David King v. Sheraton Clayton Plaza Hotel

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-063318

**Employee:** David King

**Employer:** Sheraton Clayton Plaza Hotel (settled)

**Insurer:** Sunz Insurance Company (settled)

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

The above-entitled 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 and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated October 2, 2019. The award and decision of Administrative Law Judge Joseph E. Denigan, issued October 2, 2019, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this **23rd** day of July 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**Shalonn K. Curls, Member**

Attest:

**Secretary**

Employee: David King

Dependents: N/A

Employer: Sheraton Clayton Plaza Hotel

Additional Party: Second Injury Fund

Insurer: Sunz Insurance Co.

Hearing Date: June 17, 2019

Injury No.: 13-063318

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JED

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, 2013 (second case)

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

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

1. Did employer receive proper notice? Yes

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

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

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee injured his low back when he slipped and fell on grease in doorway.

1. Did accident or occupational disease cause death? No Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: low back

1. Nature and extent of any permanent disability: 30% PPD of the low back; PTD from SIF

1. Compensation paid to-date for temporary disability: $81,286.42

1. Value necessary medical aid paid to date by employer/insurer? $21,907.24

Revised Form 31 (3/97)

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1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: N/A
3. Weekly compensation rate: $\$ 853.08 / \ 446.85
4. Method wages computation: Stipulation

1. Amount of compensation payable:

120 weeks PPD from Employer

(settled)

1. Second Injury Fund liability:

Permanent total disability benefits from Second Injury Fund:

weekly differential (\$406.23) payable by SIF for 120 weeks beginning

February 17, 2016 and, thereafter, $\ 853.08 for Claimant's lifetime

Indeterminate

TOTAL:

INDETERMINANT

1. Future requirements awarded: Unknown

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 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant:

Daniel Keefe

This case involves two separate Claims for Compensation alleged by Claimant, against two different employers, with the reported accident dates of February 21, 2013 (\#13-013408; Big Sky/Remy's Kitchen) and August 10, 2013 (\#13-063318; Sheraton). These cases may be referred to hereafter as the "first" and "second" cases, respectively. Employer/Insurer tendered benefits in each case and previously settled their risk of liability. A Temporary Award, issued (in the second case) in 2014, was not placed in the record of evidence. The single issue for trial in each case is the liability of the Second Injury Fund.

The SIF admits Claimant was employed on said dates and that each injury arose out of and in the course of employment. Both parties are represented by counsel. Claimant alleges permanent total disability in the second case. The testimony and exhibits in this record shall constitute the evidence in each Claim. Separate Awards issue on each Claim.

Claimant offered extensive testimony much of which was unnecessary given the unchallenged treatment record and unrebutted expert medical testimony. He testified about the accidents and treatment underlying each Claim. The SIF demonstrated some inconsistency between his direct testimony at trial and his prior hearing testimony. This coupled with several instances of inexactness elsewhere render his testimony unreliable. (Exhibit Roman Numeral I.) In all events, the nature and extent of his disabilities, current and pre-existing, was necessarily the subject of expert testimony.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-063318

First Case - Hand Cut

Claimant lacerated the lateral aspect of his left hand on February 21, 2013. Claimant lost no time from work. He subsequently settled that case for 2.5 percent PPD of the left hand.

Second Case - Low back Injury

Claimant slipped and fell injuring his low back on August 10, 2013. Claimant testified he treated with Dr. James Coyle. Medical expenses in the amount of $21,907.29 are reflected on the face of Employer's CLSS for the low back, settled at 17.5 percent PPD of the body (Exhibit 1-13).

Significant Pre-Existing Disabilities

In 1994, claimant sustained a low back injury causing him to fall to the ground. His symptoms improved with chiropractic care. He treated low back symptoms in 2008 at Grace Hill and was diagnosed with a lumbar strain and sciatica. In 2011, he was diagnosed with fibromyalgia-like symptoms. By 2013, but pre-accident herein, he was treating low back pain with left leg radicular symptoms into his toes at Logan Chiropractic (see below).

In, 1997, Claimant testified he sustained blunt trauma to the face resulting in surgery with orbital implant. He stated he experiences a severe headache about once a month. He feels pain in severe cold from the implant. The medical records from East Jefferson General Hospital show an admission on May 29, 1997 for "blunt trauma" with surgery with wire to reconstruct the infraorbital rim by Dr. Joseph Creely, Jr. on May 30, 1997, with discharge that same date. (Exhibit 1-12.)

In 2011, Claimant was apparently admitted to hospital with right-sided weakness and foot dragging for a "stroke." A CT scan was reportedly negative.

Claimant had used drugs for decades and continues to fight addiction.

In 2005, Claimant developed a staph infection, subsequently diagnosed as MRSA. Relative to the low back accident herein, both Dr. James Kennedy and Dr. James Coyle considered surgical treatment. However, Dr. Coyle ultimately stated the because of his past MRSA infection, Claimant was at "very high risk for discitis or osteomyelitis if he did have surgery." No surgery was performed to relieve Claimant's symptoms. Dr. Coyle's notes include four other reasons why surgery was contraindicated, including status as a smoker.

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-063318

Exhibit - Objections

At the outset, objections to the admissibility of narrative opinions from two surgeons is discussed. Claimant proffered the opinions of two orthopedic surgeons, Dr. David Kennedy and Dr. James Coyle (Group Exhibits 1-6 and 1-7, respectively). Dr. Kennedy's opinion is comprised of a two and one-half page report dated February 25, 2014 which is described by him as an "Independent Medical Evaluation." In contrast, Dr. Coyle's ongoing opinions are comprised in the 31 page exhibit so identified above. Specifically, the notes and impressions of each visit are memorialized in letter format to the Insurer's adjustor. This is a recognized expedient utilized by many surgeon providers to avoid duplicate dictations of notes and status reports. (See Exhibit 1-7.)

The SIF objected to the admissibility of each of these proffers:

The Second Injury Fund objects to the admission of Group Exhibit 1-6 and Group Exhibit 1-7 and to the extent that they are independent medical evaluations made in specific purpose for trial and under Section 287.210.7 these are not able to be admitted into evidence and overcome the objection of hearsay.

Claimant's attorney defended the admissibility of Dr. Coyle's opinions as certified records. Dr. Kennedy's opinion report was never characterized by Claimant as a certified record.

Further, regarding the opinions of both doctors, response to objection sought to predicate the SIF's proffer of the 2014 trial transcript (Exhibit Roman Numeral I) of the prior hearing (on Temporary Award), at which hearing Claimant asserts "those IME reports were both exhibits properly admitted ...," as a basis to assert the SIF "opened the door to the conclusions contained therein."

As described, the Exhibit is a series of letter reports to the adjustor over a two-year period supplemented with radiological reports, all three of which were ordered by Dr. Coyle. Only the two initial letters, dated November 19, 2013 and December 17, 2013 are expressly characterized as IMEs; neither makes a treatment prescription or treatment recommendation. However, subsequent letters included referral to aquatic therapy, a myelogram, Dr. Doll for injections, and finally, a discussion with Claimant about why surgery was contraindicated. Such interaction is clearly treatment as contemplated by Section 287.140.1 RSMo (2005). These first two letters, less important, are easily redacted, if necessary. The SIF did not request such precise relief. Separately, Dr. Coyle's personal characterization of a letter is not determinative of the legal significance of its content, i.e. "Thank you for referring [Claimant] for an independent medical evaluation."

More importantly, Dr. Coyle's records and Dr. Kennedy's report were reviewed by all experts herein, including SIF's vocational expert, Mr. Benjamin Hughes, without objection on these grounds. Specifically, Mr. Hughes characterized Dr. Coyle as a

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-063318

"treating physician" and his ultimate opinion depends squarely on Dr. Coyle's "Discharge Instructions." The SIF objection to Exhibits 1-6 and 1-7 is deemed waived.

***

Separately, the SIF sought to offer Claimant's 62-page deposition in its entirety, as Exhibit *Roman Numeral II*, even though Claimant testified live at trial. By regular practice the court excluded the deposition but invited the SIF to identify pages/lines to be marked in the exhibit. [Excluded exhibits are, nevertheless, kept part of the record.] Unprepared to do so at trial, the court further allowed the SIF to withdraw the proffered Exhibit in order to identify such pages which it did (marked Exhibit *Roman Numeral IV*) but without identifying lines or the intended impeachment.¹ Also, The SIF mistakenly relies on *Breeding v. Dodson Trailer Repair, Inc.*, 679 S.W.2d 281 (Mo. banc 1984) to defend its proffer as that case involved a physician testifying by deposition. Having had unlimited cross-examination during trial, the SIF's Motion articulates no prejudice but only convenience.

The proffer suggests Claimant's cross-examination continue outside the courtroom. Both the attempt to file the Claimant's deposition in its entirety and the subsequent failure to specify lines and the intended impeachment purports to shift the attorney's responsibility to the ALJ. These efforts ignore the purpose of a trial and the purpose of cross-examination.

Medical Opinion

Dr. Woiteshek

Claimant offered the 2017 deposition of Dr. Dwight Woiteshek as Exhibit 1-1. Dr. Woiteshek examined Claimant and reviewed the medical record. He was asked about both cases herein. In the first case, he assigned no PPD of the left hand laceration.

---

¹ §287.560 RSMo (2016) directs that depositions in WC be conducted as in civil cases. Supreme Court Rule 57.07 states, in relevant part, "Depositions may be used in court for any purpose." A proponent may use the deposition "in court" as provided by the Rule. The Rule cannot be read to permit a transcript to be filed as an exhibit where the witness testifies at trial. It is customary that claimants testify on their own behalf which testimony is observed and weighed by the fact finder. Sound reasons exist for not admitting deposition transcripts in evidence in their entirety where live testimony is presented: (1) cumulative evidence is less useful, unnecessary and/or inefficient; (2) transcripts routinely contain irrelevant matters or matters discoverable but not admissible; (3) improper imposition of an adversarial obligation of review by the ALJ, including discerning matters that may lend advantage to one party or another; (4) risk of unfair surprise or prejudice to the party-opponent (that re-direct examination might easily explain or rehabilitate); (5) enlarging cross-examination on appeal without protections of the trial court; (6) enlarging an appeal beyond the issues expressly stated at trial. Cases discussing use of depositions at trial contemplate "portions" of transcripts being read. These portions must be admissible in evidence. See Missouri Discovery §4.35 (MoBar, 2d ed. 2015). Convention in practice consists of simply identifying the pages from a properly indexed transcript and giving the opposition an opportunity to respond.

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-063318

In the second case, Dr. Woiteshek diagnosed the primary injury was traumatic bulge at L5-S1 with compromise of the S1 nerve root more pronounced on the left consistent with a December 10, 2014 CT scan (p. 6). Dr. Woiteshek testified that Claimant did not undergo surgery because he had previously contracted MRSA (and was a smoker) (p. 12). He rated Claimant's primary low back injury at 25 percent PPD of the body and rated his pre-existing low back condition at 20 percent PPD of the body. He further opined Claimant was permanently and totally disabled as a result of the "synergistic combination" of the primary injury to the low back and the pre-existing low back condition. Dr. Woiteshek found the pre-existing condition had been a hindrance to employment. He assigned severe lifting restrictions regarding the back condition including of no lifting greater than 10-15 pound and then only occasionally, no fixed positions of sitting or standing greater than 20-30 minutes and avoidance of all bending, twisting, lifting etc.

On cross-examination, Dr. Woiteshek affirmed Claimant's treatment included two spinal injections (p. 15-16). He further affirmed suggestion by the SIF that Dr. Coyle had imposed a lifting restriction of 20 pounds but that he was unaware of any other physician having imposed such a restriction prior to the current low back injury. Redirect examination established Claimant never returned to work after the primary injury to the low back.

Dr. Volarich

Claimant also offered the 2018 deposition and narrative report of Dr. David Volarich as Exhibit 1-2. Dr. Volarich examined Claimant and reviewed the medical record. Dr. Volarich diagnosed "severe increase in lumbar left leg radiculopathy secondary to disc protrusion causing bilateral S1 nerve root compression, left more than right," and that it was non-operative (p. 8). Dr. Volarich summarized a December 10, 2014 CT/myelogram: "... revealed a broad based disc bulge at L5-S1, compression S1 nerve root left greater than right, facet joint osteophytes, and mild diffuse disc bulges at L4-5 and L3-4. He further noted Dr. Coyle's impression of this study and who diagnosed left sided S1 radiculopathy with referral to Dr. Doll. He testified Dr. Coyle was the treating spine surgeon who evaluated Claimant and made the recommendation for fusion at this level. No surgery was performed because of the past history of MRSA; he added that smoking made Claimant a "poor risk as well."

Dr. Volarich diagnosed pre-existing conditions of chronic lumbar syndrome with mild intermittent left leg paresthesia and radicular symptoms, left palm hypothenar laceration, and the right orbital fracture with internal fixation, asymptomatic. He expressly doubted the other conditions not reviewed here. He felt the pre-existing low back condition and the left and laceration were hindrances to employment. He assigned a 20 percent PPD to the pre-existing low back condition. He also assigned a 15 percent PPD to the left hand (which was presumably based on complaints since examination was deferred (Exhibit 1-2; Depo Ex. B, p. 6)).

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-063318

Dr. Volarich assigned the primary back injury 30 percent PPD. He found the combination of his disabilities creates a substantially greater disability than the simple sum of the separate disabilities. He did not find Claimant permanently and totally disabled on that date but he subsequently reviewed the PTD opinion of Dr. Woiteshek and the vocational assessment by Delores Gonzalez and concurred that Claimant was permanently and totally disabled. Restrictions on activity were severe.

The SIF offered no expert medical testimony. These opinions were unrebutted, unimpeached, and records reviews were unchallenged.

Logan Chiropractic Records

Treatment records from Logan Chiropractic Health Center reflect pre-accident complaints of low back pain and left leg radiculopathy into the toes. Notes reflect positive SLR and Patrick FABERE tests as of June 19, 2013. Patient histories indicate initial complaints began in 1994 with minor incident worsening symptoms including intermittent pain and burning down Claimant's left leg. Weekly treatment notes continue through August 2013, including a report of the slip and fall herein. These records were reviewed and relied upon by the experts herein.

Vocational Opinion

Ms. Gonzalez

Claimant offered the deposition of Delores Gonzalez as Exhibit 1-3. She examined Claimant and reviewed the medical record. Her evaluation paralleled the medical opinions of Claimant's two experts. She found Claimant unemployable in the open labor market. Ms. Gonzalez asserted verbal and concentration deficits that would interfere with general job competence but she did not identify an underlying cause of this presentation. Testing result in her narrative report, however, confirmed above average reading comprehension and spelling were in the above average range. With these scores, Claimant "would be expected to assimilate to a new environment..." and he "could perform adequately in a clerical position. Earlier in the report, she stated Claimant had no transferable skills. She equivocated on cross-examination regarding this contradiction.

While Ms Gonzalez appears to have misunderstood why Claimant did not undergo the recommended surgery, she nevertheless seemed to understand the existence of the lumbar pathology and she shaped her conclusion around the medical experts' restrictions.

On cross-examination, Ms Gonzalez confirmed that pre-accident restrictions by Dr. Volarich would have been for Claimant to "work to full duty to tolerance with normal work precautions. She was unaware of any express pre-accident medical restrictions.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-063318

She also pointed out claimant had not been a supervisor since 2000. She volunteered that Claimant "realized that he had done some things in the past that he shouldn't have, but that he learned his lesson."

Mr. Hughes

The SIF offered the deposition and narrative report of Benjamin D. Hughes as Exhibit *Roman Numeral III*. Mr. Hughes offered alternative opinions based upon given physicians' restrictions, each of which contemplated employability. He believed the treating physicians' restrictions permitted light level employment whereas Dr. Volarich's restrictions only permitted sedentary employment, and those of Dr. Woiteshek precluded employment. Mr. Hughes listed various job possibilities. Mr. Hughes emphasized pre-accident activity including working out and bicycle riding. He noted Claimant worked consistently, and broadly, in the food service industry with some supervisory experience. Mr. Hughes believed vocational services and perhaps retraining was viable.

Neither Expert discussed the impact of Claimant's admitted chronic drug addiction in his employability.

RULINGS OF LAW

First Case

Nature and Extent of permanent Disability and Liability of the SIF

SIF liability is premised on a synergistic combination of the primary and pre-existing disabilities. SIF liability attaches where the current PPD and the pre-existing PPD are found, in combination, to create a "substantially greater" disability, or an increased overall disability, for which the employer should not be held liable. The significance of permanent partial disability findings of the pre-existing conditions is predicated upon the statutory thresholds for injuries to the extremities and injuries to the body as a whole. Section 287.220.1 RSMo (2000).

Neither the Claimant's testimony nor medical evidence credibly demonstrate measurable PPD of Claimant's left hand as a result of the reported injury. However, Section 287.190.6 RSMo (2005) provides that any determination of PPD by settlement or award continues undiminished. Accordingly, as reflected in the settlement dated February 3, 2014, Claimant is found to have sustained 2.5 percent PPD of the left hand. (Exhibit 1-13.)

Nevertheless, Claimant presented no probative evidence of how his left hand cut combined with any of his alleged pre-existing disabilities in order to create an increased overall disability. Claimant did not explain any synergistic combination and neither of

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-063318

his experts, Dr. Woiteshek or Dr. Volarich, demonstrated the required combination. The first case fails to meet the statutory requirements.

Second Case

Nature and Extent of Permanent Disability

Claimant's expert evidence, while unrebutted by the SIF, nevertheless consists of divergent initial views about permanency. Dr. Woiteshek's clinical examination notes of significant positive findings are consistent with his ratings and Claimant's proposed surgery and, separately, his opinion that Claimant is permanently and totally disabled. The injection therapy by Dr. Doll, with temporary relief, were consistent with the proposed surgery and the opinions of Dr. Woiteshek and Dr. Volarich.

The pre-accident complaints, symptoms, and clinical notes regarding low back pain left leg radiculopathy from Logan Chiropractic parallel the treatment records and opinions of the medical experts herein. More fundamentally, these records document pre-accident disabling lumbar symptoms. The osteophyte formation at L5-S1 noted in the December 2014 CT further corroborates significant pre-existing pathology at the L5-S1 level.

Significant portions of Claimant's trial testimony was uncorroborated in his medical record. His claims of stroke and fibromyalgia as they bear on a proof of disability, were essentially dismissed by one of his own experts, Dr. Volarich. Dr. Volarich changed his view to permanent total disability after reviewing Dr. Woiteshek's and Ms. Gonzalez's assessment. Given Ms. Gonzalez testimony and findings, it is difficult to understand why Dr. Volarich changed his opinion. Her assessment contained serious flaws as stated above. Mr. Hughes rebutted much of Ms. Gonzalez's testimony. Nevertheless, the medical evidence suggests Claimant is permanently and totally disabled.

Claimant two medical experts gave fundamentally similar views on permanent disability. Dr. Volarich found Claimant reached maximum medical improvement on February 17, 2016. Each expert found greater overall disability resulted from a combination of the Claimant's pre-existing lumbar disability and his current lumbar disability. As stated, the SIF offered no medical opinion evidence on disability.

The current disability is determined to be thirty percent PPD of the body (120 weeks). The pre-existing low back PPD was rated by two experts at twenty percent PPD and is determined to be such (80 weeks). Claimant's pre-existing L5-S1 pathology is demonstrated in the evidence. Claimant has a final diagnosis of unoperated disc pathology at L5-S1 with radiculopathy. The L5-S1 dermatome is perhaps the most dangerous level of injury since it innervates the entire lower extremity into the foot. Accordingly, Claimant is found to be permanently and totally disabled.

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MNKOI 0000811608

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Number: 13-063318

Claimant presented expert medical evidence that was unrebutted by the SIF. Each medical expert found an increased overall disability as a result of the combination of the primary disability with pre-existing disability.

In order for the SIF to be liable for total disability benefits, a claimant must establish that total disability is due to the combination of primary injury with her then pre-existing disabilities. *Boring v. Treasurer of Mo., Custodian of the Second Injury Fund*, 947 S.W.2d 483, 489-90 (Mo.App. E.D. 1997). In cases where permanent total disability results only from the combination of the primary injury, the pre-existing conditions and unrelated post primary injury progression of pre-existing conditions, the SIF is not liable for permanent total disability. The Second Injury Fund is not liable for any post-accident worsening of an employee's pre-existing conditions which are not caused or aggravated by the last work-related injury or for any conditions which arise after the last work-related injury. *Lammert v. Vess Beverages, Inc.*, 968 S.W.2d 152 (Mo.App. 1994); *Lawrence v. Joplin R-VIII School Dist.*, 834 S.W.2d 789 (Mo.App. 1992).

Here, Claimant presented substantial probative medical records evidence of severe pre-existing disabling symptoms of low back pain and lumbar radiculopathy and worsened current disabling lumbar pathology. Claimant presented overwhelming probative expert medical testimony of a combination between his primary injury disability and his pre-existing disability. The medical evidence was probative and completely unrebutted. This record compels a finding that the primary lumbar injury combines with the pre-existing lumbar injury to create an increased overall disability. The record compels a finding that the SIF is liable for permanent total disability benefits.

Accordingly, in the second case, on the basis of the substantial competent evidence contained within the whole record, Claimant is found to have sustained permanent total disability as a result of the combination of the primary injury with the pre-existing disability described. The SIF is liable for the differential between the PTD rate and the PPD rate for the period of PPD installment and, thereafter, for Claimant's lifetime, or until Claimant is no longer permanently and totally disabled. Section 287.200.1 RSMo (2008).

I certify that on **10-2-19** 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 **_******_******_***_____

**Made by:**

**JOSEPH E. DENIGAN**

Administrative Law Judge

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