Ronald Sanford v. Roto Rooter

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No. 09-099970

**Employee:** Ronald Sanford

**Employer:** Roto Rooter (settled)

**Insurer:** Amco 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 read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge (ALJ) awarding 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 ALJ with this supplemental correcting opinion.

The second sentence of the second paragraph on page 7 of the ALJ's Findings of Fact and Rulings of Law states:

> Claimant also stated that he had two different surgeries on his left shoulder; the first by Dr. Tarbox for rotator cuff tear and the second by Dr. deGrange for rotator cuff tear.

In fact, claimant recalled a 2010 left shoulder rotator cuff surgery performed by Dr. Tarbox of the Columbia Orthopaedic Group and subsequent shoulder surgery performed in 2011 or 2012 by a different surgeon in St. Louis whose name claimant could not recall. We note that Dr. Milne describes three shoulder surgeries performed in 2009, 2010 and in 2011. These observations do not detract from or affect the ALJ's correct analysis.

We affirm and adopt the award of the ALJ as supplemented herein.

The award and decision of Administrative Law Judge David L. Zerrer, issued December 6, 2017, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

We approve and affirm the ALJ's allowance of attorney's fee herein as being fair and reasonable.

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

-2-

Given at Jefferson City, State of Missouri, this **20th** day of June 2018.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

John J. Larsen, Jr., Chairman

**SEPARATE OPINION FILED**

Reid K. Forrester, Member

**Curtis E. Chick, Jr., Member**

Attest:

**Secretary**

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I am not able to conclude that the employee is permanently and totally disabled based upon a combination of his primary injury and preexisting disability.

As the Second Injury Fund's (SIF) Application for Review states:

> The ALJ's award ignored the majority of evidence from expert witnesses (emphasis added). The ALJ's award inherently relies solely on the evidence presented by Dr. Volarich and Mr. England, both of whom were retained by Employee. Numerous other experts provided testimony and reports, which were entered into evidence and support contrary conclusions.

Furthermore, as the SIF persuasively argues in its brief:

> [T]he Administrative Law Judge only arrived at the conclusion he did by finding Claimant and Claimant's experts to be [the] most persuasive. Overall, there were ten experts deposed in this case and the award appears to have relied solely on two of them, ignoring the majority of the evidence. There is a substantial amount of evidence to support contrary conclusions, including findings of permanent total disability based on the last injury in isolation, or that Employee is not permanently and totally disabled.

Based on my review of the medical records, credible medical and vocational expert testimony, I am not able to conclude that the employee is permanently and totally disabled based upon a combination of his primary injury and preexisting disability.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

*Brief of Petitioner Missouri State Treasurer, p. 21.*

Employee: Ronald Sanford

Injury No. 09-099970

Dependents:

Employer: Roto-Rooter, Setttled

Additional Party: Second Injury Fund

Insurer: N/A

Hearing Date: August 9, 2017/August 30, 2017

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: DLZ

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: July 21, 2009
5. State location where accident occurred or occupational disease was contracted: Columbia, Boone 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? N/A
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was using jackhammer when felt pain in low back
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, body as a whole
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $\ 28,412.21
16. Value necessary medical aid paid to date by employer/insurer? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

1. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: 673.70

1. Weekly compensation rate: 449.13/$422.97

1. Method wages computation: Stipulated

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer has previously resolved all issues in this claim.

1. Second Injury Fund liability: Yes X No Open

Permanent total disability benefits from Second Injury Fund:

Weekly differential $26.16 payable by SIF for 100 weeks beginning January 5, 2013, and thereafter, the sum of 449.13 per week for Claimant's lifetime, according to law

TOTAL: 2,616.00 PLUS $449.13 PER WEEK FROM DECEMBER 5, 2014 FOR CLAIMANT'S LIFETIME ACCORDING TO LAW

1. Future requirements awarded: N/A

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Lake Law Firm

WC-32-R1 (6-81)

Page 2

**Employee:** Ronald Sanford

**Injury No.:** 09-099970

**Employee:** Ronald Sanford

**Dependents:**

- **Employer:** Roto-Rooter Services

- **Additional Party:** Second Injury Fund

- **Insurer:** N/A

**Injury No.:** 09-099970

**Before the DIVISION OF WORKERS' COMPENSATION**

- **Department of Labor and Industrial Relations of Missouri**

- **Jefferson City, Missouri**

**Checked by:** DLZ

On the 9th day of August, 2017, the parties appeared before the undersigned Administrative Law Judge for final hearing. Claimant appeared in person and by his attorney, Thomas Pirmantgen. Employer, having previously settled and resolved all issues in the primary injury claim, does not appear. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, appears by Assistant Attorney General Kirsten Dunham. The record was ordered to remain open until the 30th day of August 2017.

The parties have entered into a stipulation as to certain facts which are not at issue in this claim as follows, to wit: On or about the 21st day of July 2009, Roto-Rooter Services was an employer operating subject to the Missouri Workers' Compensation Law; on the alleged injury date of July 21, 2009, Ronald Sanford was an employee of the Employer; the Claimant was working subject to the Missouri Workers' Compensation Law; the parties agree that on or about July 21, 2009, Claimant sustained an accident, which arose out of the course of and scope of employment; the employment occurred in Columbia, Boone County, Missouri, and the parties agree that Boone County, Missouri, is the proper venue for this hearing; the Claimant notified the Employer of the injury as required by Section 287.420; the Claimant's claim was filed within the time prescribed by Section 287.430; at the time of the claimed accident, Claimant's average wage was 673.70, sufficient to allow compensation rates of 449.13 for temporary total

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

disability and permanent total disability and $422.97 for permanent partial disability; temporary disability benefits have been paid in the amount of $28,412.21, prior to the date of this hearing, which represents 63-2/7 weeks of benefits; Claimant's attorney seeks approval of an attorney fee of 25% of the amount of any award; the parties further stipulate and agree that the date of maximum medical improvement was January 4, 2013.

ISSUE

The liability of the Second Injury Fund for permanent total disability or enhanced permanent partial disability?

DISCUSSION

A legal file was established for this hearing which consisted of the following documents, to wit: Report of Injury, dated July 24, 2009; Report of Injury, dated August 5, 2009; Claim for Compensation, filed with the Division December 22, 2009; First Amended Claim for Compensation, filed with the Division August 16, 2011; Second Amended Claim for Compensation, filed with the Division June 28, 2012; Answer of the Second Injury Fund to Claim for Compensation, filed with the Division December 30, 2009; Answer of the Second Injury Fund to First Amended Claim for Compensation, filed with the Division August 31, 2011; Answer of the Second Injury Fund to Second Amended Claim for Compensation, filed with the Division July 26, 2012; Stipulation for Compromise Settlement, approved by the Division August 21, 2014; Request for final Hearing, filed with the Division April 6, 2017.

Claimant offered, and there was admitted, without objection, Exhibits 1 through 21.

WV-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

Ronald Sanford, claimant herein, testified in his own behalf. He testified that he was born November 18, 1954, and has resided in Holts Summit, Missouri, for the past 20 years. Claimant did not graduate high school, but quit to enter into training as a plumber. Claimant does not have a GED certificate. At age 18, Claimant began work as an apprentice plumber and worked as an apprentice for four years until he achieved journeyman plumber status. Claimant indicated that becoming a journeyman plumber required passing a written test and an application for certification, after which Claimant could work as a plumber without supervision. Claimant worked as a journeyman plumber for about five years until he reached the certification level of master plumber.

Claimant testified that it took him ten or eleven years from his first plumber's job to achieve the status of master plumber, which allowed him to own a plumbing business and to apply for licenses and permits to install plumbing lines and fixtures. Claimant owned his own plumbing business for 24 years and performed plumbing tasks as well as working up bids, getting permits, and generally managing the business. He stated that he had as many as three employees from time to time, but Claimant worked mostly alone in the plumbing business.

Claimant testified that as a plumber he was required to do heavy lifting from time to time including handling installation of bathtubs and operating heavy equipment such as jackhammers and sewer clean-out machines. Claimant stated that he did not remember how much income he earned operating his own business, but did state that he made "good money," which he later defined as 50,000 to 80,000 annually.

Claimant testified that after 24 years in business, he became divorced and building jobs slowed to a pace that became unsustainable and he closed his business about 2006 because there was not enough work. Claimant retained his master plumber status and began working for Employer in 2007.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

Claimant testified that the Employer used Claimant as a master plumber and assigned other plumbers to work under Claimant's supervision. Claimant's job tasks included miscellaneous plumbing jobs, which involved using sewer clean-out machines, augers, and other plumbing equipment. Claimant indicated that sometimes it was difficult to get sewer machines up and down stairs. He also used a jackhammer from time to time, which was heavy work.

Claimant testified that he has no computer skills and does not do email. Claimant indicated that he had invested money into a mortgage company operated by his wife, but he did not have any managerial duties in that business and did not participate in the management or lending. He stated, "All I know is plumbing."

Claimant testified that in the early part of July 2009, he was maneuvering a sewer machine on a set of steps one-step at a time when he felt a sharp pain in his left shoulder and neck while going up the steps with the machine. Claimant did not seek immediate medical treatment following the incident.

Claimant testified that two or three weeks after the incident with the sewer machine, he was using a jackhammer to break up a floor. He stated that he was using the jackhammer in such a way as to favor use of his left shoulder, which still had pain from the earlier incident. Claimant was trying to use the jackhammer when he felt a sharp pain in his low back, which he described as a "shooting" pain with bilateral radicular pain. Claimant testified that he notified the Employer the next day and Employer told him to see his family physician for treatment and the Employer would reimburse Claimant the cost of the treatment.

Claimant testified that he went to his family doctor, Dr. Steenberger, but he refused to treat Claimant because he did not treat workers' compensation injuries. Dr. Steenberger referred Claimant to the emergency room, for which Claimant complied. Claimant indicated that he received treatment of X-rays of his shoulder and no treatment for his back pain and released.

W.C-33-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

The following day, Claimant felt worse from the pain and he returned to the emergency room for treatment where he received two shots. Claimant remained off work and was sent to Columbia Orthopaedic Group for treatment on the left shoulder where he received a steroid shot in the left shoulder. Claimant testified that Dr. Meyer treated him for his back pain. After conservative treatment, Claimant had surgery on his low back by Dr. Meyer in 2010. After a period of physical therapy for his back, shoulder, and neck Claimant was released.

Claimant testified that he saw Dr. Kitchens for treatment to his neck. He stated that Dr. Kitchens recommended surgery for a cervical herniated disc. Claimant also stated that he had two different surgeries on his left shoulder; the first by Dr. Tarbox for rotator cuff tear and the second by Dr. deGrange for rotator cuff tear.

Claimant testified that he attempted to return to work on light duty after the second shoulder surgery. The result was that he found that he could not do his job task. Claimant indicated that he could not carry anything with this left arm, his neck hurt and his back hurt. Claimant noted that he had lost some range of motion in his neck and he could hardly lift his left arm.

Claimant testified that he cannot lift things at home with his left arm. He keeps kitchen pots and pans elevated on hangers because he cannot bend down to get into kitchen cabinets. Claimant stated that he wakes up three or four times in the night because of pain and that when he does sleep, he does so on his stomach to avoid laying on his back or his left shoulder.

Claimant testified that he settled the primary shoulder and neck claim for 57.5% of the body as a whole with an injury date of July 1, 2009. He also stated that he settled the primary injury for his back for 25% of the body as a whole with an injury date of July 21, 2009. Claimant further testified that he is on social security disability and no other sources of income. He did state that he still can hunt some, but he does so by sitting at a window inside his house.

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

because he cannot walk on the uneven woods. Claimant uses an UTV to get around, and the person who resides with him helps if Claimant is successful hunting.

Claimant testified that he did own a portable lavatory business at one time, but that he lost that business as a result of a divorce.

On cross-examination by the Second Injury Fund, Claimant admitted that he does not hunt in the woods and that he uses sand bags for a gun rest when hunting from the window of his home. Claimant also admitted that he had 150 acres of land at one time, but now has 3 acres left as a result of some lot sales and a divorce.

Claimant admitted that when he attempted to return to work, he worked with trained plumbing apprentices, but generally at the Employer, plumbers worked alone. He also admitted that he did not have a problem with his left shoulder before July 2009, nor did he have a serious problem with his low back prior to July 2009.

Claimant admitted that prior to his back injury he could run and jump, but now cannot do either of those activities. He further admitted he can sit for about 20 minutes without having to move as a result of the combination of the shoulder, neck, and back injuries. He also admitted that he often uses pillows and a lumbar support when sitting in a chair to help with back pain.

Claimant admitted that he has outfitted his bathroom to be handicap accessible, and he raised the wood stove in his home by two feet so that he does not have to bend over to load wood into the firebox. He also uses a chair with wheels to assist in moving around the house.

Claimant admitted that he has not worked since his last day of employment with Employer and that he has had no treatment on his shoulder, neck, or back since about 2013. Claimant admitted that he takes medication for chronic pain; he falls one to two times per month. He has not been hospitalized for either of his injuries since treatment ended, but he did admit that he qualified for and uses a handicap-parking sticker. Claimant admitted that he uses a cane for

WIC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

assistance in walking from time to time, especially in the mornings, but generally he only has to use the cane until his body is "limbered up."

Claimant offered, and there was admitted, the deposition testimony of treating physicians Dr. Daniel Kitchens, Exhibit 8; Dr. Brian Schultz, Exhibit 9; Dr. Craig Meyer, Exhibit 10; and Dr. Michael Milne, Exhibit 12. The medical records of each treating physician were also admitted as part of the deposition testimony.

Claimant offered, and there was admitted, the deposition testimony of examining physicians Dr. Garth Russell, Exhibit 11; Dr. David Volarich, Exhibit 2; and Dr. Donald deGrange, Exhibit 7. In addition, Claimant offered and there was admitted, the deposition testimony of vocational experts Mr. James England, Exhibit 3; Mr. Gary Wiemholt, Exhibit 4; and Ms. Donna Kisslinger Abram, Exhibit 13.

The testimony of Claimant with regard to his treatment regimens was substantially supported by the medical records and testimony of the treating physicians. Dr. Garth Russell's examination report indicated that the Claimant had not reached maximum medical improvement, and in fact, Claimant received a substantial amount of treatment after the date of Dr. Russell's report.

With regard to the injury of July 21, 2009, Claimant was treated by Dr. Schultz and by Dr. Craig Meyer. Dr. Meyer administered injections in January 2010, which were not effective in relieving Claimant's symptoms. Dr. Meyer performed surgery on Claimant's back and released him to return to work on March 16, 2010. Dr. Meyer placed Claimant at maximum medical improvement on June 10, 2010, with impairment ratings of 15% of the body as a whole referable to the spine and 2% of the body as a whole referable to continuing back pain complaints of the Claimant.

WCC-32-R1 (8-91)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

With regard to the injury of July 1, 2009, Claimant was treated by Dr. Schultz, Dr. Tarbox, Dr. Milne, and Dr. Kitchens. Dr. Tarbox performed surgery on Claimant's shoulder in February 2010 and released Claimant at maximum medical improvement on July 12, 2010. Dr. Tarbox gave Claimant a disability rating of 10% at the 232-week level as a result of the injury and subsequent surgery. Claimant saw Dr. Milne for continuing complaints of pain in the shoulder and Dr. Milne performed a second surgery on Claimant's shoulder on December 23, 2011. Dr. Milne released Claimant from treatment on May 1, 2012, with a disability rating of 9% at the 232-week level. Dr. Kitchens administered conservative treatment for Claimant's neck complaints and released Claimant at maximum medical improvement on May 24, 2012.

Dr. deGrange performed an independent medical evaluation of the Claimant and issued a written report dated November 11, 2011. Dr. deGrange found Claimant to be at maximum medical improvement for the low back injury, set out certain restrictions on activities, and rated Claimant's disability at 15% of the body as a whole referable to the low back. Dr. deGrange opined that Claimant had not achieved maximum medical improvement with regard to Claimant's neck complaints.

Dr. Volarich performed two independent medical evaluations of the Claimant. He issued written reports of his findings and opinions dated August 1, 2011, and January 4, 2013. Dr. Volarich's August 2011 report set out restrictions for activities involving Claimant's shoulder but deferred findings and restrictions with regard to Claimant's back injury. His January 2013 report placed restrictions on Claimant's activities which consisted of: avoid bending, twisting, lifting, pushing, pulling, carrying, climbing, with a lifting restriction of 20 to 25 pounds and no weights lifted overhead or away from the body. Dr. Volarich further recommended that Claimant avoid fixed positions for more than 30 minutes at one time and that Claimant should rest when needed. He also restricted Claimant's left shoulder lifting to 3 pounds away from the body.

WV-32-R1 (5-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

body and 15 pounds with arm use. Dr. Volarich opined that the combination of Claimant's disabilities from the July 1, 2009, injury and the July 21, 2009, injury created a substantially greater disability than the simple sum of each injury taken separately.

Dr. Volarich opined that Claimant was unable to engage in gainful employment for eight hours per day and five days per week. He further opined that based on his medical findings, Claimant would be permanently totally disabled as a result of the injury of July 1, 2009, in combination with the injury of July 21, 2009.

Claimant offered, and there was admitted, Exhibit 5, which set out the Stipulation for Compromise Settlement of the primary claim with Employer for the July 21, 2009, injury, which was approved by the Division on August 21, 2014. The settlement provided for permanent partial disability of 25% of the body as a whole referable to the lumbar spine, which also included a Medicare set-aside agreement for future medical treatment in the amount of $51,088.01.

Claimant offered, and there was admitted, Exhibit 6, which set out the Stipulation for Compromise Settlement of the primary claim with Employer for the July 1, 2009, injury, which was approved by the Division on August 21, 2014. The settlement provided for permanent partial disability of 57.5% of the body as a whole referable to the left shoulder and cervical spine. The settlement included a Medicare set-aside agreement for future medical treatment in the amount of $51,088.01.

Mr. James England testified by deposition on behalf of Claimant. Mr. England testified that he performed a vocational assessment of the Claimant and authored a written report of his findings and conclusions dated February 20, 2013. The report states that Mr. England performed a vocational rehabilitation evaluation to determine Claimant's employability in the open labor market. Mr. England testified that he reviewed certain medical records identified in his report,

WCO-32-R1 (6-01)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

administered certain tests, and conducted an interview with the Claimant before forming his findings and opinions with regard to Claimant's employability. Mr. England testified that Claimant's math and reading skills were sufficient for Claimant to be able to work from an academic standpoint. He also stated that Claimant had a stable work history until his injuries in July 2009, including working for the primary employer in this claim, working for himself as a plumber and land developer, and at one point operating a portable toilet business.

Mr. England testified that basically Claimant had no computer experience and that Claimant always let someone else do all the paperwork such as bookkeeping and typing. Mr. England indicated that Claimant had experience in scheduling work and supervising other workers, which would give Claimant knowledge and skill to do light work but for the degree of Claimant's overall problems.

Mr. England testified that after his evaluation he was able to make some findings and opinions with regard to Claimant's employability. He stated that Dr. deGrange or Dr. Milne's restrictions, taken alone, would allow Claimant to work at the light activity level. He indicated that the restrictions and impairments set out in Dr. Volarich's reports, along with the Claimant's presentation during the evaluation, and the fact that Claimant could not sustain regular work, led him to his opinion that Claimant could not work. Mr. England also stated that the fact that Claimant sleeps about four hours per night would also be a factor. He indicated that there was no job which would allow Claimant to lie down during the workday because of pain.

Mr. England testified that the fact that Claimant had not worked in three years was also a detriment to Claimant reentering the open labor market. In addition, Mr. England indicated that the fact that Claimant takes narcotic prescription medications would be a further detriment to reentering the open labor market because of the effects of narcotics on alertness and staying awake.

WV-32-R1 (6-81)

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

Mr. England testified that he did not believe Claimant would be a good candidate for vocational rehabilitation. Claimant lacks the physical capability to carry out and sustain regular work activities.

On cross-examination by Employer, Mr. England admitted that under Dr. Milne's restrictions to the right shoulder, Claimant would be able to work. Dr. deGrange thought Claimant would be within the light to medium work activity level. He also indicated that Claimant's plumbing skills as a master plumber and his knowledge of the industry would allow Claimant to locate work; however, he further stated that a person would have to be able to be on his feet all day, be attentive to his job task, and be awake and alert throughout the day.

Mr. England admitted that Claimant should have the academic ability to learn how to use a computer. He indicated that working at places such as Home Depot or Lowes would require some computer skills and use of specialized software. He further admitted that whether Claimant can sit or stand for long periods of time, as well as Claimant getting enough sleep at night to be alert and awake during the day without periodically lying down, all combine to impede Claimant's ability to sustain work activity. He also indicated that although some of his opinions are based, in part, on Claimant's responses during the interview, he had no reason to believe that Claimant was not being truthful in his responses.

Mr. England admitted that Claimant's history of owning his own business is to some degree indicative of an ability to have supervisory and managerial skills. He further admitted that Claimant has transferable knowledge to the light activity level, such as plumbing supplies and parts sales, cost estimating for plumbing companies or home remodelers.

Mr. England admitted that Dr. Volarich's opinion that Claimant is not capable of sustaining any type of work activity from a medical standpoint is significant in forming his own

WC-32-R1 (6-81)

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

finding and opinions of Claimant's employability. He further admitted that his opinions and findings are based on assumptions that the physicians' restrictions are as stated.

On cross-examination by the Second Injury Fund, Mr. England admitted that prior to July 2009, Claimant performed work activities at the medium exertion level and higher. He further admitted that prior to July 2009 Claimant did not have any accommodations in performing his job tasks as a plumber.

Mr. England admitted that Claimant's inability to lift more than 10 pounds with his left arm and no more than 20 pounds overall was a self-restriction of the Claimant and not from a physician. He further admitted that the fact that Claimant has transferable skills does not mean he is capable of working, but that it could give Claimant some advantage in looking for alternative types of work.

Mr. England admitted that if considering Dr. Volarich's restrictions, Claimant would not be able to perform a job such as home improvement clerk or plumbing clerk, which required Claimant to bend, twist, lift, push, pull, carry, or climb.

The Second Injury Fund offered, and there was admitted without objection, SIF Exhibit A, which consisted of hunting license records of the Claimant. Claimant admitted that he has had a handicapped deer permit prior to 2009.

Mr. Gary Weimholt testified on behalf of the Second Injury Fund (Exhibit 4). Mr. Weimholt testified that he performed a vocational rehabilitation evaluation of the Claimant by means of reviewing certain medical records and the deposition of the Claimant. He issued an initial written report dated January 4, 2013. Mr. Weimholt identified his report of January 4, 2013, as Deposition Exhibit 2. Mr. Weimholt made certain findings and opinions after his review of documents in which he stated that the restrictions given by the treating physicians who treated his left shoulder or his low back would not cause Claimant to have a total

WV-32-R1 (6-81)

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

loss of labor market access. He further stated that the restrictions of Dr. Volarich for the left shoulder would not cause Claimant to have a total loss of labor market access.

Mr. Weimholt opined that because of Claimant's description of his low back problems Claimant would be disabled from access to the open competitive labor market as a result of the injury of July 21, 2009.

Mr. Weimholt issued a supplemental report dated October 21, 2013, in which he identified certain additional medical records for treatment administered to the Claimant, as well as a report of Dr. Volarich dated January 14, 2013, subsequent to a re-examination of the Claimant following the initial examination which took place August 1, 2011. Mr. Weimholt's supplemental report indicates that Dr. Volarich opined that based on his medical assessment alone, Claimant is permanently and totally disabled as a result of the work-related accident of July 1, 2009, and the work-related accident of July 21, 2009.

Mr. Weimholt opined that after a review of the additional records of Dr. deGrange, Dr. Milne, and Dr. Kitchens, he found that the Claimant is employable in the open competitive labor market. Considering the opinions of Dr. Volarich with regard to Claimant's left shoulder, Claimant is employable in the open labor market. Considering the opinions of Dr. Volarich with regard to Claimant's spine, Claimant is not employable in the open labor market as a result of the injury of July 21, 2009.

WCO-32-R1 (6-01)

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

In determining the liability of the Second Injury Fund, the first step is to consider the degree of disability related to the last injury alone. If the last injury alone results in the Claimant being permanently totally disabled, the Second Injury Fund has no further liability.

The treating physicians, who gave restrictions to the Claimant and who issued ratings of disability, did so with regard to the part of the body which they treated. The only physician who examined the Claimant and issued findings and opinions with regard to Claimant's disabilities as a combination of the injury of July 1, 2009 with the injury of July 21, 2009, was Dr. Volarich.

Both vocational evaluations reached a conclusion that Claimant was permanently totally disabled; however, Mr. Weimholt found that Claimant was disabled as a result of the last injury alone. Mr. England recognized that Claimant found it necessary to lie down during the day; however, he also attributed Claimant's lack of access to the open labor market as a combination of Claimant's education, his inability to perform tasks restricted by Dr. Volarich, as well as his inability to remain alert and awake during the day.

Claimant testified that he attempted to return to work unsuccessfully, after which he was terminated by the Employer.

Claimant settled his claim for the July 1, 2009, injury for 57.5% of the body as a whole, referable to the left shoulder and the cervical spine. Claimant settled his claim for the July 21, 2009, injury for 25% of the body as a whole referable to the lumbar spine.

After a review of all the evidence adduced at the hearing, both oral and written, and based on the record as a whole, I find that Claimant is not permanently totally disabled as a result of the July 21, 2009, injury alone. I further find that Claimant has sustained his burden of proof

WV-32-R1 (6-81)

Page 16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ronald Sanford

Injury No. 09-099970

to show by substantial and competent evidence that he is permanently totally disabled as a result of his injury of July 1, 2009, in combination with the injury of July 21, 2009.

The doctors do not agree on the restrictions and level of disability the Claimant has suffered from these two injuries. Dr. Volarich's opinions with regard to the combination results of these injuries is found to be more persuasive than the opinions of the treating physicians who treated separate parts of Claimant's body.

I further find Mr. England's analysis of the Claimant's conditions and his application of those conditions to the issue of employability in the open labor market to be more persuasive than those of Mr. Weimholt, who admitted that the Claimant may be totally disabled, but only from the last injury alone.

If the Claimant is not permanently totally disabled from the last injury alone, then the inquiry is whether he is totally disabled from a combination of pre-existing conditions with the last injury. I find that Claimant's injury of July 21, 2009, was a separate and distinct injury from the injury of July 1, 2009; therefore, the July 1, 2009, injury is a pre-existing condition in respect of this claim for the July 21, 2009, injury.

The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, is hereby ordered to pay to the Claimant the sum of $449.13 per week from and after January 4, 2013, as and for permanent total disability benefits. The Treasurer is hereby granted a credit of 100 weeks of permanent total benefits, to the extent that said weekly benefits exceed the weekly permanent partial benefits due, in respect of Claimant's primary claim settlement of 100 weeks of permanent partial disability.

The parties stipulated that Claimant's compensation rate for permanent total disability is $449.13. They further stipulated that Claimant's permanent partial disability rate is 422.97. The weekly differential due from the Second Injury Fund is 26.16 (449.13 - 422.97 =

WV-32-R1 (6-01)

Page 17

**Employee:** Ronald Sanford

**Injury No.:** 09-099970

$26.16), from and after January 4, 2013, through December 5, 2014, a period of 100 weeks.

Thereafter, the Treasurer shall pay to Claimant the sum of $449.13, for Claimant's lifetime according to law.

Claimant's attorney requested approval of an attorney fee of 25% of the amount of any award. Claimant's attorney's fee request is hereby approved. Claimant's attorney is awarded an attorney fee of 25% of the amount of this award. Claimant's attorney is hereby granted a lien on the proceeds of this award unless and until the attorney fee shall have been paid in full.

---

I certify that on **12-6-17** 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.

By **any**


Made by:

**David L. Zarrer**

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

Page 18