Thomas Fenwick v. The Doe Run Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

Injury No. 15-029217

**Employee:** Thomas Fenwick

**Employer:** The Doe Run Company

**Insurer:** American Zurich Insurance Company

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

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.

On July 25, 2019, employee filed a Motion to Strike Employer/Insurer's Statement of Facts (Motion to Strike). On July 30, 2019, employer/insurer filed its Response to Respondent Employee's Motion to Strike Employer/Insurer's Statement of Facts (Response).

Commission Rule 8 CSR 20-3.030(5)(C), effective October 30, 2019, provides, in pertinent part:

> The petitioner's brief shall contain a fair and concise statement of facts without argument, with citations to the pertinent pages of the transcript supporting each factual assertion. . . . Upon its own motion, or upon motion by any interested party, the commission may, in its discretion, decline to consider any brief or any portion of a brief that is not filed in accordance with these rules (emphasis added).

Employee's Motion to Strike identifies specific portions of petitioner employer/insurer's statement of facts that construe employee's responses to employer/insurer's cross-examination as representing employee's trial testimony. Employee urges the Commission to strike employer/insurer's statement of facts on the basis that it is not fair and without argument, and, at fifteen pages in length, is not "concise".

Employer/insurer's Response declares that no statutory or regulatory authority supports employee's Motion to Strike and implies that the Commission is devoid of power to strike a party's statement of facts. This argument is clearly erroneous in that the last line of the Commission Rule 8 CSR 20-3.030(5)(C), specifically authorizes the Commission, on its own motion or the motion of any interested party, to decline to

Injury No. 15-029217

Employee: Thomas Fenwick

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consider any brief or any portion of a brief that fails to comply with the Commission's rules.

Notwithstanding the deficiencies in petitioner employer/insurer's statement of facts identified in employee's Motion to Strike, we consider the motion as moot in light of our decision herein affirming the administrative law judge's award. We therefore decline to rule on employee's Motion to Strike.

**Medical Causation**

We affirm the administrative law judge's finding that Dr. David Volarich's expert medical opinion on the issue of medical causation of disability to employee's cervical, thoracic, and lumbar spine is more persuasive than the opinions of Dr. Coyle, Dr. Peeples, Dr. Doll, Dr. Cantrell, and Dr. Chabot.

Dr. Volarich based his findings in part on objective tests that included X-rays and MRI's. *Transcript*, 92-93. Dr. Volarich's opinion on medical causation does not entirely conflict with the opinion of employer's expert Dr. James J. Coyle who found that employee's "current condition is due to his work injury of April 28, 2015 as well as congenital cervical stenosis." *Transcript*, 303. Only Dr. Chabot found that the prevailing factor in employee's current complaints was chronic degenerative changes that preexisted his injury and that the employee had no permanent partial disability relating to the April 28, 2015, work injury.

On the issue of medical causation, we note Dr. Volarich's April 5, 2017, finding in connection with his independent medical examination of employee on that date:

> [I]t is my opinion [that] the repetitive impact trauma to the spine driving hauling trucks leading up to and on 4/24/15 are the primary and prevailing factors causing the cervical spine disc herniation at C4-5 and protrusions at C3-4, C5-6, and C6-7 that required non-operative care, as well as causing the thoracic spine disc herniations at T6-7, T7-8, and the protrusion at T8-9 for which he received non-operative care, as well as causing the disc bulging at L2-3, L3-4, and L4-5 that also required non-operative care. The work injury was the prevailing factor causing his symptoms, need for treatment, and resulting disabilities. *Transcript*, 94.

Dr. Volarich's credible opinion, as set out above, constitutes competent and substantial evidence in support of the administrative law judge's finding on the issue of medical causation.

**Nature and Extent of Disability**

We further affirm the administrative law judge's finding that employee suffered disability consisting of twenty-two percent (22%) of the body as a whole at the 400-week level referable to his cervical, thoracic, and lumbar spines as a result of his work injury on or about April 24, 2015. The administrative law judge's disability award represents a compromise of expert opinions produced by both sides that include employee's expert Dr. Volarich's significantly higher evaluation of 25% permanent partial disability at the cervical spine, 25% permanent partial disability of the thoracic spine and 17.5% permanent partial disability of the lumbar spine, all rated at the body as a whole.

Injury No. 15-029217

Employee: Thomas Fenwick

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Although the administrative law judge's findings regarding the nature and extent of employee's permanent disability might have included greater specificity, he did not err in making a combined award based on the body as a whole given that employee sustained multiple unscheduled injuries all attributable to distinct components of his spine. See *Carenza v. Vulcan-Cincinnati, Inc.*, 368 S.W.2d 507 (Mo. App. 1963).

**Award**

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

The award and decision of Administrative Law Judge Carl Strange, issued February 7, 2019, is attached and incorporated by this reference.

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

Given at Jefferson City, State of Missouri, this **4th** day of December 2019.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert Cornejo, Chairman

**DISSENTING OPINION FILED**

Reid K. Forrester, Jr., Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

**Injury No. 15-029217**

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I consider the majority's award of permanent partial disability and future medical in this matter excessive in light of employee's demonstrated lack of credibility and the credible expert opinions in the record.

I concur with the majority's opinion insofar as it finds that employee's Motion to Strike Employer/Insurer's Statement of Facts is authorized by Commission Rule 8 CSR 20-3.030(5)(C) which requires that a petitioner's brief "shall contain a fair and concise statement of facts without argument" and expressly permits the Commission "upon its own motion or upon motion by any interested party. [to] decline to consider a statement of fact that is not in compliance with its rules."

That said it is relevant to note that this provision represents a recent change in this Commission rule. Prior to October 30, 2019, 8 CSR 20-3.030(5) only specifically addressed the Commission's authority to decline to consider a brief that failed to comply with the provisions of 8 CSR 20-3.030(5)(B), relating to page limits for petitioner's and respondent's briefs and the time limit for filing a reply brief. The Secretary of State did not publish the current version of Rule 8 CSR 20-3.030(5)(C) for comment in the Missouri Register until May 15, 2019, and the revised rule did not become effective until October 30, 2019, nearly four months after employer/insurer filed its brief with the Commission and three months after employer/insurer's response to employee's motion to strike its statement of facts.

Employer/insurer's July 20, 2019, response to employee's Motion to Strike was therefore accurate in its representation that no express authority to make such a motion existed in either § 287.480 or in the Commission rules that were in effect at the time employer's brief and employee's Motion to Strike were filed.

The administrative law judge erred in finding employee's cervical and thoracic complaints causally related to the April 24, 2015 injury.

Pursuant to § 287.190.6(2), when medical evidence is conflicting, objective findings hold more weight than subjective reports. Here, employee did not even complain of cervical or thoracic spine symptoms until three months after the April 24, 2015, accident. He only began complaining of neck pain after Dr. James Coyle discovered congenital stenosis and disc pathology on an x-ray. Employee then suddenly began complaining of neck pain to every physician thereafter. Employee's delay in reporting his symptoms weighs against a finding of causation. Even Dr. Volarich, employee's own expert, confronted employee with this glaring discrepancy in the record.

A large amount of objective evidence weighs against employee's credibility. In addition to the delay in manifestation of symptoms, the objective record shows many inconsistencies between employee's subjective statements and the objective findings. For example, nearly every physician employee visited, as well as his physical

Injury No. 15-029217

Employee: Thomas Fenwick

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therapists, noted symptom magnification behavior. Employee reported to Dr. Coyle that he had neck pain radiating as far distally as his mid-thoracic spine and lower back pain radiating into both lower extremities. However, on physical exam employee displayed good range of motion, negative straight leg raising and excellent lower and upper extremity strength. Dr. Peeples noted the absence of characteristic radicular symptoms that typically accompany such complaints. Dr. Doll contrasted employee's severe pain complaints with an absence of objective findings. Dr. Cantrell and Dr. Chabot found employee's reports of tenderness to even the slightest palpation exaggerated. Employee's physical therapists deemed his complaints inconsistent with any dermatomal or nerve root pattern. Employee was observed walking with a limp when entering the clinic, then leaving the clinic without one.

Employee further demonstrated a lack of credibility when he expressly denied prior back injuries to Dr. Coyle, denied prior cervical or thoracic injuries to Dr. Cantrell and Dr. Chabot, and even denied prior spine issues to his own doctor, Dr. Volarich. The record clearly shows that employee had a well-documented history of severe pain to all of these areas. Yet more damaging was employee's testimony that he never received a physical examination from Dr. Smith, Dr. Peebles, Dr. Doll, Dr. Cantrell, or Dr. Chabot, when the record shows each of these physicians examined him. This evidence demonstrates that employee's subjective complaints lack credibility.

In addition to erring in relying on employee's subjective complaints, the administrative law judge erred in relying on Dr. Volarich's opinions. Dr. Volarich is not a specialist in the cervical, thoracic, or lumbar spine areas. Dr. Doll, on the other hand, is a board certified physiatrist. Dr. Cantrell is board certified in physical medicine and rehabilitation. Dr. Chabot is a board certified orthopedic surgeon. All three of these physicians physically examined employee and made thorough objective findings. Critically, all three were consistent in their objective findings. Dr. Chabot and Dr. Cantrell are particularly persuasive because they had all the prior medical records, imaging studies, employee's subjective reports, and all other medical evidence in front of them when they formed their consistent opinions. Dr. Volarich's opinion pales in comparison to those of Dr. Doll, Dr. Cantrell, and Dr. Chabot, each of whose opinion is consistent with and supported by the others. Even Dr. Volarich conceded that employee had preexisting degenerative changes throughout his thoracic spine and placed him at maximum medical improvement. The administrative law judge declined to explain why he disagreed with the opinions of Dr. Doll, Dr. Cantrell, and Dr. Chabot. He simply stated that he found Dr. Chabot to have ignored the facts of the case and to have issued a medical opinion unsupported by the evidence. However, Dr. Chabot had all the medical evidence in front of him when forming his opinion and his assessment is independently consistent with nearly all the other treating physicians. The administrative law judge therefore erred in finding the opinion of Dr. Volarich more credible than the opinions of Dr. Doll, Dr. Cantrell, and Dr. Chabot.

Nature and Extent of Disability

The administrative law judge erred in awarding employee 22% permanent partial disability to the body as a whole. He based his findings on employee's testimony. However, as has been shown, employee's subjective complaints are highly lacking in credibility, especially in light of the substantial inconsistent objective evidence.

Injury No. 15-029217

Employee: Thomas Fenwick

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Dr. Chabot, an orthopedic surgeon who had all of the medical evidence in front of him when making his opinion, found that employee suffered no permanent partial disability. This is a far cry from the 22% awarded by the administrative law judge. The administrative law judge's permanent partial disability award should be reversed.

**Future Medical Aid**

The administrative law judge erred in finding employee entitled to future medical treatment in the form of over-the-counter analgesics. The administrative law judge gave no basis for his award other than to simply acknowledge that Dr. Volarich recommended over-the-counter analgesics and to state that Dr. Volarich's opinion was more credible than any other conflicting opinions.

The record clearly shows that four separate physicians placed employee at maximum medical improvement, including his own expert Dr. Volarich. Dr. Doll, Dr. Cantrell, and Dr. Chabot all considered employee at maximum medical improvement for his April 24, 2015 injury. Employee failed to demonstrate any basis for additional medical treatment.

The administrative law judge erred in relying on employee's subjective complaints, as explained, supra.

Finally, the administrative law judge's award of future medical is improperly vague and open-ended. Employer has no way of monitoring the extent of employee's access to over-the-counter analgesics, as there is no way to control how many he needs or receives, to whom he might give them, or how employee otherwise may choose to consume them. Even assuming an award of future medical is appropriate, the award should be well defined to ensure employer is properly able to comply with it.

**Conclusion**

For the reasons discussed above, the administrative law judge's findings on the issues of medical causation, nature and extent of disability and future medical aid are unsupported by the competent and substantial evidence in the record. The administrative law judge's award should be reversed.

Because the majority finds otherwise, I respectfully dissent.

Reid K. Forrester, Jr., Member

Employee: Thomas Fenwick

Injury No. 15-029217

Employee: Thomas Fenwick

Injury No. 15-029217

Dependents: N/A

Employer: The Doe Run Company

Additional Party: Second Injury Fund (OPEN)

Insurer: American Zurich Insurance Company

Hearing Date: October 10, 2018

Checked by: CS/kg

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? On or about April 24, 2015.

1. State location where accident occurred or occupational disease contracted: Iron County, 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 happened or occupational disease contracted: Employee injured his cervical, thoracic, and lumbar spines as a result of being bounced around in a haul truck.

Employee: Thomas Fenwick

Injury No. 15-029217

1. Did accident or occupational disease cause death? N/A.

1. Parts of body injured by accident or occupational disease: Cervical, thoracic, and lumbar spines.

1. Nature and extent of any permanent disability: 22% of the body as a whole at the 400 week level referable to his cervical, thoracic, and lumbar spines.

1. Compensation paid to date for temporary total disability: 0.00.

1. Value necessary medical aid paid to date by the employer-insurer: 14,428.93.

1. Value necessary medical aid not furnished by the employer-insurer: N/A.

1. Employee's average weekly wage: Not Calculated.

1. Weekly compensation rate:

$451.02 for temporary total disability, permanent total disability, and permanent partial disability.

1. Method wages computation: By Agreement.

1. Amount of compensation payable: Employee awarded permanent partial disability from the employer-insurer in the amount of $39,689.76 (See Findings).

1. Second Injury Fund liability: N/A.

1. Future requirements awarded: Yes (See Findings).

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of costs plus 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Kenneth Seufert

Employee: Thomas Fenwick

Injury No. 15-029217

On October 10, 2018, the employee, Thomas Fenwick, appeared in person and by his attorney, Kenneth Seufert, for a hearing for a final award. The employer-insurer was represented at the hearing by its attorney, Jay Lory. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with the findings of fact and rulings of law, are set forth below as follows.

1. On or about April 24, 2015, The Doe Run Company was operating under and subject to the provisions of the Missouri Workers' Compensation Act and its liability was insured by American Zurich Insurance Company.
2. On or about April 24, 2015, the employee was an employee of The Doe Run Company and was working under and subject to the provisions of the Missouri Workers' Compensation Act.
3. On or about April 24, 2015, the employee sustained an accident arising out of and in the course of his employment.
4. The employer had notice of the employee's accident.
5. The employee's claim was filed within the time allowed by law.
6. The employee's rate for temporary total disability, permanent total disability, and permanent partial disability is 451.02.
7. The employer has furnished 14,428.93 in medical aid to employee.
8. The employer has paid no temporary total disability.

1. Medical Causation
2. Future Medical Aid
3. Nature and Extent
4. Fees and Costs

The following exhibits were offered and admitted into evidence:

1A. Report of Dr. David Volarich;

1B. Curriculum Vitae of Dr. David Volarich;

1C. Records provided to Dr. David Volarich;

1. N/A
2. Report of Injury for 5/22/2014 DOI;
3. Claim for Compensation for 5/22/2014 DOI;
4. Medical History of Employee for 5/22/2014 DOI:

1. Dr. Evan Crandall;

Employee: Thomas Fenwick

Injury No. 15-029217

1. Dr. Daniel Phillips;
2. Pro Rehab/Athletico;

1. Report of Injury for on or about 4/28/2015 DOI;

1. Claim for Compensation for on or about 4/24/2015 DOI;

1. Medical History of Employee for on or about 4/28/2015 DOI:

1. Salem Memorial District Hospital;

2. Viburnum Medical Clinic;

3. Midwest Imaging;

4. Dr. James Coyle;

5. Professional Imaging;

6. St. Luke's Hospital;

7. Dr. Gregory Smith;

8. Dr. David Peeples;

9. Dr. James Doll;

10. Pro Rehab/Athletico;

1. Report of Dr. Russell Cantrell;
2. Report of Dr. Michael Chabot;
3. Division of Workers' Compensation Records;
4. Pre-existing Medical History of Employee:

1. Midwest Health Group;

2. SE Health Center Reynolds County;

1. Pre-existing Medical Records of The Orthopedic Center of St. Louis;

Employer-Insurer's Exhibits:

A. Curriculum Vitae of Dr. Evan Crandall;

B. Curriculum Vitae of Dr. James Doll;

C. Curriculum Vitae of Dr. Russell Cantrell;

D. Curriculum Vitae of Dr. Michael Chabot;

E. Department of Corrections Essential Functions Evaluation;

F. Correspondence from Insurer to Employee; and

G. Casenet Printout.

APPLICABLE LAW:

- The employee has the burden to prove all material elements of his claim. *Melvies v. Morris*, 422 S.W.2d 335 (Mo.App.1968). The employee has the burden of proving not only that he sustained an accident that arose out of and in the course of his employment, but also that there is a medical causal relationship between his accident and the injuries and the medical treatment for which he is seeking compensation. *Griggs v. A B Chance Company*, 503 S.W.2d 697 (Mo.App.1973).

- The standard of proof for entitlement to an allowance for future medical aid cannot be met simply by offering testimony that it is "possible" that the claimant will need future medical treatment. *Modlin v. Sunmark, Inc.*, 699 S.W.2d 5, 7 (Mo.App.1995). The cases establish, however, that it is not necessary for the claimant to present "conclusive evidence" of the need for future medical treatment. *Sifferman v. Sears Roebuck and*

Employee: Thomas Fenwick

Injury No. 15-029217

*Company*, 906 S.W. 2d 823, 838 (Mo. App.1995). To the contrary, numerous cases have made it clear that in order to meet their burden, claimants are required to show by a "reasonable probability" that they will need future medical treatment. *Dean v St. Lukes Hospital*, 936 S.W. 2d 601 (Mo.App.1997). In addition, employees must establish through competent medical evidence that the medical care requested, "flows from the accident" before the employer is responsible. *Landers v Chrysler Corporation*, 963 S.W. 2d 275, (Mo.App.1997).

Thomas Fenwick ("Employee") has offered the opinion of Dr. Volarich in support of his contention that he suffered a cervical, thoracic, and lumbar injury on or about April 24, 2015, as a result of a work accident where he was bounced around in the cab of a haul truck. The Doe Run Company ("Employer") has disputed Employee's claim for permanent injury to his cervical, thoracic, and lumbar as a result of this accident based on the opinions of Dr. Chabot. Employer-Insurer also provided treatment/evaluation to Employee through Dr. Coyle, Dr. Peeples, Dr. Doll, and Dr. Cantrell.

On June 15, 2015, Dr. Coyle examined Employee and noted that he was having persistent low and mid back pain. After ordering testing, Dr. Coyle noted two disc herniations at T6-7 and T7-8 and "they could be causing some of his back pain." On July 7, 2015, Dr. Coyle noted that Employee spinal cord compression due to a C4-C5 cervical disc herniation which abuts the cord centrally, a disc protrusion on the right side of the spinal cord at C5-6, and congenital narrowing at C3-C4 and C6-7. After noting a referral for injections, Dr. Coyle opined that "his current condition is due to his work injury of April 28, 2015 as well as congenital cervical stenosis". On August 27, 2015, Dr. Coyle referred Employee out for spinal cord contusion with Dr. Peeples (Employee's Exhibit 8).

Dr. Peeples examined Employee on August 24, 2015, and opined that there were no clinical findings to support a spinal cord contusion and further recommended NO diagnostic studies because those findings could interfere with treatment. Dr. Peeples recommended physical therapy and physiatry (Employee's Exhibit 8). On October 19, 2015, Dr. Doll opined that Employee had a lumbar strain on April 28, 2015 and placed him at maximum medical improvement. Following continued complaints by Employee, Employer-Insurer sent Employee to Dr. Russell Cantrell. On March 7, 2016, Dr. Cantrell opined that "it is my opinion that the described work injury would be considered the prevailing factor in a cervical sprain diagnosis" and recommended a short course of physical therapy (Employee's Exhibit 9).

On September 8, 2016, Dr. Michael Chabot examined Employee and opined that "the prevailing factor in his persisting complaints involving the C-spine, T-spine, and L-spine is chronic degenerative changes that pre-existed his injury". Consequently, Dr. Chabot placed Employee at maximum medical improvement and noted that there was no permanent partial disability as a result of the work injury (Employee's Exhibit 10).

MNKOI 0000811648

**Injury No. 15-029217**

Dr. David Volarich examined Employee on April 5, 2017, and diagnosed him with repetitive impact trauma at the cervical, thoracic, and lumbar spines causing disc herniations at C4-5, T6-7, and T7-8; causing protrusions at C3-4, C5-6, C6-7, and T8-9; causing disc bulging at L2-3, L3-4, and L4-5; and causing aggravation of face arthropathy as a result of the April 24, 2015 work injury. Further, Dr. Volarich opined that Employee suffered a 25% permanent partial disability at the cervical spine, a 25% permanent partial disability at the thoracic spine; and a 17.5% permanent partial disability at the lumbar spine (Employee's Exhibit 1-A).

After considering all of the evidence, I find that Employee's testimony is persuasive and supported by the medical treatment records in evidence. Further, I find that based on all of the evidence that Dr. Volarich's opinions are more persuasive than Dr. Coyle, Dr. Peeples, Dr. Doll, Dr. Cantrell, and Dr. Chabot. I further find the opinions of Dr. Chabot to be not credible since they blatantly ignore the facts of this case and are not supported by the evidence. Based on the evidence, I find that Employee has satisfied his burden of proof on the issue of medical causation. I therefore find that Employee's injuries to his cervical, thoracic, and lumbar spine as identified by Dr. Volarich are medically and causally related to his work-related injuries.

Employee has also requested an award of future medical aid regarding his cervical, thoracic, and lumbar work-related injury occurring on or about April 24, 2015. In support of his position, Employee has offered numerous medical records and the medical report of Dr. David Volarich. Following his examination of Employee, Dr. Volarich recommended Employee to "continue a home exercise program, walk for 30 minutes a day, and take over-the-counter analgesics as needed for discomfort" (Employee's Exhibit 1-A). It logically follows that Employee will require continued medical care in the form of over-the-counter analgesics to address and control the symptoms that are a result of the on or about April 24, 2015 work-related injury. In accordance with the evidence and my above findings, I find the opinions of Dr. Volarich to be supported by the evidence and more credible than any other conflicting opinion. I further find that the evidence supports a finding that Employee will require future medical treatment in the form of over-the-counter analgesics to cure and relieve him from the effects of his on or about April 24, 2015 work-related injury. Based on the evidence and my above findings, Employer-Insurer is therefore directed to furnish additional medical treatment related to Employee's on or about April 24, 2015 work-related injury in accordance with Section 287.140 RSMo.

At the time of the hearing, Employee testified that he continued to have problems with his cervical, thoracic, and lumbar spines that included pain, locking, headaches, decreased range of motion, difficulty bending over, difficulty sleeping, numbness, and difficulty sitting.

Based on the evidence and my above findings, I find that Employee suffered a twenty-two percent (22%) of the body as a whole at the 400 week level referable to his cervical,

thoracic, and lumbar spines as a result of the on or about April 24, 2015 work-related injury. The twenty-two percent (22%) of the body as a whole is equal to 88 weeks. Accordingly, Employer-Insurer is therefore directed to pay Employee the sum of 451.02 per week for 88 weeks for a total of 39,689.76.

Employee has requested an award of attorney fees and costs under Section 287.560 RSMo. That section states that if the Division determines that any proceedings have been brought, prosecuted or defended without reasonable grounds, it may assess the whole cost of the proceedings upon the party who so brought, prosecuted or defended them. Based on the Employer offering Dr. Chabot's opinion into the evidence, I find that Employer-Insurer did not bring, prosecute or defend their case without reasonable grounds. Thus, Employee's request for attorney fees and costs under Section 287.560 RSMo is denied.

Kenneth Seufert, attorney at law, is allowed a fee of costs plus 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.

I certify that on **2-7-19** I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By **Mp**


Made by:

**Carl Strange**

Administrative Law Judge

Division of Workers' Compensation