Ollie Hickmon v. Propak Logistics, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-024814

**Employee:** Ollie Hickmon

**Employer:** Propak Logistics, Inc.

**Insurer:** Liberty Mutual Insurance Corporation

**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. The award and decision of Administrative Law Judge Angela C. Heffner, issued June 29, 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 21st day of February 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- Robert W. Cornejo, Chairman

- Reid K. Forrester, Member

- Curtis E. Chick, Jr., Member

**Attest:**

- Secretary

Employer: Propak Logistics, Inc.

Insurer: Liberty Mutual Insurance Corporation

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: April 26, 2018 Checked by: ACH/drl

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: April 10, 2013
5. State location where accident occurred or occupational disease contracted: Kansas City, Jackson County, Missouri
6. Was above employee in the 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 happened or occupational disease contracted: Employee was lifting a pallet he had just repaired and was moving it when the pallet got caught on a nail gun resulting in injury.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Parts of body injured by accident or occupational disease: Right hip, back, and body as a whole.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

1. Compensation paid to date for temporary disability: Approximately $55,700.26

1. Value necessary medical aid paid to date by employer/insurer? 156,915.90

1. Employee's average weekly wages: 751.59

1. Weekly compensation rate: $501.06/433.58

1. Method wages computation: Parties stipulate.

COMPENSATION PAYABLE

1. Amount of compensation payable:

From Employer and Insurer:

For past Temporary Total Disability

May 1, 2014 through January 25, 2015 at $501.06 per week.

For Permanent Total Disability

Beginning March 23, 2016 and continuing for the remainder of Claimant's lifetime,

Employer/Insurer shall pay Claimant permanent total disability at the weekly rate of $501.06.

1. Second Injury Fund liability: None.

1. Future requirements awarded:

Employer/Insurer shall be responsible for future medical to cure and relieve the effects of the work injury to Claimant's right hip and body as a whole, referable the low back.

This Award is subject to review and modification as provided by law. Interest shall accrue as provided by law.

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

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

Employee: Ollie Hickmon

Injury No.: 13-024814

Employer: Propak Logistics, Inc.

Insurer: Liberty Mutual Insurance Corporation

Additional Party: Missouri State Treasurer as Custodian of the Second Injury Fund

Hearing Date: April 26, 2018

Checked by: ACH/drl

On April 26, 2018, the Employee, Employer, and Second Injury Fund appeared for a final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, Mr. Ollie Hickmon (Employee or Claimant), appeared in person and with counsel, Ms. Steffanie Stracke. The Employer, Propak Logistics, Inc. and Liberty Mutual Insurance Company, (Employer), appeared through counsel, Ms. Stephanie Warmund. The Second Injury Fund (SIF) appeared through counsel, Assistant Attorney General Alexandra Alpough.

The parties stipulated to the following:

1. That on or about April 10, 2013, Propak Logistics Inc. was an employer operating subject to Missouri Workers' Compensation law with its liability fully insured by Liberty Mutual Insurance Company;
2. Mr. Hickmon was its employee working subject to the law in Kansas City, Jackson County, Missouri;
3. That Mr. Hickmon sustained an injury arising out of the course and scope of employment.
4. Mr. Hickmon notified Employer of his injuries and filed his claim for compensation within the time allowed by law;
5. Mr. Hickmon earned an average weekly wage of 751.59 resulting in a compensation rate of 501.06 for temporary total disability, and $433.58 for permanent partial disability.

1. Whether the Employee is entitled to temporary total disability benefits from April 1, 2014 to January 25, 2015

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

1. Whether the Employer is entitled to reimbursement by the Employee of temporary total disability benefits from March 26, 2014 to March 31, 2014.
2. Whether Employer must provide the Employee with medical care in the future.
3. Whether Employee suffered any disability and, if so, the nature and extent of Employee's disability, and whether the Employee is permanently and totally disabled as to the Employer.
4. Whether the Second Injury Fund is liable to the Employee for any disability compensation.

Employee testified on his own behalf and offered the following exhibits which were admitted into evidence without objection.

- A Notice of Filing of Medical Reports of Dr. Stuckmeyer's Reports of September 3, 2014, August 28, 2016, and March 13, 2017 and attached Medical Records

- B Notice of Filing of Medical Reports of Dr. Stuckmeyer's Reports of January 10, 2018, and attached medical Records

- C Deposition Transcript of Terry Cordray

Employer offered the following exhibits which were admitted into evidence without objection.

- 1 Notice of Deposition of Dr. Krempec's Medical Report

- 2 Notice of Filing Dr. Ciccarelli's Medical Report

- 3 Deposition of Stella Doering

- 4 Video Moving Fridge

- 5 Video Playing with Kids

- 6 Release of all Claims

- 7 Facebook Photo 1/12/16

- 8 Facebook Photo 10/1/16

- 9 Photo in Car of Seat

- 10 Preferred Physical Therapy Records

- 11 Marvin's Midtown Chiropractic Clinic, LLC Records

- 12 Providence Medical Center dated 6/3/07

- 13 Providence Medical Center dated 11/6/07

- 14 Providence Medical Center dated 12/6/07

- 15 Providence Medical Center dated 5/5/10

- 16 Dr. Harding's Records

Second Injury Fund offered the following exhibits which were admitted into evidence without objection.

- 1 Claimant Deposition Volume 1

- 2 Claimant Deposition Volume 2

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

Claimant, Ollie Hickmon, testified credibly. He is presently 39 years old. At the time of his work-related accident on April 10, 2013, he had been employed at Propak Logistics for 13 months. He last worked for Employer on May 1, 2014 when he gave Employer a note from Dr. Harding stating he was unable to work indefinitely. He has not worked anywhere since May 1,2014.

Mr. Hickmon graduated from Turner High School. He testified that he struggled in school with reading, spelling, and math. Claimant was not in special education classes, however, he testified that he attended classes in a Learning Center and most of his classes were vocational and not academic in nature. Claimant has not received any formal training after high school graduation. He testified that he learned skills when he was on the job. Claimant does not have any computer or clerical skills.

After he graduated from high school, Claimant worked full time at Omega Concrete Company for approximately one and a half years. He would pick up concrete forms, guide them onto a trailer and unhook them from a crane. He walked around the yard a lot. This job required forceful pushing and pulling.

Claimant then worked for H\&H Auto Salvage, his father's auto repair and salvage company for three years. This position required heavy labor. He picked parts off of vehicles, removed transmissions, changed out motors and changed tires. No real automotive skills were required to do this position. Claimant supervised his younger brothers who also worked there but did not schedule their work days or have hiring or firing authority. He testified that his role as a supervisor was to make sure his brothers were doing the work assigned to them.

Mr. Hickmon then worked for Twin City Security as a guard at a UPS facility for two years. He checked identification numbers on trailers as the trucks arrived and departed the facility. He would climb a long ladder to get on top of a trailer to unlock it by breaking the seal requiring physical exertion. Claimant walked or biked the perimeter of the yard.

After leaving Twin City Security, Claimant worked for his brother's home remodeling company, J\&H Improvement, for one to two years. They performed a wide variety of tasks from full demolition and remodeling of rooms to roofing. This position required heavy lifting and strenuous physical exertion. Claimant did not handle the paperwork or any accounting related to the company.

Claimant then worked for Green Leaf Construction as a laborer cleaning up work sites, picking up materials, demolition, and climbing ladders to take tools to other employees. He testified that he was required to lift more than 35 pounds, bend, twist, and stand for a prolonged amount of time. Claimant moved into a site assistant supervisor position. Employee had a higherlevel supervisor; however, if he was not at the site, Claimant was in charge. He monitored what the subcontractors were doing to ensure they were performing the tasks assigned to them. If a crew needed help with a task, Claimant would help them. Mr. Hickmon was unable to continue his

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

employment with Green Leaf because he was off of work for a long period of time recovering from a motor vehicle accident.

On June 3, 2007, Employee was injured in a motor vehicle accident resulting in an injury to his right shoulder that required surgical repair and an injury to his lower back. On December 6, 2007, Dr. Mark Maguire performed an arthroscopic debridement of a type 1 SLAP lesion with subacromial bursectomy. X-rays of Employee's lumbar spine revealed facet joint arthropathy with minimal spondylolisthesis at L5-S1. Mild degenerative disc disease was also detected in the x-rays.

Claimant testified that he went to a chiropractor three times a week and had physical therapy as treatment for his back injury. Active treatment for his back injury ended in November 2007. He continued to have aching and pain due to his back injury but it was not severe and he controlled his symptoms with over-the-counter medicines.

Claimant testified that he was unable to work for three years after the June 2007 motor vehicle accident. He continued to have trouble with his shoulder after Dr. Maguire treated and released him. Even though he had ongoing complaints about his shoulder, Claimant did not receive medical treatment regularly because he did not have health insurance.

Claimant returned to full time employment at Intermodal Maintenance Service approximately two to three years after the motor vehicle accident. He performed maintenance on semi-trailers including changing ties, brake lights, and adjusting brakes. He frequently lifted objects that weighed at a minimum 35 pounds. In order to perform his job responsibilities, he was required to bend, twist, and climb. Claimant left Intermodal Maintenance Service for a higher paying job at Propak Logistics.

Claimant was a full time builder at Propak Logistics for approximately 13 months before his work-related injury on April 10, 2013. He inspected and repaired pallets which weighed 60 to 80 pounds. He would lift and turn the pallet over to inspect the bottom and then used a grinding wheel, hand grinder, nail gun, sawzall, and a pry bar to complete repairs. Claimant would then push the pallet onto a conveyor belt. If the conveyor belt was not working, Claimant would pick up and carry the pallet to the end of an aisle. The minimum number of pallets to be repaired during a work shift was 266 and he was able to successfully meet this quota every day.

When Claimant returned to employment following the June 3, 2007 motor vehicle accident, he testified he was able to successfully perform all of his job duties at both Intermodal Maintenance Services and Propak Logistics despite his back and shoulder complaints.

April 10, 2013 Injury

On April 10, 2013, Claimant was transferring a pallet from one station to another when the pallet became entangled on his nail gun causing him to injure his right hip and lower back. Employee testified that he notified Employer of the injury and Employer sent him to Concentra for medical treatment.

At Concentra, Cheryl Bernhardt, a nurse practitioner, diagnosed Claimant with a lumbosacral strain and a strain of the right hip. She noted that Employee had a previous back injury in 2007 because of a motor vehicle accident. Ms. Bernhardt recommended Claimant use crutches.

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

with partial weightbearing and restricted bending, prolonged standing or walking greater than tolerated and no squatting or kneeling. She also recommended physical therapy and prescribed Ibuprofen, Skelaxin and Ultram. Claimant continued to treat at Concentra for approximately six weeks with no improvement.

On May 21, 2013, an MRI scan was obtained of Claimant's lumbar spine revealing a grade 1 spondylolysis of L5 on S1 due to chronic pars interarticularis fractures. And on May 29, 2013, Employee had an MR arthrogram of the right hip revealing a nondisplaced partial thickness tear involving the anterior labrum.

Dr. Eden Wheeler performed an Independent Medical Evaluation of Employee on August 28, 2013. At the time of the evaluation, Employee continued to complain of constant pain in the right lower back with right buttock pain and difficulty with prolonged sitting or walking. Additionally, Employee continued to report pain in the right inguinal and groin region with weightbearing. Dr. Wheeler also noted Employee's acknowledgement of sustaining an injury to his right shoulder and upper back because of a motor vehicle accident in 2006. (The correct year is 2007, however Dr. Wheeler's records says 2006.) Dr. Wheeler recommended an assessment by a hip specialist with expertise in treatment and evaluation of labral tears. She recommended work restrictions of no lifting greater than 10 pounds, ability to sit and stand as needed, occasional bending, and avoid repetitive stairs or ladders.

On September 3, 2013, Dr. Jeffrey Krempec examined Employee. Dr. Krempec opined that his anterior labral tear is the result of his injury at work. Dr. Krempec recommended a therapeutic right hip injection which failed to improve Employee's condition. As a result, Employee underwent a right hip arthroplasty with arthroscopic labral repair and open femoral osteochondroplasty on October 31, 2013. At his postoperative visit on November 26, 2013, Dr. Krempec recommended physical therapy and restricted his work duties to sedentary duty only. Employee was prescribed Hydrocodone, Tramadol, Nabumetone, Naprosyn and Cyclobenzaprine. As it related to his hip injury, Dr. Krempec opined that Employee reached maximum medical improvement and released him to return to regular duty on March 25, 2014. Dr. Krempec assesses permanent partial impairment of 12% of the right lower extremity based on the 4th Edition of the AMA Guidelines.

Claimant attempted to return to work following his release from treatment but was unable to work as a pallet builder. Instead, he was placed in a pallet inspector position which was deemed to be less physically demanding. Claimant testified that this position was "slightly lighter" but required him to lift pallets from the conveyor belt and inspect them. He testified that he worked from March 26, 2014 until May of 2014. However, he was not able to work a full day and began to accumulate points for leaving early. Prior to his April 10, 2013 injury, he was able to work a full day. Claimant went to Dr. Harding, a chiropractor, at his own direction and expense to try to improve his condition. He testified that he knew something was wrong and Employer was unhappy with his job performance. Claimant wanted to keep his job at Propak Logistics.

On May 1, 2014, Dr. Harding opined that Employee was not able to perform his job duties indefinitely and Employee gave this record to Employer. Employee was not able to return to his employment with Employer again after May 1, 2014.

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

Employee began treating for his low back pain with Dr. Galate in late January 2015, and on February 24, 2015 reported 20% improvement following a sacroiliac injection. Employee received an epidural injection on March 2, 2015. After a brief couple of days of minimally improved pain, Employee returned to see Dr. Galate on March 13, 2015. Dr. Galate concluded that Employee felt no improvement in his pain from the injection and continued to complain of a constant stabbing pain in the mid to lower back with radiating pain into the right lower extremity. Dr. Galate placed work restrictions of no repetitive bending, twisting, or lifting, with alternate sitting and standing activities as needed and no lifting more than 10 pounds. In his April 17, 2015 visit to Dr. Galate, it was concluded that Employee was not receiving any benefit with conservative treatment and a surgical consultation was discussed.

On June 30, 2015, Dr. Ciccarelli examined Employee and opined that the work injury of April 10, 2013 was the prevailing factor for the need for treatment. A second MRI on July 10, 2015 revealed chronic bilateral spondylolysis with a grade 1 anterior spondylolisthesis of L5-S1. Dr. Ciccarelli opined that Employee sustained a work injury with symptomatic aggravation of an underlying grade 1 isthmic spondylolisthesis at L5-S1 and recommended surgical intervention. On September 11, 2015, Dr. Ciccarelli performed a complex series of six procedures, including a L5-S1 posterior fusion on Employee's low back. Employee saw Dr. Ciccarelli several times for post-operative visits resulting in different levels of work restrictions. On March 22, 2016, Dr. Ciccarelli released Employee at maximum medical improvement with a 35-pound weight limit with no repetitive bending or lifting on a frequent or constant basis. Dr. Ciccarelli assessed 20% permanent partial disability to his body as a whole with 5% of the 20% assigned to his pre-existing spondylolisthesis. This results in 15% permanent partial disability to his body as a whole as it directly relates to his work injury of April 10, 2013.

Claimant testified that his employment with Employer was terminated because of the permanent work restrictions Dr. Ciccarelli placed on him.

Claimant's Current Condition

Following his release from treatment for both his right hip and low back, Claimant continues to experience significant pain and ongoing disability. Claimant testified that he has daily pain in his low back, related difficulty with prolonged standing, walking, lifting, and bending. Claimant testifies that he continues to have pain radiating into his right lower extremity. He is able to sit for 5 to 10 minutes without pain. On a pain scale of 0-10, Claimant testified that his average pain level is a 7. He does not take any pain medication because he does not have health insurance. Claimant testified that when he cannot tolerate the pain, he will get pain medication from a family member or "off of the street." Claimant testified that lying down is the only way he can relieve the tension in his back and lower extremities.

After his April 10, 2013 work injury, Claimant testified that he has trouble sleeping for more than an hour to an hour and a half without waking and changing positions. He can no longer mow grass and do yard-related work. Additionally, he can no longer perform remodeling and repair work on his house and relies on family members to help him. Claimant cannot perform auto repair work on his own vehicle. Cold weather causes pain and he testified it feels like he has a brain freeze on his spine.

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

Claimant testified that he can prepare small meals. Chores around the house are difficult for him to do. A friend lives with he and his family and she cooks, cleans, and helps with childcare in exchange for rent. He has several children and cannot play different ball games or do drills with them anymore. When he goes to one of his kids' activities, he brings his own chair with a cushion and often cannot stay for the entire game or event because of pain and discomfort.

Claimant can no longer bathe alone and needs assistance from his wife to wash from his mid-thigh down to his toes. He cannot put his socks on his feet or put shoes on unless they are slide-on shoes.

Employer entered Exhibits 4 and 5 into evidence to call Employee's credibility related to the nature and extent of his disability into question. Exhibit 4 is a video of a group of adult men moving a refrigerator outside of Employee's house. Employee testified that he is wearing a Denver Broncos' fishing type hat. Employee can be seen adjusting straps wrapped around the refrigerator while it is in the bed of a truck. Exhibit 4 does not change the Court's finding that the Employee is credible.

Exhibit 5 is a video of Employee seated on the ground with four toddlers jumping on him and Employee wrestling with them. Employee and his wife, Daivon Hickmon, both testified that the video was taken at Christmastime and was the first time Employee played with his younger kids and other family members who were approximately three or four years old. Employee testified that he needed help to stand up from the seated position. Exhibit 5 does not change the Court's finding that the Employee is credible.

Exhibits 7 and 8 are both pictures of Employee he posted on his Facebook page. Both photos appear to be selfies of Employee when he is dressed in nice clothes. Exhibits 7 and 8 do not change the Court's finding that the Employee is credible.

Expert Opinions

Dr. James Stuckmeyer examined Claimant at his counsel's direction. Dr. Stuckmeyer initially concluded that Claimant had 30% permanent partial disability to the right shoulder prior to his April 10, 2013 work-related injury. As a prevailing factor of the April 10, 2013 injury, Claimant sustained 45% permanent partial disability to the right hip and 30% permanent partial disability to the lumbosacral spine. Additionally, Dr. Stuckmeyer assigned several permanent work restrictions to Mr. Hickmon including no prolonged standing or walking greater than tolerated with no repetitive bending, twisting, or lifting of the lumbar spine, no repetitive stair climbing greater than needed for activities of daily living, no ladder climbing, no working at heights, no lifting more than 20 to 25 pounds floor to waist, and not lifting above waist height to exceed 15 to 20 pounds.

However, after review of Mr. Terry Cordray's January 3, 2017 vocational report, Dr. Stuckmeyer opined that when taking the April 10, 2013 accident in isolation, Claimant is deemed to be permanently and totally disabled from the open labor market. (Ex. A and Ex. B) Dr. Stuckmeyer also reviewed Mr. Cordray's September 21, 2017 report which once again opined that Claimant was totally disabled from the open labor market because of the workplace accident occurring on April 10, 2013 in isolation. Dr. Stuckmeyer issued a January 10, 2018 report stating that his opinion regarding Mr. Hickmon's permanent and total disability remain unchanged.

Page 9

**Employee:** Ollie Hickmon

**Injury No. 13-024814**

Also in his January 10, 2018 report, Dr. Stuckmeyer opines within a reasonable degree of medical certainty that as a direct, proximate and prevailing factor of the April 10, 2013 accident, Claimant would benefit from referral to a pain management clinic for repeat epidural injections and consideration of a spinal cord stimulator. He estimates the cost of a spinal cord stimulator to range from 100,000 to 110,000. Dr. Stuckmeyer adds that if he is a candidate for a spinal cord stimulator, medical would remain open for the rest of his life.

Dr. Stuckmeyer also opines that Claimant would benefit from lifelong pharmacological management for his chronic pain.

Specific to the right hip, Dr. Stuckmeyer feels that Claimant warrants a hip replacement given the chronicity of his right hip pain. A hip replacement is estimated to cost between 100,000 and 110,000. If Claimant is a candidate for a hip replacement, medical would remain open for the remainder of his life.

At his counsel's direction, on November 1, 2016, Claimant met with Mr. Terry Cordray for a vocational assessment to determine the impact of medical problems secondary to his April 10, 2013 work-related injury on his vocational capabilities. Mr. Cordray testified that Claimant's work history of all heavy labor positions was reflective of his intellectual capabilities. Even though Claimant has a high school degree, the vocational assessment Mr. Cordray performed indicated that Claimant is below average in intelligence. Following a serious motor vehicle accident, Claimant returned to two different heavy labor positions until he was injured at work on April 10, 2013. As a result of this injury and resulting disabilities, Mr. Hickmon received formal restrictions. In light of the restrictions given by Drs. Ciccarelli and Stuckmeyer, Mr. Cordray concludes that Claimant cannot return to work at Propak Logistics or any of his previous employers. Mr. Cordray states, "I'm extremely concerned about Mr. Hickmon's ability to be placed in any job in the labor market." (Ex. C) Mr. Cordray concludes that Claimant may be placeable in a minimum wage job but would need significant accommodations and assistance by possibly a benevolent employer.

Mr. Cordray issued a second report on September 21, 2017 after receiving additional records in this claim, including Mr. Hickmon's deposition. Mr. Cordray states that given the restrictions Dr. Stuckmeyer places on Claimant that limit him to sedentary work, he has no transferrable work skills to sedentary work placing him at sedentary unskilled jobs. Mr. Cordray testifies that sedentary jobs are approximately 4% of the jobs in the labor market. Due to Claimant's below average intelligence, Claimant is limited in the types of sedentary jobs. Mr. Cordray opines, "...Mr. Hickmon is totally disabled given the fact that he is limited to sedentary, unskilled jobs for which he has no education, training, or work background, that he has never used a computer in any job, that he is intellectually challenged, that his employer offered him no alternative work, and as noted by Dr. Stuckmeyer, his total disability is as a result of his last injury." (Ex. B)

At his Employer's direction, Claimant met with Ms. Stella Frank Doering on October 20, 2017 for a vocational assessment. Ms. Doering utilized the OASYS Vocational software in her analysis of Claimant's vocational capabilities following his April 10, 2013 work-related accident. All of Claimant's past work was classified and the "Work Fields" and the materials, products,

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

subject matter and services were identified that correspond to his past work. Claimant's adjusted ability profile was created in OASYS by using a combination of his work history and skills he may have acquired from that work; the physical restrictions placed on him by Drs. Ciccarelli and Stuckmeyer, and adjusting for Claimant's educational history, his scores on the WRAT test and behavioral observation of his ability to converse as well and his general fund of knowledge. The OASYS software then performs a Transferable Skills Analysis to determine occupations Claimant may be able to perform and whether those occupations are available in his local labor market. Based on the analysis the OASYS software provides Ms. Doering, she concludes that Claimant has lost access to 12% of the jobs he was able to perform prior to his work-related injury and that access to employment that is within his adjusted ability profile and in his local labor market remains good.

I find Mr. Cordray's expert opinion to be more credible and persuasive than Ms. Doering's expert opinion. As Mr. Cordray explained, the analysis the OASYS software generates is the beginning of the analysis and assessment of an employee's vocational capabilities. Mr. Cordray explains the software program removes many jobs the employee cannot perform. At that time, professional judgment should be used to go back to the medical records and your own knowledge of the labor market and the individual and their qualifications and determine which of the remaining jobs the employee can perform. Mr. Cordray's review and use of Employee's specific job descriptions results in a more specific vocational analysis than the use of a software program.

RULINGS OF LAW

Whether Employee suffered any disability, if so, the nature and extent of Employee's disability, and whether the Employee is permanently and totally disabled as to the Employer.

Claimant has the burden of proving all elements of his claim to a degree of reasonable probability. *Cardwell v. Treasurer of State of Missouri*, 249 S.W.3d 902, 911 (Mo. App. E.D. 2008). Claimant seeks permanent total disability against Employer. When an injured employee alleges permanent total disability, as in the instant case, the Administrative Law Judge first must consider the liability of the employer in isolation by determining the degree of disability due to the last injury. *APAC Kansas, Inc. v. Smith*, 227 S.W.3d 1, 4 (Mo. App. W.D. 2007), and *Hughey v. Chrysler Corp.* 34 S.W.3d 845, 847 (Mo. App. E.D. 2000). If Claimant's last injury in and of itself renders Claimant permanently and totally disabled, the Second Injury Fund has no liability for permanent and total disability and Employer is responsible for the entire amount. *Feld v. Treasurer of Missouri as Custodian of Second Injury Fund*, 203 S.W.3d 230, 233 (Mo. App. E.D. 2006).

The term "total disability" means the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the last injury. § 287.020.6 RSMo. The test for permanent total disability is the worker's ability to compete in the open labor market, with the critical question being whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker given his present physical condition. *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 48 (Mo. App. W.D. 2007); *Ransburg v. Great Plains Drilling*, 22 S.W.3d 726, 732 (Mo. App. W.D. 2000) overruled on other grounds, *Hampton v. Big Boy Steel Erection*, 121 S.W.2d 220 (Mo. banc 2003). While "total disability" does not require that Claimant be completely inactive or inert, *Sifferman*

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo. App. S.D. 1996), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W. 2d 220 (Mo. banc 2003), it does require a finding that Claimant is unable to work in any employment in the open labor market, and not merely the inability to return his last employment. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. S.D. 2001), overruled on other grounds Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003). It is within the province of the Administrative Law Judge to determine the extent of any permanent disability. Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo. App. E.D. 1998).

Following the April 10, 2013 work injury, Claimant now suffers constant low back and right leg pain. Since the work injury, he cannot lift more than 35 pounds. He can no longer bend or lift on a repetitive basis. Claimant cannot stand for prolonged periods of time or walk for long distances. Prior to the last injury, he was performing repetitive heavy lifting and was able to stand and walk for pronged periods of time. He now lies down multiple times per day, something he does solely because of the pain emanating from his back and leg due to the last injury. Mr. Cordray credibly opined that the restrictions of the physicians place Claimant at the sedentary exertional level, that Claimant has no transferable job skills. His intelligence level is below average. Mr. Cordray was unequivocal in his opinion that Claimant is permanently and totally disabled from the last injury alone. Having found the testimonies of Mr. Cordray and Claimant credible, and having considered the whole record, I find and conclude that Claimant is permanently and totally disabled from the last injury alone. Employer is liable for permanent total disability. The Second Injury Fund has no liability.

Employer argues that the Second Injury Fund is liable for permanent total disability given Claimant's serious injuries from a 2007 motor vehicle accident which were potentially disabling prior to April 10, 2013. Having found that Claimant is unemployable as a consequence of the last injury alone, there is no need to consider the effect of these preexisting conditions. Feld, 203 S.W.3d at 233. Moreover, Claimant credibly testified, without impeachment, that his prior injuries did not cause him problems at work and he was able to successfully perform heavy labor jobs following the 2007 motor vehicle accident. Mr. Cordray opined from a vocational perspective, that none of the preexisting conditions constituted a hindrance or obstacle to employment or reemployment prior to April 10, 2013.

Future Medical Treatment

Claimant seeks an award leaving open future medical care and treatment to relieve and cure him of the work-related injuries he has sustained. Section 287.140, RSMo, requires that the employer/insurer provide "such medical, surgical, chiropractic, and hospital treatment...as may reasonably required...to cure and relieve [the employee] from the effects of the injury." Mathia v. Contract Freighters, Inc., 929 S.W.2d 271, 277 (Mo.App. 1996). The standard of proof for entitlement to an allowance for further medical treatment cannot be met simply by offering testimony that it is "possible" that the claimant will need further medical treatment. Modlin v. Sun Mark, Inc., 699 S.W.2d 5,7 (Mo.App. 1995). Employees are required to show by a reasonable probability that they will need future medical treatment. Sharp v. New Mac Elec. Co-op., 92 S.W.3d 351, 354 (Mo.App. 2003), overruled in part on other grounds by Hampton, 121 S.W.3d at 224; Dean v. St. Luke's Hospital, 936 S.W.2d 601, 603 (Mo.App. 1997), overruled in part on other grounds by Hampton, 121 S.W.3d at 227.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

When the standards for awarding future medical aid are applied to the facts of this case, I find Claimant has satisfied his burden of proof on this issue. This is supported by the medical records admitted into evidence. (Exhibits A and B) Additionally, Dr. Stuckmeyer testified Mr. Hickmon will need ongoing medical treatment and medication as a result of his severe injuries, including treatment for additional surgeries if needed.

Based on this evidence, Employer is directed to provide all additional medical treatment reasonable and necessary to cure and relieve Mr. Hickmon from the effects of his April 10, 2013, injury in accordance with the provisions of Section 287.140, RSMo. This requirement for future medical aid shall include any care and treatment that is causally related to Mr. Hickmon's accident.

Temporary Total Disability

Employer seeks reimbursement by the Employee of temporary total disability benefits from March 26, 2014 to March 31, 2014. Dr. Krempec found Claimant to be at maximum medical improvement on March 25, 2014. Claimant testified that he returned to work for Employer on March 26, 2014 as a quality inspector which required physical work. He testified that he believed he worked until May but he was unable to work full days because of pain in his back and buttocks.

There are no payroll records from any of the time Employee worked for Employer in the record. Additionally, there are no records of temporary total disability payments Employer and Liberty Mutual Insurance Company paid to Employee during any of the time period following the April 10, 2013 injury through Employee's last day of employment in the record. There is no testimony that Claimant was paid temporary total disability payments from March 26, 2014 to March 31, 2014 and also received regular payment as an employee working regular duty. There is insufficient evidence in the record of paycheck payment and temporary total disability payments to Employee for the Court to find the Employee must reimburse Employer for temporary total disability payments from March 26, 2014 to March 31, 2014.

Claimant seeks temporary total disability benefits from April 1, 2014 to January 25, 2015. Employee testified that he worked some days and hours from March 26, 2014 until May. There is insufficient evidence in the record for the Court to determine if the Claimant is entitled to temporary total disability payments from April 1, 2014 to April 30, 2014.

Claimant testified that he was not able to satisfactorily perform his job when he returned March 26, 2014. He could not work a full day and left early. He was accumulating points for his poor performance and he feared he would be fired. Claimant made an appointment with Dr. Harding on May 1, 2014. On May 1, 2014, Dr. Harding opined that Employee was not able to perform his job duties indefinitely and Employee gave this record to Employer. Employee was not able to return to his employment with Employer again after May 1, 2014. Claimant testified that temporary total benefits started to be paid again in January 2015 following a preliminary hearing in Kansas.

Claimant was incapable of any work between May 1, 2014 and January 25, 2015. Employer paid no temporary total disability during this time period. (SIF Ex. 2) Employer is ordered to pay temporary total disability payments from May 1, 2014 until January 25, 2015.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Ollie Hickmon

Injury No. 13-024814

Beginning March 23, 2016, and continuing for the remainder of his lifetime, Employer/Insurer shall pay Claimant the weekly sum of $501.06 for permanent total disability benefits.

Employer/Insurer shall pay Claimant temporary total disability at the weekly rate of $501.06. This is for the period beginning May 1, 2014 through January 25, 2015.

Employer/Insurer shall provide future medical benefits to cure and relieve the effects of the work injury.

Because Claimant is permanently and totally disabled from the last injury in isolation, the Second Injury Fund has no liability.

Attorney Steffanie Stracke shall have a lien of 25 percent of all amounts awarded herein as a reasonable fee for necessary legal services provided to Claimant.

This Award is subject to review and modification as provided by law. Interest shall accrue as provided by law.

I certify that on June 29, 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: ______


Made by: ______ Angela C. Heffner

Division of Workers' Compensation

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