James Atchison v. Tyson Poultry, Tyson Foods, Tyson Sales and Distribution

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 07-087687

**Employee:** James Atchison

**Employer:** Tyson Poultry, Tyson Foods, Tyson Sales and Distribution (settled)

**Insurer:** Self-Insured (settled)

**Additional Party:** Treasurer of Missouri as Custodian of Second Injury Fund

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480, RSMo. Having reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090, RSMo, we affirm the award and decision of the administrative law judge with this supplemental opinion.

The version of Section 287.220.1, 1 RSMo, applicable to this claim provides that in order to trigger Second Injury Fund liability, employee must show that he "[1] has a preexisting permanent partial disability whether from compensable injury or otherwise, [2] of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and ... receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability ... caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself[.]"

The Second Injury Fund argues that "[f]und liability is only triggered 'by a finding of the presence of an actual and measurable disability at the time the work injury is sustained.'" *Appellant's Brief, p. 13* (quoting *Portwood v. Treasurer of Mo.-Custodian of the Second Injury Fund*, 219 S.W.3d 289, 292 (Mo. App. 2007)). However, Missouri case law provides that a preexisting disability does not need to be manifest prior to the primary injury. See *Harris v. Ralls Cty, No. ED107606, p. 50* (October 1, 2019) ("[A] work accident may be the prevailing factor in causing an injury sustained due to the aggravation of preexisting, asymptomatic degenerative condition. It was error for the Commission to find to the contrary.").

1 In his Award, the administrative law judge erroneously cited § 287.220.2, RSMo. We find that this was a simple, typographical error.

Injury No.: 07-087687

Employee: James Atchison

- 2 -

The language "actual and measurable" comes from the Missouri Court of Appeals, Eastern District decision in *Messex v. Sachs Elec. Co.*, 989 S.W.2d 206, 214 (Mo. App. 1999).

The Eastern District later held that the Second Injury Fund's reliance on that language is misplaced because such language only referred to liability for permanent partial disability and not for permanent total disability. The court stated,

> On appeal, the Fund argues that a claimant's preexisting disabilities must be "actual and measurable" in order to establish Fund liability for PTD benefits. We disagree.

In *Leutzinger v. Treas. of Missouri, Custodian of Second Injury Fund*, 895 S.W.2d 591, 592-93 (Mo. App. E.D. 1995), this Court addressed a 1993 amendment to Section 287.220.1 by the General Assembly, which superseded the "industrial disability" standard formulated by the courts to determine which prior disabilities would trigger Fund liability. Pursuant to the amendments, the court found:

> [T]he proper criteria for determining whether a preexisting injury is serious enough to trigger the provisions of § 287.220 RSMo Supp. 1993 are as follows: The preexisting injury need only be a "hindrance or obstacle to employment or to obtaining reemployment." Accordingly, we expect that any preexisting injury which could be considered a hindrance to an employee's competition for employment in the open labor market should trigger second injury fund liability. Id. at 593. While the holding of *Leutzinger* is universally accepted by Missouri courts, the Fund, citing *Messex*, argues that the preexisting disability must also be "actual and measurable" to trigger Fund liability for PTD benefits. This Court disagrees because this language from *Messex* refers exclusively to the calculation of PPD benefits.

*Lewis v. Treasurer of Mo.*, 435 S.W.3d 144, 159-160 (Mo. App. 2014).

Therefore, an asymptomatic disability may still trigger Second Injury Fund liability in permanent total disability matters if such asymptomatic disability is a hindrance or obstacle to employment or to obtaining reemployment. The Missouri Court of Appeals, Western District agrees that it is the disability's potential that truly matters, instead of the past manifestation.

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

*Loven v. Greene County*, 63 S.W.3d 278, 287 (Mo. App. 2001).

MNKOI 0000811657

Injury No.: 07-087687

Employee: James Atchison

- 3 -

Here, the administrative law judge found persuasive Dr. Garth Russell, who measured, or rated, employee's preexisting disability at 65-75%. Dr. Russell found that employee is unable to walk on his heels and has muscle spasms in his back. In his deposition, Dr. Russell explained that the rating indicated that the primary injury aggravated and accelerated employee's degenerative disc disease that he had in his back. When further explaining the rating, Dr. Russell focused on the disability's potential and stated that the rating "accounts for the progressive pain that [employee] has in his back, the progressive changes that [are] occurring in his back, and the effect on his future ability for utilization of his back physically." Tr., p. 228.

We also find persuasive Dr. Russell's opinion that employee had a preexisting disability that existed at the time of the primary injury. We further agree that the preexisting disability was serious enough to be a hindrance or obstacle for future employment or reemployment due to its potential to combine with another work-related injury to cause a greater degree of disability than would have resulted absent the preexisting disability.

**Conclusion**

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

The award and decision of Administrative Law Judge Kevin A. Elmer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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

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

Given at Jefferson City, State of Missouri, this 16th day of October 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Corgeje, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

**Employee:** James Atchison

**Injury No. 07-087687**

**Dependents:** N/A

**Employer:** Tyson Poultry, Tyson Foods, Tyson Sales and Distribution (Settled)

**Insurer:** Self-Insured

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

**Hearing Date:** October 29, 2018

**Checked by:** KAE

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: July 8, 2007

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

1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes

1. Did employer receive proper notice? Yes

1. Did accident or occupational disease arise out of and in the course of the employment? Yes

1. Was claim for compensation filed within time required by Law? Yes

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee was moving fresh chickens on pallets into customer's cooler when he slipped on ice landing on his tailbone.

1. Did accident or occupational disease cause death? No

**Date of death?** N/A

1. Part(s) of body injured by accident or occupational disease: Low back, body as a whole

1. Nature and extent of any permanent disability: Permanently and totally disabled

1. Compensation paid to-date for temporary disability: $12,723.35

1. Value necessary medical aid paid to date by employer/insurer? $27,311.29

1. Value necessary medical aid not furnished by employer/insurer? Employer has agreed to provide an MSA or keep medical open.

1. Employee's average weekly wages: Maximum, per stipulation of the parties.

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

1. Weekly compensation rate: $742.72 TTD/PTD and $389.04 PPD

1. Method wages computation: Stipulation by the parties.

1. Amount of compensation payable: Stipulation for Compromise Settlement between the Employer/Insurer and Employee in the amount $100,000 was approved by this ALJ on November 26, 2018.

1. Second Injury Fund liability: Yes

The SIF shall pay the weekly differential for PPD paid by employer. (742.72 PTD - 389.04 PPD or $353.68) for the 140 weeks of PPD, beginning January 3, 2008 and, thereafter for Claimant's lifetime at the full PTD rate of $742.72 per week. However, this payment is also subject to a credit arising out of the civil judgment.

Employee has been PTD since on or about January 3, 2008. However, Employee received a verdict in his civil action with a net recovery after attorney's fees and expenses, in the amount of $406,543.13.

The total of the differential due by the Fund for the first 140 weeks is (140 x 353.68), or 49,515.20, must be deducted from the full credit to determine the number of remaining weeks of credit. (406,543.13 - 49,515.20 = 357,027.93). That figure, divided by 742.72, equals an additional 480 5/7 weeks of compensation credit. The Second Injury Fund's liability does not commence until the total of 620 5/7 weeks of compensation has expired calculated from the stipulated date of January 3, 2008 or, on November 26, 2019. Commencing that date, SIF will owe $742.72 each week for life.

1. Future requirements awarded: None

Future PTD payments are subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Thomas C. DeVoto, The DeVoto Law Firm.

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

**Employee:** James Atchison

**Injury No. 07-087687**

**Dependents:** N/A

**Employer:** Tyson Poultry, Tyson Foods, Tyson Sales and Distribution, Inc.

**Insurer:** Self-Insured

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

**Hearing Date:** October 29, 2018

**Checked by:** KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 29, 2018. The record was left open for thirty days in order to afford the parties opportunity to submit additional evidence. Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about November 28, 2018.

The employee appeared personally and through his attorney, Thomas C. DeVoto. The Second Injury Fund appeared through its attorney, Kristie M. Pierce, Assistant Attorney General.

The parties entered into a Stipulation of Facts. The Stipulation is as follows:

1. On or about July 8, 2007, Tyson Poultry, Tyson Foods, Tyson Sales and Distribution was an employer operating under and subject to the Missouri Workers' Compensation law and during this time was fully self-insured.

1. On the alleged injury date of July 8, 2007, Claimant, James Atchison, was an Employee of the employer and was working under and subject to the Missouri Workers' Compensation law.

1. On or about July 8, 2007, Employee sustained an accident, which arose out of and in the course of his employment with the employer.

1. The above-referenced employment and accident occurred in St. Louis City, Missouri. The parties agreed to venue lying in Greene County, Missouri. Venue is proper.

1. Employee notified the employer of his injury, as required by Section 287.420, RSMo.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) At the time of the alleged accident of July 8, 2007, Employee's average weekly wage was an amount that is sufficient to allow for the maximum compensation rate of $742.72 for temporary total disability compensation/permanent total disability compensation, and a compensation rate of $389.04 for permanent partial disability compensation.

(8) Temporary total disability compensation has been provided to Employee in the amount of $12,732.35, representing 17 1/7 weeks in disability benefits, payable for the periods of September 7, 2008 through January 5, 2009.

(9) Employer and insurer have provided medical treatment to Employee, having paid $27,311.29 in medical expenses.

ISSUES

The issues to be resolved by hearing include:

(1) Whether Employee sustained any permanent disability as a consequence of the alleged accident of July 8, 2007; and, if so, what is the nature and extent of the disability?

(2) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of permanent total disability compensation.

EVIDENCE PRESENTED

The Employee testified at the hearing in support of his claim. In addition, Employee offered for admission the following exhibits:

Exhibit 1 ................................. Transportation Team Injury Data confirming reporting of injury

Exhibit 2 ................................. Not offered

Exhibit 3 ................................. Deposition of Regina McConnell

Exhibit 4 ................................. Deposition of Dr. Garth Russell, M.D., together with exhibits

Exhibit 5 ................................. Dr. Russell's reports, also marked in his deposition

Exhibit 6 ................................. Deposition of Dr. David Myers, D.O., with exhibits

Exhibit 7 ................................. July 29, 2016 letter

Exhibit 8 ................................. March 20, 2017 letter

Exhibit 9 ................................. Deposition of Michael Ashcroft

Exhibit 10 ................................. Deposition of Sherry Browning, MA, CRC, LPC, with exhibits

Exhibit 11 ................................. Supplemental Report of Sherry Browning

Exhibit 12 ................................. SSA Disability Notice of Award in March 2008

Exhibit 13 ................................. Deposition of James Atchison October 2, 2015

The Exhibits were received and admitted into evidence without objection.

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

The Second Injury Fund presented no live witnesses at the hearing. However, the Second Injury Fund did offer for admission the following exhibits:

Exhibit I........................Deposition of Gary Weimholdt, with attached exhibits

Exhibit II ..........Deposition of Dr. Norbert T. Belz, M.D., with attached exhibits

The exhibits were received and admitted into evidence, without objection.

All exhibits appear as the exhibits were received and admitted into evidence at the evidentiary hearing. There has been no alteration (including highlighting or underscoring) of any Exhibit by the undersigned judge.

DISCUSSION

Background & Employment:

Employee, James A. Atchison, is 64 years of age, having been born on June 7, 1954 and resides in Eminence, Missouri.

Mr. Atchison dropped out of high school in the 11th grade. Subsequently, in 1974, he obtained employment with Friend Tire (a tire wholesaler) in Monett, Missouri, and engaged primarily in loading, unloading, and driving a tractor-trailer to Friend Tire's customers, including interstate customers.

In or around January, 1994, Mr. Atchison obtained employment with employer, Tyson Transportation (Tyson Poultry), working as a semi-truck driver delivering fresh chickens to Tyson's customers in the St. Louis area. He continued in this employment through January 5, 2008, when he signed separation papers from the employer. Mr. Atchison's job required him to load and unload thousands of pounds of chicken in 40- to 45-pound plastic containers.

Prior Medical Conditions:

Prior to sustaining the work injury of July 8, 2007, Mr. Atchison had a medical condition in his lower back, more specifically, multi-level arthritis and degenerative joint disease, which caused him to present with a permanent and potentially disabling medical condition. The prior medical conditions include:

- Multi-level arthritis in his lumbar spine, and

- Degenerative joint disease with spinal stenosis in his lumbar spine.

Accident:

On July 8, 2007, while engaged in employment and performing his work duties with Tyson Transportation (Tyson Poultry), Mr. Atchison slipped and fell on ice in the Porter Poultry cooler in St. Louis while counting the boxes against his manifest. As a consequence of this incident, Mr.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

Atchison sustained an injury to his lumbar spine. The injury to the lumbar spine involved an injury to the L4-L5 lumbar disc, resulting in a herniated disc at L4-L5.

**Medical Treatment:**

Mr. Atchison was seen by Dr. Alan E. Northern in Rolla, Missouri, who took x-rays and told him to stop working. He was sent by the employer to Dr. Paul Olive in Springfield, a spine specialist, who thought the only treatment he could give Claimant was epidural injections. Claimant testified that he received the injections.

Claimant was also seen by Dr. Scott Gibbs, M.D., who told him that due to the multi-level degenerative disc disease from L2-L3 to L5-S1, that an operation on his L4-L5 herniated disc would require a massive multi-level surgery that was dangerous, with many potential complications, and recommended Claimant to continue epidural injections and conservative treatment.

Dr. Olive believed Claimant reached MMI in January 2008 and terminated his treatment.

Since 2008, Mr. Atchison has been under the care of his personal physician, Dr. David Myers, D.O., in Rolla, Missouri, who has treated him for chronic pain with narcotic medication. This has been continuous for the last 11 years.

**Independent Medical Examinations:**

Dr. Garth Russell, M.D., a physician practicing in the specialty of orthopedic surgery, testified by deposition on behalf of Employee. Dr. Russell performed independent medical examinations of Claimant on February 7, 2011 and again on June 9, 2014. At the time of the examinations, Dr. Russell took histories from Claimant James Atchison, which were consistent with the history Claimant previously gave Drs. Northern and Olive who examined Claimant on behalf of the employer. Dr. Russell also took x-rays and reviewed various medical records, and performed a physical examination of Claimant's back. Dr. Russell prepared reports for both examinations, and they are in evidence. In light of his examination and evaluation of Claimant, Dr. Russell opined that Claimant suffers from the following conditions:

1. Primary injury: a herniated disc at L4-L5. The fall of July 8, 2007 was the prevailing cause of that injury and condition, and

1. Pre-existing degenerative disc disease and degenerative joint disease from L2 through S1. The prevailing cause of these conditions was repetitive bending and lifting of thousands of pounds of chicken, coupled with driving hundreds of miles every workday in a bouncing semi-truck. These conditions were dormant but rendered painful as a result of the fall of July 8, 2007.

Dr. Russell opined that Claimant is 100% disabled from the combination of the pre-existing degenerative conditions and the herniated disc, or the primary injury. In accordance with his supplemental report following the second examination, Dr. Russell assessed 35% of the permanent total disability to the primary injury, or the herniated disc, and 65% to the pre-existing degenerative

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

changes. Dr. Russell's opinion is essentially that synergistically the pre-existing condition coupled with the primary injury combine to render Claimant permanently and totally disabled.

Dr. Russell's deposition was taken on September 25, 2015. It should be noted that Dr. Russell prepared a report for Claimant's civil suit and reached the same conclusion in his report dated February 7, 2011 (Exhibit 4, see attached Exhibit 3) and opined that Claimant was 100% disabled following the fall in July, 2007. Dr. Russell's final diagnosis was:

1. Degenerative disc disease lumbar secondary to repetitive injury;
2. Acute herniated disc with exacerbation of degenerative disc disease secondary to the injury of July 8, 2007;
3. Degenerative joint disease facet of lumbar spine secondary to repetitive injury sustained during employment of operation of a tractor-trailer.

In a supplemental report, dated July 15, 2011, Dr. Russell opined that it was the combination of the degenerative disease and the acute herniated disc with exacerbation of the degenerative symptoms that disabled Mr. Atchison. It was the combination of the two. Dr. Russell reiterated that Claimant was 100% disabled, but divided the disability between the two 75% due to the repetitive injuries with extensive degenerative disease coupled with 25% for acute herniated lumbar disc.

Prior to his deposition September 25, 2015, Dr. Russell saw Claimant again on June 9, 2014. In his report (Exhibit 4, see attached Exhibit 5), Dr. Russell reiterates the history and findings of pre-existing degenerative disc. His final diagnoses were:

1. Acute and chronic herniated disc L4-5, left, with compression of L5 nerve root, left, chronic with weakness in dorsal flexion and atrophy of the left calf; and
2. Degenerative disc disease, lumbar area, moderately severe, chronic, aggravated by operation of a large tractor-trailer superimposed upon an injury occurring on July 8, 2007.

Dr. Russell concluded, once again, that the fall of July 8, 2007 was the prevailing factor in the present physical impairment and physical disability. Dr. Russell goes on to opine that Mr. Atchison has a 35% permanent partial disability of the body as a whole secondary to the July 8, 2007 fall. However, the fall also aggravated and accelerated the degenerative disc disease present with foraminal stenosis in his lumbar area particular L4-5 and L5-S1.

In his deposition testimony, Dr. Russell clarified his analysis as follows:

"A. So, therefore, there is a change that has occurred which has made it a physical impairment which was not present prior to his injury. Even though there were pre-existing changes within the tissues, they were not symptomatic.

Q. What does the 75 percent - what does that account for?

A. It accounts for the progressive pain that he has in his back, the progressive changes that is occurring in his back, and the effect on his future ability for utilization of his back physically.

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

Q. Okay. Did he have any separate treatment, separate and apart from the treatment he had for his fall just for his degenerative disk disease after 2007?

A. Well, yes, because the degenerative disk disease became painful.

Q. When was that?

A. At the moment that he had a fall.

Q. Okay. So did he treat for those two conditions together or did he treat some for the fall and some for the degenerative disk disease?

A. Together.

Q. Okay. So there was never any separate treatment, one for the fall and some for the degenerative disk disease?

A. Well, he had two types of pain medicine, one was a stronger narcotic medicine for the nerve pain, and he also had non-steroidal anti-inflammatories, and that is a medicine which is supposed to reduce the inflammation which is causing the pain of the degenerative disk disease." (Exhibit 4, Pages 89:22 through 91:2).

He further testified:

"Q. (By Mr. Murphy) Your assessment of 75 and then later 65 percent disability with regard to the degenerative disk disease, that's due to degenerative disk disease that occurred at the -- from L2 on down to S1; is that fair?

A. Correct.

Q. Was his degenerative disk disease limited to those levels or did he have it throughout his spine, or do you know?

A. Severe limited to those levels.

Q. All right. And when he fell on July 8 of 2007, what level did he injure?

A. He injured specifically L4-5.

Q. He did not injure L2-3, L3-4, L5-S1; correct?

A. No. I'm sure he did.

Q. But nonetheless, those account - the degenerative disk disease at those levels account for some of the disability that you've attributed to the degenerative disk disease; correct?

A. Correct.

Q. And that preexisted July 8, 2007; correct?

A. To a certain extent, but not at the severity following the injury." (Exhibit 4, Pages 95:6 through 96:2).

In answer to a question propounded by the attorney for the Second Injury Fund, Dr. Russell stated as follows:

"Q. So the only way the degeneration becomes a factor is because of the combination of that with the injury of July 8, 2007?

A. Correct." (Exhibit 4, Pages 79:17 through 79:20).

It is Dr. Russell's testimony that Claimant had a pre-existing condition, a disability related to his degenerative joint disease that was rendered painful and disabling as a result of a combination with the ruptured disc from the fall.

The employer also had Claimant examined by Dr. Norbert Belz, M.D. Dr. Belz saw Claimant on October 5, 2010. At the time of this examination, Dr. Belz took a history from

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

Claimant James Atchison which was consistent with his report of injury and histories given to the treating doctors. Dr. Belz did not take x-rays but did review both studies and reports from Phelps County Hospital. Dr. Belz also reviewed various medical records and performed a physical examination of Claimant's back.

Dr. Belz opined as follows:

1. There is no acute herniated disc associated with the fall and he reached MMI on January 3, 2008. The prevailing factor for that transient episode was the accident on July 8, 2007;

1. Since the pain did not come on for three to four weeks, this was transient aggravation of a pre-existing medical condition that was not work related;

1. Nevertheless, assuming Mr. Atchison does have some type of occupational injury or strain of his back, then he has between a 7.5% and 10% disability relating to the body as a whole.

Dr. Belz's deposition was taken on February 9, 2016. He reaffirmed those positions, but clarified that he had reviewed the reports of the treating doctors and had seen the actual films, the x-ray and an MRI of Claimant's back. Unlike the radiologists, the other treating doctors and Dr. Russell, Dr. Belz does not believe Claimant sustained an acute herniated disc in the fall. As a matter of fact, Dr. Belz suggested the fall had nothing to do with any disability that currently exists. Tyson did not send Dr. Belz Claimant's Exhibit 1, wherein Claimant complained of pain from the date of the fall and that it got progressively worse until he could no longer drive. Dr. Belz has taken Claimant's testimony out of context. Claimant clearly complained of pain and that it worsened with time, and three to four weeks after the fall, it began to radiate into his left leg so he could not drive without shifting around and could not hold in the clutch on his truck.

Dr. Belz based his conclusion on a statement in Claimant's first deposition, which is not in evidence. Dr. Belz also refused to consider the history provided by Claimant, consistent with what he told his doctors and everyone else who interviewed him. Since the deposition is not in evidence and the alleged statement is contrary to all the other statements by Claimant, Dr. Belz's opinion is of little probative value.

Nevertheless, he continued to express in his testimony that Claimant had a 7.5% to 10% disability related to the fall.

Personal Doctor's Opinion:

Dr. David Myers, D.O., testified by deposition that he is Claimant James Atchison's personal physician and has been treating him since November 11, 2005, or almost two years before the accident in question. Dr. Myers saw Claimant for the first time for the work-related injury on February 27, 2008. His primary diagnosis was a disc injury to his lumbar spine. Mr. Atchison was complaining of pain. When Claimant saw Dr. Myers in March 2008, he filled out some paperwork for his disability. The fall of July 2007 was the cause of the injury while at work.

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

Dr. Myers has continued to see Mr. Atchison on a regular basis and treats him for chronic pain syndrome. Dr. Myers sees Claimant four to five times a year. He gives him narcotics, such as Vicodin and analgesics. Dr. Myers also ordered a Doppler examination of Claimant's lower extremities. He has some vascular issues, but Dr. Myers gave Claimant one prescription for an acute episode, and it was never renewed.

The chronic pain for which Dr. Myers is treating Mr. Atchison is caused by the back injury.

Like Dr. Russell, Dr. Myers believes Mr. Atchison to be totally disabled. He believes Mr. Atchison to be an accurate historian and that he does not exaggerate or embellish his complaints of pain. Dr. Myers further believes that the findings in the MRI are consistent with a genuine complaint.

He also believes that the vascular disease has nothing to do with degenerative joint disease or herniated disc in his back.

In his medical records, Dr. Myers notes that Mr. Atchison is "professionally totally disabled". By that, he means, Mr. Atchison is unable to carry out an occupation that would be able to support himself.

The Second Injury Fund did not object to the introduction of Dr. Myers' deposition and did not ask that it be admitted subject to their objections. Therefore, the objections are not preserved. Nevertheless, the Court will address the "technical" objection.

The Second Injury Fund objected as to lack of seven-day notice on the issues of causation and disability. With respect to disability, it is clear that Dr. Myers has in his records that in his opinion, Mr. Atchison was "professionally totally disabled". (Exhibit 7, see entry dated July 7, 2016). Claimant's attorney sent those records to opposing counsel in July 2016, or some five months, in advance of Dr. Myers' deposition. There is no issue with notice.

With respect to causation, Exhibit 7 also contains the following history in the February 27, 2008 entry, "(sic) patient was injured at work and was being seen by Worker's Compensation doctors. Dr. Northern referred patient to Dr. Olive - Springfield for MRI." The doctors referenced in the note there had been a diagnosed herniated disc prior to Dr. Myers' treatment of Employee. There is no surprise that Dr. Myers believed his fall at work to be the cause of his disability.

Even if the records do not "technically" constitute a report, Claimant's attorney sent a letter to opposing counsel indicating that he intended use of the transcript of Dr. Myers' deposition, pursuant to RsMO 287.210.7. No one chose to exercise their right to depose Dr. Myers separately.

Dr. Myers' testimony is admissible, and the Court will give it its full weight.

Independent Witness:

Michael Ashcroft, a co-worker of Claimant James Atchison, testified by deposition that he worked with Claimant loading, unloading, and delivering chicken for three years. When he first went to work with Claimant, he was worried because Claimant was smaller than him and he would

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

be stuck carrying the load, but Claimant surprised him. Despite the fact that he was older and smaller, not only did he keep up with him, but sometimes Claimant would even pass him up.

Claimant never had any problems doing his job prior to the fall. He never complained of pain anywhere in his body.

Mr. Ashcroft was aware that Claimant fell and stopped working at Tyson. Mr. Ashcroft would see Claimant around town and actually had Claimant over for Thanksgiving dinner one year, and Claimant could do nothing. He said, I feel horrible, my back is killing me, and I have to go home.

Mr. Ashcroft noticed that Claimant could not sit, stand, or walk for any period of time. He sees him around town and asks if he wants to get a cup of coffee. He is just a totally different person.

When Mr. Ashcroft would check on Mr. Atchison at his house, he was hurting all the time.

The Court finds Mr. Ashcroft's testimony to be compelling. According to Mr. Ashcroft, Claimant was a "machine" prior to the fall. Within a few months, he was only a shell of himself and appeared to be unable to work and was in constant, debilitating pain. Mr. Ashcroft's testimony as to the effect of the fall on Claimant's ability to work is identical to that offered by Claimant throughout these proceedings.

Vocational Opinions:

Sherry Browning, MA, CRC, LPC:

Sherry Browning, MA, CRC, LPC, a rehabilitation counselor, testified by deposition on behalf of Claimant. Ms. Browning has been a Certified Rehabilitation Counselor since 1987. She is a diplomate of the American Board of Vocational Experts. In 1983, Ms. Browning received her master's degree in Rehabilitation Counseling from SIU Carbondale. She has been employed by SSM and Goodwill Industries as a director and/or a manager of the Rehabilitation Counseling and Work Adjustment Training Programs.

Ms. Browning performed a vocational evaluation of Claimant on January 9, 2016 and also conducted a subsequent telephone interview on February 9, 2016. At the time of the vocational evaluation, Ms. Browning took a history from Claimant, reviewed various medical records, a FCE by Work Evaluation and Ergonomic Assessments dated January 16, 2008, Claimant's depositions in this matter, Claimant's deposition in the civil trial, and the civil trial transcript of Claimant's testimony, as well as the report of Dr. Caffrey, and the report of Jeffrey Magrowski, a separate Vocational Rehabilitation Counselor who had previously concluded that Claimant was totally disabled from gainful employment.

Ms. Browning performed a vocational interview and administered several vocational assessments and tests, including the Woodcock Johnson Test of Achievement - III. The history obtained by Ms. Browning is substantially identical to the history given to Dr. Russell and the testimony provided by the employee at the hearing as well as his deposition, which is in evidence. Ms. Browning determined that in regard to reading and math skills, the employee had sufficient

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

ability for semi-skilled administrative or office work, such as a customer service representative or order clerk. However, those jobs require a high school diploma or GED and at least basic computer literacy, all of which Claimant lacks. In addition, these jobs are most often sedentary, which is the most difficult and painful position for Claimant to maintain.

In her testimony, Ms. Browning explained that while there were various weight lifting restrictions ranging from 101 pounds to 45 pounds, those in and of themselves did not render Claimant totally disabled. She acknowledged that there were no written medical limitations on sitting, standing, or walking; but there are diagnosed medical conditions that are consistent with Claimant's subjective complaints of pain. When cross-examined that he goes to the casinos once in a while, that is done on his time. Ms. Browning explained the claimant is not responding to somebody else's time requirements on a day-to-day basis. He simply cannot respond on a day-to-day basis.

While Claimant scored reasonably well on both basic math and reading skills, his "math fluency" is a combined score. His reading fluency, ability to recall information, ability to do calculations, and his delayed recall, which is a 30-minute recall of information, was very low. (Exhibit 10, Pages 35:14 through 35:18)

Ms. Browning was subsequently provided the deposition testimony of Dr. Norbert Belz, M.D., and Dr. David Myers, D.O., as well as the incomplete psychological and vocational evaluation of Patrick Caffrey, PhD.

Those additional documents did not change any of Ms. Browning's original opinions.

Based upon Ms. Browning's education, training, and work experience in rehabilitation services, her testing and interviews of Claimant, she concluded that it is unreasonable to assume with Claimant's long history of working for essentially two employers with high earnings given his lack of formal education that he would voluntarily give up a job he enjoyed. Claimant lost his house through bankruptcy. He has been forced to live with various relatives. Ms. Browning does not believe that Claimant can work in any capacity because of his functional limitations in moving, including sitting and standing, stiffness and pain in his back and heel following the July 2007 injury. Most importantly, Ms. Browning believes that Claimant would work if he could. (Exhibit 10, attached Exhibit 1). The vocational opinions of Sherry Browning, MA, CRD, LPC, are supported by the medical opinions and, in particular, the medical opinions of Dr. Garth Russell, M.D., and Dr. David Myers, D.O. The Court finds Ms. Browning to be a very credible witness.

Gary Weimholt, MS:

The Second Injury Fund introduced the deposition of Gary Weimholt, a vocational rehabilitation specialist hired by the Employer to evaluate Claimant. Like Ms. Browning, Mr. Weimholt has a master's degree, but in his case, it is guidance and counseling, as opposed to vocational rehabilitation. Mr. Weimholt, like Ms. Browning, has over 30 years of experience in performing vocational assessments. The Court notes that to a large extent, Mr. Weimholdt relies upon the Report of Dr. Belz concerning medical restrictions and injury. However, he failed to note that Dr. Belz also assigned a 7% to 10% permanent partial disability secondary to the fall.

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

Mr. Weimholt also read the report of Dr. Garth Russell, M.D., who found Claimant to be 100% disabled, assessing 35% to the acute herniated disc and 65% to the prior degenerative joint and disc disease. Mr. Weimholt notes that Dr. Russell did not put any work restrictions on Claimant, but admits that it would be somewhat redundant to put work restrictions on somebody who is totally disabled and unable to work. He testified as follows:

"Q. Would it be inconsistent to put work restrictions on somebody who's 100 percent disabled?

A. Generally, I -- I do see, you know, either the restrictions are so limiting as they might limit work, you know, from a vocational standpoint to 100 percent, but, generally, I do see some indication of what the remaining functional ability would be. But I do understand that that's how Dr. Russell viewed it." (Exhibit I, Pages 32:4 through 32:11).

He testified as follows as to the basis of his opinion:

"...my opinion would be based upon the actual functional limitations that have been assessed, and those are by Dr. Belz; not to lift in excess of 35 to 40 pounds. I note that Dr. Russell does not give any specific restrictions that would be, from a vocational standpoint, a guideline for me. Also, apparently he -- he had a functional capacity evaluation that's been described only as very light work, and that also is imprecise in terms of making a judgment about functional abilities. Using the restrictions of Dr. Belz (emphasis added), I think there are jobs that he can perform, would be the nutshell of my evaluation." (Exhibit I, Pages 26:8 through 26:19).

Mr. Weimholt gave Claimant the Wide Range Achievement Test-4 and Claimant scored in the 30th percentile range for his age in word reading and the 23rd percentile range in math computation. The Court notes that Mr. Weimholt did not do the combined assessment performed by Ms. Browning.

In support of his conclusion that Claimant can work (based upon Dr. Belz's work restrictions), Mr. Weimholt believes Claimant could be a delivery driver or a security officer. He bases that on the job descriptions he found on Indeed.com.

Mr. Weimholt was not provided the deposition of Dr. David Myers, which was available to him prior to his deposition, nor is there any evidence that he was provided Dr. Myers' medical records.

Unlike Ms. Browning, Mr. Weimholt fails to take into consideration Claimant's ability to work day in and day out, as opposed to his driving to see Dr. Belz, driving to see Dr. Russell, or going to a casino in St. Louis, trips and time that Claimant chose to devote to those tasks. Other than Claimant's testimony of what happens the next day, Mr. Weimholt's and Dr. Belz's reports and depositions are devoid any such analysis. They do not even acknowledge such statements but then try not to give much credibility to those statements. They simply ignore them.

Since Mr. Weimholt admittedly relies almost exclusively upon Dr. Belz's work restrictions, and since Dr. Belz's conclusions are based in part on unsubstantiated testimony of Claimant, any opinions founded upon Dr. Belz are likewise lacking a foundation in the evidence.

Page 13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

The Court finds the testimony of Dr. Russell and Ms. Browning to be more credible than the testimony of Dr. Belz and Mr. Weimholt. This is particularly true in light of the Court's observation of Claimant and his live testimony as set forth below.

**Claimant James Atchison:**

Claimant appeared for his testimony well dressed in casual clothing. He answered questions on both direct and cross-examination candidly. The Court finds Claimant to be a very credible witness.

Claimant testified that prior to July 8, 2007, he worked as a truck driver loading and unloading tractor-trailers for almost 30 years, first for Friend Tires, and the last 13 years for Tyson. With respect to Tyson, he testified that he picked up his loaded refrigerated tractor-trailer in Rolla, Missouri, and then drove to the metropolitan St. Louis area to make deliveries of fresh chicken to restaurants. When he first began to work for Tyson, the boxes weighed 75 pounds, but after a year or so, the weight was reduced to 45-pound boxes. He had a helper. The helper would slide the boxes of chicken to the side door of the trailer and then stack them on the ground. Claimant and his helper would then hand cart the boxes of chicken into the customers' facilities. He had keys to all the facilities and would open them to make the deliveries. Twice a week Claimant palletized partial loads that he delivered on the pallets to Porter Poultry in St. Louis. Porter was a wholesaler of chicken. One way or the other, Claimant and his helper would unload, load, unload again, and then store literally tens of thousands of pounds of chicken, 45 pounds at a time. Unless he was ill, Claimant never missed a day of work and often accepted extra shifts because he liked the extra money.

**The Fall on July 8, 2007:**

Claimant testified that on that date he delivered the pallets of chicken to Porter Poultry, he was double-checking his count and was walking toward the pallets when he decided the count was correct and put his foot out to stop when both feet went out from under him and he landed heavily on his tailbone. The area around the drain in the floor was covered with black ice. Claimant did not hit his head when he fell, but he did lay back with his head on the concrete floor. He remained in that position for a period of time and then got up and completed his deliveries. This fall took place on a Sunday. And on Monday, Claimant reported his injury to his dispatcher, telling him he was sore but did not want treatment but would wait and see what happens. By September 2007, Claimant was no longer able to push and hold the clutch on his truck with his left leg and foot. He would have to take the truck out of gear at stoplights because he could not hold the clutch. Claimant was constantly shifting in his seat. He last worked in September 2007. His back and leg pain have been too severe for him to work since September 2007.

Claimant testified about his treatment consistent with the medical records and reports. When asked specifically as to whether he could work as either a delivery driver or a security guard, Claimant responded "Oh No!" "No"! Claimant explained that he might be able to work a day or two, but then he would have to call in to ask for time off because he would be in too much pain to work. Claimant testified that it "would not be fair to the employer," as opposed to unfair to himself. For example, when Claimant drives, he has to pull over after 45 minutes to an hour and get out and walk around. Sometimes Claimant lays down in the back seat of the car before he can continue.

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

He lives in Eminence, Missouri and drove to Springfield the night before the hearing. He had to stop a number of times, including in Rolla.

Most importantly, when asked if he could be granted one wish what would it be, Claimant responded, "I would like to have 'my back' back so I could return to work." The Court concurs with Ms. Browning, that if Claimant could work, he would.

While the standards for Social Security Disability are different than that standards for PTD in the Division of Workers' Compensation, it is interesting to note that Claimant applied for Social Security in 2008 after his TTD payments were terminated, which was based upon Dr. Belz's Report that Claimant reached MMI on January 3, 2008. He was deemed totally disabled by the Social Security Administration. There was no hearing. There was no appeal. Claimant submitted a written application. It was accepted, and Claimant has been receiving SSD payments non-stop retroactive to March 8, 2008. (Exhibit 12).

FINDINGS AND CONCLUSIONS

The burden of establishing any affirmative defense is on the Second Injury Fund. The burden of proving an entitlement to compensation is on the Employee, Section 287.808 RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 RSMo.

RULINGS OF LAW

The Second Injury Fund is liable for injured workers who become totally disabled by a combination of past disabilities or condition (emphasis added) and a primary work injury. 287.220.1. This matter is governed by 287.220.1 as it existed at the time of the primary injury. It was amended effective January 2014, but this Court's rulings are governed by the amendment of 1998 in effect on or about July 8, 2007. This Court will make reference to the 2014 amendments, but only for purposes of clarification.

This Court notes that the evidence is uncontradicted that Claimant had pre-existing degenerative disc and joint disease from L1-L2 through L5-S1 of his lumbar spine. The evidence is also clear that this was the result of years of repetitive bending and lifting of 45-pound boxes of chicken for at least the last 12 years of his employment. On any given day, Claimant would load and unload tens of thousands of pounds of chicken. He also rode in a truck from Rolla, Missouri to stop in the metropolitan St. Louis area and back again. The claimant would easily drive over 250 miles in a tractor-trailer rig on each such trip.

The Court also notes that until he fell on July 8, 2007, that Claimant's degenerative joint and disc disease did not hinder his employment or work in any way. The record is undisputed that Claimant's pre-existing condition was not "industrially disabling" before the fall. However, the old case law's driven concept of "industrially disabling" was overruled by the legislature in 1993 by creating a standard that the pre-existing disability or condition must be "of such seriousness as

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

to constitute a hindrance or obstacle to employment or to obtaining reemployment if the Employee becomes unemployed..."

(See: *Leutzinger v Treasurer of Missouri*, *Custodian of the Second Injury Fund*, 895 S.W. 2d 591, 593 (Mo. App. E.D. 1995), and *Rose v. Treasurer of Missouri*, 899 S.W. 2d 563 (Mo. App. E.D. 1995).

Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers' compensation, and any reviewing courts shall construe the provisions of this chapter strictly. §287.800.1.

Thus, the Court notes that §287.220.2 specifically states that the pre-existing disability may be from a compensable injury or otherwise (emphasis added). The section goes to state:

> After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of Employee's disability that is attributable to all injuries or conditions (emphasis added) existing at the time of the last injury was sustained shall then be determined by that administrative law judge...

"Otherwise" in the previous sentence is clearly consistent with the use of the word "condition" later in the paragraph. This Court finds:

1. That by stipulation Claimant has a compensable work injury resulting in permanent partial disability in an amount in excess of 50 weeks referable to the body as whole, and

1. That at the time of the work injury, Employee had a pre-existing permanent partial disability or condition of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment, and

1. That the compensable injury and the pre-existing permanent partial disability or condition combined together to result in permanent total disability, and

1. The Claim was filed in a timely fashion.

As will be discussed more fully herein, Claimant has fully met his burden of proof in this matter with respect to each of those elements of his claim against the Second Injury Fund.

As stipulated, Claimant sustained a compensable injury. Dr. Belz opined a 7.5% - 10% disability to Claimant's low back, and Dr. Russell opined that Claimant's disability referable to his fall and acute disc injury at L4-L5 resulted in 25% - 35% disability. The medical records, including Dr. Myers' records, show Claimant underwent diagnostic workup, including CT scan or MRI, and was formally diagnosed with an acute disc injury. Dr. Belz's testimony is that he did not sustain a disc injury from the fall. Taking into consideration the fact that all the other medical evidence clearly states Claimant sustained an acute disc injury coupled with his testimony describing how hard he fell, the Court accepts the testimony of Dr. Russell as more credible. Dr.

Page 16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

Russell's ratings both exceed 50 weeks (100 or 140 respectively). The Court accepts Dr. Russell's findings and ratings to be more credible than Dr. Belz; and therefore, finds that Claimant has suffered a 35% permanent partial disability referable to his low back and inoperable disc injury.

This Court must determine whether or not the primary injury in and of itself rendered Claimant PTD. If so, the Second Injury Fund has no liability as a matter of law. This Court has already found that the primary injury resulted in a 35% PPD referable to inoperable disc in Claimant's lumbar spine. Nevertheless, it will be discussed from the opposite perspective. The record is indisputable that Claimant has pre-existing both degenerative disc disease and degenerative joint disease throughout his lumbar spine. There is no evidence that the primary injury in and of itself rendered Claimant PTD. (See Findings above). Nevertheless, the extent and percentage of disability is a finding of fact within the special province of the fact finder, which, in turn, is not governed strictly by expert testimony. The finding may take into consideration expert testimony, but also the testimony of Claimant. The fact finder may draw all reasonable inference from the testimony and evidence. *Taylor v. Labor Pros, LLC*, 392 S.W. 3d 39,45 (Mo. App. WD 2013) citing *Fogelsong v. Banquests Foods Corp*, 526 S.W.2d 886, 892 (Mo. App. WD 1975) with approval.

The only evidence as to the amount of pre-existing disability was offered by Dr. Russell and he assessed 65% to 75% of Claimant's 100% disability. Dr. Russell attributed that disability to the pre-existing degenerative joint and disc disease. The medical evidence is that the condition was so severe as to render Claimant's acute disc injury inoperable. The fact that there is no medical evidence to the contrary is not binding upon this Court. This Court, taking into consideration all the medical records and Dr. Russell's examinations of Claimant, find that Claimant had a minimal 65% and up to a 75% pre-existing disabling condition.

There must be synergistic relationship between the pre-existing disability or condition, that coupled with the primary injury renders Claimant permanently and totally disabled. §287.200.2 *Winnigear v. Treasurer of State-Custodian of the 2nd Injury Fund*, 474 S.W. 3d 203, 208 (Mo. App. WS 2015). See also *Hillyard v. American Staffing, LLC and Treasurer of the State of Missouri as Custodian of the Second Injury Fund*, Injury No. 12-030075 (2018 WL 5269170 (Mol Lab.Ind.Rel.Com. *Hillyard* is very similar to this matter in that he had a dormant disabling condition that did not interfere with his ability to work, including heavy lifting for years before the primary injury occurred, rendering it symptomatic again. The Commission affirmed a finding of PTD against the Fund.

It is difficult to conceive of a more synergistic effect than one which renders the primary injury inoperable. Claimant has provided credible testimony that his pre-existing disability has become disabling as a result of the fall, which left him with chronic pain. It is also clear that the pre-existing, and now debilitating and painful pre-existing condition, is a hindrance to Claimant's re-employment. There is no question but that it combined with a future injury (the July 8, 2007 fall) resulting in a greater degree of disability than would have resulted if there were no such prior condition. *Wuebbeling v. West County Drywall*, 898 S.W.2d 615, 620 (Mo. App. E.D.1995) The Court believes the recent amendment to §287.210.3(1)(a)(iii) which codifies the principal set forth that the Employee has "a medically documented pre-existing disability equaling a minimum of 50 weeks of Permanent Partial disability...Not a compensable injury, but such pressing disability

Page 17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

directly and significantly aggravates...the subsequent work-related injury... This amendment is not controlling on this matter, but it demonstrates the legislature's concurrence with the more recent case regarding the synergistic relationship of the pre-existing disability or condition combining with the primary injury rendering the Employee PTD.

As noted, Claimant is a credible witness. He testified that he needs to take his prescription pain medicine every day and when he does, he is unable to drive because it affects his driving ability. When Claimant drives somewhere, he brings his pain pills with him to take when he arrives or if he is in too much pain, he takes them at one of his frequent stops. Claimant can only drive for about 45 minutes and then has to stop, get out, walk around or sometimes even lie down in the back seat. Claimant testified that he cannot sit, stand, or walk for any appreciable time, and sitting causes him a great deal of pain, more than standing or walking. Claimant often has to lie down on his couch when he is in too much pain. Without his pain pills, Claimant cannot function. This Court noticed that when Claimant testified and when he was at counsel's table, he squirmed in his seat and occasionally lifted himself out of his seat to adjust his position. This conduct appeared real and in no way feigned.

Claimant's daily activities consist of getting up, making breakfast, and watching the news. Sometimes in the late morning or afternoon, he goes for a walk. He sometimes visits a relative who has a mechanic shop a few blocks from his house. He comes home, watches TV, makes his dinner, and then goes to bed. He is able to perform all basic activities for adult daily living. Claimant also likes to play the guitar, and some days, he plays his guitar.

Claimant hires someone to mow his lawn because if he tries to mow the lawn, he can only finish the front before he has to stop, and sometimes it is days before Claimant is able to get up and be physically able to mow the back yard and finish the job. He does not have a large yard.

Claimant's inability to sit, stand, or walk for any appreciable period of time, coupled with his age, limited education, and limited reading and math skills, renders Claimant permanently and totally disabled from re-employment. Claimant has been unemployed since late September 2007.

Claimant's finding is supported by the credible reports, the records, and the testimony of Dr. David Myers, D.O., Claimant's personal physician, and of Dr. Garth Russell, M.D., who examined Claimant twice on behalf of Claimant, and the competent, credible, and reliable vocational report and testimony of Sherry Browning, MA, CRC, LPC.

Claimant is permanently and totally disabled as a result of the combination of the pre-existing degenerative joint disease and disc disease throughout his lumbar spine and the primary injury or ruptured disc at L4-L5 of his lumbar spine.

As noted, Claimant has met his burden of proof that it is the combination of the primary injury and the pre-existing condition that is now painfully debilitating that renders Claimant disabled. The Second Injury Fund has liability.

Page 18

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

It has been stipulated that Claimant reached maximum medical improvement (MMI) from the primary injury of July 8, 2007 on January 3, 2008. The evidence shows that Claimant is permanently and totally disabled as of January 3, 2008. The Court has previously found that Claimant had permanent partial disability (PPD) of 35% or 140 weeks. The employer is liable to Claimant for that 140 weeks, or up to September 8, 2010, in the amount of $389.04 per week. The employer has extinguished that liability with its payment of the STIPULATION FOR COMPROMISE SETTLEMENT, including disputed permanent total disability. The Court gives full credit to the Second Injury Fund for that payment and will assess the difference between the PPD and PTD rates. From January 3, 2008, through September 8, 2010, the Second Injury fund is liable to the Claimant at a weekly rate of 353.68, for a total amount of 49,515.20.

From September 9, 2010 and continuing thereafter, the Second Injury Fund is liable to Claimant in the stipulated weekly rate of $742.72.

Prior to the trial of this matter, Claimant resolved his civil suit against Porter Poultry. Claimant's net recovery after payment of attorney's and expenses amounted to $406,543.13¹. Although this transpired at the trial of this matter, the Second Injury Fund is entitled to a set-off or credit in that amount. But, it is subject to the Ruediger formula or to their prorated share of attorney's fees and expenses. See: *Parker v. Laclede Gas Co.*, 770 S.W. 2d 461 (Mo. App. ED 1989).

The Second Injury Fund is liable to Claimant for PTD commencing January 3, 2008. However, the Second Injury Fund is only liable for the amount above that paid by the employer as it relates to the STIPULATION FOR COMPROMISE SETTLEMENT with disputed TTD, PTD, and past medical payments.

The stipulated rates are 742.72 for PTD and 389.04 for PPD. The employer has been found liable for 140 weeks of PPD at $389.04/week. This obligation has been extinguished by the STIPULATION FOR COMPROMISE SETTLEMENT and Stipulation filed therewith. The Second Injury Fund is liable for the balance of $353.68/week for 140 weeks or $49,515.20, the difference between the PPD paid by the employer and PTD owed by the Second Injury Fund for those 140 weeks.

As noted, the civil suit resulted in a net recovery of $406,543.13. The Second Injury Fund is entitled to a set-off or credit in that amount commencing January 3, 2008. But the Second Injury Fund remains liable for the unpaid portion of the PTD, or $49,515.20.

The total of the differential due by the Fund for the first 140 weeks is (140 x 353.68) or $49,515.20, must be deducted from the full credit to determine the number of remaining weeks of credit. (406,543.13 - 49,515.20 = 357,027.93). That figure divided by 742.72 equals an

1 This Court has been provided a breakdown of the gross amount received and gross amount of expenses by counsel for Claimant and has verified the net recovery.

Page 19

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Atchison

Injury No. 07-087687

additional 480 5/7 weeks of compensation credit. The Second Injury Fund's liability does not commence until the total of 620 5/7 weeks of compensation ( $140+4805 / 7$ ) has expired calculated from the stipulated date of January 3, 2008, or on November 26, 2019. Commencing that date, SIF will owe $\ 742.72 each week for life.

Thomas C. DeVoto is allowed a fee of 25 % of all sums awarded under the provisions of this Award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein. Interest on all sums awarded hereunder shall be paid as provided by law.


Made by: $\qquad$

Kevin A. Elmer

Administrative Law Judge

Division of Workers' Compensation