Dr. Reintjes again and an MRI of his lumbar spine was ordered after Claimant complained about continuous lower back pain. Claimant reported during this visit that his upper back was feeling a lot better and the symptoms associated with his cervical radiculopathy were resolved.

On July 25, 2014, Mr. Hood returned to the office of Dr. Renitjes after undergoing an MRI. There was no evidence of a disc herniation or stenosis and the MRI showed a degenerative disc at the L5-S1. It was Dr. Reintjes' impression that Mr. Hood was suffering from chronic low back pain and recommended that he get evaluated for a lumbar fusion by Dr. Jason Montone. Claimant testified that Dr. Montone refused to evaluate him without a waiver of some kind because this injury was entangled in a workers' compensation claim.

Mr. Hood's last day of employment was October 31, 2014 when he took off to have a total knee arthroplasty for a non-work related injury. After he recovered from the November 5, 2014 surgery, he was informed that his position had been filled and that he did not have a job with the City of Kansas City. Mr. Hood filed for and is receiving long-term disability benefits. Mr. Hood has not been employed since October 31, 2014.

Based upon the agreement of the parties, the following issues are to be decided:

1. Whether Mr. Hood sustained an accident arising out of and in the course and scope of employment;
2. Nature and extent of disability from the current accident;
3. Employer's obligation to provide future medical care;
4. What is the liability of the Second Injury Fund for Permanent Total Disability, if any?

According to 287.020 RSMo: 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.

Mr. James Hood testified he was working as a stock clerk for the City of Kansas City on February 21, 2014. Mr. Hood was mopping the warehouse floor in the Aviation Department for about two-and-a-half hours. He noticed the pain in his back once he sat down. Later, Mr. Hood alerted his manager and he was seen by Dr. Shafe. Dr. Shafe diagnosed Claimant with a lumbar strain and early symptoms of cervical radiculopathy.

Dr. Koprivica examined and reviewed the medical records, including an MRI from February 2013 to compare the most recent MRIs to. Mr. Hood suffered a new structural injury at the L4-L5 and which, along with the new myofascial pain, is contributable to the 2014 injury. (Ex. A, pg. 24 of Koprivica Oct. 8, 2015 report) I find Dr. Koprivica to be more thorough and credible than Dr. Wheeler and adopt his findings and conclusions. Accordingly, I find that Mr. Hood did suffer an accident arising out of and in the course and scope of employment.

Dr. P. Brent Koprivica, M.D., examined Claimant and found significant pain with lumbar motion testing and that his lumbar flexion is 48 degrees, where a gross flexion should be 105 degrees. (Ex. A, pg. 26 of Dr. Koprivica's Oct. 8, 2015 report) Dr. Koprivica also noted that Claimant experienced low back pain while he performed seated and supine straight-leg-raise testing. (Ex. A, pg. 26 of Koprivica Oct. 8, 2015, report)

Dr. Koprivica opined that based on his examination and review of the medical records, including a previous MRI, Mr. Hood suffered a new structural injury at the L4-L5 which along with the new myofascial pain is contributable to the 2014 injury. (Ex. A, pg. 24 of Koprivica Oct. 8, 2015 report) Dr. Koprivica stated that in isolation he would consider Mr. Hood to be at fifteen (15) percent permanent partial disability to the body as a whole. (Ex. A, pg. 29 of Koprivica Oct. 8, 2015, report)

After considering all the evidence, including the medical records of Dr. P. Brent Koprivica, M.D., Dr. Eden Wheeler, and Dr. Steven Reintjes, and other medical evidence, the Claimant's testimony and observing his appearance and demeanor, I find and believe the Claimant has sustained fifteen (15) percent permanent partial disability to the body as a whole as the result of the accident on February 21, 2014.

Under the Missouri Workers' Compensation Law, a claimant must show that the need for medical treatment by reason of a compensable accident is a reasonable probability. Bowers v. Hiland Dairy Co., 132 S.W.3d 260 (Mo. App. S.D. 2004). "Conclusive evidence is not necessary to support a claim for future medical benefits, but, rather, it is sufficient to show the need is founded on reason and experience which inclines the mind to believe but leaves room for the doubt." Sullivan v. Masters Jackson Paving Co., 35 S.W. 3d 879 (Mo. App. S.D. 2001). "Once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury...The clear an unambiguous terms of Section 287.140.1 require nothing more than a demonstration that certain medical care and treatment is reasonably required to cure and relieve the effects of the injury." Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511 (Mo. App. W.D. 2011). A claimant need not show that the work accident is the prevailing factor in necessitating the recommended medical treatment. Id.

"[I]n determining whether medical treatment is 'reasonably required' to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition." Id. "A claimant can receive an award of future medical

benefits if a work injury aggravates a pre-existing condition to the point that the claimant is likely to need future care." Dierks v. Kraft Foods, 471 S.W.3d 726 (Mo App. W.D. 2015).

As discussed above, I find that the work injury of February 21, 2014, is the prevailing factor in causing additional injury to Mr. Hood's low back. Accordingly, all Mr. Hood must establish to support an award of future medical treatment is that the recommended treatment flows from his work accident and the resulting injuries.

The evidence presented indicates that Dr. Reintjes referred Mr. Hood to Dr. Montone for a possible fusion of his low back. Mr. Hood is not interested in this surgery. Dr. Koprivica noted that Mr. Hood was taking Oxycodone on an as-needed basis. Dr. Koprivica reports that Mr. Hood is expected to continue pain medication for his low back.

Mr. Hood has presented evidence that he will probably require additional medical treatment for his work injuries; and, therefore, the employer is ordered to provide medical care that is necessary to cure and relieve Mr. Hood of the effect of the injuries of February 21, 2014.

Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony. Id. at 199. The Second Injury Fund has no burden in producing any evidence; rather the Claimant must establish permanent total disability by introducing evidence. Teresa Carkeek v. Second Injury Fund, 352 S.W. 3d 604 (Mo App W.D. 2001) citing Clarks Harts Auto Repair, 274 S.W. 3d 612, 616 (Mo. App. 2009)

According to §287.220.3.2 RSMo enacted in 2013, the Claimant must meet the following conditions in order for the Second Injury Fund to be liable:

1. (1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

§ 287.220 RSMo 2014

The medical records, Division records and the records and opinions of Dr. Koprivica establish that Mr. Hood suffered the following medically documented pre-existing disabilities:

Mr. Hood submitted evidence that he had a 1995 work injury, Injury 95-030699, which settled for fifteen (15) percent permanent partial disability to the body as a whole. Ex. C. Dr. Koprivica opined that he suffered a fifteen (15) percent permanent partial disability to the body as a whole or had a disability of 60 weeks.

Mr. Hood submitted evidence that he had a 2008 work injury, Injury number 08-070559, which settled for twenty (20) percent permanent partial disability to the left shoulder at the 232 week level or 46.4 weeks of disability. (Ex. C.) Dr. Koprivica opined that Mr. Hood has a thirty-five (35) percent permanent partial disability of the left upper extremity at the level of the shoulder (232-week level) which pre-dated February 21, 2014. Dr. Koprivica opined that Mr. Hood has a seventeen and one-half (1 7-1 /2) percent permanent partial disability of the right upper extremity at the level of the shoulder (232-week level) which pre-dated the February 21, 2014 injury.

Mr. Hood submitted evidence that he had a 1997 work injury number 97-500220 which settled at 3.35 percent permanent partial disability of the body as a whole at the 400 -week level or 13.4 weeks of disability to the low back that pre-dated February 21, 2014. (Ex. C and Ex. A, pg. 30 of Dr. Koprivica's Oct. 8, 2015, report)

Mr. Hood has met the requirement that he has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is a direct result of a compensable injury as defined in section 287.020. RSMo.

Mr. Hood alleges that his compensable work-related injury combines with the preexisting disability to make him permanently totally disabled under the law.

Total disability is defined in the statute as an inability to return to any employment and not merely an inability to return to the employment in which the employee was engaged in at the time of the accident. See §287.020(6); Fletcher v. Second Injury Fund, 922 S.W.2d 402 (Mo. App. 1995); Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919 (Mo. App. 1982). Missouri Courts have made it clear that the test for permanent total disability is whether any employer in the usual course of business would reasonably be expected to employ the injured worker in her present physical condition. Boyles v. USA Reban Placement, Inc., 25 W.W.3d 418 (Mo. App. W.D. 2000).

Various factors have been considered by courts in attempting to determine whether an employee is permanently and totally disabled. It is not necessary that an injured employee be rendered, or remain, wholly or completely inactive, inert, or helpless in order to be entitled to receive compensation for permanent total disability. Maddux v. Kansas City Public Service Co., 100 S.W.2d 535 (Mo. 1936). An employee's ability or inability to perform simple physical tasks such as sitting, bending, twisting, and walking may prove that the employee is permanently totally disabled. Brown v. Treasurer of Missouri, 795 S.W.2d 479 (Mo. App. E.D. 1990). An employee's age may also be taken into consideration. Tiller v. 166 Auto Auction, 941 S.W.2d 863 (Mo. App. S.D. 1997).

Mr. Hood is a sixty-six (66) year old man. He has served in the National Guard for a total of 4 years and has over forty (40) years of experience in the labor market. (Ex. B. Dreiling Vocational report pg. 2-4) The claimant has 68 college credits. (Deposition of James Hood) The claimant has supervisory, leadership, and clerical experience from his time working at Marion Labs. (Ex. B pg. 22-23) Claimant also can operate several types of heavy machinery such as forklifts and cherry pickers. (Ex. B. Dreiling Vocational report pg. 5) The worked for the employer a stock clerk in a warehouse for the City of Kansas City. (Ex. B. Dreiling Vocational report pg. 7) The claimant is able to performed basic data entry. Id.

Based upon Mr. Hood's numerous disabilities, Dr. Koprivica limited repetitive or sustained activities above the shoulder girdle level and restricted the claimant's pulling and pushing activity on a constant basis. He did recommend that Mr. Hood perform functions more sedentary in nature and restrict lifting to ten pounds. (Ex. A, pg. 30 of Dr. Koprivica's Oct. 8, 2015 report).

Dr. Koprivica opines in his examination that "permanent total disability arises based on the synergism of combining the multiple pre-existing industrial disabilities." (Ex. A, pg. 32 of

Dr. Koprivica's Oct. 8, 2015, report) He goes on to state that if he hypothetically excluded to just the preexisting lumbar disability and the aggravation that occurred on February 21, 2014, he would deem the Claimant totally disabled. The evidence presented does not indicate that the February 2014 injury alone would have rendered the Claimant totally disabled.

Claimant's vocational expert, Michael J. Dreiling, opined that the claimant is permanently and totally disabled. (Ex. B. Dreiling Vocational report pg. 10) This opinion was based the assessment of Dr. Koprivica. (Ex. B. pg. 20) Mr. Dreiling did not review any employment records or his educational records. Id. He never tested the claimant's typing speed after the claimant claimed he had basic keyboarding skill and he never performed any vocational testing to deem the claimant capable of competing in the open labor market. (Ex. B. pg. 21-24) Mr. Dreiling's opinion is based on the restrictions provided in Dr. Koprivica's assessment. (Ex. B. pg. 20-27) Dr. Koprivica limited the claimant to lifting or carrying ten (10) pounds and that he limit his activity to a sedentary position. Dr. Koprivica also noted that the claimant needs to sleep through the day due to his lack of sleep during the night. Mr. Hood testified that his primary care physician prescribed him sleep medication to help him stay asleep during the night, but he does not take the medication.

The claimant also testified that he limits his activities of daily living but still operates his riding tractor to perform lawn work for limited periods of time. He also stated during the hearing that he still goes hunting but limits his activity.

Based on the evidence from Dr. Koprivica and Mr. Dreiling, which I find credible and adopt their respective findings, as well as Claimant's age, training and work history, it would not be reasonable to expect an employer to hire him because Mr. Hood has a 10lb lifting restriction, is limited in his ability to sit for more than 15 minutes and must rest during the day due to his inability to sleep properly at night. Therefore, the claimant, Mr. Hood, is permanently and totally disabled under the statute.

Based on the evidence offered, Claimant is awarded fifteen (15) percent permanent partial disability of the body as a whole at a 400 -week level from the employer. This would total of 60 weeks of compensation at his permanent partial disability rate of $\ 446.85 for a total of $\ 26,811.00.

Based upon the evidence that Mr. Hood suffered a compensable injury and suffered from a medically documented pre-existing work injury which resulted in over 50 weeks of disability and in combination with other work and non-work disability, the claimant is permanently and totally disabled and that the Second Injury Fund is liable for permanent total disability. The Second Injury Fund is liable for permanent total disability benefits from November 1, 2014 at the rate of $\ 554.77 per week for the remainder of Mr. Hood's life or until he is no longer permanently and totally disabled. The Second Injury Fund is entitled to a credit of 60 weeks of permanent partial disability at the rate of $\ 446.85.

The award of compensation is subject to a lien in the amount of 25 % to Michael Downing for necessary legal services rendered to the Claimant.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Hood

Injury No: 14-018909

It is so ordered.

Lawrence Rebman

Administrative Law Judge

Division of Workers' Compensation