Manshava Johnson v. Value St. Louis Properties, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 07-059414

**Employee:** Manshava Johnson

**Dependent:** Belinda Johnson

**Employer:** Value St. Louis Properties, Inc.

**Insurer:** Sentinel Insurance

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, heard oral argument, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues:

1. Whether employee's average weekly wage as stipulated in a hardship hearing should be changed, which would affect the rate of temporary total disability benefits;
2. Whether employee should receive temporary total disability benefits from February 10, 2008 through January 31, 2014;
3. Future medical care;
4. Permanent partial disability; and
5. The applicability of the decision in *Schoemehl v. Treasurer of State*, 217 S.W.3d 900 (Mo. 2007).

The administrative law judge determined as follows:

1. Employee's stipulated average weekly wage could not be changed, resulting in rates for temporary total disability benefits of 405.27 and permanent partial disability of 376.55;
2. Employee is not to receive temporary total disability benefits from February 10, 2008 through January 31, 2014;
3. Employee sustained 50% permanent partial disability of the body as a whole and is entitled to $75,310.00 in compensation;
4. Employee is not entitled to future medical care; and
5. The remaining issues are moot.

Employee filed a timely application for review with the Commission alleging the administrative law judge erred in:

1. Concluding that the parties' stipulation regarding employee's average weekly wage was binding;
2. That employee is not entitled to temporary total disability benefits from February 10, 2008 through January 31, 2014;
3. That employee is not permanently and totally disabled due to the primary injury.

---

1. Employer paid temporary total disability benefits from June 12, 2007 through February 9, 2008.
2. In his application for review, employee did not argue that he was in the rehabilitative process from February 10, 2008 through January 31, 2014. Employee did not reference *Greer v. Sysco Food Servs.*, 475 S.W.3d 655 (Mo. 2015), or any of the statutes revised subsequently to *Greer* regarding temporary total disability and maximum medical improvement (See § 287.020.12, RSMo; § 287.149, RSMo). Because employee did not raise these issues on appeal, the Commission does not address whether employee was in the rehabilitative process from February 10, 2008 through January 31, 2014, and whether employer was thus mandated to pay temporary total disability benefits during that timeframe.

Injury No.: 07-059414

Employee: Manshava Johnson

-- 2 --

(4) that employee is not entitled to future medical treatment; and (5) that the holding in *Schoemehl v. Treasurer of State* does not apply in this matter.

For the reasons stated below, we modify the award and decision of the administrative law judge referable to the issue of employee's average weekly wage as stipulated and the applicable rate of temporary total disability.

**Discussion**

**The Commission is not Bound by the Parties' Stipulation in This Matter**

In a hardship hearing on July 22, 2013, the parties stipulated to an average weekly wage of 607.90, resulting in a weekly rate for temporary total disability benefits of 405.27. At that hearing, employer offered a wage statement that would have shown an average weekly wage of $752.61, but withdrew it when the parties stipulated to the lower wage amount. (July 22, 2013 Transcript, page 8.)

The administrative law judge issued a temporary award on August 26, 2013, which, in part, ordered employer to pay future temporary total disability benefits at the stipulated rate of $405.27 per week. Starting January 31, 2014, employer started paying employee temporary total disability benefits at a rate of $501.74 per week. Transcript, pages 2-3. This continued through December 11, 2014, when employee reached maximum medical improvement. *Id.*, at page 2. When employee realized that he was being paid a higher amount, he reviewed the wage statement and realized that the wage statement supported an average weekly wage amount of 752.61, which would result in a rate for temporary total disability benefits of 501.74 per week. *Id.*, at pages 2-3.

At the final hearing, employee argued that the stipulated average weekly wage of $607.90 was a mutual mistake and that employee erroneously presumed that the wage statement reflected the stipulated amount. *Id.*, at page 2. Employee offered employer's wage statement into evidence. Employer objected to the wage statement as hearsay and stated that the "issue was stipulated to and agreed upon at the prior trial. The wage statement was available to everyone at that time." *Id.* Employer further objected to changing the stipulated amount because "[t]here's been no change in the evidence." *Id.* The administrative law judge admitted the wage statement into evidence over employer's objection.

Employer agreed at the final hearing that it actually never used the lower rate for temporary total disability benefits, but paid such benefits at the higher rate of $501.74 per week from June 12, 2007 through February 9, 2008 and from January 31, 2014 through December 11, 2014. Transcript, pages 2-3. However, the administrative law judge held that she was bound to the parties' stipulation regarding employee's average weekly wage.

This Commission is not bound by the parties' stipulation at the hardship hearing of an average weekly wage of $607.90, because the rate was found in a temporary award and the parties' stipulation, if applied, would create a manifest injustice.

TI3081-1307

Injury No.: 07-059414

Employee: Manshava Johnson

-- 3 --

Section 287.510, RSMo, contemplates that a final award may be in accordance with a temporary award and that the administrative law judge or the Commission may change a temporary award.³ Section 287.510, RSMo, provides,

> In any case a temporary or partial award of compensation may be made, and the same may be modified from time to time to meet the needs of the case, and the same may be kept open until a final award can be made, and if the same be not complied with, the amount equal to the value of compensation ordered and unpaid may be doubled in the final award, if the final award shall be in accordance with the temporary or partial award.

Citing this statute, the court in *Dilallo* held that "[t]his language recognizes that the final award may differ from the temporary or partial award. 'The legislature clearly contemplated that the ALJ may render a decision in a final hearing which differed from that of the temporary or partial award.'" *Dilallo v. City of Md. Heights*, 996 S.W.2d 675, 677 (Mo. App. 1999) (quoting *Welch v. Eastwind Care Center*, 890 S.W.2d 395, 398 (Mo. App. 1995)).

Therefore, the Commission may change the rate found in the temporary award. Accordingly, we find that employee's average weekly wage was 752.61, resulting in a rate for temporary total disability benefits of 501.74.

Regarding the effects of the stipulation, there are no cases regarding stipulations made prior to a hardship hearing. However, generally speaking, "Stipulations are normally controlling and conclusive and courts are bound to enforce them." *Spacewalker, Inc. v. Am. Family Mut. Ins. Co.*, 954 S.W.2d 420, 424 (Mo. App. 1997) (citing *International Dehydrated Foods, Inc. v. Boatright Trucking, Incorporated*, 824 S.W.2d 517 (Mo. App. 1992)).

However, the court in *Spacewalker* understood that there were exceptions and stated that

> [S]tipulations must be viewed in light of what the parties were attempting to accomplish. ... Litigation stipulations can be understood as the analogue of terms binding parties to a contract. As in contract law though, rules limiting litigants to trial stipulations are not absolute ... 'A stipulation of counsel originally designed to expedite the trial should not be rigidly adhered to when it becomes apparent that it may inflict a manifest injustice upon one of the contracting parties.'

*Spacewalker, Inc.*, 954 S.W.2d at 424 (quoting *T I Federal Credit Union v. Delbonis*, 72 F.3d 921 (1st Cir. 1995)).

Here, there would be a manifest injustice to employee if the parties' stipulation bound the Commission to a significantly lower average weekly wage. This is especially true here when employer already paid employee at the higher rate of $501.74 per week from

³ See *Dilallo v. City of Md. Heights*, 996 S.W.2d 675 (Mo. App. 1999).

TI3681-0301

Implye: Manshava Johnson

-4 -

June 12, 2007 through February 9, 2008 and from January 31, 2014 through December 11, 2014. Therefore, this Commission is not bound by the parties' stipulation.

We modify the award of the administrative law judge as to the issue of employee's average weekly wage and the applicable rate of temporary total disability. Employee's average weekly wage is $\ 752.61, resulting in a rate for temporary total disability benefits of $\ 501.74.

The award and decision of Administrative Law Judge Kathleen M. Hart 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 $\qquad$ day of November 2018.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member


Curtis E. Chick, Jr., Member

Attest:


Employee: Manshava Johnson

Injury No.: 07-059414

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Worker's Compensation Law, I believe the decision of the administrative law judge should be affirmed.

I would affirm the administrative law judge's award allowing benefits with the stipulated average weekly wage of $607.90. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: Manshava Johnson

Injury No.: 07-059414

Dependents: Belinda Johnson

Employer: Value St. Louis Properties

Additional Party: none

Insurer: Sentinel Insurance

Hearing Date: September 26, 2017

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

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: June 11, 2007
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 injured his low back and body as a whole while moving refrigerators in the course and scope of his employment.
12. Did accident or occupational disease cause death? No Date of death? n/a
13. Part(s) of body injured by accident or occupational disease: low back and body as a whole
14. Nature and extent of any permanent disability: 50 % PPD of the body as a whole referable to the low back
15. Compensation paid to-date for temporary disability: $\ 39,135.71
16. Value necessary medical aid paid to date by employer/insurer? $\ 131,462.37

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 752.61
3. Weekly compensation rate: $\$ 405.27 / \ 376.55
4. Method wages computation: operation of law

1. Amount of compensation payable:

200 weeks of permanent partial disability from Employer

$\ 75,310.00

1. Second Injury Fund liability: n/a

TOTAL:

$\ 75,310.00

1. Future requirements awarded: none

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

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

James Hoffmann

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 07-059414

Employee: Manshava Johnson

Dependents: Belinda Johnson

Employer: Value St. Louis Properties

Additional Party: None

Insurer: Sentinel Insurance

Injury No.: 07-059414

Before the

Division of Workers' Compensation

Department of Labor and Industrial Relations of Missouri

Jefferson City, Missouri

Checked by: KMH

A hearing was held on the above captioned matter September 26, 2017. Manshava Johnson (Claimant) was represented by attorney Jim Hoffmann. Value St. Louis Properties/Sentinel Insurance (Employer/Insurer) were represented by attorney Mary Flanagan Dean.

All objections not expressly ruled on in this award are overruled to the extent they conflict with this award. Employer objected to the admission of Claimant's Exhibits X and Z as not probative. I find these exhibits are not relevant to a determination of the issues, and they are not admitted.

This case was initially heard on July 22, 2013, and a Temporary Award was issued on August 26, 2013. In that award, the Court determined Claimant sustained an injury by accident arising out of and in the course of his employment on June 11, 2007. Claimant's low back condition was determined to be medically and causally related to the injury, and Employer was responsible for past medical expenses. Employer was ordered to provide future medical care and future TTD at a stipulated rate of $405.27 per week. The issue of past TTD was reserved for final hearing.

The parties stipulated to the following:

1. Claimant sustained an injury by accident in the course and scope of his employment for Employer on June 10, 2007.
2. Employer and Claimant were operating under the provisions of the Missouri Workers' Compensation law.
3. Employer's liability was fully insured by Sentinel Insurance.
4. Employer had notice of the injury and a Claim for Compensation was timely filed.
5. Claimant has been paid compensation in the amount of 39,135.71. Claimant received medical benefits totaling 131,462.37.
6. Claimant reached MMI on December 11, 2014.

WC-32-R1 (S-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 07-059414

ISSUES

The parties stipulated the issues to be resolved are as follows:

1. Future medical care
2. Rate
3. TTD
4. Permanent disability
5. Applicability of the Schoemehl decision

FINDINGS OF FACT

Based on the competent and substantial evidence, my observations of Claimant at trial, and the reasonable inferences to be drawn therefrom, I find:

1. Claimant is a 59-year-old male. He has been married to Belinda Johnson for 17 years and she is financially dependent on him. Claimant testified at his 2008 deposition and at the first hearing that he is a high-school graduate and earned a vocational certificate in heating, air conditioning, refrigeration, and electric. However, he testified in the second hearing that his deposition testimony was not correct, and he did not complete high school.

1. Although not discernable from the direct or cross-examination, Claimant was convicted of manslaughter in 1976 and spent a year and a half in prison. As a result, he did not graduate from high school. (See Exhibit P(2) page 2).

1. Claimant spent his career working in maintenance type positions. He began working for Employer in the early 1990s as a Maintenance Technician. Employer operates a high-rise apartment complex with 423 apartments. Claimant's job was physically demanding and he often had to move furniture to assist with rehabbing the apartments. When his supervisor was out, Claimant was the supervisor and gave out work assignments. He worked as a maintenance supervisor at a nursing home in the past.

1. In March 2007, Claimant developed low back and leg pain and saw his primary care physician, Dr. Wilcox. Claimant was sent for physical therapy, and had some improvement in his symptoms. At his June 8, 2007, physical therapy appointment, he advised the therapist he was doing a lot of lifting at work and was having left lower extremity complaints, but he was no longer taking his medications. Claimant continued working his regular duties and continued moving appliances and furniture.

1. On June 11, 2007, as Claimant lifted a refrigerator at work, he felt pain in his low back that shot down his left leg. This pain was different than what he had experienced in the spring. Claimant reported the injury to Employer and was instructed to see his doctor.

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 07-059414

1. Claimant saw his primary care physician, Dr. Wilcox, on June 12, 2007, and he ordered physical therapy and an MRI. Claimant had a lumbar MRI June 22, 2007, and it revealed a herniated disc at L5-S1.

1. Employer sent Claimant to Dr. Kennedy. On July 9, 2007, he diagnosed a herniated disc, took Claimant off work, and ordered epidural steroid injections. He opined Claimant's condition was caused by the June work accident. Employer paid for this medical treatment and paid TTD benefits.

1. The injections did not relieve Claimant's symptoms, and Dr. Kennedy recommended surgery in August 2007. Employer questioned causation and did not authorize surgery.

1. On November 15, 2007, Employer sent Dr. Kennedy a copy of Dr. Wilcox's records, stated the records showed Claimant developed left leg pain as a result of rolling over in bed in March 2007, and requested a causation opinion. Dr. Kennedy responded November 23, 2007, that the records showed Claimant had symptoms compatible with sciatica prior to the June accident, so he was not able to state with certainty that the June accident was the cause of Claimant's injury.

1. Employer sent Claimant to Dr. Chabot for a causation opinion. Dr. Chabot opined the June injury was not the prevailing factor in causing Claimant's back and leg symptoms. He agreed Claimant needed treatment, but opined Claimant could work limited duty.

1. Based on Dr. Chabot's opinion, Employer stopped TTD benefits February 9, 2008.

1. Claimant continued to treat with Dr. Kennedy on his own, and Dr. Kennedy performed an L5-S1 discectomy April 2, 2008. The bills were not paid by Employer. In May 2008, Employer asked Claimant to return to work. Claimant testified Employer terminated him when he said he just had surgery and could not return to work.

1. Claimant had additional physical therapy and continued treating with Dr. Kennedy. His records consistently indicate Claimant's left leg and low back pain continued. By September 2008, Dr. Kennedy diagnosed post-laminectomy syndrome and recommended a lumbar fusion. His records from May 7, 2008 through May 13, 2013 recommend Claimant remain off work pending authorization for treatment.

1. In June 2012, Claimant's attorney wrote Dr. Kennedy and he issued an updated report on June 8, 2012. Dr. Kennedy outlined Claimant's history and opined the June 2007 work injury was the prevailing factor in the need for Claimant's 2008 surgery, his ongoing symptoms, and his need for additional surgery. He further opined Claimant's symptoms prior to June 2007 were not the prevailing factor in the need for surgery.

1. Claimant has not returned to work or looked for other work since the June 2007 injury, and he was awarded Social Security Disability in December 2009. Since his SSD award, he has not looked for a job. Claimant testified he knows enough about HVAC, but he is about ten years behind because he has not done the yearly training. He knows basic electric that he learned in vocational training, and he learned plumbing on the job.

WC-32-0.1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 07-059414

1. This case first went to trial July 22, 2013, and a Temporary Award was issued August 26, 2013, ordering Employer to provide treatment. Employer paid the outstanding bills from Dr. Kennedy, and authorized treatment with Dr. Coyle.

1. Claimant began treatment with Dr. Coyle on September 24, 2013. He ordered updated diagnostic studies and sent Claimant for nerve root blocks and aqua therapy. He noted Claimant was on disability.

1. Claimant's symptoms persisted, and in December 2013, Dr. Coyle recommended surgery. He performed a revision decompression and anterior/posterior arthrodesis at L4-5 and L5-S1 on January 31, 2014, and ordered Claimant off work. His follow-up visits indicate improvement in Claimant's lower extremity symptoms and reduction in medications.

1. Dr. Coyle's records throughout the summer of 2014 indicate Claimant should continue his walking program and work up to walking five miles a day. On September 24, 2014, Dr. Coyle noted Claimant was still walking five miles a day, and he had improved his conditioning. Claimant wrote Dr. Coyle a note on September 25, 2014, and said he was walking like Dr. Coyle told him to, but he had to stop and take multiple breaks. Walking made his back stiff and sore, and pain wakes him up many times at night.

1. Dr. Coyle ordered a CT scan October 31, 2014, and opined it showed a solid fusion. He noted Claimant said he was walking five miles a day, and he sent Claimant for conditioning exercises. These records indicate Claimant had no change in his pain, minimal objective gains in therapy, Claimant self-limits his walking, and he progressed slower than expected.

1. Dr. Coyle weaned Claimant off the Oxycodone and Gabapentin, and he took Ibuprofen as needed. On December 11, 2014, Dr. Coyle noted Claimant said he continues to walk on a regular basis. Claimant had continued left lower extremity pain and low back pain. Dr. Coyle recommended a permanent 25-pound lifting restriction and opined Claimant had reached MMI. Claimant wrote Dr. Coyle a note that day asking for additional physical therapy. Dr. Coyle replied December 19 that while Claimant had residual pain, he had extensive postop therapy and Dr. Coyle saw no benefit from additional therapy. Claimant was walking on a regular basis and was substantially better conditioned than prior to therapy.

1. After Dr. Coyle released Claimant, he went back to his primary care physician, Dr. Maesta, who prescribed Oxycodone. Claimant continues to take three or four pills a day.

1. On February 3, 2015, Dr. Coyle issued a rating report and noted Claimant had stopped narcotics three months after surgery, had good flexibility with negative straight leg raise, had a solid fusion, and was walking up to five miles a day at his November 2014 appointment. Dr. Coyle issued a permanent lifting restriction of 25 pounds, and rated Claimant's disability at 25% PPD of the body as a whole.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 07-059414

1. Prior to the injury date, Claimant lifted anywhere from 25 to 100 pounds at work every day. He had no problems bending or lifting. He did heavy work for Employer. He jogged, attended church regularly, went to the Cardinals' games and played with his grandkids. Claimant testified that in the ten years leading up to the injury date, he jogged two to three miles every other day and was in excellent shape.

1. Claimant testified he still had low back pain with left leg pain and numbness on a daily basis when Dr. Coyle released him. He was only sleeping about two to three hours a night. He had to nap all day because he was taking Oxycodone three to four times a day. His average pain level in his back was an 8 out of 10 without medications. Dr. Coyle gave him Ibuprofen, but that did not help. Claimant was not able to bend, stoop or stand very long and he hurt all day until he could lay down. Claimant could not work because Oxycodone made him light headed, but it was the only way to relieve some of his symptoms. He had difficulty dressing because of the pain when bending. He had difficulty sitting or standing more than 15-25 minutes without low back and leg pain. He testified he had no improvement from the surgery. Dr. Coyle gave him a 25-pound lifting restriction, but Claimant could not lift more than a gallon of milk. Claimant testified that although Dr. Coyle said he was walking several miles a day, he does not. He told Dr. Coyle he would try to walk, but he cannot walk because of his back and leg pain.

1. Claimant testified his symptoms are about the same since his release from treatment in 2014. He cannot jog, play with the kids, or exercise due to his low back and leg pain. His balance is off, and he wobbles when he walks. On a typical day, he gets only two to three hours of sleep a night due to pain in his low back and left leg. He takes three to four Oxycodone a day. The Oxycodone makes him light headed and drowsy and he has to nap 45 minutes to two hours after taking a pill. It also causes him to have problems concentrating and he feels confused. He still has the same difficulty with dressing, running, and lifting. His wife has to help him dress. He stays in his pajamas all day because he lays down when he takes his medication. Claimant testified he feels depressed all the time, and he did not have depression prior to the work injury.

1. Claimant testified Dr. Coyle said he could forward flex to 2" from the floor. He was able to do that and to squat, but it hurt. Claimant testified that although Dr. Volarich said he could walk on his tiptoes or heels, he cannot. Dr. Volarich also noted Claimant was not taking any prescription pain medication, but Claimant testified at trial he was taking Oxycodone at that time and may have forgotten to tell Dr. Volarich.

1. Claimant testified his salary at Employer was between 1,400 and 1,500 a pay period, or approximately 752.61 per week. Employer paid Claimant TTD at a rate of 501.74 until February 9, 2008, when Dr. Chabot opined his condition was not work related. At the beginning of the first hearing on this case, the parties stipulated to a TTD rate of $405.27. Pursuant to the temporary award, Employer paid Claimant TTD while Dr. Coyle provided treatment from January 31, 2014, through December 11, 2014. Despite the stipulations of the parties, Employer paid TTD in 2014 at a rate of $501.74.

1. Claimant's medical expert, Dr. Volarich, reviewed the records, examined Claimant and issued a report in October 2015. He noted the fusion surgery alleviated some of

WC-32-R1 (6-81)

Page 7

Claimant's leg pain, but not his back pain. Claimant continued to have pain with flexion, extension, and twisting. He noted Claimant had no motor deficits in his lower extremities, and he had good range of motion. He had an altered gait favoring the left side, and Claimant said he was able to sit for 15 minutes, stand for 20 minutes, and walk about a block. He noted Claimant took Ibuprofen for pain control because narcotics were too strong. Claimant woke up at night due to pain, and spent most of his day watching tv and napping. He opined Claimant will need ongoing care for pain syndrome and he issued several restrictions due to Claimant's ongoing pain.

1. Dr. Volarich noted Claimant had back pain prior to the June work injury. Dr. Volarich opined Claimant had 50 % PPD of the body as a whole due to the June injury, and 5 % of the body as a whole due to the prior back pain. He opined the two disabilities combine to create a substantially greater disability than their simple sum. He concluded Claimant is unable to engage in any substantial gainful employment. He opined Claimant is permanently and totally disabled as a result of the June injury alone, based on his medical assessment alone. He did not defer to a vocational expert, but relied on Claimant's statements about his work history and his ongoing symptoms. He issued the same permanent lifting restriction as Dr. Coyle, and opined Claimant should limit other activities according to his pain level.
2. Dr. Volarich testified the fusion took pressure off the nerve, but Claimant still has as much pain as he did before the fusion because of the delay in treatment. The nerve will likely not recover and Claimant will have permanent numbness. He testified Claimant is so deconditioned that he may not do well if he tried to work with an accommodation.
3. Claimant's vocational expert, Stephen Dolan, reviewed the records, interviewed Claimant, and issued a report in February 2016. He testified Claimant has looked for work since the injury. Mr. Dolan opined Claimant has experience with a variety of tools and knows how to read schematics and do minor repairs. He has transferable skills, but the limitations from both Dr. Coyle and Dr. Volarich preclude him from using these skills. He noted Claimant's description of his limitations matches Dr. Volarich's restrictions very closely. Given these restrictions, Claimant is unable to tolerate a work schedule because of a poorly controlled pain problem. He testified given Dr. Coyle's restrictions alone, Claimant could perform a variety of unskilled work. When considering Dr. Coyle's restrictions and Claimant's own description of his limitations, he is not employable in the open labor market.
4. Employer's medical expert, Dr. Coyle, issued a final report in February 2015. He noted Claimant continued his walking program. At each of his office visits where Dr. Coyle notes Claimant's progress in his walking program, Dr. Coyle dictated that note in front of Claimant. He opined Claimant has 25 % PPD of the body as a whole and issued a 25 pound lifting restriction. Dr. Coyle testified he could not provide an opinion about Claimant's work status prior to the time he began treating him. As to the delay in treatment, Dr. Coyle testified a patient loses nothing by waiting for or delaying a fusion. The delay in surgery did not cause any permanent neurologic deficit and Claimant has no motor deficit. At the time he released Claimant, he was walking five miles a day, had good range of motion, and was taking Ibuprofen only.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 07-059414

1. Employer's vocational expert, James England, reviewed the records, interviewed Claimant, and issued a report in August 2016. He noted Claimant was weaned off Gabapentin and put on Celebrex by the time he was released from treatment. Claimant now takes Oxycodone three to four times a day. He reviewed Claimant's work history and opined Claimant had knowledge that would be transferable down to a light level of exertion and to some maintenance supervisor positions or sales positions. Assuming Dr. Coyle's restrictions, Claimant is a good candidate for vocational rehabilitation. Assuming Dr. Volarich's restrictions, Claimant would not be able to work. Mr. England testified Claimant did not mention to him anything about problems with his sleep.

RULINGS OF LAW

Having given careful consideration to the entire record, based upon the above testimony, the competent and substantial evidence presented and the applicable law, I find the following:

1. Claimant's rate of compensation for TTD/PTD is 405.27 and for PPD is 376.55.

At the 2013 hearing, the parties stipulated Claimant's average weekly wage was 607.90, and his rates for TTD and PPD are 405.27 and $376.55 respectively. A temporary award was issued ordering Employer to provide treatment and pay part of the back TTD and future TTD at the stipulated rate of $405.27.

Employer paid TTD during 2007 and after the temporary award at a rate of $501.74, based on a wage statement that was withdrawn as an exhibit at the time of the first hearing. Claimant asserts that although the parties stipulated to a rate of $405.27, the parties made a mutual mistake and the court can correct the rate.

The courts have found stipulations are controlling, and I am bound by the stipulations of the parties.

1. Claimant is not entitled to TTD from February 10, 2008 through January 30, 2014.

Claimant alleges he is entitled to TTD from the time Employer cut TTD on February 9, 2008, until the time Dr. Coyle performed the fusion, or January 31, 2014. The issue of back TTD was reserved for final award.

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 07-059414

In early 2008, Dr. Chabot opined although Claimant needed additional treatment, he could work limited duty. Mr. England reviewed the records and opined Dr. Chabot's restrictions would have precluded him from returning to his position with Employer, but Claimant would have been capable of a variety of alternative work.

Dr. Kennedy treated Claimant from 2008 through mid-2013. Within a few months of the April 2008 surgery, Dr. Kennedy diagnosed post-laminectomy syndrome and recommended a fusion. He prescribed pain medications and recommended Claimant remain off work pending authorization for additional treatment. He also recommended Claimant perform activity as tolerated.

Dr. Coyle began treatment in September 2013. Dr. Coyle testified he could not give an opinion within a reasonable degree of medical certainty regarding Claimant's work status prior to his initial evaluation. Within a few months, he agreed with Dr. Kennedy's diagnosis and treatment recommendation, and opined Claimant was unable to work following his January 2014 surgery.

Dr. Volarich issued restrictions for Claimant after the June 2007 injury, but did not preclude Claimant from working during the time period in question.

There is insufficient evidence to award back TTD. I find the overwhelming weight of the evidence establishes while Claimant may not have been able to return to work at his previous position for Employer, he was capable of alternative work.

1. Claimant sustained 50% PPD of the body as a whole and is entitled to $75,310.00 in compensation.

Claimant alleges he is totally disabled as a result of the work injury alone. Claimant had no restrictions or disabilities prior to the work injury.

Section 287.020.6 defines total disability as the "inability to return to any employment, and not merely inability to return to the employment in which the employee was engaged at the time of the accident." The question is whether an employer would reasonably be expected to employ Claimant in his current condition.

The medical experts agree Claimant is unable to lift greater than 25 pounds. This precludes him from returning to his job with Employer. Dr. Volarich issued additional restrictions based on Claimant's complaints of pain and assertion that he needs to rest throughout the day. The vocational experts agree Claimant can work when considering the restrictions from Dr. Coyle but not when considering the restrictions from Dr. Volarich.

I believe Claimant has ongoing pain and restrictions, but both experts found he had no motor deficits in his lower extremities and he had good range of motion. I find the opinions of

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 07-059414

Dr. Coyle more persuasive, and I find Claimant sustained 50% PPD of the body as a whole referable to the low back.

1. Claimant is not entitled to future medical care.

Section 287.140.1, RSMo, requires an employer to provide an employee with such medical treatment as may be reasonably required to cure and relieve the effects of the injury. A claimant need not present evidence that future medical treatment is needed but instead needs only to show a reasonable probability that future treatment is necessary because of the work-related injury.

Claimant's expert, Dr. Volarich, issued his standard future treatment recommendations. Dr. Coyle released Claimant at MMI December 11, 2014. He noted Claimant had a solid fusion, had been weaned from his narcotic pain medications, and opined Claimant did not need surgery or any additional treatment.

I find Dr. Coyle's opinion more persuasive and I find Claimant has failed to establish a reasonable probability that future treatment is necessary.

1. The remaining issues are moot.

I certify that I am 1-2-18 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 __________________________

Made by: __________________________

KATHLEEN M. HART

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-83)

Page 11