James Collins v. Kone, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 13-023689

**Employee:** James Collins

**Employer:** Kone, Inc. (settled)

**Insurer:** Old Republic Insurance Company (settled)

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

This 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, read the briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

We write this supplemental decision to acknowledge that Administrative Law Judge Kevin Elmer's last day of employment with the Division of Workers' Compensation (Division) was on June 15, 2017, but that the Division did not mail his award in this matter to the parties until June 19, 2017. The parties have not argued that this circumstance affects the validity of the award, but we deem it appropriate to briefly address the issue for purposes of completing the record, should this matter proceed to further appellate review.

Section 287.460.1 RSMo provides, in relevant part, as follows:

> The division, through an administrative law judge, shall hear in a summary proceeding the parties at issue and their representatives and witnesses and shall determine the dispute by issuing the written award within ninety days of the last day of the hearing. The award, together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question at issue, shall be filed with the record of proceedings, and a copy of the award shall immediately be sent by electronic means or in the case of an unrepresented employee, by United States mail, to the parties in dispute and the employer's insurer.

The foregoing tasks an administrative law judge with "issuing" a written award, and thereafter imposes a duty upon the Division to "immediately" send the award to the parties. In this case, the Division created a Certificate of Mailing that reveals the following circumstances: (1) on June 13, 2017, Administrative Law Judge Kevin Elmer transmitted via email a completed and signed award in this matter to the Division's central office in Jefferson City, Missouri; (2) on June 15, 2017, the Division's Jefferson City office received the original copy of the award via UPS delivery; (3) the Division employee responsible for mailing awards to parties was out of the office between June 14, 2017, and June 16, 2017; and (4) the Division mailed the award to the parties on June 19, 2017. We take administrative notice of the Certificate of Mailing, and accept the foregoing as the factual circumstances surrounding the issuance and mailing of the administrative law judge's award in this case.

- 2 -

Injury No. 13-023689

Given these facts, we conclude that, for purposes of § 287.460.1, the administrative law judge "issued" the award on June 13, 2017, while still employed with the Division. We conclude that the Division's failure to immediately send the award to the parties does not undermine the administrative law judge's prior issuance of the award at a time when he was still employed with the Division and capable of exercising his duties as an administrative law judge. We conclude that the proper date of the award remains June 19, 2017, because the Division did not notify the parties of the administrative law judge's award and decision until that date. See *Shelton v. Mo. Baptist Med. Cent.*, 998 S.W.2d 832, 835 (Mo. App. 1999). We note, however, that employee's application for review is timely whether the award is dated June 13 or June 19, 2017.

**The merits of employee's appeal**

The administrative law judge concluded that the Second Injury Fund is not liable for permanent partial or permanent total disability benefits in this matter. Employee appeals. We note that the administrative law judge's decision is largely premised upon a determination that employee did not provide credible testimony to support his claim. We are mindful that the administrative law judge had the opportunity to observe employee as he testified. After careful consideration, we are not persuaded to disturb the administrative law judge's finding in this regard. Accordingly, and because we otherwise agree with his analysis, we adopt the administrative law judge's award and decision as our own.

**Decision**

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

The award and decision of Administrative Law Judge Kevin Elmer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 14th day of June 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**CONCURRING OPINION**

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Employee: James Collins

I write separately to disclose the fact that I did not participate in the January 10, 2018, oral argument in this matter. However, I have reviewed the evidence, read the briefs of the parties, listened to an audio recording of the oral argument, and considered the whole record. I concur with the decision of the majority of the Commission.

Reid K. Forrester, Member

I, Naomi Pearson, Awards Clerk, with the Division of Workers' Compensation state as follows:

1. I am employed by the Division of Workers' Compensation.
2. One of my duties is to mail a copy of the Award on Hearing to the parties to the underlying workers' compensation case.
3. On June 13, 2017, the Division's Springfield adjudication office emailed an Award on Hearing written, completed and signed by Administrative Law Judge Kevin Elmer on June 13, 2017, after 4:00 p.m., in Injury No. 13-023689.
4. I was out of the office from June 14, 2017 through June 16, 2017, respectively.
5. On June 15, 2017, the Division's Jefferson City Office received the original Award on Hearing in Injury Number 13-023689 via UPS delivery.
6. The Award on Hearing was not mailed out by 5:00 p.m. on June 15, 2017.
7. The Division mailed the Award on Hearing to the parties to the case in Injury Number 13-023689, on June 19, 2017.

I hereby certify that the above is an accurate and complete statement of the events relating to the mailing of the Award on Hearing in Injury No. 13-023689.

Naomi Pearson

Signature __________________________

Date __________________________

Employee: James Collins

Injury No. 13-023689

Dependents: N/A

Employer: Kone, Inc. (Settled)

Insurer: Old Republic Insurance Company (Settled)

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

Hearing Date: April 20, 2017

Checked by: KAE

1. Are any benefits awarded herein? No
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: April 2, 2013
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was on top of an elevator while bending down on knees and bending over releasing a door restrictor on an elevator and felt a pop at that time.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Back
14. Nature and extent of any permanent disability: Permanent Partial Disability
15. Compensation paid to-date for temporary disability: $\ 0.00
16. Value necessary medical aid paid to date by employer/insurer? $\ 914.04
17. Value necessary medical aid not furnished by employer/insurer? N/A
18. Employee's average weekly wages: Greater than $\ 1,241.62

Issued by DIVISION OF WOR. RS' COMPENSATION

Employee: James Collins

1. Weekly compensation rate: 827.75 for TTD and PTD, and 433.58 for PPD
2. Method wages computation: Stipulation of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable: N/A (Employee and Employer/Insurer entered into a Stipulation for Compromise Settlement.)
2. Second Injury Fund liability: No

Weeks of permanent partial disability from Second Injury Fund: N/A

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund: None

TOTAL: $\ 0.00

1. Future requirements awarded: None

Issued by DIVISION OF WOR....RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

Employee: James Collins

Injury No. 13-023689

Dependents: N/A

Employer: Kone, Inc. (Settled)

Insurer: Old Republic Insurance Company (Settled)

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

Hearing Date: April 20, 2017

Checked by: KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on April 20, 2017. The parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about May 19, 2017.

The employee appeared personally and through his attorney, Robert Beezley, Esq. The employer and insurer did not appear since they had previously entered into a Stipulation for Compromise Settlement with the employee that was approved by another Administrative Law Judge on May 4, 2015. The Second Injury Fund appeared through its attorney, Catherine Goodnight, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

1. On or about April 2, 2013, Kone, Inc., was an employer operating under and subject to The Missouri Workers' Compensation Law and during this time was fully insured by Old Republic Insurance Company.
2. On the alleged injury date of April 2, 2013, James Collins was an employee of the employer and was working under and subject to The Missouri Workers' Compensation Law.
3. On or about April 2, 2013, the employee sustained an accident, which arose out of and in the course of his employment with the employer.
4. The above-referenced employment and accident occurred in Greene County, Missouri. Venue is proper in Greene County, Missouri.
5. The employee notified the employer of his injury as required by Section 287.420, RSMo.
6. The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

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Issued by DIVISION OF WOR....RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

(7) At the time of the alleged accident of April 2, 2013, the employee's average weekly wage was in excess of 1,241.62, which is sufficient to allow a compensation rate of 827.75 for temporary total disability compensation/permanent total disability compensation and a compensation rate of $433.58 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to the employee in the amount of $0.00.

(9) The employer and insurer have provided medical treatment to the employee, having paid $914.04 in medical expenses.

(10) That the attorney fee being sought is 25% of the benefits ordered to be paid.

The issues to be resolved by hearing include:

(1) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability compensation or permanent total disability compensation.

(2) The date that the employee reached maximum medical improvement following the accident of April 2, 2013.

EVIDENCE PRESENTED

The employee testified at the hearing in support of his claim. Also, the employee presented at the hearing of this case the testimony of his vocational expert, Phillip Eldred. In addition, the employee offered for admission the following exhibits:

Exhibit 1.............................. General Leonard Wood Army Community Hospital

Exhibit 2.................................................................. Mercy Hospital Springfield

Exhibit 3........................................................... Mercy Hospital Springfield-MRI

Exhibit 4.................................................................. Concentra Medical Center

Exhibit 5................................................. Springfield Neuro & Spine Inst., - Dr. Lennard

Exhibit 6............................................................ Peak Performance Physical Therapy

Exhibit 7....................................................................... Cox Health South ER

Exhibit 8............................................................... Fordland Clinic, Jean Smith, FNP

Exhibit 9....................................................................... Cox Health - MRI

Exhibit 10.............................................................. Springfield Neuro - Dr. Lennard and Dr. Cunningham

Exhibit 11........................................................... Mercy Clinic, John R. Essman, PsyD

Exhibit 12............................................................... Work Eval. & Ergo. Assessments, Nancy Beisswenger

Exhibit 13............................................................... Southwest Spine & Sports, Cary Marquis, M.D.

Exhibit 14.............................................................. Springfield Neuro & Spine Inst. - Jeffrey Woodward

Exhibit 15....................................................................... Dr. Robert Paul

Page 4

Issued by DIVISION OF WOL RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

Exhibit 16

Ozarks Pain Specialists, Wayne H. Wallender, DO

Exhibit 17

Burrell Behavioral Health - Linda Lzaaari, APN

Exhibit 18

John Essman - Mercy Clinic Behavioral Health

Exhibit 19

Paul Leverington, MSSW, LCSW

Exhibit 20

Ferrell Duncan Clinic - Dr. Shimizu

Exhibit 21

Cox Hospital - MRI Report

Exhibit 22

Kent W. Franks, Ph.D., LLC

Exhibit 23

Fordland Family Medical, LLC

Exhibit 24

MIME, LLC - Mitchell C. Mullins, DO

Exhibit 25

Withdrawn after objection by SIF counsel

Exhibit 26

Withdrawn after objection by SIF counsel

Exhibit 27

Withdrawn after objection by SIF counsel

Exhibit 28

Withdrawn after objection by SIF counsel

Exhibit 29

Withdrawn after objection by SIF counsel

Exhibit 30

Withdrawn after objection by SIF counsel

Exhibit 31

Rehabilitation Consulting Services - Phillip Eldred

Exhibit 32

Rehabilitation Consulting Services - Phillip Eldred

Exhibit 33

Rehabilitation Consulting Services - Phillip Eldred

Exhibit 34

Phillip Eldred's Curriculum Vitae

Exhibit 35

Deposition of Dr. Mitch Mullins

Exhibit 36

Dr. Mitch Mullins' Curriculum Vitae

Exhibit 37

Dr. Kent Franks' Curriculum Vitae

Exhibit 38

Stipulation for Compromise Settlement for Injury #12-024400

Exhibit 39

Stipulation for Compromise Settlement for Injury #13-023689

Exhibit 40

Paycheck stub for pay period 2-28-13 to 3-6-13

Exhibit 41

Paycheck stub for pay period 3-14-13 to 3-20-13

Exhibit 42

Paycheck stub for pay period 3-28-13 to 4-3-13

SIF's objections to the admission of Exhibits 40, 41, and 42 were overruled. The identified exhibits were received and admitted into evidence.

The Second Injury Fund did not present any witnesses at the hearing of this case. However, the Second Injury Fund did offer for admission the following exhibits:

Exhibit I

Deposition of James M. England, Jr.

Exhibit II

Deposition of James Collins

The exhibits were received and admitted into evidence.

In addition, the parties identified several documents filed with the Division of Workers' Compensation, which were made part of a single exhibit identified as the Legal File. The undersigned took administrative or judicial notice of the documents contained in the Legal File, which include:

- Notice of Hearing

- Amended Claim for Compensation 2-25-15

- Answer of Employer/Insurer to Amended Claim for Compensation 3-9-15

- Answer of Second Injury Fund to Amended Claim for Compensation 3-16-15

Page 5

Issued by DIVISION OF WOK. .RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

- Claim for Compensation 8-1-13

- Answer of Employer/Insurer to Claim for Compensation 8-15-13

- Stipulation for Compromise Lump Sum Settlement Inj. No. 13-023689

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any exhibit by the undersigned judge.

Employee, James Collins, is currently 53 years of age and had been an employee of Kone, Inc., since April 1997 until the day he stopped working for that company on July 12, 2013. Employee is a high school graduate and has worked in elevator repair and construction for Kone, Inc. The employee's testimony at the hearing revealed that he started working as a truck driver for Kone and then became an elevator repair apprentice and finally worked his way up to journeyman status. That was the position he held for several years before the accident occurring on April 2, 2013.

Prior to sustaining the work injury of April 2, 2013, Mr. Collins had suffered a prior work-related injury to his lumbar spine on April 10, 2012. Following the April 2012 injury, the employee was off work for a period of months and received authorized medical treatment from the workers' compensation doctors up through November of 2012.

On November 28, 2012, Dr. Lennard determined that Mr. Collins was at MMI and provided a permanent partial disability rating of 8% to the body as a whole. He also provided permanent lifting restrictions of 40 pounds and Employee should avoid prolonged bending. The release also notes Hydrocodone will be required as needed to treat the continuing pain.

The employee sought additional treatment through his personal insurance on December 7, 2012. At that time, FNP Jean Smith ordered an MRI that revealed a broad-based disc bulge at the L4-L5 level with an annular tear in the left lower location. This resulted in a nerve root displacement that caused the related symptoms of mild left-sided neural foraminal. FNP Smith noted complaints that were consistent with the prior symptoms of radiculopathy in the left leg as reported by Dr. Lennard.

Mr. Collins was involved in an accident occurring on April 2, 2013, while working for his employer, Kone, Inc., at the Missouri State University campus in Springfield, Greene County, Missouri. On that date, he was on top of an elevator where an individual had been stranded and was attempting to get down in a bent position to release the emergency hook and in doing so felt a pop in his low back. Mr. Collins at that time was bent over in an awkward position on his knees. Immediately after that particular occurrence, he felt low back pain on the left side of his back and experienced numbness and pain in his left leg all the way to the foot. He

Page 6

Issued by DIVISION OF WOK. ...RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

was sent by his employer for treatment to Dr. Jeffrey Woodward in Springfield, Missouri, who treated him for a period of time and released the employee at the end of May 28, 2013. (Exhibit 14) The employee was concurrently treated through his personal insurance by Dr. Cary Marquis up through June 13, 2013. (Exhibit 13)

The following is a chronology of the medical treatment employee received from January 8, 2013, through June 13, 2013. This history is based upon the medical records of Dr. Richard Shimizu (Exhibit 20), Dr. Cary Marquis (Exhibit 13), and Dr. Jeffrey Woodward (Exhibit 14). The employee testified that the care he received from Dr. Marquis was treatment sought at his own direction while the treatment by Dr. Woodward was provided through the employer's workers' compensation insurer.

**January 8, 2013, Dr. Shimizu notes** treatment for back pain related to employee's work injury in April of 2012. At that time "[p]ain is mostly in the left low back and radiates to left buttocks and some numbness in the left leg." Mr. Collins reported suffering a "re-injury" in July and requested another MRI through the workers' compensation doctors, but was denied. A second MRI was obtained through a Fordland Clinic in December of 2012 that revealed a disc bulge that was displacing the left L4 nerve root. The prior MRI obtained in April of 2012 reported no nerve compression.

**February 12, 2013, Dr. Marquis' record notes** Mr. Collins was referred from Dr. Richard Shimizu for back pain. Under the History of Present Illness, it was noted:

> "Duration & Cause: 04/12/2012 work injury was climbing up a ladder and keys got stuck and he felt a pop in the back. Has been released by W/C at MMI.

>

> Description: pain seems to be in the low back and radiates into the left leg to the foot. Some numbness and tingling. No weakness. pain seems to be a sharpshooting pain.

>

> Better with: standing

>

> Worse with: riding, driving, sitting walking

>

> Current Pain Score: 7/10

>

> Pain Score at Best: 4-5/10

>

> Pain Score at Worst: 10/10"

Under the section Physical Exam, the following was recorded:

> "LUMBAR SPINE: Dim ROM with flexion, extension, side bending, and rotational movements. Pain noted on these ranges of motion. No gross instability or subluxation noted at lumbar spine. Tenderness to the lumbar paraspinal on the right with spasm noted. No tenderness to palpation over the lumbar spine."

Additionally, the Assessment & Plan notes "Spasm of Muscle." The employee was prescribed tizanidine HCL for muscle spasms.

**March 19, 2013, Dr. Marquis records that Employee** was going to therapy and was about 20% better. The doctor reports identical entries for Duration & Cause and Description histories, as

Page 7

Issued by DIVISION OF WOR. RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

well as the physical exam note for the lumbar spine. There was a difference in the Current Pain Score, as Employee reported it to be 5/10 at the time of his exam. It also was noted that the Spasm of Muscle had improved.

April 2, 2013, is the date Mr. Collins testified he was injured when bending to unlatch a release on an elevator. There was no medical treatment on this date.

April 4, 2013 at 9:35 a.m., Dr. Marquis electronically signed the medical record of the office visit he had with Mr. Collins. Mr. Collins reported to the doctor that the injection had not helped with his pain. He also noted "[h]is job is making the pain worse." He also noted an increased Current Pain Score of 9/10. The other reports of pain radiating into the left leg to the foot, numbness and tingling, and sharpshooting pain remained the same as reported during the prior office visits.

Trigger point injections were performed in the lumbar spine, and the employee was ordered off work for two weeks.

April 10, 2013, Dr. Woodward reported examining the employee due to a referral from Concentra. He reported the Concentra exam as being on the Thursday following injury, which would be April 4, 2013. The records entered into evidence do not contain a copy of the notes from the April 4, 2013, Concentra visit.

In the history of the employee's present illness the injury date of April 10, 2012, and cause of injury are reported. It was also noted, "[h]e re-aggravated his back last Tuesday while bending down on knees and bending over releasing a door restrictor on and elevator and felt a pop at that time. He states stiffness in his low back immediately."

Recent lumbar pain was indicated as 7/10 at best and 10/10 at worst. Employee also reports numbness left anterior thigh, left posterior thigh, left shin, and left calf. "Patient reports chronic left LE numbness in the past year; one month ago had daily lumbar spine pain and left LE numbness in diffuse thigh area and occasionally in left calf/shin and left foot. All along will have episodes of left LE sensation normal."

Dr. Woodward concluded "The prevailing cause of the patient's current lumbar spine pain and LE symptoms would be the previous lumbar spine work injury condition and no new 2013 injury has occurred based on patient's current spine pain symptoms identical to his late 2012 symptoms." Employee was returned to work with modified duties, was prescribed medications, and ordered for a follow-up visit.

April 17, 2013, Dr. Woodward indicated that the employee reports good gradual lumbar pain improvements in the past week. Recent lumbar pain was reported to be a 2/10 at best and a 10/10 at the worst. He continued to report numbness into the left leg and left foot. Employee was returned to work with 25 pounds lifting restriction and ordered to follow-up in a week.

April 18, 2013, Dr. Marquis reports that the injection did help with Employee's pain and that he has seen a "Work comp Doctor" who started him on two medications. The Duration & Cause remained to be noted as the 4/12/2013 work injury. The medical record of this day's exam fails to mention a new injury on April 2, 2013.

Page 8

MNKOI 0000811657

Issued by DIVISION OF WOK

,RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

The doctor notes identical complaints concerning the left lower extremity and lumbar spine as those reported during the February 12, 2013, March 19, 2013, and April 4, 2013, office visit records. There was one difference noted in that the Current Pain Score at this office visit was improved to 5/10 as compared to 9/10 on April 4, 2013.

April 22, 2013, Dr. Woodward: "Patient reports increase in lumbar spine pain with drive to Ft. Wood on 4-19; worked on elevator base and returned; 10/10 pain after completing that job; Pain continues in same region of lumbar spine as previous." Employee also indicated riding, bending, and twisting aggravates pain. Mr. Collins claimed the lumbar epidural steroid injection provided in March by Dr. Marquis through his personal insurance was of minimal relief.

Continuing numbness in the left anterior thigh and left posterior thigh were noted with the absence of any mention of the left calf and/or left foot. Employee was suffering recent lumbar pain of 4/10 at best and 10/10 at worst.

April 29, 2013, Dr. Woodward: "Gradual lumbar spine pain improvement in the past several days; he reports typically mild lumbar spine pain after resting over weekend and increased lumbar pain by Wed. of work week." The recent lumbar pain was indicated to be 2/10 at best and 8/10 at worst. The other complaints were similar to those presented on April 22, 2013.

May 28, 2013, Dr. Woodward: "Patient working in shop lately; no heavy lifting; Patient reports recent lumbar spine and LE symptoms now at routine baseline lumbar spine region." He reported that recent lumbar pain as 3/10 at best and 10/10 at worst.

The plan was that "Patient can resume full time work duties with same permanent work restrictions as ordered by Dr. Lennard in late November 2012; Lifting and spine postural recommendations reviewed with the patient today. Patient is at MMI for the work injury lumbar spine condition, no additional medical test or treatments are necessary.

I have no changes to recommend to Dr. Lennard's previous permanent work duty restrictions or work injury disability rating." (Emphasis added)

The limitations/restrictions provided were:

"Bending: no prolonged bending at waist

Pushing: 0-40 pounds Continuously (>2/3 of time)

Lifting: 0-40 pounds Continuously (>2/3 of time)

Pulling: 0-40 pounds Continuously (>2/3 of time)"

"Also, patient is restricted to no prolonged bending at waist which includes bend or stoop postures; he is medically released to perform bending and stooping posture no more than 30 minutes continuous at any one time and no more than one half total work shift."

Page 9

Issued by DIVISION OF WOK ...RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

The IME reports of Dr. Robert Paul and Dr. Mitchell Mullins were entered into evidence, as well as the deposition testimony of Dr. Mullins. Both doctors were retained to provide opinions on behalf of the employee, but they differed significantly pertaining to the April 2, 2013, injury. The doctors reviewed the same treatment records and personally examined the employee in reaching their diverse opinions.

Dr. Paul's report was dated October 23, 2013, following the independent medical examination that was conducted on August 30, 2013. His report summarizes medical records for treatment dates through May 28, 2013. The doctor's history from Mr. Collins, medical record review, and opinions concerning permanent partial/total disability do not mention or make reference to the April 2, 2013, injury. On the other hand, Dr. Mullins reviewed the same treatment records from Dr. Marquis and Dr. Woodward in determining that permanent partial disability had resulted from the April 2, 2013, event.

Dr. Paul and Dr. Mullins both opined that employee has permanent restrictions of lifting/carrying 10 pounds occasionally, periodically alternate sitting and standing less than 30 minutes to relieve pain, and never climbing ladders. Dr. Paul opined that Mr. Collins should never be subjected to stooping, kneeling, crouching, or crawling. While Dr. Mullins indicated at the time of his IME in July 2015 that the employee can "occasionally" engage in those same activities.

In terms of his current conditions and complaints, Mr. Collins testified that now he continues to have daily back pain, muscle spasms, and left leg pain and numbness down into his foot. He indicated that he has difficulty concentrating due to the pain and has to switch positions on a frequent basis. He can't lift more than 10 pounds comfortably and has to switch from sitting to standing approximately every 15 to 20 minutes. He indicated that he has to lie down on a daily basis several times a day and was limited in doing household chores. He had been on narcotic pain medication following both the 2012 and 2013 accidents. However, now he cannot take any narcotic pain medication because of the addictive effect of the medication and takes over-the-counter Tylenol and Aleve to help relieve the pain. He testified that following the 2012 occurrence, Dr. Lennard had him on hydrocodone, but that after the 2013 accident his pain was worse and his pain medication was changed to Oxycodone at the time of his last office visit with Dr. Marquis on June 13, 2013.

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

Page 10

Issued by DIVISION OF WOK_RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

I. Accident & Injury

The parties readily acknowledge that the evidence is supportive of a finding that on April 2, 2013, James Collins sustained an injury by accident, which arose out of and in the course and scope of his employment with the employer Kone, Inc. The injury by accident occurred while working for his employer, Kone, Inc., at the Missouri State University campus in Springfield, Greene County, Missouri. On that date, he was on top of an elevator where an individual had been stranded. He was attempting to get down in a bent position to release the emergency hook and in doing so felt a pop in his low back. Mr. Collins at that time was bent over in an awkward position on his knees. Immediately after that particular occurrence, he felt low back pain on the left side of his back and experienced numbness and pain in his left leg all the way to the foot.

Mr. Collins called his employer to report the incident. He was provided treatment through Concentra and was referred to Dr. Woodward who diagnosed a re-aggravation of his ongoing lumbar back problems that resulted from the April 10, 2012, injury. Dr. Woodward treated employee through May 28, 2013, when he was placed at MMI and provided permanent restrictions identical to those provided by Dr. Lennard in November of 2012. Dr. Marquis provided treatment to the employee from February 12, 2013, through June 13, 2013. Records from that period of treatment parallel complaints and treatment that was concurrently being provided by Dr. Woodward following the April 2, 2013, event.

After consideration and review of the evidence and relying upon the treatment provided by Dr. Woodward and Dr. Marquis, I find and conclude that the injury to Mr. Collins' low back on April 2, 2013, was in the nature of an aggravation of the pre-existing condition which was transient and returned to baseline by May 28, 2013. Furthermore, the nature and extent of this injury caused Mr. Collins to experience temporary increased pain and numbness in his low back and left thigh, left calf, and left foot.

III. Nature & Extent of Permanent Disability

The parties acknowledge and stipulate that Mr. Collins sustained a compensable incident of occupational disease. Further, the employee and employer and insurer entered into a Stipulation for Compromise Settlement, agreeing to resolve the underlying claim for payment of a lump sum of $30,000.00 based upon, among other consideration, approximate disability of 15% of permanent partial disability to the body as a whole.

Effect of Stipulation for Compromise Settlement between Employee & Employer/Insurer in Injury No. 13-023689

In considering assessment of permanent partial disability attributable to the occupational injury to Mr. Collins' lumbar spine, it is recognized and understood that this assessment relates to a work injury; and the employee and employer/insurer resolved the underlying claim against the employer/insurer by entering into a Stipulation for Compromise Settlement. In regards to this Stipulation for Compromise Settlement, I am not unmindful that any assessment of permanent partial disability by the undersigned administrative law judge referable to this work injury need not be identical to or governed by the percentage of disability identified in the Stipulation for

Page 11

Issued by DIVISION OF WOK...RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

Compromise Settlement. The Second Injury Fund was not a party to the settlement agreement, and the terms of the settlement agreement between the employee and employer/insurer are not binding on the Second Injury Fund. The traditional doctrine of res judicata is not applicable to this case, which prohibits the same parties from relitigating the same issue of action. *Peoples-Home Life Ins. Co. v. Haake*, 604 S.W.2d 1, 7 (Mo. App. W.D. 1980)

Similarly, a doctrine closely related to res judicata, called issue preclusion, and more commonly referred to as collateral estoppel, is not applicable to this case. This doctrine "provides that an issue judicially determined in one action may not be relitigated in another action." *Seifner v. Treasurer of State-Custodian of the Second Injury Fund*, 362 S.W.3d 59, 64 (Mo. App. W.D. 2012), quoting, *Shahan v. Shahan*, 988 S.W.2d 529, 532 (Mo. banc 1999). In examining the meaning of this doctrine and in giving consideration to its applicability, the court noted the need to satisfy four elements:

1. whether the issue decided in the prior adjudication was identical with the issue presented in the present action;
2. whether the prior adjudication resulted in a judgment on the merits;
3. whether the party against whom collateral estoppel is asserted was a party or was in privity with a party to the prior adjudication; and
4. whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.

*Id. at 64.*

Notably, in *Seifner*, the employee sought to establish the existence of these elements and argued that the Stipulation for Compromise Settlement constituted a judgment on the merits, premised on the statutory requirement that settlement agreements must be approved by an administrative law judge or the Commission. See, Section 287.390, RSMo. Responding to this argument, and concluding that a Stipulation for Compromise Settlement approved under Section 287.390, RSMo is not a judgment on the merits, the court reasoned as follows:

Although the settlement must be approved, "[t]he ALJ has no power to coerce a settlement of a workers' compensation claim, but only has veto power to refuse to approve the settlement already made if he deems it not in accordance with the rights of the parties." *Conley*, 999 S.W.2d at 274; § 287.390. The settlement entered into by Seifner and Employer was voluntary and based upon their own stipulations. In a case involving similar circumstances, this court found that a consent order based upon the joint stipulations of the parties did not constitute a judgment on the merits for the purposes of collateral estoppel. See *State ex rel. Malan v. Huesemann*, 942 S.W.2d 424, 430 (Mo.App. W.D.1997). Although the settlement was reviewed by an administrative hearing commission, the commission merely found that the stipulations were true as agreed to by the parties. *Id.* at 429. Therefore, this court found that where the commission did not independently review the stipulations to determine whether the facts contained therein were true, the consent order did not constitute a judgment on the merits. *Id.* at 429-30.

The same reasoning applies in this case. Although Section 287.390 requires an ALJ or the Commission to approve the settlement, the administrative body need

Issued by DIVISION OF WOK ...RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

only determine that the settlement is in accordance with the parties' rights; it does not engage in independent fact-finding regarding the parties' stipulations. Therefore, the settlement agreement between Seifner [Employee] and Employer did not constitute a judgment on the merits of the issue for the purposes of collateral estoppel.

*Id.* at 65.

Preeminently, at most, the percentages of disability referenced in the Stipulation for Compromise Settlement serves as a basis for explaining the payment of the compromise lump sum amount and nothing more. And the judge's approval of the settlement agreement is nothing more than a determination that the settlement agreement is in accordance with the rights of the parties.

After consideration and review of the evidence, I render an assessment that there is no permanent disability referable to the underlying claim (low back injury of April 2, 2013). The nature and complexity of this work injury, particularly in light of prior injuries to the lumbar spine, necessitates evidence of expert medical opinion identifying permanent disability attributable specifically to this work injury.

Here, Dr. Woodward at the conclusion of his treatment of the employee opines there is no permanent disability attributable to this work injury. Counsel for Mr. Collins retained Dr. Mullins who performed an independent medical examination on July 29, 2015, found Employee to have 5% permanent partial disability to the body as a whole due to the re-injury of April 2013. While both Dr. Woodward and Dr. Mullins are credible, to the extent that the physicians disagree on the issue of permanent partial disability, I accept the opinion of Dr. Woodward as more persuasive. Furthermore, in light of the disparity that exists between the permanent partial disability set forth in the Stipulation for Compromise Settlement versus the opinions of medical experts I give no weight to the assessment of permanent partial disability agreed to by the employee and employer/insurer.

III. Liability of Second Injury Fund

The liability of the Second Injury Fund for permanent disability compensation is governed by the provisions of Section 287.220.2, RSMo. In light of this statute and the facts presented, the evidence is supportive of a finding that the Second Injury Fund is not liable for payment of permanent total disability compensation or permanent partial disability compensation.

"Fund liability for PTD under Section 287.220.1 occurs when [the employee] establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For [the employee] to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD."

*Lewis v. Treasurer of Mo.,* 435 S.W.3d 144, 157 (Mo. App. 2014).

Page 13

TI11611388

Issued by DIVISION OF WOR. .RS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

Section 287.220 requires that there must first be a determination of the liability of the employer for the last injury, considered alone. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003). Accordingly, pre-existing disabilities are irrelevant until the employer's liability for the last injury is determined. *Id.*

The injury of April 2, 2013, did not result in any permanent partial disability. This finding precludes liability against the Second Injury Fund in this matter.

On November 28, 2012, Dr. Lennard placed Mr. Collins at MMI, provided permanent work restrictions, and continuing medications. Within 10 days of his release from Dr. Lennard's care, employee sought additional medical treatment for continuing problems with his back. He first sought follow-up treatment with FNP Smith on December 7, 2012. Next he treated with Dr. Shimizu on January 8, 2013, who referred him to further treatment with Dr. Marquis.

Dr. Marquis treated the employee from February 12, 2013, through June 13, 2013, and his bills were paid by the employee's personal health insurance. The medical records from prior to the April 2, 2013, event reveal complaints of low back pain that radiates into the left leg and left foot. During that same period numbness and tingling, as well as muscle spasms were also noted.

Following the April 2, 2013, accident Mr. Collins first sought treatment the morning of April 4, 2013, with Dr. Marquis. He was placed off work for two weeks due to increased pain and symptoms. Dr. Marquis' medical record on that date does not indicate any cause for the complaints other than the reference back to the April 10, 2012, injury. That same day, Mr. Collins was sent to Concentra for treatment through his employer's workers compensation coverage.

The employee treated with Dr. Marquis and Dr. Woodward concurrently up through May 28, 2013. On that date Dr. Woodward place Mr. Collins at MMI, returned him to work with the same restrictions provided by Dr. Lennard on November 28, 2012. The treatment with Dr. Marquis concluded on June 13, 2013. On August 30, 2013 Dr. Paul was retained and performed an IME on behalf of the employee. Dr. Paul's report does not report an April 2, 2012 injury even though he took a history from Mr. Collins and reviewed the treatment records of Dr. Marquis and Dr. Woodward.

At the hearing, Mr. Collins testified that prior to the April 2, 2012, injury he had numbness that would only go down into his left thigh. After the accident he claims to have had numbness that would go all the way down his left leg into the foot. He also reports having shooting pain into his left buttock and muscle spasms that were not occurring prior to his injury of April 2, 2013.

However, Dr. Shimizu's medical record from January 8, 2013, and Dr. Marquis medical treatment records from February 12, 2013, and March 19, 2013, all note Employee's complaints of pain radiating into the left buttock and leg. At the time of both of the pre-injury office visits, Dr. Marquis noted that pain was sharpshooting and would radiate into the leg to the foot.

Mr. Collins' testimony about worsening pain and numbness following the April 2, 2013, injury versus what he experienced before does not comport with what is reflected in the medical records. The treating doctors made their records at or near the time of the event, and they are

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Collins

Injury No. 13-023689

disinterested parties in this matter. The employee was treated by both a workers' compensation

doctor and his self-selected physician during this period. Both doctors were consistent in what

was reported in their records regarding employee's symptoms.

I find Mr. Collins' testimony about worsening problems following the April 2, 2013,

accident to be less than credible. The treatment records reflect relatively consistent complaints

of pain and numbness before and after the injury. He also testified by way of his deposition and

at the hearing that he was unable to return to the field to perform elevator repair work following

the April 2, 2013, However, Dr. Woodward's record of April 22, 2013, notes the employee's

pain was increased on April 19, when he drove to Fort Leonard Wood to work an elevator.

Overall, I do not find Mr. Collins' testimony to be credible.

Dr. Marquis' treatment records do not reference the April 2, 2013, injury. Dr. Paul's IME

conducted within five months of the April 2, 2013, injury also makes no mention of the event in

the history reported by employee, in the records reviewed summary or in his opinions. It is not

until after the claim between the employer/insurer was settled in May of 2015 that Dr. Mullins

conducts his IME on July 29, 2015, which is the only medical opinion attributing permanent

partial disability to the April 2, 2013, injury.

I find the treatment records of Dr. Marquis, Dr. Shimizu, and FNP Smith, as well as the

opinions and treatment records of Dr. Lennard and Dr. Woodward to be the most credible. After

a review of the evidence and relying upon the aforementioned medical records, I find there is no

permanent partial disability as a result of the April 2, 2013, injury. I further find for the Second

Injury Fund as it does not have any liability in this claim.

I certify that on 6/19/17

I delivered a copy of the foregoing award

to the parties to the case. A complete

record of the method of delivery and date

of service upon each party is retained with

the executed award in the Division's case file.

Made by:

Kevin A. Elmer

Administrative Law Judge

Division of Workers' Compensation

By: 140