Jose Fuentes v. Cargill Meat Solutions Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-052822

**Employee:** Jose Fuentes

**Employer:** Cargill Meat Solutions Inc. (settled)

**Insurer:** New Hampshire Insurance Company (settled)

**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 briefs, and considered the whole record, we find that the award of the administrative law judge denying 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.

We agree with the administrative law judge's ruling that employee is permanently and totally disabled as a result of the primary injury reported on July 10, 2012¹.

Employee presented Dr. James A. Stuckmeyer, M.D. The administrative law judge found Dr. Stuckmeyer to be persuasive, as do we. Dr. Stuckmeyer found employee permanently totally disabled as a result of the "combination of all these orthopedic issues," referencing not only the cervical and upper extremity symptoms, but also the complaints of pain in the lower back and lower extremities. *Transcript*, pages 162, 163. He opined that "as a direct, proximate and prevailing factor of the intense repetitive nature of the occupational duties performed by Mr. Fuentes throughout his years of employment at Cargill ... the significant ongoing complaints of pain in the cervical spine, lower back, upper extremities, and lower extremities, Mr. Fuentes, as a result of the combination of all of these orthopedic issues, is permanently and totally disabled from the open labor market." *Transcript*, page 163. Dr. Stuckmeyer also clarified that his opinion was that the low back symptoms were "not related to the 2005 accident as much as it is to just the years of doing that job." *Transcript*, page 77. We understand the doctor's opinion as not designating a separate prior lumbar back injury as a pre-existing disability per se, but rather all the orthopedic issues resulted from repetitive trauma due to the nature of his work duties.

¹ Employee filed his claim against the employer/insurer on July 11, 2012. On August 14, 2014, employee filed an amended claim designating the Second Injury Fund for the first time.

Injury No.: 12-052822

Employee: Jose Fuentes

- 2 -

Employee's repetitive trauma exposure was an occupational disease resulting from his workplace exposure at Cargill Meat Solutions from 2005 through 2012.

We further clarify the references throughout the administrative law judge's award where the term accident is used interchangeably with injury. Employee's primary injury was the product of an occupational disease² due to repetitive trauma, as opposed to an accident, i.e. "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." § 287.020.2 RSMo. Employee's injury due to repetitive motion activity is an occupational disease as defined by the statute at § 287.067.3 RSMo.

Because employee has not proven that he had a pre-existing disability which combined with his primary injury/disability (repetitive trauma exposure throughout his employment), we must deny the claim against the Second Injury Fund for additional benefits. All other issues are moot.

**Corrections**

We correct the administrative law judge's final award as follows:

We correct all references within the administrative law judge's decision utilizing the term accident in referencing the primary injury. The primary injury is appropriately referenced as an injury by occupational disease, as opposed to accident.

We correct the Award in regard to ambiguity in the date of the occupational injury. The parties stipulated, and the evidence supports the finding, that employee sustained occupational disease within the course and scope of his employment on July 10, 2012. *Award, page 3, #3; Brief of Petitioner, page 4, #3; Brief of Respondent, pages 2 and 10*. More precisely, the occupational disease became a compensable injury on July 10, 2012. *Wickham v. Treasurer of the State*, 499 S.W. 3d 751 (Mo. App. W.D. 2016).

We further clarify a reference to the benefits awarded at page 1, #1 which states:

> Are any benefits awarded herein? Yes.

We correct that statement as:

> Are any benefits awarded herein? No.

Benefits were secured by employee pursuant to the settlement between employee and employer/insurer of the claim prior to this hearing. However, no benefits were awarded herein, as a result of this proceeding between employee and the Second Injury Fund.

**Decision**

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

² Occupational disease is distinctly defined under § 287.067 RSMo.

The award and decision of Administrative Law Judge Lawrence G. Rebman issued August 20, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 15th day of April 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

.

Issued by DIVISION OF W. KERS' COMPENSATION

Employee: Joos M. Fuentes

Injury No: 12-052822

**Employee:** Jose M. Fuentes

**Employer:** Cargill Meat Solutions, Inc.

**Insurer:** New Hampshire Ins. Co. c/o Sedgwick Claims Management

**Additional Party:** State Treasurer, Custodian of the Second Injury Fund

**Hearing Date:** May 24, 2018

**Checked by:** LGR/drl

1. Are any benefits awarded herein? Yes.

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

1. Was there an accident or incident of occupational disease under the law? Yes, including repetitive.

1. Date of alleged accident or onset of occupational disease: 2005.

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

1. Was above employee in employ of above employer at the 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 the time required by law? Yes.

1. Was employer insured by above insurer? Yes.

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Repetitive bending, lifting, twisting, stacking, pushing, pulling, standing, walking associated with handling, processing, and packaging of food products.

1. Did accident or occupational disease cause death? No.

SCANNED

Issued by DIVISION OF WALL KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

1. Part(s) of body injured by accident or occupational disease: Bilateral upper extremities, neck, mid and low back.

1. Nature and extent of any permanent disability: As a consequence of repetitive trauma injuries Fuentes is permanently totally disabled.

1. Compensation paid to date for temporary disability: $7,985.75

1. Value of necessary medical aid paid to date by employer/insurer? $10,567.42

1. Value of necessary medical aid not provided by employer/insurer? 65,131.86

1. Employee's average weekly wage: 574.51

1. Weekly compensation rate: 383.01

1. Method wages computation: 13.20/40 hrs./plus overtime

COMPENSATION PAYABLE

1. Amount of compensation payable: None

Issued by DIVISION OF WU...KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

**Employee:** Jose M. Fuentes

**Employer:** Cargill Meat Solutions, Inc.

**Insurer:** New Hampshire Ins. Co. c/o Sedgwick Claims Management

**Additional Party:** State Treasurer, Custodian of the Second Injury Fund

**Hearing Date:** May 24, 2018

Checked by: LGR/drl

On May 24, 2018, the parties appeared for final hearing before Administrative Law Judge Lawrence Rebman. Jose M. Fuentes appeared in person and through his counsel, Donald T. Taylor of Robb, Taylor & O'Connor. The Second Injury Fund was represented by Eric Doner.

1. Cargill Meat Solutions, Inc was an employer operating subject to the Missouri workers compensation law on July 10, 2012.

1. Mr. Jose Fuentes was its employee working subject to the law in Marshall, Saline County, in the State of Missouri.

1. Mr. Fuentes sustained occupational disease within the course and scope of his employment on July 10, 2012.

1. Mr. Fuentes notified his employer of his injury and filed his claim for compensation within the time allowed by law.

1. The Employer pain Temporary total disability the amount of $7,985.75.

1. The value of necessary medical aid previously paid to date by employer/insurer is reported at 75,699.28.

1. Fuentes' average weekly wage was 574.51.

1. Fuentes' weekly compensation rate for Temporary Total and Permanent Partial disability is $383.01.

Issued by DIVISION OF WU...KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

The parties requested the Division to determine:

1. Whether the claim was filed within the Statute of Limitations;
2. Whether there was any effect of the 2014 law to the claim at issue;
3. Whether Employee's pre-existing injuries constituted a hindrance or obstacle to employment; and
4. If so, whether the Second Injury Fund is liable to Employee for permanent total disability benefits for the combination of his primary and pre-existing injuries.

Employee testified on his own behalf. He presented the following exhibits, all of which were admitted into evidence without objection:

- Exhibit 1 - James A. Stuckmeyer, M.D. Curriculum Vitae

- Exhibit 2 - Dr. Stuckmeyer Medical Report dated 07/04/2013

- Exhibit 3 - Dr. Stuckmeyer Medical Report dated 06/13/2014

- Exhibit 4 - Dr. Stuckmeyer Medical Report dated 10/02/2015

- Exhibit 5 - Dr. Stuckmeyer Medical Report dated 04/24/2017

- Exhibit 6 - Jose M. Fuentes Medical Itemization and Bills

- Exhibit 1 - Terry L. Cordray Curriculum Vitae

- Exhibit 2 - Terry L. Cordray Report

- Exhibit 1 - Family Medical Leave Act Application

- Exhibit 2 - Jose M. Fuentes Copy of Missouri Driver License

- Exhibit 3 - Lisa Huesgen, RN - Cargill Nurse Business Card

Issued by DIVISION OF WU...KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

I. Stipulation for Compromise Settlement Injury No. 12-052822

J. Dr. Luke S. Choi, M.D. Independent Medical Examination dated October 12, 2016

K. Dr. Garth Russell, M.D. Medical Report dated January 18, 2013

L. Medical Records of Dr. Douglas Koehn, M.D.

The Second Injury Fund offered no exhibits, and instead relied upon its counsel's cross-examination of all experts and lay witnesses.

FINDINGS OF FACT

Employee Jose Matias Fuentes is a 62-year-old male born in El Salvador on March 4, 1956 who currently resides in Marshall, Missouri. Mr. Fuentes attended school but did not graduate or obtain much formal education.

When Mr. Fuentes came to Missouri, he worked for about two months at the Tyson facility in Sedalia. He did not sustain any injuries while employed at Tyson. On or about October 18, 2004, Mr. Fuentes was hired by the company Excel, now known as Cargill Meat Solutions, Inc.

Mr. Fuentes was in good health and free of back, neck or shoulder pain when he began employment at Excel/Cargill. He was given a physical exam before he started working there.

Pre-Existing Low Back and Neck

Mr. Fuentes attributed his low back pain to damaged discs in his back from the fall at Cargill when he tripped on a belt on August 23, 2005. He did not file a workers' compensation claim related to that fall. He had pain in his neck and both shoulders from the movements and the lifting at Cargill and was on work restrictions of no bending, no twisting. Mr. Fuentes sought care and treatment from Douglas Koehn, M.D. Dr. Koehn ordered injections for his back pain.

Mr. Fuentes was treated by Dr. Street in approximately 2009 who gave injections and prescribed pain medication. Mr. Fuentes believes the pain was caused by lifting the 60-pound bags. Mr. Fuentes denied chiropractic treatment but was treated by a physical therapist for his back problems. As a consequence of his work-related injuries, Mr. Fuentes' wife did all the physical household chores because Mr. Fuentes was unable to bend over. Mr. Fuentes does no household chores and is unable to mow the lawn due to the problems in his back and neck. Mr. Fuentes can read and write some in Spanish but has no reading or writing skills in English.

At the time of his deposition on January 10, 2014, Mr. Fuentes testified that he normally worked six days a week but had decreased to five days a week due to slower production and because the pain in his back, neck and both shoulders didn't allow him to work more. His job

Issued by DIVISION OF WU...KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

description was production worker, including moving meat from one belt to another. Mr. Fuentes does not read English, but through the translator, the claim form he signed was read indicating the date of the accident or occupational disease is a series of repetitive trauma through July 10, 2012 and ongoing. On July 10, 2012, he hurt his neck while throwing bags weighing approximately 18 pounds from his right side. He switched to his left due to the pain in his neck. Regarding the repetitive traumas over the course of employment, Mr. Fuentes explained his job required him to bend down and pick up 60-pound boxes of meat and throw them on the belt. He had to reach behind to the pallet of boxes to lift up the boxes onto the belt.

Mr. Fuentes continued these repetitive movements from 2004 until approximately 2010 when Mr. Fuentes and other employees complained of the pain and injury it caused. After 2010 or 2011, the company brought in a lift (elevator) that would lift the box to the employee's level.

Because of his ongoing injuries, Mr. Fuentes did not have to stack, push, or pull the heavy boxes of meat after 2013. The company provided handcarts to pull and push the pallets of meat. Mr. Fuentes corroborated the medical records that indicate his back pain was radiating down into both legs in December of 2010. When he fell at Cargill in 2005 he had pain in his lower back, but he was able to continue to work with high doses of Tramadol.

Mr. Fuentes missed approximately twenty weeks of work due to the injuries and incurred medical bills, some of which he paid out-of-pocket. These medical bills have been paid by Cargill.

Current Shoulder, Neck, Back Injuries

On July 11, 2012, Mr. Fuentes filed is only workers' compensation claim, alleging repetitive trauma to the shoulder, neck, back and low back.

Mr. Fuentes reported the injury to his neck when he had to switch throwing the bags from one side to the other on July 10, 2012 to Lisa at the nurses' station. He reported to Lisa that he had pain to his neck and the pain radiated down to the shoulders.

The first repetitive trauma occurred on August 23, 2005 when he was in front of the assembly line, moving fast, and tripped causing injury to his back. He treated with the doctor for this injury until approximately 2013 when he stopped treating because the doctor was giving him a high dose of medication and he didn't want to continue taking it. He did the job lifting boxes for five years but, due to the pain, he switched. Over time, his back pain continued to get worse when he worked. He used to work with his right hand and right arm but he switched to the left side and noticed that it got worse. He could get the neck pain under control with medication but, when working, it got worse. His neck pain has bothered him since the 2005 injury. Mr. Fuentes gets pain in his hands, numb middle finger on the right hand, but no problem with the left hand, just the left shoulder. Mr. Fuentes did not report any pain or problems with his neck, shoulders,

Issued by DIVISION OF WU. n.KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

elbows, right hand or low back before working at Cargill. He has been diagnosed with diabetes since 2009 but, after the December 2, 2014 surgery on his lower back, he was unable to get his blood sugar controlled. Mr. Fuentes left Cargill on May 2, 2014 when he was given a job lifting cattle thighs and legs weighing approximately 50 pounds and he could not physically do the work. He felt they gave him that job to get rid of him. The December 2, 2014 surgery has made the pain in his back less intense but it is always there. He is not taking pain medication as he had prior to the surgery but his low back pain level on a daily basis is about 6 or 7 out of 10.

He has problems sitting and can sit for two or three hours but when he has to get up or stand he has tingling in his body from the neck down to his legs, especially the right leg goes numb. After sitting riding in a car, he feels tightness in his legs. When standing his legs hurt a lot and it travels to his upper body. He can stand approximately 15-30 minutes and can walk about 15 minutes. After that period of time, he gets leg cramps. He still feels a lot of pain and stiffness on his neck. When waking from sleep his neck pain level is a 10 out of 10. The pain subsides throughout the day and goes down to a 5 or 6. His wife massages his neck and rubs ointments and lotions on it. He has never had neck or shoulder surgery. The left shoulder pain level is a 6 out of 10 and never goes away. The right shoulder is painful and that pain never goes away. He can't lift his arm a whole lot or move it very much. The right shoulder pain level is an 8 out of 10. The pain does come down to a 5, but it never goes away either. The right elbow is painful because the pain travels and it is a pain level of 5 out of 10 and doesn't come lower than a 5. He feels numbness in his right hand. He can drive in the city and to run errands but, when he gets up from the seat, he has trouble standing. He is restricted by his doctor from lifting over 15 pounds. Mr. Fuentes has not had any new accidents since leaving Cargill or any new medical problems since leaving Cargill. His pain causes Mr. Fuentes to wake up in the middle of the night every night.

Exhibit 1 attached to the Fuentes deposition was marked and identified as an FMLA application. Mr. Fuentes applied for FMLA but was not approved for time off. He was allowed time off to go to the doctor without having points count against his employee record that can lead to termination. Mr. Fuentes has pain at times so severe he could not get out of bed to go to work and when he called in, points were marked against him. He eventually missed so much time his employment was terminated.

Mr. Fuentes applied for Social Security disability with the assistance of someone at the Social Security Office. Mr. Fuentes was found to be disabled May 2, 2014 and began receiving Social Security Disability approximately September 2012.

James A. Stuckmeyer, M.D.

To support his claim for permanent total disability benefits following his July 10, 2012 injuries from the Second Injury Fund, Fuentes offered the opinions of James A. Stuckmeyer, M.D. Dr. Stuckmeyer's summary and conclusions are presented in full as follows:

Issued by DIVISION OF WUARERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

On July 10, 2012, he hurt his neck while throwing bags weighing approximately 18 pounds from his right side. He switched to his left due to the pain in his neck. Regarding the repetitive traumas over the course of employment, Mr. Fuentes explained his job required him to bend down and pick up 60-pound boxes of meat and throw them on the belt. He had to reach behind to the pallet of boxes to lift up the boxes onto the belt.

Dr. Stuckmeyer also noted that Mr. Fuentes was having symptoms consistent with chronic lumbosacral pain with bilateral lower extremity radiculopathy. Dr. Stuckmeyer recommended a myelogram and post-myelographic CT scan. It was noted by Dr. Stuckmeyer that, based upon the outcome of the myelogram and post-myelographic CT scan, surgical intervention may be appropriate and warranted but that, if no additional treatment was provided, Dr. Stuckmeyer assessed a 20% permanent partial disability to the lumbar spine.

Dr. Stuckmeyer concurred with Dr. Russell that Mr. Fuentes should be placed in a more light-duty category specific to the work restrictions.

Dr. Stuckmeyer offered additional comments in a report dated June 13, 2014. Dr. Stuckmeyer noted that his opinions remained unchanged. It was the opinion of Dr. Stuckmeyer that as a direct, proximate and prevailing factor of the intense repetitive nature of the occupational duties required upon Mr. Fuentes throughout his years of employment at Cargill Meat Solutions as a meat processor working on the production line, that he has symptoms consistent with chronic cervical pain with right greater than left upper extremity radicular symptoms, bilateral posterior myofascial syndrome with evidence of impingement syndrome and bilateral rotator cuff tendinopathy, bilateral cubital tunnel syndrome and right carpal tunnel syndrome.

Dr. Stuckmeyer allocates all of Mr. Fuentes' cervical problems with his repetitive activities at work.

In Dr. Stuckmeyer's report dated April 24, 2017, he states:

It would be the opinion of this examiner within a reasonable degree of medical certainty that as a direct, proximate, and prevailing factor of the intense repetitive nature of the occupational duties performed by Mr. Fuentes throughout his years of employment with Cargill Meat Solutions, that due to the significant ongoing complaints of pain in the cervical spine, lower back, upper extremities, and lower extremities, Mr. Fuentes, as a result of the combination of all of these orthopedic issues, is permanently and totally disabled from the open labor market.

Dr. Garth Russell, M.D

On January 18, 2013, Mr. Fuentes was examined by Dr. Garth Russell, M.D. Dr. Russell noted that Mr. Fuentes states that he was moved into a position a month prior to July 10, 2012 in

Issued by DIVISION OF WU...KERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

which he had to work to the left, and as a result, Mr. Fuentes began to develop pain at the base of the neck going into the upper back and out into his shoulders.

With regard to Employee's cervical spine, Dr. Russell diagnosed chronic degenerative disc disease secondary to developmental abnormalities and a 2010 motor vehicle accident aggravated by Employee's work activities. He additionally diagnosed chronic degenerative disc disease in Employee's lumbar spine. He assessed a 12% body as a whole overall permanent partial disability ("PPD"), with 6% directly caused by Employee's work activities.

Dr. Mauricio Valdes, M.D.

Mr. Fuentes was seen by Dr. Mauricio Valdes, M.D. on October 18, 2013. Mr. Fuentes complained of lower back pain, numbness and tingling in his bilateral lower extremities, and bilateral leg pain. Mr. Fuentes also complained of right shoulder pain and neck pain that radiates down to the left upper extremity.

Dr. Valdes diagnosed Mr. Fuentes with cervical radiculopathy, herniated disc, spondylosis lumbar, spondylosis cervical and lumbar radiculopathy. Dr. Valdes referred Mr. Fuentes to pain management for the possibility of steroid injections of the cervical spine. Dr. Valdes also referred Mr. Fuentes to physical therapy.

Dr. Valdes opined that the injuries sustained by Mr. Fuentes in 2005 may have played a significant role in the development of progressive symptoms in the lumbar spine and worsening of the stenosis and lower extremity symptoms that Mr. Fuentes was currently presenting.

Dr. Valdes noted that Mr. Fuentes' second injury in 2012 is more likely than not to be a significant factor in the development of the current symptoms and limitations that Mr. Fuentes presented in his cervical spine and upper extremities.

Dr. Valdes recommended that Mr. Fuentes only be allowed to work two to three times per week, avoiding heavy lifting and carrying no more than 30 pounds. No bending, twisting, and allowing periods of sitting alternated with standing.

Dr. Luke Choi

Cargill retained Luke Choi, M.D. to render an opinion concerning Employee's work-related injuries. When asked by Cargill whether Mr. Fuentes' 2005 accident at Cargill, the February 5, 2010 motor vehicle accident, or Mr. Fuentes' repetitive work activities at Cargill are the prevailing factor for his injuries, Dr. Choi advised:

This is a difficult question to answer. Clearly, based on the medical evidence, Mr. Fuentes has sustained some level of a traumatic event, specifically a ground level fall onto his back, back in 2005. I have reviewed the December 19, 2005

Issued by DIVISION OF WUWAKERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

records from Dr. David [sic] Koehn that reports Mr. Fuentes complaining of low back pain and having a positive straight leg testing which suggests a potential herniated disc or a radiculopathy. Based on an addendum of this note he reports that Mr. Fuentes had a four-month history of back pain and that this began at work. In a subsequent December 20, 2005 report states that Mr. Fuentes reported his pain began approximately four months prior to this visit after a fall involving the line belt at work.

Unfortunately, after these records from 2005 there is no other additional medical records until 2010 stemming from his motor vehicle collision. Subsequent advanced imaging that was obtained occurred several years after his initial onset of pain from a work-related incident. At that time, his MRI showed that he had a significant amount of neural foraminal narrowing consistent with radiculopathy.

Given the fact that Mr. Fuentes has a documented medical history of a fall onto his back with physical examination findings of radiculopathy stemming from a 2005 incident, it certainly is possible that the work-related injury in question from 2005 is the prevailing factor for his lumbar pain with associated radiculopathy.

However, regarding his cervical spine and diffuse bilateral upper extremity symptoms that Mr. Fuentes describes, there is no documented traumatic incident other than what he feels he was doing at Cargill. Specifically, there was not a traumatic incident that is associated with isolated neck pain as well as subsequent shoulder pain. And furthermore, the advanced imaging as previously mentioned with the MRI from March of 2016 shows clear degenerative process with severe bilateral foraminal narrowing at the C6-C7. I believe that his cervical spine with bilateral shoulder pain and upper extremity numbness and paresthesias is clearly directly related to an underlying cervical radiculopathy which is a degenerative process and the work-related incident from 2005 nor the work activities that he performed at Cargill are the prevailing factor for this underlying condition involving his neck and upper extremities.

Dr. Choi further opined that:

As I mentioned, I believe that his cervical spine and associated radiculopathy are not work-related and I do not think a disability percentage would apply. This is clearly a degenerative process and I do not believe that the work-related activities at Cargill is the prevailing factor for these conditions.

In terms of his lumbar spine, he has had a possible low back injury with subsequent herniated disc at the L4-L5 level requiring further surgical intervention. I believe that he has a permanent partial disability rating of 10% at the level of the lumbar spine.

10

MNKOI 0000811657

Issued by DIVISION OF WUAKERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

Terry L. Cordray

Following Dr. Stuckmeyer's recommendations, Fuentes was evaluated by vocational specialist, Terry L. Cordray, M.S., CCM, CRC, ABVE, LPC of Rehabilitation Expertise, LLC. Taking into consideration the review of the medical reports, his vocational interview with Mr. Fuentes and based upon his area of expertise and training and education, Mr. Cordray was asked to form an opinion, based upon reasonable professional certainty with regard to findings on vocational assessment regarding Mr. Fuentes' employability, not only to the job that he was performing at Cargill but with regard to any job that would be available on the open market and his inability to return to any employment not merely an inability to return to the employment which he was engaged in at the time of the accident. Mr. Cordray performed a vocational assessment on Mr. Fuentes on February 8, 2016. Mr. Cordray's opinion from his deposition taken July 29, 2016 is set out on pages 27-28 as follows:

If one reviews the restrictions that have been advised by Dr. Stuckmeyer post surgery, of no prolonged standing or walking greater than tolerated; no repetitive bending, twisting, lifting involving the lumbar spine; lifting at 15 to 20 pounds either below or above the waist; above the waist 10 to 15 pounds. When you add the restrictions of no repetitive flexion or extension of torsional stresses of the cervical spine and no repetitive pushing, pulling, lifting or reading involving either upper extremity, no repetitive gripping or grasping, that Mr. Fuentes is unable to perform not only his previous employment but all jobs in the labor market.

And, again when you place Mr. Fuentes at no prolonged standing or walking, he's now sedentary. As a sedentary, unskilled worker, he will be required to use his upper extremities to reach, handle, finger, grip, grasp in the very, very few jobs that are sedentary and unskilled.

When you further consider that Mr. Fuentes has no functional use of English, within the sedentary physical demand category, with limitations to their upper extremity, there are no jobs left. And so given the restrictions that Dr. Stuckmeyer, Mr. Fuentes is totally vocationally disabled. It is not realistic to believe that any employer would hire an individual that's 59, has no functional English, is limited to sedentary work, has limitations in his flexion and extension of his neck, has limitations in reaching, handling and gripping and therefore, in my opinion, he is totally vocationally disabled.

RULINGS OF LAW

Statute of Limitations

Section 287.430 RSMo states in pertinent part:

11

Issued by DIVISION OF WURKERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

Except for a claim for recovery filed against the second injury fund, no proceedings for compensation under this chapter shall be maintained unless a claim therefor is filed with the division within two years after the date of injury or death, or the last payment made under this chapter on account of the injury or death, except that if the report of the injury or the death is not filed by the employer as required by section 287.380, the claim for compensation may be filed within three years after the date of injury, death, or last payment made under this chapter on account of the injury or death. ... A claim against the second injury fund shall be filed within two years after the date of the injury or within one year after a claim is filed against an employer or insurer pursuant to this chapter, whichever is later.

The Second Injury Fund's argument was rejected in *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W. 3rd 714 (MO. Banc 2004)

The court in *Elrod* found that section 287.430, does not say "original claim," or even "the claim." Moreover, the workers' compensation statutes and regulations never mention the concept "amended claim." The statute employs "a claim," which includes any timely claim. *Kincade*, 92 S.W. 3d at 312. A claim for compensation may be filed two years after the date of injury or the last payment made under this chapter on account of the injury.

The Court found that for purposes of §287.430, *Elrod's* claim against her employer was the amended claim of November 3, 1998 -- which simultaneously added the Fund. This was a bona fide claim, which reported more "parts of body injured." (*Elrod, Id.*) *Elrod* did not amend or supplement the original claim solely to extend the statute of limitations in section 287.439. Likewise, in the present matter, the amended claim added bilateral upper extremities, which are consistent with Dr. Stuckmeyer's June 2014 report that lists symptoms consistent with chronic cervical pain with right greater than left upper extremity radicular symptoms, bilateral posterior myofascial syndrome with evidence of impingement syndrome and bilateral rotator cuff tendinopathy, bilateral cubital tunnel syndrome, and right carpal tunnel syndrome.

In addition, On December 2, 2014, Mr. Fuentes had surgery on his lower back. This procedure was paid for by the employer. Based upon the statute and case law, claimant's amended claim is not barred by the statute of limitations.

Post 2014 Law case:

Section 287.220.3 applies to this claim against the Fund. Section 287.220.3(1) RSMo, as amended by the legislature in 2013, reads as follows (emphasis added):

"All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection."

12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

The facts of this matter are not in dispute. Mr. Fuentes filed his claim alleging occupational disease in 2012. His occupational disease allegations preceded January 1, 2014.

Under the Workers' Compensation Act, the main test for permanent total disability claims is whether the claimant is able to compete in the open labor market. *Underwood v. High Road Industries, LLC*, 369 S.W.3d 59, 66 (Mo. Ct. App. 2012); *Knisley v. Charleswood Corp.*, 211 S.W.3d 629, 635 (Mo. Ct. App. 2007).

As such, "total disability" is defined as "the inability to return to any reasonable or normal employment." *Underwood*, 369 S.W.3d at 66 (citing *Lewis v. Kansas Univ. Med. Ctr.*, 356 S.W.3d 796, 800 (Mo. Ct. App. 2011)); Mo. Rev. Stat. § 287.020(7). Thus, the critical question, given the Claimant's present physical condition is whether any employer could reasonably be expected to hire him and whether he could reasonably be expected to successfully perform the work. *Underwood*, 369 S.W.3d at 66 (internal quotations omitted); *Highley v. Von Weise Gear*, 247 S.W.3d 52, 55 (Mo. Ct. App. 2008); *Michael*, 334 S.W.3d at 663; *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 275 (Mo. Ct. App. 1996).

The Claimant need not be completely inactive or inert to meet this statutory definition. He must, however, be unable to compete in the open labor market. See *Reese v. Gary & Roger Link, Inc.*, 5 S.W.3d 522 (Mo. Ct. App. 1999); *Carlson v. Plant Farm*, 952 S.W.2d 369, 373 (Mo. Ct. App. 1997); The courts of this state have held that, in making permanent total disability determinations, a number of factors may be considered, including a claimant's physical and mental condition, age, education, job experience, and skills. See e.g., *Tiller v. 166 Auto Auction*, 941 S.W.2d 863 (Mo. Ct. App. 1997).

In order for an employee to recover against the Second Injury Fund, the Employee must prove that he sustained a compensable injury, referred to as "the last injury" which resulted in permanent partial disability. §287.220.1. An employee must also prove that he had a preexisting permanent partial disability, whether from a compensable injury or otherwise, that: (1) existed at the time the last injury was sustained; and (2) was of such seriousness as to constitute a hindrance or obstacle to his employment or re-employment should he become unemployed.

"Section 287.220.1 contains four distinct steps in calculating the compensation due an employee in cases involving permanent disability: (1) The employer's liability is considered in isolation - 'the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability;' (2) Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered; (3) The degree or percentage of disability resulting from the last injury, considered alone, is deducted from the combined

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Issued by DIVISION OF WUAKERS' COMPENSATION

Employee: Joes M. Fuentes

Injury No: 12-052822

disability; and (4) The balance becomes the responsibility of the Second Injury Fund." *Kizior v. Trans World Airlines*, 5 S.W.3d 195, 200 (Mo. App. W.D. 1999). See Mo. Ann. Stat. §287.200 (West 2008).

"The first determination is the degree of disability from the last injury." *Hughey v. Chrysler Corp.*, 34 S.W. 3d 845 (Mo. App. E.D. 2000). "Until the degree of disability from the last injury is established, Second Injury Fund liability cannot be determined." *Stewart v. Johnson*, 398 S.W.2d 850, 854 (Mo. 1966). "A preexisting disability is irrelevant to a court's consideration until after a determination of the degree of disability is assigned to the last injury alone." *Kizior v. Trans World Airlines*, 5 S.W.3d 195, 201 (Mo. App. W.D. 1999).

To recover for permanent total disability benefits from the Second Injury Fund, Fuentes was required to prove that the last injury(ies), combined with his previous existing permanent partial disabilities that had caused an obstacle or a hindrance to his employment, resulted in permanent total disability.

"The first determination is the degree of disability from the last injury." *Hughey v. Chrysler Corp.*, 34 S.W. 3d 845 (Mo. App. E.D. 2000). "Until the degree of disability from the last injury is established, Second Injury Fund liability cannot be determined." *Stewart v. Johnson*, 398 S.W.2d 850, 854 (Mo. 1966). "A preexisting disability is irrelevant to a court's consideration until after a determination of the degree of disability is assigned to the last injury alone." *Kizior v. Trans World Airlines*, 5 S.W.3d 195, 201 (Mo. App. W.D. 1999).

In this case, Claimant's testimony was that since 2005 he had on-going problems associated with repetitively performing heavy lifting at work. Also, both of Claimant's experts testified that Mr. Fuentes was permanently and totally disabled as a result of the last accident.

Dr. Stuckmeyer testified that Mr. Fuentes' permanent total disability was the result of: "... a lot of repetitive occupational stresses and strains on multiple body parts." ... "My opinion, once again, it's not related to the 2005 accident as much as it is to just the years of doing that job."

(Ex. A. Stuckmeyer depo. P. 38 11 1-25.)

On page 39, Dr. Stuckmeyer denies that Mr. Fuentes has any disability resulting from the 2010 car accident.

And, lastly, Mr. Cordray testified:

Q. And then just to make clear your opinion that Mr. Fuentes is totally vocationally disabled, that's based on the primary repetitive trauma leading up to 2012 at Cargill.

A. I can't really give an opinion on causation, but the medical records

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indicate that. (Ex. B, Cordray depo. P. 63, 11.17-22)

Dr. Stuckmeyer's testimony and his review of the medical records is credible and clearly states that Mr. Fuentes cannot work due to his occupational disease which is the primary injury in this matter. Mr. Fuentes settled with the employer for 307.6 weeks of disability which is 77 % of the body as a whole. The last accident has rendered Mr. Fuentes permanently and totally disabled.

Mr. Fuentes is permanently and totally disabled due to the last accident in isolation. The Second Injury Fund is not liable for any benefits.


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