Edin Muratovic v. Kerry Ingredients

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 12-051298

**Employee:** Edin Muratovic

**Employer:** Kerry Ingredients

**Insurer:** Arch Insurance Company

**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 read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge awarding 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.

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." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." *Id.*

The administrative law judge's award correctly notes that Missouri courts have articulated the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

> [T]he proper focus of the inquiry is not on the extent to which the condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

*Knisley v. Charleswood Corp.,* 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Later, in findings addressing employee's alleged preexisting disabilities for purposes of Second Injury Fund liability, the award references employee's ability to work from August 2008 to June 2012, despite "measurable disability with respect to his preexisting psychiatric issues" and notes employee's ability to work for employer "in the same job with the same duties, with each of these [physical] preexisting conditions present."

1 Award, pp. 11-12.

2 Award, p. 12.

Injury No.: 12-051298

Employee: Edin Muratovic

- 2 -

We consider the administrative law judge's discussion of employee's past ability to work despite alleged preexisting disabling conditions extraneous to his finding that "Nothing in the record illustrates that [employee's preexisting] conditions would be a hindrance or obstacle in the future [emphasis added]."3

In addition to the evidence discussed in the administrative law judge's award relating to the issue of employee's alleged preexisting disabilities, we note that Dr. David Volarich's March 3, 2014, report cites no basis for his conclusion that employee's right upper extremity disability, binaural hearing loss and tinnitus constituted hindrances to his employment or reemployment.4 On April 23, 2014, ophthalmologist Dr. Flavius G. Pernoud reported that the employee "has no particular ocular or visual complaints."5 Dr. Pernoud stated, "Although Mr. Muratovic has had his cataracts removed, his visual status is excellent with no impairment according to Missouri regulations [emphasis added]."6 On November 22, 2013, otolaryngologist Dr. Anthony Mikulec reported binaural impairment of 33% and 1% disability related to employee's tinnitus, and suggested that a hearing aid would likely make a dramatic impact on the quality of employee's life and those around him. However, Dr. Mikulec's report made no finding that employee's hearing loss constituted a potential hindrance or obstacle to employee's employment or reemployment.7

We defer to the administrative law judge's assessment of the employee's credibility and his evaluation of the vocational and medical expert evidence in the record. We affirm his finding that employee failed to establish he suffered from any preexisting condition that constituted a potential hindrance or obstacle to employment for purposes of Second Injury Fund liability.

Burden of proving permanent and total disability against the Second Injury Fund

The administrative law judge's award initially states "For 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 Mo., 435 S.W.3d 144, 157 (Mo. App. 2014)."8

Later, addressing Second Injury Fund liability for permanent total disability, the award notes that employee "failed to demonstrate the synergistic effect that his psychiatric issues have on the primary injury [emphasis added]" and concludes, "Typically, physical injuries combine in a synergistic effect to prevent a worker from accomplishing his tasks. Therefore, I find no liability for the Second Injury Fund."9 This language incorrectly suggests that an employee must prove a synergistic effect to establish permanent total disability against the Second Injury Fund. As discussed in Lewis, supra, careful reading of § 287.220 RSMo reveals that while the statute requires a

3 Id.

4 Transcript. 113.

5 Id. 533-534.

6 Id.

7 Id. 525-528.

8 Award, p. 12.

9 Award, p. 12.

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showing of synergy to support an award of permanent partial disability benefits, there is no such requirement for purposes of proving entitlement to permanent total disability benefits. Instead, in a claim against the Second Injury Fund for permanent and total disability employee need only show that the primary injury and preexisting conditions of ill-being "together result" in permanent total disability.

We affirm the administrative law judge's finding that employee failed to demonstrate that any of his preexisting conditions had the potential to constitute a hindrance or obstacle to employment or future employment. In that none of employee's preexisting conditions qualify as preexisting disabilities for purposes of combining with disability from employee's last injury, pursuant to § 287.220 RSMo and Kinsley, supra, the administrative law judge correctly concluded that the Second Injury Fund has no liability in this case.

The above clarifications of the administrative law judge's award do not detract from his correct analysis of the evidence in the record or his ultimate legal conclusions.

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

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued August 6, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 9th day of April 2019.

---

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

- **Robert W. Cernisio, Chairman**

- **Reid K. Forrester, Member**

- **Curtis E. Chick, Jr., Member**

Attest:

**Pamela M. Holzmann/UK**

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 12-051298

AWARD

Employee: Edin Muratovic

Injury No.: 12-051298

Dependents: N/A

Employer: Kerry Ingredients

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Additional Party Treasurer as Custodian of the Second

Injury Fund

Insurer: Arch Insurance Company

Hearing Date: 5/3/2018

Jefferson City, Missouri

Checked by: JPK

FINDINGS OF FACT AND RULINGS OF LAW

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

1. Date of accident or onset of occupational disease: 6/8/2012

1. State location where accident occurred or occupational disease was contracted: St. Louis

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 contracted: While

lifting a bucket of ingredients to make candy, he twisted and injured his lower back resulting in pain and

numbness down his left leg.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Lumbar spine

1. Nature and extent of any permanent disability: 25% BAW referable to the lumbar spine

1. Compensation paid to-date for temporary disability: $24,183.06

1. Value necessary medical aid paid to date by employer/insurer? $32,166.01

Revised Form 21 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Employee's average weekly wages: $\ 511.50
3. Weekly compensation rate: $\ 341.00
4. Method wages computation: Stipulated

1. Amount of compensation payable:

100 weeks PPD from Employer

$\ 34,100.00

1. Second Injury Fund liability: No

TOTAL:

$\ 34,100.00

1. Future requirements awarded:

N/A

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

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Frank J. Niesen, Jr.

Issued by DIVISION OF WORKERS' COMPENSATION

injury No.: 12-051298

Employee: Edin Muratovic

Dependents: N/A

Employer: Kerry Ingredients

Additional Party: Treasurer as Custodian of the Second Injury Fund

Insurer: Arch Insurance Company

Hearing Date: 5/3/2018

injury No.: 12-051298

Before the

Division of Workers' Compensation

Department of Labor and

Industrial Relations

Of Missouri

Jefferson City, Missouri

Checked by: JPK

On 5/3/2018, the parties appeared for a hearing at the Missouri Division of Workers' Compensation, St. Louis Office ("Division"). Edin Muratovic ("Claimant") appeared in person and with counsel, Frank J. Niesen, Jr. Kerry Ingredients, (employer) and Arch Insurance Company ("insurer") were represented by Donald Balfour. The Second Injury Fund was represented by Assistant Attorney General, David Drescher.

1) The employer, Kerry Ingredients, was operating subject to Missouri's Workers' Compensation Law on or about 6/8/2012.

2) Edin Muratovic was its employee at all times herein.

3) The employer was provided notice of the employee's alleged injury and the Report of Injury was timely filed.

4) St. Louis, Missouri is the proper venue.

5) Employee's average weekly wage is 511.50.

6) Applicable rates of compensation are 341.00 for TTD and 341.00 for PPD.

7) Employer paid 32,166.01 in medical expenses and $24,183.06 in TTD benefits, representing 65 4/7 weeks, during the period 6/9/2012 through 9/9/2013.

Claimant introduced, and had admitted into evidence, the following Exhibits:

1) David T. Volarich, D.O. Deposition 2/29/2016.

2) Jennifer E. Brockman, M.D. Deposition 4/19/2016

3) James E. Israel, CRC Deposition 4/22/2016

4) Emir Keric, M.D. - D/S: 6/25/2012 - 10/15/2012

5) Naseem Shekhani, M.D. - D/S: 6/25/2012 - 10/15/2012

6) St. Anthony's Medical Center - D/S: 6/18/2012; 6/29/2012; 10/29/2015 and 10/3/2016

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7) Parkview Hospital - D/S 6/29/2013; 8/10/2000; 1/12/2000; 11/23/1999; 11/17/1999; $9 / 18 / 2002 ; 5 / 1 / 2002 ; 4 / 10 / 2002$

8) Advanced Pain Control - D/S: 4/20/2015 - 10/23/2017

9) Farida Farzana, M.D. - D/S: 6/25/2015 - 4/19/2016

10) Stanley London, M.D. - D/S: 10/22/2005 - 12/12/2005

11)Lemay EMS - D/S: 10/20/2005

12) Metro ENT - D/S: 3/28/2012

13) Anthony A. Mikulec, M.D. - D/S: 10/4/2013; 10/30/2013; 11/14/2013

14)Pernoud Eye Care $-4 / 23 / 2014$

15) Keith D. Wilkey, M.D. - D/S: 1/14/2013; 2/4/2013

16) Hand written letter to Kerry Ingredients dated 7/8/2013

Employer/Insurer introduced, and had admitted into evidence, the following Exhibits:

A) Dr. James Coyle deposition, 2/16/2016

B) Dr. Sandra Tate deposition, 2/24/2016

C) Dr. Stacey Smith deposition, 11/17/2016

D) Dr. Stacey Smith deposition, 2/1/2018

E) James England deposition, 12/19/2017

F) St. Louis Orthopedic medical records, Dr. Sandra Tate, 8/15/2013 through 9/9/2013

G) SSM FCE medical records, 8/27/2013

H) Employee request prehearing conference, 8/13/2013

The Second Injury Fund offered no Exhibits.

1) What is the nature and extent of temporary total disability?

2) What is the date of maximum medical improvement?

3) What is the liability of the employer for permanent total disability, if any?

4) What is the liability of the Second Injury Fund for permanent total disability, if any?

5) What is the liability of the employer for future medical treatment, if any?

At the time of the hearing, Claimant was 57 years old. He has only an $8^{\text {th }}$ grade education from Bosnia. He has no vocational training, however, he did serve in the Yugoslavian Army, as an artilleryman. He does not speak English and had to depend on a translator for his interviews and hearing. He emigrated to the United States in 1999 and moved to Missouri in 2005.

Claimant was employed by Kerry Ingredients as a "panner" from 08/2008 through 06/2012. He made about $\ 11.79 an hour at the end and said that he would mix ingredients to make candy. He would dump ingredients into a mixer, lifting between 30-50 pounds. He was on his feet throughout most of the workday.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-051298

From 2006 - 2008, he worked at CRCO Company making sponges. He cut sponges using a machine which would then be passed on to the sewing machine operator. He said he was on his feet throughout the day in that job, which was physically light.

For 6 months in 2005, he had worked in St. Louis for a temporary agency at an ice cream manufacturing plant where he did some packing and would take boxes out to the trash. This appears also to have been a physically light job.

On 6/8/2012, Claimant injured his back while lifting buckets of product used in mixing food ingredients at Kerry Ingredients. The product weighed approximately 30 - 50 pounds. He felt immediate pain in his low back, going down into his left leg.

On 6/12/2012, he was seen by Emir Keric, M.D., his primary care physician, and complained of left-sided back pain. The pain had begun to radiate to the left leg. Claimant reported no specific injury but claimed daily lifting was the cause. He was assessed with lumbago-sciatica due to displacement of lumbar intervertebral disc. Medrol Dosepak was prescribed. He was also given injections of Toradol and Dexamethasone. He followed up on 6/18/2012, complaining of left-sided back pain with radiation to the left leg and paresthesias. He was prescribed Percocet and referred to Dr. Naseem Shekhani.

On 6/25/2012, Claimant was examined by Naseem Shekhani M.D. The assessments were sciatica, lumbago, and antalgic gait. An MRI of the lumbar spine was recommended and performed on 6/29/2012. It showed a left paracentral herniation at L4 - 5. Medrol Dosepak was prescribed. Dr. Shekhani performed a trigger point injection at the bilateral L4 - 5 area on 8/15/2012. Claimant was given a lumbar epidural injection on 8/31/2012 and was referred to Dr. Keith Wilkey.

Claimant was seen by Keith Wilkey, M.D. on 1/14/2013. Dr. Wilkey reviewed the x-rays which showed retrolisthesis of L4 on L5. An MRI study showed a herniated disc to the left at L4-5 and desiccation of the same disc. Dr. Wilkey's assessments were partially resolved left leg radiculopathy, herniated disc left at the L4-5, and internal disc derangement L4-5. A discectomy was recommended. He was not released to return to work.

James Coyle, M.D. performed an independent medical evaluation on 4/1/2013 for the employer. Claimant complained of low back pain on the left side radiating to the left buttock and left hip, tingling on the top of the left foot, and pain over both sacroiliac joints. Dr. Coyle's impression was acute extruded L4-5 lumbar disc herniation with corresponding objective findings on physical exam including quadriceps and tibialis anterior weakness. Dr. Coyle believed the work incident on 6/8/2012, was the prevailing factor in causing his current condition and need for treatment. Initially, Dr. Coyle recommended surgery, however, on July 29, 2013, he changed his recommendation to oppose surgery. "While the Claimant has a disc pathology, in the absence of severe pain or substantial motor deficits, he did not see any indication for surgery. He recommended a physiatry evaluation with conservative management and consideration of a functional capacity evaluation to assess his limitations."

On 9/9/2013, Claimant was examined by Dr. Sandra Tate. She assigned permanent restrictions of lifting no greater than 20 pounds, no pushing or pulling greater than 45 pounds, no

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Injury No.: 12-051298

repetitive bending at the waist, and no walking more than 30 minutes at a time with a total of two hours per day. Dr. Tate had no further recommendations and placed Claimant at MMI.

**David T. Volarich, D.O.**

Claimant offered, and had admitted, the deposition and Independent Medical Evaluation of Dr. David T. Volarich (Exhibit 1). He interviewed Mr. Muratovic on 3/3/2014. He issued his report on 3/3/2014. Dr. Volarich noted that Claimant continues to experience ongoing difficulties as a result of the injury on 6/8/2012. He reports ongoing low back pain and usually takes 800 mg of ibuprofen 2 to 3 times a day. Claimant had diffuse complaints that Dr. Volarich traced in his examination notes. Claimant can sit for about 60 minutes, but then has to change positions. He can stand for 30 minutes before his pain increases, and at that time he notes weakness in his leg. He can walk for about 15 minutes before he starts to experience weakness. He can lift 20 pounds.

Claimant can drive/ride for 60 minutes in the car. Claimant denies any problems with sleeplessness, but weather changes exacerbate his symptoms.

Since Claimant is not working, he mostly stays home and watches television, but has to change positions about every 30 minutes. Claimant takes short walks in the park, plays some computer games and naps.

When Claimant was asked about difficulties he had with his back prior to 6/8/2012, he denied any ongoing problems. He noted prior strain injuries in 2002 and 2005, but advised all of those symptoms resolved and caused no hindrance in his ability to do his job leading up to 6/8/2012. He denied any prior radiating pain from his back into his legs before 6/8/2012.

Dr. Volarich noted the following preexisting medical conditions and complaints:

1. Claimant had a cataract removed from his right eye on 11/17/1999, and from his left eye on 1/12/2000. He then had laser capsulotomy of his right eye on 4/10/2002, and the same procedure of his left eye on 5/1/2002.
2. Claimant reported a long history of bilateral chronic draining and otorrhea with cholesteatoma in both ears. He underwent a tympanomastoidectomy sometime in the past. A CT scan of his temporal bones obtained on 11/23/1999, revealed opacified mastoids of the middle ears. He underwent a tympanomastoidectomy with removal of canal osteoma on the left side on 1/27/2000, and a repeat procedure on 8/10/2000. Claimant noted ongoing hearing loss and wore a hearing aid in his right ear.
3. In early 2011, Claimant while mixing ingredients, fell and landed on his right shoulder. Dr. Keric noted ongoing right shoulder pain on 7/8/2011, and prescribed naproxen. Leading up to and continuing beyond the injury of 6/8/2012, Claimant noted ongoing pain in his right anterior shoulder and some pain in his posterior right upper arm. The naproxen prescribed by Dr. Keric helped with the pain. He took several days off because of his shoulder pain, but had no physician imposed restrictions.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-051298

Dr. Volarich opined the work injury that occurred 6/8/2012, is the substantial contributing factor as well as the prevailing or primary factor causing his lumbar left leg radiculopathy from the disc herniation with extrusion at L4-5 to the left for which he received non-operative treatment. The work injury was the prevailing factor causing his symptoms, need for treatment, and resulting disabilities.

Further, it is Dr. Volarich's opinion that the following industrial disability exists that are a hindrance to Claimant's employment or re-employment:

1) 35% permanent partial disability of the body as a whole rated at the lumbar spine due to his lumbar left leg radiculopathy from the disc herniation with extrusion at L4-5 to the left.

Pertaining to the medical conditions preexisting 6/8/2012, Dr. Volarich opined that the following permanent industrial disabilities exist and are a hindrance to his employment or re-employment:

1) Disability from his historic lumbar strain injuries from 2002 and again in 2005 is not found since symptoms resolved and he had no hindrance in his ability to do his job with reference to his back leading up to 6/8/2012.

2) There is a 20% permanent partial disability of the right upper extremity rated at the shoulder due to the impingement for which he received non-operative treatment.

3) Dr. Volarich agrees with the assessment of disability determined by Dr. Anthony Mikulec of 34% whole body impairment due to binaural hearing loss and tinnitus.

4) There may be some disability as a result of the visual disorders, however, Dr. Volarich deferred to ophthalmology for that assessment.

With regard to work and other activities referable to the spine after 6/8/2012.

1) Claimant is advised to avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing, and other similar tasks to an as needed basis.

2) Claimant should not handle any weight greater than 20 pounds, and limit this task to an occasional basis assuming proper lifting techniques.

3) Claimant should not handle weight over his head or away from his body, nor should he carry weight over long distances or on an uneven terrain.

4) Claimant is advised to avoid remaining in a fixed position for any more than about 30 minutes at a time including both sitting and standing.

5) Claimant should change positions frequently to maximize comfort and rest when needed including resting in a recumbent fashion.

6) Claimant is advised to pursue an appropriate stretching, strengthening, and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking, or swimming to tolerance daily.

Dr. Volarich concluded that Claimant is permanently and totally disabled as a direct result of the work related injury of 6/8/2012, in combination with his preexisting medical conditions.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-051298

Jennifer E. Brockman, M.D.

Claimant offered, and had admitted, the deposition and Independent Medical Evaluation (IME) of Jennifer E. Brockman, M.D. (Exhibit 2). Dr. Brockman is a medical doctor specializing in psychiatry, subspecializing in forensic psychiatry. She conducted the IME on 10/15/2014, and issued a report on 10/29/2014. She diagnosed the Claimant with major depressive disorder, single episode, indicating that it had been continuous and that Claimant had not had previous experiences with major depression in the past. She rated it as being moderate. She opined the occupational injury of 6/8/2012, was the prevailing causative factor in his development of major depressive disorder. Dr. Brockman rated Claimant as having a 75% permanent partial disability of the body as a whole, referable to the psychiatric. However, she continues that "75% is a fairly common level of disability that I would give somebody with, I would say, moderate to severe depression." She felt the psychiatric condition alone, accounted for Claimant's inability to compete in the open labor market. Dr. Brockman placed Claimant at MMI on 10/15/2014.

Dr. Brockman opined that the combination of Claimant's disabilities creates a substantially greater disability than the simple sum or total of each separate condition and a loading factor should be added. Also, that the Claimant is currently unable to work and should be considered permanently and totally disabled due to the combination of his physical and psychiatric health conditions. He is currently unable to compete in the open job market and is unlikely to benefit from vocational rehabilitation efforts. Claimant should engage in ongoing treatment for his physical and mental symptoms. He would benefit from receiving case management services and from engagement in psychotherapy. Finally, it was her opinion that the need for mental health treatment services is directly linked to his injury on 6/8/2012. His symptoms and need for these services, including medication, are anticipated to continue for the foreseeable future.

However, Dr. Brockman acknowledged that Claimant's depression was a direct result of not being able to provide for his family, his financial situation, and living with relatives. Claimant had no record of prior psychiatric treatment. She stated, "So if you take the injury out of it, I have no reason to believe that - despite all of these other issues that you're discussing, that he wouldn't have been able to go out and get another job or that he wouldn't have found employment."

James Coyle, M.D.

Employer/Insurer offered, and had admitted, the deposition and Independent Medical Evaluation (IME) of James Coyle, M.D. (Exhibit A). Dr. Coyle is an orthopedic spine surgeon. He issued an IME dated April 1, 2013. He subsequently examined the Claimant on 7/10/2013, and 7/29/2013. Based on the mechanism of injury described by Claimant, Dr. Coyle opined that his work activity on 6/8/2012, was the prevailing factor in causing his current condition and need for treatment. Supporting this conclusion is the fact that the MRI shows an acute extruded disc herniation. It is his opinion with a reasonable degree of medical certainty that if this disc herniation predated the alleged injury date, Claimant would have been unable perform his job duties due to the symptoms from the herniation. The findings on the MRI are consistent with an acute extrusion rather than an old chronic finding.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-051298

On the April 1, 2013 report, Dr. Coyle originally thought the appropriate procedure for Claimant would be a lumbar microdiscectomy and arthrodesis. This would be an elective surgery based upon the Claimant's symptoms. Then after the July 29, 2013, examination Dr. Coyle changed his opinion. "At this point, given his examination, I recommend against surgery. He does have disc pathology, but in the absence of severe pain or substantial motor deficits, I do not see an indication for surgery. I recommend a physiatry evaluation with conservative management and consideration of a functional capacity evaluation to assess his limitations." Dr. Coyle noted the lack of disabling symptoms was not a basis for surgery.

Sandra L. Tate, M.D.

Employer/Insurer offered, and had admitted, the deposition of Sandra Tate, M.D. (Exhibit B). Dr. Tate is a physiatrist that specializes in physical medicine and rehabilitation. She examined the Claimant on 8/15/2013 and on 9/9/2013. Dr. Tate assessed the following permanent restrictions on Claimant: no lifting greater than 20 pounds, no pushing or pulling more than 45 pounds, no repetitive bending at the waist, and no walking more than 30 minutes at a time for a total of two hours a day, which would put Claimant in a capacity where he would be sedentary. She opined that Claimant could work with those restrictions and assessed Claimant at a 10% permanent partial disability at the level of the lumbar spine.

Stacey Smith, M.D.

Employer/Insurer offered, and had admitted, the deposition of Stacey Smith, M.D. (Exhibit C and Exhibit D). Dr. Smith is a licensed M.D. and psychiatrist. She was deposed on 11/17/2016, and that deposition was continued on 2/1/2018. In the 11/17/2016, Dr. Smith noted the Minnesota Multiphasic Personality Inventory administered by Dr. McCabe reinforced her impression that the Claimant was exaggerating his complaints for the purposes of his litigation. Dr. Smith concluded that the Claimant had some reactive depressive symptoms that related to the state of his back, his living situation, and his financial situation. She also made a diagnosis of some malingering secondary gain. She did not believe Claimant had been adequately psychiatrically treated and he was not at MMI psychiatrically. She did not think he would present well for any job interview.

In the 2/1/2018 deposition, Dr. Smith made the observation that the Claimant was less than honest with her. Claimant had told Dr. Smith that he passed the written portion of his drivers' test by merely using a dictionary. She felt Claimant knew more English than he is "letting on". She found Claimant's explanation unconvincing and so does this Court. Dr. Smith felt that Claimant was deliberately trying to manipulate the litigation process. She felt that after the case was settled, Claimant's interface with the opportunity for psychiatric treatment would be different. Claimant was uncomfortable with the questions that Dr. Smith was raising and ultimately, refused to meet with her.

Dr. Smith rated Claimant at 7.5% permanent partial disability related to the mood symptoms from the work injury. She assigned a 15% permanent partial disability for his personality disorder. The rating for the personality disorder was a result of the preexisting

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Injury No.: 12-051298

psychiatric condition before the work injury. However, she felt Claimant could still work, if only sedentary.

James E. Israel, CRC

Claimant offered, and had admitted, the deposition and vocational rehabilitation evaluation of James E. Israel, CRC, LPC (Exhibit 3). Mr. Israel interviewed Claimant on 7/14/2014, and issued a report on 8/25/2014. Mr. Israel concluded, to a reasonable degree of vocational certainty, the work injury of 6/8/2012, in combination with preexisting vocational factors and disabilities prevents Claimant from competing in the open labor market.

James England, Jr.

Employer/Insurer offered, and had admitted, the deposition and vocational rehabilitation evaluation of James England (Exhibit E). Mr. England interviewed Claimant in 8/2014 and issued a report dated 9/3/2014. Mr. England opined that Claimant is incapable of competing in the open labor market due to a combination of the previous preexisting disabilities before 6/8/2012, in combination with the work injury. He thought the results of the vocational testing that was administered and the restrictions that were placed by Dr. Tate makes Claimant unemployable before taking into account any of the psychiatric issues.

RULINGS OF LAW

Nature and Extent of Temporary Total Disability

Section 287.149 provides, in part: 1. Temporary total disability or temporary partial disability benefits shall be paid throughout the rehabilitative process until the employee reaches maximum medical improvement, unless such benefits are terminated by the employee(s) return to work or are terminated as otherwise specified in this chapter.

Dr. Tate placed Claimant at maximum medical improvement on 9/9/2013, and gave him permanent restrictions. The parties stipulated that employer paid temporary total disability payments of $24,183.06 representing the period of 6/9/2012, through 9/9/2013. I find no additional temporary total disability payments are due.

Nature and Extent of Claimant's Permanent Partial Disability or Permanent Total Disability

In every case where the employee is permanently and totally disabled after suffering a compensable work injury, the employee will be capable of working prior to the injury, but incapable of working thereafter. However, we must exclude the effects of Claimant's preexisting disabling conditions to properly assess the nature and extent of disability referable to the work injury alone:

In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Until the disability is determined,

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it is not known whether the second injury fund has any liability. Accordingly, a Claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined.

*Hughey v. Chrysler Corp.,* 34 S.W.3d 845, 847 (Mo. App. 2000) (citations omitted).

In determining the extent of disability, the Commission may reject the uncontradicted opinion of a vocational expert. Additionally, while it is true that the Commission may not reject uncontradicted medical testimony in favor of the ALJ's opinion on the issue of medical causation, the extent of an employee's disability, and thus employability, is not an issue of medical causation, nor does it exclusively require medical testimony. The extent and percentage of disability is a finding of fact within the special province of the Industrial Commission. As a result, in determining the degree of a Claimant's disability, the Commission may consider all the evidence and the reasonable inferences drawn from that evidence.

*Palmentere Bros. Cartage Serv. v. Wright,* 410 S.W.3d 685, 692 (Mo. App. 2013).

Claimant's last injury is comprised of the following pathology: acute extruded disc herniation. Although pled as an accident, Claimant's testimony was that the injury occurred over time; however, Employer's surgical expert, Dr. Coyle, concluded that this was an acute injury. This condition would normally result in acute pain. This pathology, in Claimant's case, is not persuasive in finding Claimant is suffering a total inability to compete for work in the open labor market because of the lack of severely disabling symptoms. Claimant drives, ambulates freely, and the treating surgeon did not recommend surgery.

It is reasonable, and so I find, that Claimant suffered 25% permanent partial disability to the body as a whole at the lumbar spine due to his lumbar left-leg radiculopathy from the disc herniation with extrusion at L4-5 on the left for the injury dated 6/8/2012.

Second Injury Fund liability

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." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment if the employee becomes unemployed." *Id.* Missouri courts have used the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

> [T]he proper focus of the inquiry is not on the extent to which a condition has caused difficulty in the past; it is on the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-051298

Knisley v. Charleswood Corp., 211 S.W.3d 629, 637 (Mo. App. 2007) (citation omitted).

Section 287.020(6)(RSMO) defines total disability as: The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident. Fund liability for PTD under § 287.220.1 occurs when Claimant establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For 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 Mo., 435 S.W.3d 144, 157 (Mo. App. 2014).

Each of the psychiatric experts agree that Claimant suffers measureable disability with respect to his preexisting psychiatric issues. However, none of the psychiatric issues prevented Claimant from working from 8/2008 through 6/2012. Nor has Claimant shown, through persuasive medical evidence, "the potential that the condition may combine with a work-related injury in the future so as to cause a greater degree of disability than would have resulted in the absence of the condition." While Claimant may have psychiatric issues, he has failed to demonstrate the synergistic effect that his psychiatric issues have on the primary injury. Furthermore, Claimant's unconvincing explanation for passing his drivers' test raises question as to the credibility of Claimant's testimony. This lack of reliability permeates all histories given to the various providers and experts.

Each of the vocational experts opined that Claimant is unable to compete in the open labor market. Employer/Insurer's vocational expert stated that Claimant was unable to compete in the open labor market based on vocational testing and the restrictions imposed by Dr. Tate (employer/insurer's expert) without taking into account the psychiatric issues. Again, Claimant returned and continued to work at his job with Kerry Ingredients, in the same job with the same duties, with each of these preexisting conditions present. Nothing in the record illustrates that these conditions would be a hindrance or obstacle in the future. Claimant has failed to demonstrate how these preexisting conditions in addition to the primary injury (an un-operated herniated disk) are hindrances or obstacles to employment or reemployment.

Typically, physical injuries combine in a synergistic effect to prevent a worker from accomplishing his tasks. Therefore, I find no liability for the Second Injury Fund or the employer regarding permanent total disability.

Whether Employer is responsible for future medical expenses

In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the complication of preexisting conditions, or that the treatment will benefit both the compensable injury and the preexisting condition Tillotson v. St. Joseph Med Ctr., 347 S. W. 3d 511, 519 (Mo.App.W.D. 2011) Rather, once it is determined that there has been a compensable accident, a Claimant need only prove that the need for treatment and medication flow from the work injury.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 12-051298

If a work injury requires a Claimant to live with pain and discomfort, it follows that additional and future medical treatment may be required to relieve those symptoms. *Williams v. City of Ava, 982 S.W.2d 307,312* (Mo.App.S.D. 1998)

I find Claimant's testimony of continued low back pain is not credible. Mr. Muratovic testified that he has been taking a significant amount of pain medication after the 6/8/2012, injury. In her deposition, Dr. Brockman noted, after reviewing the Walgreen's medication file provided after her October, 2014, that Claimant was not on an extensive list of medications. There were no psychotropic medications nor narcotics listed. Claimant was taking simvastin for his cholesterol, some eye drops, and Nexium for his reflux. Additionally, I find the opinion of Dr. Volarich somewhat generic. He opined, "in order to maintain his current state, he will require ongoing care for his pain syndrome using modalities including but not limited to narcotics and non-narcotic medications (NSAID's), muscle relaxants, physical therapy, and similar treatments as directed by the current standard of medical practice for symptomatic relief of his complaints. Dr. Volarich's future medical recommendation could apply to almost any physical injury. Therefore, I find that Claimant has not sustained his burden of establishing that he needs additional treatment.

Employer is liable for 100 weeks of permanent partial disability and no future medical treatment. The date of maximum medical improvement is 9/9/2013, as stated by Dr. Tate. The employer has no additional liability for temporary total disability. The Second Injury Fund has no liability for this claim.

I certify that on 8-6-18 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By


Mide by

Joseph P. Keaveny

Administrative Law Judge

Division of Workers' Compensation

WC-32-R1 (6-81)

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