Harold Hines, Jr. v. Auto-Tire

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 11-057532

**Employee:** Harold Hines, Jr.

**Employer:** Auto-Tire (Settled)

**Insurer:** Travelers Indemnity Co. of America (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 read the briefs, reviewed the evidence, heard the parties' arguments, 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.

The administrative law judge finds, "Claimant has failed to carry his burden to show through clear and convincing evidence how his prior injuries whether physical or psychiatric have ever been a hindrance or obstacle to his employment. Claimant not only worked 80-100 hours a week, but additionally pursued a career in competitive professional billiards." The administrative law judge denied employee's claim for permanent total disability but awarded permanent partial disability in the amount of $16,837.52 against the Second Injury Fund, concluding that "The evidence does support a finding Claimant is entitled to permanent partial disability benefits [because the] credible evidence established [employee's] primary thoracic spine injury combined with the preexisting lumbar spine injury." The Second Injury Fund did not appeal the administrative law judge's award, argued in its brief that the administrative law judge "did not err in calculating PPD benefits," and specifically asked the Commission to affirm the administrative law judge's award.

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." 287.220.2 RSMo.

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

1 Award, p. 7.

2 Id., p. 8.

3 Brief of Respondent, Second Injury Fund, filed January 25, 2019, pp. 8-9.

- 2 -

Injury No.: 11-057532

Employee: Harold Hines, Jr.

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." (emphasis in original) *Wuebbeling v. West County Drywall*, 898SW2 615, 620 (Mo. App. E.D.1995).

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

Pursuant to *Knisley* employee's past ability to work despite preexisting disabling conditions does not, in and of itself, preclude those conditions from constituting a potential hindrance or obstacle to employee's employment or reemployment in the future. Applying this legal standard, we find that the credible evidence in this case, including the expert medical opinion of Dr. David Volarich, demonstrates that employee's preexisting lumbar disability constituted a potential hindrance or obstacle to employment. We further find that employee's preexisting lumbar disability combined with thoracic spine injury attributable to the primary injury to cause a greater degree of disability than would have resulted in the absence of this preexisting condition. Based on this reasoning, we affirm the administrative law judge's award of permanent partial disability in the amount of $16,837.52 against the Second Injury Fund in this case.

The above clarification of the administrative law judge's award does 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 award and decision of Administrative Law Judge Marvin O. Teer, Jr., dated August 22, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this 25th day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

ABSTRACT

Robert W. Cornsjo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Curtis E. Chick, Jr., Member

Secretary

Injury No.: 11-057532

Employee: Harold Hines, Jr.

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.

- 2 -

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 12% permanent partial disability of the body as a whole specifically referable to psychiatric disability.

The administrative law judge's denial of any benefits for employee's preexisting psychiatric disability is inconsistent with the opinions of all psychiatric experts in this case, including employer/insurer's expert Dr. Marcie Garland. The administrative law judge's conclusion that employee suffered no psychiatric disability attributable to the primary injury is also inconsistent with his written findings which clearly list "Lumbar spine, thoracic spine, psychiatric (emphasis added)" as body parts injured by accident or occupational disease.

3 Award, p. 7.

Injury No.: 11-057532

Employee: Harold Hines, Jr.

- 3 -

The test for permanent total disability is whether the worker is able to compete in the open labor market. A worker is totally disabled if they are unable to return to any normal or reasonable employment; the worker is not required to be inert or completely inactive. The key question is whether any employer in the ordinary course of business would reasonably be expected to hire the worker in his or her current physical condition. *Carkeek v. Treasurer of State*, 352 S.W.3d 604 (Mo. App. 2011) at 608. Vocational expert James England noted that employee is extremely overweight and has trouble just getting up and down from a chair. He opined that employee's "presentation alone would make it tremendously difficult for him to compete for employment." He found employee permanently and totally disabled from work, including work in a light duty capacity. Even employer/insurer's vocational expert Karen Kane-Thaler, conceded "[B]ased on his presentation and what was set forth in the psychiatrists, that could impede [employee's] ability to participate or move forward at some point."

The Commission should reverse the administrative law judge's denial of permanent and total disability benefits from the Second Injury Fund because employee proved all elements required for a permanent and total disability award: (1) he sustained a compensable injury resulting in permanent partial disability; (2) at the time of the work injury, he had at least one preexisting permanent partial disability serious enough to constitute an obstacle or hindrance to employment or reemployment; and (3) the combination of his preexisting disabilities and the disability caused by his July 7, 2011, work injury resulted in permanent total disability.

Because the majority finds otherwise, I respectfully dissent.

Curtis E. Chick, Jr., Member

*Transcript*, 252.

*Id.* 2523A.

Issued by DIVISION OF WORKERS' COMPENSATION

**Employee:** Harold Hines

**Dependents:** N/A

**Employer:** Auto-Tire (Settled)

**Additional Party:** Second Injury Fund

**Injury No.:** 11-057532

**Before the Division of Workers' Compensation**

**Department of Labor and Industrial Relations of Missouri**

**Jefferson City, Missouri**

**Insurer:** Travelers Indemnity Co. of America (Settled)

**Hearing Date:** May 10, 2018

**Checked by:** MOT;sh

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 onset of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: July 7, 2011

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

1. Was above Claimant 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 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 Claimant was doing and how accident occurred or occupational disease contracted: Claimant was pulling a tire when he felt a pop in his back

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

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

1. Nature and extent of any permanent disability: 18% permanent partial disability to the thoracic spine previously settled with the employer

1. Compensation paid to-date for temporary disability: $4,058.64

WC-32-R1 (6-51)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 11-057532

1. Value necessary medical aid paid to date by employer/insurer? $19,125.80

1. Value necessary medical aid not furnished by employer/insurer? None

1. Claimant's average weekly wages: 1,304.75

1. Weekly compensation rate: 811.73/$425.19

1. Method wages computation: By agreement of the parties

COMPENSATION PAYABLE

1. Amount of compensation payable: $16,837.52

1. Second Injury Fund liability: Yes (See Findings)

1. Future requirements awarded: No

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: Daniel Keefe

WC-32-R1 (6-81)

Page 2

Employee: Harold Hines

Injury No.: 11-057532

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Auto-Tire (Settled)

Additional Party: Second Injury Fund

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Travelers Indemnity Co. of America (Settled)

Hearing Date: May 10, 2018

Checked by: MOT:sh

On May 10, 2018, a hearing was held at the Division of Workers' Compensation in St. Louis, Missouri. Harold Hines (hereinafter "Claimant") was represented by Daniel Keefe. The Second Injury Fund was represented by Assistant Attorney General Maggie Ahrenbach. Employer settled its claim prior to hearing.

The parties stipulated that on or about July 7, 2011, Claimant sustained an accidental injury arising out of and in the course of employment; Claimant was an employee of Employer; Venue is proper by agreement of the parties in St. Louis, Missouri; Employer received proper notice of the injury; The claim was timely filed; The rate of compensation is $\ 811.73 for PTD/TTD benefits and $\ 425.19 for PPD benefits. The issues to determine are: Nature and extent of the primary injury and Fund liability.

Claimant is a 51-year-old male. He graduated high school and successfully completed over 2 years of college. Claimant worked for Employer from 2010-2012 as a manager. Claimant testified he worked 80-100 hours a week for Employer and after work he would continue to network in an attempt to improve business. Claimant's job involved assisting customers, opening the store, and checking vehicles.

Claimant worked as a manager at multiple automobile and tire stores. He also had work experience operating his own businesses. He ran an auto repair shop, a landscaping business, and a general contracting business. Over his career, Claimant has experience with bookkeeping, inventory control, operating construction equipment, driving forklifts, driving tractor trailers, and service writing.

On July 7, 2011, Claimant was removing a tire from the trunk of a customer's vehicle when he felt a pop in his back. Claimant was diagnosed with a thoracic strain and underwent physical therapy and an epidural steroid injection. At hearing Claimant testified he now has shooting pain from his neck down to his toes. He described severe daily pain of a 9-10/10. He now needs help

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 11-057532

with cooking, lawn care, and chores. He only gets around 3 hours of sleep a night due to his severe back pain. He has to lie down during the day due to back pain. Claimant related his back symptoms to his work injury. Claimant also testified he now considers suicide almost daily.

Prior Injuries and Conditions

In 1984, Claimant injured his right shoulder playing football. He underwent surgical repair. Claimant testified he only had minor difficulties with his right shoulder.

Medical records show Claimant had low back pain since 2007. He was diagnosed with spinal stenosis at L2-3, L3-4, and L4-5. He underwent conservative treatment including medications. Despite having prior low back pain, Claimant testified in addition to working 80-100 hours a week, he was also active in playing pool. He would play up to 40 hours a week. He also traveled across the country playing in tournaments. Claimant testified he was able to travel and play competitive pool without physical problems.

Claimant described awful physical abuse he suffered as a child. Claimant saw a counselor for about 20 years to cope with this abuse. At one point he was given a low dose of psychiatric medication.

Subsequent work injuries

On September 26, 2011, Claimant was unloading over 200 tires from a trailer. While unloading the tires, Claimant experienced an increase in thoracic and lumbar pain. He testified his back symptoms returned to baseline.

On October 1, 2011, Claimant was picking up and stacking tires when he again experienced an increase in thoracic and lumbar pain. Claimant again testified his back symptoms returned to baseline.

Employee did not testify about how these incidents effected his psychiatric condition. These claims were dismissed against the Fund months prior to trial.

OPINION EVIDENCE

Dr. Volarich reviewed medical records and examined Claimant on his behalf on July 17, 2014. He assigned a rating of 25% of the thoracic spine and 5% of the lumbar spine referring to the primary injury. He rated Claimant's prior shoulder at 15%, prior lumbar spine at 35%, and prior thoracic spine at 5%. Dr. Volarich also believed Claimant had psychiatric disability. Dr. Volarich concluded Claimant was permanently totally disabled as a result of his physical and psychiatric disabilities.

Dr. Adam Sky, a board certified psychiatrist, reviewed medical records and examined Claimant on his behalf on October 13, 2014. Dr. Sky diagnosed major depression, anxiety disorder, and post-traumatic stress disorder (PTSD). Dr. Sky testified these diagnoses were caused by Claimant's three accidents at work in 2011. Dr. Sky testified these three accidents resulted in a 50% permanent partial psychiatric disability. He further testified he could not apportion the disability to any one of the three accidents, but instead the disability was a

WC-22-R1 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 11-057532

combination of all three accidents. Dr. Sky also diagnosed 25% permanent partial psychiatric disability that pre-existed the 2011 work accidents.

Dr. Jay Liss, a board certified psychiatrist, reviewed medical records and examined Claimant on his behalf on April 13, 2016. Dr. Liss diagnosed pain syndrome associated with anxiety and depression. Dr. Liss testified this diagnosis was caused by Claimant's three accidents at work in 2011. Dr. Liss testified these three accidents resulted in a 75% permanent partial psychiatric disability. Dr. Liss also diagnosed attention deficit disorder and PTSD which preexisted the three work accidents. Dr. Liss found these preexisting conditions resulted in 25% permanent partial psychiatric disability. Dr. Liss testified Claimant is permanently totally disabled as a result of the three work accidents.

Dr. Marcie Garland, a board certified psychiatrist, reviewed medical records and examined Claimant on behalf of the Employer on February 6, 2017. Dr. Garland diagnosed preexisting PTSD but did not believe Claimant had any psychiatric disability as a result of his work injuries. Dr. Garland testified, after the work accidents, Claimant reported his father put a "hit" out on him. Claimant reported men came to his house to assault him and he had to scare them away. Dr. Garland testified this would have an impact on Claimant's PTSD as there was a constant threat to him which would understandably provoke anxiety. Dr. Garland also testified Employee's psychiatric condition would continually get worse over time.

Dr. Benjamin Crane treated Claimant for his primary injury. Dr. Crane did not believe Claimant suffered any permanent partial disability to his thoracic spine as a result of the primary injury. Further, Dr. Crane believed Claimant was magnifying his symptoms and giving subpar effort, based on a functional capacity evaluation.

James England, a vocational expert, reviewed medical records and examined Claimant on his behalf on March 12, 2015. Mr. England testified that he believed Claimant was likely unemployable in the open labor market due to all of his medical conditions and injuries, as well as Claimant's presentation. When asked if Claimant would be permanently totally disabled as a result of the three work injuries alone, Mr. England testified that he could not be sure and deferred to medical experts.

Karen Kane-Thaler, a vocational expert, reviewed medical records and examined Claimant on behalf of the Employer on June 9, 2017. Ms. Thaler testified she believed Claimant was employable in the open labor market when taking into account all the doctor's restrictions. She identified jobs that Claimant would be qualified for and within his restrictions.

FINDINGS OF FACT AND RULINGS OF LAW

Based upon a comprehensive review of the evidence, the observations of Claimant at the hearing and the application of Missouri law, the Court finds:

Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute, 793 S.W.2d 195 (Mo. App. E.D. 1990) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003)). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contrary evidence. Id. at 199.

WC-32-R1 (6-01)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 11-057532

Permanent total disability is defined as an "inability to return to any employment." Mo. Rev. Stat. § 287.020.7 (2000). Permanent total disability is measured by "a claimant's ability to compete in the open labor market." *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173, 178 (Mo. App. E.D. 1995) (citing *Carron v. Ste. Genevieve School Dist.*, 800 S.W.2d 64, 67 (Mo. App. 1990)). The fact finder must determine whether "any employer in the usual course of business could reasonably be expected to employ claimant in his present physical condition." *Id.*

"In computing permanent and total disability in the situation where claimant suffers from a previous disability, the ALJ or the Commission first determines the degree of disability as a result of the last injury." *Michael v. Treasurer*, 334 S.W.3d 654, 663 (Mo. App. W.D. 2011). "A claimant must establish the extent, or percentage, of the permanent partial disability resulting from the last injury only...." *Lewis v. Treasurer of State*, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014).

It is Claimant's burden to prove "not only causation between the accident and the injury but also that a disability resulted and the extent of such disability." *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 703 (Mo. App. W.D. 1973). A claimant must provide expert testimony where he is asking the court "to discern the percentage of disability attributable to a particular workplace injury where there has been another injury that contributed to the disability." *Bock v. City of Columbia*, 274 S.W.3d 555, 560 (Mo. App. W.D. 2008). Expert testimony is also necessary when the injury is beyond the lay understanding. *Id.* at 561.

The Second Injury Fund compensates injured workers who are permanently and totally disabled by a combination of past disabilities and a primary work injury." *Carkeek v. Treasurer of the State of Missouri, as Custodians of the Second Injury Fund*, 353 S.W.3d 604, 608 (Mo. App. W.D. 2011) (internal quotation and citation omitted). The Fund is a creature of statute, and benefits from the Fund are awarded only if the Claimant proves that under §287.220.1 RSMo., he is entitled to such benefits. To prevail against the Second Injury Fund for permanent total disability, the Employee must show (1) A compensable work injury resulting in permanent partial disability; (2) that at the time of the work injury, employee had a preexisting permanent partial disability of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining re-employment; (3) that the compensable injury and the preexisting permanent partial disability combine together to result in permanent total disability; and (4) that the claim was filed within the statute of limitations. §287.220.1

A claimant has the burden of proving all essential elements of his workers' compensation claim. *Lawrence v. Joplin School Dist.*, 834 S.W.2d 789, 793 (Mo. App. S.D. 1992). While the claimant is not required to prove the elements of his claim on the basis of "absolute certainty," he must at least establish the existence of those elements by "reasonable probability." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo. App. E.D. 1999). "'Probable' means founded on reason and experience which inclines the mind to believe but leaves room for doubt." *Mathia v. Contract Freighters, Inc.*, 929 S.W.2d 271, 277 (Mo. App. S.D. 1996).

For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Roberts v. Mo Highway and Transportation Commission*, 222 S.W.3d 322, 331 (Mo. App. S.D. 2007). Questions regarding medical causation of an injury are issues of fact for the [fact finder] to decide. *Gordon v. City of Ellisville*, 268 S.W.3d 454, 461 (Mo. App. E.D. 2008). The weight to be given the expert's opinion on medical causation is within

WC-32-R1 (6-01)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number 11-057532

the sole discretion of the [fact finder]. *Id.* at 458. The [fact finder] is the sole judge of the weight of evidence and credibility of witnesses. *Id.* The Administrative Law Judge is free to disbelieve the testimony of any witness, even if there is no contrary or impeaching evidence. *ABB Power T&D Company v. Kempker*, 236 S.W.3d 43, 51-52 (Mo.App. W.D. 2007). Thus, the ALJ is free to accept or reject any evidence, including expert evidence. *Id.*

In this case, Claimant alleges he sustained psychiatric disability from the primary injury. The Court finds Claimant is not credible. Claimant has failed to carry his burden to show through clear and convincing evidence how his prior injuries whether physical or psychiatric have ever been a hindrance or obstacle to his employment. Claimant not only worked 80-100 hours a week, but additionally pursued a career in competitive professional billiards.

This court is persuaded Claimant suffered some psychiatric disability as a result of the primary injury. However, both of Claimant's experts attribute psychiatric disability to three different work injuries. Only one injury was the subject of this hearing. Claimant's experts fail to explain the extent of disability attributed to the primary injury alone. Instead, the experts give a single percentage of disability that was a result of all three work injuries. A lay person cannot determine what percentage of psychiatric disability was caused by the primary injury alone considering Claimant had multiple accidents which, according to Claimant's own experts, contributed to psychiatric disability. If Claimant's own experts could not discern the level of disability, certainly a lay person is unable to make such a determination. An expert's testimony is required in order to determine the level of disability associated with these alleged psychiatric injuries. Because Claimant has not provided expert testimony explaining the level of disability associated with the primary injury alone, he has failed to prove the extent of disability associated with the primary injury.

It is therefore impossible to determine the amount of disability associated with the last injury alone. Because the court cannot determine the disability associated with the last injury alone, the 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.

For these reasons, Claimant has failed to meet his burden of proof that the Fund is responsible for his permanent total disability.

WV-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant's claim for Second Injury Fund benefits is denied as to permanent total disability. The evidence does support a finding Claimant is entitled to permanent partial disability benefits.

The credible evidence established the primary thoracic spine injury combined with the preexisting lumbar injury. The Second Injury Fund liability is calculated as follows: 18% of the body as a whole - thoracic spine, with a loading factor of 20% (14.4 weeks), plus 25% of the body as a whole - lumbar spine, with a loading factor of 20% (20 weeks), plus 15% of the right shoulder, with a loading factor of 15% (5.2) equals 39.6 weeks of compensation, at a rate of 425.19, which equals 16,837.52.

Attorney for Mr. Hines, Daniel Keefe, shall be entitled to an attorney fee of 25% of this award.

I certify that on 3-32-18 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.

Date: 3-32-18

Made by:

Marvin O. Teer, Jr.

Administrative Law Judge

Division of Workers' Compensation

By: _my_