Maury Weiner v. Grey Eagle Distributors

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

FINAL AWARD ALLOWING COMPENSATION

(Affirming Award and Decision of Administrative Law Judge)

Improved

Improved

Injury No.: 12-014811

Employee: Maury Weiner

Employer: Grey Eagle Distributors (settled)

Insurer: Sentry Casualty Company (settled)

Additional Party: Treasurer of Missouri as Custodian

of Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial

Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having

reviewed the evidence and considered the whole record, the Commission finds that the

award of the administrative law judge is supported by competent and substantial evidence

and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to

§ 286.090 RSMo, the Commission affirms the award and decision of the administrative

law judge dated April 9, 2018. The award and decision of Administrative Law Judge Lorne

Baker, issued April 9, 2018, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance

of 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 24th 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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Im

Injury No.: 12-014811

Employee: Maury Weiner

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his opinion of employee's permanent total disability and/or employability to a vocational expert, rendering his prior pronouncements on this issue irrelevant.

Despite a number of prior injuries, for which he received mostly nominal compromise settlements, employee was working full, regular duty at his job prior to March 7, 2012, as attested to by Dr. Volarich, Dr. Cantrell and vocational experts Mr. England and Ms. Skahan. Employee's failure to explain in his hearing testimony or anywhere else how his primary and prior injuries could or did combine suggests that combination of his injuries was not a part of his alleged permanent total disability.

The employee further failed to prove that his primary injury and prior injuries rendered him permanently and totally disabled. This is part of employee's essential burden. *Cardwell v. Treasurer*, 249 S.W.3d 902,911 (Mo. App. 2008). The fact finder must impartially weigh the evidence, as opposed to liberally, without giving the benefit of the doubt to any party when weighing the evidence or resolving factual conflicts. § 287.800.2.

A careful fact-finder often takes guidance from vocational experts on the question of whether an employee is employable on the open labor market. Some evaluating physicians even defer their opinion of an employee's employability to a vocational expert, as long as the expert considers the physician's activity restrictions. This is what occurred here with respect to employee Maury Weiner. The employee's evaluating physician Dr. Volarich deferred his opinion of whether the employee could work on the open labor market to a vocational expert. *Transcript*, 218-219. Both vocational experts, Mr. England and Ms. Skahan, found from the facts that employee was working full time duty without any restrictions at the time of his last work injury. Likewise, they found employee always resumed full time, regular duty at his job subsequent to his previous injuries. Leading up to his last injury, there is no evidence employee was taking prescription painkillers or medication.

The test for permanent total disability is whether the worker is able to compete in the open labor market. A worker is totally disabled if they are unable to return to any normal or reasonable employment; the worker is not required to be inert or completely inactive. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition. *Carkeek v. Treasurer of State*, 352 S.W.3d 604 (Mo. App. 2011) at 608.

Vocational expert Kristine Skahan found employee employable taking into account medical restrictions imposed by both Dr. Volarich and Dr. Cantrell. She opined that employee could likely work in the open labor market so long as he does not have to rest throughout the day. Ms. Skahan conducted a labor market survey and found that employee could perform the job duties of at least eight full-time jobs available at that time, among them: customer service representative, commissioned sales specialist, valet supervisor, valet parking attendant, van driver, shuttle driver, assembly worker and light assembly. All were full time openings, available at the time of her report.

Injury No.: 12-014811

Employee: Maury Weiner

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Employee reportedly conducted his own employment search after leaving employer, but gave no details about his alleged search, such as names, dates, documentation for and about the search, problems, or reasons he was not hired, to anyone, even his own vocational experts. At hearing, the employee gave reasons why he thought he could not do these jobs, but surprisingly never shared those feelings or problems with his vocational expert Mr. England. Not only might potential employment problems have been telling and helpful for his and/or other vocational experts, but some of the employee's physical excuses suggest the undocumented worsening of some of his preexisting conditions.

It is employee's burden to prove the elements of his claim and, if it is for permanent total disability against the SIF, that the combination of his injuries renders him unemployable on the open labor market. Because employee failed to carry this burden, his claim for permanent total disability benefits against the SIF should be denied. I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

AWARD

Employee: Maury Weiner

Injury No.: 12-014811

Dependents: N/A

Employer: Grey Eagle Distributors

Address: 16000 Gainesville, GA 30131

Office: 16000 Gainesville, GA 30131

Date: 2018-01-01

Employer: 16000 Gainesville, GA 30131

Office: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Date: 2018-01-01

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Date: 2018-01-01

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Address: 16000 Gainesville, GA 30131

Invoice No.: 12-014811

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: March 7, 2012

1. State location where accident occurred or occupational disease was contracted: City of St. Louis, Missouri

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was pulling a dolly of beer up a flight of stairs when he injured his low back.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Low back

1. Nature and extent of any permanent disability: 12.5% permanent partial disability to the body as a whole referable to the low back

1. Compensation paid to-date for temporary disability: $15,760.54

1. Value necessary medical aid paid to date by employer/insurer? $17,271.32

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Employee's average weekly wages: $1,300.00

WC-33-R1 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

1. Weekly compensation rate: $811.73/$425.19

1. Method wages computation: By agreement

1. Amount of compensation payable: Employer previously settled.

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

Weekly differential (386.54) payable by SIF for 50 weeks beginning July 19, 2012, and thereafter 811.73 per week for Claimant's lifetime or until modified by law.

1. Future requirements awarded: N/A

Said payments to begin 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 attorney, James S. Haupt, for necessary legal services rendered to the claimant:

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The matter of Maury Weiner ("Claimant") proceeded to hearing to determine the liability of the Second Injury Fund ("SIF"). Attorney James S. Haupt represented Claimant. Assistant Attorney General Joye Hudson represented the Second Injury Fund. Grey Eagle Distributors ("Employer") and its insurer, Sentry Casualty Company, previously settled its risk of liability and Claimant proceeded against the SIF only.

The parties stipulated that on or about March 7, 2012, Claimant sustained an accidental injury arising out of and in the course of employment that resulted in injury to Claimant. The accident occurred in the city of St. Louis, Missouri. The parties stipulated Claimant was an employee of Employer earning an average weekly wage of $\ 1,300.00, which resulted in applicable rates of compensation of $\ 811.73 for total disability benefits and $\ 425.19 for permanent partial disability ("PPD") benefits. The parties further stipulated venue is proper in the city of St. Louis, Employer received proper notice, and Claimant filed the claim within the time required by law. Employer paid $\ 15,760.54 in temporary total disability ("TTD") benefits and paid medical benefits totaling $\ 17,271.32. The parties agreed that Claimant reached maximum medical improvement ("MMI") from his work-related injury on July 18, 2012.

The only issue for determination is the liability of the Second Injury Fund. At the hearing, Claimant testified in person and offered the depositions of Dr. David Volarich and Mr. James England, as well as medical records and multiple settlement stipulations. The Second Injury Fund offered one exhibit, the deposition of vocational expert, Kristin Skahan.

Claimant is a now unemployed, 64-year-old individual who worked for Employer for 34 years as a beer delivery driver, and on or about March 7, 2012, sustained a compensable work injury to his low back.

Claimant graduated from University City High School in 1972. He attended HarrisStowe College for two or three semesters in order to play baseball but dropped out of school in

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

1. He does not have any other higher education or vocational training and has never served in the military.

With regard to his work history, Claimant worked as a salesman at Baker Shoe Store for approximately 6 months, but quit because he was not a good salesperson and earned low pay. Next, he worked as a valet for Miss Hullings' restaurant in 1974 for approximately 6 months, but again quit due to financial considerations. Claimant joined the Teamsters Union as a part-time driver in 1975, and worked as a part-time beer delivery driver from 1975 to 1978. He was hired as a full-time beer driver for Employer in 1978, and continued to work for Employer for 34 years in this capacity until the work injury of March 7, 2012. At the time of his injury he was working full time and up to 50 hours a week at full duty. He was not working under any physician imposed restrictions at the time of the primary injury.

Primary Injury

On March 7, 2012, while working for Employer, Claimant was pulling a dolly of beer up a flight of stairs when he felt a pop in his low back. He noticed immediate pain in his low back and some radiating pain into his right leg. Claimant finished his last delivery, and then reported his injury to Employer.

Employer sent Claimant to Concentra where he was diagnosed with low back pain and mild sciatica. He was taken off work and given medication. The medication did not help and Claimant was then referred to physical therapy. When the physical therapy did not cure and relieve him from the effects of his injury, Employer referred Claimant to Dr. Russell Cantrell for evaluation. Dr. Cantrell prescribed additional physical therapy and medication, both of which Claimant undertook with no success.

An MRI performed on May 8, 2012, showed abnormalities at L2-L3 and L3-L4. Dr. Cantrell described these abnormalities as multiple level degenerative disc disease and ordered a course of work hardening. When this proved to be unsuccessful, Dr. Cantrell recommended a second month of work hardening. The additional work hardening did not relieve Claimant's symptoms and Dr. Cantrell noted Claimant to be symptomatic with lumbar back pain which was aggravated by the physical requirements of the work hardening program. Dr. Cantrell released Claimant from his care and placed him at MMI on July 18, 2012. Employer terminated Claimant's employment and his temporary total disability benefits on July 18, 2012, because of the permanent restrictions assigned by Dr. Cantrell.

Due to Claimant's subjective pain complaints, Dr. Cantrell assigned a permanent restriction of no lifting greater than 35 pounds on an occasional basis on July 24, 2012. Dr. Cantrell opined Claimant's ongoing pain complaints were stated to "relate to pre-existing degenerative joint and disc disease within the lumbar spine that was not casually related to Claimant's March 2012 work injury."

Claimant and Employer settled the March 7, 2012 work injury for 12.5% BAW referable to the low back. The Second Injury Fund claim was left open.

Claimant has continuing problems in his low back as a result of his March 7, 2012 injury. He has ongoing low back pain that radiates across his right hip into his right leg. He can only sit

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

for a couple of minutes in one position before he has to move and can only stand for about 5 minutes before he has to sit down again. He takes Advil and Aleve three or four times a week for pain.

Prior to his March 7, 2012 work injury, Claimant suffered from a number of preexisting injuries/conditions that impacted his ability to work.

Prior to the primary work injury, Claimant had disabling injuries/conditions to his right knee. In 1983, Claimant sustained an injury to his right knee while working for Employer when he fell from a loading dock and landed on his right knee. Claimant underwent a total right knee reconstruction and repair of the ACL in 1983 by Dr. Leo Whiteside. Claimant received ongoing medical treatment from Dr. Whiteside for approximately four to five months including medications, limited duty and physical therapy. Dr. Whiteside released Claimant in 1983 and he returned to work for Employer. The 1983 right knee injury presented subsequent problems in performing his job duties. The injury caused him to perform his work in different ways, caused him problems while lifting and moving objects in his job activities, and caused him to work slower and to ask for help in performing some of his work duties. The condition was disabling and constitutes a hindrance and obstacle to his employment.

Claimant had another disabling injury to his right knee on February 6, 2008, when his foot slipped off a running board causing him to strike his right knee. He received authorized medical treatment at the Employer's direction by Dr. John Krause. He was diagnosed with a strain to the right knee and underwent a course of physical therapy. Because of continuing problems in the right knee, he underwent an MRI which showed the prior reconstructive surgery as well as degeneration in the lateral and medial meniscus with possible degenerative tears to both. No surgery was performed. Dr. Krause released Claimant and he returned to work. Claimant settled a workers' compensation injury (Injury No: 08-010787) against Employer for 5% PPD of the right knee. The right knee injury caused him to perform his work in different ways as it caused problems with lifting and moving objects in his job activities, caused him to work slower, and caused him to ask for help in performing some of his duties. Claimant's right knee condition disrupted his sleep from 1983 to 2012. The condition was disabling and constitutes a hindrance and obstacle to employment.

Also prior to 2012, Claimant had a disabling injury/condition to his right ankle. On July 22, 1986, Claimant stepped into a pot hole and twisted his right ankle while at work. He was seen at the Barnes Sutter Clinic at Employer's direction and was diagnosed with a severe right ankle sprain. After approximately two weeks of treatment, he was released and returned to work. Claimant continued to have additional problems with regard to the right ankle and returned to the Barnes Sutter Clinic for additional treatment in the form of medications, limited duty and physical therapy. Claimant settled his workers' compensation injury (Injury No: 86-081989) against Employer for 6% PPD of the right ankle. The right ankle injury presented subsequent problems and symptoms in Claimant's right ankle in performing his job duties. The injury caused him to perform his work in different ways, caused problems with lifting and moving objects, caused him to work slower, and to ask for help in performing some of his duties. The condition was disabling and constitutes a hindrance and obstacle to employment.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

Prior to the 2012 work injury, Claimant also had a disabling injury/condition to his left elbow. On August 12, 1987, Claimant was unloading a case of beer and struck his left elbow on the side of the delivery truck. He received authorized medical treatment from Barnes Sutter Clinic for approximately two weeks which included limited duty and physical therapy. He was eventually released and returned to work following this injury. Claimant settled his workers' compensation injury against Employer for 12.5% PPD of the left elbow. The left elbow injury presented subsequent problems and symptoms in Claimant's left elbow in performing his job duties. The injury caused him to perform his work in different ways, caused problems with lifting and moving objects, caused him to work slower, and caused him to ask for help in performing some of his duties. The condition was disabling and constitutes a hindrance and obstacle to employment.

Claimant had multiple prior disabling injuries/conditions to his low back. On June 16, 1989, a dock plate gave way causing beer cases and kegs to fall on Claimant, striking him in the low back. He received authorized medical treatment consisting of medications, limited duty and physical therapy. He was released from care and returned to work. Claimant settled his workers' compensation injury for 7.5% BAW referable to the low back. The low back injury caused him to perform his work in different ways as it caused problems with lifting and moving objects, caused him to work slower, and caused him to ask for help in performing some of his duties at work. Claimant's sleep was also disrupted because of his low back condition from 1989 to 2012. The condition was disabling and constitutes a hindrance and obstacle to employment.

On January 24, 1996, Claimant injured his low back again while trying to open a bay door on a truck. He received medication and physical therapy to his low back as a result of this injury and eventually was released to return to work. Claimant settled his workers' compensation injury (Injury No: 96-017216) against Employer for 5% BAW referable to the low back. The low back injury caused him to perform his work in different ways as it caused problems with lifting and moving objects, caused him to work slower, and caused him to ask for help in performing some of his duties at work. Claimant's sleep was also disrupted because of his low back condition from 1989 to 2012. The condition was disabling and constitutes a hindrance and obstacle to employment.

Claimant injured his low back again on April 22, 1999, while stacking beer by hand. He was taken by ambulance to DePaul Hospital where he came under the authorized treatment of Dr. Sherwin Wayne. An MRI revealed a large disc extrusion with a free fragment at L3-L4 on the right side and a bulge at L4-5 on the left side. Dr. Michael Chabot performed surgery on May 20, 1999, in the form of a laminectomy and excision of disc material at L3-L4. Claimant received treatment for approximately two months following surgery in the form of medications, limited duty and physical therapy. Claimant was released to return to work in July of 1999 and settled his workers' compensation injury (Injury No: 99-052055) against Employer for 27.5% BAW referable to the low back. The Second Injury Fund also entered into a settlement in that claim allocating prior disabilities of 34% of the right shoulder and 28% of the right knee. The 1999 low back injury caused him to perform his work in different ways as it caused problems with lifting and moving objects, caused him to work slower, and caused him to ask for help in performing some of his duties at work. Claimant's sleep was also disrupted because of his low back condition from 1989 to 2012. The condition was disabling and constitutes a hindrance and obstacle to employment.

WG-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

On March 7, 2001, Claimant had another prior disabling injury to his low back, this time from bending over while delivering beer. He received authorized medical treatment at the Employer's direction at Concentra and later treated for approximately three months in the form of medication, limited duty and physical therapy at the direction of Dr. Michael Chabot. Dr. Chabot released Claimant to return to work in June of 2001. Claimant settled the 2001 work injury (Injury No: 01-035743) against Employer for 5% BAW referable to the low back. The low back injury caused him to perform his work in different ways as it caused problems with lifting and moving objects, caused him to work slower, and caused him to ask for help in performing some of his duties at work. Claimant's sleep was also disrupted because of his low back condition from 1989 to 2012. The condition was disabling and constitutes a hindrance and obstacle to employment.

Prior to the primary injury, Claimant had disabling injuries/conditions to his right shoulder and neck. On July 18, 1991, Claimant was raising a bay door on a truck when a case of beer fell off, striking Claimant in his right shoulder and neck area. He treated for several months at the Healthline Clinic with medications, limited duty and physical therapy. Claimant also underwent trigger point injections to his neck and right shoulder. He later underwent surgery for right thoracic outlet syndrome. Claimant was released and returned to work. Claimant settled his workers' compensation injury (Injury No: 91-094404) against Employer for 34% PPD of the right shoulder. He also settled his claim against the Second Injury Fund for 28% PPD of the right knee for his pre-existing disability. Claimant testified in great detail as to subsequent problems and symptoms of the right shoulder and neck in performing his job duties. The 1991 injury caused him to perform his work in different ways as it caused problems with lifting and moving objects, caused him to work slower, and caused him to ask for help in performing some of his duties at work. Claimant's sleep was also disrupted because of his right shoulder condition from 1989 to 2012. The condition was disabling and constitutes a hindrance and obstacle to employment.

In 2008, Claimant bid on and received a piece of equipment known as an electric jack which made his job much easier when transferring beer from the truck to the dolly. The work accommodation made Claimant's job both less stressful and not as physically demanding.

Expert Testimony

Dr. David Volarich testified by deposition on May 3, 2017. Dr. Volarich is an Osteopathic Physician who is board certified in nuclear medicine, occupational medicine and an independent medical examiner. He examined Claimant on three separate occasions, each time at the request of Claimant's attorney.

Dr. Volarich first examined Claimant on January 4, 1993, noted the disabilities from the July 18, 1991 injury, and opined Claimant had a disability of 35% of the right shoulder and 15% BAW referable to the cervical spine. He also noted Claimant's prior disabilities and rated them at 35% of the right knee and 15% BAW referable to the lumbar spine.

Dr. Volarich examined Claimant next on November 22, 1994, again noted Claimant's disabilities referable to the July 18, 1991 accident, and rated Claimant with 45% of the right shoulder (increased due to the thoracic outlet syndrome and surgical procedure) and 20% BAW

WC-32-B3 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-014811

referable to the cervical spine. He again rated the Claimant's preexisting disabilities at 35% of the right knee and 15% BAW referable to the low back. Dr. Volarich imposed restrictions on Claimant's activities as of 1994 and recommended that Claimant lift no more than 35 to 50 pounds on an occasional basis.

Dr. Volarich examined Claimant on March 12, 2013, following the primary work injury. Dr. Volarich noted the additional injuries and surgeries which Claimant had undergone since 1994. Dr. Volarich rated Claimant's disability from the March 7, 2012 accident at 20% BAW referable to the lumbar spine and his preexisting disabilities of 45% BAW referable to the lumbar spine (including the 1999 surgery), 40% of the right knee, 40% of the right shoulder, and 20% BAW referable to the cervical spine. Dr. Volarich also recommended restrictions involving the cervical spine, lumbar spine, right shoulder and right leg. Dr. Volarich opined Claimant is permanently and totally disabled as a direct result of the work related injury of March 7, 2012, in combination with his preexisting medical conditions. Dr. Volarich testified in great detail as to the synergistic effects of Claimant's medical conditions.

James England, a certified rehabilitation counselor, evaluated Claimant at the request of his attorney and testified by deposition on February 6, 2017. He was asked to determine whether Claimant was employable in the open labor market. As part of his evaluation, he met with Claimant and reviewed the extensive medical records. Mr. England opined Claimant is permanently and totally disabled from a vocational standpoint because of the combination of his medical conditions. Mr. England further testified Claimant is likely to remain totally disabled from a vocational standpoint because of the combination of problems he has had with his back over the years.

Kristin Skahan, a vocational consultant, reviewed records and prepared a vocational assessment of Claimant dated November 9, 2017, at the request of the Second Injury Fund. Ms. Skahan did not meet with, or personally evaluate, Claimant. Ms. Skahan noted the permanent work restrictions of Dr. Cantrell and of Dr. Volarich and concluded that Claimant could perform his past jobs of a shoe salesperson, a dispatcher, and parking valet, as well as a variety of other jobs associated in those fields.

CONCLUSION OF LAW

SECOND INJURY FUND LIABILITY

Based on a comprehensive review of the evidence, including Claimant's testimony, the expert medical opinions and deposition, the vocational opinions and deposition, the medical treatment records, the Stipulation for Compromise Settlement between Claimant and Employer in this case, as well as my personal observations of Claimant at hearing and based upon the applicable laws of the State of Missouri, I find:

Missouri courts have routinely required that the permanent nature of an injury be shown to a reasonable certainty, and that such proof may not rest on surmise and speculation. *Sanders v. St. Clair Corp.*, 943 S.W.2d 12, 16 (Mo.App. 1997). A disability is "permanent" if "shown to be of indefinite duration in recovery or substantial improvement is not expected." *Tiller v. 166 Auto Auction*, 941 S.W.2d 863, 865 (Mo.App. 1997). The standard for determining whether an employee is permanently and totally disabled is whether the person is able to compete on the open job market, and the key test to be answered is whether an employer, in the usual course of

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business, would reasonably be expected to employ the person in his present physical condition. *Houltzhauser v. Central Carrier Corp.*, 936 S.W.2d 908, 912 (Mo.App. 1997). An injured employee is not required to be completely inactive or inert in order to be totally disabled. *Brown v. Treasurer of Mo.*, 795 S.W.2d 479, 483 (Mo.App. 1990). The pivotal question is whether any employer in the usual course of business would reasonably be expected to employ the employee in that person's present physical condition, reasonably expecting the employee to perform the work for which he or she is hired. *Reiner v. Treasurer of State of Mo.*, 837 S.W.2d 363, 367 (Mo.App. 1992).

"In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury." *Blackshear v. Adecco*, 420 S.W.3d 678, 681 (Mo. Ct. App. 2014) (citations omitted). A claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. *Id.* "If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount." *Id.*

Based on the competent and substantial evidence, including Claimant's testimony, medical records, the settlement documents, and the opinions of the experts, I find Claimant sustained permanent partial disability equal to 12.5% PPD to the body as a whole referable to the low back attributable to the March 7, 2012 work injury. There is no credible evidence to suggest the primary work injury in and of itself is permanently and totally disabling.

As I find the primary injury resulted only in permanent partial disability to Claimant, I must now determine the liability of the SIF. Section 287.220 creates the Second Injury Fund and imposes liability on the Fund in certain cases of permanent disability where there is a preexisting disability. §287.220; *Hughey v. Chrysler Corp.*, 34 S.W.3d 845, 847 (Mo.App. E.D. 2000). If the claimant's last injury alone does not render him permanently totally disabled, then, to obtain compensation from the Fund, the claimant must show that he suffers from a preexisting PPD of such seriousness as to constitute a hindrance or obstacle to employment. §287.220.2; *Patterson v. Central Freight Lines*, 452 S.W.3d 759, 764-65 (Mo. Ct. App. 2015). Claimant has presented ample evidence, including previous settlement stipulations, of his preexisting permanent partial disabilities which constituted a hindrance or obstacle to employment.

I find Claimant to be a credible witness and that his testimony buttressed the medical opinions of Drs. Cantrell and Volarich and the vocational expert, James England. He testified in an open and honest manner about his ongoing complaints associated with his injuries, and did not engage in either exaggeration or minimization. During the course of the hearing, Claimant needed to stand up from his seat on multiple occasions due to pain. He testified convincingly that he intended to, and preferred, if able, to work until age 65 or 67. He was still contributing to his retirement plan and there was a financial incentive to continue working beyond 2012. He described his typical daily activities as having coffee, walking his dog, watching television, and laying down.

I find that doctors have placed significant restrictions on Claimant's ability to function in the work place. Dr. Russell Cantrell, the treating physician, placed a permanent restriction on Claimant of no lifting greater than 35 pounds which he related to preexisting degenerative joint disease. Dr. David Volarich, who had personally examined Claimant on three occasions since 1993, placed significant restrictions on his physical activities based upon his various

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injuries/conditions. Dr. Volarich concluded that from a medical standpoint, based on the combination of Claimant's primary and preexisting conditions, injuries and disabilities, he was permanently and totally disabled. Dr. Volarich's opinion and Claimant's allegation of permanent total disability, was further bolstered by the report and testimony of Mr. James England, a vocational rehabilitation counselor, who confirmed Claimant was not employable in the open labor market given the totality of his conditions.

I find most credible the expert medical and vocational opinions from Dr. David Volarich and Mr. James England that Claimant is unable to compete for work in the open labor market following the March 7, 2012, low back injury. As detailed by Dr. Volarich and Mr. England, the Claimant's disability referable to the numerous preexisting injuries/conditions are critical components of Claimant's permanent total disability. I do not find that any employer would be reasonably expected to hire Claimant, given his present physical condition, age, and lack of transferable skills. I conclude Claimant would not have been rendered permanently and totally disabled but for the combination of disabilities attributable to his preexisting injuries/conditions and his primary work-related injury. As such, it is found that Claimant is permanently and totally disabled as a result of the combination of his injury of March 7, 2012, and his preexisting conditions. I find that Claimant reached maximum medical improvement on July 18, 2012. I find Claimant became permanently and totally disabled beginning July 19, 2012. The Second Injury Fund is liable for permanent and total disability benefits.

AWARD

Since Claimant reached maximum medical improvement on July 18, 2012 and Employer was responsible for all appropriate temporary disability up through that date, I find that Claimant is permanently and totally disabled as of July 19, 2012.

By the terms of this award, Employer was responsible for 50 weeks of permanent partial disability at a rate of 425.19. Therefore, beginning July 19, 2012, SIF pay (or Claimant shall receive) 386.54 per week for 50 weeks, and thereafter $811.73 per week for his lifetime. The weekly payments shall continue for Claimant's lifetime or until modified by law.

This award is subject to a lien in favor of James S. Haupt, Attorney at Law, in the amount of 25% for necessary legal services rendered. Any past due compensation shall bear interest as provided by law.

I certify that on April 9, 2018, 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: __________________________

Date: __________________________

Date: __________________________

Name: __________________________

Address: __________________________

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (b-51)

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