Robert Davis v. Walgreens

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No. 13-104740**

**Employee:** Robert L. Davis

**Employer:** Walgreens

**Insurer:** American Zurich 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.¹

The administrative law judge's twenty-eight page award includes the following references to this Commission's decision relating to employee's application for unemployment compensation:

- I find with regard to Claimant's termination, that his subsequent appeal to the Labor [and] Industrial Relations Commission who reversed the Unemployment [sic] Security Administrative Law Judge and found that the Claimant was unjustly terminated is significant. The Court recognizes and takes judicial notice [of] the Labor and Industrial Relations Decision with regards to the reasons for the Claimant's termination being unfounded and not justified.²

¹ Paragraph four on page twenty-one of the administrative law judge's award incorrectly states:

> [T]he courts have explicitly held that the statutory requirement is not applicable to claims of injury by occupational disease. *Endicott v. Display Techs*, 77 S.W.3d 612, 616 (Mo. 2002). Therefore, I must conclude that this claim is not barred by any failure to provide notice to the employer of the employee's injuries. (emphasis added)

Legislative changes to § 287.420, RSMo, enacted in 2005, superseded the Supreme Court's holding in *Endicott*, *supra*. The administrative law judge's award correctly cites and properly applies the current version of § 287.420. The inclusion of the above-quoted statement in the award, apparently the result of administrative error, does not affect our ability to review the administrative law judge's award in this matter.

² Award, pp. 18, 22.

Injury No. 13-104740

Employee: Robert L. Davis

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Section 288.215 of the Missouri Employment Security Law provides, in pertinent part:

1. Any finding of fact, conclusion of law, judgment or order made by an appeals tribunal, the labor and industrial relations commission or any person with the authority to make findings of fact or law in any proceeding under this chapter shall not be conclusive or binding in any separate or subsequent action not brought under this chapter, and shall not be used as evidence in any subsequent or separate action not brought under this chapter, before an arbitrator, commissioner, commission, administrative law judge, judge or court of this state or of the United States, regardless of whether the prior action was between the same or related parties or involved the same facts (emphasis added).

Pursuant to this statutory mandate, we disregard employee's Exhibit UU, admitted without objection at hearing, and disavow the administrative law judge's findings relevant to employee's claim for unemployment benefits.

We consider the administrative law judge's statements regarding the Commission's decision regarding employee's unemployment claim extraneous to her factual findings regarding employee's credibility in describing continuing pain and problems attributable to his physical disabilities and psychological conditions, as well as her ultimate legal conclusions regarding the issues of accident by occupational disease, notice, medical causation of employee's right lateral epicondylitis, right carpal tunnel syndrome, major depression, anxiety and somatic symptom disorder, past medical, temporary total disability, employee's average weekly wage and compensation rate, employer's responsibility for permanent disability, the Second Injury Fund's liability for permanent total disability and employee's entitlement to future medical treatment.

With respect to employer's contention that, pursuant to § 287.120.9, employee's psychological disability did not arise out of and in the course of his employment because it resulted from employer's good faith discharge and is therefore not compensable, we affirm the administrative law judge's finding that:

[T]he Claimant's psychological conditions of somatic pain disorder and severe major depressive disorder [are] proximately and casually related to the occupational diseases that he acquired on a repetitive basis up to and including December 12, 2013, as well as the injury the Claimant sustained to his low back on April 6, 2013 (emphasis added).3

The above revisions to the administrative law judge's award do not detract from her legal reasoning or her correct analysis of the evidence in the record.

3 Id. p. 21.

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 Emily S. Fowler, issued June 12, 2018, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad$ day of August 2019.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member


Attest:


Injury No. 13-104740

Employee: Robert L. Davis

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 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 employee Robert L. Davis sustained no physical disability related to an occupational disease as of December 12, 2013. Employee's separately alleged psychological disability stemmed from employer's good faith discharge action on December 12, 2013. As a result, § 287.120.9 RSMo shields employer from compensability. Employee should be awarded no compensation in connection with this claim.

Employee claims an occupational disease up to and including December 12, 2013, involving his right hand, wrist, elbow, arm, psyche and body as a whole based on daily repetitive work duties including, but not limited to, lifting, gripping, grasping, pulling and loading stock.

Pursuant to his independent medical examination of employee on August 22, 2016, Dr. Joseph F. Galate stated:

> In regards to [employee's alleged] right arm and hand pain, I do not have any direct evidence that his employment was the direct cause of him developing lateral epicondylitis nor mild carpal tunnel syndrome on the right. I did not find any particular injuries or trauma that was the prevailing factor in the patient developing either one of those conditions. Patient complains of intermittent symptoms in his right lateral elbow and his fingers and sometimes his thumb [but] has not followed up with Dr. Humphrey in regards to these issues.

In addition, Dr. Alexander Bailey, pursuant to his independent medical examination on April 6, 2013, stated:

> I am highly concerned about the patient's clinical presentation of being Waddell's positive and exaggerated pain behaviors and nonorganic pain behaviors.

At this time, based on causal relationship, I see no reason to limit the patient's overall work function as it relates to a work injury of 04/06/2013 or a repetitive use injury while employed at Walgreen's. I believe from a work-related condition standpoint the patient may work a regular physical demand level. If there are any self-perceived limitations, they are related to his degenerative condition and personal medical in deference to a work-related condition [and or] injury while employed at Walgreen's. . . . he can work a

*Transcript, 1417.*

Injury No. 13-104740

Employee: Robert L. Davis

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regular duty status and if there are any limitations they are personal in nature.

Using all available information including x-rays, MRIs and physical examination, ...I have no definitive clinical information to identify this patient to have sustained a work injury of 04/06/2013 or a repetitive use injury as it relates to his employment at Walgreen's. There are simply no clinical facts that can definitively state that this is a work injury either from an acute basis or a repetitive use issue basis (emphasis added).5

The majority allows nearly two years of past temporary total compensation benefits for employee's upper extremity complaints, although employee's treating physicians never stated employee was incapable of working during this period. Furthermore, in claiming unemployment benefits from December 14, 2013, though April 26, 2014, employee necessarily represented during that time that he was able and available to work.

The majority assesses 25% permanent partial disability for psychological disability resulting from depression and somatic pain disorder associated with his alleged occupational disease of December 12, 2013.

In its decision relating to employee's companion claim in Injury No. 13-104631, the majority found that employee sustained 5% permanent partial disability to the body as a whole due to the psychological impact of his alleged April 6, 2013, work injury.

The majority assesses psychological disability in both cases based exclusively on the opinion of psychologist Dr. James Jackson. Dr. Jackson's objectivity is suspect because Dr. Koprivica considers Dr. Jackson to be his employee. Dr. Jackson conceded approximately 40% to 50% of his practice involves referrals from either Dr. Koprivica or attorneys who have consulted Dr. Koprivica.

In estimating employee's work-related psychological disability, Dr. Jackson assessed 20% of the body as a whole for depression that developed following employee's separation from employment with employer. Dr. Jackson identified a number of "stressors," including loss of income and loss of self-esteem that related to employee's discharge. On cross-examination, however, Dr. Jackson was unable to specifically identify what portion of employee's depression was attributable to his employment separation. When a medical condition results from one of two causes, only one of which would be employer's responsibility, the burden of proof has not been met. Griggs v. AB Chance, 503 S.W.2d 697 (Mo. App. 1973).

Section 287.120.9 RSMo provides "A mental injury is not considered to arise out of and in the course of an employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination, or any similar action taken in good faith by the employer (emphasis added)."

5 Transcript, 1408.

Injury No. 13-104740

Employee: Robert L. Davis

- 3 -

Absolutely no competent evidence supports a finding that employer's December 12, 2013, discharge, prompted by complaints of harassment by coworkers, and taken only after progressive discipline, was in bad faith. Pursuant to § 287.120.9, psychological disability arising from an employer's good faith termination is not compensable. The employee herein is entitled to no compensation for his alleged work-related psychological disability.

**Subjective v. Objective Findings**

Section 287.190.6(2) provides that, in determining issues of compensability and disability, where inconsistent or conflicting medical opinion exists, "objective medical findings shall prevail over subjective medical findings."

Dr. Koprivica conceded that employee's physical complaints were out of line with his objective presentation and assessed disability based entirely on employee's subjective complaints. Employee's vocational expert Terry Cordray relied on Dr. Koprivica's work restrictions based on employee's subjective complaints in forming his conclusions regarding employee's inability to access the open labor market.

Employer's expert Dr. Alexander Bailey found no objective evidence of a neurological deficit or nerve impingement beyond employee's subjective complaints. Dr. Bailey interpreted employee's MRI results, an objective test, as consistent with degenerative disc disease, a condition that affects both working and non-working populations. Dr. Bailey found no evidence of any acute injuries traceable to employee's alleged April 6, 2013 injury, assigned zero disability relative to the alleged work event and opined that employee could return to his regular work activity level.

Given the statutory mandate requiring that objective findings must prevail over subjective medical findings, the conclusions of employer's experts Dr. Galate and Dr. Bailey must prevail on the issue of the nature and extent of employee's disability relative to his alleged April 6, 2013, injury as well as his claim for occupational disease in this appeal.

**Conclusion**

An employee has the burden of proving all essential elements of his case. *Thorsen v. Sach's Electric Company*, 52 S.W.3d 611 (Mo. App. 2001). In companion appeal relating to Injury No. 13-104631, employee failed to establish the essential element of accident and did not provide the required written notice of his injury to employer. On the issue of medical causation, employee produced no objective evidence of permanent physical disability attributable to a work accident. In this case, employee has failed to prove that occupational exposure was the prevailing factor in causing disability due to an occupational disease. To the extent that employee claims psychological injury in both cases, employee's own experts acknowledge that employee's depression and alleged somatic condition is causally related, at least in part, to employer's discharge. Employer's decision to discharge employee, prompted by employee's poor judgment and inappropriate workplace conduct, was entirely reasonable. Employer's disciplinary action,

Injury No. 13-104740

Employee: Robert L. Davis

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consistent with its progressive discipline policy, was clearly in good faith. Under these circumstances, employee's psychological disability is not compensable. § 287.120.9.

In sum, the competent and substantial evidence in the record does not support the majority's conclusion that employee is permanently and totally disabled as a result of a combination of preexisting, industrially disabling conditions with physical and psychological injuries attributable to this claim. All experts produced in this case recognized employee's symptom magnification. Such conduct demonstrates a lack of credibility and should not be the basis for an award of permanent total disability benefits.

For all of these reasons, I would deny employee's claim for benefits. I respectfully dissent from the majority's decision finding otherwise.

Reid K. Forrester, Member

Employee: Robert L. Davis

Injury No. 13-104740

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

Employer: Walgreens

Insurer: American Zurich Insurance Co.

c/o Sedgwick CMS

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

Hearing Date: March 7, 2018

Checked by: ESF/1h

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: Up to \& Incl. December 12, 2013 (last day of employment)
5. State location where accident occurred or occupational disease was contracted: Lee's Summit, Jackson County, Missouri
6. Was above Employee in 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 the 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 sustained an accident or series of accidents or occupational disease as the result of his daily repetitive work duties including, but not limited to, lifting, gripping, grasping, pulling and unloading stock.
12. Did accident or occupational disease cause death? No. Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: right hand, right wrist, right elbow, right arm and psyche.
2. Nature and extent of any permanent disability: N/A
3. Compensation paid to date for temporary disability: 0
4. Value necessary medical aid paid to date by employer/insurer? 0
5. Value necessary medical aid not furnished by employer/insurer? $\ 27,581.79
6. Employee's average weekly wages: $\ 1,114.11
7. Weekly compensation rate: $\$ 742.74 / \ 446.85
8. Method wages computation: By evidence

1. Amount of compensation payable: Employer shall pay to Claimant 20 % permanent partial disability of the right hand at the level of the wrist or the 175 -week level as well as a separate 20 % permanent partial disability of the right upper extremity at the level of the elbow at the 210 -week level and 25 % permanent partial disability to the body as a whole for the psychological disability for the primary injury of December 12, 2013, for a total of 177 weeks of disability at $\ 446.85 per week totaling $\ 79,092.45 for permanent partial disability.

Employer shall also pay to employee the sum of $\ 49,020.84 as and for temporary total disability benefits of 66 weeks.

Employer to pay to Claimant the sum of $\ 27,581.79 as and for unpaid medical bills incurred by Claimant for treatment of injuries incurred on December 12, 2013.

1. Second Injury Liability: Permanent total disability benefits are awarded against the Second Injury Fund which shall begin on August 1, 2015 at a rate of $\ 742.74. The Second Injury Fund shall be given a credit of $\ 446.85 per week for 177 weeks and thereafter pay to Claimant the sum of $\ 742.74 for as long as Claimant remains permanently total disabled.
2. Future requirements awarded: Employer/Insurer are ordered to provide medical treatment necessary to cure and relieve Claimant from the cumulative injuries sustained to his right hand, right wrist, right elbow, right arm and psyche.

The compensation awarded to the Claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of William C. Spooner, Claimant's attorney, for necessary legal services rendered.

Employee: Robert L. Davis

Injury No. 13-104740

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

Employer: Walgreens

Insurer: American Zurich Insurance Co.

c/o Sedgwick CMS

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

Hearing Date: March 7, 2018

Checked by: ESF/1h

On March 7, 2018, the parties appeared for a Final Hearing. The Claimant, Robert L. Davis, appeared in person and with counsel, William C. Spooner. The Employer/Insurer appeared through counsel, Thomas V. Clinkenbeard. The Second Injury Fund appeared through counsel, Alexandra Alpough.

Prior to the Hearing, the parties stipulated to the following:

1) Up to and including December 12, 2013, last day of employment ("the injury date"), Robert L. Davis was an employee of Walgreens and working subject to the Missouri Workers' Compensation Law;

2) The Employer, Walgreens, was an employer operating under and subject to the provisions of Missouri Workers' Compensation Law on December 12, 2013, and its liability was fully insured by American Zurich Insurance Co. c/o Sedgwick CMS;

3) The Missouri Division of Workers' Compensation has jurisdiction to hear this claim and that venue is proper in Kansas City, Missouri;

4) A Claim for Compensation was filed within the time prescribed by law;

5) Employer provided no medical care or temporary total disability;

The parties requested the Division to determine the following issues:

1. Whether Claimant sustained an occupational disease arising out of and in the course and scope of his employment with Employer.
2. Whether Claimant's injuries and continuing complaints, as well as any resultant disability are medically causally connected to his alleged occupational disease at work leading up to and including December 12, 2013.
3. Whether Claimant provided proper notice of the injury under Statute 287.420.
4. Whether Employer is responsible for payment of past medical benefits.
5. Whether the Claimant is entitled to future medical care.
6. What is the Claimant's average weekly wage and corresponding compensation rates.
7. Whether the Claimant is entitled to payment of temporary total disability benefits.
8. Whether Claimant suffered any disability and the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury.
9. Whether the Second Injury Fund is liable to Claimant for any disability.

The Employee, Robert L. Davis, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Robert L. Davis

The Employer/Insurer offered the following exhibits all of which were admitted into evidence without objection but offered no witnesses:

1. Rating Report of Dr. Bailey

The Second Injury Fund did not offer any exhibits or witnesses.

Based on the above exhibits and the testimony of the Claimant, Robert L. Davis, this Court makes the following findings:

Claimant is a 54-year old man (at time of Hearing) who had worked most of his adult life in the retail industry providing managerial services. Claimant completed the eleventh grade of formal education and completed his GED in 1992. Claimant served in the Army National Guard from September 5, 1982, until relieved of his duties with an Honorable Discharge on December 13, 1988.

Claimant's relevant work history began in the mid-1980's working for several retail establishments starting at Quik Trip as a manager for the night shift. After leaving Quik Trip, Claimant work for several other retail establishments in managerial positions, including Shop 'N Go, Blockbuster Video, Hollywood Video, 7-Eleven, Phar-Mor, Paper Warehouse, and Drug Emporium.

Claimant began his employment with Walgreens ("Employer") in April of 1999, and was employed until his termination on December 12, 2013. Claimant testified that his work duties for Walgreens were daily, numerous and required significant physical capability. His daily work activities included numerous repetitive daily job tasks. The majority of his day consisted of 90% standing and walking of an 8-12 hour day. He did a lot of bending and squatting while putting product on and off the shelves. He did overhead lifting of products and climbing up and down ladders. He did the stocking, organizing and cleaning of the stockroom. He received product from approximately 10-20 outside vendors a day which consisted of receiving the product and then stocking it to shelves. This included lifting and handling boxes of wine, beer, soda pop and frozen foods among others. He walked around the store daily checking and ordering product. He did the ordering from the warehouse for the whole store, including the cosmetic and pharmacy departments, and also the front-end departments, including cigarettes and tobacco. He assisted the customers. He walked the store daily and made a list of things that needed to be done and could be accomplished that day, along with other duties that had to be done daily; i.e., picking up trash on the outside, sweeping and mopping the floor, facing and straightening the product on the shelves, pulling the stockroom and stocking the floor with product. He did the resetting and revising, which included moving and deleting old discontinued product and adding new product from a 3-feet set up to a 32-feet set up; i.e., taking all product off the shelves, cleaning of the shelves and putting the product back on to the shelves. He had to maintain the Swiss program (store within a store), which was an added responsibility for the Executive Assistant Manager or Assistant Store Manager and included all edible and frozen items, grocery product, cooler items, dairy and tobacco products. This involved maintaining and achieving a constant increase of sales.

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Injury No. 13-104740

and profit, stocking, ordering, cleaning, straightening, pulling out-of-date product daily, constantly going in and out of the cooler and freezer, bending, stooping and lifting. He would unload warehouse trucks weekly with anywhere from 500-1,000 pieces, totes, boxes, etc. and return the empty totes to truck. The totes weighed from 10 pounds to excess of 75 pounds depending on what was in them. He had to lift and stack the totes when full anywhere from 5-8 feet high to 10 feet due to lack of room in the warehouses, and also stacked the boxes as high as they could get them. Claimant would then have to load the stacked totes back onto the truck. He separated the totes and boxes into departments and then used the dolly to take the product out to the specific departments on the sales floor. He also did the maintaining of the seasonal aisle, including ordering, straightening, stocking and cleaning.

Claimant sustained a left ankle injury while playing basketball in 2004. Claimant testified that he heard a pop. Claimant received medical attention the following day consisting of an x-ray. Claimant testified that it was a little swollen, so he put a brace on it and took some time off work. Subsequently, in 2005, while working at Walgreens, Claimant was coming down off a ladder and felt a pop and sustained a torn left Achilles. Claimant sought medical treatment and was seen by Dr. Worsing on November 28, 2005 and underwent a left Achilles repair in December 2005. Claimant continued to have ongoing symptoms from the left Achilles despite the repair. Claimant relates a hindrance from work as it did not allow him the opportunity to self-direct his standing and walking activities. In addition, Claimant was limited in tolerances of climbing tasks such as work on ladders on a permanent ongoing basis.

Claimant sustained injury to his left shoulder in which a claim was filed on July 21, 2006. Claimant was seen by Dr. Robert Pierron on August 26, 2009, and believed this injury was the result of his physical activities of his work, including stocking and loading, and have caused worsening of his symptoms of the left shoulder. Dr. Robert Pierron recommended subacromial decompression of the left shoulder for chronic impingement. Claimant underwent arthroscopic subacromial decompression of the left shoulder performed by Dr. Pierron on October 27, 2009. Claimant's left shoulder continued to hinder his work regarding overhead tasks and had ongoing reduced strength and motion and pain that limited him at work. Claimant accommodated for his left shoulder impairment. A compromise settlement was reached with regard to Claimant's left shoulder claim on June 2, 2010 wherein Claimant settled for 0 % permanent partial disability to the shoulder and $\ 1,000.00. Claimant was unrepresented in that case.

Claimant was involved in a car accident and contacted Dr. Joyce Simon's office on May 20, 2011, requesting an appointment for complaints of neck and back pain. Claimant was seen by Dr. Joyce Simon on December 13, 2011, with complaints of low back and right buttock pain. Claimant was given a prescription for Tramadol, Naprosyn, Flexeril and Lisinopril. Claimant was seen by Dr. Joyce Simon on June 13, 2012, after a motor-vehicle accident with complaints of continued low back pain, but the medications did help. Claimant advised that the Trazodone was

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

too strong, so he spread out the dosage. Claimant did not return to a doctor for the next year and a half.

On April 6, 2013, Claimant sustained an injury to his back while unloading warehouse trucks. Claimant was seen by Dr. Mitzi Groves on April 6, 2013, with complaints of low back and right knee pain symptoms for several months. Claimant reported he worked in retail and lifted a lot of boxes at work. Claimant complained of sharp low back pain that extended down the right leg to the knee. Claimant was diagnosed with right lumbar radiculopathy and right leg weakness. Claimant was given a prescription for Hydrocodone and an MRI scan of the lumbar spine and physical therapy was ordered. Claimant was instructed by Dr. Joyce Simon to continue the Tramadol and Naprosyn. Claimant was seen by Dr. Joyce Simon for follow-up on April 23, 2013, regarding low back pain. MRI scan of the lumbar spine revealed a focal left foraminal disc protrusion and a focal annular tear at L4-L5. Claimant was diagnosed with lumbar radiculopathy. Dr. Joyce Simon continued to follow the Claimant and noted ongoing chronic pain complaints through April and May of 2015. Dr. Joyce Simon recommended psychotherapy and continued psychotropic medications and referred the Claimant to Psychiatrist, Dr. Michael Little. Dr. Michael Little diagnosed depression, as well as somatic pain disorder and treated the Claimant for the next year. Claimant's treatment for his low back injury, as well as depression was terminated due to the Claimant's lack of insurance. Claimant continues to have ongoing low back, and right and left leg pain, as well as ongoing mental health disability.

HISTORY OF OCCUPATIONAL DISEASE AND INJURY UP TO AND INCLUDING DECEMBER 12, 2013

Right Elbow, Right Wrist and Psyche

Claimant claims an occupational disease and injury up to and including December 12, 2013, as the result of the repetitive nature of his job duties, including lots of lifting and unloading of trucks. Claimant continued to be exposed to upper extremity use activities and low back activities up through the last date of employment on December 12, 2013.

Prior to the Claimant's last day of work, he was first seen by Dr. Joyce Simon on October 2, 2013, with complaints of right elbow pain and burning increasing over the past six months. Claimant reported that he had been unloading trucks and a lot of increased lifting at work. Claimant had pain around the lateral epicondyles that radiated down to the right wrist, as well as increased pain with gripping. Claimant was given a refill on the Naprosyn and Flexeril to help with the right elbow and low back pain. Claimant was next seen by Matthew Scheidenhelm, PAC on October 23, 2013, for evaluation of his right elbow pain which extended into the right shoulder. Claimant reported he had to unload trucks and lift heavy items. Claimant complained of numbness and tingling in his right hand and was having a difficult time sleeping. Claimant was diagnosed with right lateral epicondylitis and possible right carpal tunnel syndrome and a right upper extremity EMG was recommended. Claimant was given a cortisone injection to the right elbow. These examinations occurred prior to December 12, 2013, or the Claimant's last day of work.

Claimant was next seen by Dr. Laura Reilly for consultation on March 25, 2014, regarding the right upper extremity EMG. Claimant reported complaints of numbness and tingling in the medial aspect of the right elbow and wrist. It was noted in Dr. Laura Reilly's medical record that

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

Claimant had worked in retail for 28 years and has done a lot of lifting. Claimant's symptoms were aggravated by driving, typing, sleeping, lifting, writing and squeezing. Claimant had a positive Tinel's sign over the Guyon's canal. Claimant was diagnosed with possible radial tunnel pain, right carpal tunnel syndrome, and minimal Guyon's canal compression of the right ulnar nerve. Claimant was given a prescription for Voltaren cream.

Claimant was then seen by Dr. Robert Pierron for follow-up regarding his right elbow pain. Claimant reported complaints of numbness and tingling in the right wrist and hand. Claimant was diagnosed with right elbow pain, carpal tunnel syndrome and low back pain. Claimant was seen by Dr. Joyce Simon on April 29, 2014, for follow-up and was diagnosed with right lateral epicondylitis and low back pain.

Dr. Lan Knoff saw claimant on June 9, 2014, for pain consultation regarding chronic pain. Claimant reported complaints of chronic pain syndrome, low back pain and right arm pain. Claimant stated the pain radiated down his left lower extremity and complained of numbness and tingling down the left leg. Claimant stated that medication helped some of the symptoms; however, stated that prolonged sitting, standing and carrying aggravated his pain. Treatment in the past included NSAIDS, therapy, heat, ice, Tramadol and injections. Claimant reported he previously had an injection in his elbow and low back. Claimant was diagnosed by Dr. Lan Knoff with chronic low back pain, annular tear of lumbar disc, carpal tunnel syndrome and left lumbar radiculitis. Claimant was instructed to continue with Naprosyn, Tramadol and Flexeril, and a prescription was given for Topamax. In addition, a lumbar epidural steroid injection was recommended.

Claimant was seen by Dr. Lan Knoff on October 16, 2014, for follow-up for management of chronic pain syndrome, low back pain radiating down the left lower extremity and right arm pain from the shoulder to the fingers. Claimant complained of continued constant burning and stabbing low back pain extending down the left side. Claimant also complained of right arm pain, which included the shoulder to his hand. Dr. Lan Knoff noted there was pain to palpation over the right elbow, wrist and low back. Claimant was diagnosed with chronic use of opioids, left lumbar radiculitis, annular tear and chronic low back pain. Claimant was instructed to continue with Naprosyn, Prilosec, Topiramate and Tramadol. Dr. Joyce Simon provided the prescription.

Claimant was seen by Dr. Joyce Simon on October 28, 2014, and was diagnosed with chronic back pain, right lateral epicondylitis and moderate severe depression. Claimant reported being depressed. Claimant reported that he is always in pain of some kind. Claimant was given a prescription for Losartan Potassium, Hydrochlorothiazide, Tramadol, Prilosec, Naprosyn and Wellbutrin. Claimant was given a Fluzone injection.

Claimant was next seen by Dr. Robert Pierron on November 21, 2014, regarding the right lateral epicondylitis. Claimant complained of pain on the lateral aspect of his right elbow and had pain across the right hand and wrist extending towards the radial side of the forearm. A previous EMG of the right upper extremity showed median and ulnar nerve compression neuropathy. Claimant was diagnosed with right lateral epicondylitis and given a cortisone injection to the right lateral epicondyle area. Claimant was given recommendations for referral to a hand specialist and Dr. Justin Davis, a neurosurgeon, regarding the cervical and lumbar spine.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

Claimant was seen by Dr. Joyce Simon on December 2, 2014, for follow-up regarding depression. Dr. Joyce Simon's assessments were that of chronic low back pain and depression.

On his own, the Claimant filed a Claim for Compensation on February 10, 2015. This Claim for Compensation was not answered by the Employer/Insurer. Thereafter, on March 11, 2015, the Claimant sent a 23-page fax to Margaret Scott, the Sedgwick Claims Representative. This fax contained a letter from Dr. Joyce Simon dated December 9, 2014, indicating that the Claimant had back pain for a considerable amount of time and that it was severe in nature. Dr. Joyce Simon relates the Claimant's low back problems to his work activities of heavy lifting at this job. Page 4 of the 23-page fax, Claimant also included progress notes from Laura Reilly, M.D. dated March 25, 2014, which included her diagnosis of carpal tunnel syndrome and elbow pain, as well as a description of work relatedness, and a summary of his current problems with his right wrist and right elbow and her recommendation of a needle EMG. In addition, there were various other medical records from College Park Family Care Center, including medical records that documented chronic low back pain, an annular tear of a lumbar disc, carpal tunnel syndrome, left lumbar radiculitis and elbow pain. In addition, Claimant included a 2014 summary from his insurance company with regards to the medical treatment he had received. Claimant testified that the adjuster, Margaret Scott, did not respond to his Claim for Compensation nor direct him for medical care nor schedule him with a doctor and told him that his claim was denied. Thereafter, on March 17, 2015, a formal Claim for Compensation was filed by attorney, William C. Spooner, with regards to both the April 6, 2013, claim as well as the December 12, 2013 claim. In the Claim for Compensation, Attorney Spooner requested medical care be provided that would be reasonably anticipated to cure or relieve the Claimant from the effects of these injuries. An Answer to this Claim for Compensation was filed on March 30, 2015. The Claimant was not directed for medical care by the Employer to any doctor until approximately a year later on April 12, 2016, when the Claimant was examined by Dr. Alexander Bailey.

Claimant continued to treat with Dr. Lan Knoff for follow-up on April 2, 2015, regarding management of chronic pain syndrome.

Claimant was seen by Dr. Joyce for follow-up on May 26, 2015, with regard to depression. Claimant was previously suicidal and it was recommended that he go to a psychiatric facility due to suicidal thoughts. Claimant refused and stated that he was not suicidal.

Claimant underwent right carpal tunnel release and right tennis elbow release on July 16, 2015, and was seen by Matthew Scheidenhelm, PA, on July 24, 2015, for follow-up. Claimant reported that he has taken up to eight pain medications daily for the pain that he is experiencing in his elbow. Claimant also reported that he is in a constant state of discombobulation as he suffers from depression. Claimant continued treatment with Dr. Lan Knoff, Dr. Little and Dr. Simon through November 2015.

Claimant was then unable to seek treatment for approximately two years due to outstanding balances and treatment was discontinued after he could not afford the copay. Claimant had been using his wife's insurance, but that ended when they divorced. On December 19, 2017, Claimant was seen by Lisa M. Sinkler, APRN to re-establish his care. Claimant presented with complaints of worsening depression as he was off of the Lexapro for the past year and requested to be put back on it. Claimant stated that he is unable to exercise due to his back pain and was scheduled to see Dr. Lan Knoff to re-establish care for his chronic back pain.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

Claimant was seen by Lisa M. Sinkler, APRN for follow-up on January 2, 2018, with regard to major depression. Claimant was given a refill for Lexapro.

Dr. Lan Knoff saw claimant for follow-up on January 18, 2018, with regard to back pain and chronic pain disorder. Claimant's previous last visit with Dr. Lan Knoff was on November 30, 2015, for management of chronic pain syndrome, low back pain radiating down the left lower extremity and right arm pain from the shoulder to the fingers. Claimant reported that he had continued to have the same pain issues. Claimant reported the pain was constant, but varied in intensity, burning, stabbing, aching and needles. Claimant was given prescriptions of Etodolac and Topiramate. Dr. Lan Knoff discussed with Claimant the expectation for chronic pain management to help maintain function and improve his overall wellbeing. Claimant was advised to participate in the care and that Dr. Lan Knoff would guide the management to achieve this goal.

CLAIMANT'S CURRENT COMPLAINTS

The Claimant testified about multiple complaints regarding the physical impairments that are attributable to the primary injury on December 12, 2013. He continues to experience ongoing and progressive significant right elbow and right wrist pain. Although, he did experience relief after right carpal tunnel and right tennis elbow surgery, the relief was only temporary.

The Claimant testified that he continues to experience constant pain in his right hand and uses a TENS unit on his hand three to four times a week to help alleviate the pain. More specifically, the Claimant testified he experiences pain and weakness in his right hand with daily activities. His right hand hurts when he lies on it and while bending it throughout the day, his right hand will tighten up. He loses feeling in his right hand and it gets weak, numb and tender. He has limited motion in his right hand and he is unable to hold or lift even a cup/glass of water without pain. It is also difficult for him to button or zip his clothing while getting dressed and it also takes quite a bit longer to do this task. He has to take his left hand and massage his right hand and wrist through the day. He still experiences numbness and tingling sensations from his fingers to his elbow at times. It is painful for him while gripping, squeezing and grasping. In addition, Claimant testified that he continues to have depression and anxiety.

Claimant testified that he will alternate sitting, standing and lying down throughout the day. He also walks around his house a little and then back to the routine; i.e., standing, sitting and lying down. In an effort to not elevate his pain through the day, he maintains his prescriptions and takes them as prescribed when he has them. When he has been unable to afford the medications, he would take over-the-counter medications like Aleve, Tylenol, Aspirin, etc., anything to try and give him some relief. Even when he has all of his medications and takes them, his pain still never completely goes away and he still has to maintain his routine staying mobile to keep the pain in check. He does not like to drive any longer than 10-15 minutes anymore. Each day he is finding it more difficult to maintain simple daily functions. He is getting worse and is in fear of doing more and more damage to his back and whole body. Claimant also testified that his depression is deepening. He has had thoughts of suicide. His sister and his son do the majority of his shopping. He does not eat right or get enough exercise due to his pain. He is having excessive weight gain due to being in constant pain and having to eat when he takes his medications.

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Employee: Robert L. Davis

Injury No. 13-104740

Claimant testified that he continues to have ongoing left shoulder pain and it feels like needles and sharp pain, stabbing at times daily, and while dressing and undressing. He is unable to lie on his left shoulder for over an hour without it hurting. He cannot lift 10 pounds over his head without pain. It is painful when raising it over his head and out to the side repetitively. He uses a TENS unit on his left shoulder approximately 3-4 times a week.

Claimant testified that he has pain in his left Achilles when standing and walking on it. The pain radiates up from it to the calf and is a shooting pain that comes and goes from seconds to minutes multiple times daily. He uses the TENS unit on his left ankle approximately 3-4 times a week. After about 30 minutes of standing or walking a block or up and down the stairs, he uses a heat pad and ice to help alleviate the pain.

TESTIMONY OF DR. P. BRENT KOPRIVICA

Report of November 17, 2015, Addendum Report of December 1, 2016, and Deposition of February 24, 2017

On November 17, 2015, Dr. P. Brent Koprivica performed an independent medical examination of Claimant with regard to an alleged injury to the Claimant's back on April 6, 2013, and a repetitive injury to the Claimant's right elbow, right wrist and right hand each and every day worked up to and including December 12, 2013.

According to Dr. P. Brent Koprivica, he recorded that the Claimant had pre-existent industrial disability of significance. First, Claimant sustained injury to his left Achilles and was seen by Dr. Robert Worsing, orthopedic surgeon, on November 28, 2005. Claimant underwent a left Achilles repair in December of 2005. As to industrial disability issues, Dr. Robert Worsing noted ongoing symptoms from the left Achilles despite the repair. Claimant related hindrance from work that did not allow him the opportunity to self-direct standing and walking activities. Claimant stated to Dr. P. Brent Koprivica that he was limited in tolerances of climbing tasks such as work on ladders on a permanent ongoing basis due to the left Achilles injury. It was Dr. P. Brent Koprivica's opinion that Claimant did have significant pre-existent industrial disability based on the history of open left Achilles repair. Dr. P. Brent Koprivica assigned 25% permanent partial disability of the left lower extremity above the ankle (155-week level). Due to the pre-existent industrial disability, Dr. P. Brent Koprivica opined that the Claimant should avoid excessive climbing activities and would represent a pre-existent restriction.

Dr. Robert Pierron performed a subacromial decompression on the left shoulder for chronic impingement. Claimant underwent arthroscopic subacromial decompression on October 27, 2009, performed by Dr. Robert Pierron. Claimant stated that his left shoulder continued to hinder his work with regard to overhead tasks and had ongoing reduced strength and motion. Claimant did accommodate for the left shoulder impairment. It was Dr. P. Brent Koprivica's opinion that Claimant did have significant pre-existent industrial disability based on the history of the subacromial decompression of the left shoulder and that Claimant had subjective physical impairment. There was also evidence of a partial rotator cuff injury. Dr. P. Brent Koprivica assigned 25% permanent partial disability of the left upper extremity at the shoulder (232-week level). It is noted by this Court that Claimant settled this claim in 2010 unrepresented for 0% disability and for $1,000.00. This Court finds it improbable that after arthroscopic subacromial decompression of the left shoulder there would be absolutely no disability. Further, there is no

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evidence to the contrary presented herein. Therefore this Court finds that Dr. Koprivica's determination of 25% permanent partial disability of the left upper extremity at the shoulder is appropriate herein. Due to this pre-existent industrial disability, Dr. P. Brent Koprivica opined that Claimant should be restricted from work activities requiring repetitive or sustained activities above shoulder girdle level on the left and should avoid repetitive pushing or pulling activities at chest level on the left.

April 6, 2013 Injury

Dr. P. Brent Koprivica determined Claimant sustained an acute injury during his employment with Walgreens when he was lifting a stack of totes to put onto a truck and his back popped and was followed by immediate, new severe pain in the low back area. Claimant stated he had pain radiating from his buttocks down his posterior leg that was right-sided. Dr. P. Brent Koprivica opined that the Claimant's work injury on April 6, 2013, is felt to represent the direct, proximate and prevailing factor in Claimant's injury to the lumbar region, and that Claimant suffered a chronic lumbosacral strain/sprain injury that included an annular tear as a component of that injury. Based upon the objective physical impairment with regard to Claimant's lumbar injury of April 6, 2013, Dr. P. Brent Koprivica assigned 15% permanent partial disability to the body as a whole. In addition, separate from the 15% permanent partial disability to the body as a whole for the April 6, 2013 injury based on physical impairment, it is Dr. P. Brent Koprivica's opinion that there may be additional disability apportioned by a mental health care expert. Dr. Koprivica deferred those issues to a mental health care expert as to validation of Claimant's presentation of disability. Dr. P. Brent Koprivica opined that any additional psychological disability apportioned by the mental health care expert as a causal consequence of the April 6, 2013 injury be combined with the 15% permanent partial disability to the body as a whole that he assigned to the April 6, 2013 injury. It was Dr. P. Brent Koprivica's opinion that the nature of Claimant's April 6, 2013 injury is not one that results in total disability when considered in isolation. It is Dr. P. Brent Koprivica's opinion that Claimant should follow the restrictions: avoid frequent or constant bending at the waist, pushing, pulling or twisting; avoid sustained or awkward postures of the lumbar spine; avoid whole body vibration exposure or jarring; avoid frequent or constant lifting or carrying tasks; avoid frequent or constant squatting, crawling, kneeling or climbing tasks; and in general, with the findings noted, Claimant should be limited to occasional lifting or carrying of 50 pounds or less as a maximum. This Court has determined that Claimant suffered a 7.5% permanent partial disability to the body as a whole due to his back as well as a 5% permanent partial disability to the body as a whole for his psychiatric injury for a total of 12.5% permanent partial disability to the body as a whole pursuant to this Court's award in injury # 13-104631.

December 12, 2013 Injury

Claimant alleges occupational cumulative injuries to his right upper extremity including, but not limited to, the right hand, right wrist, right elbow and right arm as the result of his repetitive hand use activities required in his employment up to and including his last date of employment on December 12, 2013, when terminated by Employer. Dr. P. Brent Koprivica opined that the Claimant's cumulative work injury of December 12, 2013, represents the direct, proximate and prevailing factor in Claimant's injury to his right elbow. Dr. P. Brent Koprivica opined that Claimant's development of right carpal tunnel syndrome and subsequent development of right lateral epicondylitis is due to Claimant's exposure to risk in upper extremity use activities in his employment. It was Dr. P. Brent Koprivica's opinion that Claimant's presentation physically was exaggerated regarding the objective physical impairment attributable to the right lateral

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epicondylitis and right carpal tunnel syndrome, and recommended validation of the disability presentation by a mental health care expert in terms of the behavioral response. For this cumulative injury of December 12, 2013, Dr. P. Brent Koprivica apportions 20% permanent partial disability of the right hand at the level of the wrist (175-week level), as well as a separate 20% permanent partial disability of the right upper extremity at the level of the elbow (210-week level). In addition, Dr. P. Brent Koprivica also stated that Claimant's presentation of disability is much greater than the apportioned disabilities he assigned regarding the right upper extremity and would be based upon the psychological contribution to the disability presentation. It is Dr. P. Brent Koprivica's opinion that Claimant should follow restrictions with regard to the right carpal tunnel syndrome: avoid work activities requiring repetitive pinching, grasping, and wrist flexion/extension or ulnar deviation of the wrist; avoid repetitive wrist dorsiflexion against resistance based on the right lateral epicondylitis and the outcome of care and treatment; and avoid exposing his right upper extremity to vibration, such as operating air-driven tools as seen in certain assembly tasks. It is Dr. P. Brent Koprivica's opinion that the nature of Claimant's December 12, 2013 occupational claim is not one that results in total disability when considered in isolation. Dr. P. Brent Koprivica opines that the levels of disability attributable to the objective physical impairments with which Claimant presented, pre-dating April 6, 2013 and attributable to both the April 6, 2013 and December 12, 2013 injury dates, are of the type that they combine with each other and result in enhanced disability above the simple arithmetic sum of the separate disabilities.

In conclusion, after looking at Claimant's presentation during his 2015 examination, Dr. Koprivica opined that Claimant's physical and psychological impairments in isolation were not of such severity that Claimant was permanently and totally disabled based on the occupational disease claim of December 12, 2013 alone.

EXPERT SUMMARIES

Dr. James O. Jackson

On July 6, 2016 and July 7, 2016, psychologist, Dr. James O. Jackson, examined Claimant, for a psychological evaluation for the purpose of assessing the current status of his psychological functioning and to determine if and how his current psychological functioning related to the April 6, 2013 injury, and the December 12, 2013 injury and premorbid adjustment. Dr. James Jackson's opinion was that the psychological sequela of Claimant's injuries on April 6, 2013, and multiple occupational injuries he suffered up to and including the December 12, 2013 claims were the direct, proximate and prevailing factors in the development of Claimant's Somatic Symptom Disorder, moderate and major Depressive Disorder, severe.

Dr. James Jackson opined that Claimant's overall psychological disabilities flowed from the combination of the claim dates of April 6, 2013 and December 12, 2013, and it was his opinion that Claimant has a current total psychological disability rating of 35%. He felt the Claimant suffers from a Somatic Symptom Disorder as a consequence of the April 6, 2013 injury (same diagnosis as Dr. Michael Little), and Dr. James Jackson apportioned 10% permanent partial to the April 6, 2013 claim and 5% permanent partial disability for the December 12, 2013 claim for this condition. In addition, for the December 12, 2013 claim, Dr. James Jackson apportioned 20% permanent partial disability for Claimant's depression. Dr. James Jackson opined that Claimant would not be permanently and totally disabled when considering only the permanent partial psychological disabilities incurred in his work-related and cumulative injuries of December 12,

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1. Dr. James Jackson opined that when considering the significance of the primary psychological and physical disabilities resulting from the Claimant's cumulative injury of December 12, 2013, in conjunction with his pre-existing psychological and physical disabilities, his opinion is that Claimant would be permanently and totally disabled.

Also, Dr. James Jackson opines that Claimant suffers significantly on a daily basis as the result of his psychological and physical disabilities. Claimant has actively withdrawn from others and is functionally disabled and unable to work. It was Dr. James Jackson's opinion that Claimant's depression was severe and his pain and overwhelming physical disabilities are psychologically devastating to him. Given Claimant's physical and psychological disabilities, his age, and the knowledge and job skills he possesses, Dr. James Jackson does not think that Claimant can access or compete in the open labor market in any capacity.

In conclusion, Dr. James Jackson believes Claimant to be permanently and totally disabled when considering the Claimant's physical and mental health issues.

Dr. Michael Little

On June 3, 2015, Claimant was first evaluated by Dr. Michael Little, psychologist, per the recommendation of Dr. Joyce Simon, and received psychological/psychotherapy treatment through January 19, 2016, due to depression, withdrawal, low pleasure, some hopelessness, sleep disturbance and financial stress as the result of his work-related injuries of April 6, 2013, and cumulative injuries of December 12, 2013. Claimant advised Dr. Michael Little that his depression and chronic pain was in response to his on-the-job injuries and subsequent termination from Employer. Dr. Michael Little diagnosed Claimant with Major Depression and Pain Disorder associated with Psychological Factors and a General Medical Condition, which is the same diagnosis as Dr. James Jackson. Claimant's last visit with Dr. Michael Little was on January 19, 2016, after having to cancel appointments and delayed scheduling due to his finances. In addition, Claimant advised that his finances were so stressed that he had also been unable to get his pain medications reliably.

Terry Cordray

On August 21, 2016, Claimant was examined by vocational rehabilitation counselor, Terry Cordray, for the purpose of a vocational assessment and asked to address as to what impact medical problems subsequent to the work-related injury of April 6, 2013, and cumulative injuries of December 12, 2013, have had upon Claimant's vocational capacities.

Mr. Cordray opined that based upon Dr. P. Brent Koprivica's and Dr. James Jackson's comments, it is his opinion that Claimant is totally vocationally disabled. Mr. Cordray opined that he did not believe that a person who raised to the level of psychological impairment, with the additional physical impairments of performing work that would allow the individual to sit, as he would need to accommodate, with limitations to the upper extremities, as well as limitations from climbing activities, will be capable of performing any job. Mr. Cordray stated that it was most notable that Employer did not provide the Claimant with accommodation for such light jobs as cashier that would be simple for him, not physically demanding, and which would be less stressful. Mr. Cordray's opinion was that when one considers the combination of Claimant's physical and psychological impairment that Claimant is totally vocationally disabled. Mr. Cordray did not

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believe that it was realistic to expect that any employer in the normal course of business, hiring individuals to perform work as it is customarily performed, would realistically hire an individual who has significant limitations to the upper extremity, the need to take significant pain medications, with limitations in lifting and carrying, the need to alternate sitting and standing, as well as with the additional psychological impairments noted.

In conclusion, it was Mr. Cordray's opinion that Claimant's total vocational disability is a result of the combination of his physical impairments and his psychological problems, both predating and subsequent to December 12, 2013.

Dr. Alexander Bailey

On April 12, 2016, orthopedic surgeon, Dr. Alexander Bailey, performed an Independent Medical Examination of Claimant and authored a report dated April 12, 2016. Dr. Alexander Bailey diagnosed Claimant with spondylolisthesis at L4-L5, generalized degenerative disk disease, lumbar spine L4-L5 and L5-S1, without signs of significant neurologic impingement, facet disorder and generalized degeneration and osteoarthritis of the lumbar spine and non-organic pain behaviors and positive Waddell's pain behaviors. Dr. Alexander Bailey believed that Claimant could work regular duty and if there are any limitations they are personal in nature. Dr. Alexander Bailey assigned a rating to Claimant of 0% permanent partial disability to the body as a whole as it relates to a repetitive use injury as it relates to his employment at Walgreens.

Dr. Joseph F. Galate

Claimant was seen by Dr. Joseph F. Galate, physiatrist, on August 22, 2016, for an Independent Medical Examination. Dr. Joseph F. Galate diagnosed Claimant with a bulging disk at L4-L5 with an annular tear, and a small protruding disk at L5-S1 on the neural foramen. Despite the corrective carpal tunnel surgery performed by Dr. Mark Humphrey, Dr. Joseph F. Galate had no opinion as to the prevailing factor.

RULINGS OF LAW

As the first two issues in this matter are inter-related, I will address both of them together.

The first issue to be determined is whether Claimant sustain an occupational disease arising out of and in the course of Claimant's employment for Employer and the second issue is whether Claimant's injuries and continuing complaints, as well as any resultant disability are medically causally connected to his alleged occupational disease at work leading up to and including December 12, 2013. The criteria for compensability of an injury by occupational disease are set forth in § 287.067, which provides in relevant part that:

1. In this chapter the term "occupational disease" is hereby defined to mean, unless a different meaning is clearly indicated by the contact, an identifiable disease arising with or without human fault out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease as defined in this section. The disease need not to have been foreseen or expected but after its contraction it must

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appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.

1. Any injury or death by occupational disease is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

1. An injury due to repetitive motion is recognized as an occupational disease for purposes of this chapter. An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability. The "prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability. Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of day-to-day living shall not be compensable.

Additionally, under Mo. Rev. Stat. § 287.067.1 (2005), occupational disease is defined as "an identifiable disease arising with or without human fault out of an in the course of the employment." Further, under Mo. Rev. Stat. § 287.067.3 (2005), "An occupational disease due to repetitive motion is compensable only if the occupational exposure was the prevailing factor in causing both the resulting medical condition and disability." That section then defines "prevailing factor" as "the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." It continues, "Ordinary, gradual deterioration, or progressive degeneration of the body caused by aging or by the normal activities of the day-to-day living shall not be compensable."

Chapter 287 does not require a claimant to establish, by a medical certainty, that his or her injury was caused by an occupational disease in order to be eligible for compensation. *Vickers v. Missouri Department of Public Safety*, 283 S.W.3d 287, 295 (Mo. App. 2009). Occupational diseases are required over time, not injuries caused by a specific event during a single work shift. *Young v. Boone Electric Cooperative*, 462 S.W.3d 783, 796 (Mo. App. S.D. 2015).

In *State ex rel. KCP&L Greater Missouri Operations Co. v. Cook*, 353 S.W.3d 14 (Mo. App. W.D. 2011), the court found that the "Workers' Compensation Law distinguishes between two general categories of compensable injuries: (1) injuries by accident; and (2) injuries by occupational disease." *Id.* at 18. In *KCP&L*, the Western District scrutinized the amendments to § 287.067, which define the standards for compensability of occupational disease. The court noted that the legislature eliminated the cross reference between § 287.067 and § 287.020. The *KCP&L* court explained that the elimination of the cross reference to § 287.020 resulted in a stand-alone compensability standard for occupational disease claims in § 287.067, independent of § 287.020. *Id.* at 24-25. The court reasoned that the creation of an independent compensation scheme for occupational disease provided further evidence of the legislature's intent to remove occupational disease from the narrow definition of "accident." *Id.* Accordingly, the Western District concluded that occupational disease is not an "accident" within the meaning of Chapter 287 and, therefore,

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the exclusivity provision for accidental injuries or death does not apply to claims for injuries by occupational disease. *Id.* 29-30. In 2013, the Eastern District also took up the same issue in *Amesquita*, 408 S.W.3d at 299, reaching the same conclusion as the court in *KCP&L*. Therefore, the unequal exposure requirement for injury is not a part of the occupational disease requirement.

Finally, an employee must prove "a direct causal connection between the conditions under which the work is performed and the occupational disease." *Kelly v. Banta & Stude Construction Co., Inc.*, 1 S.W.3d 43, 48 (Mo. App. E.D. 1999). Finally, the court in *Kelly v. Banta* noted "where opinions of medical experts are in conflict, the fact finding body determines whose opinion is the most credible." *Id.*

Based on the Claimant's credible testimony and the competent, credible and persuasive testimony of Dr. P. Brent Koprivica who examined the Claimant, I find the Claimant has met his burden approving the presence of an occupational disease that arose out of and in the course of his employment for the employer up to and including the Claimant's last day worked on December 12, 2013. I further find that he has met his burden of proof to show that his right carpal tunnel, right tennis elbow and psychological/psychiatric conditions are medically causally related to his employment for employer.

In order to meet his burden of proof in this matter, Claimant first needed to present credible evidence on his own behalf regarding the nature of his work activities for employer and the onset of his complaints and problems. I find that he has. The Claimant credibly described his daily work activities of over fourteen (14) years while working for the Employer which included very heavy lifting and repetitively carrying objects of weight. Claimant credibly described his daily work activities which included repetitive arm use while pushing, pulling, lifting, and carrying large totes of supplies and stock. Claimant described that the totes would weigh anywhere from 5-10 pounds to 70 pounds per tote. He lifted and carried these totes from the truck to the stockroom and from the stockroom either on to shelves or out into the store. There were several hundred totes per truck and depending on the season, this could range from 500-1,000 totes, boxes and other freight. He had to unload the warehouse truck and then return the multiple empty totes to the truck which were stacked anywhere from 5-8 high and sometimes as high as 10 feet in the air due to lack of room in the storeroom. In addition, there were boxes that had to be stocked as high as possible. He would work out of the totes and boxes; first, by separating them into departments and then using a dolly to take the products to the specific department on the sales floor. In addition, he had to maintain the seasonal aisle, including straightening, stocking and cleaning. He had to maintain all of the outside vendors' products as well. These would include dairy products, soda pop, beer and frozen items. These products had to be continually stocked and restocked and that he repetitively had to reach, grab, lift, push and pull with his arms in order to complete his job. In the weeks preceding December 12, 2013, he separately reported his injury and requested paperwork for workers' compensation and medical treatment from his supervisor. He reported his problems to his Employer and requested medical treatment; however, medical treatment was not provided and the Claimant was terminated on December 12, 2013, for alleged misconduct. No testimony was provided by the Employer to dispute the Claimant's assertion that he reported his injury and requested medical care. I find with regard to Claimant's termination, that his subsequent appeal to the Labor Industrial Relations Commission who reversed the Unemployment Security Administrative Law Judge and found that the Claimant was unjustly terminated is significant. Based on the Claimant's credible description of his work activities, I find that his job duties for

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the Employer on a daily basis as an Assistant Store Manager included extensive repetitive work that involved the use of his right elbow, right wrist and right arm.

After the Claimant's termination, Claimant testified that he continued to have pain and problems in his right elbow and right wrist through the Winter of 2014, and that his problems even after working did not resolve. The Claimant had been terminated from his employment and did not have ongoing contact with his Employer, but continued to treat using his own health insurance through 2014, with Dr. Joyce Simon, Dr. Lan Knoff and Dr. Robert Pierron. Claimant received medication, therapy consisting of heat and ice, including Tramadol and injection therapy. Claimant continued to report worsening systems and also used continued narcotics. Claimant's depression worsened by the end of 2014, and it was recommended by Dr. Robert Pierron that the Claimant see a hand specialist, Dr. Mark Humphrey, and continued to treat with Dr. Lan Knoff regarding chronic pain syndrome. I find that having no direct evidence to dispute the Claimant's testimony with regards to his performance of repetitive work activities that the Employer failed to impeach or otherwise contradict the Claimant's credible testimony and the nature of his work activities.

In order to meet his burden of proof with regards to whether or not the Claimant sustained an accident or occupational disease, the Claimant next needed to offer competent, credible and persuasive medical testimony to support his contention that his work activities for the Employer resulted in an occupational disease that caused his right wrist and elbow condition for his last injury. To meet his burden of proof, Claimant offered the opinions and testimony of Dr. P. Brent Koprivica. I find that the Claimant has met his burden of proving the presence of an occupational disease that arose out of and in the course of his employment for Employer. I further find that he has met his burden of proof to show that his right lateral epicondylitis and right carpal tunnel condition is medically causally related to his employment for the Employer. Dr. P. Brent Koprivica opined that the Claimant's unusually repetitive work that included repetitive lifting, especially when there is resistance that those activities are competent to result in cumulative injury. The Claimant developed progressive pain in his right elbow and right wrist forcing the Claimant to seek treatment. Dr. P. Brent Koprivica believed that the Claimant's work for the Employer was the prevailing factor causing the Claimant to suffer injury to his right elbow and right wrist. This is also consistent with the medical testimony and documentation and recordation of complaints by Dr. Joyce Simon, Dr. Laura Reilly, Dr. Robert Pierron, Dr. Lan Knoff and Dr. Mark Humphrey, who documented and diagnosed right elbow and right hand pain dating back to October of 2013. Most of the chart notes indicate that the doctors felt that this condition was related to his work activities.

The Employer offered the opinions and testimony of Dr. Joseph Galate who opined that the Claimant's right arm and hand pain was not work related. However, Dr. Joseph Galate stated that he did not have any direct evidence that his employment was not the direct cause of him developing lateral epicondylitis or mild carpal tunnel syndrome on the right. I do not find Dr. Joseph Galate's conclusions persuasive or credible. Dr. Joseph Galate did not have any opinion or explanation regarding the prevailing factor of the Claimant's occupational disease to his right elbow and right hand other than to suggest that the Claimant did not have a work-related injury to his right elbow or hand. Dr. Joseph Galate's opinion regarding prevailing factor and the Claimant's right lateral epicondylitis and right carpal tunnel are insufficient and inconclusive. Having considered both opinions and reviewed them in the light of the rest of the extensive medical treatment records and evidenced in this case, I find that the opinions and testimony of Dr. P. Brent

WC-32-R1 (6-81)

Page 19

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

Koprivica are more competent, credible and persuasive than the contrary opinions of Dr. Joseph Galate in this case.

In fact, without any other explanation or testimony from Dr. Joseph Galate regarding the facts and history that he felt contributed to formulating his comment/opinion, I find it impossible to know if he had an adequate and reliable basis for this comment/opinion. As such, I find that I cannot rely on Dr. Joseph Galate's comment as a basis for my decisions in this matter.

Accordingly, on the basis of the Claimant's credible testimony and the credible and persuasive testimony of Dr. P. Brent Koprivica, including the medical records and the chart notes of Dr. Joyce Simon, Dr. Laura Reilly, Dr. Lan Knoff, Dr. Robert Pierron, Dr. Mark Humphrey, and Dr. Michael Little, I find Claimant met his burden of proving the presence of an occupational disease to his right elbow and right wrist that arose out of and in the course of employment for Employer, and which was medically causally connected to it. I find the Claimant's extensive and repetitive arm use while working for the Employer for over fourteen (14) years was the prevailing factor in causing the medical condition and any disability Claimant currently has in his right elbow and right hand as a result of it. I find that the Claimant's work for the Employer was the primary factor, in relation to any other factor, in causing both the medical condition and the disability in the Claimant's right elbow and right wrist.

I find that the Claimant met his burden of proof in this regard. The Claimant, in addition to testimony needed to offer competent, credible and persuasive medical and psychological testimony to support his contention that his work activities for the Employer resulted in an occupational disease that caused his right elbow and right wrist condition/injury and his somatic pain disorder and major depressive disorder. Claimant also offered the sole opinion and sole psychological testimony of Dr. James Jackson who persuasively opined that the Claimant had developed the psychological sequelae after his occupational injuries which produced pain and that were a direct, proximate and prevailing factor in the development of a major severe depressive disorder, as well as a moderate somatic symptom disorder.

In regards to the psychological disorder, I find that Dr. James Jackson, the only psychological expert, testifying in this case supported the diagnosis of major severe depressive disorder and a somatic symptom disorder, which Dr. James Jackson relates to the pain resulting from the injuries of April 6, 2013 and December 12, 2013.

In regards to the December 12, 2013 occupational injury to Claimant's right elbow and right wrist, Dr. James Jackson, the only independent psychological evaluator in the claim, also pointed to other physicians over the course of the treatment of Claimant who similarly diagnosed the same condition. Dr. James Jackson's opinion is the same as Dr. Joyce Simon who diagnosed and began treating the Claimant with anti-depressant medications on October 28, 2014. Dr. Joyce Simon noted that Claimant's depression was ongoing as of May 13, 2013, and by June 3, 2015, she referred the Claimant to Dr. Michael Little, a psychiatrist, who diagnosed him with major depressive disorder and a pain disorder with both psychological factors and a general medical condition. Dr. Michael Little treated the Claimant over 16 sessions until January 19, 2016, when they stopped because the Claimant did not have any additional financial resources that he could contribute for his treatment. Additionally, Dr. Lan Knoff, his pain management specialist, also noted the Claimant was suffering from depression in October of 2014. It is clear that the Claimant had not only physical injuries, but also psychological impact from his work injuries of April 6,

WC-32-R1 (6-81)

Page 20

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

2013 and December 12, 2013. Multiple physicians have diagnosed and treated Claimant with psychotropic medications. Therefore, I also find the Claimant's psychological conditions of somatic pain disorder and severe major depressive disorder to be proximately and casually related to the occupational diseases that he acquired on a repetitive basis up to and including December 12, 2013, as well as the injury the Claimant sustained to his low back on April 6, 2013. Employer and the Second Injury Fund offered no contrary psychological or psychiatric opinions.

Accordingly, on the basis of Claimant's credible testimony and the credible and persuasive testimony of Dr. P. Brent Koprivica and Dr. James Jackson, I find the Claimant met his burden of proving the presence of an occupational disease of right carpal tunnel and right tennis elbow, and that all of these conditions arose out of and in the course of employment for the employer, and which was medically causally connected to it. I find the Claimant's extensive repetitive lifting, extreme heavy lifting, pushing and pulling activities, as well as working overhead is the prevailing factor in causing the Claimant's medical conditions and disability. I find the Claimant's work activities up to and including December 12, 2013, permanently and progressively aggravated the condition of the right carpal tunnel and right tennis elbow. I find his work for the Employer was the primary factor, in relation to any other factor, in causing both the medical condition and the disability in these various body parts.

The next issue to be determined is whether Claimant provided Employer with proper notice of the injury under the statute.

Section 287.420 states:

"No proceedings for compensation for any occupational disease or repetitive trauma under this Chapter shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, has been given to the employer no later than thirty days after the diagnosis of the condition unless the employee can prove the employer was not prejudiced by failure to receive the notice."

The parties placed in dispute the issue whether Employee's Claim for Compensation is barred by the notice requirement of § 287.420 RSMo, but the courts have explicitly held that the statutory requirement is not applicable to claims of injury by occupational disease. *Endicott v. Display Techs*, 77 S.W.3d 612, 616 (Mo. 2002). Therefore, I must conclude that this claim is not barred by any failure to provide notice to the employer of the employee's injuries.

Second, the Claimant's Claim for Compensation which he filed on February 10, 2015, and later the Amended Claim for Compensation filed by Claimant's attorney on March 17, 2015, specifically advises Sedgwick CMS of the occupational disease and requests medical treatment. (*Claimant's Exhibit I*). The Amended Claim for Compensation includes the date of the occupational disease to be up to and including December 12, 2013 (last day of employment). Importantly, the Amended Claim for Compensation not only describes the various repetitive and occupational disease claims and the various body parts affected, but also requests and makes a demand for medical treatment as may be reasonably required to cure and relieve him from the effects of these injuries pursuant to § 287.140 RSMo as well as making a claim for temporary total disability benefits pursuant to § 287.160 RSMo Supp. 1980.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

Finally, Claimant also provided notice of his injuries to Margaret Scott, Claims Representative for Sedgwick CMS, via facsimile on March 11, 2015, which consisted of 23 pages including, but not limited to, medical records from College Park Family Care Center. Sedgwick disregarded the original Claim for Compensation. In addition, the Claimant's deposition which was taken on August 3, 2015, provided additional notice to the insurer. This deposition was completely five weeks before the Claimant's right elbow and right wrist surgery.

No medical treatment was offered thereafter or supplied by the insurer despite multiple requests by the Claimant, Claim(s) for Compensation, and the Claimant's deposition taken on August 3, 2015. Any claim for notice is therefore rejected. Further, this affirmative defense was not raised in the Employer/Insurer's Answer. It is important to note that the only medical doctor who has ever examined the Claimant on behalf of the Insurer for the occupational disease claim of December 12, 2013, was Dr. Joseph Galate who evaluated the Claimant on August 22, 2016, which was over two and a half years after the Claimant's injury. Request for treatment for both physical and psychological evaluation and care were never provided by Sedgwick CMS. The only evidence with regards to mental health, in terms of medical causation, and the need for future medical treatment, as well as the assignment of permanent partial disability was providing by Dr. James Jackson who is the only expert offering such opinions. Dr. James Jackson and his psychological recommendations, which he authored in July 2016, have been disregarded and never acted upon by the Employer/Insurer.

Finally, in the case at bar, Claimant testified that he spoke with his Employer and Supervisor requesting medical care to his right elbow and right wrist. However, according to the Claimant this treatment was not provided. Employer/Insurer did not offer any evidence to the contrary that the Claimant did not request this treatment. In fact, I find that the Claimant's subsequent termination by the Employer resulted in discontinued contact with the Employer. Claimant persuasively testified that he thereafter requested information regarding workers' compensation insurance information, but was denied. The Court recognizes and takes judicial notice the Labor and Industrial Relations Decision with regards to the reasons for the Claimant's termination being unfounded and not justified. When considering the Notice provision of Mo. Rev. Stat. § 287.420 for occupational diseases, and specifically interpreting the phrase "after the diagnosis of the condition, the courts have held that a person cannot be diagnosed with an occupational disease or repetitive trauma until a diagnostician makes a causal connection between the underlying medical condition and some work-related activity or exposure." Alcorn v. Tap Enterprises, Inc., 277 S.W.3d 823 (Mo. App. S.D. 2009). In other words, the mere diagnosis of a condition is not enough and it is only after a diagnosis is made and a medical causal connection between that diagnosis and the work exposures given that the 30-day notice timeframe begins to run.

Case law has held that the purpose of this section is to give an employer the timely opportunity to investigate the facts surrounding an injury, and if the injury occurred, the chance to provide the employer with medical treatment in order to minimize the disability. Willis v. Jewish Hospital, 854 S.W.2d 82 (Mo. App. E.D. 1993) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). However, if the employee failed to give timely written notice of the injury, that failure may be circumvented if the failure to give timely written notice did not prejudice the employer.

WC-32-R1 (6-81)

Page 22

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

Much like in *Alcorn*, the resolution of this issue in the case at bar turns on when "the diagnosis of the condition" occurred. Having reviewed the medical treatment records and the experts reports in detail, I find the first "diagnosis of the condition" occurred November 17, 2015, when Dr. P. Brent Koprivica issued his report in which he both offered a diagnosis and medically causally connected it to Claimant's employment for Employer. To the extent that the Claimant filed his Claim for Compensation in this matter on February 10, 2015, well before the diagnosis of the condition had occurred on November 17, 2015, I find the Claimant appropriately provided timely notice of his occupational disease to the Employer pursuant to the statute.

In the case at bar, the Claimant testified credibly that he reported to the Employer the problems he was having with his right arm, elbow and wrist. Given the information contained in the Court file for this case, I find the Claim for Compensation filed by the Claimant on February 10, 2015, as well as the Claimant's 23-page fax provided to adjuster, Margaret Scott, Sedgwick's Claim Representative, on March 11, 2015, as sufficient notice. In the absence of other evidence and the record of any earlier written or verbal notice from the Claimant to the Employer about his right elbow and right wrist condition, I find that the filing of the Claim of Compensation on February 10, 2015, is the first written notice the Employer was provided of his occupational condition/injury.

Having found no such medical causation opinion from a medical diagnostician in the record of evidence prior to Dr. P. Brent Koprivica offering his opinion on November 17, 2015, and having found in any event that Claimant previously provided written notice to the Employer in his Claim for Compensation that he filed in this matter on February 10, 2015, I find the Claimant appropriately provided timely notice of his occupational disease to Employer pursuant to the statute.

The next issue to be determined is whether the Employer is responsible for payment of past Medical. Under Mo. Rev. Stat. § 287.140.1 (2005), "The employee shall receive and the employer shall provide such medical, surgical, chiropractic and hospital treatment . . . as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury.

Claimant began treating on his own with doctors of his own choosing, since he was apparently, initially unsure if this was a work-related condition or not. However, Claimant remembers and testified that he told his Employer about his right upper extremity issues and requested medical treatment. There is no evidence in the record to suggest the contrary; therefore, I find that the Claimant did ask the Employer to provide medical care and treatment for his occupational disease claim of December 12, 2013, which was not provided.

In addition, in reviewing the Amended Claim for Compensation filed on March 17, 2015, I find that the Amended Claim for Compensation filed in this case demanded medical treatment pursuant to § 287.140 and temporary total disability benefits/temporary partial disability benefits pursuant to § 287.160 and 287.170 R.S.Mo. Supp. 1980.

Given that the Claimant requested and demanded medical treatment for this injury from the Employer, I find that the Employer was given the opportunity to control the medical care and select the treating physician as is their statutory right. However, the Employer failed to provide

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

adequate medical treatment to the Claimant; therefore, requiring the Claimant to continue to treat on his own with doctors using his own health insurance which evidently ceased causing a discontinuation of his medical treatment. When reviewing the billing, it is clear that Claimant's medical treatment at College Park Family Care included treatment for the December 12, 2013, claim. Many visits resulted in treatment for both injuries. Therefore, I find that the Employer is responsible for the medical bills referable to the treatment as follows:

- College Park: 4,246.00

- Surgicenter of Johnson County: 19,797.00

- Wal-Mart Pharmacy: 270.79

- St. Luke's East: 3,268.00

Therefore, I find that the Employer is responsible for the medical bills referable to the treatment as contained in the amount of $27,581.79.

The next issue to be determined is whether Claimant is entitled to future medical care on account of this work injury. Mo. Rev. Stat. § 287.140.1 (2005) is the applicable statute under which the issue of future medical treatment must be addressed as well. Just as Claimant must prove all other material elements of the claim, the burden is also on him to prove entitlement to future medical treatment. *Dean v. St. Luke's Hospital*, 936 S.W.2d 601, 603 (Mo. App. 1997) overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). Claimant is entitled to and awarded future medical treatment if he shows by reasonable probability that future medical treatment is needed to cure and relieve the effects of the injury. *Concepcion v. Leer Corporation*, 173 S.W.3d 368, 372 (Mo. App. 2005).

Dr. P. Brent Koprivica and Dr. James Jackson each addressed Claimant's future need for medical treatment in both their reports and depositions. Dr. P. Brent Koprivica wrote in his report that there was medical probability that the Claimant would have ongoing treatment needs. Dr. P. Brent Koprivica suggested behavioral chronic pain management, as well as the need for chronic narcotic use and chronic pain management. In addition, Claimant as of a month prior to this Hearing was receiving continued medical treatment from College Park Family Care Center. Claimant went back College Park Family Care Center and saw Dr. Lan Knoff January 18, 2018, who suggested the need for continued management of the Claimant's chronic pain syndrome which included physical therapy, as well as medications. Dr. James Jackson also wrote in his reports that the Claimant would need an ongoing protocol indefinitely of anti-depressant medication, as well as an evaluation by a psychiatrist and skilled focus counseling.

Therefore, I find that the medical treatment recommended by Dr. P. Brent Koprivica, Dr. James Jackson and Dr. Lan Knoff to be persuasive. Accordingly, I find that Claimant is entitled to future medical care in this case including, but not limited to, yearly follow-up visits with the physician to evaluate the Claimant's right elbow, right wrist and hand pain, as well as any other care and treatment that physician or any authorized referral physician would determine as needed for the Claimant's right upper extremity to cure and relieve the Claimant of the effects of his occupational disease injury. In addition, I find the Claimant is entitled to future psychological care as outlined by Dr. James Jackson to include, but not be limited to, psychological treatment including anti-depressant medications and psychological/psychiatric counseling processes. Pursuant to the statute, Employer retains the right to direct care and choose the treating physicians for these purposes.

WC-32-R1 (6-81)

Page 24

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

The next issue to be determined is what is the Claimant's average weekly wage and corresponding compensation rates. When reviewing Claimant's Exhibit QQ, the 2013 tax return, I find the Claimant's total wages and income received from the Employer, Walgreens, is evidenced by the attached W-2 to equal $57,454.88. Further, given that the Claimant was terminated on December 12, 2013, I find that the Claimant worked 51 and 4/7 weeks in the year 2013. When dividing the compensation of $57,454.88 as evidenced by the tax return contained in Exhibit QQ, by 51 and 4/7 weeks yielding an average gross weekly wage of 1,114.11 and a corresponding compensation rate of 742.74. Therefore, based on these calculations, the compensation rate for temporary total disability benefits, as well as permanent total disability benefits is 742.74 and 446.88 for permanent partial; disability benefits.

The next issue to be determined is whether Claimant is entitled to payment of temporary total disability benefits for a period of time to be determined. Employer is responsible in the statute for payment of temporary total disability benefits pursuant to Mo. Rev. Stat. § 287.170 (2005) during the continuance of such disability at the appropriate week of compensation. The statute also defines "total disability" under Mo. Rev. Stat. § 287.020.6 (2005) has the "inability to return to any employment and not merely ... (the) inability to return to employment in which the employee was engaged at the time of the accident." Claimant bears the burden of proof on this element of his claim just as on any other element.

In this case, the Claimant worked up until December 12, 2013. In reviewing the medical records as evidence in this case, I find that from December 13, 2013, through the date of the Claimant's release or last visit with Dr. Mark Humphrey on July 31, 2015, Claimant was unable to work. However, the Claimant did testify and provided information from unemployment compensation that he did receive benefits from December 14, 2013 through April 26, 2014 in the total amount of $6,400.00.

I find that temporary total disability benefits are owed from December 13, 2013, up until the medical release of the Claimant by Dr. Mark Humphrey on July 31, 2015 less the time period Claimant received Unemployment payments. I, therefore, award 66 weeks of temporary total disability at a rate of 742.74, which equals 49,020.84 of temporary total disability benefits.

The next issue to be determined is whether the Claimant is entitled to any permanent partial disability from the employer. The Court notes that there was no evidence presented by the Employer regarding Claimant's disability top his right upper extremity at the wrist or elbow, nor regarding his psychological condition. Therefore, based upon all of the findings, as well as the Claimant's testimony and the medical evidence, I find that as a result of the December 12, 2013 work injury that the Claimant has sustained cumulative and progressive injuries, and that the Claimant has also suffered permanent partial disability from the December 12, 2013 injury. Taking into account, Dr. P. Brent Koprivica's opinion, I assign 20% permanent partial disability of the right hand at the level of the wrist, or the 175-week level, as well as a separate 20% permanent partial disability of the right upper extremity at the level of the elbow at the 210-week level for the primary injury of December 12, 2013. I further find that the Claimant suffered an additional 25% permanent partial disability for the psychological disability as a result of the diagnosis of depression and Somatic Pain Disorder associated with the injury of December 12, 2013. This makes a total of 177 weeks of disability at 446.85 per week totaling 79,092.45 for permanent partial disability.

WC-32-R1 (6-81)

Page 25

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

The next issue to be determined is what is the liability of the Second Injury Fund. Where the Second Injury Fund is involved, and there is an allegation of permanent total disability, the analysis of the case essentially takes on a three-step process:

First, is Claimant permanently and total disabled?;

Second, what is the extent of Employer's liability for that disability from the last injury alone?; and

Finally, is the permanent total disability caused by a combination of the disability from the last injury and any pre-existing disabilities?

In determining the competent and substantial evidence listed above, I find that Claimant is permanently and totally disabled. Claimant credibly described the continuing pain and problems he has attributable to his multiple physical disabilities, as well as psychological conditions that keep him from functioning fully and normally on a daily basis. After reviewing the reports of Dr. P. Brent Koprivica, Dr. James Jackson, and the vocational expert, Terry Cordray, who were the only experts to review Claimant's condition in its entirety and all which opined Claimant is permanently and totally disabled, I find all three experts have placed significant physical and psychological restrictions on Claimant's ability to function in the workplace on account of his multiple physical disabilities, as well as psychological conditions. Mr. Cordray, the only vocational rehabilitation counselor to offer an opinion and testify in this case, did conclude that Claimant is permanently and totally disabled. I find Mr. Cordray's opinion in this regard, competent, credible and persuasive. I also find that it is consistent with Claimant's presentation and testimony at hearing, as well as the balance of the overwhelming medical treatment records in evidence. Since Claimant is found to be permanently and totally disabled, the next step of the inquiry then is to determine the extent of Employer's liability for the primary injury alone, and specifically to determine if Employer is solely responsible for that permanent total disability.

Considering the competent and substantial evidence listed above, I again find that the Claimant is permanently and totally disabled. Claimant credibly described continuing pain and problems he attributed to his right elbow, right wrist and right hand, low back, left shoulder and left ankle as well as psychological conditions which he suffers from major depression and chronic pain syndrome all of which keep him from functioning fully on a daily basis. I do not find credible evidence to suggest that the Claimant's permanent total disability is a result of the injury of December 12, 2013 alone. Given the complexity of the Claimant's injuries, I agree with Dr. P. Brent Koprivica's conclusions that the last injury of December 12, 2013, considered alone would not have rendered the Claimant permanently and totally disabled. Instead, I conclude that the Claimant is permanently and totally disabled based upon a combination of all of the Claimant's injuries and find permanent and total disability against the Second Injury Fund.

Based upon all of the findings, as well as the Claimant's testimony and the medical evidence, I find that as a result of the December 12, 2013 work injury that the Claimant has sustained cumulative and progressive injuries, and that the Claimant has also suffered permanent partial disability from the December 12, 2013 injury, and permanent partial disability for injuries that existed prior to December 12, 2013. First, with regards to pre-existing permanent partial disability that existed prior to December 12, 2013, I accept Dr. P. Brent Koprivica's assignment

WC-32-R1 (6-81)

Page 26

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

of permanent partial disability. Accordingly, I find that the Claimant suffered 25% permanent partial disability of the left lower extremity at the 155-week level prior to December 12, 2013. I also find that Claimant suffered 25% permanent partial disability of the left upper extremity at the level of the shoulder at the 232-week level prior to December 12, 2013. I also find that Claimant suffered 7.5% permanent partial disability to the body as a whole for the physical injuries sustained on April 6, 2013 and an additional 5% permanent partial disability to the body as a whole for the psychological disabilities, which have been diagnosed as major depression and somatic pain disorder referable to the April 6, 2013 injury as determined pursuant to the Court's award from Injury No. 13-104631. This totals 12.5% permanent partial disability in regards to the April 6, 2013 injury. In regards to the primary claim of December 12, 2013, and taking into account, Dr. P. Brent Koprivica's opinion, I assign 20% permanent partial disability of the right hand at the level of the wrist, or the 175-week level, as well as a separate 20% permanent partial disability of the right upper extremity at the level of the elbow, or the 210-week level, for the primary injury of December 12, 2013. I further find that the Claimant suffered an additional 25% permanent partial disability for the psychological disability as a result of the diagnosis of depression and Somatic Pain Disorder associated with the injury of December 12, 2013.

I, therefore, conclude that when combining the pre-existing physical and psychological permanent partial disability that predated December 12, 2013, all of which were considered a hindrance and obstacle to Claimant's ability to maintain employment or to obtain reemployment should he become unemployed, along with the physical and psychological disabilities that flowed directly from the December 12, 2013 injury, the Claimant has proven, and the evidence supports, that the Claimant is permanently and totally disabled, and that the Claimant is therefore, unemployable in the open labor market. I concur with Terry Cordray's vocational opinion regarding permanent and total disability and rely upon his conclusions as the only vocational rehabilitation counselor who offered evidence in this case. This permanent and total disability is a combination of the effects of both pre-existing physical and psychological disabilities, as well as injuries from his December 12, 2013. Therefore, I find and assess permanent total disability against the Second Injury Fund in this matter. The opinions of Dr. P. Brent Koprivica and Dr. James Jackson and vocational expert, Terry Cordray, support that the Claimant was unable to obtain employment in the open labor market; and is therefore, permanently and totally disabled.

CONCLUSION

Claimant sustained a compensable occupational disease injury to his right elbow, right wrist, right arm, as well as psychological injury all of which arose out of and in the course of his employment for the Employer up to and including December 12, 2013, and which was medically causally connected to it. Claimant's extensive repetitive and heavy work activities for over the course of 14 years in retail was the prevailing factor in causing this medical condition and the disability that the Claimant currently has with his right wrist and elbow. Claimant also suffered significant and severe pre-existing disability to his left ankle/Achilles, right and left shoulders, left knee, low back and psyche. As a result of these significant injuries which existed before and from the December 12, 2013 claim, the Claimant also has suffered from major depression, anxiety and somatic pain disorder. Having found that Claimant previously provided written notice to the Employer in his Claim for Compensation that he filed timely in this matter on March 17, 2015, the Claimant appropriately provided timely notice of his occupational disease to his Employer pursuant to the statute.

WC-32-R1 (6-81)

Page 27

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert L. Davis

Injury No. 13-104740

Claimant has met his burden of proving that he is entitled to permanent and total disability benefits after his release from Dr. Mark Humphrey on July 31, 2015, through the date of this Award and continuing at a rate of $742.74 per week. Accordingly, Claimant is awarded 177 weeks of permanent partial disability benefits against the Employer/Insurer at a rate of 446.85 or 79,092.45. Permanent total disability benefits are awarded against the Second Injury Fund which shall begin on August 1, 2015 at a rate of 742.74. The Second Injury Fund shall be given a credit of 446.85 per week for 177 weeks and thereafter pay to Claimant the sum of $742.74 for as long as Claimant remains permanently total disabled. Temporary total disability benefits in the amount of $742.74 for 66 weeks from April 25, 2014 through July 31, 2015, (less the time period wherein Claimant received Unemployment benefits) are awarded against Employer/Insurer.

Claimant has previously requested medical care for his right carpal tunnel, right tennis elbow and psyche as was originally requested in his Claim for Compensation. Claimant was not provided medical care; and therefore, had the right under the statute to control his own medical care and select his own physicians. Thus, making him responsible for the resulting medical charges for his treatment. Payment to Claimant in the amount of $27,581.79 are awarded for the medical charges related to Claimant's treatment. I find these charges to be reasonable and necessary in attempting to cure and relieve the Claimant of the effects of the December 12, 2013 injury.

Claimant is also entitled to future medical care in this case including, but not limited to, yearly follow-up visits with a physician regarding Claimant's right carpal tunnel, as well as psychological/psychiatric care which has previously not been provided by the Employer. Claimant is entitled to future medical care in this case which would include, but not limited to, medications, as well as other care and treatment that the physician, or other authorized referral physicians, would determine is needed for Claimant's right carpal tunnel and psychological/behavior dysfunction to cure and relieve Claimant from the effects of his occupational disease injuries.

Compensation is awarded and subject to a lien in the amount of 25% of all payments in favor of William C. Spooner, for necessary legal services.

I certify that on June 12, 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.

Made by:

Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation

By:

WC-32-R1 (6-81)

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