Mark Hillyard v. American Staffing, LLC

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 12-030075

**Employee:** Mark Hillyard

**Employer:** American Staffing, LLC (settled)

**Insurer:** State National Insurance (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. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge (ALJ). We adopt the findings, conclusions, decision, and award of the ALJ to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

At hearing, the ALJ defined the issues for disposition as (1) medical causation; (2) permanent total disability (PTD); and (3) liability of the Second Injury Fund (SIF).¹

The ALJ found:

- Employee, a welder, sustained a work-related injury to his back on March 22, 2012, while twisting and bending to move boxes.

- Employee's injury resulted in 15% permanent partial disability (PPD) to his low back.²

- The parties' stipulation that the employee's injury arouse out of and in the course of his employment rendered the previously identified issue of medical causation moot.³

- The employee had injuries and disabilities preexisting his March 22, 2012, work injury that were disabling and a hindrance or obstacle to his employment or reemployment.

- The employee reached maximum medical improvement (MMI) on March 22, 2012.

- Based on the opinions of Dr. David Volarich and vocational rehabilitation counselor Timothy G. Lalk, the employee is PTD.

- The employee is PTD as a result of the combination of the primary injury on March 22, 2012, and his preexisting disabilities.⁴

- The Second Injury Fund (SIF) is responsible for permanent total disability (PTD) benefits starting on May 17, 2013, for life in the amount of $333.18 per week.

---

1 Transcript, 3.

2 This disability finding is consistent with a Stipulation for Compromise Settlement with the employer/insurer Administrative Law Judge Joseph Keaveny approved on January 3, 2017, Transcript, 570-571.

3 Award, 13.

4 The ALJ's "Conclusion" states "Claimant has proven he is permanently and totally disabled due to his work injury of March 22, 2012 (emphasis added)." Award, 16. This statement incorrectly suggests the employee's permanent and total disability is exclusively attributable to his March 22, 2012, work injury. We disregard this misstatement, noting it is inconsistent with the ALJ's Rulings of Law, which specifically find employee "permanently and totally disabled as a result of the combination of his primary and preexisting disabilities (emphasis added)." Award, p. 15.

Injury No.: 12-030075

Employee: Mark Hillyard

-2-

The SIF filed a timely application for review, alleging the ALJ's award is erroneous for the following reasons:

- Employee did not reach MMI until he was released from treatment on 4/18/12.

- The ALJ failed to address the issue of medical causation "in that the overwhelming weight of the evidence proves the primary injury did not result in any significant disability because two medical experts found Employee had no disability as a result of the primary injury and even Employee's own expert struggled to differentiate between Employee's prior and primary back condition."

- "The overwhelming weight of the evidence illustrates that Employee was not permanently totally disabled due to a combination of his primary and prior disabilities because Employee was not a reliable witness, Employee's experts were not reliable witnesses, and the credible testimony of [vocational rehabilitation expert] Gary Weimholt was not even considered."

For the reasons stated below, we modify the award and decision of the ALJ referable to the issues of: (1) medical causation of permanent partial disability relating to employee's March 22, 2012, injury and (2) MMI.

Discussion

Medical Causation of PPD relating to Employee's Primary Injury

The SIF alleges that the ALJ erred in failing to address the issue of medical causation of disability relating to the employee's primary injury on March 22, 2012. Employee's attorney concedes this issue in his brief.

We credit the expert opinion of Dr. David Volarich that the employee's March 22, 2012, work injury was the prevailing factor causing permanent partial disability of the lumbar spine. We note that on April 18, 2012, employee's treating physician Dr. Arekapudi assessed the employee's condition as disc degeneration and sprain in the lumbar region. We find that the weight of the evidence in the record supports the ALJ's finding of 15% PPD relating to the primary injury.

The employee has satisfied his burden on the issue of medical causation of permanent partial disability relating to his March 22, 2012, injury.

Maximum Medical Improvement

Counsel for the SIF and employee's attorney agree that the employee did not reach MMI on the date of his March 22, 2012, injury.

The SIF argues that the employee reached MMI as of the date of Dr. Arekapudi's release of employee from treatment on April 18, 2012. Employee's attorney argues that the employee reached MMI on November 13, 2013, when he completed his treatment with Jason Hamed, D. C. Neither Dr. Arekapudi's nor Dr. Hamed's charting notes associated with those dates specifically reference MMI.

Injury No.: 12-030075

Employee: Mark Hillyard

-3-

Dr. Volarich's report of October 30, 2013, specifically notes that the employee achieved MMI "based on the treatment provided to date." Based on Dr. Volarich's report we find that employee reached MMI and became permanently and totally disabled as of October 30, 2013.

**Conclusion**

We modify the award of the administrative law judge as to the issues of: (1) medical causation of PPD relating to employee's March 22, 2012, work injury; and (2) MMI.

Employer was responsible for permanent partial disability benefits for 60 weeks beginning October 30, 2013. Thereafter, employee is entitled to, and the SIF is hereby ordered to pay, permanent total disability benefits for employee's lifetime.

The award and decision of Administrative Law Judge Marvin O. Teer, Jr. dated December 11, 2017, 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 10th day of October 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

---

5 Transcript, 62, 68.

6 We note that employee and employer's January 3, 2017, Stipulation for Compromise Settlement extinguished employer's liability in this case.

Impry No.: 12-030075

Employee: Mark Hillyard

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 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 find the employee failed to prove that he sustained any significant disability as a result of his March 22, 2012, work injury or that he is permanently and totally disabled.

Both Dr. Arekapudi and Dr. Cantrell found that employee suffered a back strain as a result of the March 22, 2012, injury, however, both physicians agreed that the strain caused by employee's primary injury was not the cause of any ongoing back problems or symptoms. Rather, they considered employee's alleged problems were the result of a degenerative condition employee suffered from long before his primary injury.

Employee's own medical expert, Dr. Volarich struggled to determine the amount of disability caused by the primary injury. He initially found that employee had only 20% PPD from his preexisting injury. Less than a year later Dr. Volarich changed his rating despite employee not receiving any additional treatment or diagnosis. It is unclear why Dr. Volarich altered his rating, other than to account for employee's changing history relating to this prior symptoms and conditions. Because Drs. Cantrell and Arekapudi's opinions are consistent with the objective medical records, they should be found more credible than Dr. Volarich's assessment.

Employee testified at the trial on September 5, 2017, that he had severe back problems for years. On October 30, 2013, employee reported to Dr. Volarich that on some days he worked up to twelve hours and had been able to lift heavy weights. In his June 24, 2015, deposition, employee testified that prior to the primary injury he was able to hunt, fish, and garden. The employee reported to vocational expert Mr. Timothy Lalk that his prior medical conditions did not limit his ability to work. Vocational expert Mr. Gary Weimholt noted inconsistencies in the restrictions and limitations employee identified over time, including employee's 2015 deposition statement that he was not able to climb a ladder or clean gutters followed by an injury sustained in connection with the exact same activities several months later.

Employee's inconsistent statements demonstrate he is not a reliable witness and lacks credibility. Mr. Weimholt noted that the truthfulness of an injured worker is crucial in performing a vocational evaluation opinion. Mr. Lalk specifically opined that the employee had the ability to compete in the open labor market for part-time work as a theater usher. These opinions conflict with the conclusion that the employee is permanently and totally disabled.

For all of the above reasons, I would deny this employee's claim for benefits. I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

Employee: Mark Hillyard

Injury No.: 12-030075

Dependents: Vicky Hillyard

Employer: American Staffing, LLC (Settled)

Additional Party: Second Injury Fund

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insumer: State National Insurance (Settled)

Hearing Date: September 5, 2017

Checked by: MOT

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: March 22, 2012
5. State location where accident occurred or occupational disease was contracted: St. Louis
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: Claimant alleges injuries to his back while packing, unpacking and lifting boxes.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability:

15\% Body as a Whole (BAW) - lumbar spine

1. Compensation paid to-date for temporary disability: None
2. Value necessary medical aid paid to date by employer/insurer? $\ 3,428.94
3. Value necessary medical aid not furnished by employer/insurer? $\ 0.00

Issued by DIVISION OF WORKERS' COMPENSATION

In