Johnny Kittrell v. Townsend Tree Service

The award and decision of Administrative Law Judge Maureen Tilley, issued April 5, 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: Johnny Kittrell

Injury No. 12-085091

Dependents: N/A

Employer: Townsend Tree Service

Additional Party: N/A

Insurer: Ace American Insurance Co. c/o Gallagher Bassett

Hearing Date: December 5, 2016

Checked by: MT/kg

1. Are any benefits awarded herein? Yes.
2. Was injury or occupational disease compensable under Section 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 30, 2012.
5. State location where accident occurred or occupational disease contracted: St. Francois County, Missouri.
6. Was above employee in the employment of above employer at the time of the alleged accident or occupational disease? Yes.
7. Did the employer receive proper notice? Yes.
8. Did 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 the employer insured by above insurer? Yes.
11. Describe work Employee was doing and how accident happened or occupational disease contracted: Employee was working as a tree-trimming foreman for Townsend Tree Service. Employee was dragging brush. Employee tripped and fell onto his back and buttocks. Employee felt immediate pain in his low back and both legs.

1. Did accident or occupational disease cause death? No.
2. Parts of body injured by accident or occupational disease? Lumbar spine.
3. Nature and extent of any permanent disability: See Award.
4. Compensation paid to date for temporary total disability: $19,704.96 representing 66 weeks (some of the payment weeks were intermittent).
5. Value of necessary medical aid paid to date by Employer-Insurer: 134,738.28
6. Value of necessary medical aid not furnished by Employer-Insurer: 474.88
7. Employee's average weekly wage: 517.44.
8. Weekly compensation rate: 344.96 for both permanent partial disability and permanent total disability purposes.
9. Method of wage computation: By agreement.
10. Amount of compensation payable: See findings.
11. Second Injury Fund Liability: N/A
12. Future requirements awarded: Employer-Insurer are to provide Employee with future medical and psychiatric aid that flows from the injury of October 30, 2012.

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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: Daniel J. Walkenhorst.

On December 5, 2016, Johnny Kittrell appeared in person for hearing on his claim against the employer Townsend Tree Service and its Insurer, Ace American Insurance c/o Gallagher Bassett. Employee was joined by his attorneys, Daniel J. Walkenhorst and Ellen E. Morgan. The employer-insurer was represented by William Lemp. The record was left open for thirty days from the date of the hearing, for admission of additional evidence. Therefore, the record was closed on January 4, 2017. At the time of the hearing the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: On or about October 30, 2012, Townsend Tree Service was the employer of Employee and was operating under and subject to the provisions of Missouri Workers' Compensation Act and its liability was insured by Ace American Insurance Company c/o Gallagher Bassett.
2. Covered Employee: On or about October 30, 2012, Employee was an employee of Townsend Tree Service and was working under and subject to the provisions of the Workers' Compensation Act.
3. Accident: On or about October 30, 2012, Employee sustained an accident arising out of and in the course of his employment.
4. Notice: The employer received notice pursuant to law.
5. Statute of Limitations: The employee's claim was filed within the time allowed by law.
6. Average Weekly Wage and Rate: The average weekly wage of the employee was $\ 517.44 and the rate for temporary total disability and permanent total disability was $\ 344.96 and the rate for permanent partial disability was $\ 344.96.
7. Medical causation: Employee's orthopedic injury was medically causally related to accident or occupational disease but Employer-Insurer deny medical causation for any psychiatric/psychology through the date of hearing or need for such care in the future.
8. Medical aid furnished by Employer-Insurer: The Employer-Insurer paid \$134,738.28 in medical aid.
9. Medical Aid Furnished by Employer-Insurer: The employer-insurer paid $\ 19,704.96 representing 66 weeks (some of the payment weeks were intermittent) from October 30, 2012 through February 4, 2014. The parties also stipulated that there was an underpayment of TTD of $\ 3,062.40.

1. Previously incurred medical aid: Employee made a claim for previously incurred medical aid. The employer-insurer is disputing this claim as to: authorization, necessity and causal relationship.

1. Future medical aid: Employee is making a claim for future medical aid.
2. Medical causation: The employer-insurer is disputing the issue of medical causation regarding the issue of whether Employee needed psychiatric care and treatment.
3. Nature and extent of liability of the employer-insurer: The employee is making a claim for permanent total disability or, in the alternative, permanent partial disability.

The following exhibits were offered and admitted into evidence:

Employee's Exhibits:

1. Deposition Transcript of Dr. Dwight Woiteshek dated 3-4-15
2. Deposition Transcripts of Dr. Adam Sky dated 1-26-15 \& 12-4-15
3. Deposition Transcript of James England dated 3-10-15
4. Medical Records - Ste. Genevieve County Ambulance District
5. Certified Medical Records - Mineral Area Regional Medical Ct.
6. Certified Medical Records - Dr. James Coyle
7. Certified Medical Records - St. Luke's Hospital
8. Certified Medical Records - Neurological \& Electrodiagnostic Institute of St. Louis/Dr. Daniel Phillips
9. Certified Medical Records - Mercy Hospital/St. Louis
10. Certified Medical Records - Professional Imaging
11. Certified Medical Records - Farmington Sports \& Rehab Ctr.
12. Certified Medical Records - Parkland Health Center
13. Certified Medical Records - Dr. Andrew Wayne
14. Certified Medical Records - Advanced Ambulatory Surgical Care
15. Medical Records - B\&H Orthopedic Lab Inc.
16. Certified Medical Records - Iron County Medical Clinic
17. Certified Medical Records - MHHC
18. Certified Medical Records - Iron County Medical Center
19. Wal-Mart Pharmacy/prescription billing

Employer-Insurer Exhibits:

A. Deposition of Dr. James Coyle

B. Deposition of Dr. Robert Fucetola

C. Functional Capacity examination ordered by Dr. Coyle

D. Deposition of David Patsavas

As of the date of hearing, Employee was married to Misty Kittrell, and has three dependent children living at home, ages 20, 17 and 8. Employee was born on January 20, 1976, and was 40 years of age at the date of the hearing. He graduated from Caledonia High School in 1995, and while he was a star in physical activities, such as baseball and basketball, he described himself as a "poor" student in his academic classes. Employee has not received any vocational training or taken college courses.

When Employee first graduated from high school in 1995, he worked for a short time on the line at Little Tykes putting together plastic toys and later as a welder. He then worked for Botkin Lumber in Farmington, Missouri from the late part of 1995 through 2000, first as a laborer, and eventually working his way up to being a "working" supervisor. His duties at Botkin always involves handling lumber, including lifting 50 to 100 pounds on a frequent basis. He had no problems performing his duties at that job. In 2000, Employee went to work for Employer, Townsend Tree Service, as a tree trimmer, eventually rising to the position of foreman of a "crew." Townsend Tree Service contracted with utility companies to clear brush and tree limbs, etc. from utility lines, poles and right-of-ways.

For a period of about six months in 2006, when Employee was laid off from Employer, he worked for the Farmington Children's Home as an aide. His duties generally were to physically control and often restrain violent and out-of-control teenage children. He used his size and strength in this position to help maintain order when he had to, and did no teaching or counseling or other type of activity with the teenaged children. He was more of a "guard" than anything else. At the end of the approximately six month period, Employee was called back to work at Townsend and worked for the employer full-time until the date of injury.

On October 30, 2012, Employee was working as a tree-trimming foreman for Townsend Tree Service. Employee was dragging brush. Employee tripped and fell onto his back and buttocks. Employee felt immediate pain in his low back and both legs.

Before the injury, Employee considered himself in good physical condition. Employee led an active lifestyle.

After his injury on October 30, 2012, Employee was first seen at Mineral Area Regional Medical Center. Employee then came under the care of Dr. James Coyle, an orthopedic surgeon. Dr. Coyle prescribed pain medication and sent Employee to Dr. Andrew Wayne, a physiatrist, for care. The employee treated with a series of lumbar epidural steroid injections, a TENS unit, and aquatic therapy. These treatment methods were not helpful in any lasting way to Employee. After electrodiagnostic testing by Dr. Phillips, Dr. Coyle performed an L4-S1 lumbar fusion at St. Luke's Hospital. Initially, Employee had fewer lower extremity symptoms, but his back pain remained. He continued to treat with Dr. Coyle, and Dr. Coyle sent him back to Dr. Wayne for

more epidural shots. Employee continued to have severe back pain and intermittent pain in his legs, particularly his left leg.

In January of 2014, Dr. Coyle ordered a functional capacity evaluation. The evaluator asked Employee to perform tasks he knew he could perform without pain, such as crawl on the ground or climb a ladder, and Employee refused to do those tasks. Employee stated that he gave his full effort at the FCE. Dr. Coyle found Employee to be at maximum medical improvement on January 22, 2014. Dr. Coyle did not provide him with pain management or prescriptions for his pain. Employee then came under the care of his primary care physician, Dr. Harry Harness, and his nurse care practitioner, Michelle Allen, at Iron County Medical Center, where he was prescribed medications for his depression, anxiety and pain. Employee paid for these prescription medications.

Employee did have a prior problem with alcohol, but he has been clean and sober (and stopped smoking) since he was 24 years old. Prior to the work-related injury, he never had any back pain, or back injury, he never had medical treatment before the work-related injury for his low back and he always worked full time.

Employee testified he would not be able to return to work duties at Townsend Tree Service because of physical requirements far exceeding his capabilities. Employee did attempt to apply for one of his previous jobs working with developmentally disabled teenagers. However, he was told he would not qualify, because of physical requirements associated with restraining these individuals and that he would be a liability.

On the date of hearing, Employee testified that he had looked for some other employment, such as at Lowe's. He has not recently looked for any type of work.

Employee testified as to both physical limitations and emotional issues associated with his injury and treatment. Employee stated that he is incapable of performing most physical activities and unable to support his family. Employee testified that after the accident, he has had suicidal thoughts, felt useless, and has had depression.

Employee now lives with continuous back and leg pain, and anxiety and depression. He cannot watch his daughter (who is a cheerleader) at school because he cannot sit on the bleachers. He cannot do the outside yard work. He cannot bend over to work on his cars, something he had always done previously; he cannot sleep a full night, employee sleeps only two to three hours at a time at night because of pain; employee naps two to three times a day; and Employee spends most of his day sitting at home. Employee can use the family computer for checking the internet, but has no other real computer skills.

Employee's Exhibit " 1 " is the deposition of Dr. Dwight Woiteshek. Employee saw Dr. Woiteshek at the request of his attorney on May 16, 2014. Dr. Woiteshek diagnosed the work

related injury as "traumatic disc extrusions at L4-5 and L5-S1, status post-surgery at the direction of Dr. Coyle relating thereto; traumatic retrolisthesis with disc protrusions at L1-2 and L3-4, also a disc protrusion at L2-3, non-surgical." He did not set forth any specific work restrictions. He set forth his opinion "within reasonable degree of medical certainty that Johnny Kittrell is no longer employable in the open labor market...Johnny Kittrell is permanently and totally disabled and unable to return to any employment due solely to the work related injury on October 30, 2012..."

While he did not believe Employee was a candidate for additional surgery, Dr. Woiteshek believed that Employee would require additional conservative treatment to cure and relieve him from the effects of the injury of October 30, 2012, including, but not limited to, pain management, physical therapy, and prescription and over-the-counter medications.

Employee's Group Exhibit " 2 " is two depositions of Dr. Adam Sky, the first taken on January 26, 2015 and the second on December 4, 2015. Dr. Sky is a board-certified psychiatrist with an active psychiatric practice. Prior the work injury of October 30, 2012, Employee told Dr. Sky he had never seen a psychologist, psychiatrist or other mental health professional for treatment or care of any kind. In his report based upon the September 8, 2014 evaluation, Dr. Sky reported Employee was "doing fine" before the accident; but as a result of the persistent pain and decreased physical abilities, he had become extremely depressed. Employee could no longer lift weights, practice martial arts, run the long distances of five to ten miles, hunt and fish, or play with his children as he would like to do and as he had done before the injury. Employee had constant lower back and leg pain, at times so severe Employee had even entertained suicidal thoughts. When he was alone, he felt "worthless" and anhedonic, not able to enjoy life. The medications Employee was taking were Citalopram (Celexa), an anti-depressant, ( 5 mg , the maximum recommended dose), Buspirone 10 mg , three times a day, for anxiety, Parafon Forte, an anti-inflammatory, for pain, and Gabapentin, for chronic pain. Employee took no psychiatric medications before the work injury.

Dr. Sky's mental status exam of Employee showed thought content was notable for lots of frustration relative to Employee's physical condition and lack of ability to function physically as he previously had. Employee felt like he couldn't enjoy life. Employee's sleep habits were poor. He would have to get up after a few hours of sleep because of pain and he had very poor sleep; getting up after a few hours due to pain and having to take naps during the day. Dr. Sky's administration of the Montgomery-Asberg Depression Rating Scale showed a score of 30 which was consistent with a moderate to severe major depressive disorder. Dr. Sky diagnosed Employee with major depression, moderate single episode. He found that on the Global Assessment of Functioning, the GAF, Employee was functioning at a range of 51-60 out of a scale of 100 .

Dr. Sky explained that the Montgomery-Asberg Depression rating scale is a very commonly used screening tool for depression, in the psychiatric treating community.

Dr. Sky concluded the prevailing cause of Mr. Kittrell's psychiatric symptoms and diagnosis was the October 30, 2012 accident at work. He found Employee had a 35\% permanent, partial psychiatric disability to the body as a whole; the prevailing cause was the work-related accident of October 30, 2012. While Dr. Sky believed Employee had reached psychiatric maximum

medical improvement, Employee would likely require ongoing psychiatric and psychopharmacologic treatment to maintain his current degree of functioning. The psychiatric treatment would likely be indefinite, particularly relative to the need for anti-depressants and/or anxiolytics. Dr. Sky found no evidence of pre-existing psychiatric condition which would have been exacerbated or contributing to his current work-related psychiatric presentation.

In Dr. Sky's second deposition of December 4, 2015, Dr. Sky opined that the evaluation by Employer-Insurer's neuropsychologist, Dr. Robert Fucetola, failed to take into consideration Employee's "very prominent neurovegetative symptoms and clinical presentation," minimizing Employee's persistent feelings of sadness, unhappiness, and anhedonia, all core clinical symptoms of depression.

Dr. Sky did not render an opinion as to Employee's current work capacities given his lack of qualification as a vocational expert.

Employee's Exhibit " 3 " is the deposition of James England. Employee was evaluated by Mr. England at his attorney's request. Mr. England testified that he is a certified rehabilitation counselor that has worked in the field of vocational rehabilitation since 1979. He testified that he has performed vocational rehabilitation evaluations on behalf of employees, employers and the Second Injury Fund and CARO. He has testified in all types of cases as a vocational expert.

Mr. England indicated that as of the date of his evaluation with Employee, Employee's medicines included Hydrocodone three times a day for pain. He took Celexa daily for depression and Buspar for anxiety medication.

Employee told Mr. England his worst pain is in the low back below the fusion level going into his right leg down to the buttocks and thigh, with numbness in that same area of the right leg as well as in his left foot and that sometimes his left leg had similar symptoms. Employee stated that he could be on his feet only about 15 minutes at a time and could walk a block before he needed to rest. He couldn't bend over more than about 20 degrees without dramatic increase in pain and avoided kneeling or squatting because he would have trouble getting up and he would lose his balance. Employee can sit only about 10-15 minutes in most chairs, he can climb only a few steps at a time and he can drive around 20 minutes before he needs to get up and move about. Employee told Mr. England he was very depressed and at times he is extremely anxious.

Mr. England concluded that Employee would not have any transferable skill below a medium level of exertion with that being operation of the truck or some of his past welding.

Mr. England gave Mr. Kittrell the Wide-Range Achievement Test, Revision 3. He scored at the seventh-grade level on reading and the sixth-grade level on math. Mr. England concluded that would be adequate for entry-level positions, but he would need some remediation if he were going to apply for a job that required more than basic academic skills, but given the functional limitations that Employee described, the FCE that demonstrated Employee had the ability to function at least at a part-time basis in the light work demand level with occasional lifting of 23 pounds and pushing or pulling of 50-60 pounds, Dr. Coyle's restrictions of lifting no more than 23 pounds, no pushing or pulling of more than 50 pounds, he felt Employee was no longer

Improve your employment and your ability to work in a job. Employer job security is a key component of the work environment. Employers must be well-prepared to work in a job. Employers must be well-prepared to work in a professional environment. Employers must be well-prepared to work in a professional environment. Employers must be well-prepared to work in a professional environment.

employable in the open labor market and was permanently and totally disabled and unable to return to any employment as a result of the work injury of October 30, 2012.

Mr. England testified that the restrictions recommended by Dr. Woiteshek were substantial and noted that the need to take frequent breaks would be a problem with any type of employment. He testified that the different injuries that Employee had would be a hindrance to his employment.

He testified that Employee is unemployable in the open labor market. He testified that it was not likely Employee would be able to find a job with his serious physical restrictions and psychiatric problems. He testified it was the last accident alone that made Employee unemployable

Employee's Exhibit " 4 " is copies of records of Ste. Genevieve County Ambulance District for the transport of the employee on the date of injury, October 30, 2012, from the injury scene to Mineral Area Regional Medical Center.

Employee's Exhibit " 5 " is copies of the records of the Mineral Area Regional Medical Center. Employee was taken to this facility's Emergency Room on the date of injury. In the emergency room, Employee reported severe low back pain in the lumbar spine/sacrum/coccyx area. He also twisted his left elbow. The pain in the left elbow was mostly soft tissue discomfort. A CT scan of the lumbar spine showed an old compression fracture of LI, old limbus fracture L2, and no fractures at the L5-S1 articulating facets. X-rays of the sacrum/coccyx showed anterior angulated distal tip of the coccyx and degenerative changes in the facets at L5-S1. Left elbow X-rays were negative.

Employee's Exhibit " 6 " is records from Dr. James Coyle, an orthopedic spine surgeon. Dr. Coyle's records reveal that on November 5, 2012, Employee was first seen by Dr. Coyle for treatment of the low back injury. Employee denied any prior low back injuries, symptoms, or treatment to Dr. Coyle. Employee told Dr. Coyle that before the accident he was normally very active and physically fit, without any low back pain or problems, but that after the accident Employee complained of low back pain with intermittent radiation to both lower extremities; the right was worse than the left, and that 90-95 % of his pain was in his back. Because of Dr. Coyle's findings and Employee's complaints, Dr. Coyle recommended an MRI. Employee was given prescriptions for a Medrol Dosepak and Soma. Dr. Coyle believed the work injury was the prevailing factor causing Employee's current condition and need for treatment. After the MRI and other films, Employee followed up with Dr. Coyle on November 12, 2012. Dr. Coyle had a compensatory trunk shift in forward flexion slightly to the left. His pain was localized at the lumbosacral junction. He had right-sided sciatic to the mid-thigh. He reported some improvement from the Medrol Dosepak. Review of the sacral and coccyx films showed an anteverted coccyx but no obvious fracture. The MRI showed multilevel disc abnormalities, L5 pars defects, and listhesis with neuroforaminal narrowing. There was no evidence of sacral fracture or marrow edema. Dr. Coyle recommended conservative treatment consisting of aquatic therapy, pain management, and rehabilitation with physiatry including epidural steroid injections with Dr. Andrew Wayne. Employee continued to be unable to work. He returned to Dr. Coyle on January 15, 2013, with complaints of back pain with right-sided sciatica to the posterior thigh and calf. He had a positive straight leg raise on the right. It appeared he had an L5 radiculopathy. Dr. Coyle recommended an EMG/NCS followed by an epidural steroid injection with Dr. Daniel Phillips, M.D. Performed on January 16, 2013, the studies showed evidence for

mild right and very mild left, chronic L5 radiculopathy. Dr. Coyle sent Employee back to Dr. Wayne for another steroid injection.

Employee returned to Dr. Coyle on February 12, 2013. Employee was unable to stand upright or sit for any prolonged period of time. Dr. Coyle's reviews of the films again revealed evidence of disc pathology at L2-3, L3-4, L4-5, and L5-S1 with an extruded disc at L4-5 and L5-S1 and isthmic spondylolisthesis at L4-5. At this point, Dr. Coyle recommended a lumbar decompression and fusion at L4-5 and L5-S1. There were degenerative levels above this, but Dr. Coyle thought these should not be included. Dr. Coyle told Employee that after the surgery, he might not be able to go back to tree trimming. Dr. Coyle performed an L4-S1 lumbar decompression and arthrodesis on April 4, 2013 at St. Luke's Hospital. The anterior approach was performed by Dr. Scott Westfall. The post-operative diagnoses were L4-5 retrolisthesis and L5-S1 spondylolysis with right L4-5 and L5-S1 lumbar disc herniation and right lower extremity radiculopathy. Employee was discharged from Mercy on April 12, 2013, eight days after the surgery. Employee was told to wear a back brace and not to drive.

Employee followed up with Dr. Coyle on May 5, 2013, and noted significant improvement in his lower extremity symptoms but some residual back pain. Straight leg raise test was negative, but he had tight hamstrings bilaterally. By August 8, 2013, his lower extremity symptoms had resolved. He had some residual back pain. He had a negative straight leg raise test. His motor strength and sensation were intact in his lower extremities. His medication was changed to Naprosyn; Prevacid and Elavil were prescribed. He was able to lift up to 25 pounds and use no vibrating equipment. On the October 28, 2013 return visit to Dr. Coyle, Employee complained of intermittent left lower extremity pain and constant low back pain. He was able to forward flex to about $60^{\circ}$. His right leg was improved. Employee returned to Dr. Coyle on November 20, 2013, with continuing significant back pain above his fusion at approximately L3-4 and intermittent shooting pains in the left lower extremity. A CT scan ordered by Dr. Coyle showed a solid fusion from L4 through S1, and spondylitic changes at L3-4. There was disc pathology at every level in the lumbar spine. Dr. Coyle recommended additional selective facet injections with Dr. Wayne.

On January 22, 2014, Employee followed up with Dr. Coyle. He reported continued back pain above his fusion. His leg pain was largely resolved with the exception of intermittent left lower extremity symptoms. A CT scan revealed a solid fusion L4 through SI with arthritic changes at L3-4. He also had degenerative changes at Ll-2 and L2-3. Dr. Coyle recommended against further surgery, feeling the employee had completed rehabilitation and had a solid fusion. Dr. Coyle placed Employee at maximum medical improvement, with recommendations that he watch his weight and concentrate on ongoing core strengthening exercises. Dr. Coyle ordered a functional capacity evaluation. Dr. Coyle reviewed the FCE on January 30, 2014. Dr. Coyle stated that the FCE revealed Employee demonstrated the ability to function on at least a parttime basis in the light work demand level with occasional lifting of 23 pounds and pushing and pulling 50-60 pounds. Based on the FCE, Dr. Coyle recommended restrictions of no lifting greater than 23 pounds and pushing or pulling of 50 pounds and that Employee was able to frequently reach and occasionally have lower level movements and stair climbing.

On February 27, 2014, Dr. Coyle rated Mr. Kittrell at 25\% partial, permanent disability for his lumbar spine based on the body as a whole.

Employee's Exhibit " 7 " is the records of St. Luke's Hospital, where Employee was operated on by Dr. Coyle on April 7, 2013. This exhibit contains the operative notes.

Employee's Exhibit " 8 " is the records of the Neurological \& Electrodiagnostic Institute of St. Louis/Dr. Daniel Phillips. At the request of Dr. Coyle, Dr. Phillips, a neurologist, performed electro-diagnostic studies, an EMG and nerve conduction studies, on January 16, 2013. The studies showed evidence for mild right and very mild left, chronic L5 radiculopathy.

Employee's Exhibit " 9 " is a copy of the records of Mercy Hospital/St. Louis. This exhibit contains radiological records pre-surgery and records of an evaluation for pre-surgery clearance.

Employee's Exhibit " 10 " is a copy of the records of Professional Imaging, where a CT scan of November 20, 2013, and an MRI of November 5, 2012, was performed. The records include the radiologist's interpretations of the studies.

Employee's Exhibit " 11 " is a copy of the records of Farmington Sports and Rehab Center where Employee underwent physical therapy .

Employee's Exhibit " 12 " is a copy of the records of Parkland Health Center, where Employee underwent physical therapy.

Employee's Exhibit " 13 " is a copy of the records of Dr. Andrew Wayne. Dr. Wayne is a physical rehabilitation specialist, a physiatrist. Employee first saw Dr. Wayne on November 20, 2012. Employee reported he had had only slight benefit from therapy and temporary relief with the Soma, and that the Medrol Dosepak had helped somewhat. Employee's complaints to Dr. Wayne were lower back pain and pain, numbness, and weakness in both legs. Dr. Wayne's examination showed lumbar motion was 50 % of normal for flexion, 25 % of normal for extension, and 60 % of normal for bilateral side bending, with reported pain in all directions and generalized tenderness in the lower lumbar region, mainly from L4 through S1, slightly more on the right side. Dr. Wayne's impressions were status post lumbosacral sprain/strain injury that occurred on October 30, 2012, and radiographic evidence of multilevel disc protrusions/herniations, most notably at the L3-4, L4-5 and L5-S1 levels. Dr. Wayne did not believe there was any clear-cut fracture in the lumbar spine, and he characterized the L3-4 listhesis as a degenerative type of spondylolisthesis. Aquatic therapy was prescribed, and a TENS unit was ordered. Dr. Wayne performed a right L4-5 interlaminar epidural steroid injection. Dr. Wayne's restrictions for Employee included no lifting over 10 pounds and to avoid frequent bending at the lower back. Employee next saw Dr. Wayne on December 14, 2012. Employee reported he had had only two to three days' worth of good relief from the ESI, but that after that, his symptoms returned. Aquatic therapy was continued. A right L4-5 transforaminal ESI/block was performed on December 17, 2012, but Employee only had a few days relief from the pain. On December 31, 2012, a third injection was given, but, after two

days, Employee's symptoms returned to pre-injection levels. Employee followed up with Dr. Wayne on January 10, 2013. Aqua therapy helped for about two hours. The TENS unit no longer helped. Dr. Wayne told Employee he had nothing else to offer him in the way of conservative treatment. Dr. Wayne gave Employee restrictions of no lifting over 10 pounds, and he was to alternate between sitting and standing. At Dr. Coyle's request, Dr. Wayne performed another right L5-S1 transforaminal ESI on January 28, 2013, but as with the other injections, Employee's relief was transitory.

On December 16, 2013, at Dr. Coyle's request because of the continuing problems at L3-4, Dr. Wayne performed a bilateral L3-4 facet injection. Mr. Kittrell had moderate relief after the shots, and Dr. Wayne repeated the bilateral L3-4 facet injections on January 14, 2014. Mr. Kittrell reported the injections given on December 16, 2013, had helped him moderately, but the symptoms returned after one week. The current pain was slightly worse on the left lower back around the L3-4 distribution. Employee was to follow up with Dr. Coyle.

Employee's Exhibit " 14 " is a copy of the records from Advanced Ambulatory Surgical Care, where Dr. Andrew Wayne performed the many epidural steroid injections Employee received.

Employee's Exhibit " 15 " is a copy of records from B\&H Orthopedic Lab, Inc.

Employee's Exhibit " 16 " is a copy of the records of Iron County Medical Clinic/Dr. Joseph Camire.

Employee's Exhibit " 17 " is a copy of the records of MHHC/Michelle Allen/Dr. Harry Harness, Employee's primary physicians at the time of the injury, and from the late 2000's until at least March 5, 2014. Prior to October 30, 2012, the records reflect no treatment for back pain or problems or treatment for same. On November 1, 2012, Employee was seen at MHHC by Michelle Allen, a certified nurse practitioner, for follow-up treatment for the work injury. Employee reported to Ms. Allen that he had a fall at work, and that he hurt his back, and that he had been seen in the Emergency Room at Mineral Area Regional Medical Center and put on muscle relaxers and pain medication. Employee complained that his back continued to hurt; he had numbness and tingling sensations that went down both of his legs; and that he was unable to sit for any length of time due to increased pain; or stand erect.

Dr. Harness and Ms. Allen treated Employee for his pain and psychiatric issues related to the work injury, and prescribed medications for him from February 26, 2014, through May 12, 2015, including all of the prescriptions for sequelae for the work injury including Ibuprofen 800 mg., Citalopram, Buspirone (Buspar), Gabapentin and Hydrocodone/Acetaminophen, as also laid out in Employee's Exhibit 19, the prescription billing records from Wal-Mart.

The records reflect a return visit by Employee to Ms. Allen on February 25, 2014, and complained of an increase in his depressed mood and back pain. The assessments were backache, depression, insomnia, and anxiety disorder NOS. Celexa was prescribed.

Employee's Exhibit " 18 " is a copy of the records of Iron County Medical Center/Dr. Robert Perry where Employee was treated for depression and anxiety.

Employee's Exhibit " 19 " is a copy of Wal-Mart Pharmacy/prescription billing reflecting the prescriptions for pain and psychiatric medication prescribed by Iron Mountain Medical Clinic and MHHC between January 2, 2014, and May 12, 2015. These included; Ibuprofen 800 mg ., Citalopram, Buspirone (Buspar), Gabapentin and Hydrocodone/Acetaminophen.

Employer-Insurer's Exhibit "A" is the deposition of Dr. James Coyle. Dr. Coyle treated Employee and evaluated Employee at the request of Employer and Insurer. Following the FCE, Dr. Coyle thought Employee could work within the restrictions set forth in the FCE. As to his permanent partial disability rating of 25 % body as a whole, Dr. Coyle said the rating was for the fusions at the L4-5 and L5-S1 levels only, as any problems at L2-3 and L3-4 were not referable to his work injury. Dr. Coyle stated that the employee had other things going on "unrelated to the fusion," as the fusion was solid. The "other things" might be problems at additional levels. Dr. Coyle's diagnosis at deposition was "acute L4-5 disc herniation in the context of four level degenerative disc disease, chronic retrolisthesis L4-5, chronic disc pathology and spondylolysis at L5-S1, with a decompression L4-5, L5-S1 with a posterior anterior fusion."

Dr. Coyle expressed concern that the employee was significantly worse off, at least subjectively, at the evaluation on February 11, 2015, as opposed to the release on January 28, 2014. He noted that at the time of the initial release in January of 2014 he told the employee and his wife that he would be happy to perform any additional evaluations, however this did not occur.

As to the elevated complaints in February 2015 as opposed to the release in January of 2014, Dr. Coyle expressed some frustration that the employee had not given him an opportunity to undertake any additional testing or treatment. Further, that with regard to the deterioration of symptoms, he suspected "there is something else going on, that is unrelated to the lumbar fusion."

In cross-examination, Dr. Coyle testified that even with degenerative disc disease at four levels in his lumbar spine, there were no records or medical history of any back pain, symptoms or medical treatment in/for Employee's lumbar spine before the injury.

Dr. Coyle also testified that a concurrent mental state, such as depression, can affect a person's perception of pain, and that pain can cause or exacerbate a depressive state.

Dr. Coyle felt the employee was employable within the restrictions set forth in the functional capacity evaluation.

Employer-Insurer's Exhibit "B" is the deposition of Dr. Robert Fucetola. Dr. Fucetola is a psychologist associated with Washington University in St. Louis - School of Medicine. He evaluated the employee at the request of the employer-insurer on April 14, 2015. His assessment was somatic symptom disorder, given evidence of excessive reporting of pain and functional disability. He made reference to mild symptoms of anxiety and depression, though indicating these would not be expected to limit occupational functioning in a significant way. He did not

believe any further psychological treatment would be indicated and assessed no evidence of permanent disability from a psychological standpoint. He questioned Dr. Sky's conclusions, given a lack of symptom validity measures relating thereto. Dr. Fucetola did not believe there would be any psychological disability associated with the injury of October 30, 2012.

Dr. Fucetola's deposition took place on October 12, 2015, at which time he testified in accord with his report.

In comparing the employee's reported symptoms versus his evaluation, Dr. Fucetola testified:

"Well, I thought they were quite inconsistent. So he's, again, reporting an extreme level of emotional problems, depression, anxiety and so forth on the testing, which I saw no behavioral evidence of in the three hours I spent with him. And Mr. Kittrell also did not report himself that emotional problems like depression and anxiety, while being treated, were actually interfering with his day to day functioning. He never said I can't do this because I'm too depressed or anxious, in other words."

Dr. Fucetola pointed to diagnostic testing in conjunction with his evaluation, indicating the employee was over reporting. He suggested this also occurred in the context of the functional capacity evaluation.

Employer-Insurer's Exhibit "C" is a copy of a functional capacity evaluation ordered by Dr. Coyle demonstrated the ability to function on at least a part-time basis in the light work demand level with occasional lifting of 23 pounds and pushing and pulling 50-60 pounds occasionally. The examiner noted Employee would not crawl or climb a ladder when requested to do so, and the examiner believed Employee failed 8 out of 15 validity criteria, so the evaluation overall was deemed invalid.

Employer-Insurer's Exhibit "D" is the deposition of David Patsavas, a vocational rehabilitation counselor retained on behalf of Employer-Insurer. Based on Dr. Coyle's restrictions and extensive labor market surveys, Mr. Patsavas opined that the employee would be capable of employment in the open labor market within the sedentary, light and/or medium category of physical demands.

On cross examination, Mr. Patsavas admitted that he did his labor market surveys by going on websites and using the employer's job descriptions off of the websites in his evaluation. He agreed that he cut and pasted the jobs into his report. Mr. Patsavas agreed that he was looking for things that he thought the employee could do; however, he did not look in-depth into the jobs, to see the effect that being on medication would have on those jobs. Also, Mr. Patsavas agreed that taking narcotic medication could prevent Employee from being hired by some employers.

The employee is requesting previously incurred medical aid and future medical aid. Under Section 287.140 RSMo, the employee is entitled to receive all medical treatment that is reasonably required to cure and relieve him from the effects of the work-related injury. In Landers v. Chrysler Corporation, 963 S.W.2d 275 (Mo. App. 1997), the Court held that it is sufficient to award medical benefits if the employee shows by "reasonable probability" that he is in need of additional medical treatment by reason of his work-related accident. Section 287.140.1 does not require that the medical evidence identify specific procedures or treatments in the future. See Talley v. Runny Meade Estates, Ltd., 831 S.W.2d 692, 695 (Mo. App. 1992).

When Employee was released at MMI by Dr. Coyle on January 22, 2014, Dr. Coyle did not prescribe additional pain medication. Based on the FCE, Dr. Coyle recommended restrictions of no lifting greater than 23 pounds and pushing or pulling of 50 pounds and that Employee was able to frequently reach and occasionally have lower level movements and stair climbing.

Dr. Fucetola did not believe there would be any psychological disability associated with the injury of October 30, 2012. Dr. Fucetola, a psychologist, indicated no further treatment would be necessary as a result of this injury.

Dr. Sky opined that there was no evidence of pre-existing psychiatric condition which would have been exacerbated or contributing to his current work-related psychiatric presentation. Dr. Sky believed Employee would likely require ongoing psychiatric and psychopharmacologic treatment to maintain his current degree of functioning.

Employee saw Dr. Woiteshek for an Independent Medical Evaluation on May 16, 2016. Dr. Woiteshek believed that Employee would require additional conservative treatment to cure and relieve him from the effects of the injury of October 30, 2012, including, but not limited to, pain management, physical therapy, and prescription and over-the-counter medications.

I find the opinions of Dr. Woiteshek and Dr. Sky to be more persuasive on the issue of Employee's need for additional care, including the need for prescription medication, than the opinion of Dr. Coyle and Dr. Fucetola, on this issue.

I find that there is a "reasonable probability" that Employee will be in need of future medical aid. I also find that the employee is in need of additional medical care to cure and relieve him from the effects of the October 30, 2012 work accident and injuries. The employer-insurer is ordered to provide to the employee all the medical treatment that is reasonable and necessary to cure and relieve him from the effects of his work-related injury pursuant to Section 287.140 RSMo, including but not limited to the treatment recommended by Dr. Woiteshek and Dr. Sky.

Dr. Coyle released Employee from his care on January 22, 2014. Dr. Coyle did not prescribe pain medication to Employee after he released Employee from his care. After he was released from Dr. Coyle's care, Employee needed to seek treatment for his work injury elsewhere because Dr. Coyle, the authorized treating doctor, no longer prescribed him necessary medication. Therefore, Employee needed to seek treatment elsewhere in order to obtain prescription medication necessary to cure and relieve the effects of Employee's injury. Employee sought treatment at MHHC and from Iron County Medical Clinic. At these visits, medication was prescribed for various health issues and issues related to Employee's work injury. Some of the prescriptions referenced in Employee's Exhibit 19 were necessary to cure and relieve the effects of the injury. These medications include: Citalopram, Buspirone, Chlorzoxazon, Ibuprofen, Gabapentin, and Hydrocodone/Acetaminophen. Furthermore, I find that the need for the medication was medically causally related to Employee's injuries that were sustained from the work accident that occurred on October 30, 2012. The medications that Employee will not be reimbursed for are Lisinopril and Gemfibrozil, which are not related to Employee's work-related injury. The employee requested reimbursement in the amount of $\ 700.00. However, the expenses were in the amount of $\ 474.88, for the medication related to the work injury. The medication not related to the work-injury totaled $\ 370.11. (The print out in Employee's Exhibit 19 totaled $\ 844.99 in medical expenses). Based on all of the evidence presented, EmployerInsurer is directed to reimburse Employee $\ 474.88 in out-of-pocket expenses for prescription medication at Wal-Mart as reflected in Employee's Exhibit 19.

Employee credibly testified that after the accident, he has had suicidal thoughts, felt useless, and has had depression.

Dr. Fucetola evaluated Employee on behalf of the employer-insurer. Dr. Fucetola's assessment was somatic symptom disorder, given evidence of excessive reporting of pain and functional disability. Dr. Fucetola made reference to mild symptoms of anxiety and depression, though indicating these would not be expected to limit occupational functioning in a significant way. He did not believe any further psychological treatment would be indicated and assessed no evidence of permanent disability from a psychological standpoint.

Dr. Sky concluded the prevailing cause of Employee's psychiatric symptoms and diagnosis was the October 30, 2012 accident at work. Dr. Sky opined that Employee would likely require ongoing psychiatric and psychopharmacologic treatment to maintain his current degree of functioning. The psychiatric treatment would likely be indefinite, particularly relative to the need for anti-depressants and/or anxiolytics. Dr. Sky found no evidence of pre-existing psychiatric condition which would have been exacerbated or contributing to his current workrelated psychiatric presentation.

Based on all of the evidence presented, including Employee's credible testimony, I find that the opinion of Dr. Sky on the issue of medical causation regarding Employee's psychiatric condition is more credible than the opinion of Dr. Fucetola on this issue. I find that the prevailing factor for Employee's psychiatric condition is the work-related accident that occurred on October 30,

1. I find that Employee's psychiatric symptoms are medically causally related to the work accident that occurred on October 30, 2012.

I further find that the work-related accident is the prevailing factor for the employee's need for psychiatric treatment. As previously stated in Issue 2, I find that there is a "reasonable probability" that Employee will be in need of future medical aid. I also find that the employee is in need of additional medical care to cure and relieve him from the effects of the October 30, 2012 work accident and injuries; this includes treatment for Employee's physical condition and his psychiatric condition.

The term "total disability" in Section 287.020.7 RSMo, means inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident. The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. See Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo. App. 1992). The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. See Reiner v. Treasurer of the State of Missouri, 837 S.W.2d 363, 367 (Mo. App. 1992). Total disability means the "inability to return to any reasonable or normal employment." An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. See Brown v. Treasurer of State of Missouri, 795 S.W.2d 479, 483 (Mo. App. 1990). The question is whether any employer in the usual course of business would reasonably be expected to employ the employee in that person's present physical condition, reasonably expecting the employee to perform the work for which he or she entered. See Reiner at 367, Thornton v. Haas Bakery, 858 S.W.2d 831, 834 (Mo. App. 1993), and Garcia v. St. Louis County, 916 S.W.2d 263 (Mo. App. 1995).

The first question that must be addressed is whether the employee is permanently and totally disabled.

I find that the employee was a very credible and persuasive witness on the issue of permanent total disability. The employee offered detailed testimony concerning the impact his condition has had on his daily ability to function in the workplace or at home. His testimony supports a conclusion that the employee will not be able to compete in the open labor market.

There is both medical and vocational evidence that addresses whether the employee is permanently and totally disabled.

Dr. Coyle, the treating doctor, believed that employee was employable within the restrictions set forth in the functional capacity evaluation (occasional lifting of 23 pounds and pushing and pulling 50-60 pounds occasionally).

Dr. Fucetola, neuropsychologist, thought the employee had, at most, some mild symptoms of anxiety and depression, and did not believe that those symptoms would affect Employee's employability. He did not believe any further "psychological" treatment would be indicated and assessed no evidence of permanent disability from a "psychological" standpoint.

Mr. Patsavas opined that the employee would be capable of employment in the open labor market within the sedentary, light and/or medium category of physical demands. Mr. Patsavas admitted that he did his labor market surveys by going on websites. He then used the employer's job descriptions from the websites in his evaluation. Also, Mr. Patsavas agreed that taking narcotic medication could prevent Employee from being hired by some employers. It did not appear that Mr. Patsavas took into consideration whether these were jobs the employee was actually capable of performing.

Employee's expert, Dr. Woiteshek, performed an independent medical evaluation. Dr. Woiteshek opined that Employee is no longer employable in the open labor market. He stated that Employee is permanently and totally disabled and unable to return to any employment due solely to the work-related injury on October 30, 2012.

On behalf of Employee, Mr. England, a vocational rehabilitation counselor, performed a vocational rehabilitation evaluation. Mr. England testified that the restrictions recommended by Dr. Woiteshek were substantial and noted that the need to take frequent breaks would be a problem with any type of employment. He testified that the different injuries that Employee had would be a hindrance to his employment.

Dr. Sky, a board-certified psychiatrist, concluded the prevailing cause of Employee's psychiatric symptoms and diagnosis was the October 30, 2012 accident at work. Dr. Sky did not render an opinion as to Employee's current work capacities given his lack of qualification as a vocational expert.

Mr. England testified that Employee is unemployable in the open labor market. He testified that it was not likely Employee would be able to find a job with his serious physical restrictions and psychiatric problems. He testified it was the last accident alone that made Employee unemployable.

Based on a review of all the evidence, I find that the opinions of Dr. Woiteshek and Mr. England are more persuasive than the opinions of Dr. Fucetola, Dr. Coyle and Mr. Patsavas on the issue of whether the employee is permanently and totally disabled.

Based on the persuasive testimony of the employee and the supporting medical and vocational rehabilitation evidence, I find that no employer in the usual course of business would reasonably be expected to employ the employee in his present condition and reasonably expect the employee to perform the work for which he is hired. I find that the employee is unable to compete in the open labor market and is permanently and totally disabled.

Given the finding that the employee is permanently and totally disabled, it must be determined whether the October 30, 2012 accident alone and of itself resulted in permanent total disability.

Employee's credible testimony was that prior to October 30, 2012, he was in good physical condition. Employee had led an active lifestyle.

Dr. Woiteshek and Mr. England both opined that the last injury alone caused Employee to be permanently and totally disabled.

I find that the opinions of Dr. Woiteshek and Mr. England are credible and persuasive regarding whether the October 30, 2012 work accident alone caused the employee to be permanently and totally disabled.

Based upon the evidence, I find that as a direct result of the October 30, 2012 accident and injury alone, the employee is permanently and totally disabled. Based on the stipulation and the evidence, I find that the employee's maximum medical improvement date was January 22, 2014. I find that the employee was in his healing period through January 22, 2014.

I find that as of January 22, 2014, the employee was no longer able to compete in the open labor market and was permanently and totally disabled. I find that the employer-insurer is liable to the employee for permanent total disability benefits. The employer-insurer is ordered to pay permanent total disability benefits at the rate of $\ 344.96 per week beginning on January 23, 2014. These payments for permanent total disability shall continue for the remainder of the employee's lifetime or until suspended if the employee is restored to his regular work or its equivalent as provided in Section 287.200 RSMo.

The parties had stipulated that Employee was paid temporary disability until February 4, 2014. However, the employee was placed at maximum medical improvement on January 22, 2014. Therefore, the employer-insurer shall be given credit for the amount paid in temporary disability benefits from January 23, 2014, through February 4, 2014.

Since the employee has been awarded permanent total disability benefits, Section 287.200.2 RSMo mandates that the Division "shall keep the file open in the case during the lifetime of any injured employee who has received an award of permanent total disability." Based on this section and the provisions of 287.140 RSMo., the Division and Commission shall maintain an open file in the employee's case for purposes of resolving medical treatment issues and reviewing the status of the employee's permanent disability pursuant to Sections 287.140 and 287.200 RSMo.

Daniel Walkenhorst, attorney at law, is allowed a fee of 25 % of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

Made by:

Maureen Tilley

Administrative Law Judge

Division of Workers' Compensation