Gale Hardwick v. Conagra Foods Packaged Foods, LLC

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 14-077425

Employee: Gale Hardwick

Employer: Conagra Foods Packaged Foods, LLC

Insurer: Old Republic Insurance Company

Additional Party: Treasurer of Missouri as Custodian

Of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 25, 2017. The award and decision of Chief Administrative Law Judge Robert J. Dierkes, issued August 25, 2017, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this $\qquad 25 5^{\text {th }} \qquad$ day of January 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

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 9, 2014.
5. State location where accident occurred or occupational disease was contracted: Saline County, Missouri.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee had been standing upon an elevated, grated, metal platform while filling an oil reservoir; as Employee was stepping from the elevated platform down to the floor below, his left foot slipped causing him to fall.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Left foot and ankle, left knee, low back, body as a whole.
14. Nature and extent of any permanent disability: Employee is totally and permanently disabled.
15. Compensation paid to-date for temporary disability: $\ 8,278.53.
16. Value necessary medical aid paid to date by employer/insurer? $\ 24,009.21.

1. Value necessary medical aid not furnished by employer/insurer? Not ascertained.
2. Employee's average weekly wages: $\ 729.25.
3. Weekly compensation rate: $\ 486.17 for temporary total disability benefits and permanent total disability benefits; $\ 451.02 for permanent partial disability benefits.
4. Method wages computation: Stipulation.

Employer liability:

Employer and Insurer are ordered to pay Employee the weekly amount of $\ 486.17, beginning May 8, 2015, for permanent total disability benefits.

Employer and Insurer 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 Employee from the effects of the work-related injury.

Second Injury Fund liability:

None. The claim against the Second Injury Fund is denied in full.

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

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

Employee: Gale Hardwick

Injury No. 14-077425

Dependents:

Employer: Conagra Foods Packaged Foods, LLC

Additional Party: Second Injury Fund

Insurer: Old Republic Insurance Company

Hearing Date: June 27, 2017

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

A final hearing was held on this workers' compensation claim on June 27, 2017 in Marshall. Gale Hardwick ("Claimant") appeared personally and by counsel, Corey Jackson. Conagra Foods Packaged Foods LLC ("Employer") appeared by counsel, Thomas Walsh. Old Republic Insurance Company ("Insurer") appeared by counsel, Thomas Walsh. The Treasurer of Missouri, as the custodian of the Second Injury Fund, appeared by counsel, Eric Doner, Assistant Attorney General. The parties were afforded an opportunity to submit briefs/proposed awards, resulting in the record being completed and submitted to the undersigned on July 31, 2017

The hearing was held to resolve the following issues:

1. The liability, if any, of Employer and Insurer for permanent partial disability benefits or permanent total disability benefits.
2. The liability, if any, of the Second Injury Fund for permanent partial disability benefits or permanent total disability benefits.
3. The liability, if any, of Employer and Insurer, to provide future medical benefit pursuant to RSMo $\S 287.140.
4. Whether costs and attorney's fees may be awarded pursuant to RSMo \S 287.560$.

The parties stipulated as follows:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this claim;
2. That venue for the evidentiary hearing is proper in Saline County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, RSMo $\S 287.430$;
4. That both Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;

1. That Employee's average weekly wage is $\ 729.25 with compensation rates of $\ 486.17 for temporary total disability benefits and permanent total disability benefits, and $\ 451.02 for permanent partial disability benefits;
2. That Employee sustained an accident arising out of and in the course of his employment with Conagra Foods Packaged Foods LLC on October 9, 2014;
3. That the notice requirement of RSMo $\S 287.420$ does not serve as a bar to the claim for compensation;
4. That Employer paid medical benefits in the amount of $\ 24,009.21;
5. That Employer paid temporary disability benefits of $\ 8,278.53; and
6. That Old Republic Insurance fully insured the Missouri Workers Compensation liability of Conagra Foods Packaged Foods LLC at all relevant times.

Employee testified at the hearing in support of his claim. Additionally, Employee offered the following exhibits into evidence, which were admitted without objection, with the exception of a portion of Exhibit 7, to which the Second Injury Fund objected, and which objection, and ruling thereon, is noted below.

Exhibit 1

Photos of Employee Pants and Shoes from DOI

Exhibit 3. Attorney Client Contract and Expenses (\$7,197.48)

Exhibit 5. Dr. David Volarich (Letter, IME Report \& CV)

Exhibit 6. Dr. Michael Snyder (Letter, IME Report \& CV)

Exhibit 7. Stella Doering Deposition with Exhibits (12/05/16)

Exhibit 8. Kristine Skahan Deposition with Exhibits (12/19/16)

Exhibit 11. Certified Medical Records

(Health Care Providers: 11A - Fitzgibbon Hospital, 11B - Peak Sport \& Spine, 11C - Peak

Performance, 11D - UM Health, 11E - Jefferson City Medical Group, 11F - Heartland Medical

Equipment, 11G - Boone Hospital Center)

Exhibit 12. Expenses 2 (\$96.92)

Exhibit 13. Hold Harmless Agreement (Employer/Insurer \& Employee)

Exhibit 17. Gale Hardwick Deposition (10/07/15)

Exhibit 18. Conagra Nurse Notes

The Employer offered no testimony but did offer the following Exhibits, which were admitted into evidence.

Exhibit A. Terry Cordray Deposition with Exhibits (03/22/2017)

Exhibit B. Gale Hardwick Social Security Application (05/10/15)

*Second Injury Fund Objection Overruled

Exhibit D Dr. David Clymer (Letter, IME Report \& CV)

Employer-Insurer offered Exhibit C "Social Security Disability Determination" which was not admitted into evidence following an objection by the Second Injury Fund.

The Second Injury Fund offered no evidence.

Ruling on SIF objection to portion of Exhibit 7. The Second Injury Fund propounded objections to a portion of the June 23, 2016 narrative report of Stella Doering, contained on pages 14-15 of that report (Bates stamped as "0091" and "0092").

The last paragraph of "0091" quotes what appears to be a medical treatise regarding Klinefelter's Syndrome and its possible effects on individuals with that syndrome. Ms. Doering is not a physician. No physician has opined in this case regarding the effects, if any, of Klinefelter's Syndrome on Claimant. The objection to that paragraph is sustained, and that paragraph is not admitted.

The first paragraph of "0092" quotes what appears to be a medical or psychological treatise or study regarding Klinefelter's Syndrome and its potential effect on learning skills. No physician or psychologist has opined in this case regarding the effects, if any, of Klinefelter's Syndrome on Claimant. The objection to that paragraph is sustained, and that paragraph is not admitted.

Claimant was born October 15, 1967; Claimant was 49 years old on the date of hearing. Claimant resides in Marshall, Missouri, with his mother. Except for a period of about one year, Claimant has lived the entirety of his life with his mother, in the same house. Claimant has never been married and has no children. Claimant was enrolled in special education classes throughout school. He graduated high school in 1988 at the age of 20+. This is the highest level of education attained by Claimant. He has no had no other formal education, vocational training, licensures or accreditations.

In Claimant's early work career, he worked briefly as a grocery sacker, as a cemetery groundskeeper, and as a gate guard. He then worked a few years for Employer as a laborer, and then for Tyson Foods as an industrial cleaner. Claimant testified that he spent the last seventeen years of his working career working for Employer, beginning most recently in 1996. He began his second stint at Employer in 1996 as a processor, but was eventually promoted to lead man. As lead man, Claimant was responsible for overseeing 13 to 15 workers. He would schedule their work, make sure they were present for their shifts, and supervised the lines' production. Part of Claimant's responsibilities included filling in for missing workers. Accordingly, Claimant had to learn and understand how to perform a variety of tasks, including processor work, line service, and mixing. Claimant testified he had no problems completing any of his work duties prior to October 9, 2014.

Claimant testified that, other than heart/chest issues in 2004/2005 and 2012 and a few days off for occasional back pain, he worked in excess of 40 hours a week without difficulty performing his job throughout the entirety of his employment with Employer, until his October 9, 2014 injury.

On October 9, 2014, Claimant testified that he was filling an elevated oil reservoir on a machine that "punches" food product into various shapes (i.e. chicken nuggets, patties). This action required that Claimant stand upon an elevated, grated, metal platform attached to the machine. Claimant testified that as he was stepping from the elevated platform down to the floor below, his left foot slipped causing him to fall. In the fall, Claimant testified that his left knee struck the platform, causing a small tear in his jeans, before landing on the floor below.

Claimant testified that he promptly reported the injury and was sent to Employer's inhouse nurse. Claimant testified that he informed the nurse at the time of left foot and left knee complaints, even showing her the small tear on the left knee area of his jeans. Claimant testified that he spent the remainder of the injury date in Employer's in-house nurse's office and was, ultimately, released from work early by his supervisor.

Claimant testified that he awoke the following morning, October 10, 2014, noting an onset of low back pain. At the hearing, Claimant testified that his left foot was, far and away, his primary source of pain during this time period. Claimant was evaluated by Dr. Timothy Ryan at Missouri Valley Physicians on this date. Dr. Ryan diagnosed a metatarsal fracture and referred Claimant to orthopedic surgeon Dr. Kelly Ross. Claimant did not return to work following this date and received temporary total disability benefits while he received authorized medical treatment for his foot.

On October 23, 2014, Dr. Ross performed surgery on the fractured 5th metatarsal via open reduction and internal fixation with instrumentation. Claimant was placed in a cast and prescribed a knee scooter. Nurse's records indicate that Claimant reported left knee pain to Employer on November 26, 2014, "...EE returned call reports left knee pain (without) swelling (complains of) difficulties ROM, states pain related to fall incident." X-Rays of the foot were obtained on December 1, 2014, revealing loosening of the screws placed during the surgery. Claimant began physical therapy on December 15, 2014.

On January 5, 2015, Dr. Ross noted Claimant's bilateral knee complaints and recommended removal of the hardware. Nurse's notes from this date indicate that Claimant called indicating that he needed to see a physician for his knee pain and was referred to Insurer's adjuster/third-party administrator. No treatment was authorized for Claimant's knees and back. Claimant pursued additional treatment for his left knee and back on his own.

Claimant saw Dr. Ross, on his own, for knee pain. Dr. Ross diagnosed a possible left meniscus tear and injected Claimant's knee. After failed conservative treatment, Dr. Ross performed a left knee arthroscopy with excision of medial plica, debridement of the medial meniscus, debridement of the anterior cruciate ligament, and a chondroplasty on February 12, 2015. Dr. Ross noted continued lower extremity problems, but ultimately released Claimant for his left foot injury on May 6, 2015 with no restrictions.

Claimant testified that he also began to experience significant lower back pain with radiculopathy. Dr. Ross ordered a lumbar MRI and electrodiagnostic studies, which were performed on January 26, 2015. The MRI noted chronic compression at L3, and disc space degenerative changes at L2-3, with no acute disc herniation. The electrodiagnostic studies

revealed moderately severe acute and chronic denervating changes at bilateral L4-5 and L5-S1. Claimant then saw Dr. Thomas Reinsel, an orthopedic surgeon, for his back. Claimant was given conservative treatment, including physical therapy and spinal injections. Claimant was released by Dr. Reinsel on May 7, 2015.

Regarding preexisting conditions, Claimant has just one diagnosed and rated preexisting disability, a lumbar spine condition due to a vertebroplasty for an L3 compression fracture sustained in 2006. Claimant testified the fracture was not a significant source of ongoing problems, and Dr. Volarich noted that Claimant was minimally symptomatic as a result of this alleged disability prior to October 9, 2014.

While Claimant testified he had intermittent chiropractic treatment for back pain since a fall as a teenager, Claimant clarified on cross examination that his prior back treatment was never for anything more significant than some aches and pains. Claimant testified he never had any problems with prolonged walking, standing, or sitting prior to October 9, 2014; most importantly, Claimant had no lower extremity problems whatsoever prior to his primary injury.

The medical records also note that Claimant has Klinefelter's Syndrome, a congenital condition. Claimant testified he received regular testosterone injections for this condition, beginning at an early age; however, the evidentiary record contains no evidence of any physician ever attributing any disability or symptoms to this particular condition.

Claimant testified to some other additional preexisting conditions, such as occasional shortness of breath and headaches, however Claimant testified he had no physical problems completing his job duties for Employer prior to October 9, 2014. The physical requirements of his employment included lifting up to 70 pounds and regular kneeling, standing, squatting, walking, sitting, climbing, bending, lifting, reaching, carrying, pushing and pulling. Claimant testified he worked over 9 hours a day for five to seven days a week. He testified he received no assistance or accommodations from his coworkers or from Employer for any condition prior to October 9, 2014.

Dr. Michael Snyder was retained by Claimant's counsel for an independent medical examination ("IME") on July 16, 2015. Dr. Snyder noted in his examination that Claimant used a cane and walked with an antalgic gait favoring his left side. Dr. Snyder diagnosed left foot, left knee, and lower back injuries as a result of the October 9, 2014 work injury. Dr. Snyder rated a 30 % PPD of the left ankle, but he opined Claimant was not at MMI for either his left knee or back. He gave significant permanent work restrictions attributable to the October 9, 2014 injury, including no walking during work activities, no lifting more than 10 pounds, and no climbing, bending, or stooping. Dr. Snyder opined that Claimant is permanently and totally disabled due to his October 9, 2014 work injury alone.

Dr. David Volarich was also retained by Claimant's counsel to provide an independent medical examination. Dr. Volarich evaluated Claimant's past medical history and his alleged injuries from the October 9, 2014 work accident. While Dr. Volarich noted that Claimant did have intermittent chiropractic treatment for his back over the years for minor back pain, he noted that Claimant was minimally symptomatic leading up to the October 9, 2014 injury. Dr. Volarich

noted that Claimant had no prior lower extremity problems. Dr. Volarich identified two medical conditions preexisting the October 9, 2014 accident: the L3 compression fracture with vertebroplasty, and Klinefelter's Syndrome. Dr. Volarich opined that the L3 compression fracture constituted a preexisting permanent partial disability of 7.5 % of the body as a whole. Dr. Volarich did not assess any disability for Klinefelter's Syndrome.

With regard to the primary injury of October 9, 2014, Dr. Volarich noted that Claimant experienced ongoing pain in his left foot, ankle and knee, worse with weight bearing and improved by elevation. Dr. Volarich noted that Claimant has had to use an assistive device to ambulate since his primary injury. Additionally, he noted that Claimant's lower back causes him pain with occasional radicular symptoms. Dr. Volarich opined that the October 9, 2014 work accident was the prevailing factor in the cause of a left foot fifth metatarsal fracture, a torn left medial meniscus, a severe lumbar strain with intermittent left leg paresthesias and occasional radicular symptoms, and right knee pain secondary to abnormal weight bearing. Dr. Volarich noted that all of these injuries cause Claimant significant problems sleeping, awakening him three to four times a night.

Referable to Claimant's October 9, 2014 injury, Dr. Volarich rated a 35\% permanent partial disability for the left foot, a 35 % permanent partial disability for the left knee, a 20 % permanent partial disability for the lumbar spine, and a 10 % permanent partial disability for the right knee.

Dr. Volarich gave significant restrictions for Claimant's spine as a result of the October 9, 2014 injury:

- Avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing, and other similar tasks to an as needed basis.

- Avoid handling weights greater than 20 pounds, and limit this task to an occasional basis assuming proper lifting techniques.

- Avoid handling weight overhead, away from the body, or over long distances or uneven terrain.

- Avoid remaining in a fixed position for any more than about 30 minutes at a time, including both sitting and standing.

Dr. Volarich also gave significant restrictions for Claimant's lower extremities as a result of the October 9, 2014 injury:

- Avoid all stooping, squatting, crawling, kneeling, pivoting, climbing, and impact maneuvers.

- Avoid navigating uneven terrain, slopes, steps, and ladders, especially if handling weight.

- Limit prolonged weight bearing including standing or walking to 15-20 minutes or to tolerance.

Dr. David Clymer evaluated Claimant at the request of Employer on March 2, 2016. While Claimant testified that Dr. Clymer only performed limited testing on his neck and left leg,

Dr. Clymer's report details a thorough examination. Dr. Clymer opined that Claimant's subjective complaints were out of proportion with his objective findings. Dr. Clymer opined that the October 9, 2014 fall was the prevailing factor in a left fifth metatarsal fracture, a left knee sprain that aggravated degenerative symptoms, and a possible lumbar sprain or strain with nerve irritability. Dr. Clymer rated a 10 % permanent partial disability for Claimant's left foot and ankle, no disability for Claimant's left knee, and a 10 % permanent partial disability for Claimant's lower back. Dr. Clymer restricted Claimant from lifting more than 20 to 25 pounds. Dr. Clymer stated that he did not feel Claimant required the use of a walker or cane.

Kristine Skahan evaluated Claimant for a vocational assessment on November 18, 2015 at the request of Claimant's attorney. Ms. Skahan interviewed Claimant and performed vocational testing. She noted that, prior to October 9, 2014, Claimant was lifting up to 100 pounds and spent most of his work day on his feet. She noted Claimant was having no problems completing his job duties.

Ms. Skahan opined that Claimant's physical restrictions for the October 9, 2014 injury would not allow him to return to any of his previous employment, which she identified in the medium level or higher. She opined that Claimant was permanently and totally disabled due to his October 9, 2014 injury. Ms. Skahan clarified in her deposition testimony that the restrictions for Claimant's lower extremity primary injuries alone would place him in the sedentary level of work, and that he has no transferable skills at the sedentary level. Similarly, she opined that Dr. Volarich's physical restrictions alone made Claimant unemployable.

Claimant was evaluated by vocational expert Stella Doering on May 3, 2016, at the request of his attorney. The penultimate paragraph of Ms. Doering's report states:

When all factors are taken into consideration including Mr. Hardwick's significant medical history and diagnoses, the physical restrictions recommended by both Drs. Volarich and Clymer, and his poor academic abilities, no employer in the usual course of business would be likely to hire him with the expectation that he would be able to perform the duties of any job in the open, competitive labor market. The cumulative effect of all of these factors, including the physical injuries and medical conditions sustained or diagnosed prior to 10/9/14, pose significant impediments to employment for Mr. Hardwick. It is, therefore, my opinion that Mr. Hardwick is not employable now and has not been employable since sustaining injury on 10/9/14.

The above-quoted paragraph would appear to state that Claimant's condition of permanent and total disability was caused by the injuries from the October 9, 2014 accident in combination with his preexisting conditions. However, Ms. Doering's deposition testimony was equivocal on that point, and could be construed as being consistent with a finding that Claimant's condition of permanent and total disability was caused by the injuries from the October 9, 2014 accident alone. For example, upon questioning by Employer's counsel, Ms. Doering testified as follows:

Q. You did testify that based on the restrictions of Dr. Volarich and only considering the physical limitations identified by Dr. Volarich, in other words

excluding the preexisting mental deficiencies that we've discussed, that there are some jobs available in the open labor market that would allow him to change positions, correct?

A. Change positions, not necessarily at the frequency that is recommended. He should change positions frequently, you know, and shouldn't remain in a fixed position for any more than thirty minutes at a time for both sitting and standing. That - those factors would significantly limit even further any jobs that would be available.

Q. And I understand that that limits the jobs available, but it doesn't preclude all employment, correct?

A. It would require probably significant reasonable accommodation on the part of an employer to even consider hiring such a person. (Exhibit 7, pp. 58-59.)

Terry Cordray evaluated Claimant for a vocational assessment at the request of Employer on April 13, 2016. Mr. Cordray noted that Claimant had previous back issues that did not cause him to miss work or require accommodations from his coworkers or employers. Additionally, while Mr. Cordray noted that Claimant's Social Security Disability file referenced a number of general conditions, he acknowledged on cross-examination that Claimant's Social Security Disability review included only medical records from treatment dates subsequent to Claimant's primary injury. Mr. Cordray further testified that Claimant's demonstrated abilities at his employment were more relevant than any difficulties he may have had in high school. Mr. Cordray testified that whether Claimant had been in special education classes would not affect his opinions of Claimant's employability.

Mr. Cordray ultimately concluded that the restrictions from Dr. Volarich and Dr. Snyder for Claimant's October 2014 primary injury limited Claimant to a limited number of unskilled sedentary jobs. He opined these jobs do exist in the Marshall, Missouri area and that Claimant is employable in the open labor market.

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, alternatively, 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 re-

employment, 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. ${ }^{1}$

Drs. Snyder, Clymer and Volarich all agree that the October 9, 2014 work accident was the prevailing factor in the cause of Claimant's left fifth metatarsal fracture. Dr. Snyder opined that this injury resulted in a permanent partial disability of 30 % of the left ankle. Dr. Clymer opined that this injury resulted in a permanent partial disability of 10 % of the left foot and ankle, and Dr. Volarich opined that this injury resulted in a permanent partial disability of 35 % of the left foot. Drs. Snyder and Volarich agree that the October 9, 2014 work accident was the prevailing factor in the cause of a torn left medial meniscus, requiring surgery; Dr. Clymer opined the October 9, 2014 work accident was the prevailing factor in the cause of a left knee sprain that aggravated degenerative symptoms. Dr. Volarich opined that the left knee injury resulted in a permanent partial disability of 35 % of the left knee; Dr. Clymer opined that Claimant sustained no permanent disability to his left knee, and Dr. Snyder did not rate the left knee as he believed Claimant was in need of additional left knee treatment. Drs. Snyder, Clymer and Volarich all agree that the October 9, 2014 work accident was the prevailing factor in the cause of injury to Claimant's low back; Dr. Snyder characterized the low back injury as trauma with exacerbation of degenerative disc and mild radiculopathy down the left lower extremity, Dr. Clymer's characterization was lumbar strain with nerve irritability, and Dr. Volarich called it severe back pain syndrome with intermittent left lower extremity paresthesias and radicular symptoms. Dr. Volarich opined that the back injury resulted in a permanent partial disability of 20 % of the body as a whole; Dr. Clymer opined that it resulted in 10 % permanent partial

[^0]

[^0]: ${ }^{1}$ As Claimant's alleged preexisting disabilities pre-date 2014, I have avoided any discussion of Section 287.220.3, per Gattenby v. Treasurer, 516 S.W.3d 859 (Mo.App.W.D. 2017). I also note that the Second Injury Fund's posthearing brief contains no discussion of Section 287.220.3.

disability of the body as a whole, and Dr. Snyder did not rate the back as he believed Claimant was in need of additional treatment. ${ }^{2}$

It is thus clear to me that Claimant sustained disabling permanent injuries to his left foot, left knee and back in the work injury of October 9, 2014. It is further clear that those injuries have prevented Claimant from continuing to work in his position as lead man for Employer, which work he performed admirably for many years. Despite Dr. Clymer's suggestions that Claimant's subjective symptoms were exaggerated in light of the objective findings and that there was evidence of generalized symptom magnification, I find that the work restrictions set forth by Dr. Volarich and Dr. Snyder are reasonable in light of the diagnoses. Although Claimant was obviously emotional during his testimony at the hearing, his testimony was generally credible.

Further, while there are minor differences in the opinions of the three vocational experts, a common ultimate conclusion is reached - Claimant's physical condition, coupled with his lack of transferable skills, relegates Claimant to unskilled, accommodated, sedentary work only. There is thus no reasonable expectation that an employer would hire Claimant in his current condition and reasonably expect Claimant to perform the work. Claimant is totally disabled.

There is really no question that the injuries from the October 9, 2014 accident, considered alone, result in Claimant's total disability. Claimant had no restrictions prior to October 9, 2014 and was successfully working in a full-time position with frequent overtime. All of the restrictions that relegate Claimant to accommodated sedentary work are due to the injuries from the October 9, 2014 accident. Further, as noted above, the only rated preexisting condition was the L3 compression fracture ( 7.5 % of the body as a whole). No physician found any disability due to Claimant's long-standing, preexisting Klinefelter's Syndrome. ${ }^{3}$

Therefore, I find that Employer and Insurer are liable for the payment of permanent total disability benefits, and that the Second Injury Fund has no liability. As I find that Claimant's back condition reached maximum medical improvement on May 7, 2015 (the left foot and left knee conditions having reached maximum medical improvement one day earlier), EmployerInsurer's liability for permanent total disability benefits of $\ 486.17 per week commenced on May 8, 2015. ${ }^{4}$

Future medical benefits. Claimant has requested an order of 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

[^0]

[^0]: ${ }^{2}$ Dr. Volarich also rated a 10 % disability of the right knee for a diagnosis of right knee pain. As there is no evidence of any treatment for Claimant's right knee, and as Claimant did not testify as to any problems with his right knee, I am considering Dr. Volarich's mention of right knee disability as incidental and of no significance.

${ }^{3}$ I have disregarded Stella Doering's inference of a disability due to Klinefelter's Syndrome premised upon references to inadmissible medical literature. Ms. Doering is not a physician; I find this inference to have no evidentiary weight.

${ }^{4}$ Claimant argued in his post-hearing brief that there was a period of time in early 2015 when TTD benefits would have been due but were not paid. As Employer-Insurer's potential liability for additional TTD benefits was NOT articulated as an issue at the commencement of the hearing, no award of TTD benefits can be made.

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).

Dr. Volarich's report contains the following:

To a reasonable degree of medical probability and to maintain his current state, (Claimant) will require ongoing care for his pain syndrome using modalities including but not limited to narcotic and non-narcotic medications (NSAID's), muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for symptomatic relief of his complaints. These treatments are necessary to cure and relieve the ill effects of his work related injury.

Claimant testified that he still takes Tylenol regularly for the pain resulting from the conditions caused by the October 9, 2014 accident. The first sentence of Section 287.140.1, RSMo, states:

In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. (Italics added for emphasis.)

Medicines are clearly part of the "medical care" or "medical benefits" required under Section 287.140. The statute does not distinguish between prescription medications and over-the-counter medications. Claimant has met his burden of proof on the need for future medical benefits.

Costs and attorneys fees. Claimant is requesting that Employer-Insurer be ordered to pay his costs and attorney's fees pursuant to Section 287.560, RSMo, which states (in part):

All costs under this section shall be approved by the division and paid out of the state treasury from the fund for the support of the Missouri division of workers' compensation; provided, however, that if the division or the commission determines that any proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. (Italics added for emphasis.)

The term "whole cost of the proceedings" as used in Section 287.560 includes attorney's fees. Landman v. Ice Cream Specialties, 107 S.W.3d 240 (Mo. 2003).

I find no basis for a determination that Employer-Insurer has defended "any proceedings" "without reasonable ground". The "proceedings" which Employer-Insurer has defended would

appear to refer to the final hearing in this case that was held on June 27, 2017. As stipulated by the parties at the commencement of the hearing, the primary purpose of the hearing was to determine whether Claimant was permanently and totally disabled, and, if so, whether the liability for the payment of the weekly permanent total disability payments was on EmployerInsurer or on the Second Injury Fund. Employer-Insurer provided expert testimony to the effect that Claimant is not permanently and totally disabled, i.e., that Claimant is able to compete in the open market for employment. The fact that I found Claimant's experts more persuasive on this issue does not make Employer-Insurer's defense "unreasonable".

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

1. As a direct result of the work-related accident of October 9, 2014, Claimant sustained a left fifth metatarsal fracture, a left knee sprain, a torn left medial meniscus, and low back strain with permanent exacerbation of degenerative disc disease and radiculopathy down the left lower extremity.
2. Prior to the October 9, 2014 accident, Claimant had sustained an L3 compression fracture treated with kyphoplasty, which created a permanent partial disability of 7.5 % of the body as a whole.
3. For decades prior to the October 9, 2014 accident, and continuing to the present day, Claimant has had Klinefelter's Syndrome; there was no credible evidence that Claimant's Klinefelter's Syndrome has caused any disability whatsoever.
4. Prior to the October 9, 2014 accident, Claimant had experienced some issues with his chest and heart, as well as episodic back pain; there was no credible evidence that these conditions caused any permanent disability.
5. In his current condition, Claimant is unable to compete in the open labor market.
6. There is no reasonable expectation that an employer would hire Claimant in his current condition and reasonably expect Claimant to perform the work.
7. Claimant is permanently and totally disabled as a result of the injuries he sustained in the October 9, 2014 accident, considered alone.
8. Claimant's conditions resulting from the October 9, 2014 accident reached maximum medical improvement on May 7, 2015.
9. Employer and Insurer are liable for paying permanent total disability benefits of $\ 486.17 per week from and after May 8, 2015.
10. The Second Injury Fund has no liability in this case.
11. Claimant is in need of additional medical care in the future to cure and relieve him from the effects of the injuries he sustained in the work-related accident of October 9, 2014.
12. No party has brought, prosecuted or defended these proceedings without reasonable ground.

Employer and Insurer are ordered to pay Claimant the weekly amount of $\ 486.17, beginning May 8, 2015, for permanent total disability benefits.

Employer and Insurer are 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 claim against the Second Injury Fund is denied in full.

Claimant's attorney, Corey Jackson, is allowed 25 % of all weekly benefits awarded herein, including future weekly 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.