William Johnson v. RBJ Investments

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 13-098241

Employee: William R. Johnson

Employer: RBJ Investments (Settled)

Insurer: Accident Fund Insurance Co. of America (Settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 24, 2017. The award and decision of Administrative Law Judge Emily S. Fowler, issued August 24, 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 $\qquad 23rd \qquad$ day of February 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: William R. Johnson

Injury No: 13-098241

Dependents: N/A

Employer: RBJ Investments (settled)

Insurer: Accident Fund Insurance Co. of America (Settled)

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

Hearing Date: July 19, 2017

Checked by: ESF/1h

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: December 12, 2013
5. State location where accident occurred or occupational disease was contracted: Holden, Johnson 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: While in the course and scope of his employment, he was loading firewood when he felt a sharp pain in his back.
12. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Body as a whole
2. Nature and extent of any permanent disability: 15 % permanent partial disability to the body as a whole as settled between the employer and Employee
3. Compensation paid to date for temporary total disability: $\ 0
4. Value necessary medical aid paid to date by employer/insurer? Approximately \$52,057.00
5. Value necessary medical aid not furnished by employer/insurer? n/a
6. Employee's average weekly wages: $\ 936.36
7. Weekly compensation rate: $\$ 624.24 / \ 446.85
8. Method wages computation: By stipulation

1. Amount of compensation payable: the claim between employer and Employee was settled for 15 % permanent partial disability to the body as a whole.
2. Second Injury Fund liability: The Second Injury Fund shall pay to Employee the sum of $\ 624.24 per week beginning April 4, 2014, for permanent total disability payments for as long as Employee remains permanently and totally disabled. The Second Injury Fund shall be given a credit of $\ 446.85 for the first 60 weeks and thereafter shall pay the full amount of $\ 624.24 per week for as long as Employee remains permanently and totally disabled
3. Future requirements awarded: N/A

This Court awards attorney fees in the sum of 25 % of all benefits herein to Mr. James Martin, attorney for Employee.

Employee: William R. Johnson

Injury No: 13-098241

Dependents: N/A

Employer: RBJ Investments (settled)

Insurer: Accident Fund Insurance Co. of America (Settled)

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

Hearing Date: July 19, 2017

Checked by: EF/lh

On July 19, 2017 the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, William Johnson, appeared in person and with counsel, James Martin. The Second Injury Fund appeared through Assistant Attorney General Kim Fournier. The Employer/Insurer appeared not having previously settled their claim with the Employee.

The parties stipulated to the following:

1. That the employer, RBJ Investments, was an employer operating subject to the provisions of the Missouri Workers' Compensation law on December 12, 2013, and was fully insured by Accident Fund Insurance Company of America;
2. That William Johnson was its Employee and he was working subject to the law in Holden, Johnson County, Missouri;
3. That Missouri has jurisdiction to hear this claim;
4. That the Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;
5. That the Employee's average weekly wage was $\ 936.36 resulting in a compensation rate of $\ 624.24 for temporary total and permanent total disability compensation and $\ 446.85 for permanent partial disability compensation;

Issued by DIVISION OF WORKERS' COMPENSATION Employee: William R. Johnson

1. That the Employer has paid no temporary total disability but has paid approximately $\ 52,057.00 for medical care.

The issues to be resolved by this hearing are as follows:

1. Whether Employee sustained an accident arising out of and in the course of his employment;
2. What date Employee reached maximum medical improvement;
3. Whether the Employee suffered any disability from the last accident; and, if so, the nature and extent of such disability;
4. Whether the Second Injury Fund is liable to the Employee for any disability compensation herein.

The Employee, William Johnson, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit A - Stipulation for compromise settlement with the employer

Exhibit B - Deposition of James A. Stuckmeyer, M.D.

Exhibit C - Deposition of Michael J. Dreiling

The Second Injury Fund did not call any witnesses and did not offer any exhibits into evidence.

Based on the above exhibits and the testimony of Mr. Johnson, I make the following findings:

William Johnson (hereinafter referred to as Employee) is a 52 year old man at the time of hearing. He graduated high school in 1983 and spent a short time at Bailey Tech studying HVAC but dropped out early. He also spent three days at Longview College. His only other job training was on-the-job training. His employment history is as set out in Mr. Dreiling's deposition. Basically he worked at a filling station changing tires and pumping gas. He worked at Payless Cashways as a lumber loader and driving a forklift. Since then he has been self employed. His self employment work has always been manual labor. He has done landscaping work including building walls, running a bobcat and doing hardscapes. He did this work for 12 years. He identified it as very physical. He then bought a nursery where he continued to do work that included selling and loading topsoil, dirt, paving stones, bricks, and mulch. This was also very physical. He did this work for 8 to 10 years. During this time he had approximately 15 employees. His last employment was with RBJ Investments which was a company he owned. He sold rock, firewood and second-hand materials out of a warehouse. He also sold unclaimed freight.

On December 12, 2013, he was selling firewood. A customer with an SUV asked him if he would load the firewood into his vehicle. He was picking up firewood when he felt a

sensation in his back. This caused severe pain and he fell to the ground. The coworker finished the job and Employee went to a hospital in Lee's Summit that evening where they did a sonogram of his legs, gave him narcotics for pain, then released him to see his own doctor. He then went to Saint Luke's East and was there for nine days for pain management. He was given an MRI which showed he had a disk herniation. He was scheduled for surgery but on the day of surgery he was about to take a shower and sat on the shower chair which collapsed under him. At that time his hips were x-rayed. He was given a pelvic injection. He was released from Saint Luke's and went to see Dr. Clough who eventually performed surgery at Menorah Medical Center on January 23, 2014.

Prior to the surgery with Dr. Clough, he could not bear weight on his left leg. His foot hurt so bad he scratched it until it bled. After the surgery, he did get some relief to his leg. His current symptoms include pain in his low back, inability to bend, and severe pain down the left foot and leg. He has trouble putting on his shoes or the brace that he has on his left leg. He now has severe pain in his groin area if he walks very far and numbness in his butt cheeks. He can no longer take long car rides and has had to sell his property on Table Rock Lake due to lack of income. He has done no work since his accident. He has more severe pain when the weather changes and he uses more narcotics for pain relief at those times. Dr. Clough released Employee on April 4, 2014 to be seen as needed. He had gone back to see the nurse practitioner at Dr. Clough's a few times since then. Prior to this last accident he was only wearing one AFO on his left ankle due to foot drop. Now because his foot is even worse he wears another AFO to keep his foot from moving side to side. The pain goes up his left leg to his groin and into the right side of his groin. This all started approximately two months after his last surgery.

Employee went to see a number of doctors after he was released by Dr. Clough. He saw Dr. Clymer who gave him an injection in his back which he states did not help him. In fact, the pain really has not changed since April 2014. He still takes medication including OxyContin six times a day, Klonopin two times a day, Zoloft once a day and ibuprofen. The medication makes him tired and irritable. He has been hospitalized for stomach problems due to these medications. He sleeps approximately 3 to 4 hours a night off and on. He now sleeps in a different bed from his wife as he would keep getting up at night and wake her up. He has had to get up at night to use a hairdryer or Jacuzzi in order to get heat into his leg which is very cold. He has no income and no social life. He has sold off properties and equipment since his accident due to lack of income. Prior to the accident, he would go on vacations and trips with his family sometimes 4 to 5 trips to the condo in Table Rock Lake each year. They would also try to go to Florida every other year. Since the accident they have not been on any vacations. He stated that there were no jobs he could do due to his injuries.

Prior to his accident, Employee was injured in 1993 when he was working as a landscaper at Payless Cashways. He was at the service counter when a ceiling tile fell and hit him on the back. The ceiling tile weighed several hundred pounds. He sustained injury to his low back and head, suffering a herniated disc. After he was released from medical care, he returned to work on a light-duty basis but slowly got back to his previous duties. As time went on he believes arthritis set in and he started having pain in his left leg. Employee had another accident in 2004. He does not recall the specific incident but started having radiating pain down his left leg after that accident. As he was doing work at the nursery he owned, which was very strenuous, he started having more pain in his left leg as well as low back. At that time he went to Dr. Clough.

He had surgery for another herniated disc. His foot started getting weaker and weaker and began dragging. After the surgery he had some relieve in the left leg. After the 2004 accident and surgery, his left foot drop became worse. He started wearing a brace on his left leg; also known as an AFO. He would wear this throughout the day. He returned to his work and tried to rebuild his strength back up to a normal level. He had continued lower back and leg pain. The AFO caused problems, including infection, as the AFO would wear holes in his skin. He noted the difference after the first surgery and the second surgery was that he could not bend over to do his work and the brace made it very difficult to get things done. As an employer himself he did the hiring and firing of his employees. When asked if a perspective employee came in and wanted to get a job with him but who had left lower leg pain and foot drop and was on narcotic pain medication, would he hire him, Employee noted that due to those problems that potential employee would not be able to do all the job duties required and he would not hire him.

On cross-examination he testified that the work he has always done has been heavy physical work. The last business he owned, his wife and daughter worked with him and another couple worked as well. Despite his problems prior to last accident he would lift loads each day sometimes up to 86 pounds at a time. He worked 70 hours a week during this time. He testified that standing and leaning will help take the weight off his leg. During the hearing he had been standing up off and on due to pain and discomfort. He finds it difficult to maintain either sitting or standing for more than 30 minutes at a time. He noted that he did not take his pain medications the morning of hearing and that if he had taken his medication he might be able to handle it a little bit longer. He reiterated that he had problems bending prior to the last accident and that he wore just one AFO. He also had problems sitting and standing prior to the last accident. All of this has gotten worse since his 2013 accident. He also uses a cane occasionally, especially when he knows he has to walk long distances or traverse stairs. He does have a walker but he does not generally use it. He has to lie down during the day to eliminate pain and to take naps as he does not sleep well at night. The AFO he has now does not cause many problems with regard to sores on his leg because it is a newer one. He reiterated that he is up at night because of the cold in his leg. He also stated that the doctors do not know what causes the coldness in his leg. He first noticed the cold in his leg after the 2013 surgery but was told just to make sure his braces were not too tight. Employee admitted that he has seen doctors since being released by Dr. Clough, including Dr. Peters, his regular doctor, as well as Dr. Patel who never actually diagnosed what the problem was. He was told swimming, acupuncture or electronic therapy would help him. He states he does swim and that does help somewhat. He will not do acupuncture because he does not believe in it and he will not do electronic therapy because it scares him. Prior to the 2013 accident he worked up to 70 hours a week and did not miss work. He took his pain meds as needed but not daily. He admitted that he had pain and problems in his leg prior to the 2013 accident but all of his problems increased since the 2013 accident. He has not worked and has not looked for work since the date of the accident and has undergone no vocational training.

Employee does try to help his wife around the house with cleaning, cooking and maybe even some yard work. His wife, daughter, son-in-law and son do most of the work. He tries to take the burden off his wife as much as he can as she is the only income for the household. He has no hobbies. He stated he did not take any pain medications the day of hearing because he wanted be as clear as possible. By the time he was testifying on cross-examination he was

hurting very badly and was having difficulty concentrating on the questions he was being asked. He stated he cannot walk without the AFOs in place or he will fall.

Employee saw Dr. Clough again in November of 2014 at which time he was given Neurontin for pain. He was also seen January 2015 where he had an MRI at Saint Joseph Medical Center. He was having problems with his hip and the MRI was done to check those problems. He believes the problems with his hips were due to his limping because of his left leg. In January of 2016 Employee saw Dr. Clymer who suggested hip injections for his groin problems. If the hip injection was not helpful, then he may need a hip replacement. He did receive an injection from Dr. Khadavi but it did not give him any relief. Employee saw Dr. Patel in January of 2016 for a nerve study and was told to use a fixed sock at night. In March of 2016 Employee saw Dr. Peters for spasms in his leg. He also returns for cortisone shots approximately every 4-6 months. He returns to Dr. Peters for narcotic updates and stomach issues due to the medications he takes. He sees a doctor every 6-8 weeks.

Employee also offered the deposition of Dr. Stuckmeyer. In his deposition Dr. Stuckmeyer outlined his examination of Employee, the medical records he reviewed, and his conclusions. Dr. Stuckmeyer determined that Employee suffered a pre-existing 25\% permanent partial disability to the lumbar spine from his prior accidents and an additional 20\% permanent partial disability to the lumbar spine from the accident of 2013. Dr. Stuckmeyer determined that Employee should have no prolonged standing or walking greater than tolerated, no repetitive lifting, bending, twisting of his lumbar spine, no lifting to exceed 20 to 25 pounds on an occasional basis to waist height, no lifting above waist height to exceed 15 to 20 pounds on an occasional basis. Employee would need to be accommodated at a workplace with the ability to utilize an AFO for the ankle. He was also concerned about the use of Gabapentin, Clonazepam and Zoloft all of which affect cognitive function. He further restricted him from working at heights, around hazardous equipment, and felt that Employee should not be driving a commercial vehicle. Dr. Stuckmeyer believed that Employee would need a vocational assessment to assess his employability in the open labor market. He was aware that Employee had been sent to see Michael Dreiling, a vocational consultant, and that Mr. Dreiling had determined that Employee was permanently and totally disabled. Dr. Stuckmeyer agreed with that opinion. He further believed that the Employee's permanent total disability was due to the combination of all disabilities.

Employee also offered the deposition of Michael Dreiling, a vocational consultant. After reviewing Dr. Stuckmeyer's reports, Employee's medical records, testing Employee and interviewing him, Mr. Dreiling determined that Employee was permanently and totally disabled. He believed that Employee was unemployable in the open labor market. He did not specifically determine whether it was the last accident or pre-existing accidents in combination with last accident that made Employee unemployable. However he did defer to Dr. Stuckmeyer's opinion regarding whether it was a last accident or a combination of accidents that have rendered Employee unemployable in the open labor market.

The first issue to be determined by this court is whether Employee sustained an accident arising out of and in the course of his employment. Employee testified that while he was working to load firewood into the back of an SUV he felt a sharp pain in his back and down his leg. Employee was at work, on the job doing his regular job duties when this incident occurred.

He testified that while lifting and carrying firewood he felt a sudden impact to his back causing great and severe pain. Employee did have pre-existing back problems but on the date of injury he had a specific incident while working which required additional medical treatment and caused new and worse symptoms to his back. It is clear that Employee was working at the time of the injury, that there was a specific incident that happened causing him great pain, additional injury and for which he sought immediate medical care. This Court therefore finds that Employee did sustain an injury by accident arising out of and in the course of his employment.

The next issue to be determined by this Court is whether Employee suffered any disability and, if so, the nature and extent of Employee's disability. Employee suffered two prior accidents to his back during the course of his work career. Each incident appeared to cause greater problems for him. The last accident of December 12, 2013 caused additional pain and problems. Although he had pain in his leg and back prior to this last accident, he also had additional pain to his back after the last accident. He was using a single AFO prior to this accident and he has since been using two AFOs as his foot drop has gotten worse. He now needs to lie down during the course of the day due to pain as well as lack of sleep. He is using narcotic pain medication on a consistent basis; whereas, before he was using it as needed during the day. The problems with his left leg and foot are so bad now that he cannot walk without the AFO to support his foot and leg. It is clear that Employee is much worse off since his last accident than prior to his last accident. Dr. Stuckmeyer determined Employee suffered a 20\% permanent partial disability to the body as a whole due to his last accident and Employee ultimately settled with his employer for 15 % permanent partial disability to the body as a whole due to his problems with his low back. After reviewing the testimony of Employee and the deposition of Dr. Stuckmeyer, this Court finds that in fact Employee did suffer permanent partial disability of 15 % to the body as a whole from his last accident.

The next issue to be determined by this Court is what date Employee reached maximum medical improvement. Employee states that he was released from Dr. Clough on April 4, 2014. Employee states that this is the day that he reached maximum medical improvement. The Second Injury Fund argues that Employee sought additional medical care since the date he left the treatment from Dr. Clough and that the date for maximum medical improvement should be extended to March 22, 2016. Employee did look for additional treatment after he was released from Dr. Clough. However, Employee's symptoms did not change nor improve throughout that time he sought additional treatment. In reviewing the case law regarding maximum medical improvement it appears that the courts have determined that, "although the term maximum medical improvement is not included in the statute, the issue of whether any further medical progress can be reached is essential in determining when a disability becomes permanent and thus, when payments for permanent partial or permanent total disability should be calculated." Cardwell v. Treasurer of State of Missouri, 249 S.W. 3D 902, (Mo. App. 2008). In reviewing Employee's medical records and the reports from the doctors he saw after finishing treatment with Dr. Clough it is clear that none of the medical care he was given changed the ultimate outcome for him. It is apparent that no further medical progress was reached despite Employee's attempts at additional medical care. Regardless of Employee's continued search for relief from his pain, this Court finds that the date at which he reached maximum medical improvement is the date that his treating physician, Dr. Clough, released him from active treatment. To assume one does not reach maximum medical improvement as long as one is continuing to seek relief from pain would likely disqualify anyone with severe injuries from ever reaching a maximum medical

improvement. This Court, therefore, finds that the date Employee reached maximum medical improvement for purposes of beginning permanent total disability payments is April 4, 2014.

The next issue to be determined by this Court is whether the Second Injury Fund is liable to Employee for any disability compensation. In this case the Employee has alleged that he is permanently and totally disabled. There is no credible evidence that the Employee was rendered permanently and totally disabled as a result of the injury caused by his December 12, 2013 accident considered alone and without regard to his alleged preexisting disability. An employer is liable for permanent total disability compensation under $\S 287.220$ RSMo 1994 only where it is found that the primary accident alone caused the Employee to be permanently and totally disabled. Mathia v. Contract Freighters, Inc., 929 S.W.2d 271,276 (Mo. App. 1996); Feldman v. Sterling Properties, 910 S.W.2d 808 (Mo. App. 1995); Moorehead v. Lismark Distributing Company, 884 S.W.2d 416, 419 (Mo. App. 1994); Kern v. General Installation, 740 S.W.2d 691, 692 (Mo. App. 1987). Compensation cases in which there has been a previous disability are to be determined under $\S 287.220 .1$ RSMo (1994). In partial disability cases, the Employer is liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability. In total disability cases, the Employer is liable only for the disability resulting from the last injury considered alone and of itself. The Employer's liability for permanent partial disability compensation is determined under §287.190; Stewart v. Johnson, 398 S.W.2d 850 (Mo.App. 1996). Based upon a review of the evidence including the opinions of the medical and vocational experts, Employee was not rendered permanently and totally disabled due to his last accident alone. As previously stated, the Employer in this case is only liable for permanent partial disability payments for 15 percent to the body as a whole, which has previously been determined pursuant to the stipulation and settlement agreement between the Employer and Employee. This Court finds this determination of disability to be reasonable.

Since I have determined that Employee's December 12, 2013 accident resulted only in permanent partial disability and that that disability did not cause the Employee to be permanently and totally disabled in and of itself, the next issue is the Second Injury Fund's liability. In order to establish Second Injury Fund liability for permanent total disability benefits, the Employee must prove the following: number one, that he has permanent disability resulting from a compensable work-related injury. See §287.220.1 RSMo (1994). Two; that he has permanent disability predating the compensable work-related injury, which is "of such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if the Employee becomes unemployable." §287.220.1 RSMo (1994); Messex v. Sach's Electric Co., 989 S.W.2d 206 (Mo.App. 1997); Garibay v. Treasurer, 964 S.W.2d 474 (Mo.App. 1998); Rose v. Treasurer, 899 S.W.2d 563 (Mo.App. 1995); Leutzinger v. Treasurer, 895 S.W.2d 591 (Mo.App. 1995); and Wuebbeling v. West County Drywall, 898 S.W.2d 615 (Mo.App. 1995). And, number three, that the combined effect of the disability resulting from the work-related injury and the disability that is attributable to all conditions existing at the time the last injury was sustained results in permanent total disability. Boring v. Treasurer, 947 S.W.2d 483 (Mo.App. 1997); Reiner v. Treasurer, 837 S.W.2d 363 (Mo.App. 1992); Frazier v. Treasurer, 869 S.W.2d 152 (Mo.App. 1994). See Miller v. State Treasurer, 978 S.W.2d 808 (Mo.App. 1998), where the Court held Claimant's fibromyalgia from last injury, combined with preexisting aneurysm, was sufficient to establish permanent total disability against the Second Injury Fund.

The first requirement has already been met, and a determination of percentage of that disability has been made pursuant to the settlement stipulation entered into between Employee and the employer and submitted as Employee's Exhibit A.

With regard to the second requirement, a determination must be made as to the degree or percentage of disability that is attributed solely to the preexisting conditions at the time of the last injury. Lammert v. Vess Beverages, Inc. 968 S.W.2d 720 (Mo. App. 1999); Carlson v. Plant Farm, 952 S.W. 2d 369 (Mo. App.1997). Employee testified that prior to the last accident he did have pain in his back and down his left leg. He had to wear an AFO due to foot drop. He also had to take pain medication as was needed. He found that he cannot bend as well and this interfered with his ability to do mechanical work. The use of the AFO also made it difficult for him to do his work as well. Dr. Stuckmeyer determined that Employee suffered 25\% permanent partial disability to the body as a whole due to the injuries to his lumbar spine prior to his last accident. Based upon the prior injuries to his back, I find that Employee did, in fact, suffer a 25 percent permanent partial disability to the body as a whole which pre-existed his last accident.

The last requirement in establishing Second Injury Fund liability is proving that the Claimant is permanently and totally disabled as a result of the combined effect of the disabilities. The first part of this inquiry involves the findings as to whether the Employee is permanently and totally disabled. §287.020.7 RSMo (1986) defines total disability as the inability to return to any employment and not merely the inability to return to employment in which the Employee was engaged at the time of the accident. It is clear that Employee suffered from disabilities predating the compensable work-related injury which are of such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if the Employee becomes unemployed. These disabilities are difficulty bending, continued pain in his back and leg, need for an AFO to stabilize his foot drop, and difficulty fulfilling his job duties due to pain in his back. Mr. Dreiling felt Employee was unemployable in the open labor market. Dr. Stuckmeyer also believed that Employee was unlikely to obtain gainful employment should a vocational expert find him unemployable based upon his restrictions, which Mr. Dreiling did. It was the opinion of both that Employee is permanently and totally disabled and that this permanent total disability is the result of a combination of all of his disabilities, including the pre-existing disabilities to his back, as well as the primary injury to his back. This Court finds these opinions credible and further finds there is no other evidence which would contradict such findings. Wherefore, this Court, based on the above and foregoing, finds that Employee is permanently and totally disabled due to the combination of his pre-existing disabilities and his disability from his injuries from his last accident.

This Court finds that the Employee is entitled to permanent total disability benefits from the Second Injury Fund. The Second Injury Fund is therefore ordered to pay weekly permanent total disability benefits to the Employee commencing April 4, 2014 for as long as Employee remains permanently and totally disabled. The Second Injury Fund shall be given a credit of 60 weeks of permanent partial disability as paid by the employer in the amount of $\ 446.85 per week and thereafter the Second Injury Fund shall be liable for permanent total disability benefits of $\ 624.24 per week for as long as Employee remains permanently and totally disabled.

Finally, this Court awards to Employee's attorney, Mr. James Martin, 25\% of all benefits awarded herein.

Made by:

Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation