Michael Butler v. Rock Hill Mechanical Corporation

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Amended Award and Decision of Administrative Law Judge)

**Injury No.:** 09-082743

**Employee:** Michael Butler

**Employer:** Rock Hill Mechanical Corporation

**Insurer:** Amerisure Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, and considered the whole record. Pursuant to § 286.090 RSMo, we modify the amended award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and amended award of the administrative law judge to the extent that they are not inconsistent with the findings, conclusions, decision, and modifications set forth below.

The parties asked the administrative law judge to determine the following issues:

1. Was employee's low back treatment after October 14, 2009, medically or causally related to the August 10, 2009 primary injury?
2. Is employer liable for past medical expenses for the low back after October 14, 2009?
3. Is employer liable for future medical treatment?
4. Is employer liable for temporary total disability benefits for the low back?
5. What is the nature and extent of employer's liability for permanent partial disability and permanent total disability benefits, if any?
6. What is the nature and extent of the Second Injury Fund's liability for permanent partial disability or permanent total disability benefits, if any?
7. Has employee reached maximum medical improvement?

The administrative law judge determined as follows:

1. Employee's low back treatment after October 14, 2009 was not medically or causally related to the August 10, 2009 injury, but was related to a preexisting injury;
2. Employer is not liable for past medical expenses for the low back after October 14, 2009;
3. Employer is not liable for future medical treatment;
4. Employer is not liable for temporary total disability benefits for the low back;
5. Employer is liable for 25% permanent partial disability of the left shoulder, 10% permanent partial disability, body as a whole, for the lumbar spine, and temporary total disability in the amount of $4,844.88 from February 10, 2011 through March 25, 2011 (for the left shoulder);

Injury No.: 09-082743

Employee: Michael Butler

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6) The Second Injury Fund is liable for permanent total disability differential for 98 weeks, and then full permanent total disability for the rest of employee's lifetime;

7) Claimant reached maximum medical improvement on October 14, 2009, for the lumbar spine and March 25, 2011, for the left shoulder.

The Second Injury Fund filed a timely application for review with the Commission alleging:

[t]he Administrative Law Judge's award is legally flawed and misapplies the evidence. The award of total disability benefits against the Second Injury Fund does not have support of the evidence, because the award mistakenly included subsequent medical treatment unrelated to the primary injury in its consideration of Second Injury Fund liability, and wrongly interpreted the opinions of several experts in support of an award of total disability benefits against the Second Injury Fund, and wrongly concluded [employee's] subsequent low back treatment following his release from treatment by Dr. [Peter] Mirkin on October 14, 2009, was related to a pre-existing condition.

Application for Review, p. 1.

For the reasons stated below, we modify the amended award and decision of the administrative law judge referable to the issue of Second Injury Fund liability.

**Discussion**

**Second Injury Fund Liability in General**

Section 287.220.1, RSMo, 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 [3] the previous disability or disabilities, whether from compensable injury or otherwise, and the last injury together result in total and permanent disability

§ 287.220.1, RSMo (2006).¹

Here, the administrative law judge found preexisting disabilities of such seriousness as to constitute a hindrance or obstacle to employment or reemployment:

Based on credible testimony by Claimant and persuasive testimony by Drs. Volarich and Coyle, Claimant sustained ... disabilities before August

¹ "For [an employee] to demonstrate Fund liability for permanent total disability, he must establish (1) the extent or percentage of the permanent partial disability resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in permanent total disability." *Lewis v. Treasurer of Mo.*, 435 S.W.3d 144, 157 (Mo. App. 2014).

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Employee: Michael Butler

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10, 2009 that were a hindrance or obstacle to his employment or reemployment: left SI joint dysfunction and right shoulder internal derangement.

Award, p. 25.

The administrative law judge further found that the combination of the preexisting disabilities and the last injury resulted in permanent total disability:

Based on credible testimony by [employee], Dr. [David] Volarich, and Ms. [Delores Elvira] Gonzalez, [employee] is unable to return to his former employment as a pipefitter, or to any employment, due to his left shoulder and low back injuries on August 10, 2009, combined with his pre-existing disabilities to his left SI joint and right shoulder.

Id.

However, the timing of preexisting permanent partial disabilities and permanent total disability is critical. The preexisting injuries/disabilities must exist at the time of the date of injury of the primary injury (August 10, 2009). Furthermore, the determination of permanent total disability must occur at the date of maximum medical improvement. As explained below, any worsening due to the span of time or due to treatment after the maximum medical improvement date cannot contribute to a permanent total disability finding for Second Injury Fund liability purposes. Because there are two injuries with separate maximum medical improvement dates, and both were considered part of the permanent total disability conclusion regarding Second Injury Fund liability, we focus on the latter of the two maximum medical improvement dates (March 25, 2011).

Second Injury Fund's Argument

The Second Injury Fund essentially argues that if employee is permanently and totally disabled, employee became permanently and totally disabled only after the medical treatment after March 25, 2011, which treatment was unrelated to the primary injury. As the treatment was after the maximum medical improvement date of the primary injury, the effect of such treatment should not factor in a permanent total disability conclusion. Accordingly, the administrative law judge's reliance on permanent total disability opinions of Dr. David Volarich and Ms. Delores Elvira Gonzalez that include the subsequent medical treatment is a misapplication of the law.

The Second Injury Fund relies on language from Lawrence v. Joplin R-VIII School Dist., 834 S.W.2d 789 (Mo. Ct. App. June 25, 1992). In Lawrence, the court upheld the Commission's conclusion that "[t]here is insufficient evidence in the record to find that [employee] is permanently and totally disabled solely as a result of her work related injury. And, the medical evidence does not lead to the conclusion that [employee] is permanently and totally disabled as a result of the combination of her preexisting disabilities and the current permanent partial disability[.]" Lawrence, 834 S.W.2d at 793 (inner quotations omitted.). The employee in Lawrence was only permanently and

Injury No.: 09-082743

Employee: Michael Butler

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totally disabled after considering her progressive worsening of her preexisting conditions.

We conclude that the Lawrence decision applies to this matter. Dr. Volarich did not specifically opine that employee was permanently and totally disabled as of the maximum medical improvement date of March 25, 2011, but included the subsequent treatment in his opinion of permanent total disability. For example, Dr. Volarich opined, that it is "the combination of the L4-S1 fusion [performed on September 6, 2012], the left SI fusion, and the bilateral shoulder injuries that makes [employee] unable to go back to work as a pipefitter and is what makes [employee] permanently and totally disabled." Tr., p. 191. Because Dr. Volarich included treatment that occurred subsequently to March 25, 2011, we find that Dr. Volarich's opinion does not support a finding that employee was permanently and totally disabled as of the date of maximum medical improvement.

Turning to Ms. Gonzales, she opined that employee was permanently and totally disabled due to a "result of the work injury of 8-10-09 in combination with his preexisting disorders and disabilities, meaning his shoulders and his back." Tr., p. 224. Without delving deeper, the verbiage of Ms. Gonzalez's opinion supports the credibility finding of the administrative law judge that employee was permanently and totally disabled at the maximum medical improvement date. However, although Ms. Gonzalez did not specifically mention the treatment after the maximum medical improvement date as factoring in the permanent total disability conclusion, her report summarized such treatment and strongly implied that employee's permanent total disability is due in part to that treatment. We find that Ms. Gonzalez's opinion does not support a finding that employee was permanently and totally disabled as of the date of maximum medical improvement.

Employee also testified that he was permanently and totally disabled. However, after employee stated that he could not work due to the primary injury, he also explained that he based that statement on his current condition at the hearing, and not necessarily as of the date of maximum medical improvement. Accordingly, we find that employee was not isolating his condition as of the date of maximum medical improvement, but included the subsequent treatment in testifying that he was permanently and totally disabled.

Employee Arguments

Employee relied on Lewis v. Treasurer of Mo., 435 S.W.3d 144, 157 (Mo. App. 2014), and argued that once one establishes preexisting injuries that are permanent in nature and hindrances or obstacles to employment, "then the disability that arises from them is includable in the analysis of Second Injury Fund liability for [permanent total disability] cases." Employee Brief, p. 14 (emphasis in original). Employee further argues that it is immaterial if the primary injury aggravates the preexisting injuries or if the preexisting injuries worsen due to other factors. Employee concludes that "subsequent medical treatment cannot be excluded merely because it occurs after the primary injury, as long as the treatment was necessitated by a preexisting medical condition that had not yet reached [maximum medical improvement]." Employee Brief, p. 19.

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Employee: Michael Butler

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However, the court in *Lewis* does not support employee's arguments. The court in *Lewis* actually agreed with the Second Injury Fund's argument that "[t]he Fund is not liable for any progression of a claimant's preexisting disabilities not caused by the claimant's last injury." *Lewis*, 435 S.W.3d at 162 (quoting *Michael v. Treas.*, 334 S.W.3d 654, 663-64 (Mo. App. S.D. 2011)).

In *Lewis*, the Second Injury Fund argued that the Commission inappropriately included subsequent worsening to determine permanent total disability. However, the court found that there were no worsening conditions to consider. Both the employee and the vocational expert testified that "[employee's] symptoms had changed little, or not at all, over the years." *Lewis*, 435 S.W.3d at 161. Therefore, "the Commission did not err in relying on the testimony and reports of Volarich and England or on [employee's] testimony about his current activities or the lack of change in his condition or symptoms in making its determination that [employee] was permanently totally disabled based upon the state of [employee]'s conditions at the time of his last work injury and not due to their subsequent deterioration." *Id.* at 163.

Similarly, the court in *Lawrence* rejected the idea that a permanent and total disability conclusion could include subsequent worsening of preexisting conditions, even if such worsening did not result due to the primary injury. The court stated,

> By her argument the [employee] would have us expand § 287.220.1 to impose liability for any worsening of [an employee's] pre-existing disability occurring after the last injury was sustained without regard to whether the last injury contributed to or aggravated the pre-existing condition. This we decline to do. Such interpretation would not promote the purpose of the Second Injury Fund. The Second Injury Fund provides compensation for previously existing disabilities, not increased disabilities caused by post-accident worsening of pre-existing diseases when that worsening was not caused by or aggravated by the last injury. The view urged by the claimant would convert the Second Injury Fund to a form of health insurance which it is not.

*Lawrence*, 834 S.W.2d at 793.

**Final Analysis**

We find that the opinions of Dr. Volarich and Ms. Gonzalez of permanent and total disability include the worsening of employee's preexisting conditions due to subsequent treatment that was unrelated to the primary injury. Accordingly, their opinions do not support a conclusion that employee was permanently and totally disabled as of the date of maximum medical improvement. As employee relied on these experts' opinions to determine Second Injury Fund liability, we conclude that employee failed to meet his burden.

We find persuasive Dr. James Coyle's opinion which supports a finding that employee was not permanently and totally disabled as of the date of maximum medical improvement, but only after the subsequent treatment that was unrelated to the primary injury.

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Injury No.: 09-082743

Employee: Michael Butler

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injury. Dr. Coyle performed an independent medical examination on February 16, 2011. At that time, Dr. Coyle did not opine that employee was permanently and totally disabled, but merely stated "I do not think [employee] is capable of working in a capacity of a pipe fitter at this point in time[.]" Tr., p. 1854.

Dr. Coyle performed a second independent medical examination on January 14, 2016. At that time, Dr. Coyle opined that employee was permanently and totally disabled "and the objective evidence indicates he is substantially worse off after the procedures that he has undergone." Tr., p. 1850. Dr. Coyle explained, in part, how the subsequent treatments worsened employee's condition:

> Prior to his sacroiliac joint fusion, he had no evidence of trauma or instability at the sacroiliac joint. He had evidence of mild sacroiliitis, which is an inflammatory condition. Prior to his lumbar fusion, he had a normal lumbar MRI. He has now had a spinal cord stimulator placed.

Id.

From this later opinion, it was the subsequent treatment that rendered employee permanently and totally disabled. The administrative law judge acknowledged Dr. Coyle's opinion that employee "is [permanently and totally disabled] and worse after the surgical procedures." Award, p. 15.

Therefore, employee was not permanently and totally disabled as of the date of maximum medical improvement, but only after subsequent medical treatment, which worsened employee's condition. We conclude that employee failed to establish Second Injury Fund liability in this matter.

**Conclusion**

We modify the amended award of the administrative law judge as to the issue of Second Injury Fund liability. The Second Injury Fund is not liable for benefits.

The amended award and decision of Administrative Law Judge Suzette Carlisle is attached hereto and incorporated herein to the extent not inconsistent with this decision and amended award.

The Commission approves and affirms the administrative law judge's allowance of an attorney's fee herein as being fair and reasonable.

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

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Given at Jefferson City, State of Missouri, this 21st day of July 2020.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


RObert W. Cornejo, Chairman


Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:


Injury No.: 09-082743

Employee: Michael Butler

I have reviewed and considered all of the competent and substantial evidence on the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the decision of the administrative law judge should be affirmed.

There is sufficient support in the record that employee was permanently and totally disabled as of the date of maximum medical improvement. Employee credibly testified that after the primary injury, he was not able to perform his regular work and did not apply for unemployment benefits because he did not feel able to perform work. Employee also credibly testified that his "pain level spiked . . . . That's when I couldn't function anymore because of the increased pain." Tr., p. 88. Although employee was released to return to work, employee was unable to.

Ms. Gonzales also opined that employee was permanently and totally disabled due to a "result of the work injury of 8-10-09 in combination with his preexisting disorders and disabilities, meaning his shoulders and his back." Tr., p. 224. I find this opinion persuasive as stated.

Accordingly, employee met his burden to establish Second Injury Fund liability. I would affirm the administrative law judge's amended award allowing benefits, including benefits from the Second Injury Fund. Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION

**Injury No.:** 09-082743

**Employee:** Michael Butler

**Dependents:** N/A

**Employer:** Rock Hill Mechanical Corporation

**Additional:** Second Injury Fund

**Insurer:** Amerisure Insurance Company

**Hearing Date:** July 16, 2019

**Before the Division of Workers' Compensation**

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

**Jefferson City, Missouri**

**Checked by:** SC:MK

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: August 10, 2009

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

1. Was the 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: While lifting a heavy pipe, the weight shifted and caused Claimant's torso to twist.

1. Did accident or occupational disease cause death? No

1. Part(s) of body injured by accident or occupational disease: Low back and left shoulder

1. Nature and extent of any permanent disability: 10% permanent partial disability of the body (low back) and 25% permanent partial disability of the left shoulder against the Employer and permanent total disability against the Second Injury Fund

1. Compensation paid to-date for temporary disability: $0

¹ The following changes were made to this award on October 15, 2019: 1) The injury number on page 2, and 2) The parties' conditional stipulation number 14 on page 4. No other changes were made.

Revised Form 31 (2017)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

1. Value of necessary medical aid paid to date by employer/insurer: $14,010.21

Employee: Michael Butler

1. Value of necessary medical aid not furnished by employer/insurer: 0

1. Employee's average weekly wages: 1,440.00

1. Weekly compensation rate: $807.48/$422.97

1. Method wages computation: Stipulated

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund: weekly differential ($384.51) payable by SIF for 98 weeks beginning March 26, 2011 and, thereafter, for Claimant's lifetime

SIF TOTAL: TO BE DETERMINED

1. Future requirements awarded: None

Said payments to begin 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 for 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney Daniel Keefe

^{2} At the start of the hearing, the parties stipulated the TTD amount owed by the Employer would be $4,844.88 if the court found Claimant's left shoulder injury was compensable.

Revised Form 31 (3/97)

Page 2

On July 16, 2019, Mr. Michael Butler ("Claimant") appeared in person before the undersigned administrative law judge, for a hearing at the Missouri Division of Workers' Compensation ("DWC"), St. Louis office. Claimant seeks permanent total disability benefits from Rock Hill Mechanical ("Employer") and Amerisure Insurance Company or the Second Injury Fund ("SIF").

Attorney Daniel Keefe appeared on behalf of the Claimant. Attorney Timothy Mauer appeared on behalf of the Employer and Insurer. Assistant Attorney General Adam Sandberg appeared on behalf of the SIF. The record closed on July 16, 2019 after presentation of all the evidence. Court Reporter Maria Krawat transcribed the proceedings. Memorandums of law were due and received by the court on August 14, 2019.

Judicial notice is taken of DWC records which show Attorney Bob Kister withdrew as Claimant's attorney on December 9, 2014, filed a lien for sums advanced for prosecution of Claimant's claims and attorney fees accrued prior to the date of discharge, pursuant to 8 CSR.50-2.010, the parties employment contract, and the law of the State of Missouri. However, Mr. Kister did not appear for the hearing and DWC records do not reflect an amount of the lien. The award contains no lien amount.

At the start of the hearing, Claimant voluntarily dismissed Injury Number 09-112376 against the Employer and SIF, set for hearing on July 16, 2019.

Venue is proper in St. Louis and jurisdiction properly lies with the DWC.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 09-082743

The parties stipulated that on August 10, 2009:

1. Claimant worked for the Employer;
2. Claimant sustained an injury by accident that arose out of and in the course of his employment in St. Louis, Missouri;
3. Employer and Claimant operated under the Missouri Workers' Compensation Law;³
4. Employer's liability was fully insured by Amerisure Insurance Company;
5. Employer had proper notice of an injury;
6. A Claim for Compensation was timely filed;
7. Claimant's average weekly wage was $1,440.00;
8. Claimant's compensation rate for temporary total disability ("TTD") and permanent total disability ("PTD") benefits is 807.48 per week; and 422.97 per week for permanent partial disability ("PPD") benefits; and
9. Employer paid medical benefits totaling $14,010.21.

1. For the lumbar spine, if the court finds the medical treatment is related to the August 10, 2009 work injury, Claimant achieved maximum medical improvement ("MMI") on March 13, 2013.

1. For the lumbar spine, if the court finds the lumbar fusion is compensable, the Employer agrees to pay 32.5% PPD of the lumbar spine.

1. If the court finds the lumbar fusion is not related to the August 10, 2009 work injury, the Employer agrees to pay 10% PPD of the lumbar spine for a strain/sprain injury and no TTD benefits.

1. If the court finds the treatment for Claimant's lumbar fusion is compensable, the Employer agrees to pay TTD benefits totaling $29,069.28, from June 19, 2012 to March 13, 2013.

1. If the court finds the treatment for Claimant's lumbar fusion is compensable, Employer agrees to pay $211,300.43 in past medical expenses.

1. If the court finds Claimant sustained a compensable injury to the lumbar spine, Employer agrees to pay $211,300.43 in past medical expenses.

³ Any references in this award to the Employer refers to the Insurer also, unless otherwise stated. All references in this award are to the 2005 Mo Rev Stat, unless otherwise stated.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 09-082743

1. For the left shoulder, if the court finds Claimant sustained a compensable injury, Employer will pay TTD benefits totaling $4,844.88, from February 10, 2011 to March 25, 2011, for 6 1/7 weeks.

1. For the left shoulder, if the court finds the injury is compensable, Employer will pay 25% PPD of the left shoulder.

ISSUES

At the start of the hearing, the parties identified the following issues for disposition:

1. Was Claimant's low back treatment after October 14, 2009 medically, causally related to his August 10, 2009 work injury? Answer: No

1. Is the Employer liable for past medical expenses for the low back after 10-14-09? Answer: No

1. Is the Employer liable for future medical treatment? Answer: No

1. Is the Employer liable for TTD benefits for the low back? Answer: No

1. What is the nature and extent of the Employer's liability for PPD or PTD benefits, if any? Answer: PPD benefits (See the Discussion Section)

1. What is the nature and extent of the SIF's liability for PPD or PTD benefits, if any? Answer: PTD benefits (See the Discussion Section)

1. Has Claimant reached maximum medical improvement ("MMI")? Answer: Yes, March 25, 2011

EXHIBITS

At the start of the hearing, Claimant's Exhibits 1 through 21, were offered and admitted into evidence with no objection from the Employer or SIF. Employer's Exhibits A through D were offered and admitted into evidence with no objection from Claimant or SIF. SIF offered no exhibits. The parties agreed to the admission of Joint Exhibit 22-E-I, initiated by the court, which showed the Division's "Notice of Hearing," dated May 16, 2019. The exhibit showed Attorney Bob Kister's mailing address and the asserted lien.

Any marks or highlights contained in the above exhibits were made before they became a part of this record and were not made by the undersigned administrative law judge.

Claimant's live testimony

At the time of the hearing, Claimant was 54 years old, married to Donna for 34 years, and had two adult children that were not dependent upon him for financial support. In the 1980's Claimant earned an Associate's Degree in Architectural Drafting. Currently, Claimant uses a computer to check email and search on the internet.

After graduation, in 1984, Claimant used his drafting skills with the highway department and Charles Haskin's Surveying, and performed residential design work. Claimant worked as a

WV-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 09-082743

self-employed carpenter for 10 years. For 10 years, Claimant worked as a pipefitter with Plumbers & Pipefitters Local 562.

In 2005, Employer hired Claimant as a full time pipefitter, where he worked 8 hours per day, and up to 45 hours per week. Claimant worked as a foreman and a pipefitter. As a foreman, he lined up work, planned the work, ordered material and assigned work to other pipe-fitters. As a pipefitter, he used the following tools: Torches, welding tools, drills, hammers, cutters, grinders, and tools with impact vibration. Claimant installed commercial pipes for heating and cooling systems, chillers, boilers, and medical gas at hospitals. To perform this work, Claimant stood, walked, worked overhead, climbed ladders, lifted and carried various pipefittings, copper, pipe, black iron, pumps and items associated with pipes. He knelt, squatted, supervised, ordered and handled materials. Claimant worked in tight, awkward positions to drill holes, install braces, and push and pull various weights.

Claimant lifted and carried items that weighed up to 100 pounds. He received help from co-employees to carry heavy items and helped co-employees, as needed. Claimant did not require accommodations to perform his work. Claimant loaded and unloaded pipes. Black iron pipe, bundles of pipe and individual pipes were very heavy. Claimant last worked for Employer in late October 2009, and he has not worked for any other employer since that time.

Medical conditions/treatment before August 2009

1. In 2006, Claimant slipped, fell, and partially tore his MCL tendon and fractured his right knee. Claimant missed several weeks from work before he returned on crutches for a week before he worked full duty. The knee continues to pop, but Claimant has no pain.

1. In 2006, a small piece of asphalt hit Claimant's left eye and tore his iris. Claimant's vision blurred in the left eye. The pupil is permanently dilated and does not move. He has difficulty with bright lights, wears sunglasses outside because the iris is open, and has problems driving at night due to glare. His wife drives a lot.

1. On March 19, 2007, Claimant injured his SI joint carrying large black iron pipe. X-rays of the lumbar spine were within normal limits. He received physical therapy for eight months in addition to chiropractic care. Claimant used caution when bending and lifting heavy objects to avoid re-aggravation. Claimant continued to seek chiropractic care up to 10 days before the work injury on August 10, 2009, and beyond. After an SI joint fusion in 2010, Claimant had limited mobility and pain in his low left back.4

1. While standing on a ladder on January 15, 2009, Claimant felt a pop and pain in his right shoulder after he pulled on a wrench to loosen a steam line fitting. Dr. Ritchie surgically

4 During cross-examination, Claimant could not recall when he first experienced radiating symptoms down either leg. He testified it went away after one surgery and came back after the other one, same issue. He did not remember when it started, but testified he thinks it started in August 2009.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 09-082743

repaired Claimant's right torn labrum, and released him to return to work on April 27, 2009. Claimant received physical therapy from February 2009 until May 2009. Residual right shoulder complaints include limited range of motion, and weakness. Before August 10, 2009, Claimant used his left upper extremity to accommodate for right shoulder limitations.

1. Before August 10, 2009, Claimant reclined to relieve back pain after extremely busy days at work. He used caution when lifting, limited the amount he lifted, and avoided twisting movements. He had ongoing chiropractic care, including his left low back and left thigh. Claimant continued to work full duty.

The August 10, 2009 work injury

On August 10, 2009, Claimant injured his back and left shoulder when he helped co-workers lift a bundle of pipe. Two workers were on the ground and two workers were on the second floor moving pipe. Claimant helped raise the pipe through the stairwell with his left arm. The workers on the ground let go before the workers on the second floor secured the pipe. Claimant took the weight of the pipe and pushed it up to the workers on the second floor, and injured his low back and left shoulder when the pipe twisted. The pipe consisted of a bundle of 1-inch black iron pipes, 21 feet long, and weighed about 300 pounds.

At the hearing, Claimant testified he developed a constant ache in his left leg to the knee, and numbness in his right leg below the thigh, when he walked or sat for long periods after the August 2009 work injury. Claimant further testified work hardening caused him to develop more low back pain. According to Claimant, he informed Dr. Mirkin about these problems during the initial visit, but Dr. Mirkin did not address the complaint.5

After Dr. Mirkin released Claimant, he returned to work but could not perform any tasks because of problems with his back. Employer approved Claimant's request for medical leave. After he stopped working, repairs were made to his left SI joint and both shoulders. Claimant did not attempt to return to work. He did not seek unemployment compensation benefits because he could not meet the work requirement.

Claimant's current physical complaints

Low back - After the August 10, 2009 work injury, Claimant testified he developed right leg numbness and tingling, which resolved after the SI joint fusion in 2010. However, the symptoms returned after low back surgery on September 6, 2012. Claimant continued to have limited mobility and pain. The majority of Claimant's pain comes from "way down low" on his left side. Left low back pain radiates constant pain, to his left thigh and left low back. Pain

5 Claimant completed a pain diagram for Dr. Mirkin, which showed no right leg symptoms. The chart references complaints to the left low back and slight left leg discomfort.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No: 09-082743

increases with activity and makes it difficult for Claimant to walk long distances. The lumbar fusion and spinal cord stimulator make the pain manageable, but does not eliminate it. He avoids lifting from the floor due to pain. Claimant spends at least 70% of each day lying on his right side to reduce low back pain. He has difficulty going up stairs. His most recent back injection occurred two weeks before the hearing.

Claimant's SI joint fusion occurred in 2010, and his right leg problems resolved. He is not certain when the new symptoms began. "After one surgery it went away and after another one it came back, the same issue." He testified it started again, possibly in August 2009. After the 2009 injury, Claimant could not function because of increased pain in the same general area as the 2007 injury.

Claimant is not sure if his low back pain stems from his 2007 injury or the 2009 injury. It is difficult for Claimant to distinguish SI joint pain from his low back pain because the pain is in the same general area (about an inch apart). It is hard for Claimant to identify which injury makes it difficult for him to sleep, be active, and need narcotic medication. Counseling and medication help Claimant cope with depression from being unemployed for 10 years.

Claimant sleeps on the living room sofa on his right side to avoid movement in his sleep. Every night pain causes Claimant to wake up, but he changes positions and goes back to sleep. Claimant did not have problems sleeping before August 10, 2009.

Before August 10, 2009, Claimant had pain but he continued to work. After the August 2009 injury, Claimant did not know if his pain was from the SI joint or his spine, but his pain level spiked. He could no longer function, due to pain, in the same general area as the SI joint problem.

Left shoulder - Before August 2009, Claimant developed problems with his left shoulder because he compensated for right shoulder symptoms. From August 2009 to October 2009, Claimant could not work overhead with his dominant right hand. He used his left hand, which Claimant believes led to left shoulder problems.

Claimant would like to return to work but cannot due to problems with his SI joint from 2007, shoulder injuries, and the August 2009 work injury. Claimant does not believe he can work as a pipefitter or in any capacity, due to his inability to stand during the day, or sit for long periods, and the need to lie down often. Claimant cannot return to work as a drafter, even with accommodations, because he does not have the computer skills to perform the job.

In 2018, the Social Security Administration awarded Claimant benefits for injuries to his left SI joint, lumbar spine, both shoulders, right knee and left eye.

Exhibit 18 contains billing records from Orthopedic Specialists for Drs. Ritchie, Rutz and Wayne. The treatment provided by these physicians relates to the August 10, 2009 work injury, except for the right shoulder treatment.

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Claimant identified Exhibit 19 as bills from Timberlake Surgery Center from Dr. Ritchie for left shoulder surgery on February 10, 2011. Claimant identified these bills as related to the August 10, 2009 work injury. The bills contain procedures to implant both spinal cord stimulators.

Claimant's medical care was provided through his wife's insurance policy. The insurance company asserted a lien on any recovery Claimant may receive for treatment related to his medical care for the work injuries discussed in this award. (Exhibit 20) The insurance company paid $211,300.43 for medical treatment.

Exhibit 21 contains out-of-pocket pharmacy expenses identified by Claimant. Viagra is one of the prescriptions Claimant takes for erectile dysfunction due to low back injuries. He makes purchases online without a prescription.

**Medical treatment for the August 10, 2009 work injury - low back**

Dr. Rueschhoff, Claimant's chiropractor for a number of years before the August 2009 work injury, treated his low back on the day of the accident and took him off work for his low back on August 26, 2009. Claimant did report left leg symptoms during the office visit.

Two days after the accident, Claimant gave St. Anthony's Urgent Care ("St. Anthony's") a history of injury to his low back and left shoulder, but denied numbness, tingling, weakness and leg symptoms. St. Anthony's records contain no history of leg pain during the initial visit and three follow-up visits. Leg pain was not marked on pain diagrams. The diagnosis was a low back strain and left shoulder strain. St. Anthony's prescribed medication and placed Claimant on light duty from August 12, 2009 to August 17, 2009, with no lifting or pulling over 20 pounds, no frequent bending, prolonged kneeling or squatting, limited use of the left hand, no overhead reaching with the left arm, and use of the affected arm only as a helper. After four visits, St. Anthony's referred Claimant to Dr. Mirkin.

On September 18, 2009, Claimant gave R. Peter Mirkin, M.D., a spine surgeon, a history of left-sided low back pain that did not radiate. His shoulder pain had resolved. The pain chart showed Claimant's left low back and left thigh had numbness, and stabbing low pain. The chart contained the following history: "numbness in Lt. thigh, sharp pain in lower back," started August 10, 2009 and were Claimant's biggest concerns. An MRI of the left low back showed no disc pathology. Dr. Mirkin's medical records contain no history of leg pain. MRI showed a clinical history of low back pain with lower extremity neuropathy on September 23, 2009. The MRI study was normal.

On September 28, 2009, Claimant complained of low back pain with pain down his right side. Dr. Mirkin noted Claimant's symptoms were out of proportion to his objective findings.

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Dr. Mirkin continued a 30-pound lifting restriction and placed Claimant in work hardening (five times a week for two weeks).

On October 13, 2009, initial work hardening reported Claimant had increased subjective pain to the left low back. The quality of his movement decreased. The aerobic bike exercises and stretches were removed and Claimant expressed less pain and the ability to complete sessions without increased pain. Results showed improvement to load handling, left shoulder strength, and posture tolerances. Work hardening concluded Claimant could return to work at the heavy-demand level. X-rays and MRI findings were normal. Claimant's physical examination was normal. On October 14, 2009, Dr. Mirkin concluded Claimant had reached MMI and discharged him to work full duty.

On October 26, 2009, Claimant gave Dr. Sides, D.O., his primary physician, a history of injury at work on August 10, 2009, with "tingling/numbness into his left upper leg only. Nothing below knee." Examination revealed negative bilateral straight leg raise, but left SI joint tenderness. Dr. Sides diagnosed lumbar myalgia. After several visits, Claimant continued to have complaints to the left SI joint. Dr. Sides diagnosed sacroiliitis and referred Claimant to Dr. Rutz.

On November 24, 2009, Claimant gave Dr. Rutz a history of left-sided low back and left thigh pain after the August 10, 2009 work injury. Dr. Rutz examined Claimant, reviewed the September 23, 2009 MRI and found a small disc protrusion at L3-4. Dr. Rutz reviewed an updated MRI on December 8, 2009, and concluded the small disc protrusion at L3-4 was very small. Dr. Rutz concluded Claimant's symptoms were consistent with discogenic back pain, not a disc herniation. He noted the disc herniation is "very, very small." The December 8, 2009 MRI of the lumbar spine revealed no herniation or stenosis. Dr. Rutz concluded Claimant's symptoms "act like a left L3 radiculopathy." He scheduled a non-operative nerve root block at L3 with Dr. Wayne, and recommended a rheumatology evaluation.

On January 22, 2010, a lumbar discogram showed mild symptoms at L5-S1, which Dr. Rutz found was "not concordant pain." Negative L2-3, L3-4 and L4-5, and an equivocal positive discogram at L5-S1, with partial annular defect. A CT scan showed a right annular tear at L5-S1, which Dr. Rutz found was not consistent with Claimant's left-sided symptoms. Dr. Rutz noted the CT reconstructions revealed sclerosis and osteophytes on the left SI joint.

An MRI of the pelvis, without contrast, dated February 2, 2010, revealed no joint inflammation, synovitis or bursitis, and normal SI joints. A CT scan of the pelvis, taken the same day, revealed mild bilateral sacroiliitis, left greater than right. A CT scan of the pelvis, non-contrast, revealed bilateral hypertrophic spurring of the SI joint and sclerosis, left greater than right. Findings were consistent with bilateral sacroiliitis, left greater than right.

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On April 13, 2010, Dr. Rutz diagnosed left-sided sacroiliitis, questionable L3 radiculopathy, and recommended bilateral L3 nerve root blocks. Claimant reported increased numbness and pain in left anterior thigh, and a new onset of right anterior thigh numbness. Left SI joint pain continued. On April 29, 2010, Dr. Rutz reviewed a new April 2010 MRI of the lumbar spine, and found no impingement throughout the entire lumbar spine.

Dr. Rutz referred Claimant to Andrew Wayne, M.D. A bone scan dated April 21, 2010, revealed abnormal uptake of radiopharmaceuticals related to bilateral SI joints consistent with a history of sacroiliitis. On April 15, 2010, Dr. Wayne identified SI joint problems, performed a left L3 nerve root block, and Claimant noted improvement within ten minutes. Dr. Wayne recommended SI joint radiofrequency ablation as well.

Anthony Guarino, M.D., a pain management specialist, examined Claimant on February 18, 2010, diagnosed sacroiliitis, and recommended radiofrequency neuroablation of the SI joint.

In 2010, James M. Jackman, M.D., an orthopedic physician, injected Claimant's left SI joint on several occasions and ordered physical therapy. Claimant's problems continued. Claimant received steroid injections in March 2010 with great relief and a CT guided sacroiliac injection in May 2010 with less relief. Dr. Jackman diagnosed left sacroiliitis, but noted it was difficult to determine if the pain came from Claimant's back or his left SI joint.

On April 27, 2010, a radiology report of Claimant's pelvis revealed degenerative changes of the left sacroiliac area. X-rays dated July 27, 2010, show bony formation and osteophyte formation around the left SI joint, consistent with degenerative changes believed to be the source of Claimant's pain.

During left SI fusion surgery on August 19, 2010, Dr. Jackman found a large osteophyte on the left SI joint consistent with CT scan findings. In January 2011, Claimant complained of increased pain in the same area as the SI joint, but noted it was different from the pain he experienced prior to the SI joint fusion. He also reported lateral thigh pain. In October 2011, Claimant reported right upper quadrant pain following the left SI joint fusion.

Through February 2011, none of the following physicians diagnosed disc problems at L4-5 and L5-S1, Dr. Wayne, Dr. Mirkin, Dr. Rutz, and Dr. Coyle. In addition, several MRIs and nerve conduction studies failed to show radicular symptoms at L4-5 and L5-S1. A discogram reproduced radicular symptoms at L4-5.6

Dr. Boutwell referred Claimant to Brett A. Taylor, M.D. In June 2012, Claimant gave Dr. Taylor a history of spine problems one time in April 2007. Current complaints include:

6 Dr. Volarich and Dr. Coyle testified the injection from the post discogram CT scan may have caused Claimant's L4-5 radiculopathy.

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Worsening pain of the lumbar spine (100%) and left leg (25%) over several months, back pain radiating to the left buttock and knee (25% of the pain, 100% of the time), and low back pain (75% of the pain). Dr. Taylor diagnosed failed back/SI joint pathology.

Dr. Taylor performed tests to see if there was a "surgically amenable lesion." If no lesion was found, Dr. Taylor recommended Dr. Boutwell continue with pain management treatment. EMG results dated June 26, 2012, revealed no radiculopathy. MRI of the lumbar spine taken the same day, revealed a mild annular disc bulge at L4-5. CT of the lumbar spine revealed L5-S1 right full thickness annular tear, normal disc L3-4 and L4-5. CT revealed normal post-operative changes to the SI joint fusion. Discogram from July 2, 2012 showed concurrent pain at L4-5. Dr. Taylor found "significant pathology" and recommended an anterior lumbar interbody fusion to address Claimant's "persistent symptoms of back and leg pain."

On September 6, 2012, Dr. Taylor performed a lumbar fusion at L4-5 and L5-S1, with two cages. The operative note read:

"The aggressive discectomy was done for a number of reasons to adequately decompress the neural elements, to restore the appropriate spinal alignment, to provide adequate biological environments for fusion allowing placement of bone products both posterior to the cage as well as laterally to the cages."

After surgery, Dr. Taylor referred Claimant to Dr. Boutwell for pain management. A bone stimulator was prescribed. Claimant treated with Jefferson County Rehab from August 2011 to November 2012.

Dr. Taylor referred Claimant to Anthony Margherita, M.D. On December 17, 2012, Dr. Margherita examined Claimant and diagnosed failed back syndrome, SI pain/dysfunction, and lumbar radiculopathy. Dr. Margherita concluded Claimant "is clearly disabled by virtually all criteria." He suggested Claimant talk to his attorney about disability.

Claimant's right-sided numbness returned by the February 2013 appointment with Dr. Taylor. Dr. Taylor released Claimant from care on March 13, 2013 and referred him to Dr. Boutwell for chronic pain management. Dr. Boutwell provided pain management treatment for Claimant's low back and left hip from February 2013 to September 2013.

In March 2014, Claimant began pain management treatment with Helen Blake, M.D. On July 30, 2014, Dr. Blake inserted a permanent spinal cord stimulator, after success with a trial stimulator in June 2014. At the time of the hearing, Claimant continued to treat with Dr. Blake for low back problems. Claimant replaced the spinal cord stimulator once and will need additional replacements in the future.

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On August 12, 2009, St. Anthony's diagnosed a left shoulder strain and referred Claimant to Dr. Ritchie after his left shoulder symptoms continued. On December 6, 2010, Joseph R. Ritchie, M.D., examined Claimant for bilateral shoulder pain, numbness in both ring and small fingers, right greater than left, and pain. (Claimant was off work recovering from a left SI joint fusion at the time). Claimant gave a history of shoulder pain for several years at work. X-rays revealed spurs. Dr. Ritchie diagnosed bilateral impingement syndrome, right greater than left.

On January 27, 2011, Dr. Ritchie performed an arthroscopic right labral repair and subacromial decompression. On February 10, 2011, Dr. Ritchie repaired a left, partial rotator cuff tear and subacromial decompression, and debrided a SLAP tear. After right shoulder surgery, Claimant reported continued intermittent numbness and tingling in his right ring and small fingers. The last medical records from Dr. Ritchie dated March 25, 2011, show improved range of motion with follow up as needed.

On January 5, 2015, William A. Frisella, M.D., reviewed medical records, Claimant's depositions, performed an independent medical evaluation ("IME") of Claimant's left shoulder and wrote a report at the request of the Employer. Dr. Frisella diagnosed left shoulder degenerative rotator cuff tear and a SLAP tear, aggravated by the August 10, 2009 work injury. He further opined the work accident caused the need for left shoulder treatment. Dr. Frisella concluded Claimant had reached MMI and rated 5% PPD of the left shoulder, 2.5% PPD, before the August 10, 2009 injury, and 2.5% PPD from the August 10, 2009 work injury.

Dr. Rueschhoff treated Claimant from May 16, 2003 to June 12, 2010. Initial treatment for Claimant's neck and upper back occurred through June 2003. The first low back and left SI joint pain appeared in the medical record on October 1, 2003. Dr. Rueschhoff performed a spinal manipulation. Several days later, Dr. Rueschhoff treated Claimant for facet syndrome. (Inflammation of the joints at the base of the spine). Dr. Rueschhoff treated the right SI joint several times. Dr. Rueschhoff noted right or left SI joint problems in November 2003 and January 2005.

In March 2007, he treated Claimant for his low back and right SI joint after he carried a black pipe. Claimant reported anterior thigh pain, which Dr. Rueschhoff opined may be related to a disc or SI joint. Claimant received chiropractic care in March, April, and August 2007, and January 2008. Dr. Rueschhoff recommended Claimant return once a month because he had

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problems staying pain free for more than one month. Claimant received more left SI joint treatment whenever it "came out again" or became irritated.

Claimant received more left SI joint treatment in February 2008, April 2008, June 2008, February 2009, (right SI joint), June 2009 (left SI joint pain from lifting), July 31, 2009 ("left hip very bad"), August 10, 2009 (re-injured SI joint), and October 15, 2009 (left SI joint). The last appointment, June 10, 2010, Claimant had left SI joint pain and said his medical doctor wanted to perform an SI joint fusion.

Dr. Rueschhoff testified:

> "I just noticed that every time he's in, he has left—same problem, left SI problem. We see him, two, four, six—we saw him like 16 or 18 times in '09 all for the SI problems."

Dr. Rueschhoff further testified:

> "He probably had some leg pain, and that's one of the possibilities. But every time he came in, the pain was in the same place. You know, it was almost identi-almost identical each time, sometimes worse than others, but it was always in the same place. And every time we adjusted it, it relieved the pain almost til he got further down in his treatment til the end and then they weren't holding very well."

James Coyle, M.D., an orthopedic spine surgeon, performed one IME in February 2011, reviewed medical records, ordered a CT scan of the SI fusion, wrote two reports and testified at the Employer's request. He saw Claimant again in 2015.

Dr. Coyle testified St. Anthony's records do not show numbness or tingling during Claimant's examination, which indicates no nerve root involvement. Further, discograms traumatized everyone he knows that had one, and can cause disc damage.

Dr. Coyle reviewed x-rays taken six months after the left SI joint fusion, which revealed non-union. The radiologist referred to the January 21, 2010 discogram finding on the lumbar CT as an iatrogenic tear, which means, "caused by something." Dr. Coyle suspected the discogram caused the tear. Dr. Coyle read the radiologists' impression: "partial annular defect on the right with some extravasation which in part is iatrogenic." Dr. Coyle explained injection of contrast can disrupt a disc.

Dr. Coyle reached four conclusions:

7 Dr. Rueschhoff testified the joint does not come out of place but moves a little back and forth when the SI joint subluxes outside the normal range of motion.

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1. Dr. Coyle reviewed the CT scan dated February 16, 2011, and diagnosed left SI joint fusion for sacroiliitis with continued pain. He found no evidence of radiculopathy or lumbar symptoms. Dr. Coyle diagnosed a lumbar strain from the August 2009 work injury.

1. He further opined Claimant's work injury was not the prevailing factor that caused his sacroiliitis and need for a fusion. Dr. Coyle did not believe fusion of the SI joint was appropriate for low-energy trauma like the type Claimant sustained.

1. In addition, Dr. Coyle testified the CT scan and bone scan showed bilateral sacroiliitis, a progressive degenerative and inflammatory condition not caused by trauma. Therefore, Dr. Coyle did not believe the August 2009 work injury caused the left SI joint problem. Further, Dr. Coyle testified the CT scan revealed significant osteo-phytosis (bone spurs), a chronic condition of the left SI joint.

1. Finally, Dr. Coyle concluded the SI joint complaints existed before the August 2009 work injury because Claimant received chiropractic treatment for similar symptoms until ten days before the August 2009 work injury and beyond. The chiropractic records contain low back and some radiating symptoms down the left leg before August 10, 2009. Dr. Coyle noted diagnostic studies were negative for radiculopathy, including multiple MRIs and an EMG nerve conduction study.

In November 2015, Dr. Coyle diagnosed left SI joint fusion, post lumbar fusion, and post spinal cord stimulator with back pain, bilateral lower extremity pain and numbness. His opinions did not change in 2015. Claimant sustained a lumbar strain from the August 10, 2009 work accident. He was at MMI after he completed treatment for the strain. Dr. Coyle concluded Claimant had reached MMI after his initial treatment for a lumbar strain, and rated 5% PPD of the lumbar spine for the August 10, 2009 work injury.

Dr. Coyle concluded Claimant is PTD and worse after the surgical procedures. Dr. Coyle opined the surgical procedures were not reasonable and necessary to cure or relieve the effects of Claimant's August 10, 2009 lumbar strain. The SI joint inflammation did not require fusion. Three normal MRIs of the lumbar spine and a normal EMG nerve conduction study did not justify a two-level fusion.

In 2015, David T. Volarich, D.O., performed one IME, reviewed medical records, examined Claimant, testified on behalf of Claimant, and wrote a report dated July 23, 2015, plus four supplemental reports (Dated January 4, 2016, February 5, 2016, October 3, 2016, and September 20, 2017). Claimant gave Dr. Volarich a history of leg pain that began two days after the August 10, 2009 work injury.

In Dr. Volarich's July 2015 report, he diagnosed and rated the following medical conditions related to Claimant's April 9, 2007 injury: Strain/sprain of the lumber spine and strain/sprain of the left SI joint (10% PPD). He further diagnosed and rated the following medical conditions as a part of the April 10, 2009 work injury: Left SI joint dysfunction and

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fusion and lumbar surgery with instrumentation and a spinal cord stimulator (65% PPD), and left shoulder rotator cuff and labral debridement (30% PPD).

From a medical perspective, Dr. Volarich concluded Claimant was PTD due to the last work injury alone on August 10, 2009. (Later, Dr. Volarich testified he did not have all the medical records when he gave that opinion).

In Dr. Volarich's first addendum, dated January 4, 2016, he reviewed Ms. Delores Gonzalez's report and agreed with her conclusion that Claimant was disabled due to the August 10, 2009 injury and pre-existing medical conditions. However, his opinion from the July 23, 2015 report remained unchanged that Claimant was PTD due to the August 10, 2009 injury alone.

In Dr. Volarich's second addendum, dated February 5, 2016, he reviewed Dr. Frisella's report about Claimant's shoulders, and his opinion remain unchanged.

In Dr. Volarich's third addendum, dated October 3, 2016, he reviewed medical bills related to Claimant's care and concluded the charges were fair, reasonable, customary, and necessary to cure and relieve Claimant from the effects of his work-related injuries in April 2007, January 2009, and August 2009.

According to Dr. Volarich, Claimant told him by telephone that his combined injuries make it difficult for him to function at home and at work. After a discussion with Claimant and a review of Dr. Rueschhoff's medical records and deposition testimony, Dr. Volarich made the following changes to his IME opinion contained in his fourth addendum, dated September 20, 2017:

**Injuries before April 2009:**

1. Recurrent sore muscles secondary to heavy work with use of over-the-counter medication and no radicular symptoms before August 10, 2009. Dr. Volarich opined the disability did not constitute a hindrance or obstacle to Claimant's employment re-employment if he became unemployed, leading up to August 10, 2009. Dr. Volarich assessed no disability for the condition.

1. 2005 or 2006 - Knee injury with no PPD and no hindrance or obstacle leading up to August 10, 2009.

1. Left eye injury in 2006 - No PPD assessed and no hindrance or obstacle to employment from this injury.

1. For the April 9, 2007 injury, Dr. Volarich diagnosed and rated the following: Severe left sacroiliac joint dysfunction, post fusion, with mild lumbosacral strain (for a number of years). The injury occurred when Claimant helped two coworkers carry a 300-pound pipe, twisted in an awkward manner, and felt pain in his low back and SI joint. Dr. Volarich opined the work injury was serious enough to constitute an obstacle or hindrance to employment or re-employment. Dr. Volarich opined the injury was the

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prevailing factor that caused Claimant's symptoms, need for treatment and resulting disability. Dr. Volarich rated 30% PPD of the lumbar spine for the SI joint dysfunction and mild lumbar strain related to the April 9, 2007 work injury.

1. For the January 15, 2009 injury, Dr. Volarich diagnosed and rated the following: Right shoulder internal derangement, impingement and partial rotator cuff and labral tear, post-surgery. Dr. Volarich opined the injury occurred when Claimant forcefully pulled on a wrench at work and felt a pop and pain in his right shoulder. Dr. Volarich opined the work injury was serious enough to constitute an obstacle or hindrance to employment or re-employment. Dr. Volarich further opined the injury was the prevailing factor that caused Claimant's symptoms, need for treatment and resulting disability. Dr. Volarich rated 30% PPD of the right shoulder for the work injury.

1. For the August 10, 2009 injury, Dr. Volarich diagnosed and rated the following:8

a) Lumbar radiculopathy that required anterior fusion at L4-5 and L5-S1, post laminectomy syndrome and insertion of a spinal cord stimulator. Dr. Volarich opined the work injury occurred when Claimant helped co-employees move 300 pounds. A co-worker lost control of the weight. Claimant's left shoulder rotated, jerked his torso and low back, and his pelvis twisted to the left. He further opined the injury was the primary and prevailing factor that caused lumbar radiculopathy and required anterior fusion at L4-5 and L5-S1, and placement of a stimulator. Dr. Volarich rated 45% PPD of the lumbar spine for lumbar radiculopathy, fusion, instrumentation at L4-5 and L5-S1, and a spinal cord stimulator.9

b) Left shoulder internal derangement that required arthroscopic labral and rotator cuff debridement and subacromial decompression. Dr. Volarich opined the August 10, 2009 work injury caused symptoms, the need for treatment and disability. Dr. Volarich rated 30% PPD of the left upper extremity for the work injury.

Dr. Volarich opined Claimant's combined disabilities create more disability than their simple sum and a loading factor should apply. From a medical perspective, Dr. Volarich opined Claimant is unable to maintain substantial full-time employment in the future as a pipefitter or similar position.

Based on a review of Dr. Rueschhoff's records/testimony, Ms. Gonzalez's opinion, and a telephone conversation with Claimant, Dr. Volarich changed his opinion and decided Claimant is PTD because of the injuries he sustained on April 9, 2007, January 15, 2009 and August 10, 2009.

8 Dr. Volarich's fourth addendum, dated September 20, 2017, opines left SI joint dysfunction occurred during the August 10, 2009 injury (Page 4). However, during Dr. Volarich's deposition, he testified the left SI joint dysfunction was "from the first one" (Page 14 - lines 24-25 and page 15 - lines 1 and 2.

9 Originally, Dr. Volarich rated 65 percent PPD of the lumbar spine for the August 10, 2009 injury. However, after a review of Dr. Rueschhoff's records and deposition testimony, Dr. Volarich reduced the disability in the August 2009 injury to 45%. He concluded Claimant's left SI joint was injured during the 2007 accident. Prior to Dr. Rueschhoff's deposition, Dr. Volarich could not read his medical codes. After Dr. Rueschhoff explained the codes during his deposition, Dr. Volarich learned Dr. Rueschhoff treated Claimant for years before April 9, 2007 for SI joint pain that did not radiate.

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Dr. Volarich decided Claimant is not PTD from the last injury alone, but from his low back and left SI fusions, and bilateral shoulder injuries. Before the August 2009 work injury, Dr. Volarich noted Claimant had no radiating pain. Now, Claimant needs a spinal cord stimulator throughout the day and continues to take gabapentin, which affects his ability to work. Dr. Volarich testified there is a possibility Claimant's L4-5 radiculopathy may have been caused by the injection during Claimant's post discogram CT scan.

Dr. Volarich combined Claimant's present SI joint complaints from the April 2007 injury with his low back complaints from the August 2009 injury. When asked if he could separate complaints from the SI joint and low back he testified he could not because:

"...it is very difficult to do, as I mentioned earlier, because of the close proximity anatomically to parse out six years later what is due to what is very difficult."

Based on physical examination, Dr. Volarich found Claimant continued to have pain in the SI joint area and his lumbar spine, which is distinguishable. However, Claimant's problem with side bending involved both areas.

Dr. Volarich further testified Drs. Mirkin, Rutz, Coyle and Wayne missed the L4-5 and L5-S1 disc herniations until they were revealed during surgery. The disc problems explained Claimant's symptoms. Dr. Volarich acknowledged the inconsistency between Claimant's history of leg pain right after the August 2009 work accident and the lack of history of leg pain provided to Drs. Mirkin, Rutz, Coyle and Wayne. Dr. Volarich considered Claimant's history and the medical records that show Claimant reported leg pain to his family doctor two months after the accident, and his history of continued symptoms until he had surgery.

Before August 10, 2009, Dr. Volarich did not recommend restrictions for the spine. After the August 10, 2009 injury, Dr. Volarich recommended restrictions for the spine, SI joint, and use of Claimant's shoulders to tolerance. For the spine, Dr. Volarich recommended Claimant take rest periods as needed, including resting in a recumbent position. Dr. Volarich testified Claimant's treatment was so protracted it was hard to decide what restrictions should have been in place for SI joint dysfunction two years before the 2009 work injury.

Dr. Volarich testified Claimant's symptoms overlap from SI joint dysfunction and low back problems due to anatomic closeness. However, the SI joint should not cause low back problems because movement of the low back is not dependent on the SI joint. He further testified that referred pain from the SI joint is not down the leg. Instead, SI joint pain refers to the buttocks, low back, or paraspinal muscle, but not radicular. Protracted sitting may cause discomfort to the SI joint.

Dr. Volarich testified the charges related to Claimant's medical care above were fair, reasonable, customary and necessary to cure and relieve the effects of his work-related injuries on April 9, 2007, January 15, 2009, and August 10, 2009.

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Ms. Delores Elvira Gonzalez, a certified vocational rehabilitation counselor, interviewed Claimant one time on September 26, 2015, reviewed medical records, administered the Wide Range Achievement Test, 4th edition ("WRAT 4") test, wrote a report and testified at the request of Claimant's attorney. Claimant reported difficulty sleeping because he cannot turn onto his shoulders.

Claimant scored over 12th grade, ninth month in reading, spelling and math computation on the WRAT 4 test, but Ms. Gonzalez opined his physical conditions prevent him from working.

During the interview, Ms. Gonzalez testified Claimant appeared drowsy. Ms. Gonzalez testified employers do not look favorably on drowsy applicants. In addition, Claimant's residual functional capacity is not sufficient for full-time employment. Dr. Volarich advised Claimant to rest, as needed, in a recumbent position. No employer will permit a person to lie down on the job because they would not be working at a competitive rate.

Ms. Gonzalez opined Claimant could not return to work as a pipefitter, or any competitive work, due to his work injury on August 10, 2009 and his pre-existing disabilities to his shoulders and back. In short, he cannot compete for work in the open labor market. She found Claimant to be PTD due to the combination of his August 10, 2009 work injury and disabilities that existed before that date.

Ms. Gonzalez found Claimant had no skills that could transfer to another job. Based on restrictions imposed by Dr. Volarich, and the opinions of Drs. Margherita and Sides, she concluded Claimant cannot perform sedentary work because he needs to lie down and change positions every 30 minutes. The sedentary work level requires an employee to sit for two hours before taking a short break. In the light, medium, heavy or very heavy work level, workers are required to stand and walk six out of an eight-hour shift.

Prior to August 10, 2009, Claimant took over-the-counter medication for pain and continued to work full time, but took it easy with exacerbations, according to Claimant. Claimant had seven years of chiropractic treatment before August 2009, but he did not have physician-imposed restrictions for his back. At the time of the interview with Ms. Gonzalez, Claimant took narcotic medication, which prevented him from passing a pre-employment drug test. Ms. Gonzalez reviewed a number of factors to reach a decision about a person's ability to work; age, education, work history, restrictions and disabilities. Based on Claimant's physical condition, Ms. Gonzalez concluded he could not work full or part-time because of his need to lie down.

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Ms. Gonzalez did not review Dr. Coyle's 2015 report. Based on Dr. Margherita's opinion, Claimant could not maintain employment in the open labor market. Dr. Sides opined Claimant could no longer work as a pipefitter or any past relevant work. It is not clear from the record that Ms. Gonzalez reviewed Dr. Volarich's 2017 report. She disagreed with Dr. Volarich's opinion in 2015 that Claimant was PTD due to the last injury alone. She could not read most of Dr. Rueschhoff's records.

Ms. Gonzalez concluded Claimant cannot return to his work as a pipefitter or any job on a sustained basis because of his work injury on August 10, 2009 combined with his pre-existing disabilities. He is not a candidate for vocational rehabilitation for the same reason. She declined to give an opinion about Claimant's ability to work related to the last injury alone. When making a determination about employability, Ms. Gonzalez testified she had to consider pre-existing conditions and not just the primary injury.

DISCUSSION

After careful consideration of the entire record, and based upon the above testimony, the competent and substantial evidence presented during the hearing, including Claimant's demeanor, and the applicable law of the State of Missouri, Claimant met his burden to prove he is PTD from the combination of his last injury and pre-existing disabilities for the reasons discussed below:

Here, conflicting medical opinions were presented about the cause of Claimant's low back condition and whether he needed more treatment after Dr. Mirkin released him on October 14, 2009. Claimant asserts he sustained two herniated discs in his low back from the August 10, 2009 work accident, required a two-level fusion, and ongoing medical treatment after Dr. Mirkin released him. Claimant relied on the expert opinion of Dr. Volarich, who opined the work accident caused Claimant's low back condition, need for surgery and future medical treatment. The Employer denied liability for Claimant's low back treatment after Dr. Mirkin released him and relied on Dr. Coyle's expert opinion that Claimant sustained a low back strain/sprain from the August 10, 2009 work injury, which required no additional medical treatment after Dr. Mirkin released him.

Relevant legal authority

A claimant in a worker's compensation case has the burden to prove all essential elements of the claim including a causal connection between the injury and the job. *Dillon v. Architectural Materials Co.*, 419 S.W.3d 802, 805 (Mo. App. 2013) (Citations omitted). "Medical causation, not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause." *Id.* The weight afforded a medical expert's opinion is exclusively within the discretion of the [fact finder]. *Id.* Where the right to compensation depends on which of two medical theories to be

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accepted, the issue is peculiarly for the [fact finder] to decide. *Id.* Where medical experts differ in their opinions, the [fact finder] is free to believe whichever expert it chooses. *Id.* In a workers' compensation proceeding, the employee has the burden to prove by a preponderance of credible evidence, all material elements of the claim including SIF liability. *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1968).

**Claimant's low back treatment after October 14, 2009 is not medically, causally related to his August 10, 2009 work injury (Issues 1-5)**

Claimant's history about the onset of leg pain is inconsistent to medical providers. Before August 2009, Claimant reported low back and left leg pain to the chiropractor. He reported it again on the day of the accident. Claimant did not report left leg pain when treated at St. Anthony's Urgent Care two days later. He did not report left leg pain to Dr. Mirkin during the course of his four weeks of treatment. Dr. Mirkin's records contain one reference to "slight leg pain." He did report left leg pain to Dr. Sides, his personal physician, on October 26, 2009, after Dr. Mirkin released him. Claimant gave Dr. Volarich a history of left leg pain within two days of the August 10, 2009 work accident. Dr. Volarich admitted Claimant gave inconsistent histories to medical providers about the start date of his leg pain. Dr. Volarich noted a history of low back pain in chiropractic records from 2007 to July 29, 2009, a short time before the accident. Claimant's testimony is not credible about the onset of radiating left leg pain due to the inconsistent history of leg pain contained in medical records in evidence.

From a medical perspective, Dr. Coyle's causation opinion is more persuasive than the August 10, 2009 work injury resulted in a lumbar strain but did not require more low back treatment after Dr. Mirkin's release on October 14, 2009. In September 2009, x-rays of Claimant's lumbar spine were normal and an MRI revealed no disc herniation or stenosis. Dr. Mirkin concluded Claimant had a normal physical examination. Work hardening cleared Claimant to return to work at the heavy-demand level in October 2009. In December 2009, Dr. Rutz cancelled surgery at the L3 level after a second MRI in December 2009, revealed only a small disc protrusion, insufficient in his opinion, to operate.

Dr. Volarich could not separate Claimant's low back complaints from his SI joint complaints due to their anatomic closeness. Dr. Volarich is not a spine surgeon. Dr. Coyle, a board-certified spine surgeon, credibly explained when a patient has an arthritic SI joint and foraminal stenosis or disc herniations at L4-5 and L5-S1, the SI joint can receive referred pain. Therefore, caution is needed to attribute SI joint pain to the SI joint. Dr. Coyle did not find this to be the case with Claimant. Here, Dr. Coyle testified no disc herniations were identified by three radiologists and three spine surgeons on three MRI's and CAT scans. A nerve conduction study did not reveal radiculopathy.

Through February 2011, Drs. Wayne, Mirkin, Rutz, and Coyle did not diagnose disc problems at L4-5 and L5-S1. Dr. Volarich's opinion is not persuasive than all three spine

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surgeons missed the diagnosis. Dr. Coyle noted negative MRI's for radiculopathy, at L4-5 and L5-S1, and a negative EMG nerve conduction study. No diagnostics in evidence revealed disc herniations at L4-5 and L5-S1.

Dr. Coyle's lumbar strain diagnosis from the August 10, 2009 work injury is persuasive. He found no evidence of radiculopathy or lumbar symptoms. In addition, Claimant received chiropractic treatment for lumbar and left SI joint pain up to a few days before the work accident. Dr. Volarich's review of chiropractic records shows treatment to Claimant's low back and left hip between March 2007 and July 29, 2009. Dr. Rueschhoff, Claimant's chiropractor, testified Claimant improved for a while after adjustments, but over time, the adjustments became ineffective.

For these reasons, Dr. Volarich's opinion is not persuasive that Claimant's work accident on August 10, 2009 caused the need for a two-level disc herniation. In addition, Dr. Volarich combined Claimant's complaint from the SI joint in 2007, with complaints from August 2009. He could not distinguish the complaints because of their close anatomic proximity. In addition, Dr. Volarich could not distinguish restrictions for the two injuries.

Claimant's reliance on Greer v. SYSCO Food Services, 475 S.W.3d 655, 668-9 (Mo banc 2015) is not dispositive for this case. In Greer, five doctors diagnosed tarsal tunnel syndrome, including the treating physician. The court concluded the action was intended to restore the claimant to health through medical rehabilitation. Id. at 670. However, in Greer, the issue involved TTD after MMI, not medical causation.

Unlike the Greer case, Drs. Mirkin, Rutz and Coyle did not diagnose herniated discs at L4-5 and L5-S1. No MRI's in evidence revealed herniations, and EMG studies showed no radiculopathy, including the EMG results dated June 26, 2012, a short time before surgery. An MRI of the lumbar spine, taken the same day, showed a mild annular disc bulge at L4-5. CT of the lumbar spine revealed L5-S1 right full thickness annular tear, normal discs at L3-4 and L4-5. Dr. Coyle attributed the tear to the discogram. Both Drs. Volarich and Coyle agree discograms can cause disc damage. A second discogram dated July 2, 2012 showed concurrent pain at L4-5. Dr. Coyle testified a disc herniation is not seen on a CT scan.

Dr. Taylor concluded Claimant had "significant pathology" and recommended an anterior lumbar interbody fusion to address "persistent symptoms of back and leg pain," which Dr. Volarich testified were not seen until Dr. Taylor performed surgery. In contrast, Dr. Coyle testified Dr. Taylor's operative report states what he did, but does not comment on the gross anatomy of the discs. In other words, the operative report does not state he observed a disc herniation, even though his pre and post diagnosis reflect degenerative disc disease, radiculopathy and disc herniations at L4-5 and L5-S1.

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Claimant's reliance on *Thorsen v. Sachs Electric Co.*, 52 S.W.3d 611 (Mo.App. 2001), is not dispositive for similar reasons. 10 In contrast, this Claimant's history of the start of left leg pain is inconsistent, as reflected in medical records in evidence. Unlike the claimant in *Reed v. Associated Elec. Co-op., Inc.*, 302 S.W.3d 693, (Mo.App. 2009), it is questionable whether Claimant's condition improved given Dr. Taylor's diagnosed failed back syndrome and need for a spinal cord stimulator following lumbar surgery.

Finally, Dr. Coyle concluded the low back treatment Claimant received after October 14, 2009 was related to his pre-existing SI joint dysfunction, not disc herniations. He noted the chiropractic treatment Claimant received up to and including August 10, 2009, and beyond.

For these reasons, Claimant did not meet his burden to prove the medical treatment he received for his low back after October 14, 2009 was medically, causally related to his August 10, 2009 work accident.

At the start of the hearing, the parties stipulated if the court found the lumbar fusion was not compensable, Employer would pay 10% PPD of the lumbar spine for a strain/sprain injury. Employer is not liable for past medical expenses, future medical treatment or TTD benefits for the lumbar spine.

**Claimant's left shoulder treatment after October 14, 2009 was medically, causally related to his August 10, 2009 work injury (Issue 5)**

During the hearing, the parties did not, specifically, make the left shoulder an issue. However, it is addressed in their conditional stipulations discussed above, therefore, the issue is preserved. Experts in this case agree Claimant sustained a left shoulder injury from the August 10, 2009 work injury. Dr. Frisella, the Employer's expert, diagnosed pre-existing degenerative rotator cuff and SLAP tears, aggravated by the August 10, 2009 work injury, which caused the need for medical treatment. Dr. Volarich, Claimant's expert, opined Claimant's August 10, 2009 work injury caused his left shoulder labral tear and need for treatment. Claimant credibly testified he injured his shoulder during the accident.

Based on credible testimony by Claimant on this issue, and persuasive testimony from Dr. Frisella and Dr. Volarich, Claimant met his burden to prove he sustained a left shoulder injury from the August 10, 2009 work injury. At the start of the hearing, the parties stipulated if the court found the left shoulder is compensable, Employer will pay 25% PPD of the left shoulder and $4,844.88 for TTD for the period February 10, 2011 to March 25, 2011, for 6 1/7 weeks.

**Claimant is PTD because of his primary injury and pre-existing disabilities (Issue 6)**

10 Several cases in this award have been overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220, 223 (Mo banc 2003). There is no further reference to the *Hampton* decision in this award.

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The issue is whether Claimant is PTD from the last injury alone or in combination with his pre-existing disabilities. Claimant asserts he is PTD due to the combination of his disabilities. Employer denies liability for PTD benefits because no physician or vocational expert opined Claimant was PTD due to the last injury alone. SIF contends if the court finds Claimant's treatment, after Dr. Mirkin released him, is unrelated to the August 10, 2009 injury, SIF is not liable for PTD benefits because all experts consider the low back treatment to be a part of the primary injury, when it is subsequent and unrelated to the primary injury.

Relevant legal authority

Chapter 287.020.6 defines "total disability" as the inability to return to any employment and not merely the inability to return to the employment the employee was engaged in at the time of the accident. The central question to the determination of permanent total disability status is whether any employer in the usual course of business could reasonably be expected to employ an employee in their present physical condition. *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173 (Mo. App. 1995). It is not necessary that the employee be completely inactive or inert in order to meet this statutory definition. *Kowalski v. M-G Metals and Sales, Inc.*, 631 S.W.2d 919, 922 (Mo.App. 1982) (Citations omitted).

The employee must also be unable to compete for work in the open labor market. *Stewart v. Zweifel*, 419 S.W.3d 915, 918 (Mo. App. 2014) (Citations omitted).

The first question decided is the nature and extent of disability from the last injury alone. *Roller v. Treasurer of the State of Missouri*, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the last injury in and of itself rendered Claimant PTD, then SIF has no liability. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 248 (Mo. 2003).

The extent and percentage of disability is a finding of fact within the special province of the fact finder. *Angus v. Second Injury Fund*, 328 S.W.3d 294, 304 (Mo.App.2010) (Citations omitted). Claimant bears the burden to prove the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004).

Section 287.220 states, the SIF is liable for PTD benefits when three findings occur:

1. The employee has a percentage of disability from the compensable last injury, and
2. A pre-existing permanent disability exists that was serious enough to constitute a hindrance or obstacle to employment or re-employment, and
3. All of the injuries combined resulted in the employee being permanently and totally disabled.

In PTD cases, payments should begin when the disability begins. *Kramer v. Labor and Industrial Relations Commission*, 799 S.W.2d 142, 145 (Mo.App.1990).

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For the primary injury on August 10, 2009, Claimant sustained a low back strain and left shoulder impingement. Claimant's current low back/SI joint complaints include limited mobility and pain on his left side. He does not know if his current low back pain is from the 2007 injury or the 2009 injury because the pain emanates from a small area of his low back (About an inch apart).

Claimant would like to return to work, but cannot due to problems with his left SI joint, both shoulders and the August 2009 work injury. Claimant does not believe he can work as a pipefitter or in any capacity, due to his inability to stand during the day, sit for long periods, and his need to lie down often. Claimant does not believe he can return to work as a drafter, even with accommodations, because he does not have the computer skills to perform the job.

Drs. Coyle and Volarich agree Claimant is PTD, but disagree on the reason for Claimant's low back treatment after Dr. Mirkin released him. Dr. Volarich's opinion is not persuasive that Claimant's failed low back fusion is related to the August 10, 2009 work injury. On the other hand, Dr. Coyle's opinion is persuasive that Claimant's failed SI joint and failed low back fusions are related to his pre-existing SI joint problems. Dr. Coyle noted Claimant's normal lumbar spine studies versus bone spurs and osteophytes found on Claimant's left SI joint. Dr. Coyle is confident the SI joint is the primary source of Claimant's pain. He attributes the annular tear to the discogram.

Based on credible testimony by Claimant and persuasive testimony by Drs. Volarich and Coyle, Claimant sustained the following disabilities before August 10, 2009 that were a hindrance or obstacle to his employment or reemployment: left SI joint dysfunction and right shoulder internal derangement. At the hearing Claimant credibly testified that after the March 2007 SI joint injury[^1], he reclined to relieve back pain after extremely busy work days, used caution when lifting, limited the amount he lifted, avoided twisting movements, and sought assistance from co-workers when needed. He scheduled regular chiropractic visits to relieve pain and improve mobility. Dr. Rueschhoff testified manipulations initially helped Claimant, but later they stopped working. After Claimant's right shoulder injury, he accommodated by using his left arm at work.

Based on credible testimony by Claimant, Dr. Volarich, and Ms. Gonzalez, Claimant is unable to return to his former employment as a pipefitter, or to any employment, due to his left shoulder and low back injuries on August 10, 2009, combined with his pre-existing disabilities to his left SI joint and right shoulder.

Due to the close proximity of Claimant's SI joint and his low back complaints, Dr. Volarich could not separate permanent restrictions for the 2007 SI joint dysfunction two years before the 2009 low back injury. As a result, Dr. Volarich combined the restrictions and complaints for both injuries.

[^1]: The SI joint date of injury is referenced in this award as a March 2007 injury and an April 2007 injury.

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Ms. Gonzalez concluded Claimant was PTD due to the August 10, 2009 work injury combined with his pre-existing disabilities. She based her opinion on Dr. Volarich's restrictions, the opinions of Drs. Margherita and Sides, and Claimant's need to lie down and change positions every 30 minutes, and take rest breaks as needed, including in a recumbent position. She noted this would not be a competitive position. For sedentary work, Ms. Gonzalez testified a worker must be able to sit for at least two hours. To perform light, medium heavy or very heavy work, Ms. Gonzalez testified a worker must be able to stand and walk for six hours out of an eight-hour workday. She found Claimant unable to perform these tasks due to his primary injury and pre-existing disabilities.

Based on credible testimony by Claimant, Dr. Volarich, Dr. Coyle, Ms. Gonzalez and medical records in evidence, no employer in the usual course of business can reasonably be expected to employ Claimant in his present physical condition. Therefore, Claimant is unable to compete in the open market. Claimant met his burden to prove he is PTD due to his August 10, 2009 work injury and his pre-existing disability to his SI joint and right shoulder.

ADDITIONAL FINDINGS of FACT and RULINGS of LAW

1. Claimant's testimony during the hearing was inconsistent with medical records in evidence about the onset of his leg symptoms. On this topic, Claimant's testimony is not credible.

1. Claimant's testimony is credible about his current complaints and his inability to distinguish SI joint complaints from low back complaints.

1. Claimant's low back treatment, after Dr. Mirkin released him, was related to his pre-existing left SI joint dysfunction.

1. For the primary injury, Claimant sustained 10% PPD of the body as a whole for a lumbar strain and 25% PPD of the left shoulder. For the lumbar spine, Claimant reached MMI on October 14, 2009. For the left shoulder, Claimant reached MMI on March 25, 2011.

1. The Employer is liable for TTD benefits totaling $4,844.88 for the period February 10, 2011 to March 25, 2011.

1. Claimant sustained pre-existing disability to his left SI joint and right shoulder. Testimony by Claimant and Dr. Rueschhoff is credible that Claimant's pre-existing disabilities were a hindrance or obstacle to his employment or reemployment, as evidenced by medical treatment he received leading up to the August 10, 2009 work injury.

1. The testimony of Dr. Volarich and Ms. Gonzalez is persuasive that Claimant is unable to return to his employment as a pipefitter, or maintain any employment in the open labor

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market because of injuries he sustained from his primary injury and pre-existing disabilities.

1. No employer in the usual course of business can reasonably be expected to employ Claimant in his present physical condition. Claimant is unable to compete in the open market. Therefore, Claimant met his burden to prove he is PTD due to his August 10, 2009 work injury to his left shoulder and low back, and his pre-existing disability to his right shoulder and left SI joint dysfunction.
2. SIF is liable for PTD benefits. Claimant's PTD rate is $\ 807.48 per week. The Employer is liable for $\ 422.97 per week in PPD benefits for 98 weeks. ${ }^{12} The SIF is liable for a weekly differential benefit of \ 384.51 for 98 weeks, beginning March 26, 2011, then $\ 807.48 per week for the remainder of Claimant's lifetime. ${ }^{13}$
3. The award is subject to a lien in favor of Claimant's attorney for legal services rendered.

I certify that on 10-17-19

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 $\qquad$ mp


Suzette Carlisle

Administrative Law Judge

St. Louis Office

[^0]

[^0]: 12400 weeks \times 10 % PPD BAW (lumbar spine) $=40 weeks PPD.

232 weeks (Left shoulder) \times 25 \% \quad=58 weeks PPD.

TOTAL =98 weeks of PPD

{ }^{13} PTD rate: \quad \ 807.49

Less PPD rate : $\ 422.97 (Employer)

SIF differential: $\ 384.51