James Shields v. Lowe's Home Center, Inc.

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

**Employee:** James Shields

**Injury No.:** 15-101348

**Employer:** Lowe's Home Center, Inc.

**Insurer:** Self-Insured

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

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

Employee's claim against the Second Injury Fund herein involves a primary injury that occurred on December 23, 2015. Employer/insurer's application for review cites "public policy issues surrounding employer liability for PTD claims after the 2014 amendments to 287.220. RSMo." It suggests the administrative law judge erred by shifting liability to employer/insurer in this case because newly enacted changes to 287.220, RSMo protected the Second Injury Fund from liability in this case.

Pursuant to the June 25, 2019, decision by the Supreme Court of Missouri in the case of *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. banc 2019), the provisions under § 287.220.3 RSMo apply to employee's claim against the Second Injury Fund based on his December 23, 2015, injury. The administrative law judge's August 27, 2019, award correctly cited § 287.220.3 as the law applicable to employee's claim against the Second Injury Fund for permanent total disability.

The administrative law judge found employee permanently and totally disabled solely due to his December 23, 2015, primary injury. The administrative law judge noted that vocational rehabilitation expert Delores Gonzales opined that employee's right shoulder injury on that date was solely responsible for his lack of access to gainful employment. She further noted that June Blaine, a second vocational consultant, testified that Dr. Volarich's restrictions of use of employee's right upper extremity for activities of daily living only would render employee unemployable. Based on this evidence in conjunction with employee's testimony regarding his physical limitations the administrative law judge found that the employee "has sustained his burden of proof that he is permanently and totally disabled as the result of his work injury to his right shoulder on December 23, 2015." The administrative law judge based her award on

*Award, p. 7.*

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**Employee: James Shields**

competent and substantial evidence in the record. See *Williams v. Treasurer*, 598 S.W.3d 180 (Mo. App. 2020).

In light of our deference to the administrative law judge's weighing of the pivotal issue of medical causation of employee's permanent total disability and her finding that employee's permanent total disability results solely from his December 23, 2015, primary injury, we need not undertake an analysis whether employee's evidence in this case is sufficient to meet the criteria for permanent total disability claims against the Second Injury Fund under § 287.220.3. There is no evidence that changes in the law relating to Second Injury Fund liability played any part in the administrative law judge's assessment of liability against the employer/insurer in this case. An employer is liable for permanent total disability that is solely attributable to an employee's compensable work injury under both §§ 287.220.2 and 287.220.3. The administrative law judge correctly noted, "...Mr. Shields has failed to implicate the Second Injury Fund where the employer/insurer is found liable for permanent and total disability benefits."²

The administrative law judge provided detailed factual findings and explained her view of the opinion evidence. Other than our observation that the award correctly referenced § 287.220.3 as applicable to employee's permanent total disability claim against the Second Injury Fund based on his December 23, 2015, injury, we otherwise agree with the administrative law judge's findings and conclusions with regard to the issues involved in this appeal.

**Conclusion**

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

The award and decision of Administrative Law Judge Hannelore D. Fischer is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

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

Given at Jefferson City, State of Missouri, this **24th** day of July 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**DISSENTING OPINION FILED**

**Reid K. Forrester, Member**

**S. Viki Curls**

**Shalonn K. Curls, Member**

**Pamela M. Hofmann / 14K**

Secretary

² Id., p. 8.

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find that employee's permanent and total disability is due to preexisting disabilities that interfered with his ability to work before and after the December 23, 2015, primary injury. The administrative law judge therefore incorrectly assessed liability for permanent total disability benefits against the employer/insurer in this case.

The employee 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). Permanent total disability is defined as an "inability to return to any employment and not merely ... inability to return to the employment in which the employee was engaged at the time of the accident." § 287.020.6 RSMo. Permanent total disability is measured by "a claimant's ability to compete in the open labor market." *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173, 178 (Mo. App. 1995) citing *Carron v. Ste. Genevieve School Dist.*, 800 S.W.2d 64, 67 (Mo. App. 1990). An employee is not permanently disabled if a reasonable employer would hire him or her. *Schussler v. Treasurer of State - Custodian of Second Injury Fund*, 393 S.W.3d 90, 96 (Mo. App. 2012).

The employee sustained a severe injury in 1967 while serving in the military that resulted in extensive shrapnel wounds. Shrapnel remains embedded in employee's legs to this day, which causes pain, cramping, and difficulty standing for long periods. Since then, employee has used creams and over-the-counter pain medication on a daily basis. After his 1967 military injury and completion of military service, Mr. Shields had training and then a career in the heating, ventilation, air-conditioning, and refrigeration field for twenty-seven years, from 1971 through 1998. In 1998, employee was involved in a motorcycle accident. Thereafter he struggled to work in the industry and was ultimately physically unable to continue because of low back pain in addition to problems with his legs. Employee's 1998 injury ended his ability to work in his chosen career. The employee opted not to proceed with recommended low back surgery due to the risks of the procedure. He has been living with low back and leg pain ever since.

Employee was able to perform his job for employer from 2003 through the December 23, 2015, accident. Vocational expert Ms. Delores E. Gonzalez classified employee's employment for employer to be at a heavy exertional level, which included lifting up to 150 pounds. This opinion is incorrect because it is unsupported by a job description or any information employee provided. To the contrary, employee testified he would lift five-gallon buckets of paint approximately weighing forty-five pounds. He used both hands for that task and did not lift more than one bucket at a time. Employer provided lifts to assist associates with heavy items. Employee asked for help with any items too heavy for him to lift. It is apparent from the record as a whole that employee's ability to work for employer following his 1998 low back injury was due to the fact that his job was of a lesser exertional level than his earlier career. Further, employee still had difficulty as he continued to require pain medication every day to manage ongoing back and leg pain throughout his years working for employer.

Injury No. 15-101348

Employee: James Shields

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Employee never completely recovered from earlier injuries to his legs and back injury. It is factually incorrect to state that employee returned to heavy exertional level work following his career-ending 1998 injury. By employee's own admission, his employment with employer was easier due to the assistance of machinery, co-workers, and rubber mats.

Employee's preexisting conditions impacted his ability to work after December 23, 2015. These conditions compounded the difficulty he had performing post-injury positions of greeter and cashier. Further, employee's 2017 presentation to Dr. Volarich and Ms. Gonzalez included an even worse overall condition due to further failings of his eyesight (cataracts and glaucoma), hearing, and cognitive functioning. All of these conditions certainly impaired employee's ability to work as a greeter, cashier, or any position. Employee's preexisting conditions worsened between the December 23, 2015, injury and the date of his evaluations. Any overall opinions of employee's experts regarding him being unemployable because he seemed so "elderly" at the time of his evaluations are not relevant to the Commission's determination in this case.

Dr. Volarich and Ms. Gonzalez wrongly concluded that employee was unable to work as a greeter or cashier. Both experts based their conclusions on inaccurate facts and baseless assumptions. These opinions therefore do not constitute competent evidence upon which to base a total disability award against employer.

Dr. Volarich considered and evaluated employee's preexisting low back condition but was dismissive of employee's overall preexisting conditions. He did not even consider the shrapnel injuries that had caused employee to suffer from leg pain nearly his entire adult life. Dr. Volarich misunderstood employee's military disability to be for tinnitus. Regarding work as a greeter, Dr. Volarich noted that employee told him he could not tolerate the job but provided no explanation as to why. Dr. Volarich was also under the impression that employee tried to work as a cashier but could not perform the work due to trouble lifting with his right arm. However, that was in error as employee never even attempted to perform that job with or without any further accommodation. Ultimately, Dr. Volarich simply accepted employee's word that he was unable to work and opined employee was totally disabled. Dr. Volarich provided no opinion whatsoever regarding employee's work as a greeter. His opinion as to employee working as a cashier was entirely speculative.

Ms. Gonzalez's opinion that employee was totally disabled as a result of his right shoulder injury alone is completely lacking in foundation. She attempted to keep her opinions in line with Dr. Volarich and employee's but her opinions fail to hold up when even slightly scrutinized. Ms. Gonzalez based nearly the entirety of her conclusions on two completely erroneous assumptions:

First, Ms. Gonzales incorrectly believed that narcotic medication prescribed employee as a direct result of his right shoulder injury caused him to experience a variety of cognitive problems that prevented him from working. In lengthy testimony, Ms. Gonzalez blamed employee's medication for his inability to pass a drug test and worsening problems with memory, focus, confusion, dizziness, and drowsiness, and concluded no employer would hire employee in that condition. However, employee had no prescriptions for and was taking no narcotic pain medication for his right shoulder.

Injury No. 15-101348

Employee: James Shields

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Perhaps Ms. Gonzalez's evaluation happened to coincide with employee's short course of hydrocodone for a kidney stone; however, that was only a temporary treatment. No doctor recommended that employee take narcotics relevant to his right shoulder injury after his release at maximum medical improvement. Ms. Gonzalez's opinion is completely without merit.

Second, Ms. Gonzalez characterized the greater position at Lowe's as a medium demand job due to lifting requirements. However, Ms. Gonzalez reviewed no job description. She was unaware that employer did not require employee to lift anything as a greeter. There was no evidence that employer required any of its greeters to lift merchandise. Ms. Gonzalez based her entire knowledge of employee's job requirements on a book and the fact that she had a friend that worked for employer, instead of evaluating the actual job duties employer assigned to employee. Such opinions cannot possibly rise to the level of substantial or competent especially given that they directly conflict with employee's actual experience in the position.

There is only one consistent reason employee could not work as a greeter—he could not stand in one place for a prolonged period. For his entire working life, he suffered from leg pain after standing for more than an hour and he consistently treated that problem with daily medication. It is undisputed that a reason for that problem was because of pain in employee's legs from his 1967 military injury. Employee tried to emphasize that standing for too long causes swelling in his arm. However, no medical report substantiates that complaint. In noting employee's problem with his shoulder in relation to the greater position Ms. Gonzalez relied on statements from employee that were unsubstantiated by the medical record.

Employee is able to remedy his alleged problem with standing in relation to his arm simply by resting his right hand in or on his pocket. Further, there is no evidence to demonstrate that employer refused to provide any reasonable, permanent accommodations that might have kept employee employed. Unfortunately, employee never asked for any accommodation from employer while working as a greeter. He could have asked for a chair, a rubber mat, or determined another method to rest his arm on something to alleviate the weight of his arm from his shoulder. Instead, employee refused any offers from employer to keep him on the job as he was determined simply to retire.

Ultimately, employee has not sustained his burden to prove by substantial and competent evidence that he is incapable of working.

Conclusion

The employee sustained a significant right shoulder injury while working for employer. However, employee's work injury alone did not render him unemployable in the open labor market. Employee had already sustained significant leg and back injuries that caused him pain and difficulty, and ultimately rendered employee unemployable in his chosen heating, ventilation, air-conditioning, and refrigeration profession. He was then able to work in a lighter capacity for employer prior to his December 23, 2015, shoulder injury. Thereafter, employee was still employable for employer as a greeter or possibly a cashier, except that his lifelong leg and back pain prevented him from standing still for prolonged periods. Employee further had poor eyesight. He felt he would have been

Injury No. 15-101348

Employee: James Shields

- 4 -

incapable of operating the cash register and assumed he would have been an annoyance to customers trying to check out. Employee, then seventy-one years old, chose to retire rather than seek reasonable accommodations. After his December 23, 2015, injury employee continued to age and developed other conditions that also would impair his ability to work including ever-worsening symptoms relating to memory and focus, loss of hearing and his recent decision to obtain hearing aids, and vision loss including bilateral cataract surgeries and glaucoma. Employee's decision to retire may have been reasonable in light of the totality of his circumstances. However, there is no competent or substantial evidence to support an award against employer/insurer based on permanent total disability solely as a result of employee's December 23, 2015, right shoulder injury.

Assuming that employee is currently unemployable in the open labor market, the evidence is overwhelming that his current disability results from the combination of significant preexisting and non-work related conditions together with disability from employee's December 23, 2015, primary injury. Employer/insurer should therefore not be liable to pay lifetime permanent total disability benefits under these circumstances. Because the majority concludes otherwise, I respectfully dissent.

Reid K. Forrester, Member

Employee: James Shields

Injury No.: 15-101348

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Lowe's Home Centers, Inc.

Address: 201

Additional Party: Treasurer of the State of Missouri

Custodian of the Second Injury Fund

Injury No.: 15-101348

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: Self-insured; Sedgwick Claims Management serves as TPA

Hearing Date: May 28, 2019

Checked by: HDF/scb

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: December 23, 2015
5. State location where accident occurred or occupational disease was contracted: Cole County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: See Award
12. Did accident or occupational disease cause death? No. Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Right shoulder
14. Nature and extent of any permanent disability: Permanent an total disability
15. Compensation paid to-date for temporary disability: $\ 14,840.83
16. Value necessary medical aid paid to date by employer/insurer? $\ 40,873.18

1. Value necessary medical aid not furnished by employer/insurer? - 0 -
2. Employee's average weekly wages: 528.67
3. Weekly compensation rate: 352.45 for all benefits
4. Method wages computation: By agreement

1. Amount of compensation payable: permanent total disability as of and including January 18, 2017

Note that January 18, 2017, through August 21, 2019, is a period of 135 weeks for which $47,580.75 is due.

1. Second Injury Fund liability: No.
2. Future Requirements Awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25% of all payments excluding medical in favor of the following attorney for necessary legal services rendered to the claimant: Timothy McDuffey.

The above-referenced workers' compensation claim was heard before the undersigned administrative law judge on May 28, 2019. Memoranda were submitted by July 3, 2019.

The parties stipulated that on or about December 23, 2015, the claimant, James Shields, was in the employment of Lowe's Home Centers, Inc. (Lowe's) The claimant sustained an injury by accident; the accident arose out of and in the course of employment. The employer was working under the provisions of Missouri's workers' compensation law. Workers' compensation liability was self-insured; Sedgwick Claims Management Services is the third party administrator. The employer had timely notice of the injury. A claim for compensation was timely filed. The claimant's average weekly wage is $\ 528.67, resulting in a compensation rate of $\ 352.45 per week. Temporary disability benefits have been paid to the claimant to date in the amount of $\ 14,840.83. Medical aid has been provided in the amount of $\ 40,873.18.

The issues to be resolved by hearing include 1) the nature and extent of permanent disability, 2) the liability of the employer/insurer for future medical care, and 3) the liability of the Second Injury Fund. Permanent total disability benefits are sought.

The parties stipulated that the date of maximum medical improvement is January 17, 2017, and that benefits should begin on January 18, 2017.

The claimant, James Shields, was 72 years old as of the date of hearing. Mr. Shields was working full time for Lowe's at the time of his accident on December 23, 2015. Mr. Shields began his employment with Lowe's in 2003 and worked at Lowe's through January 17, 2017. On December 23, 2015, Mr. Shields was working in the paint department at Lowe's and injured his right shoulder while picking up a five-gallon bucket of paint and placing it on a counter three feet in height. Mr. Shields said that he felt an immediate pain in his right shoulder followed by intense and stabbing pain radiating into his right arm. Mr. Shields received medical treatment and had surgery with Dr. Galbraith on February 22, 2016; the surgery is described as a mini open rotator cuff repair, biceps tendinosis, arthroscopic decompression and excision of lipoma from

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Shields

Injury No. 15-101348

the anterior lateral shoulder. Mr. Shields had physical therapy followed by a second right shoulder surgery with Dr. Galbraith on July 21, 2016; this surgery is described as an arthroscopic release of adhesions as well as a mini open release of subacromial adhesions. Mr. Shields was released from treatment on October 21, 2016, with Dr. Galbraith's restrictions of no overhead work and limited weightlifting to tolerance. Dr. Galbraith found Mr. Shields to have permanent disability of 14 percent of the shoulder as the result of the December 23, 2015 accident and injury. Mr. Shields returned to work at Lowe's but could no longer work in the paint department due to his physical restrictions. Mr. Shields could not work as a cashier at Lowe's due to the lifting requirements. Mr. Shields worked as a greeter at Lowe's but found that his right hand would swell after about an hour of working at the door.

Mr. Shields retired on January 18, 2017, "mostly" because of his right shoulder, although Mr. Shields testified that his condition of his back and legs also played a role in that decision.

Currently, Mr. Shields has to sleep on his left side and sleeps on his recliner when his shoulder pain prevents him from sleeping in his bed. Mr. Shields takes ibuprofen at night, primarily for his right shoulder pain. Mr. Shields has difficulty driving and dressing himself due to right shoulder pain as the result of the December 23, 2015 accident and injury.

Mr. Shields completed the 11th grade and then obtained his GED in 1969 while he was serving in the military. Mr. Shields served in the Marine Corps as a military service weapons technician from 1966 through 1970. After his military service, Mr. Shields received training in heating, ventilation, and air conditioning systems as well as in electronics and used the skills he learned between 1970 and 2003, when he began working at Lowe's.

While in the military Mr. Shields sustained an injury to his left leg due to shrapnel imbedded on the leg. Mr. Shields testified that he did not miss time from work due to the leg injury nor does he believe that the leg injury affected his ability to work, but he also noted pain in the leg after standing for more than an hour. Mr. Shields testified to PTSD relating to his time in the service but does not believe the symptoms affected his ability to work. In 1998, Mr. Shields was involved in a motor vehicle accident which caused an injury to his lower back. A herniated disc at L4-5 was diagnosed, according to Mr. Shields, and he received three epidural steroid injections for the back as well as physical therapy. Mr. Shields testified that he took Tylenol almost daily after the motor vehicle accident. Mr. Shields testified that he left an HVAC employer after his back injury because he could no longer do the heavy lifting required due to his back hurting. Mr. Shields testified that in 2015, prior to his injury while working in the paint department at Lowe's, that he took Tylenol at night to go to sleep as the result of back and leg pain.

In his deposition testimony, Mr. Shields mentioned having a left hand tendon repair in the 1960s or 1970s. Mr. Shields also referred to triggering of the fingers in the right hand after his second shoulder surgery. Mr. Shields stated that he had a lot of swelling in his right hand and pain in his right shoulder when he was performing the greeter position at Lowe's. Mr. Shields said that at the time of the deposition in December 2017 he had constant pain in his right shoulder; Mr. Shields described it as a dull pain accompanied by an occasional sensation of needles sticking up into the area of his incision.

WV-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Shields

Injury No. 15-101348

Dr. David Volarich testified by deposition that he evaluated Mr. Shields on June 6, 2017, and authored a report based thereon on the same day. Dr. Volarich opined that Mr. Shields has a permanent disability of 65 percent of the right shoulder and that Mr. Shields is permanently and totally disabled as the result of the right shoulder injury of December 23, 2015. While Dr. Volarich believed that he had a permanent disability of 15 percent of the body referable to his preexisting back injury and a 15 percent disability of the left knee, he noted that Mr. Shields had no restrictions on his ability to work prior to December 23, 2015. Dr. Volarich restricted Mr. Shields to use of the right shoulder only to the extent necessary for the activities of daily living. Dr. Volarich stated that use of the right shoulder should be limited to no more than two to three pounds in weight. With regard to future medical treatment, Dr. Volarich recommended the continuation of a home exercise program as well as over the counter analgesics as needed for discomfort.

Dr. Galbraith testified by deposition regarding his treatment of Mr. Shields' right shoulder. Dr. Galbraith opined that Mr. Shields could return to work but with a restriction against overhead work with the right arm. Dr. Galbraith admitted that Mr. Shields' recovery from his injury and treatment, including the two surgeries, was suboptimal.

Delores Gonzalez, vocational specialist, testified by deposition that she interviewed Mr. Shields on November 9, 2017; Ms. Gonzalez issued a report based on her evaluation on December 5, 2017, and found that, based on her interview and review of medical records as well as testing of Mr. Shields, Mr. Shields could function "adequately in a clerical position that requires basic reading, sentence comprehension, spelling or math computation." (Gonzalez depo p15) However, Ms. Gonzalez concluded that Mr. Shields' "impairments have severely compromised his ability to either return to his past relevant jobs or perform any job on a sustained basis." (Gonzalez depo p20) Ms. Gonzalez opined that Mr. Shields' permanent total disability is attributable to the December 23, 2015 injury alone.

June Blaine, vocational consultant, testified by deposition that she performed a vocational assessment of Mr. Shields on April 5, 2018; Ms. Blaine's report pertaining to that assessment is dated May 31, 2018. Ms. Blaine noted that in addition to his right shoulder injury Mr. Shields had prior medical records referring to shrapnel injuries in the lower extremities, symptoms of post-traumatic stress disorder, a motor vehicle accident, left hand tendon repair and right hand trigger finger repair, and hearing loss and that Mr. Shields had referenced problems with his vision. Ms. Blaine opined that Mr. Shields is permanently and totally disabled as the result of the December 23, 2015 injury in combination with other problems; the other problems included pain in his legs requiring accommodation in the form of a rubber mat to stand on; vision issues, which impeded his ability to read, use a computer screen and a cash register; low back pain; memory loss; hearing loss; lack of computer skills; and his age. Ms. Blaine admitted that the restrictions imposed by Dr. Volarich on Mr. Shields as the result of the December 23, 2015 injury alone would keep Mr. Shields from being able to find gainful employment. Ms. Blaine also recognized that Mr. Shields testified in his deposition that he could not perform the greater position at Lowe's due to the swelling in the hand, without mention of his legs as a problem.

WV-12-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Shields

Injury No. 15-101348

RSMo 287.020.6 The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident.

RSMo 287.140.1 In addition to all other compensation paid to the employee under this section, the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense. Where the requirements are furnished by a public hospital or other institution, payment therefor shall be made to the proper authorities. Regardless of whether the health care provider is selected by the employer or is selected by the employee at the employee's expense, the health care provider shall have the affirmative duty to communicate fully with the employee regarding the nature of the employee's injury and recommended treatment exclusive of any evaluation for a permanent disability rating. Failure to perform such duty to communicate shall constitute a disciplinary violation by the provider subject to the provisions of chapter 620. When an employee is required to submit to medical examinations or necessary medical treatment at a place outside of the local or metropolitan area from the employee's principal place of employment, the employer or its insurer shall advance or reimburse the employee for all necessary and reasonable expenses; except that an injured employee who resides outside the state of Missouri and who is employed by an employer located in Missouri shall have the option of selecting the location of services provided in this section either at a location within one hundred miles of the injured employee's residence, place of injury or place of hire by the employer. The choice of provider within the location selected shall continue to be made by the employer. In case of a medical examination if a dispute arises as to what expenses shall be paid by the employer, the matter shall be presented to the legal advisor, the administrative law judge or the commission, who shall set the sum to be paid and same shall be paid by the employer prior to the medical examination. In no event, however, shall the employer or its insurer be required to pay transportation costs for a greater distance than two hundred fifty miles each way from place of treatment.

Section 287.140.1 places on the claimant the burden of proving entitlement to benefits for future medical care. Rana v Landstar TLC, 46 SW3d 614 (Mo App 2001)

The employee need only show that he is likely to need additional treatment "as may reasonably be required to cure and relieve the effects of the injury that flow from the accident [or disease]." This has been interpreted to mean that an employee is entitled to compensation for care and treatment that gives comfort, i.e., relieves the employee's work-related injury, even though a cure or restoration to soundness is not possible, if the employee establishes a reasonable probability that he or she needs additional future medical care. "Probable" means founded on reason and experience that inclines the mind to believe but leaves room for doubt. Claimant need not show evidence of the specific nature of the treatment required, but only that treatment is going to be required. Sullivan v. Masters and Jackson Paving, 35 S.W.2d 879, 888 (Mo.App.2001).

WC-32-R3 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: James Shields

Injury No. 15-101348

RSMo 287.220.3 (1) All claims against the second injury fund for injuries occurring after January 1, 2014, and all claims against the second injury fund involving a subsequent compensable injury which is an occupational disease filed after January 1, 2014, shall be compensated as provided in this subsection.

(2) No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the second injury fund. Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces; or

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

(4) Compensation for benefits payable under this subsection shall be based on the employee's compensation rate calculated under section 287.250.

AWARD

The claimant, James Shields, has sustained his burden of proof that he is permanently and totally disabled as the result of his work injury to his right shoulder on December 23, 2015. Mr. Shields testified to his constant pain in the right shoulder as well as the limitations imposed on him by his right shoulder. Mr. Shields testified that he was unable to perform even the duties of a greeter at Lowe's due to the swelling in his right hand as a result of the shoulder injury of December 23, 2015. Dr. Volarich confined Mr. Shields to use of the right shoulder and arm to no more than the activities of daily living. Dr. Galbraith restricted Mr. Shields from all overhead work. Ms. Gonzalez, the vocational rehabilitation expert who evaluated Mr. Shields, testified that it is

WCO-32-81 (6-81)

Page 7

**Employee:** James Shields

**Injury No.:** 15-101348

The right shoulder injury alone which is responsible for Mr. Shields' lack of access to gainful employment. Even Ms. Blaine, another vocational expert who evaluated Mr. Shields, testified that based on Dr. Volarich's restrictions of use of Mr. Shields' right upper extremity for activities of daily living only, that this would make him unemployable.

Mr. Shields has failed to sustain his burden of proof that he is entitled to future medical treatment. Dr. Volarich is the only physician who recommended medical treatment, and the medical treatment recommended was over the counter analgesics for right shoulder pain. Mr. Shields was taking over the counter analgesics for back and leg pain prior to the December 23, 2015 work accident; there has been no testimony that the amount of medication he is taking post December 23, 2015, has increased from his pre accident level.

Finally, Mr. Shields has failed to implicate the Second Injury Fund where the employer/insurer is found liable for permanent and total disability benefits.

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I certify that on **8/27/19**, 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 **__________________________**.

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**Made by:**

**HANNELORE D. FISCHER**

Administrative Law Judge

Division of Workers' Compensation

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WC-32-R116-011

Page 8