Phillip Lamb v. FAG Bearings Corporation / Schaeffler Group USA, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)

**Injury No.:** 10-113575

**Employee:** Phillip Lamb

**Employers:** - FAG Bearings Corporation - Schaeffler Group USA, Inc.

**Insurer:** Phoenix Insurance Company - Travelers Indemnity Company of America

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The Second Injury Fund and the employer/insurer both filed applications for review. In their applications for review, both applicants raised the issue of whether the administrative law judge failed to adequately address the legal impact of the settlement of a prior Claim for Compensation with a date of injury of August 16, 2010. The applicants argue that the current claim was addressed via the settlement of the prior claim, and therefore, there should be no recovery on the claim of repetitive trauma to the bilateral upper extremities, as pursued through the current claim.

Employee notes in his Reply Brief of October 26, 2018, that the Second Injury Fund and the employer/insurer have raised this theory for the first time in their briefs before the Commission - that the current occupational exposure to repetitive motion injuries sustained to bilateral upper extremities was settled with the acute low back injury claim. We agree with employee's assertion. There is nothing in the record before us that clearly identifies for the administrative law judge or for the employee, that the employer/insurer or the Second Injury Fund was promoting this theory at the hearing before the administrative law judge.

We find the applicants' argument to be without merit.

On October 1, 2010, the Division of Workers' Compensation received a claim filed by employee against this employer for a work injury on August 16, 2010. That claim was designated Injury No. 10-077757, and identified employee's injury while operating an 800 ton press and turning to grab and pull a billet while on the job. Body parts identified

Injury No.: 10-113575

Employee: Phillip Lamb

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in that claim were "low back area, left and right shoulder, left and right hands."¹ That matter was settled with employer/insurer on September 20, 2012, with an approximate disability rating of 20% of "body," and identifying disputes between the parties to: "all issues," as handwritten onto the form. Transcript, page 658. Aside from this, no further explanatory information was provided in the settlement itself to limit or expand the scope of agreement.² Employer/insurer provided treatment prior to the settlement of that claim in the form of back surgery on or about June 30, 2011. Employee was released from care by the surgeon on December 1, 2011. All authorized treatment by the employer/insurer relative to that claim was exclusively to employee's low back. The medical records do not suggest any other physical issues were being addressed.

At the time the parties signed that settlement, the current claim, Injury No. 10-113575, had been filed on August 3, 2012, alleging injury due to "repetitive use demands at his job, resulting in injuries to his hand/wrists and shoulders." Body parts identified were "bilateral carpal tunnel and bilateral shoulders." Date of injury was identified as August 25, 2010, which was the last day worked.³ The employee's theory of recovery throughout this claim has been on a repetitive trauma basis from occupational exposure, causing injury to his bilateral upper extremities. After settling the prior low back claim, Injury No. 10-077757, on September 20, 2012, employee began receiving authorized medical treatment to his bilateral upper extremities under this Injury No. 10-113575. On February 26, 2013, Dr. Robert Paul evaluated employee at his attorney's request, and diagnosed carpal tunnel syndrome and overuse syndrome to bilateral shoulders, and possible bursitis, resulting from work exposure.

On or after November 14, 2013, Dr. Paul Toma evaluated employee at the request of employer/insurer, for occupational exposure injuries, ultimately diagnosing bilateral carpal tunnel and bilateral shoulder impingement syndrome and possible rotator cuff tear. The record before us shows that objective testing was first performed at Dr. Toma's order. Dr. Toma found employee's wrist and shoulder injuries were work related. Employer/insurer has paid 15,086.15 in temporary disability on this claim and 37,378.22 in necessary medical aid, relative to the upper extremities. In early 2014, Dr. Toma performed surgeries on employee's shoulders and right wrist. The parties stipulated at the hearing in the current Injury No. 10-113575, that the date of maximum medical improvement was June 9, 2014. Transcript, page 3.

Clearly, the diagnosis and treatment of the upper extremity issues were not medically identified until after employment ended, and after the settlement of the low back injury. Without a firm medical diagnosis of the conditions in the current claim, the assertion by the Second Injury Fund and the employer/insurer that settlement of those injuries were contemplated to have been included in the earlier claim's settlement, is baseless -- or at

1 In contrast, Employer's Report of Injury dated August 23, 2010 for the August 16, 2010 event, identified the injury as a strain only to the lower back, with body parts affected "low back area (inc (sic) lumbar & lumbo-sacral)."

2 Employer/insurer's attorney in the prior settlement is the same individual representing employer/insurer in the current matter.

3 Employee was discharged by the employer on that date for failing to report the back injury in the prior claim within 24 hours.

Injury No.: 10-113575

Employee: Phillip Lamb

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the very least, not documented in any form that merits our serious review of the assertion.

The administrative law judge found that employee's lifting accident, injuring his back on August 16, 2010, was a preexisting disability to the low back in the instant claim. We agree, that this distinct low back injury was properly considered as a preexisting disability in the current claim of repetitive motion trauma to upper extremities, diagnosed at some point after the low back injury.

**Conclusion**

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Karen Wells Fisher, issued July 20, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm 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 29th day of March 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Injury No.: 10-113575

Employee: Phillip Lamb

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence, and in consideration of the parties' briefs and oral argument, as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be modified.

The administrative law judge ruled that the Second Injury Fund is liable on the basis of permanent total disability, which arose from the combined effect of a preexisting back injury and the primary injury to the upper extremities. I believe the evidence supports the conclusion that it was the lumbar back injury that was the cause of the permanent total disability. I do not believe that it was a combination of the preexisting injury and the primary injury which caused the condition of permanent total disability.

The record before us shows that all medical and rehabilitative experts opined that employee was permanently and totally disabled.¹ The administrative law judge, and all the medical professionals have found employee sustained only a permanent partial disability as a result of the primary work injury (upper extremities).

Section 287.220 RSMo creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." Section 287.220 requires us to first determine the compensation liability of the employer for the last injury, considered alone. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003). Having determined that the liability resultant from the work injury was not permanent and total, the next step is to determine if the work injury combined with preexisting disabilities to result in permanent total disability.

While employee and employer/insurer settled the lumbar strain disability for 20% body as a whole in 2012, the Commission is not limited in its ability to consider the level of disability from that injury, as it relates to the question of whether that injury combined with the primary injury to result in permanent total disability. There are many reasons a party may settle a claim for a lower disability rating than they may believe it merits. There is no need to conjecture as to those reasons, although I note this new claim (the instant matter before us) was still pending at the time of settlement of the back injury.

Employee testified as to the nature of his limitations, which in large part were related to his back injury. Dr. P. Brent Koprivica's review of employee's medical records and deposition revealed that "the nature of the limitations which he described posturally are so overwhelming that, in my opinion, he would not be able to access the open labor market." *Transcript*, page 747. Dr. Koprivica further opined that employee was permanently and totally disabled "based on the lumbar impairment without consideration of the disabilities involving both hands and wrists and both shoulders." *Id.* The severity

¹ Benjamin Hughes, the vocational rehabilitation specialist for the Second Injury Fund was somewhat equivocal in his opinion, indicating that employee could be employable given the limited restrictions imposed by some doctors, but based on Dr. Koprivica's opinion, employee was permanently and totally disabled.

Injury No.: 10-113575

Employee: Phillip Lamb

- 2 -

of the limitations were such that claimant reported he could not sit or stand for more than 5 minutes before back pain and numbness and pain in his right leg would affect his functioning. *Transcript*, pages 759-760. At his December 9, 2015 deposition, he described his back pain as constant, and "24/7," *Transcript*, page 761, and that there never was a day he was without pain. Employee testified that his back was the reason he wasn't working. *Transcript*, page 758. I find most persuasive the opinion of Dr. Koprivica that it was the low back injury alone which resulted in employee's permanent total disability status.

The Second Injury Fund only has liability if employee is permanently and totally disabled from a combination of his lumbar back and his upper extremities (the primary injury). *Lawrence v Treasurer*, 470 S.W.3d 6, 14 (Mo. App. W.D. 2015). Here, the evidence supports the conclusion that while employee may have had issues with his extremities² before and after the back injury (settled in 2012), he continued to work a full-time job until the August 16, 2010 back injury and the resulting light duty restrictions imposed for that injury. Regardless of the reason his employment was ended at that point, thereafter, he was found permanently and totally disabled.

I would modify the administrative law judge's award allowing benefits by denying Second Injury Fund liability and setting the ratings of disability attributable to the primary injury, as those stated by the administrative law judge at 35% right shoulder, 25% left shoulder, 15% load factor for bilateral extremities, and 15% at the right wrist.

I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

² Although shoulder and wrist issues were mentioned in some earlier medical records over the years prior to August 2010, there was no treatment until long after the low back injury, and after employee's employment ended.

Employee: Phillip Lamb

Jury No. 10-113575

Dependents: N/A

Befor the

Employer: FAG Bearings Corporation

Schaeffler Group USA, Inc.

Divisions of Workers'

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Additional Party: Second Injury Fund

Insurer: Phoenix Insurance Company

Travelers Indemnity Company of America

Hearing Date: April 5, 2018

Checked by:

1. Are benefits awarded herein? YES.

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

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

1. Date of accident or onset of occupational disease: August 25, 2010.

1. State location where the accident occurred or occupational disease was contracted: Newton County, Missouri.

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

1. Did employer receive proper notice? YES.

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

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

1. Was employer insured by above insurer? YES.

1. Describe work employee was doing and how accident occurred or occupational disease was contracted: INJURIOUS OCCUPATIONAL EXPOSURE TO REPETTIVE MOTION OF THE BILATERAL UPPER EXTREMITIES.

1. Did accident or occupational disease cause death? No. Date of Death: N/A

1. Part(s) of body injured by accident or occupational disease: BILATERAL SHOULDERS AND RIGHT WRIST.

1. Nature and extent of any permanent disability: PERMANENT TOTAL DISABILITY

1. Compensation paid to date for temporary disability: $15,086.15

1. Value necessary medical aid paid to date by Employer/Insurer? $37,378.22

1

Source: https://www.industrydocuments.ucsf

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

1. Value necessary medical aid not furnished by Employer/Insurer? 0.00

1. Employee's average weekly wages: 798.33.

1. Weekly compensation rate: $532.22 TTD/PTD and $418.58 PPD

1. Method wages computation: STIPULATION

COMPENSATION PAYABLE

1. Amount of compensation payable:

Future medical care: None Ordered

Weeks of temporary total disability (or temporary partial disability): N/A

Weeks of permanent partial disability from Employer/Insurer: 186.35 weeks

Weeks of disfigurement from Employer/Insurer: 2 weeks

Permanent partial disability benefits from Employer/Insurer: $78,002.38

Permanent total disability benefits from Employer/Insurer: N/A

TOTAL: $78,839.54

1. Second Injury Fund liability: YES

0 weeks of permanent partial disability from Second Injury Fund

Uninsured medical/death benefits: N/A

Permanent total disability benefits from Second Injury Fund:

Weekly differently (113.64) payable by SIF for 186.35 weeks, beginning June 9, 2014, and, 532.22 thereafter, for Claimant's lifetime.

TOTAL: SEE AWARD

1. Said payments to begin IMMEDIATELY and be payable and 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: THE RYAN E. MURPHY LAW FIRM, LLC.

Injury No. 10-113575

2

The parties appeared before the undersigned Administrative Law Judge on April 5, 2018, for a final hearing. The Claimant Phillip Lamb, appeared in person represented by Ryan E. Murphy. The Employer and Insurer appeared through their legal counsel Katharine Collins. The Second Injury Fund appeared represented by Cara Harris and Mike Bang.

FAG Bearings Corporation and Schaeffler Group USA, Inc., will be referred to as one or the other throughout and in the documents.

1. On or about August 25, 2010, FAG Bearings Corporation was an employer operating under and subject to the terms and provisions of the Missouri Workers' Compensation Law, and during this time was fully insured by Phoenix Insurance Company which is a part of Travelers Insurance Company of America.
2. On August 25, 2010, Phillip Lamb was an employee of the employer and was working under and subject to the Missouri Workers' Compensation Law.
3. The above referenced employment and accident or occupational disease occurred in Joplin, Newton County, Missouri. Venue is proper.
4. The employee notified the employer of his injury as required by $\S 287.420 RSMo.
5. The claim for compensation was timely filed as prescribed by \S 287.430$ RSMo.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

1. At the time of the injury of August 25, 2010, the employee's average weekly wage was 798.33, which is sufficient to allow a compensation rate of 532.22 for temporary total disability compensation and permanent total disability compensation and a compensation rate of $418.58 for permanent partial disability compensation.

1. Temporary total disability benefits in the amount of $15,086.15 have been paid to date by the Employer/Insurer.

1. Necessary medical aid in the amount of $37,378.22 has been paid to date by the Employer/Insurer.

1. Claimant reached maximum medical improvement on June 9, 2014.

1. The attorney fee being sought by The Ryan E. Murphy Law Firm, LLC is 25%.

Issues

1. Whether leading up to August 25, 2010, Phillip Lamb sustained an injurious occupational exposure arising out of and in the course and scope of his employment for the employer.

1. Nature and extent of permanent disability from the injurious occupational exposure leading up to August 25, 2010.

1. Disfigurement due to the work related injury of August 25, 2010.

1. Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injury on August 25, 2010.

1. Whether the employee is permanently and totally disabled.

1. Liability of the Second Injury Fund for permanent total disability benefits or enhanced permanent partial disability benefits.

Exhibits

Claimant testified at the hearing in support of his claim. Claimant offered for admission the following exhibits at the final hearing dated April 5, 2018:

Exhibit 1 ..................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

Exhibit 7 ................................ Medical Records: Freeman Health System; Certified 8/14/2012

Exhibit 8 ................................ Medical Records: Orthopedic Specialists of the Four States; Certified 8/7/2012

Exhibit 9 ................................ Medical Records: Ortho 4 States; Certified 8/1/2014

Exhibit 10 ................................ Medical Records: Stateline Surgery Center; Certified 8/20/2014

Exhibit 11 ................................ PREEXISTING Stipulation for Compromise Settlement; Injury #08-016369 (Trigger Finger)

Exhibit 12 ................................ PREEXISTING Report of Injury: Injury #10-077757 (August 16, 2010 Back Injury)

Exhibit 13 ................................ PREEXISTING Claim for Compensation; Injury #10-077757 (August 16, 2010 Back Injury)

Exhibit 14 ................................ PREEXISTING Stipulation for Compromise Settlement: Injury #10-077757 (August 16, 2010 Back Injury)

The exhibits were received and admitted into evidence.

Employer/Insurer did not offer any exhibits.

The Second Injury Fund offered for admission the following exhibits:

Exhibit I ................................ Deposition of Benjamin Hughes (with exhibits); July 6, 2017

Exhibit II ................................ Deposition of Preston Brent Koprivica (with exhibits); September 12, 2017

Exhibit III ................................ Deposition of Phillip Lamb; December 9, 2015

FINDINGS OF FACTS

INJURIOUS OCCUPATIONAL EXPOSURE AND MEDICAL TREATMENT

The claimant, Phillip Lamb, was an employee of FAG Bearings Corporation leading up to August 25, 2010. He was employed as a forge operator for FAG Bearings for thirteen years. In this position, he repetitively lifted hot, steel billets from the furnace using three foot tongs and placed them into a press. The billets weighed between 5 and 52 pounds each. He performed the repetitive lifting of weight away from the body using the tongs and twisting as he moved the billets from the furnace to the press throughout the entirety of his career as a forge operator.

On August 25, 2010, the claimant was terminated from his employment with the employer for failure to report a preexisting back injury that occurred on August 16, 2010, within 24 hours. The claimant has not worked since being terminated. Claimant testified episodic numbness and tingling in both upper extremities began many years prior to the date of his last exposure at employer. On February 29, 2008, claimant was treated by Dr. Bruce W. Burleigh at Freeman OccuMed in Joplin, Missouri for right trigger finger. During that visit, claimant reported episodic numbness and tingling involving both upper extremities of many years duration.

On February 26, 2013, claimant presented to Dr. Robert Paul for an independent medical evaluation at the request of his attorney. Dr. Paul examined claimant for injuries sustained to his shoulders and hands in an injurious occupational exposure type fashion while working for

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

employer. Dr. Paul noted the patient had worked for years with carpal tunnel syndrome and more recently with overuse syndrome to the bilateral shoulders. Dr. Paul opined the patient was developing impingement syndrome to the bilateral shoulders due to chronic pain and what appeared to be bursitis. In his opinion, he needed a referral to an orthopedic group that specialized in these conditions.

On November 14, 2013, claimant presented to Dr. Paul Toma at Orthopedic Specialists of the Four States for an independent medical evaluation at the request of the employer. Dr. Toma noted complaints of constant shooting pain in the right shoulder and intermittent shooting pain in the left shoulder with symptoms made worse with motion, sleeping, and reaching with the arms. Dr. Toma diagnosed bilateral impingement syndrome and possible rotator cuff tear and ordered a full evaluation including x-rays and MRI. Dr. Toma found the shoulder problems are due to his work while lifting as a forge operator. Dr. Toma noted claimant's bilateral wrist symptoms began gradually in 2008 and have since gotten worse. He noted shooting pain, tingling, numbness, decreased strength when gripping or grasping, and decreased dexterity. Dr. Toma diagnosed claimant with bilateral carpal tunnel syndrome in the wrist. Dr. Toma found the work-related activities were the cause of his bilateral wrist injuries.

An MRI was performed showing tendinosis of the supraspinatus and infraspinatus tendon on the left and an anterior superior labral tear with associated joint effusion on the right.

On January 13, 2014, the claimant was again evaluated by Dr. Toma who noted complaints of constant pain in the right shoulder and intermittent pain in the left shoulder that is worse with motion, sleeping, and reaching with the arm. Dr. Toma noted pain and tingling, waking up at night with wrist pain, numbness, decreased strength in gripping and grasping and decreased manual dexterity that was made worse with gripping or grasping. Dr. Toma diagnosed a right shoulder labral tear, impingement syndrome, and a possible tear of the rotator cuff. He diagnosed carpal tunnel syndrome with regard to the right wrist. He recommended arthroscopy with anterior acromioplasty, labral tear resection, and rotator cuff repair.

On January 21, 2014, at Stateline Surgery Center, Dr. Toma performed an arthroscopy with labral debridement of the right shoulder, arthroscopic subacromial decompression of the right shoulder, and open carpal tunnel release of the right wrist.

March 2014 through April 2014, the claimant was still complaining of upper arm numbness as well as constant right shoulder pain and numbness when using it above shoulder level.

On April 22, 2014, at Stateline Surgery Center, Dr. Toma performed arthroscopic labral debridement and arthroscopic subacromial decompression of the left shoulder. Claimant underwent multiple physical therapy visits after his surgery until he was ultimately released on June 9, 2014.

Dr. Toma gave claimant a permanent impairment rating on July 17, 2014, finding claimant had suffered an 8% impairment of the left upper extremity at the 232-week level, a 10% impairment

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

of the right upper extremity at the 232-week level and a 10% impairment of the right upper extremity at the 175-week level.

Following claimant's release from Dr. Toma, claimant continued to suffer from symptoms in the bilateral upper extremities. His right shoulder is more painful than his left. He states it is painful on a daily basis and the pain is constant. He reports difficulty with lifting, overhead work, and forceful activities with his arms. He also reported difficulty with pushing and pulling light objects. He has difficulty with gripping, grasping, holding and manipulating objects with his hands due to his shoulders and wrists. He reports difficulty with sleep, and is frequently awakened because of his shoulders. He reports numbness and tingling to the entire right arm and hand as well as numbness and tingling to the lower left arm.

PREEXISTING LOW BACK DISABILITY

Claimant was involved in a lifting accident at work on August 16, 2010, while lifting a steel billet with tongs and twisting to place it in a press. Claimant sustained injury to his lumbar spine. Following the accident, claimant worked regular, unmodified duty as a forge operator from Monday, August 16, 2010, through the end of the day on Friday, August 20, 2010. Following the weekend off of work, claimant reported the accident to his employer on Monday, August 23, 2010, and was immediately sent to Dr. Rick Haggard at Freeman OccMed. Dr. Haggard noted that one week prior, claimant grabbed a billet and turned to the right when he felt a sharp pain to his right, low back. He noted claimant had pain that radiated down into his right calf as well as the outer part of the leg. Dr. Haggard's impression was a low back strain and he placed the claimant on Flexeril and Medrol Dosepak. He placed the claimant on light duty with no lifting over ten pounds and ordered him back in one week to see how he progressed. Claimant returned to work performing light duty. Claimant successfully performed the light duty work for two days before being terminated on August 25, 2010 for failure to report the accident of August 16, 2010, within twenty-four hours. Claimant has not worked since being terminated.

On August 30, 2010, claimant returned to Dr. Haggard noting his low back symptoms were not any better. Dr. Haggard's impression was a low back strain with radiculopathy. He ordered an MRI of the lumbar spine and continued restrictions. The MRI was performed which revealed a central and rightward extruded disc fragment at L5-S1. Over the course of the next few months, claimant underwent two lumbar epidural steroid injections administered by Dr. James Smith without long term relief. As claimant's symptoms remained unchanged, Dr. Smith recommended right L5-S1 microdiscectomy.

On June 30, 2011, Dr. Smith performed a right sided L5-S1 hemilaminectomy, partial medial facetectomy, foraminotomy, and microdiscectomy. At the two week follow up appointment, claimant continued to complain of low back and right leg pain. Claimant's symptoms remained the same as prior to the surgery at the six week follow up, four and one-half month follow up, and five month follow up. Claimant was released from care for his low back by Dr. James Smith on December 1, 2011. At that time, Dr. Smith found that his symptoms were unchanged and declared claimant to be at maximum medical improvement and returned him to work full duty.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

On December 20, 2011, Dr. Smith issues a final impairment rating for the low back injury at the request of the employer/insurer. Dr. Smith opined claimant suffered a 10% permanent partial impairment to the body as a whole as a result of the low back injury which occurred on August 16, 2010. (Claimant's Ex. 8, page 36).

On September 20, 2012, a Stipulation for Compromise Settlement for the accident of August 16, 2010, based upon a permanent partial disability of 20% to the body as a whole was approved by an administrative law judge. (Claimant's Ex. 14).

EXPERT OPINIONS

Dr. Robert Paul

Dr. Robert Paul evaluated the claimant on January 30, 2013 at the request of claimant's counsel. It was Dr. Paul's opinion that the prevailing factor in claimant's current complaints of weakness, pain, and numbness in his wrists and hands, and pain and numbness in his arms are all directly related to the cumulative trauma from his years of working at FAG Bearings as a forge operator. Dr. Paul found claimant was not at maximum medical improvement but rather needed a referral to a hand surgeon to determine the nature and extent of the bilateral wrist and hand complaints and a referral to an orthopedic surgeon to determine the nature and extent of his bilateral shoulder complaints.

Dr. Paul Toma

Claimant presented to Dr. Paul Toma at Orthopedic Specialists of the Four States for an independent medical evaluation at the request of the employer/insurer on November 14, 2013. Dr. Toma noted complaints of constant shooting pain in the right shoulder and intermittent shooting pain in the left shoulder with symptoms made worse with motion, sleeping, and reaching with the arms. Dr. Toma diagnosed bilateral impingement syndrome and possible rotator cuff tear, and ordered a full evaluation. Dr. Toma found the shoulder problems were due to his work while lifting as a forge operator. Dr. Toma noted claimant's bilateral wrist symptoms included shooting pain, tingling, numbness, decreased strength when gripping or grasping, and decreased dexterity. Dr. Toma diagnosed claimant with bilateral carpal tunnel syndrome at the level of the wrist. Dr. Toma found the work related activities were the cause of his bilateral wrist injuries. During his IME, Dr. Toma noted claimant had a past medical history that included back problems and that claimant had previously had a right sided L5-S1 hemilaminectomy, partial medial facetectomy, foraminotomy, and microdiscectomy.

A final rating report was prepared by Dr. Toma on July 17, 2014, following a request by the employer/insurer. Dr. Toma noted claimant had undergone arthroscopy of the right shoulder with decompression and debridement, arthroscopy of the left shoulder with decompression and debridement, and open carpal tunnel release of the right wrist. Dr. Toma found claimant's shoulder and wrist injuries were work related. He issued a final permanent partial impairment rating of 8% to the left shoulder, 10% to the right shoulder, and 10% of the right wrist.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

Dr. Preston Koprivica

Dr. Koprivica performed a record review at the request of the Second Injury Fund and issued a report dated December 12, 2016. Dr. Koprivica found that claimant's duties as a forge operator exposed him to biomechanical stresses ergonomically on both shoulders from handling the weights involved with a noted significant length of the lever arm away from the torso in front of him as he was doing the lifting and turning tasks. Dr. Koprivica noted a consistent history of onset of problems involving both hands and wrists. Dr. Koprivica opined that claimant's workplace activities as a forge operator at FAG Bearings Corporation was the direct, proximate and prevailing factor in his development of disabling complaints involving both upper extremities. Dr. Koprivica opined the onset of disability date to be the date of last exposure, which at the time he believed to be August 25, 2010. Without review of any additional records, Dr. Koprivica issued an addendum of February 10, 2017, in which he amended the date of last exposure to August 16, 2010, mistakenly believing claimant began performance of light duty work on that date and maintained his light duty status through his last date of employment on August 25, 2010. On cross-examination, when asked to assume that claimant did not begin light duty until after he was first sent for treatment at Freeman OccuMed on August 23, 2010, that claimant continued to be exposed to the risk of forge operation through August 23, 2010, he testified that he would consider August 23, 2010 to be the date of last exposure. (Dr. Koprivica deposition, page 20, line 12-21). Specifically, Dr. Koprivica testified as follows:

"Q. You know from your review of the materials that Mr. Lamb worked as a forge operator; is that correct?

A. Yes.

Q. You stated that Mr. Lamb's workplace activities as a forge operator was the direct, proximate, and prevailing factor in his development of disabling complaints involving both upper extremities; correct?

A. That's my opinion.

Q. You would consider the onset of disability dates for the upper extremities to be the date of last exposure to the workplace activities as a forge operator?

A. Yes.

Q. And you found Mr. Lamb to be permanently and totally disabled from a medical perspective; is that right?

A. In my opinion, when I reviewed all the information available that included the input from Mr. Eldred, who is a vocational expert, I thought he was totally disabled."

Based upon the self-imposed postural limitations set forth in claimant's deposition, Dr. Koprivica opined that claimant would be permanently and totally disabled based upon the preexisting low back injury of August 16, 2010. Dr. Koprivica testified that assuming claimant maintained his regular duties as a forge operator following the back injury of August 16, 2010, that claimant performed work activities that were substantial, gainful employment following that date. (Dr. Koprivica deposition, page 23, line 24 through page 24 line 11).

Dr. Mitch Mullins

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

Dr. Mitch Mullins evaluated the claimant on September 2, 2014, at the request of claimant's counsel. Dr. Mullins opined that the injurious occupational exposure to repetitive movements leading up to August 25, 2010, while employed by FAG Bearings Corporation was the prevailing cause of claimant's bilateral shoulder injuries and right wrist carpal tunnel syndrome resulting in the need for surgical repair. Dr. Mullins found there is a 35% permanent partial disability rated at the right shoulder, a 25% permanent partial disability rated at the left shoulder, and a 15% permanent partial disability rated at the right wrist. Dr. Mullins found the permanent partial disabilities to the upper extremities were caused by the injurious occupational exposure to repetitive movements of the upper extremities leading up to August 25, 2010.

Dr. Mullins found preexisting permanent partial disability of 20% rated at the lumbar spine due to claimant's preexisting accident and injury of August 16, 2010. Dr. Mullins opined within a reasonable degree of medical certainty that claimant is permanently and totally disabled as a result of a combination of his last injury to the bilateral upper extremities and his preexisting low back condition.

Ben Hughes

Ben Hughes, a certified vocational rehabilitation counselor, reviewed records on behalf of the Second Injury Fund and issued a report dated March 28, 2017. Mr. Hughes noted claimant did not get much relief from his right shoulder surgery or the carpal tunnel procedure on his right wrist, noting his right arm goes to sleep and throbs continuously. Mr. Hughes noted the left shoulder is a little better since the surgery. He noted claimant can lift a bag of groceries but tries not to lift more than twenty pounds because of his shoulders, wrist, and back. He reported that claimant's right hand will go to sleep when he grabs even little stuff. Regarding the preexisting back injury, Mr. Hughes reported that claimant's pain is constant, and despite a back surgery, has remained unchanged since the accident.

Mr. Hughes opined that based upon the restrictions of doctors Smith and Toma, claimant was able to resume his employment as a forge operator. Mr. Hughes opined that based upon the restrictions provided by Dr. Mullins, claimant was able to perform work at the sedentary level. Mr. Hughes opined that assuming the restrictions provided by Dr. Koprivica, the claimant was unemployable and that such unemployability was due to the primary injury in isolation and not due to a combination of problems.

On cross-examination, Mr. Hughes acknowledged that Dr. Mullins found claimant permanently and totally disabled from a combination of the preexisting back injury and the last injury to the upper extremities. (Ben Hughes deposition, page 19). Ben Hughes further acknowledged that no doctor other than Dr. Koprivica found claimant permanently and totally disabled from the preexisting back injury of August 16, 2010 considered alone. Specifically on this topic, Mr. Hughes testified as follows:

1. Mr. Hughes appears to have mistakenly labeled the preexisting low back injury as the primary injury rather than correctly referring to the bilateral upper extremity injury as the primary injury.

10

"Q. Dr. Smith doesn't find Mr. Lamb to be permanently and totally disabled from the back injury alone, correct?

A. Yes.

Q. Okay. Dr. Toma doesn't find Mr. Lamb is permanently and totally disabled from the back injury alone; is that correct?

A. I think that is a fair statement, noting that he didn't - that Dr. Toma makes no comment about the back.

Q. Okay. Dr. Mullins doesn't find Mr. Lamb totally and permanently disabled from the back injury alone; is that correct?

A. Yes, that's correct.

Q. The only doctor that finds Mr. Lamb permanently and totally disabled from the back injury alone is Dr. Koprivica, correct?

A. That is correct, yes.

Q. And Dr. Koprivica was hired to give an opinion by the Second Injury Fund; is that correct?

A. That is my understanding, yes.

Q. Okay. Neither of the other three doctors agree with Dr. Koprivica that Mr. Lamb is permanently and totally disabled from the back injury alone, correct?

A. That is correct.

Q. Mr. Lamb was fired by his employer on August 25, 2010, correct?

A. That is my understanding, yes.

Q. Mr. Lamb was not fired for failing to perform his job duties in a satisfactory manner; correct?

A. That is my understanding. He was released for not reporting an accident within 24 hours.

(Ben Hughes deposition, page 23-26).

Claimant saw Phil Eldred, a certified vocational rehabilitation counselor, on May 15, 2015, at the request of claimant's counsel. Mr. Eldred opined within a reasonable degree of professional and vocational certainty that claimant had preexisting conditions regarding his low back that constituted a hindrance or obstacle to employment. Specifically, Mr. Eldred noted claimant had constant pain in his low back following an accident of August 16, 2010, that has remained unchanged since August 16, 2010 despite low back surgery. Mr. Eldred opined that claimant was unable to perform any of his past work; it was highly unlikely any employer in the normal course of business would hire claimant for competitive, gainful employment; that he did not have any transferable job skills; that he would have problems being retrained due to his constant pain, use of narcotic pain medication, and low academic test scores; and that he was unemployable in the open labor market. Mr. Eldred found claimant is permanently and totally disabled as a result of his injury on August 25, 2010, combined with is preexisting injury and medical condition.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

1. **Whether leading up to August 25, 2010, Phillip Lamb sustained an injurious occupational exposure arising out of and in the course and scope of his employment for the employer.**

All four doctors that examined claimant concurred that claimant's complaints to the bilateral shoulders and right wrist were directly related to the cumulative trauma caused from years of working as a forge operator. After considering the claimant's testimony and the opinions of Dr. Toma, Dr. Mullins, Dr. Paul, and Dr. Koprivica, I find that claimant sustained injurious occupational exposure arising out of and in the course and scope of his employment as a forge operator for FAG Bearings Corporation.

1. **Nature and extent of permanent disability from the injurious occupational exposure leading up to August 25, 2010.**

After considering the claimant's testimony and the opinions of the medical experts, I find that the extent of disability of claimant for the last injury is 35% of the right shoulder at the 232-week level and 25% of the left shoulder at the 232-week level. I find that a loading factor of 15% must be added for the increased disability resulting from injuries to claimant's bilateral opposing extremities and increase the disability for the bilateral shoulder injuries by 15% for a total of 160.1 weeks of disability compensation for the combined injuries to the right and left shoulder. I find that the extent of disability of claimant for the last injury to the right wrist is 15% at the 175-week level. I further find that the last injury, in isolation, does not result in permanent total disability. None of the examining or treating doctors nor either of the examining vocational experts found claimant was permanently and totally disabled as a result of the last injury in isolation.

Permanent partial disability is awarded to the claimant against the employer based upon the above findings which computes to 186.35 weeks of permanent partial disability. This is due from the employer and insurer at a rate of 418.58 per week, equaling 78,002.38.

1. **Disfigurement due to the work related injury of August 25, 2010.**

After observing claimant's surgical scar at the final hearing of this claim, I find that claimant has disfigurement to the hands as a result of the last injury and assess 2 weeks of disfigurement compensation. This is due from the employer and insurer at a rate of 418.58 per week, equaling 837.16.

1. **Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injury on August 25, 2010.**

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

Claimant seeks an award for future medical care. In order to receive an award of future medical benefits under Chapter 287 RSMo., the claimant needs to show a "reasonable probability that because of his work related injury, future medical treatment will be necessary". *Stevens v. City of Citizens Memorial Healthcare Foundation*, 244 S.W.3d. 43 (Mo. App. 2008).

In considering the question of future medical care, claimant's examining physician, Dr. Mitch Mullins, opined that future medical care may include further physical therapy for strengthening and maintenance of the right shoulder and left shoulder should he have exacerbations and/or injections into the shoulder. Surgery would be much less likely. I find that this opinion does not rise to the degree of probability necessary to order future medical.

Therefore, the employer and insurer are not required to provide claimant with future medical care as it is denied.

1. Whether the employee is permanently and totally disabled.

The adjudication of this issue requires consideration of Section 287.020.6, RSMo., and applicable case law. Section 287.020.6 RSMo. states:

> "The term 'total disability' means inability to return to any employment and not just the inability to return to the employment in which the employee was engaged at the time of the accident."

To further clarify this provision, the courts have provided instruction and guidance. "The test for permanent total disability is whether, given the claimant's situation and condition, he or she is competent to compete in the open labor market. [citation omitted]. The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hired". *Reiner v. Treasurer of State of Missouri*, 837 S.W.2d 363, 367 (Mo. App. 1992).

Also, where permanent total disability is alleged, the Administrative Law Judge must first 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). If the claimant is not permanently and totally disabled from the last accident, then the degree of disability attributable to all injuries is determined. *Id.* at 4.

Furthermore, the inability to return to any employment means the inability to perform the usual duties of the employment in a manner that such duties are customarily performed by the average person engaged in such employment. *Gordon v. Tri-State Motor Transit Co.*, 908 S.W.2d. 849 (Mo. App. S.D. 1995). The claimant's age and education, along with physical abilities, must also be considered. *BAXI v. United Technologies Automotive*, 956 S.W.2d. 340 (Mo. App. E.D. 1997). While "total disability" does not require that the claimant be completely inactive, *Sifferman 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

Employee: Phillip Lamb

Injury No. 10-113575

require a finding that the employee is unable to work in any employment in the open labor market, and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. 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). The central question is: In the ordinary course of business, would any employer reasonably be expected to hire claimant in his or her physical condition? 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).

After consideration and review of the evidence, I find and conclude that as a result of the August 25,2010 , injury by occupational exposure, the claimant, Phil Lamb, sustained injury to his bilateral upper extremities at the bilateral shoulders and right wrist. This injury caused claimant to sustain a permanent partial disability of 35 % to the right shoulder, 25 % to the left shoulder, and 15 % to the right wrist. While his work injury presents a hindrance or obstacle to employment or reemployment, I find and conclude that the work injury of August 25, 2010, considered alone and in isolation, did not render claimant permanently and totally disabled, but rather combined with a preexisting low back condition measured at the time of his last work injury, to render him permanently and totally disabled.

Based upon the testimony of Dr. Koprivica, Dr. Mullins, Phil Eldred, and Ben Hughes, I find that the claimant is unable to compete in the open labor market. I find that the claimant is permanently and totally disabled.

The claimant is permanently and totally disabled due to a combination of his last work injury and his preexisting low back condition measured at the time of his last work injury and thus the Second Injury Fund is liable for permanent total disability benefits.

Section 287.220 creates the Fund and imposes liability on the Fund in certain cases of permanent disability where there is a preexisting disability. Lewis v. Treasurer of State, 435 S.W.3d 144, 152 (Mo. App. E.D. 2014). The Fund is liable where a claimant establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. Id. Section 287.220 .1 provides in relevant part:

After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund, hereinafter provided for.

[ ]If the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, . . . 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 would be due for permanent total disability under Section 287.200 out of the second injury fund. Id. (emphasis added)

Claimant's preexisting condition need not have reached MMI at the time of the last work-related injury to be considered in calculating Fund benefits. Lewis v. Treasurer of State, 435 S.W.3d 144, 153 (Mo. App. E.D. 2014). This is because claimant is seeking PTD benefits. "For purposes of PTD, however, the specific percentage of preexisting disability is irrelevant and the timing of benefits is dependent on the MMI date for the primary injury, not the preexisting injury. Lewis v. Treasurer of State, 435 S.W.3d 144 (Mo. App. E.D. 2014). Section 287.220.1 does not state that the preexisting disability or disabilities must be at MMI in order to be considered for PTD benefits. Fund liability for PTD under Section 287.220.1 occurs when the claimant establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disabilities. Lewis v. Treasurer of State, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014). "For a claimant to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD. Lewis v. Treasurer of State, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014).

For purposes of calculating PTD benefits, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. Lewis v. Treasurer of State, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014). A claimant must establish the extent, or percentage, of the permanent partial disability resulting from the last injury only, and prove that the combination of the last injury and the preexisting disabilities resulted in permanent total disability. Once the court found that claimant had a preexisting disability and was permanently totally disabled after the primary injury, the court must determine the amount of disability resulting from the primary injury alone, which fixed the amount of employer's liability, and then deduct that amount from the compensation due the claimant for PTD to determine the Fund's liability. Lewis v. Treasurer of State, 435 S.W.3d 144, 158 (Mo. App. E.D. 2014).

In applying these principles, having first determined the liability of the employer for 186.35 weeks of permanent partial disability resulting from the last injury alone, and having found the claimant was permanently and totally disabled, I find the Fund liable for the remainder of compensation due for PTD.

While claimant was not at MMI for the preexisting back injury at the time of the last injury, it does not mean that claimant did not have a permanent disability due to the preexisting low back

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

condition measured at the time of his last work injury. Claimant was sent to Freeman OccuMed for his preexisting low back injury and was placed on restrictions that included no lifting over 10 pounds, no pushing or pulling over 10 pounds, no twisting, and no bending. Claimant was working under these restrictions at the time of his last exposure on August 25, 2010. Following the date of his last exposure, claimant underwent two lumbar epidural steroid injections and a lumbar surgery. Unfortunately, the low back treatment was not successful and claimant's symptoms remained unchanged.

Claimant testified that his low back symptoms remained unchanged since the accident of August 16, 2010. Such testimony is supported by Dr. Smith, Dr. Mullins, and Dr. Koprivica, who all concluded the medical treatment to claimant's low back did not relieve his symptoms and that his low back symptoms remained unchanged. Claimant testified he had the same problems with his low back following the surgery as he did before the operation and that his symptoms have not gotten any better. Claimant repeatedly testified that the low back symptoms and pain were the same and had never gone away. Claimant testified his symptoms have not gotten better since the August 16, 2010, accident and are the same as when he was still working.

Claimant is permanently and totally disabled due to a combination of his last work injury and his preexisting low back condition measured at the time of his last work injury. Claimant was working at the time of his last work injury. He worked full duty with no accommodations following his preexisting low back injury. When he did seek medical treatment for the low back injury, he was not removed from work completely, but rather given light duty, which he successfully performed until he was terminated for failure to report the accident of August 16, 2010, within 24 hours. Claimant was not terminated for an inability to perform his job duties at the time of the last injury but rather for failure to comply with his employer's 24 -hour notification requirement. At the time of the last injury, claimant was successfully performing work within his medical restrictions.

The Second Injury Fund asserts that claimant was already permanently and totally disabled as a result of the preexisting back injury alone. In support of its position, the Second Injury Fund relies exclusively upon the self-reported restrictions of claimant. Such self-reported restrictions are not supported by comparable medical restrictions for the low back.

The Second Injury Fund cites to Glascow v. Treasurer of the State, in which the Western District affirmed the commission's denial of Glascow's claim against the Second Injury Fund because Glascow failed to establish that her primary injury combined with her preexisting disability to result in permanent total disability because Glascow was already permanently and totally disabled as a result of the preexisting disability alone. Glascow v. Treasurer of the State, 534 S.W.3d 391, 400 (Mo. App. W.D. 2017). Glascow suffered from chronic and reoccurring low back pain which had plagued her since the late 1990s. Immediately prior to the last injury, Glascow was receiving extensive medical treatment for severe low back pain with radiation into both legs. On February 3, 2011, Glascow reported to her medical doctor that she could not stand up straight, was suffering constant pain in her left leg, and was "miserable". When Glascow saw her doctor on February 10, 2011, she reported that she could "not do anything at all" due to the constant pain and numbness in her left leg. When Glascow followed up with her doctor at the

Employee: Phillip Lamb

Injury No. 10-113575

end of March, she wanted to return to work as she had exhausted her short term disability benefits. Her doctor released Glascow to return to light duty work on April 12, 2011, with restrictions of no lifting, carrying, pushing, or pulling, and the accommodation of getting up for 10 minutes every 2 hours. Two weeks later, on April 27, 2011, Glascow fell at work and injured her left knee (the "primary" injury). After receiving treatment by the company doctor for her left knee injury, on July 19, 2011, Glascow returned to see her doctor about her chronic back problems. Her doctor then took Glascow off work for three months due to her back injury. On October 18, 2011, her doctor completed new paperwork to keep Glascow off work until December 12 due to her back pain, noting that she was unable to sit or stand for more than 30 minutes. Glascow never returned to work again.

Glascow settled the primary injury to the left knee with the employer for 15 % permanent partial disability referable to the left knee and proceeded to a final hearing against the Second Injury Fund for permanent total disability benefits. The Commission refused to award permanent total disability benefits against the Fund finding Glascow was already permanently and totally disabled as a result of her preexisting back injury alone. The Commission found Glascow testified two weeks prior to the primary injury that she "really could not do anything at all". Doctors testified that they took Glascow off work in July 2011 and October 2011, not because of the work injury but because of the back injury. In Glascow's claim, the uncontroverted evidence was that Glascow's two weeks of work prior to the primary left knee injury was heavily accommodated in that she was released to return to light duty with restrictions of no lifting, no carrying, no pushing, no pulling, and the need to get up every 10 minutes for 2 hours.

The facts in Glascow supporting the Commission's finding that Glascow was already permanently and totally disabled as a result of the preexisting disability alone are not found in claimant's case. Specifically:

The evidence does not support a finding that claimant was already permanently and totally disabled as a result of the preexisting disability alone. Claimant worked full duty with no modifications or restrictions for 5 days after the preexisting low back injury. Once claimant received medical treatment, the doctor that examined him on August 23, 2010, gave him light duty restrictions far in excess of the preexisting restrictions provided to Glascow. Claimant successfully performed the light duty before being terminated for failure to report a preexisting injury within 24 hours.

Claimant testified his back condition has remained unchanged since the injury date, with his symptoms getting neither better nor worse. No doctor, with the exception of Dr. Koprivica, who was hired by the Second Injury Fund, has concluded that claimant is permanently and totally disabled from the preexisting low back injury alone. In fact, claimant's preexisting low back injury was work related and settled on a permanent partial basis for 20 % to the body as a whole. While this percentage of disability is not binding upon the Second Injury Fund, and is of no relevance in determining the prior disability, I find that claimant had a preexisting condition at his low back that constituted a hindrance or obstacle to employment as measured at the time of his last work injury. I find that the last injury combined with the preexisting low back condition measured at the time of his last work injury to render him permanently and totally disabled.

It is specifically concluded that the Second Injury Fund is liable for permanent total disability benefits based upon the preexisting lumbar disability that existed at the time of the last injury, combined with the last injury. The medical records support that the preexisting impairments existed at the time of the last injury, were hindrances or obstacles to claimant's employment or reemployment, and have remained unchanged through the present time. Dr. Koprivica and Dr. Mullins agree that claimant is permanently and totally disabled and that such permanent total disability is not merely the effect of the bilateral upper extremity injuries from August 25, 2010, considered alone.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Phillip Lamb

Injury No. 10-113575

Permanent total disability benefits shall be paid by the Second Injury Fund upon the expiration of the employer and insurer's liability of 186.35 weeks. The claimant reached maximum medical improvement on June 9, 2014. The permanent partial disability payments would thus expire 186.35 weeks after this date. The Second Injury Fund shall be responsible for the weekly differential of $\ 113.64 per week for 186.35 weeks, beginning on June 9, 2014, and, $\ 532.22 per week thereafter for the remainder of claimant's lifetime for permanent total disability benefits.

I have ordered attorney fees to be paid to The Ryan E. Murphy Law Firm, LLC in the amount of 25 % of any amounts awarded herein.

I certify that on $\mathrm{O}_{\mathrm{cl}}$ 20,2018, 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 $\qquad m \mathrm{~m} \mathrm{\prime}$


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