Jimmy Mickelberry v. ICF and LG Holding

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 15-030849

**Employee:** Jimmy Mickelberry

**Employer:** ICF and LG Holding (Settled)

**Insurer:** Travelers Property Casualty 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 parties' briefs, 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.

Dr. P. Brent Koprivica credibly opined that the work injury on February 6, 2015, was the prevailing factor in causing employee's disability to the cervical spine and hands. Specifically, Dr. Koprivica's written report¹ indicated he found the February 6, 2015 injury:

> ...to represent the direct, proximate and prevailing factor in Mr. Mickelberry's development of further structural injury in the cervical region resulting in the development of acute cervical radiculopathy in the presence of the pre-existent degenerative disease ...

Earlier in his report, the doctor opined that pre-dating the February 6, 2015, injury the employee did have pre-existent industrial disability of significance in the cervicothoracic region. Dr. Koprivica noted the complex nature of employee's history and symptom development. He further explained in his written report that the February 6, 2015 injury also impacted:

> ... the development of bilateral double crush syndromes resulting in the development of disabling symptoms based on bilateral carpal tunnel syndromes.

¹ Some of the exhibits, and in particular, Dr. Koprivica's report, have highlighted markings. We note for the record, that these marks were present in the record received by the Commission.

Improved Health

Injury No.: 15-030849

Employee: Jimmy Mickelberry

- 2 -

Transcript, page 666.

To the extent the administrative law judge's attempt to paraphrase the doctor's opinion may give the impression she suggests the February 6, 2015, injury was the "cause and prevailing factor of his permanent total disability," Award, page 10, we correct the administrative law judge's truncated summary of Dr. Koprivica's opinion at page 10 to comport with the opinion found in his written report. Clearly, throughout her award and decision, the administrative law judge found permanent total disability was the result of the combined preexisting disabilities and the primary injury.

Here, a primary injury and disability has been proven, and the February 6, 2015, accident was proven to be the prevailing factor. In assessing the next issue, nature and extent of disability, an analysis of prevailing factor is no longer a relevant inquiry for consideration in evaluating permanent total disability.

Nature and Extent of Disability

The administrative law judge found Dr. Koprivica to be credible, uncontroverted, and persuasive, as do we, on the issue of nature and extent of employee's injuries/disabilities (both preexisting and primary); and that the combined effect of those disabilities resulted in permanent total disability. We also agree that the employee was credible in his reports of prior conditions and limitations, which were part of the basis of Dr. Koprivica's findings.

Dr. Koprivica's opinion was based, in part, on documented medical treatment records² of employee's past injuries, showing a preexisting disability to the cervical and thoracic regions and chronic low back pain. All of these conditions limited employee's activities in the past. Corresponding with this, employee's work history over five years with the employer showed progressively less strenuous work requirements as he changed job positions and duties over the years in response to his increased physical limitations.

Dr. Koprivica's unrefuted opinion was further substantiated by the work restrictions identified by Dr. Norman Bamber in 2016. The doctor's recommended restrictions were based on the conditions and limitations Dr. Bamber observed after the bilateral carpal tunnel release (August and October, 2015) and cervical fusion (January, 2016) surgeries he performed.³ Dr. Bamber was only involved in employee's care relative to the primary injury and did not review any records prior to February 2015. He was not asked to provide an opinion on whether certain restrictions were the result of specific injuries or conditions (preexisting or primary) and he was not asked to opine on the level of preexisting disability. His purpose in reviewing employee's need for work restrictions was to evaluate his functional capabilities and limitations at that moment in time, (June 14, 2016), six months following surgery. (Transcript, page 415).

² Objective medical testing also showed mild carpal tunnel syndrome was identified in 2010. Dr. Koprivica opined that the 2015 primary injury caused development of double crush syndrome, affecting the wrists and resulting in symptoms.

³ We agree with the administrative law judge that Dr. Bamber's observations of employee's physical limitations and need for work restrictions (also unrefuted by other experts), are persuasive and credible, as he personally witnessed the employee's physical limitations after a functional capacity evaluation. Dr. Bamber did not testify at hearing or by deposition in the record before us.

Injury No.: 15-030849

Employee: Jimmy Mickelberry

- 3 -

We note the suggestion by the Treasurer of Missouri on behalf of the Second Injury Fund (Fund) that according to employee's vocational rehabilitation expert (Michael Dreiling), Dr. Bamber attributed the restrictions to the primary injury. In fact, the evidence does not support that inference. Mr. Dreiling's response to a question about what he "understood" about the doctor's restrictions was simply, "that's how he worded it." Transcript, page 801-802. Mr. Dreiling was referring to Dr. Bamber's functional capacity evaluation form. In fact, the doctor did not provide any qualifying language to suggest the restrictions had resulted solely due to the primary injury. The functional capacity evaluation form Dr. Bamber signed on June 14, 2016, only identified that it was based on review of medical records back to February 6, 2015 and the doctor's personal examinations and observations (Transcript, pages 414-415).

The medical records, report and opinions of Dr. Koprivica and Michael Dreiling, Dr. Bamber's noted restrictions, and employee's reports of his limitations and injuries, support a finding that employee is permanently and totally disabled as a result of the combined effect⁴ of his preexistent disabilities and the disability resulting from his primary injury.

**Corrections**

The administrative law judge identifies a chronology of medical treatment and testing at page 8 of the Award. There are typographical errors in two of the dates listed. We correct them as follows.

Page 8, paragraph one, identified a date of February 16, 2016, for "CT scan of the lumbar spine..." (Emphasis ours).

We correct page 8, paragraph one, to read:

> February 16, 2015, CT scan of the lumbar spine revealed mild central spinal stenosis at L3-L5, narrowing of the right lateral recess at L5-S1, and small area of vacuum disk herniation in the right lateral recess area.

Page 8, paragraph two, identified a date of February 18, 2018, for "MRI scan of the cervical spine..." (Emphasis ours).

We correct page 8, paragraph two, to read:

> February 18, 2015, MRI scan of the cervical spine revealed degenerative disk disease with broad-based posterior disk protrusions at C5-C6 and C6-C7.

⁴ We note the reference by the administrative law judge to a synergistic effect of the primary injury of the neck and right wrist and his preexistent disabilities to create a greater disability. While synergy is not a necessary element to prove in a permanent total disability claim, we recognize that the combination of these injuries, and the additional limitations which resulted to employee's ability to turn his neck and use his hands for certain activities do increase his level of disability when combined with his preexisting disabilities.

Injury No.: 15-030849

Employee: Jimmy Mickelberry

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Verification of these dates can be found in Dr. Koprivica's identification of the records reviewed, at pages 652-653 of the transcript and are contained in Claimant's Exhibit B, beginning at page 291.

**Conclusion**

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

The award and decision of Administrative Law Judge Angela C. Heffner 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 13th day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

Checked by: AH/lh

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: February 6, 2015
5. State location where accident occurred or occupational disease was contracted: Pleasant Hill, Cass County, Missouri
6. Was above employee an employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of employment? Yes
9. Was claim for compensation filed within time required by law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was lifting a radiator and turning, with his arms extended out and up,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

when he heard a pop and felt a sharp pain in his neck that radiated to his extremities.

1. Did accidents or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Neck and hands

1. Nature and extent of any permanent disability: Permanent total disability

1. Compensation paid to-date for temporary disability: N/A

1. Value of TTD not furnished by employer/insurer? N/A

1. Value necessary medical aid paid to date by employer/insurer? $77,492.31

1. Value necessary medical aid not furnished by employer/insurer? N/A

1. Value of necessary medical mileage not furnished by employer/insurer? N/A

1. Did accidents or occupational diseases cause a need for future medical treatment? N/A

1. Employee's average weekly wages: 480.51

1. Weekly compensation rate: 320.50/320.50

1. Method of wages computation: By agreement

1. Second Injury Fund liability: Yes, permanent total disability (PTD)

COMPENSATION PAYABLE

1. Second Injury Fund liability: The Employee received 150 weeks of permanent partial disability from the Employer. The Second Injury Fund's liability commences at the expiration of 150 weeks from June 14, 2016, which is April 30, 2019; beginning on May 1, 2019, the Second Injury Fund is ordered to pay Claimant permanent total disability benefits at the rate of $320.50 per week for the Claimant's lifetime.

Said payments to begin on the appropriate date 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

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

to the Claimant: Mav Mirfasihi

FINDINGS OF FACT and RULINGS OF LAW

Employee: Jimmy Mickelberry Injury No. 15-030849

Employer: ICF and LG Holding

Insurer: Travelers Property Casualty Company

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

Hearing Date: April 17, 2018

Briefs Filed: June 1, 2018 Checked by: AH/lh

On April 17, 2018, the Employee and the Second Injury Fund appeared for a final hearing.

The Division had jurisdiction to hear these cases pursuant to Mo. Rev. Stat. § 287.110. The

Employee, Mr. Jimmy Mickelberry, (Claimant or Employee), appeared in person and through counsel,

Mav Mirfasihi. The Second Injury Fund, hereinafter SIF, appeared through counsel, Eric Lowe. The

Employer settled prior to Final Hearing and did not appear.

STIPULATIONS

The parties stipulated that:

1. On February 6, 2015, ICF and LG Holding was an employer working subject to the

Missouri Compensation Law with its liability fully insured by Travelers Property

Casualty Company;

1. Mr. Mickelberry was its employee working subject to the law in Pleasant Hill, Cass

County, Missouri;

1. Mr. Mickelberry sustained an accident or occupational disease arising out of and in the

course and scope of his employment;

1. Mr. Mickelberry notified his Employer of his injuries and filed his claim within the time

allowed by law;

1. Mr. Mickelberry's average weekly wage was $480.51, resulting in a compensation rate

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

of $320.50 for temporary total and permanent partial disability benefits;

1. Mr. Mickelberry reached maximum medical improvement on June 14, 2016;

1. If Employee is found to be permanently and totally disabled, the onset date of permanent total disability is June 14, 2016;

1. That the claim against the Employer settled for 20% of each hand and 20% of the body as a whole referable to the neck;

1. That the gross settlement against the employer was for a total of 100,000.00 which included 77,492.31 for past medical expenses.

ISSUES

1. Whether the Second Injury Fund is liable to the employee for any disability compensation.

FINDINGS

Mr. Mickelberry offered the following exhibits into evidence without any objections:

Exhibit A - St. Joseph Medical Center records

Exhibit B - Cass Regional Medical Center records (2/16/15 - 4/08/15)

Exhibit C - Dr. James Lawrenzi/Archie Med. Clinic records

Exhibit D - Peculiar Medical Clinic records

Exhibit E - Dr. Norman Bamber RFC

Exhibit J - Garden City Medical Clinic records

Exhibit K - Schroeder Chiropractic records

Exhibit L - Cass Regional Medical Center records (2/06/05 - 2/05/15)

Exhibit M - Dr. P. Brent Koprivica's IME

Exhibit N - Michael Dreiling's Vocational Report

Exhibit O - Michael Dreiling's Deposition 11/08/17

Exhibit P - Michael Dreiling's Deposition 2/28/18

Exhibit Q - Dr. Koprivica's Deposition

Exhibit R - Attorney Client Contract

The Second Injury Fund did not offer any exhibits into evidence.

FINDINGS OF FACT

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

Claimant, Jimmy Mickelberry, testified credibly. He was born on October 1, 1960. He is a high school graduate and attended some college but did not graduate from college. Based on the exhibits, testimony of Dr. Koprivica, testimony of Mike Dreiling, and testimony of Mr. Mickelberry, this Court makes the following findings:

Mr. Mickelberry testified that he started working for Employer in March of 2010. He held three full-time positions consisting of brake line operator, paint line, and assembler during his tenure with Employer. He left the brake line operator position for the paint line because it required less lifting and it was easier on his back. However, both the brake line operator and paint line positions demanded standing/walking more than 90% of the time in an eight-hour work day. Mr. Mickelberry eventually took an assembler position that required him to stand/walk about 50% of the eight-hour workday, which was again easier on his back. Mr. Mickelberry testified that in the assembler position he could sit and even lay down to assemble parts and equipment.

Mr. Mickelberry testified he injured his neck and hands on February 6, 2015, while working in the assembler position. He was lifting a 50-pound radiator six and a half feet from the ground to place it on a hoist with his arms extended and he felt a pop in his neck followed by severe pain. He stated he put the radiator on the ground as fast as he could and fell to the floor in pain.

Since the February 6, 2015 work injury, Mr. Mickelberry testified he has chronic neck pain, which resulted in neck fusion surgery. He testified the fusion has significantly limited how much he can turn his neck, and he still has chronic neck pain. However, prior to the neck surgery Mr. Mickelberry testified he was required to have bilateral carpel tunnel surgery by Dr. Bamber, to assure that the radiating pain in his neck was not a manifestation of carpel tunnel syndrome. Unfortunately, after the carpel tunnel surgery, Mr. Mickelberry developed numbness, tingling, weakness, and chronic pain in his hands.

After the February 6, 2015 work injury, Mr. Mickelberry testified he cannot stand or walk unassisted for more than 15-20 minutes. He cannot sit for more than 15-20 minutes. He has to continuously alternate and change positions for comfort. He cannot jog or ride his bike. He has fallen several times in the shower. He now has a seat in the shower. He drops things regularly. He cannot open jar lids. He was forced to purchase a jar opener; however, he even struggles to open jars with the jar opener. He cannot do any overhead work. Pushing and pulling causes back pain. He is unable to look over his shoulder due to the neck fusion. Driving has become difficult because of his inability to look over his shoulder. He is taking Hydrocodone regularly every six hours due to pain, which causes him to be drowsy. He has to take several naps during the day due to his inability to get adequate sleep at night because of pain and discomfort. He cannot put on his own socks or shoes. He has to strap his belt to his pants prior to putting his pants on due to pain and inability to turn.

Finally, Mr. Mickelberry testified he was fired from his job because he was unable to return to work. He does not feel he could work 8 hours a day, 40 hours a week, 5 days a week, and 52 weeks a

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

year.

Mr. Mickelberry had significant medical problems and restrictions prior to the February 6, 2015 work injury, but he could still work full time up to that time.

Mr. Mickelberry testified he has had a history of chronic back pain, which caused a hindrance to his ability to work, going back several years prior to February 6, 2015. He testified he missed work several times due to back pain, prior to February 6, 2015. He completed FMLA paperwork several times for back pain prior to February 6, 2015. The assembler position he took was the third position he applied for in order to accommodate his back problems, since it required less standing, allowed him to sit more and even lay down during the assembly process. He testified there were times where he went out to his car to lay down during breaks due to back pain. Mr. Mickelberry testified he was unable to lift heavy equipment at work, and he would get help with the lift often times. He also testified overtime was mandatory for employees. However, he was not required to put in the overtime like others, because of his back pain. Finally, he testified he would take Ibuprofen regularly for his back pain prior to February 6, 2015.

Mr. Mickelberry testified he was unable to maintain any awkward postures due to his back problems prior to February 6, 2015. He also had problems with pushing and pulling, as they would both increase the pain in his back. Any type of strain would cause him to miss work. He would go home and with one night's rest he was able to come back to work the next day most of the time, until the February 6, 2015 injury.

Mr. Mickelberry testified he also suffered a transient ischemic attack (TIA) in 2010. Since the TIA, he has dealt with headaches and dizziness regularly. He stated the headaches are so bad at times, that he cannot fall asleep, if he has them. There are other times the headaches are so severe that they cause him to cry. Regarding the dizziness, he testified that he sometimes uses a cane for control.

Medical Evaluation of Dr. Brent Koprivica

Dr. Koprivica examined Mr. Mickelberry on January 1, 2017. The opinions in the medical report are based on reasonable medical certainty. In preparation to complete his medical report, he reviewed Exhibits A-L.

Dr. Koprivica stated "[i]n reviewing Mr. Mickelberry's history, there is a significant history with complexity prior to the February 6, 2015 work related accident." The medical records demonstrate Mr. Mickelberry was having left arm pain and numbness in August 2010. He developed blurred vision, nausea, dizziness, difficulty with cognition, and trouble adding and subtracting. The clinical impression at the time was that Mr. Mickelberry had a transient ischemic attack, TIA, or stroke in August of 2010. It was identified that Mr. Mickelberry "...had left

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

vertebral artery occlusion and 60% stenosis of the right vertebral artery." December 3, 2010 electrodiagnostic studies were performed revealing mild to moderate carpal tunnel syndrome and chronic and inactive left C5-C6 and C6-C7 radiculopathies. However, Mr. Mickelberry was not interested in pursuing carpal tunnel release surgery at that time.

"MRI scan of the cervical spine performed on December 9, 2010, revealed posterior bulging at C5-C6 and C6-C7 and to a lesser degree at C4-C5." Ex. M, p. 8. There was central spinal canal stenosis and neural foraminal narrowing at C5-C6 and C6-C7, contributing to the facet arthropathy. Ex. M, p. 8. Dr. Koprivica stated in his report:

"I would note that in the primary care records, not only were there issues regarding the cervical spine, but there were also issues regarding low back pain. On October 4, 2012, Mr. Mickelberry's primary care physician, Dr. Lawrenzi, treated him with osteopathic manipulative treatment for his low back pain. The low back pain was described as being mainly left-sided, but not radiating down his leg. Ex. M, p. 8.

"These ongoing disabling symptoms in the neck and low back were persistent and ongoing when Mr. Mickelberry suffered the further injury on February 6, 2015." (Ex. M)

Dr. Koprivica opined that Mr. Mickelberry had the following preexisting disabilities all predating February 6, 2015:

1. 15% percent permanent partial (PPD) disability to the whole body for the cervical region.
2. 10% PPD to the whole body in the thoracic region.
3. 15% PPD to the whole body for the chronic low back pain.

Dr. Koprivica testified that Mr. Mickelberry had the following restrictions all predating February 6, 2015:

1. Repetitive, especially heavy, overhead-lifting types of activities.
2. For the thoracic and lumbar regions, restricted from frequent or constant bending at the waist, pushing, pulling, or twisting.
3. Avoiding sustained or awkward postures of the low back.
4. Some allowance for changing postures was necessary, but could be accommodated by employers, so it was "not to a level that they couldn't be accommodated, but they were present before the new work injury."
5. Avoid significant jarring or vibrations of the head and neck.

Dr. Koprivica reported that Mr. Mickelberry suffered an additional work injury on February 6, 2015, "...handling a radiator with his arms out in front of him which was a somewhat awkward posture, when his neck suddenly popped." He was also having pain and symptoms radiating down his right leg. He was given a Toradol injection and prescribed Hydrocodone with Acetaminophen and Cyclobenzaprine.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

February 16, 2016, CT scan of the lumbar spine revealed mild central spinal stenosis at L3-L5, narrowing of the right lateral recess at L5-S1, and small area of vacuum disk herniation in the right lateral recess area. He was having back pain and foot pain, with pain levels being a seven. It was noted that Oxycodone was not helping.

February 18, 2018, MRI scan of the cervical spine revealed degenerative disk disease with broad-based posterior disk protrusions at C5-C6 and C6-C7, with multi-level mild to moderate degenerative foraminal narrowing reported as well.

March 10, 2015, Dr. Johnson diagnosed Mr. Mickelberry with cervical radiculopathy, displaced cervical intervertebral disks without myelopathy, cervical spondylosis without myelopathy, chronic lumbar radiculopathy, displacement of lumbar intervertebral disks without myelopathy and chronic intermittent pain.

March 17, 2015, Mr. Mickelberry received a C7-T1 cervical epidural steroid injection from Dr. Brown.

March 25, 2015, Dr. Lawrenzi diagnosed Mr. Mickelberry with Intervertebral disk degeneration and cervicalgia. Mr. Mickelberry was prescribed Butrans patches and Hydrocodone with Acetaminophen.

April 8, 2015, physical therapy was initiated. April 9, 2015 concerns about pain management were raised due to Mr. Mickelberry's lack of relief.

April 15, 2015, Dr. Lawrenzi recommended a neurosurgical referral. Again, it was noted that pain management was not working.

On August 31, 2015, right carpal tunnel release was performed; and on October 5, 2015, left carpal tunnel release was performed. Finally, on January 25, 2016, an anterior cervical discectomy and fusion was performed. A temporary spinal cord stimulator was placed in September 2016; however, the trial failed and the stimulator was removed.

Dr. Koprivica noted the following current complaints for Mr. Mickelberry:

Regarding the episode of his neck popping and the onset of numbness and tingling and pain in his hands and upper extremities associated with the February 6, 2015, claim date, Mr. Mickelberry continues to have severe ongoing neck pain. His neck pain varies from level five up to eight on a scale of zero to ten. He has deficits in both hands. His left hand is more symptomatic and more limited than his right. He still gets numbness and tingling in his hands. He still gets nocturnal awakening with numbness in his hands. He has times when he is unable to

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

forcefully grasp with his hands. He complains of swelling. He drops items.

He still has ongoing headaches associated with his cervical pain. These occur on a frequency of about every other day. The severity of the headaches vary...

...He is self-limiting lifting and carrying to less than 10 pounds. He accommodates in his daily activities. If he has to carry items, he will put them in a wagon.

He does still try to do activities such as cutting his grass. He has a riding lawn mower. However, he has to take such frequent postural breaks that it takes about three times longer to do the task than it took before he suffered his injuries. He does report that if he attempts to do too much, he is "down for two days." I would note that Mr. Mickelberry does volunteer that he is lying down throughout the day. He lies down three to four times per day on an average. He typically lies down for thirty-minute intervals. He is doing this for pain relief. (Ex.M)

Based on reasonable medical certainty Dr. Koprivica opined that on February 6, 2015, Mr. Mickelberry sustained the following injuries:

I felt that he suffered permanent injury in the cervical region which led to the development of double crush syndrome. What double crush syndrome refers to is compression at the C5-6 nerve root level that's occurring in the neck area, along with compression at the wrist level, which is carpal tunnel syndrome.

The injury itself didn't cause the compression at the wrist level, but it was not to a level of significance where it was disabling prior to suffering the new injury in the neck. And whenever you have the new compression at the nerve root level in the neck, it caused the carpal tunnel syndrome to also be symptomatic. And they call that phenomenon "double crush."

So this injury is the prevailing reason why he is now symptomatic from carpal tunnel syndrome. And then he suffered new structural injury in the neck that caused the nerve root compression. (Ex. Q)

Mr. Mickelberry's restrictions after the February 6, 2015, work injury consisted of the following:

1. Hand-use activities that require repetitive pinching, repetitive grasping, repetitive wrist flexion/extension or repetitive ulnar deviation of the wrist.
2. Repetitive pushing or pulling activities against resistance.
3. Overhead lifting.

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MNKOI 0000811657

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

1. Lift 10 pounds as a maximum for occasional lifting or carrying.
2. Avoid exposing upper extremities to vibration.
3. Avoid repetitive or sustained activities above shoulder level, even if unweighted.
4. Avoid repetitive motions of the head and neck.
5. Avoid sustained or awkward postures of the neck.
6. Sleep deprivation requires him to recline unpredictably.

Dr. Koprivica opined that Mr. Mickelberry is permanently totally disabled as a result of his preexisting disabilities, combined with the February 6, 2015 work injury. (Ex. Q) His work injury of February 6, 2015 was the cause and prevailing factor of his permanent total disability. Dr. Koprivica further opined that taking away the disability given to the hands, Mr. Mickelberry would still be permanently totally disabled as a result of the preexisting disabilities and the February 6, 2015 work injury combined.

Finally, in reaching his conclusion of permanent total disability, Dr. Koprivica excluded consideration of the progression of disability in the lumbar region since February 6, 2015, unrelated to the primary work injury claim. Ex. Q, p. 25-26. I find Dr. Koprivica's opinions to be uncontroverted and his testimony credible.

Medical Opinion of Dr. Norman Bamber

Mr. Mickelberry's surgeon, Dr. Norman Bamber, stated Mr. Mickelberry's restrictions in a Medical Source Opinion Of Residual Functional Capacity. The June 14, 2016 report is specifically based on medical records dating back to February 6, 2015 and Dr. Bamber's physical examination and observation of the Claimant. Dr. Bamber opined Mr. Mickelberry has the following restrictions:

1. Sit, Stand/walk "occasionally" (2 hours in an eight-hour work day)
2. "Frequently" (4-5 hours in an eight-hour work day) lift 10 pounds;
3. Use his arms for reaching, pushing, and pulling "occasionally;"
4. Use his right hand for grasping, handling, fingering, or feeling "occasionally;"
5. Use his left hand for grasping, handling, fingering, or feeling "infrequently;" (1 hour in an eight-hour work day)
6. Elevate his legs "occasionally;" and
7. Self-limited and needs to rest because of pain and fatigue. Ex. E.

Dr. Bamber's opinions in Exhibit E are based on Mr. Mickelberry's conditions as a whole. Dr. Bamber did not assess any permanency rating to any prior injuries or the February 6, 2015 work injury. Dr. Bamber's records, Exhibit A, do not contain any records reflecting Mr. Mickelberry's back pain, bulging disks in the neck at C5-6 and C6-7, or carpal tunnel diagnosis all prior to February 6, 2015, as reflected in Exhibits L or J. It would be speculative to assume Dr. Bamber discussed Mr. Mickelberry's past complaints prior to his work injury and reviewed past medical records. Unlike Dr. Koprivica, Dr. Bamber never addresses any of Mr. Mickelberry's preexisting

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TI11980181

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

conditions combined with the February 6, 2015 work injury. I find Dr. Bamber to be a credible witness as to Claimant's permanent restrictions and his opinions supported by Dr. Koprivica and Mr. Mickelberry's testimony.

At the direction of Claimant's attorney, Mr. Mike Dreiling conducted a thorough vocational assessment of Mr. Mickelberry. In forming his opinions, Mr. Dreiling reviewed Exhibits A-M and met with Claimant on August 1, 2017.

Mr. Dreiling indicated that at the time of the interview the Claimant was 56 years old. He graduated from high school in 1978. He had some vocation training after graduating from high school in auto mechanics. He attempted college for several months in 1978. "However, that's the last formal training he's had during the past 39 years." (Ex. O) As a result, Mr. Dreiling found Claimant's educational background is a significant barrier to employment.

Mr. Dreiling testified Claimant's work history was very consistent for labor type jobs. He had jobs that required him to be on his feet, standing, and walking mostly. Claimant did not acquire any transferable skills that would be consistent with his medical difficulties. Claimant had no typing or computer skills. As a result, Mr. Mickelberry's work background is a significant barrier to employment. (Ex. O)

Mr. Dreiling did not find any restrictions that made Claimant permanently totally disabled prior to February 6, 2015. However, after February 6, 2015, Mr. Mickelberry "was restricted from hand use activities requiring repetitive pinching, grasping, wrist flexion/extension, repetitive ulnar deviation of the wrist; avoid exposing upper extremities to vibration; avoid repetitive pushing/pulling against resistance; restricted from overhead lifting activities; avoid repetitive or sustained activities above shoulder girdle level, even if unweighted; avoid repetitive motions of the head and neck; avoid sustained or awkward postures of the cervical spine; limited to occasional lifting; restricted to lifting and carrying no more than 10 pounds, occasionally. Claimant also needs the flexibility to recline multiple times throughout the day due to sleep interruptions caused by pain.

Mr. Dreiling opined that Claimant was unable to compete in the open labor market. (Ex. O). He is unable to work 8 hours a day, 40 hours a week, and 52 weeks a year. That no employer in the ordinary course of business would reasonably be expected to employ Claimant in his present physical condition. Based on his condition and restrictions (past and current combined) due to the prevailing factor of the February 6, 2015 work injury, Mr. Mickelberry is permanently and totally disabled. I find Mike Dreiling to be credible and his opinions uncontroverted.

11

MNKOI 0000811499

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

Section 287.020.5 RSMo. defines total disability as the inability to return to any employment and not merely to return to the employment in which the employee was engaged at the time of the accident. The terms "any employment" mean "any reasonable or normal employment or occupation." *Fletcher v. Second Injury Fund*, 922 S.W.2d 402 (Mo.App. 1996); *Crum v. Sachs Electric*, 786 S.W.2d 131 (Mo.App. 1989); *Kowalski v. M-G Metals and Sales*, 631 S.W.2d 919 (Mo.App. 1992); *Groce v. Pyle*, 315 S.W.2d 482 (Mo.App. 1958). It is not necessary that an individual be completely inactive or inert in order to meet the statutory definition of permanent total disability. It is necessary, however, that the employee be unable to compete in the open labor market. See *Fletcher v. Second Injury Fund*, *Searcy v. McDonnell Douglas Aircraft*, 894 S.W.2d 1173 (Mo.App. 1995); *Reiner v. Treasurer*, 837 S.W.2d 363 (Mo.App. 1992); *Brown v. Treasurer*, 795 S.W.2d 478 (Mo.App. 1990).

Missouri courts have repeatedly held the test for determining permanent total disability is whether the individual is able to compete in the open labor market and whether an employer in the usual course of business would be reasonably expected to employ the employee in his present condition. *Sullivan v. Masters Jackson Paving Company*, 35 S.W.3d 879 (Mo.App.S.D. 2001). See *Garcia v. St. Louis County*, 916 S.W.2d 263 (Mo.App. 1995); *Lawrence v. RV-III School District*, 834 S.W.2d 789 (Mo.App. 1992). Thus, a determination of permanent total disability focuses on the ability or inability of the employee to perform the usual duties of various employments in the manner that such duties are customarily performed by the average person engaged in such employment. *Gordon v. Tri-State Motor Transit*, 908 S.W.2d 849 (Mo.App. 1995). Even though a claimant might be able to work for brief periods of time or on a part-time basis it does not establish that they are employable. *Grigic v. P&G Construction*, 904 S.W.2d 464, 466 (Mo.App. 1995). Courts have held various factors may be considered, including claimant's physical and mental condition, age, education, job experience and skills in making a determination as to whether the claimant is permanently, totally disabled. See *Tiller v. 166 Auto Auction*, 941 S.W.2d 863 (Mo.App. 1997); and *Olds v. Treasurer*, 864 S.W.2d (Mo.App. 1993).

In order to establish Second Injury Fund liability for permanent, total disability benefits, Claimant must prove that: (1) he has permanent disability resulting from a compensable work-related injury; (2) he has permanent disability predating the compensable work-related injury which is of "such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment if the employee becomes unemployed," §287.220.1 RSMo. 1993; *Garibay v. Treasurer*, 930 S.W.2d 57 (Mo.App. 1996); *Rose v. Treasurer*, 899 S.W.2d 563 (Mo.App. 1995); *Leutzinger v. Treasurer*, 895 S.W.2d 591 (Mo.App. 1995); and *Wuebbeling v. West County Drywall*, 898 S.W.2d 615 (Mo.App. 1995); and, (3) the combined effect of the disability resulting from the work-related injury and the disability attributable to all conditions existing at the time the

12

TI15781165

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

last injury was sustained results in permanent, total disability, *Boring v. Treasurer*, 947 S.W.2d 483 (Mo.App. 1997); *Reiner v. Treasurer*, 837 S.W.2d 152 (Mo.App. 1994).

In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. *Stewart v. Johnson*, 398 S.W.2d 850, 852 (Mo. 1966); *Roller v. Treasurer of Mo.*, 935 S.W.2d 739, 741 (Mo.App.S.D. 1996). "Until that disability is determined, it is not known whether the Second Injury Fund has any liability . . ." *Stewart*, 398 S.W.2d at 854. Accordingly, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. *Kizior v. Trans World Airlines*, 5 S.W.3d 195, 201 (Mo.App.W.D. 1999); *Roller*, 935 S.W.2d at 743-44. If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount. *Id.*

The uncontroverted evidence is, and I so find, that Claimant suffered an accident resulting in an injury at work on February 6, 2015, that arose out of and in the course of his employment at ICF & LG Holding. At hearing, the parties stipulated that the Employer and Claimant settled the primary claim for 20% permanent partial disability to body as a whole referable to the neck and 20% permanent partial disability to the right and left wrists. Additionally, Dr. Koprivica assessed 20% permanent partial disability to body as a whole referable to the neck and 20% permanent partial disability to the right and left wrists. I find Claimant sustained 20% permanent partial disability to the body as a whole and 20% permanent partial disability to the right and left wrists for the injuries related to his February 6, 2015 work related injury. As a result, this represents 150 weeks of permanent partial disability paid by Employer. I find this accurately represents Claimant's disability for his primary injury. Furthermore, I find Claimant is not permanently and totally disabled as a result of the work-related accident on February 6, 2015 in isolation. Accordingly, Claimant has satisfied the first element to establish his claim for permanent total disability against the Second Injury Fund.

The next element the Claimant must establish is that he has permanent disability predating the compensable work related injury which is of "such seriousness as to constitute a hindrance or obstacle to employment or to obtain reemployment." As I previously outlined above, Claimant clearly established this as well. The Second Injury Fund presented no evidence to dispute the Claimant's testimony or the vocational opinion of Michael Dreiling. Based on the testimony of Dr. Koprivica, Mr. Dreiling, Claimant and the medical records offered at the hearing, I find Claimant clearly suffers from permanent disability predating the compensable work related accident of February 6, 2015. I further find Claimant's preexisting disability was of such seriousness as to constitute an obstacle or hindrance to his employment or reemployment as required by Missouri Law. I find that Dr. Koprivica's uncontradicted opinion regarding Claimant's preexisting disability is credible and I adopt it as fact, specifically finding: Claimant sustained 15% permanent partial disability to his body as a whole referable to the neck; 10% permanent partial disability body as a whole referable to his thoracic spine; and 15% permanent partial disability body as a whole

13

MNKOI 0000811657

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

referable to his low back. As a result, I find Claimant has satisfied the second element required to establish permanent total disability against the Second Injury Fund.

The final element that Claimant needs to establish to successfully claim permanent total disability benefits from the Second Injury Fund is that the combined effect of the disability resulting from the February 6, 2015 work related accident and the disability attributable to all conditions existing at the time the last injury was sustained results in permanent total disability.

Regarding Claimant's preexisting disability, I find Claimant sustained 15% permanent partial disability to his body as a whole referable to the neck; 10% permanent partial disability body as a whole referable to his thoracic spine and 15% permanent partial disability body as a whole referable to his low back. Claimant continued to suffer the permanent effects from both of these injuries which I find combined with his primary occupational disease of the neck and right wrist to create an overall synergistic effect. I find preponderance of the credible evidence proves that Claimant's preexisting disabilities combined with the February 6, 2015 work-related accident to create a synergistic effect of greater overall disability resulting in permanent and total disability. Therefore, I find Claimant is entitled to permanent total disability benefits from the Second Injury Fund.

I find the evidence presented convinces me that Claimant is permanently and totally disabled due to the combined effect of the disability resulting from the February 6, 2015 accident and disability attributable to his preexisting conditions. As a result, I find the Claimant has satisfied the final element needed to establish a claim for permanent total disability benefits against the Second Injury Fund.

In his report, Dr. Koprivica opined that he did not believe that the conditions stemming from the claimed work related injury of February 6, 2015 resulted in permanent total disability when considered in isolation; rather, the permanent total disability is based on synergism of combining all of the disabilities he identified in his report.

The only vocational input in this claim is the report and testimony of vocational expert, Mr. Dreiling. In his testimony, Mr. Dreiling opined that based on Claimant's vocational profile that he was essentially and realistically unemployable in the open labor market and, furthermore, no employer in the usual course of business seeking persons to perform duties of employment in the usual and customary way would reasonably be expected to employ Claimant given the combination of the disability resulting from the February 6, 2015 accident and his preexisting conditions.

The Second Injury Fund did not present any vocational evidence or testimony to argue that Claimant was capable of competing for work in the open labor market.

14

MNKOI 0000422997

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jimmy Mickelberry

Injury No. 15-030849

Claimant proved that his disability from the work-related accident of February 6, 2015, became permanent when he was placed at maximum medical improvement on June 14, 2016. Again, as noted earlier, Claimant proved that he sustained 20% permanent partial disability to body as a whole referable to the neck and 20% permanent partial disability to the right and left wrists stemming from the February 6, 2015 accident totaling 150 weeks of permanent partial disability. He proved the employer was liable for 150 weeks of permanent partial disability benefits at the rate of $320.50 per week beginning on June 14, 2016. The Second Injury Fund's liability commences at the expiration of 150 weeks from June 14, 2016, which is April 30, 2019; beginning on May 1, 2019, the Second Injury Fund is ordered to pay Claimant permanent total disability benefits at the rate of $320.50 per week for the Claimant's lifetime.

Claimant's counsel requested a fee equal to 25% of all amounts awarded. I find this fee request to be fair and reasonable. Therefore, this Award shall be subject to a lien in favor of Mav Mirfashi for reasonable and necessary attorney's fees pursuant to Mo. Rev. Stat. §287.260.1.

I certify that on July 6, 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 __________________________

Angela C. Heffner

Administrative Law Judge

Division of Workers' Compensation