I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee has proven that the combination of injuries sustained in his compensable work injury on July 7, 2011, and prior disabilities caused permanent total disability.
Employee is fifty-two years of age. He had surgery in 1984 for a right shoulder injury sustained while playing high school football. The military rejected him due to his shoulder injury and flat feet. Employee sustained a compression fracture after a 1987 motor vehicle accident. In 1995, he sustained a work injury that resulted in 6% permanent partial disability referable to his back. Employee was physically abused by his father and sought treatment from a psychologist for approximately twenty years to cope with the effects of childhood abuse. Employee is diabetic and insulin dependent. Despite this multitude of preexisting conditions employee reported to examining physician Dr. David Volarich that he worked ten to thirteen hours a day, five to six days a week prior to his July 7, 2011, work injury. During this time, he tried to manage continuing pain in his thoracic spine with over-the-counter medications.
Employee suffered a thoracic strain at work on July 7, 2011, while removing a tire from the trunk of a customer's vehicle at employer's tire store. The company doctor imposed medical restrictions that included no lifting, pushing or pulling over fifteen pounds and sit down duty only. Subsequent events at work on September 26, 2011, and October 1, 2011, caused transient increases in employee's symptoms. Employee's back condition returned to baseline after both of these events. Employee quit his job in October of 2011 because he was no longer able to perform his work duties from 7:30 a.m. to 8:00 p.m. for extended periods with no time off. He is unable to remain in one position for longer than about thirty minutes due to persistent mid and low back pain that radiates down his legs and arms. His frequent need to change positions and rearrange multiple pillows he uses for back support at night causes frequent interruptions of his sleep. Employee's current condition, including bowel and bladder problems and morbid obesity, has adversely affected his personal relationships and sense of well-being. He is barely able to socialize because his pain causes him to snap at people on a regular basis and to stutter when he tries to converse. His valued relationship with his only child, a teenage daughter, has suffered because he is no longer able to enjoy activities with her or provide financial support.
Pursuant to an independent medical examination on July 17, 2014, Dr. David Volarich found that employee had preexisting industrial disability consisting of:
- 35% permanent partial disability of the lumbar spine due to chronic lumbar syndrome from degenerative disc disease;
- 5% permanent partial disability of the body as a whole at the thoracic spine, due to thoracic pain syndrome and paresthesias;
- 15% permanent partial disability of the right upper extremity rated at the shoulder due to fracture requiring surgical repair and resultant lost motion, weakness and atrophy.
In assessing employee's preexisting disability, Dr. Volarich further noted, "Considerable psychiatric disability exists."
1 Transcript, 101.
2 Transcript, 106.
Injury No.: 11-057532
Employee: Harold Hines, Jr.
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Dr. Volarich noted that employee's chronic lumbar syndrome accounted for significant back pain requiring narcotics and muscle relaxants and resulted in loss of motion; that employee's thoracic disability resulted in pain syndrome and paresthesias; and that employee's right upper extremity condition accounted for lost motion, mild weakness and atrophy in his dominant arm.
Dr. Volarich found employee's disability due to the July 7, 2011, primary injury consisted of 25% permanent partial disability related to the lower spine and rib cage and 5% rated at the body as a whole due to aggravation of lumbar pain syndrome.
Dr. Volarich found that the combination of employee's disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness and suggested a loading factor. He considered employee permanently and totally disabled due to the combination of his preexisting medical conditions and psychiatric disabilities in combination with disability attributable to the July 7, 2011, primary injury. Dr. Volarich deferred to psychiatric experts for an assessment of employee's psychiatric disability.
Psychiatrist Dr. Adam Sky evaluated employee as having 25% preexisting permanent partial psychiatric disability. He diagnosed major depression, anxiety disorder and post-traumatic stress disorder (PTSD). He found that employee's work injuries of July 7, 2011, September 26, 2011, and October 1, 2011, exacerbated his preexisting psychiatric disability and were the prevailing cause that resulted in 75% permanent partial disability of the body as a whole from a psychiatric standpoint.
Psychiatrist Dr. Jay L. Liss found that employee had preexisting psychiatric disability prior to his three back injuries consisting of PTSD, with associated anxiety and depression, complicated by congenital attention deficit disorder. He evaluated employee's preexisting psychiatric disability as 25% of the body as a whole. Dr. Liss further found that employee had additional psychiatric diagnosis of pain syndrome with associated anxiety and depression after his work accident. Dr. Liss concluded that these conditions combined in a way that the sum was greater than the individual disabilities and concluded employee was permanently and totally disabled.
As employee's attorney notes in his brief, the administrative law judge tacitly admits that employee is permanently and totally disabled by stating, "[T]he court cannot determine if Claimant's last injury alone caused his permanent total disability or if a combination of Claimant's injuries and prior disabilities caused his permanent total disability."3
The administrative law judge refused to consider psychiatric disability in his assessment of the nature and extent of employee's permanent disability because he found that employee produced no expert medical testimony specifically apportioning a portion of employee's psychiatric disability to his July 7, 2011, work injury. In so finding, the administrative law judge ignores evidence of employee's settlement with employer/insurer prior to hearing, which apportioned