Mark Howard v. GSF Mortgage

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

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

**Injury No.:** 15-049121

**Employee:** Mark Howard

**Employer:** GSF Mortgage (Settled)

**Insurer:** Chubb Indemnity Insurance (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, and considered the whole record, we find that the award of the administrative law judge denying compensation for employee's Second Injury Fund claim 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 administrative law judge's award and decision with this supplemental opinion.

Employee's claim against the Second Injury Fund herein involves a primary injury that occurred on June 28, 2015. Pursuant to the June 25, 2019, decision by the Supreme Court of Missouri in the case of *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. banc 2019), the provisions under § 287.220.3 RSMo apply to employee's claim against the Second Injury Fund.

The administrative law judge's July 25, 2019, award appears to incorrectly rely on § 287.220.1 (2014) as the law applicable to employee's claim against the Second Injury Fund for permanent total disability. The award references the requirement included in that statute that the employee show that he suffers from "a preexisting permanent partial disability, whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." As noted in the Second Injury Fund's appellant brief, this finding is not required by § 287.220.3 RSMo.

The award further states, "For Claimant to demonstrate Fund liability for PTD, he must establish: (1) The extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD [emphasis added]." *Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157* (Mo. App. 2014). To the contrary, § 287.220.3 RSMo expressly excludes certain preexisting disabilities from being considered in post-2014 permanent total disability claims against the Second Injury Fund.

1 Award, p. 9.

2 Award, p. 10.

Injury No.: 15-049121

Employee: Mark Howard

- 2 -

Ultimately, in light of our deference to the administrative law judge's weighing of the pivotal issue of medical causation of employee's permanent total disability, and his finding that employee's permanent total disability results solely from his June 28, 2015, primary injury, we need not undertake an analysis whether employee's evidence in this case is sufficient to meet the criteria for permanent total disability claims against the Second Injury Fund under § 287.220.3. Rather, we simply wish to make clear our understanding that the *Cosby* ruling works the effect that § 287.220.3 applies to employee's claim against the Second Injury Fund herein.

**Liability of the Second Injury Fund**

An administrative law judge approved a Stipulation for Compromise Settlement of employee's claim against the employer/insurer in this case on March 21, 2019. Employee's remaining claim for permanent total disability involves only the Second Injury Fund.

Administrative Law Judge Joseph P. Keaveny ruled that employee was unable to work as a direct result of his June 28, 2015, work injury. He noted that employee's compromise settlement with employer/insurer was "remarkable for its significant permanent partial disability rating of 69 percent of the body as a whole attributable to the head, neck, back, brain, nerves, and psychiatric condition." The administrative law judge noted that prior to the 2015 injury employee worked sixty to seventy hours per week, six days per week, looking at paperwork and his computer screen. He found that employee failed to demonstrate the effect that his preexisting psychiatric issues had on the primary injury. He found "[i]t was only after the June 28, 2015 injury that employee developed blurred vision, headaches, disequilibrium, and neck pain rendering him unable to return to any employment." The administrative law judge noted, "The Second Injury Fund is not liable for any post-accident worsening of an employee's preexisting disabilities, which are not caused or aggravated by the last work-related injury, or for any conditions which arise after the last work-related injury."

We note that Dr. David T. Volarich's physical restrictions were attributable solely to employee's 2015 work injury, and that Dr. Volarich did not offer an opinion regarding employee's employability. We further note that vocational expert Mr. Timothy G. Lalk opined that Dr. Volarich's specific restriction involving employee's need for constant supervision in any attempt to perform any kind of work activities would, by itself, render employee unemployable on the open job market. Based on this evidence, we find as a factual matter that employee's current condition is solely attributable to his June 28, 2015, work injury and that the Second Injury Fund is not liable for employee's alleged permanent and total disability.

The administrative law judge provided detailed factual findings and explained his view of the opinion evidence. Other than our observation that the award incorrectly cites statutory provisions applicable to employee's permanent total disability claim against the Second Injury Fund, based on his June 28, 2015, injury, and our affirmative findings.

*Id.*

*Id.*

*Id., p. 11.*

Injury No.: 15-049121

Employee: Mark Howard

-3-

regarding the issue of medical causation, supra, we otherwise agree with the administrative law judge's findings and conclusions with regard to the issues involved in this appeal.

**Conclusion**

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

The award and decision of Administrative Law Judge Joseph P. Keaveny, issued July 25, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this 13th day of July 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

SEPARATE OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 15-049121

Employee: Mark Howard

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on record as a whole. I concur with the majority's finding that § 287.220.3 RSMo applies to employee's claim, based on his June 28, 2015, injury. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I disagree with the majority's denial of compensation because I believe employee has proven he is entitled to permanent total disability benefits from the Second Injury Fund.

Reviewing the administrative law judge's decision shows that he committed error in finding that the Second Injury Fund is not liable for permanent total disability benefits because he failed to recognize that employee's current condition is caused largely by the manner in which his preexisting psychiatric condition interacted with and exacerbated the work related injury, not due to the work injury alone.

Employee had numerous preexisting disabling medical conditions, one of them being his psychiatric condition, a condition that troubled him for years. In 2009, employee was diagnosed with depression and fatigue, which were treated with medication. In 2010 medical records noted employee had been under psychiatric care for years, complained of fatigue, and feeling as if his brain was in a haze. Employee was diagnosed with "refractory depression" which exhibited itself in symptoms of anhedonia, hopelessness, anxiety attacks, and lack of motivation. Despite treatment with a dozen different psychiatric medications, in 2011 employee had still not obtained relief from fatigue, depression and anhedonia. In 2013, employee was advised to consider TMS (transcranial magnetic stimulation) to treat his depression. In 2014, despite twenty-three TMS treatments, employee's symptoms worsened and he suffered from chronic headaches. Employee was distraught, had excessive sweating, and his whole body hurt. A number of different psychiatric medications were prescribed throughout 2014. Just eleven months before the work accident occurred, employee told his doctor that he was fighting to get through each day of work and it was "killing my paycheck" as a commission-only mortgage banker. Just two months before the work accident, employee was still taking four different psychiatric medications. The conclusion to be drawn from these records is that employee had significant preexisting psychiatric problems that affected his ability to work.

The Second Injury Fund's expert, Mr. Timothy Lalk, testified that employee's preexisting psychiatric condition is largely driving employee's current physical complaints, because of the interaction of the two. Mr. Lalk stated that when individuals with longstanding psychological conditions—like depression and anxiety—develop physical complaints, the physical complaints then become an overwhelming problem to them, because of the interaction of the physical with the psychological. He cited to psychological and counseling literature, which indicates that a person with depression and anxiety will

6 Transcript, 899.

Injury No.: 15-049121

Employee: Mark Howard

-2-

often report their stressors as symptoms of physical complaints. The administrative law judge overlooked this. Mr. Lalk essentially testified that if the employee did not have preexisting psychiatric illness, his injury at work would not have disabled him to the extent that it has. Employee's preexisting psychiatric illness gave him a propensity to have a worsening of the effect of his physical symptoms. The Second Injury Fund's own witness, Mr. Lalk, confirmed that employee's current condition is due to a combination of his pre-injury psychiatric illness with the work injury's physical injury.

Mr. Lalk opined that because of the way employee's pre-injury psychiatric illness combined to aggravate his work-related physical injury, it is doubtful that employee will ever be able to return to any type of employment. This opinion is clearly contrary to the administrative law judge's conclusion that no such testimony was offered and that the employee's preexisting condition did not affect the work accident.

Dr. Greg Bassett, the only psychiatrist to testify, supported Mr. Lalk's testimony relating to a combination of conditions. Dr. Bassett diagnosed employee with five preexisting psychiatric conditions: history of concussions; history of hyperhidrosis; history of fatigue; anxiety and depression; and possible childhood attention deficit hyperactivity disorder. This is in addition to the one psychiatric condition attributable to the work injury, a mild neurocognitive disorder due to a traumatic brain injury. Dr. Bassett established that employee's psychiatric condition is medically partly due to the work accident and partly preexisting. This evidence directly contradicts the administrative law judge's finding that there was a failure to provide evidence which established that employee's current condition was caused by the manner in which the preexisting conditions caused a worsening of employee's work accident.

The effect of other preexisting conditions

The Second Injury Fund argues that Dr. Volarich's restrictions on employee's activities—solely from the work accident—cause him to be totally disabled. A thorough review shows that this is not the case. While it is true that Dr. Volarich listed a number of restrictions as coming from the work accident, the evidence shows that these restrictions were actually partly a result of the preexisting medical conditions. To remove any doubt as to his intentions, Dr. Volarich specifically testified that employee's permanent total disability is a result of a combination of problems, not due to the work accident alone.

Prior cervical disease

Dr. Volarich recommended that employee have restrictions for his cervical spine, including changing position frequently to maximize comfort and to rest when needed. He also limited lifting, bending, twisting, pushing, pulling, carrying, and climbing. Dr. Robert Bernardi, the only board certified neurosurgeon to testify, opined that these cervical problems were a preexisting condition, not something caused by the work accident. He concluded that employee had congenital cervical stenosis, multi-level cervical degenerative disc disease, multi-level cervical central and foraminal stenosis. He explained that employee had a spinal canal that was smaller than average: a genetically determined trait. Employee also had degenerative disc disease at multiple levels of his neck, a process driven primarily by genetics. He said the loss of disc

Injury No.: 15-049121

Employee: Mark Howard

-3-

hydration and disc bulging seen on the MRI were all present prior to the work injury. Employee was also receiving ongoing narcotic pain medication up to the work accident, partially for the cervical spine. This evidence contradicts a finding that Dr. Volarich's cervical restrictions were solely due to the "last accident alone". Through Dr. Bernardi's testimony it is seen that the cervical condition—which caused Dr. Volarich to recommend physical restrictions—was not a condition that was fully caused by the work accident, as it was largely a congenital and degenerative condition. Therefore Dr. Volarich's restrictions need to be viewed as largely a preexisting problem.

The preexisting nature of employee's cervical condition is further evidenced in employee's subjective complaints before the work injury. In June 2012, he was receiving treatment for a variety of pain complaints, including pain in his back, hands, feet, and neck. He continued to complain of pain in his hands, feet, elbows and spine from his neck to his tailbone in November 2012. At his last appointment prior to his work injury, on April 3, 2015, employee was still being seen for chronic generalized pain, which was still being treated with narcotic pain medication. Just weeks before his work accident, his pain level was stable at a five on a ten-point scale.

Prior cognitive illness

Just as Dr. Volarich's cervical restrictions need to be viewed as largely a preexisting condition, the same holds true with the cognitive restrictions. Dr. Volarich recommended that employee be supervised if he was going to attempt any type of work activity, and not be on his feet all day because of problems from the closed head injury. But as with the cervical problems, the medical evidence shows that many of employee's cognitive problems were preexisting his work injury, as he told his treating physician just months before the work accident that these problems were causing him to fight to get through each day of work, and that it was "killing my paycheck" as a commission only mortgage banker.7 That statement from employee is consistent with the testimony of the only psychiatrist who testified, as Dr. Bassett said that employee's cognitive problems were the result of the combination of his preexisting depression, the physical effect of the concrete hitting him in the head, and the emotional reaction to the physical effects of the concrete hitting him.

Employee's problems with headaches began long before the work accident of June 28, 2015. In fact, his problems were so bad in 2002 that he had an MRI of his brain, with the clinical history listing "headaches". Five years later, on June 18, 2014, just eleven months before the work accident, employee sought treatment for headaches.

Prior chronic pain

Employee was treated for chronic pain for years prior to his work injury. In December, 2010 employee sought treatment from Arthritis Consultants for joint pain and swelling, fatigue, and morning stiffness. His feet were painful and swollen, and he had pain in his hands, wrists, elbows, and ankles. Employee underwent EMG/NCS testing in December 2010 that indicated bilateral carpal tunnel syndrome.

7 Transcript, 899.

Injury No.: 15-049121

Employee: Mark Howard

-4-

Employee began receiving monthly narcotic pain medications from Dr. Daniel J. Bauer for chronic pain in his hands, elbows, and feet in March 2011. In June 2012, his records show that he was still receiving treatment for the same complaints, namely severe fatigue, severe general sweatiness, and pain involving his back, neck, hands and feet. He continued to complain of pain in his hands, feet, elbows, and spine from his neck to his tailbone in November 2012. On February 18, 2014, EMG/NCV testing showed evidence of bilateral tarsal tunnel syndrome. Treatment of employee's chronic pain, including pain management with narcotic medication, continued up to and after his work injury. On April 3, 2015, his last appointment with Dr. Bauer prior to his work injury, employee was seen for chronic generalized pain and narcotic pain medication surveillance.

The effect of employee's preexisting disabilities on his employability

Dr. Volarich testified that employee had permanent disability due to his preexisting conditions, including 15% disabilities in each of his hands, elbows and feet. These disabilities are obviously going to restrict—or at least carry the potential to restrict—the manual activities he may perform, causing him to focus more on sedentary type work. Sedentary work is largely going to be computer related in today's world, and forcing employee to work constantly with computers will worsen his headaches and visual problems. Employee's headaches also largely preexisted.

The Second Injury Fund's vocational expert, Mr. Lauk, also testified that employee's preexisting severe sweating would cause him to need to look for work that occurred indoors, again forcing him into computer work. When asked about employee's headaches that increase with noise, light, and a lot of movement and reading, Mr. Lalk testified that employee should not seek unskilled positions where he could encounter that on a regular basis. Mr. Stephen Dolan, employee's vocational expert, testified that employee had problems with his hands and fingers, in that he had numbness that prevented him from keyboarding and other tasks such as picking up coins.

As stated previously, Dr. Volarich testified that employee's permanent total disability is a result of a combination of problems, not due to the work accident alone. Dr. Bassett, the only testifying psychiatrist, was similar. He said that employee's psychiatric disability is due to both the work accident and preexisting conditions. He pointed out employee's clearly documented preexisting depression. And he said that some of employee's current concentration problems may be due to his pre-injury depression, the physical effect of the concrete hitting him in the head, and the emotional reaction to the physical effects of the concrete hitting him. Dr. Bassett testified it would be difficult for employee to be able to sustain a job and said that employee's current condition is a combination of pre- and post-injury factors.

The interaction of conditions caused employee's total disability

It is clear from the records that employee had significant preexisting psychiatric distress as well as physical distress involving his neck, hands, elbows, feet and ears. It should have been found that employee was rendered permanently and totally disabled not as a result of the June 28, 2015 accident alone, but as a result of the combination of disabilities from that injury with disabilities from employee's preexisting conditions.

Injury No.: 15-049121

Employee: Mark Howard

-5-

Largely employee's preexisting psychiatric condition has driven employee to this point, as its coupling with the work accident caused the work accident condition to be much worse. As employee told his physician just months before his work injury, he was struggling to make it through a day of work and he was not making enough money due to the inability to engage in a full day of work. It therefore should have been found that the Second Injury Fund is responsible for payment of employee's permanent total disability benefits.

The evidence in this matter establishes that the June 28, 2015, accident was limited to producing a partial disability. Employee is unemployable in the open labor market, though the cause of that unemployability is a combination of the effects of the work injury with the effects of the preexisting conditions. The evidence substantiates two main points with regard to employee's disability. First, employee's current state is a result of the interplay between his pre-injury psychiatric illness and physical injuries and his post-injury head trauma. Second, a number of problems which employee attributes to his work injury, such as his headaches and neck pain, were shown to have partially existed before the work accident occurred.

Application of § 287.220.3 RSMo to employee's claim

No party disputes that the provisions of § 287.220.3 apply to employee's June 28, 2015, injury claim. As the Second Injury Fund acknowledges, a finding that employee's preexisting disabilities constituted or had the potential to constitute a hindrance or obstacle to employment or to obtaining reemployment is not required to establish Second Injury Fund liability pursuant to § 287.220.3. Though they were not adjudicated by the administrative law judge, employee's preexisting cervical and psychiatric disabilities easily meet the fifty-week threshold required to establish Second Injury Fund liability pursuant to the provisions of § 287.220.3. They further meet the requirement of § 287.220.3 (2)(a)a (iii) in that these non-work related preexisting disabilities aggravated or accelerated employee's subsequent work-related injury. The Second Injury Fund's argument that employee's non-qualifying preexisting disabilities must be excluded from a determination of permanent total disability pursuant to § 287.220.3 is not well taken because the new law uses the plural in stating that preexisting "injuries" or "conditions" that aggravate or accelerate a subsequent work related injury are to be considered. See § 287.220.3 (2)(a)a (iii). In conclusion, employee's Second Injury Fund claim satisfies all the criteria of § 287.220.3.

For the above stated reasons, I respectfully dissent from the majority's denial of employee's permanent total disability claim against the Second Injury Fund in this case.

S. Kiki Curls

Shalonn K. Curls, Member

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: June 28, 2015
5. State location where accident occurred or occupational disease was contracted: St. Louis County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: While retrieving files from his car, in the parking garage, at work, a piece of the concrete ceiling fell and struck him on top of the head.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Head and neck
14. Nature and extent of any permanent disability: Permanent total disability from reported injury
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? 0
2. Employee's average weekly wages: $\ 1,000.00
3. Weekly compensation rate: $\ 666.67 TTD/\$451.02 PPD
4. Method wages computation: Stipulated

1. Amount of compensation payable:

Settled

Permanent total disability from the reported injury

1. Second Injury Fund liability:

None

TOTAL:

None

1. Future requirements awarded: None

Said payments to begin immediately and to be payable and 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 N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A

This case involves a Claim for Compensation against the Second Injury Fund only. On April 23, 2019, the parties appeared for a hearing. Mark Howard ("employee") appeared in person and with counsel, Dean L. Christianson. The Employer, GSF Mortgage, had previously entered into a Stipulation for Compromise Settlement, in the amount of $125,000.00 representing 69 percent of the body as a whole and did not appear. The Second Injury Fund was represented by Assistant Attorney General M. Jennifer Sommers.

1. Employee sustained an accident and injury, arising out of and in the course of employment on June 28, 2015.
2. Average weekly wage is 1,000.00.
3. Applicable rate of compensation is 666.67 for TTD and $451.02 for PPD.
4. Employer paid 0 in medical expenses and no TTD benefits.
5. Employee attained maximum medical improvement on January 3, 2018.

Claimant introduced, and had admitted into evidence, the following exhibits:

1. Deposition of David T. Volarich D.O.
2. Deposition of Greg Bassett, M.D.
3. Deposition of J. Stephen Dolan
4. Report of Dr. David G. Kennedy dated April 26, 2016
5. Curriculum vitae of Dr. David G. Kennedy
6. Certified records of Mercy (certified January 2, 2019)
7. Certified records of SSM Medical Group
8. Certified records of Sound Health Services (certified January 15, 2019)
9. Prescription list.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 15-049121

10) Medical records from St. Clare Health Center of July 16, 2015

11) Certified records of SSM St. Clare (certified March 14, 2006)

12) Medical records of Dr. Aloka Amarakone

13) Certified records of SSM Health St. Clare (certified March 26, 2018)

14) Certified records of SSM Health St. Clare Hospital (certified September 22, 2017)

15) Certified records of SSM St. Clare Hospital (certified May 13, 2016)

16) Certified records of Webster Family Physicians (certified September 21, 2015)

17) Certified records of Mercy Neuropsychology (certified November 8, 2017)

18) Certified records of Mercy Hospital Radiology (certified August 10, 2016)

19) Certified records of Mercy Hospital (certified October 7, 2015)

20) Certified records of Mercy East Community (certified March 13, 2018)

21) Certified records of Dr. Irvine (certified March 11, 2016)

22) Certified records of Arthritis Consultants (certified March 7, 2016)

23) Certified records of Dr. Hartman (certified April 6, 2018)

24) Certified records of Metro Imaging (certified April 8, 2018)

25) Certified records of St. Luke's CDI (certified August 10, 2016)

26) Certified records of Dr. Forget (certified November 19, 2015)

27) Certified records of Dr. Forget (certified December 8, 2015)

28) Certified records of Dr. Forget (certified March 11, 2016)

29) Certified records of Dr. Forget (certified April 21, 2016)

30) Uncertified records of Dr. Vander Kooi (28 pages)

31) Certified records of Dr. Vander Kooi (certified July 18, 2017)

32) Certified records of Mercy Creve Coeur (certified November 23, 2015)

33) Certified records of Mercy Creve Coeur (certified March 10, 2016)

34) Certified records of Ear Care & Skull Base Surgery, Inc. (certified March 15, 2016)

35) Certified records of Mercy East Community (certified December 4, 2017)

36) Certified records of Mercy East Community (certified October 26, 2017)

37) Certified records of Division of Workers' Compensation

38) First Report of Injury

39) Employee's Statement of Facts of July 23, 2015

40) Creve Coeur Police Department Investigative Report

41) Accident scene photos

42) Certified records from City of Creve Coeur Building Division

43) Records from Cushman & Wakefield

44) Certified records from St. Clare Health Center (certified October 12, 2015)

45) Medical records of Dr. Taca

46) Withdrawn

47) Report of Dr. Patricia Cooper

48) Withdrawn

49) Withdrawn

50) Stipulation for Compromise Settlement

51) Deposition of Dr. Bernardi

The Second Injury Fund introduced, and had admitted into evidence, the following exhibits:

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-049121

I) Deposition of Mark Howard by SIF dated June 25, 2018

II) Deposition of Timothy G. Lalk, C.R.C. on behalf of ER/INS dated October 29, 2018

III) Transcript of Deposition of Mark Howard dated October 21, 2015

ISSUES

1) Medical Causation

2) Liability of the Second Injury Fund for permanent total disability

FINDINGS OF FACT

At the time of the hearing, employee was 52 years old. He had been employed as a mortgage loan officer since 1994. Employee was injured on June 28, 2015, when he went to his car to retrieve some files and while he was returning from the parking garage, a concrete slab fell from the ceiling and he was struck on the head. Employee reported a brief loss of consciousness and post-traumatic amnesia of approximately 15 minutes. Employee testified that he sat in his office for a while. When he looked at his computer, it was hazy and made him dizzy. A couple of hours later, he drove himself to the hospital. He had no retro-active amnesia. He developed a severe headache. He reports "neck problems", right hand "shakes", and difficulty with memory. His primary concern, however, is constant headaches, dizziness, and nausea. Although none of the treating doctors took him off work, employee stopped working four days after the accident because of his difficulty reading and looking at the computer screen. Employee never returned to work.

Employee's medical history includes hypertension, fatigue, sleep apnea with cpap, carpal tunnel repair, deviated septum repair, GERD, hypercholesterolemia, and bilateral mastoidectomy.

Seven weeks post-accident, a MRI of the cervical spine on August 21, 2015 showed disc herniations throughout the cervical spine, and central canal stenosis (moderate at C4-5 and C5-6, and minimal at C3-4 and C6-7) with neural foraminal narrowing from C4-5 through C6-7. Based on these findings, Dr. Amarakone diagnosed "C5 spondylosis suggesting axial injury due to trauma to the head."

Employee testified, on cross-examination, that before the June 28, 2015 work injury, he would work 60 to 70 hours per week and that 80 to 90 percent of that time, he was looking at paperwork and his computer screen. Further, since the injury, he experiences severe headaches four or five times per week. He is completely incapacitated and gets nauseated when experiencing these headaches. He testified that he continuously has neck pain. He stated, "On a scale of 1 to 10, at best a 3, and on a bad day, a 10. Neck pain at a severity of 10 happens every night." The headaches give him more trouble than the neck pain. "They just come and go." Employee denies experiencing headaches, this severe, prior to the work injury.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 15-049121

**David T. Volarich D.O.**

Dr. Volarich examined the employee and testified via deposition. Dr. Volarich is board certified in nuclear medicine, an area of diagnostic imaging, occupational medicine, and as an independent medical examiner. His diagnoses, regarding the injury of June 28, 2015, included closed-head trauma, causing concussion, and post-concussion syndrome, including headaches, disequilibrium, and difficulty with focusing his eyes. Second, was axial impact trauma to the cervical spine with a central disc herniation at C4-5 and protrusion at C5-6 without radicular symptoms or definite cord abnormalities.

Dr. Volarich diagnoses, preexisting June 28, 2015, included bilateral carpal tunnel syndrome; un-operated bilateral cubital tunnel syndrome, and un-operated bilateral tarsal tunnel syndrome, status post-bilateral open carpal tunnel releases, and currently asymptomatic, but with longstanding bilateral hand and toe numbness and tingling that was not work related. Next was right elbow fracture, status post open reduction internal fixation and hardware removal from 1976. His additional diagnosis included multiple ears, nose and throat abnormalities and surgical repairs, which he deferred to otorhinolaryngology. His last diagnosis was multiple psychiatric disorders, which he deferred to psychiatry.

It is Dr. Volarich's opinion that the June 28, 2015 work accident is the primary and prevailing factor causing the closed-head trauma with concussion and residual post-concussion syndrome, as well as causing the cervical injury and the disc herniation of C4-5 centrally and the protrusion at C5-6, which received non-operative treatment. The work injury was the prevailing factor causing symptoms, need for treatment, and resulting disability.

Employee's focus and memory problems prevent him from multitasking. His balance disorder prevents him from working on his feet all day long. Cognitive dysfunction and emotional disability make it difficult for him to function throughout the entire day due to fatigue and lack of motivation. Employee should be restricted to working at ground level only and never work on scaffolding or ladders.

Dr. Volarich opined that employee has a 20 percent permanent partial disability to the body rated at the head due to the concussion and post-concussion syndrome, including headaches, disequilibrium, and difficulty with focusing and reading. There is an additional 20 percent permanent partial disability of the body at the cervical spine due to the disc herniation at C4-5 centrally and protrusion at C5-6. The rating accounts for neck pain and lost motion without radicular symptoms. Dr. Volarich, opined further, there is a 15 percent permanent partial disability of each hand from the carpal tunnel syndrome, a 15 percent at each elbow due to the cubital tunnel syndrome, and a 15 percent at each foot due to the tarsal tunnel syndrome. He deferred the assessment of the multiple surgeries of the ears, nose and throat to otorhinolaryngology, and the psychiatric disability to psychiatry.

Dr. Volarich offered the following restrictions: Employee should bend, lift, twist, push, pull, carry, climb, and perform similar tasks to tolerance and handle weights to tolerance with proper technique. He should handle weight over his head, or away from his body, or carry it over.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-049121

distance to tolerance. He should stand in a fixed position, including both sitting and standing to tolerance. He should change positions frequently to maximize comfort and rest when needed. He should pursue a home exercise program for stretching, strengthening and range of motion exercises. For his closed-head injury and residual post-concussion symptoms, Dr. Volarich recommends that employee be supervised at all times if he is going to perform any kind of work activity. Employee avoid rapid side-to-side motions and up-and-down motions with the head, keep his head and neck straight, particularly if he squats down. If employee gets into an awkward position, such as looking under a countertop, he gets dizzy and would likely fall over. Dr. Volarich also recommends employee take a ten minute break every hour, something that he did not recommend prior to the last injury, to allow him to rest and recover from physical activities. Dr. Volarich admitted employee needed no work restrictions prior to June 28, 2015. (Exhibit 1, page 25) Dr. Volarich concluded, based on the vocational assessment, that employee is permanently and totally disabled. (Exhibit 1, page 26) Incidentally, Dr. Volarich did not make a finding of permanent total disability based on the combination of medical conditions.

Greg Bassett, M.D.

Dr. Bassett examined the employee and testified via deposition. Dr. Bassett is board certified in general psychiatry. He evaluated employee on June 17, 2017, and issued an independent medical evaluation dated July 16, 2017. Within a reasonable degree of medical certainty, he opined that employee has a 50 percent permanent overall disability from his psychiatric conditions. Dr. Bassett attributes 1/5th of this 50 percent value (i.e., a 10 percent permanent partial disability) to employee's pre-June 28, 2015 problems with depression/anxiety/ADHD-like symptoms. He attributes the remaining 4/5ths of this 50 percent value (i.e., a 40 percent permanent partial disability) to the sequelae (mild neurocognitive disorder, symptoms of depression) of the June 28, 2015 injury. He defers the rating of disability, if any, flowing from employee's other illness (his problems with his ears, his carpal and tarsal tunnel syndrome symptoms, his sleep apnea, the hyperhidrosis, etc.) to other examiners.

After hearing employee's description of his work history, and in having him account of how he's different now, particularly with regard to sustaining himself in both physical tasks and reading, Dr. Bassett opined that "it would be difficult for him to be able to sustain a job." Dr. Bassett never recommended that employee not work from his psychiatric diagnosis after the work injury. Actually, he deferred to a vocational expert. However, he questioned that employee tried to work for three days after the June 28, 2015 injury, then never returned to work. Dr. Bassett did not place any limitations on employee's ability to work from a psychiatric perspective. (Exhibit 2, page 33)

Aloka S. Amarakone, M.D.

Dr. Amarakone made the following observations on October 13, 2016: "The results of the neuropsychological evaluation revealed evidence of the decline in the patient's neurocognitive abilities in comparison to estimated pre-morbid levels of functioning. His impairment is characterized as mild and there was evidence that factors other than cognitive dysfunction are playing a role in exacerbating his deficits. The patient scored in the severely depressed range on the mood screener and the quality of his performance was consistent with depression. Overall,

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 15-049121

the patient's presentation is consistent with post-concussive syndrome. His primary deficits are in attention, working memory and processing speed."

J. Stephen Dolan

J. Stephen Dolan examined the employee and testified via deposition. Mr. Dolan is a vocational rehabilitation counselor who is a board certified vocational expert. He evaluated employee on January 17, 2018.

Mr. Dolan created a vocational profile of employee based on his age, his education, the results of testing, his work history, and the restrictions delineated by Dr. Volarich. Employee is a 51-year-old man. He's a high school graduate, has some college, but testing indicates that he reads at the high school level but not at the high school graduate level and spells and does math at grade school levels. He's worked since 1994 as a mortgage loan officer. He now should do physical activities only to tolerance and be allowed to rest when he needs to. He cannot multitask due to focus and memory deficits. He has a balance problem and cannot be on his feet all day as a result. His cognitive dysfunction and emotional ability result in lack of motivation and fatigue, making it difficult for him to tolerate a workday. He should not work on ladders and other unprotected heights. He should avoid rapid side-to-side motion of his head. He should keep his head and neck vertical, and he should rest for ten minutes every hour.

On cross-examination, Mr. Dolan admitted that all of the restrictions placed by Dr. Volarich were all in relation to the June 28, 2015 work injury. Moreover, he affirmed that, Dr. Volarich felt that work limitations prior to June 28, 2015 were not required. Mr. Dolan also affirmed that employee told him that prior to the June 28, 2015 work injury, he was able to perform his job six days a week and that he was capable of doing physical activities, such as four-wheeling, and he also did remodeling work. Thus, employee's pre-accident work and recreation was unrestricted in all respects.

Mr. Dolan opined that, "Based on his age, current academic skills, work skills and the restrictions from Dr. Volarich, Mr. Howard currently has no access to a reasonably stable labor market. Dr. Volarich's restrictions are supported by the restrictions from Dr. Cooper, Dr. Amarakone and Dr. Bassett."

Timothy G. Lalk, C.R.C.

Timothy G. Lalk examined the employee and testified via deposition. Mr. Lalk is a board certified rehabilitation counselor. He evaluated employee on July 3, 2018. Mr. Lalk had previously performed a vocational evaluation based on a records review. The date of the initial report was March 24, 2017.

From the information that he received from the second report, Mr. Lalk noted that from a physical point of view, it appears that employee could perform the type of work that he noted in the first report, which would include returning to his former position and working in simple activities such as unarmed security guard, food service worker, production and packaging worker, order filler, cashier or clerk in aretail grocery store, doing housekeeping or custodial work.

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 15-049121

Mr. Lalk noted that if employee needs to observe the post-accident restrictions of Dr. Volarich, then he should limit himself to positions such as cashier in a self-service convenience store, unarmed security guard, information clerk, and parking lot attendant.

Mr. Lalk considered the problems of fatigue and other symptoms of depression, which resulted in employee not wanting to continue working. He stated, "It appears now that either this condition has not changed and he's simply restating the need to stop working, or it is possible that his depression has increased which is not unusual and he now finds it impossible to maintain employment due to his psychiatric condition."

Mr. Lalk concluded, "If the psychiatric condition has not changed, then I believe he can return to his employment based upon the level of his actual physical capabilities either in his former work or in a decreased capacity performing simple repetitive work in a sedentary or near sedentary level. If the depression has increased and his psychiatric condition is at the level that he's reporting that's been noted in some medical records, then it is my impression that he'll probably not be able to function due to an increase of psychiatric conditions when he is in a work situation."

RULINGS OF LAW

Section 287.220 RSMo. (2014) creates the Second Injury Fund and provides when and what compensation shall be paid in "all cases of permanent disability where there has been previous disability." As a preliminary matter, the employee must show that he suffers from "a preexisting permanent partial disability, whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed." Id. Missouri courts have used the following test for determining whether a preexisting disability constitutes a "hindrance or obstacle to employment":

[T]he proper focus of the inquiry is not on the extent to which a 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.

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

In every case where the employee is permanently and totally disabled after suffering a compensable work injury, the employee will be capable of working prior to the injury, but incapable of working thereafter. However, we must exclude the effects of Claimant's preexisting disabling conditions to properly assess the nature and extent of disability referable to the work injury alone:

In deciding whether the Second Injury Fund has any liability, the first determination is the degree of disability from the last injury. Until the disability is determined, it is not known whether the Second Injury Fund has any liability. Accordingly, a Claimant's preexisting disabilities are irrelevant until employer's liability for the

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 15-049121

last injury is determined.

Hughey v. Chrysler Corp., 34 S.W.3d 845, 847 (Mo. App. 2000) (citations omitted).

In determining the extent of disability, the Commission may reject the uncontradicted opinion of a vocational expert. Additionally, while it is true that the Commission may not reject uncontradicted medical testimony in favor of the ALJ's opinion on the issue of medical causation, the extent of an employee's disability, and thus employability, is not an issue of medical causation, nor does it exclusively require medical testimony. The extent and percentage of disability is a finding of fact within the special province of the Industrial Commission. As a result, in determining the degree of a Claimant's disability, the Commission may consider all the evidence and the reasonable inferences drawn from that evidence.

Palmentere Bros. Cartage Serv. v. Wright, 410 S.W.3d 685, 692 (Mo. App. 2013).

Section 287.020(6)(RSMO) defines total disability as: The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident. Fund liability for PTD under § 287.220.1 occurs when Claimant establishes that he is permanently and totally disabled due to the combination of his present compensable injury and his preexisting partial disability. For Claimant to demonstrate Fund liability for PTD, he must establish: (1) The extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD. Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014).

The Stipulation for Compromise Settlement for the primary injury of June 28, 2015, is remarkable for its significant permanent partial disability rating of 69 percent of the body as a whole attributable to the head, neck, back, brain, nerves, and psychiatric condition. Prior to the June 28, 2015 work injury, employee testified that he worked 60 to 70 hours per week. It was only after the work injury that employee stated that he was no longer able to work.

Each of the psychiatric experts agree that employee suffers measureable disability with respect to his preexisting psychiatric issues. However, claimant has failed to show, through persuasive medical evidence, "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." While employee may have psychiatric issues, he has failed to demonstrate the effect that his psychiatric issues have on the primary injury. While continuous, there is no evidence that employee's ears, nose and throat abnormalities interfered with his ability to work. The record shows that employee is unable to work as a direct result of the work injury of June 28, 2015.

Employee testified that he would work 60 to 70 hours per week, six days per week, looking at paperwork and his computer screen. It was only after the June 28, 2015 injury that employee developed blurred vision, headaches, disequilibrium, and neck pain rendering him unable to return to any employment.

WC-32-R1 (6-81)

Page 10

If the disability caused, solely, by the primary injury is permanent total disability, then it is irrelevant if any injury or condition preexisted the primary injury, and the Second Injury Fund is not liable for any benefits. The Second Injury Fund is not liable for any post-accident worsening of an employee's preexisting disabilities, which are not caused or aggravated by the last work-related injury, or for any conditions which arise after the last work-related injury. Claimant's asserted permanent total disability appears to have been caused, if at all, by the last injury alone. Therefore, I find no liability for the Second Injury Fund regarding permanent total disability.

The Second Injury Fund has no liability for this claim.

I certify that on 7-25-19

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 $\qquad m_{i}$


Made by $\qquad Joseph P. Keaveny Administrative Law Judg \qquad$ Division of Workers' Compensation