Paul Farris v. ADS Waste Holdings, Inc. d/b/a Advanced Disposal Service

The parties did not specifically request, at the hearing, that the administrative law judge resolve any issue of medical causation; instead, the parties asked the administrative law judge to determine the issue "whether employee sustained an accident or occupational disease arising out of and in the course of his employment." Transcript, page 6. This question, stated in this fashion, would appear to implicate at least two ${ }^{1}$ separate statutory elements of an employee's claim under Chapter 287. Specifically, the question whether employee sustained an "accident" implicates the statutory definition under § 287.020.2 RSMo, which provides as follows:

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

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

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

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

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

In her award, the administrative law judge did not address either of the foregoing statutory provisions. Instead, she discussed the competing medical opinions in this case, and found that "[employee] did suffer an accident arising out of and in the course of his employment due to the prevailing factor of trauma due to driving over a bumpy road where he had an impact on January 3, 2014." Award, page 18. In other words, the administrative law judge appears to have addressed and resolved, at least partially, the question of medical causation under § 287.020.3(1) RSMo, which provides, in relevant part, as follows:

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[^0]: ${ }^{1}$ Employee appears to have abandoned any theory of injury by occupational disease that may have been previously advanced in this case; accordingly, we will not further discuss or explore such a theory herein. ${ }^{2} It is worth noting here, as we have in the past, that \S 287.020 .3(2)$ does not require an employee to prove an "accident" arising out of and in the course of employment, but rather an "injury" arising out of and in the course of employment; the distinction is not merely academic where both "accident" and "injury" have separate definitions for purposes of the Missouri Workers' Compensation Law, and where we are required to strictly construe the terms thereof. See § 287.800.1 RSMo.

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

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

Here, the parties do not now ask us, in their briefs or at oral argument, to consider or apply the aforementioned statutory provisions referable to whether employee sustained an "accident" and/or an "injury arising out of and in the course of the employment." Instead, employer complains that the administrative law judge failed to identify, with sufficient specificity, the nature of the "resulting medical conditions" she deemed to have resulted from employee's accident. In other words, employer asks us to go forward with the issue of medical causation, even though such was not identified as an issue at trial.

Likewise, employee's responsive argument turns, to a considerable degree, on the question of medical causation. Given these circumstances, we will not further explore the issue whether the administrative law judge erred in failing to consider or apply the aforementioned statutory tests under $\S \S 287.020 .2$ and/or 287.020.3(2), or exceeded her authority by delving into an issue of medical causation that was not specifically identified. Instead, we will supplement the administrative law judge's findings with regard to medical causation, in order to address employer's well-taken argument that such findings lack sufficient specificity. ${ }^{3}$

After much careful review and considerable deliberation with regard to the numerous competing expert opinions advanced in this case, we ultimately find most persuasive the opinion from Dr. Stephen Reintjes, who diagnosed a thoracic strain following the accident of January 3, 2014. We find that the accident was the prevailing factor causing employee to suffer the resulting medical condition of a thoracic strain and associated disability. Based on our determination in this regard, and other considerations more fully discussed below, we are persuaded to modify the administrative law judge's finding

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[^0]: ${ }^{3}$ We take this opportunity to remind the parties as to the critical importance of obtaining a statement on the record of the particular issues in dispute that is not only complete, but precise in terms of the various statutory elements and/or defenses at issue, in order to avoid any confusion (and costly multiplication of proceedings) that may result on appeal.

with regard to the issue of the nature and extent of disability employee suffered as a result of the work injury.

The administrative law judge determined that employee is permanently and totally disabled as a result of the accident of January 3, 2014. We acknowledge that the evidence in this matter provides substantial and competent evidence to support the administrative law judge's findings. However, after our own careful review of the entire record, and much deliberation, we are persuaded to find otherwise, for the following reasons.

First, we note that the records of employee's chiropractic treatment reveal (and we so find) that employee reported significant symptoms referable to cervical, thoracic, and lumbar spine dysfunction just months before the January 2014 accident. In particular, from August 2009 through September 2013, employee gave histories to his chiropractors of severe pain in the neck, trapezius, left rib, mid back, low back, and left hip areas, as well as global, generalized complaints of pain "all over." See, e.g., Transcript, pages 413, 1958-59, 1971. As late as September 2013, employee reported to his chiropractor that these complaints were so severe that they interfered with his ability to engage in sitting, standing, bending, and walking. These preexisting complaints mirror, in numerous respects, the list of complaints employee would later ascribe solely to the effects of the January 2014 accident, both in certain of his comments to treating and evaluating physicians, and in his testimony at the hearing in this matter.

This brings us to our second, and more important concern: that employee's hearing testimony is simply not entirely persuasive with regard the nature and extent of disability he suffers referable to the work injury. We acknowledge that the administrative law judge expressly found employee to be a credible witness on this topic. Ordinarily, we will defer, wherever possible, to an administrative law judge's express determination with regard to the credibility of live witnesses. Here, though, the record is replete with numerous and material inconsistencies (exhaustively catalogued in the brief from employer/insurer) on the critical topics of employee's preexisting symptoms, the circumstances of the accident itself, and employee's physical abilities and complaints following the accident, as compared with the evidence from the multiple treating and evaluating physicians, employee's own social media account, and eyewitnesses to employee's post-accident activities.

We are unable to ignore these inconsistencies, and we are not persuaded that employee adequately explains or discounts them in his testimony at the hearing. Consequently, we have been persuaded in this case to depart from our general policy favoring deference to the credibility determinations from an administrative law judge. After careful consideration, we do not find employee to be an entirely credible witness with regard to the nature and extent of disability he suffers referable to the work injury.

In light of the foregoing concerns, we are persuaded (and so find) that employee is not permanently and totally disabled as a result of the effects of the January 2014 accident, standing alone. Rather, we find that employee suffered a 15\% permanent partial disability of the body as a whole as a result of the accident. At the stipulated weekly permanent partial disability rate of $\ 446.85, we conclude that employer/insurer is liable for $\ 26,811.00 in permanent partial disability benefits.

We modify the award of the administrative law judge as to the issue of the nature and extent of disability.

Employer/insurer is not liable for permanent total disability benefits. Instead, employee is entitled to, and employer/insurer is hereby ordered to pay, permanent partial disability benefits in the amount of $\ 26,811.00.

The award and decision of Administrative Law Judge Emily S. Fowler, issued December 8, 2016, is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

The Commission approves and affirms the administrative law judge's allowance of an 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 $\qquad 7th \qquad$ day of March 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

VACANT

Member

Curtis E. Chick, Jr., Member

Attest:

Employee: Paul Farris Injury No. 14-000510

Employer: ADS Waste Holdings, Inc. D/B/A Advanced Disposal Service

Insurer: New Hampshire Insurance Company Additional Party: N/A Hearing Date: October 5, 2016 Checked by: ESF/drl

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: January 3, 2014
5. State location where accident occurred or occupational disease was contracted: Near Modena, Mercer 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, New Hampshire Insurance Company
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee, while driving employer's truck, was exposed to cumulative trauma from repetitive lifting 50 pounds or more, as well as driving on bumpy rural roadways where he hit something causing an impact thereby causing the injuries of which he complains.
12. Did accident or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Paul Farris

Injury No. 14-000510

1. Part(s) of body injured by accident or occupational disease: cervical, thoracic, lumbar spine, left lower extremity at the hip and body as a whole.
2. Nature and extent of any permanent disability: permanent total disability
3. Compensation paid to-date for temporary disability: $\ 33,817.67.
4. Value necessary medical aid paid to date by employer/insurer? $\ 37,513.52
5. Value necessary medical aid not furnished by employer/insurer? None
6. Employee's average weekly wages: $\ 749.13
7. Weekly compensation rate: $\$ 499.42 / \ 446.85
8. Method wages computation: By agreement

1. Amount of compensation payable from employer/insurer:

Employer shall pay to Employee permanent total disability benefits beginning April 23, 2015 at $\ 499.42 per week and thereafter for as long as claimant remains permanently and totally disabled.

1. Second Injury Fund liability: None
2. Future requirements awarded: Employer to provide such future medical care that shall serve to cure and relieve symptoms from which claimant suffers as a result of his work injury of January 3, 2014.

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: John E. McKay

Employee: Paul Farris

Injury No. 14-000510

Employer: ADS Waste Holdings, Inc.

D/B/A Advanced Disposal Service

Insurer: New Hampshire Insurance Company

Additional Party: N/A

Hearing Date: October 5, 2016

Checked by: ESF/drl

On October 5, 2016, the parties appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to Section 287.110. The Employee, Paul Farris, appeared in person and with counsel, John McKay. The Employer and Insurer appeared through counsel, Yvette Boutaugh.

The parties stipulated to the following:

(1) That the Employer, ADS Waste Holdings, Inc. d/b/a Advanced Disposal Service, was an employer operating and subject to the provisions of the Missouri Workers' Compensation Law on January 3, 2014 and was fully insured by New Hampshire Insurance Company;

(2) That Paul Farris was its Employee and was working subject to the law near Modena, Mercer County, Missouri;

(3) That Employee notified the Employer of his injuries of January 3, 2014 as required by law and his claim was filed within the time allowed by law;

(4) That Employee's average weekly wage was $\ 749.13 resulting in a compensation rate of $\ 499.42 for temporary total and permanent total disability and $\ 446.85 for permanent partial disability compensation;

(5) That the Employer has paid temporary total disability compensation in the amount of $\ 33,817.67 and medical care costs of $\ 37,513.52.

(6) That the Employee reached MMI on April 22, 2015.

(7) That the Employer/Insurer agree to reimburse employee $\ 118.26 for medical mileage that is unpaid as of the final hearing held on October 5, 2016.

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

(1) Whether claimant suffered an accident or occupational disease arising out of and in the course of the employment?

(2) Whether notice for cumulative trauma was given before January 3, 2014?

(3) Whether claimant suffered any disability and, if so, the nature and extent of his disability?

(4) Whether the employer is liable for future medical?

Employee Paul Farris testified in person and called as witnesses Candi Simmons, and Willi Sharp who also testified in person. Claimant offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit A Bethany Medical Clinic records

Exhibit B 1/3/14 Employee Injury Report (provided by employer)

Exhibit C St. Luke's/Wright Memorial Hospital records (4/16/01 to 1/20/14)

Exhibit D Mercer County medical records

Exhibit E WMH Physicians Group records

Exhibit F Dr. Rende 2/17/14 medical report (provided by counsel for employer)

Exhibit G Dr. Reintjes/KC Neurosurgery records

Exhibit H Dr. Amin/Gallatin Family Medical Clinic records

Exhibit I Dr. Wiggins records

Exhibit J Dr. Henson records

Exhibit K St. Luke's/Wright Memorial Hospital 1/1/08 to 1/22/14 films on CD

Exhibit L 8/12/14 MRI cervical spine Wright Memorial Hospital

Exhibit M 11/23/13 Photo of Paul Farris with deer.

Exhibit N 2/4/14 Candi Simmons Trenton Swap ad for snow removal.

Exhibit O 3/2/15 Dr. Wiggins deposition

Exhibit P 3/2/15 Dr. Henson deposition

Exhibit Q Paul Farris deposition

Exhibit R Dr. Zarr records

Exhibit S Wright Memorial Hospital records - Vol. II (4/3/14 to 8/29/14)

Exhibit T 3/16/15 Dr. Rende report

Exhibit U 6/13/15 Dr. Stuckmeyer report

Exhibit V Dr. Stuckmeyer Curriculum Vitae

Exhibit W 9/8/15 Mike Dreiling report

Exhibit X Dr. Stuckmeyer deposition

Exhibit Y 11/6/15 Dr. Stuckmeyer addendum report

Exhibit Z Mike Dreiling file (attached to Ex. CC)

The employer called witnesses Dan Goulder and Dale Campbell who testified in person. Employer offered the following exhibits into evidence without objection:

Based on a review of the above exhibits and the testimony of the witnesses, I make the following findings and rulings:

Claimant began working for the employer ADS Waste Holding on August 23, 2013 when he passed the employer's pre-employment physical exam. His job duties included driving a trash truck over bumpy country roads, stopping the garbage truck at each pickup site, and repetitive lifting of 50 to 100 pounds or more throughout each day

On Friday, January 3, 2014 after his first stop on Route A Mr. Farris was driving south toward Modena on a snow covered two lane road when another truck going north, the opposite direction, approached. Mr. Farris slowed to between 45 and 50 miles per hour and tried to guide between the oncoming truck and the ditch line. He hit something hard which may have been a culvert pipe. There were four culvert pipes under the country roadway with no shoulder and crumbling asphalt. It felt like something "hit or kicked me hard in the butt." His body went up then down. There were two impacts: first the feeling of being "kicked in the butt", and second, after going up, then the impact on coming down to the hard seat. He did not strike his head on the inside cab of the garbage truck.

Claimant's immediate symptoms included a sharp electric-type shock that went up from the middle of his back into the neck and head. There was a stabbing feeling in the upper middle back that went both up through the neck as well as down to the low back and into the legs and feet with tingling into both feet.

Claimant tried to drive for two or three miles and got to his next stop on Highway D. He got out of the truck and tried to walk it off but could not stand straight. About ten minutes after the roadway impact, the stabbing pain would not go away. His vision started blurring and the symptoms of pain went into his shoulders. Claimant called ADS but his supervisor, Wes, did not answer. Claimant then called for the mechanic, Clifford, who got the supervisor. An ambulance was called by the employer. Claimant was able to get out of the cab but had to be placed on a backboard and transported by ambulance to Wright Memorial Hospital emergency room. On the way to the emergency room, a morphine shot was given. That same day he was released from the emergency room with a prescription for muscle spasms.

Saturday, January 4, 2014 claimant was not able to work. Monday, January 6, 2014, claimant returned to Wright Memorial Hospital with symptoms of a shock sensation, stabbing pain, and radiating pain into the legs and especially on the left part of the body. January 10, 2014 a cervical MRI was done. It was not until January 20, 2014 that a thoracic MRI was done. On February 17, 2014 the company authorized treating doctor, Dr. Rende, as well as Dr. Wilkey diagnosed an acute thoracic herniated disc due to the prevailing factor of the January 3, 2014 work accident. Dr. Rende, the authorized treating doctor, suggested surgery as one of the treatment options and took claimant off work for fear of making his condition worse if he were released to do work. Since the work accident of January 3, 2014 claimant has not returned to any gainful employment.

Four to six weeks before the work accident of January 3, 2014 claimant slipped on a catwalk and fell on his left knee in Urbana, Missouri. The same day, while driving he hit a bump at the

bottom of a hill where a creek bed caused a dip. Due to a loose shoulder strap, and an air ride seat in an up position, he was ejected upward where his head hit the ceiling of the cab. Symptoms included a pinch in the neck and a pop and stabbing pain with a resulting headache. He reported both the knee incident and hitting his head on the cab to his supervisor, Wes, but there was no missed work and no request for medical treatment. He was able to continue working overtime and lifting 50 to 100 pounds or more up through the date of the January 3, 2014 work accident. However, to avoid hitting his head on the cab again, claimant adjusted the driver's seat lower and released the air in the air ride which reduced the risk of hitting his head but eliminated most of the cushioning from the seat. The change in seat position with lack of cushioning combined on January 3, 2014 with the fact that the garbage truck was empty at impact making the truck lighter and more susceptible to roadway impacts.

Preexisting conditions before the work accident of January 3, 2014 included left shoulder pain, left hip pain, right rib pain, left knee pain, right shoulder pain, right neck pain, and an August 13, 2009 off road motor bike incident in the mud. The off road motor bike incident caused pain to the left rib, the left hip, and the left knee. There was no ambulance, no emergency room hospital visit, and no medical doctor for the motor bike off road incident in the mud. The uncontradicted testimony of claimant and his doctor, Dr. Wiggins, is that there were two chiropractic treatments then he was released from further treatment for the motorcycle incident in 2009. The last medical examination before the work accident of January 3, 2014 was by Dr. Dennis Henson who on October 10, 2013 released Mr. Farris from further chiropractic care with no restrictions and the ability to work eight to twelve hours each day, five or six days a week driving and lifting 50 to 100 pounds throughout the workday.

Claimant's present condition includes pain and pressure from his mid-back to the neck, the left shoulder, and down to the left low back, left hip and left extremity causing balance problems. Before January 3, 2014 claimant's hobbies included deer, quail, and rabbit hunting, fishing, two large gardens, hiking for artifacts, kayaking, and camping. Claimant testified that these activities have either been discontinued or have been severely restricted. Both Willi Sharp and Candi Simmons corroborated claimant's testimony. Before January 3, 2014 claimant did such neighborhood odd jobs as painting, cleaning gutters, landscaping and shoveling snow. Claimant, Candi Simmons, and Willi Sharp testified that since the January 3, 2014 work accident those activities have stopped.

Candi Simmons, posted a Trenton Swap Shop ad for snow removal on February 4, 2014. The timing of the ad was two weeks after the January 20, 2014 thoracic MRI and just weeks before the employer authorized Dr. Rende examination and findings of acute thoracic herniation and loss of ability to work. Candi Simmons, not claimant, did the snow shoveling after the work accident of January 3, 2014. I find Willi Sharp and Candi Simmons to be credible witnesses both in their demeanor and the content of their testimony.

Claimant was born January 27, 1980. He has learning disabilities which made school difficult. At one point, claimant dropped out of school but then returned and persisted until he got his high school degree. He attended a college in Trenton, Missouri and received a two year certificate in construction. Claimant admits that he learns best with hands-on instruction rather than formal classroom teaching. With that educational background, his employment history before starting at ADS in August 2013 included general laborer and carpentry work with the required ability

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Paul Farris

Injury No. 14-000510

to lift 50 to 100 pounds or more, the ability to climb, and the ability to get into awkward positions. The approximate highest salary before ADS was $\ 10.00 per hour. He was laid off from a carpentry/laborer job in 2012. In the summer of 2013 at a personal cost of $\ 5,000.00, claimant attended commercial driver's school and got a CDL license in order to better provide financially for his family. Claimant's first job after completing the CDL commercial driver course was with ADS.

Claimant lives with his fiancé, Candi Simmons, and their two children who are both disabled. Before the work accident of January 3, 2014 claimant did most of the lifting of the disabled children. Since the work accident of January 3, 2014 Candi Simmons does most the lifting of the children. However, since the work accident of January 3, 2014 each of claimant's children has wanted to be held by him. If he picks up either of the two children he pays a price for doing so. When he lifts the children himself rather than letting Candi Simmons do it there is more pain that evening and the next day. Claimant testified that if given a job that required him to lift one of his two disabled children for 8 hours a day, 5 days a week, 52 weeks a year that he could not do it.

Since the work accident of January 3, 2014 claimant drives but limits it to shorter distances, avoids traffic whenever possible, and tries to have someone else do the driving. He can help his family carrying groceries by using smaller bags and fewer bags at a time. He allows his fiancé to pull the wet laundry from the washer. However, he helps with the folding. He helps feed and dress his two disabled children. Neither disabled child is able to ride on a carnival ride because of the lack of ability to sit upright.

Claimant's sleep averaged six to eight hours before January 3, 2014 and now has been reduced to two to four hours of interrupted sleep. In an average day from 8:00 a.m. to 5:00 p.m., when most people are working, claimant lies down to control pain two to three times and actually falls asleep for periods of 30 minutes to several hours. Before the work accident of January 3, 2014 he never had to lie down to control pain and never fell asleep during work hours of 8:00 a.m. to 5:00 p.m. Testimony from Candi Simmons corroborated claimant's testimony on loss of sleep and need to recline. Furthermore, Candi Simmons noted that after the work accident that claimant has less ability to concentrate or to stay focused.

Claimant understands that under Missouri Workers' Compensation he is losing one-third of the money he would otherwise earn if he continued to work at ADS. Claimant feels that prior physical therapy helped to a degree but that one day in therapy it triggered what seemed like body-wide spasms. Claimant consents to future medical treatment including future physical therapy, future pain management, and future surgery in order to cure or to relieve from the effects of the January 3, 2014 work accident.

I find Claimant to be a credible witness both in the content of what he said as well as his physical manner during his testimony at the final hearing.

Dr. Wiggins was deposed by the employer and gave critical testimony that the August 13, 2009 motorcycle incident did not require an ambulance, nor an emergency hospital room visit, nor a medical doctor. There was a delay between the off-road incident and getting any treatment at all. Dr. Wiggins provided two chiropractic treatments and then released Mr. Farris from treatment for the motorcycle incident.

Dr. Dennis Henson, the last doctor to examine claimant before the work accident of January 3, 2014, was deposed by the employer. Dr. Henson testified that his treatment was successful and that as of the last treatment on October 10, 2013 there were no restrictions and Mr. Farris was able to work 8 - 12 hours each day, 5 or 6 days a week, driving and lifting 50 to 100 pounds throughout the workday.

Dr. James Stuckmeyer testified that before the work accident of January 3, 2014 Paul Farris had a 5 percent preexisting disability to the body as a whole because of his prior chiropractic treatment and complaints. The preexisting permanent partial disability was limited to 5 percent because claimant's pain had never been bad enough for an MRI. Prior to the accident of January 3, 2014 treatment had never required a surgical consultation or a referral to pain management. The nature of his complaints before January 3, 2014 were consistent with cervical, thoracic, lumbar strains which did not prevent him from passing his pre-employment physical exam. There no preexisting medical restrictions. He has the ability to lift 50 to 100 pounds repetitively in his employment at ADS, and the ability to work overtime hours consistently up through the date of the January 3, 2014 work accident.

Dr. Stuckmeyer documented that approximately one or two months before the work injury of January 3, 2014, claimant was at work driving a truck when he hit a low spot in the highway and was ejected into the ceiling of the cab of the truck causing interscapular pain. January 3, 2014, while driving down Route A he hit a big bump which caused him to be thrown forcibly up and then down very hard with immediate onset of pain in the mid-back region with radiating pain to the base of the cervical spine and down into the lower back. As a result of the accident of January 3, 2014, Dr. Stuckmeyer recorded that claimant has ongoing symptoms of neck pain, thoracic back pain with spasms, difficulty with prolonged standing, prolonged walking, sitting, driving, traversing steps. He has pain radiating into the left hand along with symptoms of numbness and tingling. He continues to have ongoing symptoms of thoracic back pain as well as chest wall pain. In addition he continues to have ongoing symptoms of lower back pain, spasms, radiating pain into the left hip and buttock regions.

On physical examination, Dr. Stuckmeyer recorded cervical tenderness over the right and left supraspinatus muscles, limitations of range of motion in the cervical spine in flexion, extension, side bending and lateral rotation with objective findings of spasm. The thoracic spine was tender to palpation and had objective findings of paraspinal spasms. The lumbar spine was tender to palpation bilaterally at L4-5 and L5-S1 with tenderness over the left sacroiliac region and the left acetabular region with a more than 50 % loss of range of motion in flexion, extension, side bending and lateral rotation. The left shoulder near where the truck seatbelt would attach was tender to palpation in the subrocromial and glenohumeral joint areas with a positive impingement sign. There was a documented loss of grip strength bilaterally which was consistent with neck and shoulder injuries.

Based on reasonable medical certainty, Dr. Stuckmeyer testified that there was no evidence of malingering or symptom magnification by claimant. There were no exaggerated pain behaviors. There were no positive Waddell's signs.

Due to the prevailing factor of claimant's January 3, 2014 work accident, Dr. Stuckmeyer

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Paul Farris

Injury No. 14-000510

testified that claimant suffered (1) cervical pain/strain with left upper extremity radicular symptoms and positive MRI scan of cervical spine revealing disc herniation and bilateral posterior myofascial syndrome; (2) thoracic back pain with chest wall radicular symptoms and evidence of thoracic disc herniation, consistent with the symptoms; (3) lumbosacral pain with left lower extremity radiculopathy; (4) left sacroiliac dysfunction; (5) left femoral acetabular pain.

Furthermore, if claimant had suffered from these physical symptoms, it would not be physically possible, before January 3, 2014 to be employed full time at any occupation by any employer, to have lifted 50 to 100 pounds, drive over bumpy country roads, or to reliably work 8 hours a day plus overtime, 5 days a week.

Based on a reasonable degree of medical certainty due to the prevailing factor of claimant's accident of January 3, 2014 considered alone and in isolation from any preexisting conditions Dr. Stuckmeyer assigned the following disability ratings:

1. 15 percent body as a whole for chronic cervical pain with left upper extremity radiculopathy and posterior myofascial syndrome bilaterally.
2. 10 percent body as a whole for thoracic back pain, herniated disc with thoracic radicular symptoms and chest wall pain.
3. 15 percent disability for lumbosacral pain with left lower extremity radicular symptoms and left sacroiliac dysfunction.
4. 15 percent permanent partial disability to the left hip due to the left femoral acetabular pain.

Dr. Stuckmeyer testified that work restrictions due the prevailing factor of claimant's accident of January 3, 2014 considered alone and in isolation from any preexisting conditions included the following:

1. No prolonged standing longer greater than tolerated.
2. No walking greater than tolerated.
3. No ladder climbing.
4. No repetitive stair climbing greater than needed for activities of daily living.
5. No lifting to exceed 10 to 15 pounds on an occasional basis below waist height.
6. No lifting above shoulder height to exceed 10 pounds on an occasional basis.
7. When using hydrocodone for pain, no working around hazardous equipment or at heights and no driving of a commercial vehicle.

Dr. Stuckmeyer felt the accident of January 3, 2014 would require future medical care which would cure or relieve from the effects of the work injuries included pain management and if that is unsuccessful then surgery.

Mike Dreiling was the only vocational rehabilitation expert to testify. He met with Paul Farris and conducted a vocational rehabilitation examination which resulted in Mr. Dreiling's vocational rehabilitation report marked as Exhibit W. Mr. Dreiling testified that the 7 separate limitations/restrictions listed by Dr. Stuckmeyer due to the prevailing factor of the January 3, 2014 work accident considered alone and in isolation represent a significant vocational barrier to

reemployment. On the topic of education, Mr. Dreiling noted the learning disabilities of claimant, and the lack of any significant typing skills both of which are significant vocational barriers to employment. However, this Court notes that despite these learning disabilities claimant was able to return to high school after dropping out and finish his high school diploma. Further, he also, later in life, went to commercial driving school and obtained a commercial driver's license.

Mr. Dreiling testified that claimant's age was not relevant because some people younger than claimant are permanently totally disabled. Mr. Dreiling documented that for military history, claimant had been rejected by the Marines because of his ADHD learning disability. Geographically, claimant's home in Trenton, Missouri limits future employment opportunities and is a significant vocational barrier to reemployment. Furthermore, Mr. Dreiling testified that claimant's not working since the date of the work accident on January 3, 2014 was a significant vocational barrier to reemployment. Mr. Dreiling documented that claimant's work history prior to the work accident of January 3, 2014 had always required the ability to lift 50 pounds or more, the use of upper extremities, and the ability to work in awkward positions with the upper body.

Based on a reasonable degree of vocational certainty due to the prevailing factor of the January 3, 2014 work accident alone and in isolation Mr. Dreiling testified that Paul Farris is not able to compete in the open labor market; that he is not vocationally able to work 8 hours a day, 40 hours a week, 52 weeks a year at any job; that no employer in the ordinary course of business could reasonably be expected to employ Mr. Farris; and therefore, Mr. Farris is vocationally permanently totally disabled from all employment.

Dr. Rende was the first medical expert retained by the employer/insurer. Dr. Rende did a medical examination February 17, 2014 and produced a medical report marked as Exhibit F. Dr. Rende documented that on January 3, 2014 claimant was driving at approximately 50 miles an hour over snow covered roads when he struck something that caused him to be thrown forcefully up and then down very hard in the seat that he was riding on. When he came down hard he had the immediate onset of pain in the mid-portion of his back. The pain instantly radiated up to the base of his cervical spine and down into the lower back. His pain was so severe that he was taken by ambulance to Wright Memorial Hospital. X-rays showed only minimal degenerative changes. Based on reasonable medical certainty, Dr. Rende testified that driving a work vehicle, hitting something in the road, being thrown forcefully up and then down very hard is one of the types of trauma that could cause a thoracic spine herniation. The compression would come from the butt upward. Dr. Rende based on a reasonable degree of medical certainty testified that the thoracic MRI of January 20, 2014 showed an acute herniated nucleus pulposus in the thoracic spine. Dr. Rende documented mid-thoracic spine pain that radiates around Claimant's chest on both sides, worse on the left, pain at the base of the neck, numbness and tingling in his arm, with radicular type pain down his left leg into the buttock and lateral aspect of the knee. Dr. Rende specifically noted in his report that approximately four weeks before the work accident of January 3, 2014 Mr. Farris was thrown up and his head bounced off the ceiling but he was able to continue with his job and did not seek medical treatment. It was the January 3, 2014 work accident that claimant describes as causing severe pain.

On physical examination, Dr. Rende recorded cervical spasms, flattening of the normal cervical lordosis, paraspinal tenderness, and loss of range of motion. Thoracic examination

demonstrated loss of range of motion in rotation and side bending, paraspinal thoracic spasms, tenderness, and hyperesthesias along the thoracic distribution of the left intercostal nerve. Lumbosacral examination confirmed an approximate 50\% loss of range of motion in forward flexion, rotation, and side bending. Dr. Rende personally reviewed the MRI films and did not find any significant abnormality in the cervical or lumbar spine areas. However, Dr. Rende based on a reasonable degree of medical certainty testified that there was an acute thoracic disc herniation. To confirm that diagnosis, Dr. Rende brought in Dr. Wilkey, a licensed Missouri medical doctor with a specialty and board certification in orthopedic surgery, who agreed that claimant has an acute thoracic disc herniation with a guarded prognosis. Dr. Rende stated in his written report, that it would be inappropriate to allow claimant to work, that claimant should be primarily on bedrest and not allowed to return to work for Advanced Disposal until some of his thoracic herniated disc symptoms had improved. Treatment should consist of rest, muscle relaxants, and anti-inflammatories. Without signs of improvement, claimant likely would require surgical decompression of the thoracic spine. Dr. Rende stated in writing, "I can say that all of his present symptoms can be explained by this disc herniation and it is my opinion that this disc herniation and treatment that he needs for this herniation is a direct result of his job for the Advanced Disposal Company."

Based on a reasonable degree of medical certainty due to the prevailing factor of the thoracic disc herniation, Dr. Rende testified that at the time of his medical examination of Paul Farris that claimant was not reliably able to work 8 hours a day, 5 days a week, 52 weeks a year at any job. Based on reasonable medical certainty due to the prevailing factor of the thoracic disc herniation, Dr. Rende expected claimant to experience (a) loss of sleep due to thoracic pain, (b) loss of concentration due to both pain and loss of sleep; (c) the need to lie down unpredictably due to loss of sleep and to control thoracic pain. Based on reasonable medical certainty due to the prevailing factor of claimant's thoracic disc herniation that Dr. Rende documented on February 17, 2014, Dr. Rende testified that claimant could not lift 50 to 100 pounds throughout a work day, and could not drive a commercial dump truck over country roads 50 to 60 hours a week. Dr. Rende agrees that before the work accident of January 3, 2014 Paul Farris did not have any spine injury that required an ambulance, an emergency room hospital visit, or a referral to a medical doctor.

By report dated March 16, 2015 Dr. Rende changed his opinions to say that the 1/3/14 work injury is not the cause of his current complaints or thoracic disc herniation, in that the thoracic herniation was not acute based upon the chiropractic treatment that he received since the motorcycle incident of August 13, 2009. Dr. Rende was deposed by the employer/insurer January 19, 2016 where Dr. Rende admitted under oath that his original opinions of acute thoracic herniation due to the prevailing factor of the January 3, 2014 work accident did not change upon his review of Paul Farris' deposition because, in Dr. Rende's words, claimant had said the same things in his deposition as he had during the independent medical examination of February 17, 2014. That is significant because Paul Farris described in detail in his deposition the motor bike incident and chiropractic treatment. Dr. Rende admitted that at the time of his February 17, 2014 independent medical examination that "the patient denies prior problems of this degree..." . At the time he wrote his first report on February 17, 2014, Dr. Rende, by his own testimony, was aware of claimant's prior motorcycle incident of 2009, the prior chiropractic treatment and the fact that the work accident of January 3, 2014 by degree was the worst medical problem claimant ever had.

In Dr. Rende's January 19, 2016 deposition, 11 months after the changed report, Dr. Rende admits under oath that before the work injury of January 3, 2014 Paul Farris did not have any spine injury that required an ambulance, an emergency room hospital visit, or a referral to a medical doctor

Based on a reasonable degree of medical certainty due to the prevailing factor of the thoracic disc herniation, Dr. Rende agreed that the following restrictions listed by Dr. Stuckmeyer would be reasonable for claimant:

1. No prolonged standing greater than tolerated.
2. No walking greater than tolerated.
3. No latter climbing.
4. No repetitive stair climbing greater than needed for activities of daily living.
5. No lifting to exceed 10 to 15 pounds on occasional basis below waist height.
6. No lifting above shoulder height to exceed 10 pounds on an occasional basis.
7. When using hydrocodone for pain, no working around hazardous, equipment or at heights and no driving a commercial vehicle.

Furthermore, Dr. Rende in his deposition after the changed medical report testified under oath that based on reasonable medical certainty due to the prevailing factor of the thoracic disc herniation, medically Paul Farris could not reliably work 8 hours a day, 5 days a week, 52 weeks a year at any job. Dr. Rende conceded during his deposition under oath that due to the prevailing factor of the thoracic disc herniation Paul Farris would medically be expected to suffer loss of sleep due to thoracic pain, loss of concentration due to both pain and loss of sleep, and the need to lie down unpredictably due to loss of sleep and to control pain.

Two final items are serious concerns about Dr. Rende's second changed report. Dr. Rende confirmed in his January 19, 2016 deposition that the employer/insurer never gave him the deposition of Dr. Wiggins who was deposed by the employer/insurer in March 2014 and who testified that after the August 13, 2009 motorcycle incident that there was a delay before Paul Farris sought medical treatment. There was no ambulance, no hospital emergency room visit, and there was no medical doctor appointment. The entire treatment for the August 13, 2009 motorcycle incident consisted of two chiropractic treatments then release from further medical care for the motorcycle incident. Finally, Dr. Rende confirmed in his January 19, 2016 deposition that the employer/insurer never gave him the deposition of Dr. Henson the last medical provider to provide treatment and to do a medical examination of Paul Farris before the work accident of January 3, 2014. Dr. Henson was deposed by the employer/insurer March 2, 2015 more than 11 months before Dr. Rende's deposition. Dr. Henson testified under oath as a treating medical provider that as of the last medical treatment for Paul Farris on October 10, 2013 there were no medical restrictions and that Paul Farris was able to work 8-12 hours each day, 5 or 6 days a week driving and lifting 50 to 100 pounds throughout the workday. In fact, claimant did work 8-12 hours each day, 5 or 6 days a week driving and lifting 50 to 100 pounds throughout the workday until the work accident of January 3, 2014.

Dr. Clymer was retained by the employer/insurer as an expert and testified that the employer/insurer never gave him the MRI films or x-rays from Wright Memorial Hospital. Dr. Clymer did not ask claimant whether he was able to hunt before the work accident of January 3,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Paul Farris

Injury No. 14-000510

2014 and that was irrelevant to his opinions. Dr. Clymer documented that as of August 14, 2014 claimant continued to complain of neck pain, mid back pain, low back pain and lower extremity discomfort associated with spasm. Claimant's complaints did not seem to change dramatically. Dr. Clymer's December 7, 2015 medical examination of claimant confirmed cervical discomfort with palpation or movement of the neck, thoracic spine discomfort to palpation in the mid and upper thoracic region with thoracic region loss of range of motion, and low back loss of range of motion and pain. The left lower extremity demonstrated greater discomfort with manipulation and movement. Dr. Clymer was not able to review the actual MRI films because those were not provided by the employer/insurer and Dr. Clymer did not take hip or lower extremity x-rays. Based on reasonable medical certainty, Dr. Clymer found ongoing soft tissue irritability or myofascial pain.

Based on a reasonable degree of medical certainty, Dr. Clymer's medical report to the employer/insurer concluded that the workplace event resulted in various areas of contusion, sprain and caused ongoing soft tissue myositis. Dr. Clymer felt some period of restricted activity and physical therapy was quite reasonable and appropriate for the myofascial pain disorder suffered by claimant. He felt ongoing medical treatment for claimant to relieve from the effects of the work injury would include exercise and medical management medications. Dr. Clymer would restrict claimant from awkward or heavy lifting. Dr. Clymer testified that claimant's complaints are consistent with myofascial pain syndrome. Dr. Clymer testified that the workplace event of January 3, 2014 may have caused some additional symptomatic aggravation with regard to generalized areas of myofascial pain. Dr. Clymer rated the January 3, 2014 work injury at 5\% of the body as a whole for discomfort involving the neck, mid back, low back and extremities. Dr. Clymer felt that any disability beyond 5 % is related to preexisting conditions or symptom magnification.

Employer/insurer retained St. Louis physician, Dr. Katz as an expert. Dr. Katz testified by deposition that he gave Paul Farris the MMPI-2 test and found that Paul Farris gave a valid effort in taking the test and that the test results were valid because Mr. Farris was not faking or trying to look better or worse than he really was. Dr. Katz testified that before the work accident of January 3, 2014, Paul Farris was not disabled due to dysthymic disorder; that claimant had never been diagnosed with dysthymic disorder; that dysthymic disorder had never been an obstacle or hindrance to claimant's ability to work full time; that claimant had never had treatment for dysthymic disorder; and that claimant had no restrictions for dysthymic disorder before the work accident of January 3, 2014. Nonetheless, Dr. Katz felt that Mr. Farris' MMPI-2 profile was consistent with someone who had dysthymic disorder.

Dr. Katz testified that someone with dysthymic disorder can suffer a ruptured disc and have radiculopathy in addition to the dysthymic disorder. Based on a reasonable degree of medical certainty, Dr. Katz testified that dysthymic disorder is not the result of conscious malingering. Dysthymic disorder makes it more difficult to treat objective injuries such as a ruptured disc or spasms. People with dysthymic disorder have anxiety and depression. However, Dr. Katz explained that anxiety and depression are also common in people with objective injuries. Based on a reasonable degree of medical certainty, Dr. Katz agreed that another diagnosis for individuals with Paul Farris' MMPI results includes a patient with chronic pain rather than dysthymic disorder.

Dr. Katz documented claimant's continued pain at a range of 5 to 8 . Claimant's pain was in the neck, medial shoulder, intrascapular area, thoracic area, low back, left S1 region, left knee, left

calf, and numbness and tingling in the left lower extremity. Claimant's pain is worsened by bending forward, twisting, walking, bending backwards, coughing, bending to the side and sneezing.

Dr. Katz documented that claimant feels better when he is lying down and reclined. Claimant has a fair degree of difficulty in concentrating. He feels his sleep is markedly disturbed and sleeps only four or so hours per night. Dr. Katz's medical examination of the spine recorded cervical loss of range of motion in flexion, extension, lateral flexion and rotation. Dr. Katz did passive range of motion testing which he described as unremarkable. Dr. Katz acknowledged that passive range of motion testing is movement in spite of the patient's pain or beyond the patient's level of comfort. Patients have been injured in physical therapy when moved beyond active range of motion by the therapist. Dr. Katz agrees that pain is nature's way of protecting us from further injury. When a patient feels pain, he stops in order to avoid hurting himself worse.

Medical examination of the lumbar spine confirmed loss of lumbar range of motion in flexion, extension, lateral flexion and rotation. Faber testing was positive on the left for hip/sacroiliac dysfunction. The Faber test is a test for flexion, abduction, and external rotation in the hip sacroiliac joint area. In claimant, that testing was positive for injury.

Dr. Katz concedes that he is not a psychiatrist, not a vocational rehabilitation specialist or a member of the American Board of Vocational Experts, and not a spine surgeon. Dr. Katz does not have any admitting privileges at any hospital. Ninety percent or more of Dr. Katz's work comp exams are for the employer/work comp insurance company.

At hearing, counsel for employer confronted claimant with photo Exhibit 38 showing claimant with his family and holding a child. Counsel for the employer asked claimant to admit that the photo of him holding a child was taken after the claimant's December 2014 deposition. Claimant denied the accusation and explained that Exhibit 38 was a 2012 family photo used by claimant and Candi Simmons as an icon in emails. Exhibit N dated February 4, 2014 shows the same photo as Exhibit 38. Candi Simmons corroborated under oath that Exhibit 38 was a family photo taken in the fall of 2012 and has been used as an email icon since then. Therefore, Exhibit 38 shows claimant's ability to hold his child before the work accident.

The employer/insurer deposed Wes and Leslie Wineinger. Wes was the supervisor for Paul Farris. Leslie Wineinger, was the office manager for the employer in charge of employee benefits including workers' compensation benefits. Leslie Wineinger wrote a statement dated July 17, 2015 for the employer/insurer in which she stated that she saw Paul Farris carrying a child and lifting the child into and out of rides at a carnival on July 4, 2015. Both claimant and Candi Simmons testified that their disabled children are physically unable to sit upright or to ride a carnival ride. In deposition, Leslie was unsure of what time of evening she saw claimant. She was not able to estimate the age of the child claimant was holding. She did not recall how claimant was holding the child in his arms. She could not estimate the weight of the child claimant was holding. She first testified that she did not have an estimate how long she observed claimant holding the child but then changed her testimony and said it could be about 15 minutes. Leslie admitted that at the $4^{\text {th }}$ of July carnival that she and Wes had five children of their own at the carnival which kept them busy trying to keep track of where each of the children was at any moment. Wes and Leslie were outnumbered by their own five children. Leslie said she saw claimant a second time later at the carnival where he

was also holding his child for 15 minutes. In the end, she said that her husband, Wes, would be more detailed in his description of Paul Farris holding the child because Wes had one-on-one interaction with claimant.

Contrary to his wife, Wes Wineinger testified that he saw Paul Farris holding his child in his arms for 45 seconds to a minute or two before setting the child down in a stroller so that he and Wes could talk. Wes saw claimant a second time at the carnival pushing a stroller between a fried twinkie or fried oreo booth and nothing was said between them nor did Wes mention seeing Paul carrying the child during the second encounter.

Contrary to both Leslie Wineinger and Wes Wineinger, witness Dale Campbell had seen Paul Farris multiple times at special needs celebrity softball games, a football game, and with the disabled children on Main Street in Trenton, Missouri but Paul Farris was never seen holding either child after the January 3, 2014 work accident.

Wes Wineinger said that the road where the ambulance came out to pick up Paul Farris on January 3, 2014 was a two lane road, one lane going one way and one lane going the other way with not much of a shoulder on either side. There was just a little bit of gravel with four culverts along that area. Earlier in his deposition Wes Wineinger testified under oath, "When they replace culverts up there in north Missouri on blacktops, they refill them with asphalt and there is a little bump in the road." Wes Wineinger testified that claimant was not a good employee and did not want to work. That is seemingly contradicted by the overtime claimant actually worked.

Employer/insurer offered the statement of Des Moines, Iowa adjuster Lawrence Leek which documented four culverts running beneath the roadway which was asphalt heavily laden with aggregate with variances in width and uniformity and little if any shoulders. Two of the culverts running under the roadway have a recess of the asphalt surface over the culvert itself. One of the culverts has a depression or dip over the top of the culvert that is more noticeable when traveling highway speeds. The dip or depression is a result of settlement or compaction of the fill dirt from when the culvert was installed. The hard surfaced asphalt roadway is somewhat narrower than what we normally consider a primary roadway.

The employer/insurer entered into evidence Exhibit 24, the statement of Delevan Lisk, Jr. from California that the truck driven by claimant was equipped with a drive cam with an accelerometer settings for only forward and lateral G force. There were no settings to trigger the drive cam for axial or vertical load forces. In addition to a drive cam, the truck was equipped with a broken driver's window handle that was jerry-rigged to open with a vice grip that had been installed months before the January 3, 2014 work accident.

Employer/insurer offered Exhibit 22, the report of Exponent Corporation from Philadelphia, Pennsylvania signed by a Michael Prange. The Exponent report states that various medical records were reviewed without listing what medical records. No actual x-rays or MRI films were reviewed. The depositions of Dr. Henson, Dr. Wiggins, Dr. Stuckmeyer and Dr. Rende were not listed among the items provided for review or considered in the report. Failure to collect relevant information renders opinions less credible. Ball-Sawyers v. Blue Springs School District, 286 S.W.3d 247 (Mo.App. 2009).

There were no axial or vertical acceleration thresholds set according to the statement of Delevan Lisk, Jr. There is no indication in the Exponent report, Exhibit 22, whether the analysis was done by others or Mr. Prange and if by Mr. Prange then what type of Ph.D. or professional engineering degrees or background in biomechanics supported the conclusions. Further, there is no indication that Mr. Prange is a medical doctor or has any medical training whatsoever to render opinions based on medical records, films, or medical testimony of others. Whether a report is admitted into evidence does not make the report adequate or outweigh other testimony. Grime v. Altec Industries, 83 S.W.3d 581 (Mo App 2002)

After claimant reported the January 3, 2014 work accident the employer paid temporary total benefits for 67.71 weeks and paid $\ 37,513.52 in authorized medical aid. The employer does not request a reimbursement for the temporary total benefits or medical aid that it authorized and paid.

The test of permanent total disability is whether, given the claimant's situation and condition, he is competent to compete in the open labor market. Laturno v. Carnahan, 640 S.W.2d 470, 472 (Mo.App. 1982) In Brown v. Treasurer of Missouri, 795 S.W.2d 479, 483 (Mo. App. 1990), the court of appeals held that:

"Total disability means the inability to return to any reasonable or normal employment; it does not require that the employee be completely inactive or inert. The central question is whether in the ordinary course of business, an employer would reasonably be expected to employ the claimant in his present physical condition, reasonably expecting him to perform the work for which he is hired."

Dr. Stuckmeyer has placed severe restrictions on Paul Farris's activities. Dr. Stuckmeyer's restrictions are consistent with Paul Farris's multiple injuries and medical testing. Essentially, these restrictions mean that Paul Farris can no longer use his body to perform work without suffering severe personal consequences which worsen his level of pain day-to-day.

The occupational history of Paul Farris has been continual use of his upper torso requiring the extensive use of hands, upper extremities, legs and back. Dr. Stuckmeyer testified that Paul Farris should be restricted in multiple different areas involving standing, walking, climbing, lifting and driving. Essentially, Paul Farris is restricted from any significant use of his upper torso which thereby prevents him from competing in the open labor market. In Lorenz v. Sweet Heart Cup Co., Inc., Lorenz v. Sweet Heart Cup Co., Inc., 60 S.W.3d 677 (Mo. App. 2001) the claimant was found to be permanently totally disabled where there were injuries to the bilateral upper extremities. Paul Farris is restricted in his entire upper torso and is therefore more disabled than the claimant in Lorenz.

Vocational expert Mike Dreiling testified that Paul Farris has no transferrable job skills. He said that Paul Farris cannot be rehabilitated to perform other work. He has learning disabilities, no

formal education for over 10 years and scored in the bottom 22 percentile on vocational testing.

Paul Farris has pain in performing his basic life activities. Twenty-four hours a day he feels pain in the neck, back, left hip and left lower extremity. Activity makes pain in these multiple body parts worse. His ability to concentrate has been reduced because of pain. From 8:00 a.m. to 5:00 p.m. in an ordinary day, Paul Farris lies down or reclines and naps an average of two times for an hour or more.

Paul Farris testified that because of the January 3, 2014 work injuries alone and in isolation it was his opinion that he could not return to any type of full-time employment. Claimant's opinion of his own disability is admissible and relevant. Durbin v. Ford Motor Co., 370 S.W.3d 305 (Mo. App. 2012).

Dr. Stuckmeyer testified that based on reasonable medical certainty no employer in the ordinary course of business could reasonably be expected to employ Paul Farris in his present physical condition. Dr. Stuckmeyer testified that Paul Farris is permanently totally disabled from all gainful employment. Dr. Stuckmeyer testified that there was no symptom magnification and that all medical testing was valid. Dr. Katz's testing showed valid effort, there was no faking or trying to look better or worse than he really was.

Only claimant offered expert vocational testimony under oath and based on reasonable vocational certainty regarding his ability to compete in the open labor market. Vocational expert Mike Dreiling testified that because of the January 3, 2014 work injuries Paul Farris is not able to compete in the open labor market.

This Court finds that Claimant did suffer an accident arising out of and in the course of his employment due to the prevailing factor of trauma due to driving over a bumpy road where he had an impact on January 3, 2014.

It appears that the employer had notice of claimant's cumulative trauma from his job duties before January 3, 2014. Claimant gave notice of prior trauma including when he slipped on a catwalk and when he hit his head on the inside cab of the truck before January 3, 2014. However, this Court believes and finds that claimant's current symptoms are due to the claimant's injuries from the accident of January 3, 2014. Further, this Court finds that the employer had notice of the January 3, 2014 work accident because the employer called the ambulance.

The testimony of Paul Farris, Candi Simmons, Willi Sharp, Dr. Stuckmeyer, and vocational expert Mike Dreiling is credible and consistent. I find and believe that due to the prevailing factor of the January 3, 2014 work accident Paul Farris is not able to compete for gainful employment in the open labor market. No employer in the ordinary course of business would reasonably be expected to employ Paul Farris in his present condition. He is not able to work full-time, 8 hours a day, 5 days a week, 52 weeks a year at any employment. Paul Farris is permanently totally disabled from all gainful employment.

I order and direct the Employer ADS Waste Holdings, Inc. d/b/a Advanced Disposal Service and New Hampshire Insurance Company to pay to the claimant the sum of $\ 499.42 per week

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Paul Farris

Injury No. 14-000510

commencing April 23, 2015 and continuing for as long as claimant remains permanently totally disabled.

I order and direct the Employer ADS Waste Holdings, Inc. d/b/a Advanced Disposal Service and New Hampshire Insurance Company to pay to the claimant $\ 118.26 for medical mileage that was unpaid as of the final hearing October 5, 2016.

Further, Employer is to provide to claimant such future medical care that shall serve to cure and relieve symptoms from which claimant suffers as a result of his work injury of January 3, 2014.

John E. McKay is hereby assigned a lien in the amount of 25 % of this award for necessary legal services provided claimant.

Made by:

Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation