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.

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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

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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

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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

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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

Injury Number: 12-030075

1. Employee's average weekly wages: 500.00

1. Weekly compensation rate: 333.18 (TTD, PPD, PTD)

1. Method wages computation: By stipulation of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable:

Employer: 60 weeks for a total of $19,990.80

1. Second Injury Fund liability: Yes. Permanent total disability. See award

TOTAL: SEE AWARD

1. Future requirements awarded: Yes. See award.

Each of said payments to begin immediately and are 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 Attorney Ryan Cox for necessary legal services rendered to Claimant.

WC-32-R1 (6-81)

Page 2

**Injury No.:** 13-092446

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial**

**Relations of Missouri**

**Jefferson City, Missouri**

**Insurer:** State National Insurance (Settled)

**Hearing Date:** September 5, 2017

On September 5, 2017, Mark Hillyard ("Claimant") appeared in person at the Missouri Division of Workers' Compensation St. Louis Office for a hearing for a final award on his claim against the Second Injury Fund. (the "Fund"). Attorney Ryan Cox appeared for Claimant. The Second Injury Fund was represented by Assistant Attorney General Maggie Ahrenbach. The record closed after presentation of all the evidence. The parties filed proposed findings of fact and rulings of law were submitted on October 6, 2017. Venue is proper and jurisdiction for this matter lies within the Division of Workers' Compensation. American Staffing ("Employer") and State National Insurance ("Insurer") settled the primary injury prior to this hearing for 15% of the Body as a Whole ("BAW")[low-back], and did not participate.

1. On March 22, 2012, the Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. On March 22, 2012, Employer's workers' compensation liability was insured by State National Insurance;
3. On March 22, 2012, Claimant was an employee of Employer;
4. Venue is proper in St. Louis, Missouri;
5. The Employer had proper notice of the injury and a claim for compensation was filed within the time prescribed by law;
6. On March 22, 2012, the Claimant sustained an injury by accident arising out of and in the course and scope of his employment with Employer;

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-030075

1. The Employer paid 3,428.94 in medical expenses and 0 in temporary total disability payments;

1. The Employee's average weekly wage at the time of his work related injury was 500, at a temporary total disability rate of 333.18, a permanent partial disability rate of 333.18, and a permanent total disability rate of 333.18.

ISSUES

The issues presented for resolution by this Hearing are as follows:

1. Medical causation;
2. Nature and extent of disability from the March 22, 2012 injury;
3. Liability for permanent total disability benefits as to the SIF.

EXHIBITS

On behalf of the Claimant, the following exhibits were admitted into evidence without objection:

Exhibit 1: CV of Dr. David T. Volarich

Exhibit 2: Dr. David T. Volarich IME Report dated October 30, 2013

Exhibit 3: Dr. Volarich Addendum to IME dated May 30, 2014

Exhibit 4: Dr. Volarich Second Addendum to IME dated August 21, 2015

Exhibit 5: Dr. Volarich Third Addendum to IME dated August 10, 2016

Exhibit 6: Medical records Metro Imaging dated April 16, 2012

Exhibit 7: Medical records BarnesCare dated March 22, 2012 through April 18, 2012

Exhibit 8: Medical records SSM Medical Group dated February 20, 2012 through January 24, 2013

Exhibit 9: Medical records Jason M. Hamed, D.C. dated November 12-13, 2013

Exhibit 10: Medical records SSM Orthopedics/Dr. Richard Helfrey dated November 11, 2015 through February 24, 2016

Exhibit 11: Medical records St. Joseph Hospital West dated November 5-6, 2015

Exhibit 12: Timothy Lalk Vocational Rehabilitation Evaluation report dated April 10, 2015

Exhibit 13: Timothy Lalk Supplemental Vocational Rehabilitation Evaluation report dated September 2, 2015

Exhibit 14: Timothy Lalk Supplemental Vocational Rehabilitation Evaluation dated May 16, 2016

Exhibit 15: Timothy Lalk Supplemental Vocational Rehabilitation Evaluation dated September 2, 2016

Exhibit 16: CV Timothy Lalk

Exhibit 17: Stipulation for Compromise Settlement dated January 3, 2017

Exhibit 18: MRI report Permanente Medical Group dated July 10, 2000

Exhibit 19: Medical record Dr. Paul Ganninger dated February 24, 2014

Exhibit 20: Medical records Kaiser Permanente Hospital dated July 31, 1995 through October 5, 2004

Exhibit 21: MRI report St. Joseph Health Center dated October 7, 2008

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 12-030075

Exhibit 22: Medical record Dr. Daniel Martin dated August 8, 2000

Exhibit 23: Medical records St. Joseph Health Center dated October 30, 2008 through November 13, 2008

Exhibit 24: Medical records SSM Medical Group dated September 24, 2008 through January 4, 2013

Exhibit 25: Deposition of Dr. David T. Volarich dated December 7, 2016

Exhibit 26: Deposition of Timothy Lalk dated December 8, 2016

On behalf of the Second Injury Fund, the following exhibits were admitted into evidence without objection:

Exhibit I: Deposition of Dr. Russell Cantrell dated June 6, 2017

Exhibit II: Deposition of Gary Weimholt dated August 11, 2017

Exhibit III: Deposition of Claimant dated June 24, 2015

Any objections made during the hearing but not ruled on during the hearing or in this award are now overruled. All exhibits, not previously ruled on, are hereby admitted. To the extent there are marks or highlights contained in the exhibits, they were made prior to becoming a part of this record and were not placed there by the undersigned administrative law judge.

FINDINGS OF FACT

Claimant's Background Testimony

Claimant was born May 14, 1954 and was 63 years old on the day of the hearing and is right-hand dominant. Claimant completed the 11th grade, but did not graduate from high school but received his GED in 1971. He served in the U.S. Army from 1971-1973 as a truck driver. In 1989, Claimant completed welding school and is certified as such and has worked as a welder ever since. Claimant offered no other evidence of education or training. Claimant worked as a TIG welder at Triad Manufacturing through a staffing agency, and American Staffing, Inc., from December 2011 through March 22, 2012, when he sustained a back injury on his job. Claimant testified he has little or no computer skills, has never worked as a cashier, packing or in assembly related jobs. He has limited math skills. Claimant was approved for Social Security disability benefits.

Claimant's Medical Condition

Claimant testified on March 22, 2012, he was working for American Staffing, Inc., when he hurt his back as he was twisting and bending to move boxes. The Employer sent him to BarnesCare and, then, to Dr. Russell Cantrell, who diagnosed him with a back sprain. He then testified he has been unable to work since March 22, 2012 due to the combination of the effects of all of his injuries. Before injuring his back on March 22, 2012, he testified he was able to control his back pain with medications and had the freedom to work while seated helped. Following his work accident, he was no longer able to control his pain. He now takes Vicodin daily for pain in his back, shoulders, knees, and feet. Claimant indicated he did not take Vicodin

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-030075

on the date of the Hearing because Vicodin affects his memory. He stated several times during the hearing he was in a lot of pain and was having trouble focusing.

Prior to March 22, 2012, the claimant had seven surgeries to various body parts over the years: Two left knee surgeries and one right knee surgery in the 1990s, two foot surgeries in 1999, a right carpral tunnel release, and right shoulder surgery in 2002. Beginning in the 1990s, the claimant also developed back pain. Over the years, he received acupuncture, injections, and nerve blocks in his back. In 2010, Dr. Daniel Martin told him he needed back surgery, but the claimant declined and opted to keep working. Leading up to March 22, 2012, the claimant testified his back got sore from working but pain medications helped lessen the pain. He had to sit frequently at work but would stand when the pain got too bad.

Knee Surgeries

Claimant has had surgeries to both right and left knees. Following his knee surgeries and leading up to and beyond March 22, 2012, the claimant had ongoing pain in both knees. Prolonged standing would increase his pain and he could not run or jump. He also had difficulty climbing stairs and getting down on the ground. He could not squat without difficulty.

Foot Surgeries

Claimant had foot surgery in 1999 to remove a bone spur. He additionally had surgery to his ankle to remove a giant cell tumor. Subsequent to his foot surgeries, Claimant treated for a period with podiatrists and had foot therapy. Leading up to and beyond March 22, 2012, Claimant had ongoing pain in his feet with his left worse than his right. Climbing stairs and ladders increased his pain and his wife often had to drop him off at storefronts while she parked the car because he could not walk without difficulty and pain. Leading up to the March 22, 2012, he also has been unable to walk more than fifteen minutes before he has to stop.

Right Shoulder

Claimant testified in 2002, he developed right shoulder pain and underwent arthroscopic surgery in 2004. Following his right shoulder surgery, the claimant has had ongoing pain in his shoulder and cannot lift more than 5 pounds without pain. He has difficulty raising his arm overhead and while at Triad he had to periodically ask co-workers for help lifting things. Leading up to March 22, 2012, the claimant has also had left shoulder pain that is not as severe as the right and which also limited his ability to lift at work.

Duputytren's Contracture Disease and Right Carpal Tunnel

Many years ago, Claimant testified he was diagnosed with Depuytren's Contracture Disease in his hands, which causes them to curl up. In 2002, he also had a right carpal tunnel release. Leading up to March 22, 2012, the claimant had trouble gripping objects and was frequently dropping things at work. He also had, tingling and numbness in his hands that further impede his ability to grip and hold onto objects.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 12-030075

The claimant further testified he was diagnosed with occipital neuralgia, a headache disorder, when he was roughly 40 years old. Leading up to March 22, 2012, he would get severe headaches that would limit his ability to work and would cause him to have to stop what he was doing and take a break. Medication helped somewhat, but lying down was the best remedy. He continues to suffer from these headaches to the current day.

In 1993, Claimant was diagnosed with porphyria cutanea tarda, a blood disorder that causes blisters and skin tears when his skin is exposed to sunlight. Leading up to March 22, 2012, he was unable to work outdoors due to this condition and to the current day, he must strictly limit his exposure to sunlight. Claimant also testified he fractured both of his legs in the 1970s and also has hepatitis C, diabetes, high blood pressure, and poor hearing. Leading up to March 22, 2012, the Hepatitis C frequently caused him to feel tired.

The claimant further testified a typical day for him involves a lot of lying down and watching television. He lies down frequently to relieve his back pain. Following his work accident, all of the issues he was having in his shoulders, knees, feet, and hands have continued. He is unable to run or jump due to the pain in his knees. He can no longer fish because he cannot cast with his right hand due to poor grip and numbness in the hand, nor can he open his hands all the way. He is unable to stand on his left foot due to foot pain. He cannot stand or walk more than 15 minutes due to pain in his feet, knees, and back. He cannot lift more than 5 pounds to chest level, and he cannot reach below his knees due to back pain. Claimant testified he cannot sit on a boat due to back and knee pain, cannot hunt, do yard or housework without taking frequent breaks due to pain in his back, knees, shoulders, and feet. He added he cannot climb ladders or stairs without difficulty, and cannot do overhead lifting because of his shoulder pain and limited range of motion in the shoulder. He also testified he has poor hand strength from his contracture disease and frequently drops things as a result. He is also frequently tired due to the effects of Hepatitis C. He continues to use a cane to walk longer distances and cannot kneel or squat.

Dr. David T. Volarich testified he evaluated the claimant on October 30, 2013 at the request of the claimant's attorney. As part of his evaluation, Dr. Volarich composed a report in which he reviewed numerous medical reports of Claimants' over the course of his working life. Dr. Volarich testified Claimant told him he was employed as a welder on March 22, 2012, but had been asked to change some music chips in VCRs. Speakers were packed in boxes and he stood and reached to his left, grabbed a box off the pallet, cut it open, wiggled out the part, unscrewed the old chip, put in the new one, returned the part to the box, repacked it with Styrofoam, twisted to the right and carried each box over to a roller. Claimant was supposed to

WC-35-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-030075

do each VCR in one minute and estimated the boxes weighed about 25 pounds. The claimant worked from roughly 8:00 am -10:00pm and repetitively twisted, bent at the waist, developing pain in his low back that began to radiate to his left buttock.

According to Dr. Volarich, the claimant told him he finished the shift because his job was temporary and he was hoping to become permanently hired as a welder. In order to continue to work that day, he took boxes that were higher up on the pallets because he could not bend down to retrieve the lower boxes. He, was, then, asked to work overtime that night, but he could not due to pain.

In relation to prior back injuries and complaints, Dr. Volarich testified in 2008, the claimant had experienced back pain after shoveling with a pickax at his home. An MRI of October 7, 2008 showed degenerative changes, moderate bilateral foraminal stenosis at L4-5 and L5-S1, with degenerative disc disease and some collapse at L5-S1. The claimant was, then, examined by Dr. Stanley Martin on October 22, 2008. Dr. Martin noted low back pain that radiated down claimant's lower left extremity for years and an injection 8-10 years ago. Dr. Martin then reviewed the MRI of October 7, 2008 and compared it to a prior MRI of his lumbar spine taken in 2000 and noted there was not much difference. Dr. Martin diagnosed the claimant with a left S1 distribution pain and weakness at the L5 distribution and recommended injections.

Dr. Volarich further testified that Dr. Walter Griffin examined claimant at BarnesCare on March 22, 2012 and noted low back pain that radiated to the left buttock and diagnosed a lumbar sprain. Dr. Griffin, then, recommended ibuprofen, physical therapy, and work restrictions. On March 28, 2012, the claimant reported ongoing low back pain and increased numbness and tingling down his left leg. Symptoms persisted on April 4, 2012 and Dr. Griffin noted numbness on April 11, 2012 and ordered an MRI of the lumbar spine for April 16, 2012. The MRI showed an L5-S1 annular tear, degenerative changes most pronounced at L3-4 through L5-S1 with central canal and neuroforaminal stenosis causing nerve impingement, most pronounced at L4-5 and L5-S1. The claimant was examined and treated over the next five years by no less than five different doctors for recurring back pain and complications related to back pain, numbness and stiffness.

According to Dr. Volarich, Claimant continues to experience ongoing difficulties as a result of his March 22, 2012 work injury. He reports ongoing low back pain that radiates into his buttock and the back and front of his left leg to his foot as well as up to his mid back and left hip pain. He has difficulty bending and is unable to run or jump. Climbing stairs and ladders cause pain. He changes positions frequently. Sitting for long periods increases pain, and his buttock aches when he walks for a long time and he has difficulty with his left foot. Dr. Volarich further testified Claimant is able to drive but has difficulty doing certain tasks, like putting on his socks and shoes, vacuuming, fishing and sleeping. During the day, he mostly watches TV and does some yard work but moves at a slow pace and takes breaks to lie down.

When questioned about difficulties the claimant had with his back prior to March 22, 2012, Claimant said he had low back pain but did not experience radiating pain after the epidural steroid injections and was able to return to full duty, work 12-hour shifts, perform heavy lifting, and walk on beams. He also took ibuprofen for his knee pain but believes it also helped his back. In relation to his additional past medical background, the claimant had hypertension, hepatitis C, diabetes, reflux, occipital neuralgia, migraine headaches, and porphyria cutanea tarda. He also

WC-32-R1 (5-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 12-030075

had a fracture history of his right leg in 1972 and left leg in 1975. Surgical history was positive for left foot and leg in the 1990s, right rotator cuff repair in 1995, and bilateral knee surgeries and right carpal tunnel release in the 1990s.

At the time of his initial evaluation with Dr. Volarich, Claimant's daily medications included metformin and glimepiride for diabetes, tegratol for occipital neuralgia, amlodipine for hypertension, omeprazole for GERD, and prozac for depression. He was also taking hydrocodone up to three times per day. He was granted Social Security disability in 2012.

Dr. Volarich testified that he reviewed an MRI scan of the lumbar spine taken on April 16, 2012, which showed a large annular tear and central disc protrusion that caused impingement of both S2 nerve roots. Dr. Volarich noted at L3-4 and L4-5 he also identified disc osteophyte complexes centrally and more to the left causing some foraminal stenosis most severely on the left L5 nerve root, degenerative disc disease and degenerative joint disease throughout the lumbar spine.

Dr. Volarich testified within a reasonable degree of medical and neurological certainty, Claimant had sustained lumbar left leg radiculopathy secondary to a disc protrusion at L5-S1 with an annular tear and aggravation of underlying degenerative disc disease and degenerative joint disease including the disc osteophyte complexes to the left at L3-4 and L4-5 as a result of the work accident of March 22, 2012.

In relation to diagnoses pre-existing March 22, 2012, Dr. Volarich concluded, within a reasonable degree of medical and neurological certainty, Claimant had chronic lumbar syndrome secondary to degenerative disc disease and degenerative joint disease including disc osteophyte complexes most prominent at L4-5 and L5-S1. Dr. Volarich further testified the work accident that occurred on March 22, 2012, when the claimant was replacing chips in defective speakers and had to repetitively lift, unpack, and repack boxes and, then, place them on rollers which required him to repetitively bend and twist at the waist while lifting, is the substantial contributing factor, as well as the prevailing or primary factor, causing his lumbar left leg radiculopathy secondary to the disc protrusion with annular tear at L5-S1, as well as aggravation of underlying degenerative disc disease and degenerative joint disease at L3-4 and L4-5.

Dr. Volarich further concluded the work accident was the prevailing factor causing the symptoms, need for treatment, and resulting disabilities. He further concluded Claimant was at MMI. Dr. Volarich testified within a reasonable degree of medical and neurological certainty, Claimant had the Following permanent restrictions, referable to the spine after March 22, 2012; to avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing and similar tasks. Dr. Volarich recommended that the claimant not handle weights of more than about 20 pounds, limiting that to an occasional basis with proper lifting technique. Dr. Volarich added additional restrictions of not handling weight over his head or away from his body or carried over long distances or uneven terrain, avoiding staying in a fixed position for any more than 30 minutes at a time including both sitting and standing, and changing positions frequently to maximize comfort and rest.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 12-030075

Timothy G. Lalk

Timothy Lalk, a vocational rehabilitation counselor with 38 years of experience evaluated the claimant at the request of his attorney on February 17, 2015. Mr. Lalk had reviewed claimant's medical records and also received information from claimant about his medical history and medical treatment, including current symptoms and limitations.

Mr. Lalk also took a history of claimant's education, vocational training, work history and recreational activities to find marketable skills. He also performed vocational testing. Mr. Lalk, then, composed a report dated April 10, 2015 summarizing his findings and conclusions.

According to Mr. Lalk, Claimant described his primary problem as pain in his left foot. He is unable to stand on his left foot because of increased pain and finds he can only stand or walk about 15 minutes because of his right foot and right hip. Pain medication helps relieve his symptoms and allows him to stand a little bit longer. When he was a spot welder, he did not stand all day. Each day he had to stand, he was in pain and was "pretty much in pain every day." In relation to his low back, Mr. Lalk testified the claimant experiences pain, which was severe when he met with him. He develops low back pain each day just getting out of bed and taking a shower. Activities which increase his low back symptoms, include standing, bending repetitively, walking, lifting and twisting. Mr. Lalk further testified the claimant has pain in his right shoulder when lifting his arm above shoulder level and there is a burning in the shoulder all the time. Lifting with his arm away from the body also causes pain. Furthermore, his knees hurt with squatting and kneeling and he has headaches about twice per month. When these come on, he has to lie down for several hours.

In relation to the claimant's family and social background, Mr. Lalk testified Claimant was born in San Jose, California on May 14, 1954. He lived most of his life in California and has been living in St. Charles for the past ten years. His only marriage is to Vicky, who is employed at Shop 'n Save, and they have no children. He used to fish but now finds it hard to sit for more than five minutes on a dock or to sit in a boat due to the movement. He also used to hunt deer but stopped after the 2011 season because he couldn't walk to the tree stand, about 200 yards, or climb to it and stand in it. Claimant is able to reload bullets for other hunters and charges $15 for this. He can do this 2-3 hours at a time about once every two months. He does not do much reading due to weak eyes and is not involved in any clubs or organizations where he has regular duties or responsibilities. His only other interest is watching sports on television. Mr. Lalk further testified Claimant completed 11th grade in 1971 and got his GED that same year.

Claimant served in the Army from 1971 to 1973 and was trained as a truck driver, but never drove a truck professionally as a civilian. He attended a welding school in California in 1989, where he received a certificate in training of all types of welding. He was last employed by American Staffing and worked at Triad as a welder where he assembled small parts such as brackets or frames and, then, did hand welding. He also did some grinding, running a drill press, and cutting parts. In order to perform his welding and other duties, the claimant would stand for up to one hour at a time. The job also allowed him to sit and sometimes he could be sitting during his entire shift. He was not required to do much walking and the heaviest item he had to lift was a box of parts which he estimated weighed between 40

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and 50 pounds. Claimant typically tried to squat in order to lift from below waist level while avoiding bending and kneeling. All of his work was performed below shoulder level. He sometimes operated a pallet jack or forklift and worked from 7:00 a.m. to 2:30 p.m. Monday through Friday, but sometimes might have to work 10-12 hours per day for up to a week. The last day he worked was on March 22, 2012 when he was injured.

Mr. Lalk testified prior to American Staffing, Claimant was employed by a temporary agency but he could not recall the name. He was there for about four months, from April to August of 2011. He performed bench work as a welder cutting parts and welding light fixtures for the St. Louis Art Museum and he confirmed that he just assembled these parts and was not installing them. He left that job when it was completed. From 2009 through 2010 he worked for a couple more temporary agencies doing welding. He recalled working on large conveyor systems, which required some climbing.

At other jobs, he mainly did bench welding. Claimant primarily did welding between 1989 and 2012 either at a bench or doing some kind of fabrication indoors. Prior to 1989, he trimmed trees and worked as a climber. He claims there is no other type of work that he had done. Mr. Lalk testified that Claimant does not type. He has a computer and is able to get on the internet but does not use email. He has no experience in business practices such as bookkeeping, inventory control, or even shipping and receiving. Since his injury of March 22, 2012, he has not looked for employment on his own. Some temporary employment agencies have called him since the accident but he has told them that he is unable to work because of his medical conditions.

After reviewing Claimant's medical records, medical history, education and vocational history, functional restrictions and limitations, and conducting vocational testing, Mr. Lalk formed an opinion Claimant is not able to secure and maintain employment in the open labor market and is not able to compete for any position. Mr. Lalk testified the claimant does not seem capable of performing even sedentary activities persistently through a full work shift at a pace that would be acceptable to any reasonable employer. The claimant has described problems consistent with the medical records and restrictions recommended by Dr. Volarich. He is unable to stand, walk, and even sit for more than short periods. He is having difficulty manipulating objects and using his upper extremities to lift objects more than 5 pounds at chest level. Claimant is attempting to control his symptoms by taking medication and changing positions frequently. Despite those efforts, Claimant finds between the efforts to control the pain in his left foot and low back, he becomes increasingly tired from these efforts. He eventually finds he becomes so tired he needs to lie down for a couple of hours.

According to Mr. Lalk, Claimant described typically getting 10 or 11 hours of sleep at night but still needed to lie down by 1:00 p.m. Mr. Lalk testified he would not expect the claimant to work at a pace and for durations expected by most employers, even in sedentary positions based upon his fatigue and his need to control his symptom. Furthermore, Claimant has no experience, which would make him more marketable for unskilled entry-level positions than any other worker. His work history indicates he has primarily worked with things rather than people and has limited contact with customers in the public. Claimant comments he is "not good with people," according to Mr. Lalk, is an honest appraisal of his ability to work in positions such as a cashier or at a self-service or a convenience store, information clerk, or as a customer service representative, which would be the jobs that have physical demands closest to his current limitations. Mr. Lalk testified Claimant would not be the first choice for any such positions.

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Furthermore, Mr. Lalk testified Claimant would not be able to maintain employment if he were hired based upon his inability to function at a pace and persistence expected by a typical employer. Claimant would not be able to function adequately because of the multiple complaints and his need to change positions, as needed, from sitting to standing. Claimant's fatigue and need to lie down would not be accommodated in any of these unskilled entry-level positions. Mr. Lalk would not expect an employer to allow him to lie down, nor would he expected the claimant to continue working with increasingly severe symptoms. Mr. Lalk testified he cannot recommend any vocational rehabilitations services unless the claimant experiences a significant change in his symptoms and limitations so that he is able to work at a much higher level of physical exertion through a full work shift.

Mr. Lalk further testified he reviewed additional materials on the claimant in September of 2015. He reviewed additional medical records and the deposition of the Claimant, taken on June 24, 2015. He generated a report dated September 2, 2015. Mr. Lalk's opinions remain the same following his review of these materials. Mr. Lalk, was, again, asked to review some additional medical records in May of 2016. Following his review of Dr. Volarich's third addendum report, Mr. Lalk testified his opinions remained the same. Finally, Mr. Lalk testified all of his opinions are within a reasonable degree of vocational certainty.

RULINGS OF LAW

"The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." *Carkeek v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund*, 352 S.W.3d 604, 608 (Mo. App. W.D. 2011) (internal quotation marks and citation omitted). The Fund is a creature of statute, and benefits from the Fund are awarded only if a claimant proves that under §287.220.1 RSMo. he is entitled to such benefits. To prevail against the Second Injury Fund for permanent total disability, the employee must show: (1) A compensable work injury resulting in permanent partial disability; (2) that at the time of the work injury, the employee had a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment; (3) that the compensable injury and the pre-existing permanent partial disability combine together to result in permanent total disability; and (4) that the claim was filed within the statute of limitations. § 287.220.1.

A claimant has the burden of proving all essential elements of his workers' compensation claim. *Lawrence v. Joplin School Dist.*, 834 S.W.2d 789, 793 (Mo. App. S.D. 1992). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo.App. E.D. 1999). "Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt." *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 277 (Mo.App. S.D. 1996).

For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Roberts v. Mo Highway and Transportation Commission*, 222 S.W.3d 322, 331 (Mo.App. S.D. 2007) Questions regarding medical causation of an injury are issues of fact for the [fact finder] to decide. *Gordon v. City of Ellisville*, 268 S.W.3d 454, 461 (Mo.App. E.D. 2008). The weight to be given the expert's opinion on medical causation is within

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the sole discretion of the [fact finder]. *Id.* at 458. The [fact finder] is the sole judge of the weight of evidence and credibility of witnesses. *Id.* The Administrative Law Judge is free to disbelieve the testimony of any witness, even if there is no contrary or impeaching evidence. *ABB Power T&D Company v. Kempker*, 236 S.W.3d 43, 51-52 (Mo.App. W.D. 2007). Thus, the ALJ is free to accept or reject any evidence, including expert evidence. *Id.*

This tribunal finds Claimant's testimony is credible. Claimant asserts he is PTD due to a combination of his disability from his March 22, 2012, work injury and preexisting medical conditions.

In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence all material elements of his claim including SIF liability. *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1968). In addition, Section 287.220 states, the SIF is liable for PTD benefits when three findings are made: 1) The employee has a percentage of disability from the compensable last injury; 2) a preexisting permanent disability exists that was serious enough to constitute a hindrance or obstacle to employment or re-employment; and 3) all of the injuries combine to make the employee PTD.

Under Mo. Rev. Stat. §287.190.6 (1) (2005), "permanent partial disability" means a disability that is permanent in nature and partial in degree "." "The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. *Griggs v. A.B. Chance*, 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. *Id.* at 704. Extent and percentage of disability is a finding of fact within the special province of the fact finding body, which is not bound by the medical testimony but may consider all the evidence, including the testimony of the Claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. *Fogelsong v. Banquet Foods Corp.*, 526 S.W.2d 886, 892 (Mo. App. 1975).

When deciding SIF liability, the first determination is the degree of disability from the last injury considered alone. *Hughey v. Chrysler Corp.*, 34 S.W.3d 845, 847 (Mo.App. 2000). Therefore, preexisting disabilities are irrelevant until the employer's liability for the last injury is determined. *Id.* If the last injury is and of itself rendered Claimant PTD, then the SIF has no liability. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003).

The parties originally placed at issue a determination of causation, but have stipulated to Claimant's injury arising out of and in the course of Claimant's employment. Consequently, this single issue is now moot.

There is no evidence the last injury alone caused Claimant to be PTD. Claimant has had a long history of injuries and disabilities to various parts of his body. These preexisting injuries caused Claimant to seek treatment and alter the way he performed his job. Claimant's credible testimony showed the problems he experienced with these various injuries/conditions prior to the

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March 22, 2012, injury at work. Dr. Volarich testified that the combination of the primary and preexisting injuries and conditions was the reason Claimant was permanently totally disabled. Mr. Lalk also similarly opined that the combination of the disabilities rendered Claimant permanently and totally disabled and unable to compete for employment in the open labor market. Quite simply, there is insufficient medical or vocational evidence in the record to support a finding that the last injury alone caused the permanent total disability in this case.

The evidence shows Claimant sustained an accidental injury, arising out of and in the course of his employment for Employer on March 22, 2012. This resulted in an injury to his lumbar spine and sacroiliac, with radiation into his right lower extremity.

Claimant has a 15% permanent partial disability to the body as a whole referable to his low back attributable to his work injury.

To determine if a preexisting partial disability constitutes a hindrance or obstacle to the employee's employment or re-employment, the [fact finder] should focus on the potential that the preexisting injury may combine with a future work-related injury to result in a greater degree of disability than would have resulted if there was no such prior condition. *Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo.App. 2007)* (citation omitted).

With regard to the preexisting injuries and disabilities that Claimant has alleged, the evidence shows Claimant has provided credible testimony and/or evidence to explain the nature of the injuries/disabilities to his various body parts. He also credibly explained the various ways in which these disabilities impacted his ability to work. It is clear from Claimant's testimony and from review of the medical reports and opinions that these prior disabilities were all disabling to some extent prior to the March 22, 2012 injury and were a hindrance or obstacle to his employment or re-employment.

Claimant has met his burden to show he is permanently and totally disabled, and unable to compete for work in the open labor market. Claimant credibly described the continuing pain and problems he has attributable to his various injuries/conditions that keep him from functioning fully and normally on a daily basis. This finding is supported by the competent, credible and reliable medical reports and testimony of Dr. Volarich, as well as the competent, credible and reliable vocational report and testimony of Mr. Lalk.

The evidence further shows that doctors have placed significant restrictions on Claimant's ability to function in the workplace. Dr. Volarich, who provided the most comprehensive report on Claimant's overall conditions, placed significant restrictions on his physical activities based on his various injuries/conditions. Dr. Volarich concluded from a medical standpoint, based on the combination of all of his conditions, injuries and disabilities, Claimant was permanently and totally disabled. Dr. Volarich's opinions, and Claimant's allegation of permanent total disability, was further bolstered by the report and testimony of Mr. Lalk, an experienced vocational rehabilitation counselor, who confirmed that Claimant was not employable in the open labor market given the totality of his condition, including his age and limited academic skills.

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In *Scott v. Treasurer of State of Missouri-Custodian of The Second Injury Fund*, 417 S.W.3d 381 (Mo. App. W.D. 2014), the Court of Appeals indicated that Claimant's hearing loss, limited education and difficulty reading could be considered when determining Claimant's ability to compete for and obtain employment. Additionally, a Claimant's age may be considered in determining whether he or she is employable. *Reves v. Kindell's Mercantile Co., Inc.*, 793 S.W.2d 917 (Mo. App. S.D. 1990) overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003).

The opinions of Dr. Volarich and Mr. Lalk are credible and properly supported by the medical evidence in this case. The evidence in the record, either medical or vocational, failed to support the proposition that Claimant was only permanently partially disabled and able to work, when the totality of his condition was considered.

As previously indicated, the opinion of Dr. Volarich, the vocational opinion of Mr. Lalk, as well as the credible testimony of Claimant, all support the finding that Claimant is permanently and totally disabled as a result of the combination of his primary and preexisting disabilities, and, thus, the Second Injury Fund has liability for that disability.

Claimant has met his burden of proof to show that he is permanently and totally disabled as a result of the combination of his primary injury attributable to the March 22, 2012, work injury and his preexisting disabilities. Since the permanent total disability is the result of the combination of his preexisting and primary disabilities, the Second Injury Fund has liability.

Having established the responsibility of the Second Injury Fund for the permanent total disability exposure in this Claim, there is yet one issue left regarding the amount and timing of the payments under the statute. Claimant reached the point of maximum medical improvement for his work injury on March 22, 2012.

Since Claimant reached maximum medical improvement on March 22, 2012 and Employer was responsible for all appropriate temporary total disability up through that date, the evidence shows that Claimant is permanently and totally disabled as of March 23, 2012.

By the terms of this award, Employer was responsible for 60 weeks of permanent partial disability at a rate of $333.18. Therefore, from March 23, 2012, until May 16, 2013, (60 weeks), Employer had liability for $333.18 per week, which Claimant and Employer settled by the terms of the Stipulation for Compromise Settlement that extinguished Employer's liability for this case.

Starting on May 17, 2013, the Second Injury Fund shall pay $333.18 per week for Claimant's lifetime, subject to review and modification by law.

The parties stipulated the PPD rate and PTD rate in this claim are both $333.18 per week. Therefore, there is no differential owed by the Second Injury Fund.

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Conclusion

Claimant has met his burden to prove his work activities were the prevailing factor that

caused injury to his low back. Claimant has proven he is permanently and totally disabled due to

his work injury of March 22, 2012. The Second Injury Fund is responsible for permanent total

disability benefits.

I certify that on 12-11-17

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:

Marvin O. Teer, Jr.

Administrative Law Judge

Division of Workers' Compensation

By ______ my_____