Thomas Walker v. St. Louis Zoological Park

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 14-060538

**Employee:** Thomas Walker

**Employer:** St. Louis Zoological Park (settled)

**Insurer:** Missouri Employer's Mutual Insurance (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 August 23, 2018. The award and decision of Administrative Law Judge Lee Schaefer, issued August 23, 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 19th day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

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: August 15, 2014
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
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 was on a muddy hillside and slipped.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Low back
14. Nature and extent of any permanent disability: 20 percent body as a whole referable to the low back
15. Compensation paid to-date for temporary disability: $\ 5,485.65
16. Value necessary medical aid paid to date by employer/insurer? $\ 18,044.69
17. Value necessary medical aid not furnished by employer/insurer? None
18. Employee's average weekly wages: $\ 811.34

Issued by DIVISION OF WORKERS' COMPENSATION

1. Weekly compensation rate: $540.89/451.02

1. Method wages computation: By agreement and using the table

COMPENSATION PAYABLE

1. Amount of compensation payable

Claimant is hereby awarded 89.87 per week from December 15, 2014 continuing for 80 weeks, and then 540.89 per week thereafter for life.

TOTAL: INDETERMINATE

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

The compensation awarded to 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 Claimant: Nile Griffiths

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 14-060538

Employee: Thomas Walker

Dependents: N/A

Employer: St. Louis Zoological Park (settled)

Additional Party: Second Injury Fund

Insurer: Missouri Employers Mutual Insurance (settled)

Hearing Date: May 9, 2018

Injury No.: 14-060538

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Injury No.: 14-060538

Injury Date: May 9, 2018

An evidentiary hearing was held in the above-referenced matter on May 9, 2018. Thomas Walker ("Claimant") appeared in person and was represented by counsel, Mr. Nile Griffiths. The Second Injury Fund ("Fund") was represented by counsel, Assistant Attorney General Kristin Frazier. Claimant previously settled his claim against St. Louis Zoological Park ("Employer") and its insurer, Missouri Employers Mutual Insurance ("Insurer").

The parties stipulated to the following facts:

1. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
2. On August 15, 2014, Claimant was injured when he was walking on a muddy hillside and he slipped;
3. Claimant's accident arose out of and in the course of his employment with Employer;
4. Employer was provided proper notice of Claimant's injury;
5. Claimant's Claim for Compensation was filed in a timely manner;
6. At the relevant time, Claimant earned an average weekly wage of 811.34, for applicable rates of compensation of 540.89 for total disability benefits, and $451.02 for permanent partial disability benefits;
7. Employer/Insurer paid Temporary Total Disability ("TTD") benefits in the amount of $5,485.65, or for 10 1/7 weeks;
8. Employer/Insurer paid medical benefits' totalling $18,044.69;
9. Claimant reached maximum medical improvement ("MMI") on December 15, 2014;
10. Venue for the Hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 14-060538

The issue to be resolved at this Hearing is:

What is the nature and extent of the Second Injury Fund's liability in this matter?

Claimant offered and had admitted in to evidence, the following Exhibits:

- Exhibit I: Certified records from the Division of Workers' Compensation

- Exhibit 2: Exhibits from the deposition of Kristine Skahan

The Second Injury Fund offered and had admitted into evidence, the following Exhibit:

- Exhibit I: Deposition and report of Kristine Skahan

- Exhibit II: Stipulations for Compromise Settlement

- Exhibit III: Functional Capacity Evaluation ("FCE") dated March 11, 2015

**Note:** Some of the records submitted at the hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on May 9, 2018.

Based upon the relevant testimony of Claimant at Hearing, and the Exhibits introduced into evidence, I make the following Findings of Fact:

Claimant began working for Employer in 1999. On August 15, 2014, Claimant slipped in the mud as he was going down a hill and fell. He immediately felt a sharp pain in his left buttock, a strain in his low back, and a sharp radiating pain down his entire left leg. Claimant reported his accident to his supervisor Ted Hornbeck and he filled out a Report of Injury.

Claimant initially treated at Concentra with Dr. Gary Gray. He also saw an in-house orthopedic doctor and he also received in-house physical therapy. Claimant was then referred to Dr. Sandra Tate because the "injury was beyond their scope." Dr. Tate sent Claimant for more physical therapy and did three injections in his back.

Claimant then treated with Dr. Coyle on three occasions. Dr. Coyle looked at Claimant's MRI report and told Claimant he would require a four level fusion. However, Dr. Coyle told

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 14-060538

Claimant if the surgery were not successful, Claimant would be in more pain than he was currently. As a result, Claimant did not undergo the surgery. Dr. Coyle released Claimant to return to work with restrictions on December 15, 2014; Claimant never returned to work.

Dr. Tate released Claimant to work at light duty capacity. However, Employer does not have any work that Claimant could perform with light duty restrictions. Claimant did apply for work at other places. Since he has always worked as a gardener or laborer, Claimant applied in those areas. Since 2015, Claimant has applied to work at over 20 businesses; he has never been offered a job at any of those businesses.

Claimant saw Ms. Skahan, vocational rehabilitation counselor, at the request of the Fund. In her report, she listed jobs Claimant could perform that did not require standing or sitting for long periods of time. However, when he applied for similar jobs, he was not hired.

Claimant continues to have pain in his low back that radiates into his left leg. Prior to Claimant's last injury, he never had radiating pain. Claimant has trouble sleeping due to pain in his left shoulder and back. He has to use heating pads to fall asleep and still tosses and turns throughout the night.

Prior to his last work accident, Claimant had many self-imposed restrictions. Claimant had difficulty kneeling and squatting because of his prior knee surgeries. After kneeling or squatting Claimant would experience numbness and have difficulty getting up on his own. Claimant would not do overhead work and tree trimming because it was too much for his shoulder. Claimant's supervisor would bring a young person to do that work and Claimant would act as the safety person or spotter.

Claimant could not cut the grass at work because it required him to sit for too long. If he was comfortable, Claimant could sit for 10 to 15 minutes. If he was being jarred, as he would be on a lawnmower, he could not sit for 10 minutes. Claimant could only walk for 15 to 20 minutes before the muscles in his back would tighten. In addition, after walking for 10 to 15 minutes, Claimant's knees would feel he had no control and would go in the opposite direction. Claimant could perform like shoveling, such as filling a trench; however, he could not dig the trench. At the zoo, they often had to dig 2 foot to 6-foot deep trenches for irrigation lines. Claimant could not perform any type of overhead shoveling.

Two or three years prior to his last injury, Employer hired an assistant for Claimant. Claimant's assistant would do the heavier work, and Claimant would supervise. Claimant was training his assistant about all aspects of his job. Before, he was given an assistant, Claimant would be given extra laborers to help with difficult tasks.

Claimant has undergone two surgeries on his left knee. He has soreness and discomfort in that knee every day. Claimant cannot depend on his left knee and often feels as though he is going to fall. Claimant has had one surgery on his right knee. He has soreness and stiffness in his right knee after trying to kneel or squat. Claimant has also undergone surgery on his left shoulder. Following that surgery, Claimant continues to have discomfort reaching above his head. Claimant He also has weakness in his left arm with pushing and pulling.

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 14-060538

Often, pain in his left arm causes difficulty with sleeping. Occasionally, Claimant's arm stiffens up and he will have numbness down his arm into his fingers.

Although he has not had surgery on his right shoulder, Claimant has had difficulty with that shoulder including pain and discomfort. Claimant has also undergone two surgeries on his low back; one in the 1980s in Kansas the other in the 1990s in Missouri. After the surgeries, Claimant worked without restrictions due to his back.

On cross-examination, Claimant testified that the only medication he takes for pain is ibuprofen. He does not take opiates because he became addicted to them after his left shoulder surgery. Since his left shoulder was a workers' compensation injury, he reported his concern to his Employer when he noticed the opiates were interfering with his ability to think. Employer accommodated Claimant while he attend a program in which he went through detox for three days and then attended outpatient treatment. Dr. Rudoi has been Claimant's primary care physician for over 20 years. He is not providing any current treatment for Claimant's shoulders, knees, or back. Claimant performs home exercises, but his back, knees, and shoulder continue to hurt. His doctor advises Claimant not to do anything that hurts.

Claimant could not recall exactly when he was given a helper. However, before the helper was provided, he was given extra laborers when he needed them. When Claimant injured his knees and shoulder, he did not have an assistant.

Claimant's official title was "irrigation specialist." His job entailed frequent bending, kneeling, climbing, and reaching. He would operate front-end loaders and forklifts. Claimant was on his feet 80% of the day. He performed all of these tasks up to his last injury.

When Claimant slipped on the muddy hillside, he fell to the ground on his left buttock. He was able to get up on his own, but he immediately called his Supervisor to report his fall.

Dr. Coyle did recommend that Claimant quit smoking. However, Dr. Coyle also told Claimant his back was "so messed up" that the only way to remedy it was a five level fusion. Dr. Coyle told Claimant there were serious risks to such an extensive surgery. He further told Claimant if the surgery failed, Claimant would be in excruciating pain. Claimant did not recall telling Dr. Coyle he was working light duty and that was helping his strain. Claimant did not recall meeting with Dr. Coyle after his functional capacity evaluation ("FCE"). Claimant did not recall Dr. Coyle telling him that the FCE revealed he could lift and carry 30 pounds.

Claimant's 2001 right knee injury settled for 21.25% of the right knee. After Claimant returned to full duty, he did not receive any more treatment for that knee. Claimant's left knee injury was in 2005 and settled for 22.5%. When he returned to work following this injury, Employer was more accommodating when Claimant needed assistance.

Claimant's 2007 right shoulder injury was treated conservatively. Surgery was never recommended. Claimant returned to work full duty performing his regular job. His shoulder injury settled for 20% of the right shoulder.

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Issued by DIVISION OF WORKERS' COMPENSATION

In 2011, Claimant injured his left shoulder. Dr. Farley performed surgery to repair Claimant's torn rotator cuff and biceps tendon. Claimant returned to work after this injury at full duty with no restrictions.

Claimant saw Dr. Margolis several times. He last saw Dr. Margolis on June 20, 2016. When Dr. Margolis examined Claimant, he would put him through "motion testing."

Claimant read Mr. England's report. He read the report to mean that Mr. England thought he was permanently and totally disabled ("PTD"). He did not understand that Mr. England said that it was a combination of Claimant's restrictions, age, and presentation made him PTD.

Claimant is computer literate. He uses a computer to surf the internet and for e-mail. He has not used the computer to make reports or keep inventory. The only thing he used the computer for at Employer was to clock in and clock out. He has had a lot of experience with paperwork. Claimant has applied for jobs at Lowe's, Home Depot, Menard's, and other garden centers. He usually applied on-line and then called to follow up. He would always be told the position was filled. Claimant was never told why he was not given an interview.

Exhibits

Claimant's Exhibits

Certified records of the Division of Workers' Compensation

(Exhibit 1)

Claimant's first Worker's Compensation Claim, *Injury number 92-122591*, was in 1992 when he injured his low back and left hip area. That Claim settled for 7 1/2% of the body as a whole referable to the low back. In that settlement, it was noted Claimant had a prior settlement in Kansas for his low back of 30% of the body.

Claimant's next work related injury was in 1993 and was also to his low back. It does not appear Claimant received a settlement for *Injury number 93-045124*.

Claimant had a second Workers' Compensation injury in 1993, *Injury number 93-123408*, which was also to his low back. Claimant underwent lumbar surgery as a result of this work accident. Claimant settled this claim for 19% body as a whole referable to the low back.

Claimant's next work related accident was in 1995. He pulled a muscle in his left buttock. It does not appear that Claimant received a settlement for this injury.

Claimant then had one work related accident in 1997 and three work related accidents in 1998. In 2000 Claimant had two more work related accidents. Claimant did not lose any time from work following these accidents nor did he receive settlements for any of these accidents.

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Issued by DIVISION OF WORKERS' COMPENSATION

In 2001, Claimant had a work accident and injured his right knee. He underwent surgery on his knee performed by Dr. Burns. Claimant settled this claim for 21.25% of the right knee.

Claimant had several work accidents from 2002 through 2004 in which Reports of Injury were filed but no settlement was pursued. In 2005, Claimant sustained an injury to his left knee. Claimant had surgery on his left knee performed by Dr. Nogalski. Claimant received a settlement of 22.55% of the left knee.

Claimant next sustained a work related injury in 2007, *Injury number 07-073186*. In this work accident, claimant injured his right shoulder. This matter settled for 20% of the right shoulder.

After three work accidents in 2009 through 2011, in which Reports of Injury were filed, but no settlements were pursued, Claimant sustained an injury on July 18, 2011, *Injury number 11-107516*. In this accident, Claimant sustained an injury to his left shoulder and underwent surgery by Dr. Farley. Claimant received a settlement of 27.5% of the left shoulder.

After two minor injuries in 2013, Claimant incurred an inguinal hernia while at work. He underwent surgery for the hernia and settled this matter for 5% body as a whole.

The deposition exhibits were as follows:

1. A medical report from *Dr. William Costen* dated January 23, 1993. (Exhibit 2, pages 321-323) Dr. Costen examined Claimant for a work injury that occurred on September 25, 1992. Claimant injured his back in this accident and was diagnosed with a reoccurrence of pain due to degenerative disc disease. In a letter dated March 15, 1993, Dr. Costen found Claimant had permanent partial disability ("PPD") of 5% of the low back due to this accident.

1. A rating report prepared by *Dr. Shale Rifkin* on April 20, 1993. (Exhibit 2, pages 326-330) Dr. Rifkin rated Claimant as having PPD of 10% body as a whole due to his injury on September 25, 1993. Dr. Rifkin rated Claimant as having pre-existing disability of 20% due to his low back surgery in 1983. In a subsequent report dated December 10, 1994, Dr. Rifkin notes the Claimant injured his back at work again on October 31, 1993. Following that injury, Claimant underwent a lumbar laminectomy and discectomy at L5-S1. Dr. Rifkin rated Claimant as having additional PPD of 20% of the back.

1 The records in this Exhibit were submitted in no particular order and were jumbled, and duplicative. Some records from the same providers were separated. I have organized the records, reports, and depositions in a manner that is most helpful to reaching an opinion. However, counsel should take care to submit records in a more organized and useful manner.

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 14-060538

1. Dr. Rifkin's deposition taken on December 5, 1995. (Exhibit 2, pages 73-88) Dr. Rifkin testified consistent with his reports.

1. Dr. Michael Burns' report dated April 5, 2002, regarding his treatment of Claimant's right knee following his 2001 injury. (Exhibit 2, pages 308-310) Claimant underwent surgery to his right knee that included a medical meniscectomy and chondroplasty. Dr. Burns rated Claimant's disability at 15% of the right knee.

1. Dr. Michael Milne's treatment records. Dr. Milne treated Claimant's right shoulder pain and thoracic neuropathy following his August 3, 2007, work accident. (Exhibit 2, pages 303-307) Dr. Milne found that Claimant had 5% disability of the right shoulder.

1. Dr. James Doll's treatment records when he examined Claimant after he hurt his left shoulder in a work accident in 2011. (Exhibit 2, pages 324-325) He referred Claimant to an orthopedic doctor when Claimant's MRI revealed partial tears in the biceps tendon and subscapularis tendons and a partial full thickness tear in the supraspinatus tendon.

1. Dr. Timothy Farley operated on Claimant's left shoulder on October 20, 2011. (Exhibit 2, pages 311-312)

1. Medical records from Orthopedic Sports Medicine & Spine Care Institute. Claimant treated with both Drs. Doll and Farley for his left shoulder injury. (Exhibit 2, pages 185-206) The last treatment note dated February 7, 2012 indicates that Claimant was to complete two weeks of work hardening and then return to "more normal activities."

1. Medical records from Dr. Christopher Pruett with whom Claimant treated for a hernia he incurred while working in 2013. (Exhibit 2, pages 269-302) Claimant underwent a repair of a left indirect inguinal hernia with an onlay of mesh. Dr. Pruett found that Claimant did not have any permanent disability.

1. Medical records from Concentra. Claimant first treated at Concentra on August 15, 2014. (Exhibit 2, pages 341-407) At that time, Claimant complained of pain in his left SI joint, left buttock, and left leg into his foot. Claimant was diagnosed with a sacral sprain. The doctor at Concentra referred Claimant for physical therapy and returned him to work on limited duty. At an office visit on August 22, 2014, Claimant was diagnosed with a sacral strain, lumbar strain, and left sciatica. When Claimant returned to Concentra on August 29, 2014, he reported his pain was essentially unchanged. He was taking ibuprofen with limited relief, and physical therapy had been of limited help. It was then determined that Claimant's treatment would be transferred to a physiatrist.

1. Dr. Sandra Tate's medical records indicate that she first examined Claimant on September 8, 2014. (Exhibit 2, pages 228-268) Dr. Tate noted Claimant had burning and stabbing pains that was aggravated by bending, forward, coughing, sneezing, kneeling, twisting, walking, and lifting. Dr. Tate found Claimant had mechanical low back pain with piriformis syndrome. Claimant received trigger point injections and was to continue with physical therapy. When Claimant returned to Dr. Tate, he reported the trigger point injection only gave him temporary relief. He was to continue physical therapy and continue working limited duty. When Claimant returned on September 22,

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 14-060538

2014, he reported his symptoms were worse. As a result, Dr. Tate sent Claimant for an MRI.

The MRI performed on September 25, 2014, revealed severe stenosis at L3-4 with posterior expansion of the disc at L4-5 causing impingement on the L5 nerve root. Claimant also underwent an EMG/NCV, which revealed severe sensorimotor polyneuropathy with marked decreased motor amplitudes of the peroneal and tibial nerves and absent sural nerve response.

When Claimant returned to Dr. Tate on October 20, 2014, he reported his foot drop was worsening. Dr. Tate recommended Claimant receive a selective nerve block injection and to continue taking Vicodin for pain.

When Claimant was seen by Dr. Tate on November 10, 2014, he reported after his last injection, he had significant pain relief results for four days, however, the pain then returned. Claimant reported to Dr. Tate that Dr. Coyle did not want to perform surgery because of the severe degenerative nature of the changes in his back. Dr. Tate again noted Claimant had an L4-5 herniation and stenosis of left L4 radiculopathy with foot drop. Dr. Tate recommended Claimant continue with physical therapy and get on orthotic device for his foot.

Claimant was seen again by Dr. Tate on November 24, 2014, at which time he reported he continued to experience left lower extremity weakness. He was continuing to take ibuprofen, Vicodin, and receiving physical therapy. Dr. Tate recommended the claimant undergo another selective nerve root block and continue with his medications and physical therapy.

At his December 15, 2014, office visit with Dr. Tate, she noted Claimant was having some improvement in strength with physical therapy. However, he was unable to return to work, as there was no light duty available. Claimant underwent a selective nerve root block; however, he developed more spasms in his left buttock and leg after that nerve block. Dr. Tate imposed permanent work restrictions of no lifting greater than 20 pounds, no bending at the waist, minimal walking (no more than 15 minutes of every 60 minutes), and no stairs or ladders. Dr. Tate noted Claimant had reached maximum medical improvement.

1. Medical records from Dr. James Coyle. Dr. Coyle first examined Claimant on September 30, 2014, at which time Claimant was complaining of low back pain radiating into his left leg. (Exhibit 2, pages 111-128, 331-340) Upon examination, Dr. Coyle determined Claimant had multiple disc pathologies in his lumbar spine. The MRI revealed evidence of prior surgery at L4-5 and L5-S1. Claimant had evidence of moderate to severe spinal stenosis at L3-4. Claimant also had left lower extremity radiculopathy including weakness in the L4-5 and S1 nerve root distributions. Dr. Coyle informed Claimant there was no simple surgical solution for his problem as three disc levels were involved in there was evidence of extensive scar tissue secondary to the prior surgery.

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Issued by DIVISION OF WORKERS' COMPENSATION

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When Claimant returned to Dr. Coyle, he reported he was working light duty. He continued to have left-sided sciatic notch tenderness, posterior lateral thigh sciatica, posterior lateral calf pain, and pain on the outer aspect of his left foot. The CT myelogram performed at Dr. Coyle revealed degenerative scoliosis of the lumbar spine with severe arthritis at L5-S1, L4-5, and L3-4. There was evidence of a prior laminectomy at L4-5 on the left and L5-S1 on the left; the L5 nerve root was not visualized. There was a disc protrusion creating stenosis at L4-5, and Claimant was found to have severe facet arthritis at L5-S1, L4-5, and L3-4.

Dr. Coyle noted that based on the studies that had been performed, the only conceivable surgical procedure would be a revision decompression and fusion of Claimant's spine from L3 through S1. Dr. Coyle felt there was a high possibility of nonunion of the fusion. Based on these considerations, neither Claimant nor Dr. Coyle felt that surgery was the best course.

Claimant was seen by Dr. Coyle on February 24, 2015, at which time he reported he was continuing to have low back pain. An MRI revealed severe spinal stenosis at L3-4, a disc protrusion and L4-5, and severe degenerative facet changes. Most of Claimant's complaints were on the left sciatic nerve distribution. Dr. Coyle recommended Claimant undergo a functional capacity examination ("FCE"). The FCE revealed that Claimant was able to work at a medium physical demand level. Dr. Coyle noted that this did not meet the required demand of his usual and customary employment. Dr. Coyle imposed a permanent lifting restriction of 30 pounds.

1. Several rating reports from Dr. Robert Margolis. Claimant was examined by Dr. Margolis for a rating examination on June 20, 2016. (Exhibit 2, pages 213-227) Dr. Margolis had previously evaluated Claimant on several occasions. Dr. Margolis found Claimant could work at a medium demand level. Dr. Margolis found Claimant's accident of August 15, 2014, was the prevailing factor in his sustaining additional injury to his low back resulting in a symptomatic herniated disc and symptomatic stenosis.

The injury of August 15, 2014, resulted in low back to pain, limitation of motion, and weakness in the anterior tibia muscle. Dr. Margolis opined that as a result of Claimant's August 2014 accident, as well as his prior injuries, he was totally and completely disabled from his prior employment Employer. It was also Dr. Margolis's opinion based on Claimant's age, multiple disabilities, as well as his work history, no employer would hire him in the course of normal business. Therefore, Dr. Margolis considered Claimant to be totally and completely disabled from all employment.

Claimant was previously evaluated by Dr. Margolis on May 12, 2014. In that report, Dr. Margolis noted Claimant's injury of July 18, 2011, was the substantial and prevailing factor in Claimant suffering a cervical injury as well as a torn left rotator cuff. He noted Claimant had prior injuries of a right shoulder injury and bilateral knee surgeries, which combined to create greater disability than the simple sum.

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Dr. Margolis also evaluated Claimant on January 9, 2009. At that time, Claimant reported he had injured his right shoulder at work. Dr. Margolis found that as a result of the August 3, 2007, work injury, Claimant had sustained an injury to his right shoulder resulting in a long thoracic nerve injury with subsequent scapular winging. Dr. Margolis rated Claimant as having 30 % disability of the right upper extremity and found combined with his prior injuries for a more disability than a simple sum.

Claimant was also examined by Dr. Margolis on June 27, 2006. Claimant reported that he injured his left knee when he stepped in a hole and twisted his knee. Claimant underwent surgery on his knee for a complex tear of the meniscus. When he was seen by Dr. Margolis, Claimant complained of a popping sensation with movement and constant pain in his knee. Claimant was able to squat and kneel at work, but had difficulty getting up. Dr. Margolis noted Claimant had prior injuries to his other knee, and combined with his left knee created greater disability than a simple sum of those disabilities.

1. Report from Claimant's Functional Capacity Evaluation. Claimant underwent an FCE on March 11, 2015. (Exhibit 2, pages 313-320) Claimant gave "Maximal Acceptable" effort. Claimant was able to perform at a medium physical demand level; his job for Employer was at the heavy physical demand level.
2. Vocational report prepared by Mr. James England. Claimant was evaluated by Mr. England on September 21, 2016. (Exhibit 2, pages 167-182) Mr. England noted Claimant appeared to be tired, and reported he had difficulty sleeping due to pain. Claimant often shifted positons during his meeting with Mr. England.

Mr. England reviewed Claimant's treatment records for his multiple injuries. He noted Claimant continued to take ibuprofen on a regular basis. In addition, he took Percocet when needed. Claimant reported pain in his low back radiating into his left buttock and into his left leg down to his knee. He also reported pain in his shoulder and in both of his knees.

Mr. England noted Claimant could not return to work for Employer following his last accident because of the restrictions imposed by his treating doctor. Although Claimant had some office skills that would translate to a light duty position, because of the combination of Claimant's impairments, Mr. England did not believe he could even work at that level.

Mr. England opined Claimant was not employable in the open labor market based on the limits imposed by Drs. Tate and Coyle. He noted a combination of their restrictions placed Claimant at the sedentary level. Further, based on Claimant's age, his tired appearance, and the fact that he appears to be physically uncomfortable, no Employer would hire Claimant.

1. Transcript from the Deposition of Dr. Robert Margolis. Dr. Margolis' deposition was taken on October 24, 2016. (Exhibit 2, pages 89-110) Dr. Margolis testified that the disability from Claimant's primary injury combined with his pre-existing disabilities

Issued by DIVISION OF WORKERS' COMPENSATION

Injury # 14-060538

to be a greater disability. He further testified that Claimant's prior injuries were ongoing and continued to cause ongoing symptoms and complaints.

1. Transcript from the *Deposition of Mr. James England.* (Exhibit 2, pages 129-166)

Mr. England noted Claimant sought work at other places when he could no longer work for Employer. However, no other employer would hire him. Mr. England further testified based on Drs. Tate and Coyle's restrictions, Claimant is limited to sedentary work. While Claimant might be able to perform some sedentary work, Claimant's age and the fact that he appeared to be tired and in pain would make him unable to compete in the open labor market.

On cross-examination, Mr. England testified Employer provided Claimant with a helper after his 2013 hernia surgery. Mr. England considered Claimant's injuries to his left shoulder, right shoulder, bilateral knees, and low back as hindrances to his employment. While Claimant might be able to work with his restrictions, his presentation of being in pain and being tired because he could not sleep due to pain would make him unemployable.

1. *Claimant's Deposition* was taken on November 21, 2016. (Exhibit 2, pages 4-72)

Claimant never returned to work following his August 15, 2014, injury. Prior to his August 15, 2014 injury, Claimant had difficulty performing his job due to pain and weakness in his knees and shoulders. Claimant's pre-existing injuries caused problems with shoveling, squatting, bending, walking, overhead work, and lifting. Claimant does not think he could ever return to work similar to what he performed for Employer.

Second Injury Fund Exhibits

Deposition of Kristin Skahan

(Exhibit I)

The Second Injury Fund took the deposition of Ms. Kristine Skahan on March 28, 2018. Ms. Skahan a vocational expert retained by the Fund.

Ms. Skahan is a certified vocational consultant. She has performed vocational evaluations on behalf of employers, employees, and the Fund. She performed a records review to determine whether Claimant is employable in the open labor market. She did not meet with Claimant. However, the records were complete enough to allow her to render an opinion regarding Claimant's employability.

Ms. Skahan testified Claimant's sleep problems did not develop until after his last injury. The FCE revealed Claimant could perform at a medium level, however it was Ms. Skahan's opinion that Claimant could not work at the full range of medium level work. Ms. Skahan testified even if Claimant was limited to sedentary work, he would be employable in the open labor market. She noted that when Claimant was applying for jobs after leaving Employer, he applied for positions in nurseries and botanical positions, which she felt were above the sedentary level. However, Claimant has a bachelor's degree and has a good work history, which makes

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him a good job candidate. Further, he worked in management in retail, so he has experience with scheduling and completing reports, which would be helpful in a clerical position.

Ms. Skahan named several positions she believes Claimant could perform including automobile rental person, telemarketer, or customer service representative. She spoke with employers in these areas and was told Claimant would be qualified to interview for these positions.

On cross-examination, Ms. Skahan testified she used job codes for Claimant's prior positions, entered those into a computer, and received a list of jobs he could possibly work. When she looked for potential jobs, she listed they must fall within either light or sedentary classifications. When running the computer program, Ms. Skahan did not consider Claimant's subjective complaints.

Ms. Skahan testified the records contained conflicting information regarding whether Claimant returned to work after his last work injury. However, she was aware that he could not return to Employer once he was released from treatment because he could not work at a heavy level. Ms. Skahan believed Claimant was working full-duty, at a heavy level, prior to his last injury.

Ms. Skahan testified that Claimant's age might have some effect on his ability to get a job. However, his motivation to work and his "good vocational profile" meant he was not precluded from returning to the work force.

Stipulation for Compromise Settlement: Injury Number 14-060538

(Exhibit II)

The Stipulation for Compromise Settlement reflects the settlement of Claimant's primary claim for 20% body as a whole referable to the low back.

Functional Capacity Evaluation

(Exhibit III)

Claimant underwent a Functional Capacity Evaluation on March 11, 2015. The report indicates Claimant is able to work at a medium level.

RULINGS OF LAW

Claimant is alleging that he is permanently and totally disabled. The term "total disability" is defined under Section 287.020.7 R.S.Mo as follows:

The term "total disability" as used in this chapter shall mean 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 phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that

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such duties are customarily performed by the average person engaged in such employment. Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 922 (Mo.App. 1992).

The test for permanent total disability is whether, given the employee's situation and condition, he is competent to compete in the open labor market. Reiner v. Treasurer of the State of Missouri, 837 S.W.2d 363, 367 (Mo.App. 1992). An injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. Brown v. Treasurer of State of Missouri, 795 S.W.2d 479, 483 (Mo.App. 1990). The key 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 to work for which he or she was hired. Reiner at 367, Thornton v. Haas Bakery, 858 S.W.2d 831, 834 (Mo.App. 1993), and Garcia v. St. Louis County, 916 S.W.2d 263 (Mo.App. 1995).

The statute governing Second Injury Fund liability for permanent total disability, Section 287.220.1 RSMo, is as follows:

If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the minimum standards under this subsection for a body as a whole injury or major extremity shall not apply and the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself, except that if the compensation for which the employer at the time of the last injury is liable is less than the compensation provided in this chapter for permanent total disability, then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that could be due for permanent total disability under Section 287.200 out of a special fund known as the Second Injury Fund.

The Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." Carkeek v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, 352 S.W.3d 604, 608 (Mo.App. W.D. 2011) (internal quotation marks and citation omitted), in order to encourage the hiring of individuals with disabilities. Angus v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, 328 S.W.3d 294, 303 (Mo.App. W.D. 2010) The Fund does so by relieving an employer, or its insurer, from responsibility for an employee's pre-existing disabilities, limiting the employer's liability to only injuries suffered by the employee while working for that particular employer. Id. However, if a claimant's last work accident and resulting injuries alone result in a claimant's permanent total disability the employer is liable for claimant's disability and no further inquiry is made into Fund liability. Hughey v. Treasurer of Missouri, 34 S.W.3d 845, 847 (Mo.App. E.D. 2000)

As noted by the Fund, Claimant's primary injury occurred subsequent to several amendments to the Workers' Compensation statute; thus, the amendments are controlling in this matter. Gattenby v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, 516 S.W.3d 859 (Mo.App. W.D. 2017) Therefore, this matter is to be decided using strict construction of the statute and all evidence is weighed impartially.

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Claimant testified in a credible and forthright manner. He was clearly in pain, he shifted in his seat as he testified. He also looked tired and weary, something he attributed to his inability to sleep due to his pain.

I find Claimant is permanently and totally disabled as the result of his primary work injury accident in combination with all of his pre-existing work injuries. He sustained several injuries prior to his primary injury that have been discussed at length, including a prior low back surgery, bilateral knee injuries, bilateral shoulder injuries, and hernia surgery. Claimant's primary injury resulted in significant injury to his back. However, the surgery was not recommended because it would be so extensive and have little chance of success.

Claimant worked hard throughout his adult life. He predominately worked in heavy labor and worked for extended times with the same employer. However, he was already working with a "helper" at Employer prior to his last injury. He was no longer physically able to perform the heavier work at Employer, something Employer accommodated.

Significantly, Drs. Coyle and Tate, who treated Claimant for Employer, placed significant restrictions on Claimant. Dr. Margolis opined Claimant was totally and completely disabled from all employment based on his age, multiple disabilities, as well as his work history. While I find that both vocational experts were credible and reasonable in their opinions, I find Mr. England to be more persuasive. Claimant's presentation and subjective complaints must be considered when determining whether an employer would hire him; Ms. Skahan did not consider those factors.

CONCLUSION

Therefore, I find the Second Injury Fund is liable for permanent total disability in this matter. The Second Injury Fund receives a credit for the permanent partial disability paid by Employer following Claimant's dates of maximum medical improvement. Therefore, the Fund owes $89.87 for 80 weeks from December 15, 2014 (date of maximum medical improvement.) Thereafter, The Second Injury Fund owes Claimant $540.89 a week for his lifetime.

Attorney Nile Griffiths is awarded an attorney's fee of 25% of the total Award in this matter.

I certify that on 8-23-18 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 name file.

By

Made by:

Administrative Law Judge

Division of Workers' Compensation

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