Gary Fuwell v. Missouri Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 13-087198

**Employee:** Gary Fuwell

**Employer:** Missouri Department of Corrections

**Insurer:** Central Accident Reporting Office

**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 16, 2019. The award and decision of Administrative Law Judge, Victorine R. Mahon, issued October 16, 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 **10th** day of August 2020.

---

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

**Robert W. Cornejo, Chairman**

**Reid K. Forrester, Member**

**S. Viki Curls**

Shalonn K. Curls, Member

**Attest:**

**Secretary**

Injury No.: 13-087198

Before the

DIVISION OF WORKERS' COMPENSATION

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Checked by: VRM/ps

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: November 21, 2013.
5. State location where accident occurred or occupational disease was contracted: Licking, Texas County.
6. Was above claimant 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 claimant was doing and how accident occurred or occupational disease contracted: During the course and scope of employment, while checking an unsecured area at the prison, claimant fell down a flight of stairs.
12. Did accident or occupational disease cause death? No. Date of death? N/A.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary Fuwell

Injury No.: 13-087198

1. Part(s) of body injured by accident or occupational disease: Lumbar spine.

1. Nature and extent of any permanent disability: See below.

1. Compensation paid to-date for temporary disability: 35,659.45, with a credit due Employer in the amount of 2,793.91 (by agreement).

1. Value necessary medical aid paid to date by employer/insurer? 107,969.33.

1. Claimant's average weekly wages: 566.89.

1. Weekly compensation rate: $377.92.

1. Method wages computation: By agreement.

COMPENSATION PAYABLE

1. Amount of compensation payable:

Beginning September 28, 2016, and continuing for the remainder of Claimant's lifetime, Employer shall pay to Claimant weekly benefits in the amount of $377.92 for permanent total disability. Employer is entitled to a credit in the amount of $2,793.91.

1. Second Injury Fund liability: None.

1. Future requirements awarded:

In addition to permanent total disability, Employer is liable for future medical treatment to cure and relieve the effects of the work-related injury of November 21, 2013.

The Award is subject to modification and review as provided by law. Interest shall be paid as provided by law.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the Claimant: Van Camp Law Firm, LLC.

This case was heard by the undersigned Administrative Law Judge on August 13, 2019. The parties were afforded an opportunity to submit briefs or proposed awards on or before August 30, 2019. Gary L. Fuwell (Claimant) appeared personally and with his attorney Kevin V. Spear of the Van Camp Law Firm. Employer appeared by Assistant Attorney General Cara Harris. The Treasurer of the State of Missouri, as Custodian of the Second Injury Fund (SIF) appeared by Assistant Attorney General Keyla Rhoades. The parties agreed to certain facts and narrowed the issues, as follows:

1. On November 21, 2013, the Missouri Department of Corrections was a self-insured employer operating under and subject to The Missouri Workers' Compensation Law.
2. On that same date, Claimant Gary L. Fuwell was an employee of Employer and was working under and subject to The Missouri Workers' Compensation Law.
3. On that same date, Claimant sustained an injury by accident, which arose out of and in the course of his employment with Employer.
4. The employment and accident occurred in Licking, Texas County, Missouri. The hearing was held in West Plains, Missouri, in adjoining Howell County. Jurisdiction and venue are proper.
5. Claimant notified Employer of his injury as required by § 287.420 RSMo.
6. The Claim for Compensation was filed within the time prescribed by § 287.430 RSMo.
7. On November 21, 2013, Claimant's average weekly wage was 566.89, yielding a compensation rate of 377.92 for all purposes.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

(8) Employer paid $35,659.45 to Claimant for 94 weeks, 2.5 days of temporary total disability. The parties agree that Employer is entitled to a credit against permanent disability in the amount of 2,793.91.

(9) Employer paid 107,969.33 for Claimant's medical treatment.

(10) Claimant reached maximum medical improvement on September 27, 2016.

ISSUES

1) Is Employer liable for future medical treatment?

2) What is the nature and extent of disability against Employer?

3) What is the nature and extent of disability against the Second Injury Fund, if any?

EXHIBITS

Claimant offered the following exhibits, which were admitted into evidence without objection:

1. Deposition, Report and CV of Dr. David Robson
2. Medical Records - Texas County Memorial Hospital
3. Medical Records - The Orthopedic Center of St. Louis
4. Medical Records - Advanced Care Physical Therapy
5. Medical Records - Advanced Care Physical Therapy
6. Medical Records - Work Evaluations and Ergonomics Assessment, Inc.
7. Medical Records - Mercy Clinic, Inc.
8. Medical Records - Springfield Neurological and Spine Institute, LLC
9. Medical Records - Neurological and Electrodiagnostic Institute of St. Louis
10. Medical Records - Pain and Rehabilitation Specialist of St. Louis
11. Records - Missouri Division of Workers' Compensation
12. Van Camp Law Firm Expenses
13. Van Camp Law Firm Agreement
14. Dr. David Volarich Reports dated February 8, 2017, May 1, 2019 and CV
15. Deposition, Report and CV of Mr. Phillip Eldred
16. Medical Records - Texas County Memorial Hospital
17. Medical Records - Texas County Memorial Hospital
18. Medical Records - Advanced Care Physical Therapy
19. Medical Records - Neuro Spinal Surgery
20. Medical Records - Deborah Belt-Kell
21. Medical Records - Comprehensive Spine Care
22. Medical Records - Advanced Spine Institute
23. Van Camp Law Firm Expenses

Employer offered the following exhibits, which were admitted into evidence without objection:

A. Deposition - Dr. Herbert Mark Crabtree

B. Report - Dr. Ted Lennard, SNSI

C. Report - Dr. Brett Taylor, Orthopedic Center of St. Louis

D. Report - Dr. P. Brent Koprivica

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

E. Deposition - Mr. Benjamin Hughes

The Second Injury Fund did not offer any exhibits.

Claimant testified credibly. At the time of the hearing, he was 62 years old and resided with his wife and one of his sons. He had lived in Houston, Missouri, a rural town with less than 2,000 people, for the last 25 years.

Claimant graduated high school in 1976. He received some training and certificates in "Information Processing" and "Medical Assistant" approximately 20 years ago. The Information Processing is out of date. The medical assistant training was for his personal enrichment to help take care of children that he and his wife fostered.

From 1976 until 1979, Claimant served in the Air Force from 1976 until 1979. Following his discharge, he worked for a local factory and did construction work off and on. He started at Durham Metal Fabricating, a factory in Houston, Missouri, in 1992. He started on the fabrication line and then was promoted to supervisor. His job was physically demanding, even as a supervisor, requiring him to lift sheet metal weighing 70-100 pounds. After leaving his job at Durham, he did some construction work again until he was hired by the Department of Corrections in 2002.

Claimant worked as a Correctional Officer for 13 years. He began his career in Corrections at the Algoa facility and later transferred to the South Central Correctional Center ("SCCC") in Licking, Missouri. Claimant worked in a Housing Unit at the time of his injury. This was a physically demanding position. Claimant's job required that he monitor inmates, perform hourly walks through the yard, conduct searches, and provide breaks to other Correctional Officers as needed.

**Right Knee** - Claimant injured his right knee at work in 1979 or 1980, which required surgery. Following that accident, Claimant's right knee would get stiff and ache, which was exacerbated by cold or wet weather, climbing stairs, and running. Consequently, his right knee is weaker than his left. He wore an elastic over-the-counter knee brace.

**Neck** - In 2004, Claimant suffered a work-related injury to his neck resulting in C5-6 and C6-7 allograft fusions reinforced with anterior spinal plate instrumentation. Following this injury, Claimant was careful with his neck. Rotation of the neck can initiate headaches with radiating pain which can last one or two days, requiring an extensive amount of over-the-counter medication. He has ongoing radiating pain, weakness, and numbness in his right arm into his fingers. These symptoms increase with cold weather.

Claimant has suffered numerous prior injuries to his back. In 1998, he suffered a back injury after a lifting incident. He was diagnosed with a low back strain and returned to work. In 2000, he again injured his back while lifting and twisting. He was treated conservatively and settled a workers' compensation case for 10-percent permanent partial disability to the whole body. In 2008, Claimant suffered a strain in his lower back on the right side when he was dragging a locker from underneath a bunk while working at SCCC in Licking. In 2009, Claimant hurt his back in a non-work-related accident when he stepped on a nail and fell backward. Claimant injured his low back again in 2011 when he slipped and fell walking in socks.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

As a result of his prior low back injuries, Claimant suffered from occasional aching pain, discomfort, catching, and stiffness. These symptoms would flare up for a few days. The pain, however, stayed in the low back above the hips and did not radiate into the legs. He treated his symptoms with over-the-counter pain medications, massage, and occasional session with a chiropractor.

While Claimant might have missed a few days of work each year due to his preexisting conditions, he continued to work full time, full duty at SCCC leading up to his last injury. His employer, however, was aware of his injuries and accommodated him to some extent. For example, during annual training Claimant was assigned a partner that would take it easy on him.

**Primary Injury**

On November 21, 2013, Claimant was performing his usual duties, which included checking doors of the facility. He found that one door was unsecure. Concerned that there could be an offender lurking inside the building, Claimant entered the building, looked for the light switch, and climbed a steep set of stairs. Finding nothing, Claimant began to descend the stairs, but his boots, which were wet from walking outside, slipped out in front of him. He fell approximately 10-12 steps, with his heels hitting every step on the way down. When he finally hit the concrete at the bottom, Claimant slammed forward against the wall. He had immediate sharp shooting pain in his back and into his hips and glutes, worse on the right side. He reported his accident and filed a Report of Injury.

Employer directed Claimant to the nearby Texas County Memorial Hospital for immediate care. X-rays revealed multilevel degenerative disc disease and narrowing at L5-S1. Claimant received conservative care. Claimant subsequently treated with David Shoup, PA-C, who likewise recommended conservative care and time-off. When Claimant returned to work, however, his symptoms increased. When conservative treatment directed by David Shoup, PA-C, failed to improve Claimant's condition, Employer referred him to Dr. Brett Taylor, an orthopedic physician in St. Louis.

Dr. Taylor ordered an MRI which was reported as showing multilevel degenerative disc disease and a focal disc herniation with left foraminal stenosis at L2-L3, with displacement of the left L3 nerve root. Dr. Taylor concluded that Claimant had chronic degenerative changes throughout his lumbar spine in combination with congenital stenosis. He opined that Claimant's symptoms were consistent with preexisting degenerative disc disease and an acute work-related lumbar strain. He recommended physical therapy, pain management, and injections to alleviate the effects of the lumbar strain. Dr. Taylor subsequently referred Claimant to Dr. Kaylea Boutwell at the Pain and Rehabilitation Specialists of St. Louis.

Dr. Boutwell recommended prescription and non-prescription medications as well as a series of injections. The first epidural steroid injection (ESI) was performed January 20, 2014, into the L5/S1 and right L4/5 transforaminal epidural space. It provided Claimant some temporary relief. Subsequent injections on January 29, 2014 and February 12, 2014 provided no significant relief. Dr. Taylor also referred Claimant for an EMG/NCS procedure at the Neurological and Electrodiagnostic Institute, Inc., on January 24, 2014. The impression from this procedure, read by Daniel Phillips M.D., FAANEM, is as follows:

In summary, these findings are consistent with chronic bilateral L5 (mild) radiculopathy with mild-acute/subacute right L5 exacerbation. The study is not impressive for left L3 radiculopathy. The

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

electrical findings do not appear to correlate with the MRI. If there is an L5 recess stenosis then Gary may have stretched the exiting L5 root at L5-S1 as he went down the stairs.

(Ex. 9).

After he reviewed the bilateral lower extremity EMG studies, Dr. Taylor opined that Claimant's "symptomatic condition is an exacerbation of the L4-5 and L5-S1 preexisting spine arthritis. The relief from the injection confirms that the lower lumbar spine region is the symptomatic region and the more proximal L2-3 is a preexisting condition that is not symptomatic." Dr. Taylor recommended that Claimant exhaust non-operative treatment. Later in 2014, due to the lack of progress with conservative measures, Dr. Taylor recommended that Claimant undergo a functional capacity evaluation FCE). After reviewing the FCE, Dr. Taylor determined that Claimant's lumbar strain had resolved despite his continued complaints of low back and right posterior leg pain with radiation. Dr. Taylor released Claimant at maximum medical improvement from a non-operative standpoint on April 29, 2014.

Claimant subsequently saw Dr. Herbert Mark Crabtree, a board-certified neurosurgeon. Dr. Crabtree ordered a CT/Myelogram, which was performed August 8, 2014. The report of the radiologist reads as follows:

Impression:

1. There is 2 mm L5 anterolisthesis without abnormal translation between flexion and extension imaging. No dynamic instability.
2. L5-S1 cavitated small disc herniation left central zone contacts the medial aspect of the left S1 nerve root. Bilateral neural foraminal stenosis, right greater than left, with impingement of the right L5 nerve root due to broad based disc osteophyte.
3. Degenerative disease and spondylosis T12-S1 as described above.

(Exhibit 8).

Dr. Crabtree disagreed with the radiologist, opining that the imaging showed no significant instability. Dr. Crabtree advised Claimant that he was not a surgical candidate and referred him to Dr. Lennard, a physiatrist.

On September 15, 2014, Claimant saw Dr. Ted Lennard who recommended four weeks of work conditioning and advised Claimant to quit smoking. On October 20, 2014, Dr. Lennard met with Claimant who reported that he had not yet engaged in physical therapy. Claimant saw Dr. Lennard again on December 8, 2014 and reported that the physical therapy was making him worse. Dr. Lennard released Claimant from his care with a 20-pound lifting restriction. He recommended the use of Tramadol for the next 12 months followed by over-the-counter medications. Dr. Lennard also provided a rating of 10 percent of the body as a whole.

Claimant next saw Dr. Robson, a board-certified orthopedic surgeon, for an Independent Medical Examination (IME) on October 22, 2014. Dr. Robson opined that Claimant had chronic radiculopathy consistent with the EMG report, and acute and sub-acute right L5 exacerbation. After reviewing the CT/Myelogram, Dr. Robson said Claimant suffers from severe foraminal stenosis at L4-5 and L5-S1 and has a calcified disc protrusion on the right side. Dr. Robson concluded that the foraminal stenosis was severe enough to impinge or constrict the existing nerve root. Dr. Robson believed that the degree of stenosis was greater than what the radiologist noted. Dr. Robson said Claimant had moderate restriction at L4-5 and greater restriction at L5-S1. Dr. Robson recommended a combination of a laminectomy which

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

would address the stenosis, and a fusion. He also opined that the recommended treatment flowed from the 2013 work injury.

After a hardship hearing on August 6, 2015, an ALJ entered a Temporary or Partial Award directing Employer to provide medical care consistent with Dr. Robson's recommendations. Employer then authorized surgery on October 19, 2015, consisting of a bilateral lumbar laminectomy, L5-S1 with complete facetectomy L5-S1; foraminotomy, L5-S1; posterior spinal fusion with local allograft L5-S1; and spinal instrumentation with Streamline instrumentation at L5-S1. Following surgery, Dr. Robson prescribed prescription medications, physical therapy, and the use of an external bone growth stimulator. The physical therapy eventually was discontinued because it was not benefiting Claimant.

Dr. Robson released Claimant at maximum medical improvement on September 27, 2016. The recommended treatment was "acceptance of his condition" as well as a six-month prescription of Neurontin. Dr. Robson also imposed permanent restrictions as follows:

1. 20-pound weight restriction.
2. No bending, stooping, twisting, or awkward positions.
3. Brief hourly position changes.

In a letter dated December 7, 2016, Dr. Robson iterated the permanent restrictions listed above, rated Claimant's primary injury at 15 percent of the body as a whole, and opined that there was no preexisting permanent partial disability. At a follow-up appointment on June 28, 2017, Dr. Robson recommended the continued use of Neurontin permanently as Claimant had experienced an increase in symptoms following a three-month hiatus from the drug. Dr. Robson also recommended annual x-rays. Claimant continues to treat with Dr. Robson who is prescribing Trazadone and Neurontin/Gabapentin. At a follow-up on August 1, 2018, Dr. Robson opined that Claimant had severe high grade foraminal stenosis L4-5 right, likely as a result of adjacent level stress from the L5-S1 fusion. He recommended epidural steroid injections.

Claimant conceded that the surgery helped with his left leg symptoms, but that he still has pain on the right side and in his hips. To treat his ongoing symptoms, Claimant continues to take Gabapentin and Trazadone.

Dr. Volarich performed an IME on February 8, 2017. Regarding the injury on November 21, 2013, Dr. Volarich noted that Claimant continued to have pain in his low back, with the right side being worse than the left. The low back pain radiates down Claimant's right leg into his heel and is accompanied by numbness in his leg, foot, and all toes on the right foot. Dr. Volarich also noted that Claimant's range of motion is limited in all directions and that he continues to have intermittent symptoms in his neck and right arm. Dr. Volarich reported that Claimant can only sit for 25 minutes, stand for 10 minutes, or walk for 20 minutes before his symptoms increase, and he avoids lifting more than 15 pounds. Claimant's right leg weakness causes balance issues and he has a difficult time navigating uneven ground, requiring him to rely on a cane for balance. Dr. Volarich also noted that Claimant limits kneeling or squatting, has difficulty climbing ladders, does not run or jump, and walks with an altered gait favoring his right leg. Although Claimant avoids stairs, he must rely on the handrail and usually takes the steps one at a time leading with the left.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

Regarding activities of daily living, Dr. Volarich reported that Claimant cannot get into or out of the tub. He is cautious in the shower because of his balance issues. He has difficulty putting on socks and shoes and avoids wearing shoes he has to tie. Dr. Volarich noted that Claimant takes breaks while doing household tasks and relies on his son to do the yard work. Driving causes an increase in pain and Claimant prefers to be in the passenger seat so he can recline. Dr. Volarich reported that it is difficult for Claimant to get comfortable enough to fall asleep, and when he is asleep, pain wakes him every three hours.

On physical examination, Dr. Volarich noted weakness in the right hip girdle and quadriceps due to back pain, diminished pinprick sensation along the lateral right thigh and entire right lower extremity below the knee, poor balance while toe walking, weakness and shaking when standing with full weight on the right foot, and low back pain with toe walking. He noted markedly reduced range of motion of the cervical spine and lumbar spine, and a trigger point in the right sacroiliac joint as well as decreased flexion in the right knee.

Dr. Volarich provided the following diagnoses regarding the November 21, 2013 injury:

1. Lumbar radiculopathy secondary to irreversible aggravation of degenerative joint disease and bilateral neuroforaminal stenosis - S/P posterior laminectomy, fasciectomy, foraminotomy and fusion with instrumentation at L5-S1.
2. Post-laminectomy syndrome.
3. Aggravation of cervical syndrome.

Regarding his prior injuries and conditions, Dr. Volarich provided the following diagnoses:

1. Chronic lumbar syndrome secondary to degenerative disc disease and degenerative joint disease.
2. Cervical right arm radiculopathy - S/P anterior cervical discectomy with fusion and instrumentation at C5-6 and C6-7 (2004).
3. Right knee internal derangement - S/P medial compartment arthrotomy most likely to perform a medial meniscectomy (1980s).

Dr. Volarich also provided the following additional diagnosis:

1. Psychiatric disorders including depression.

Dr. Volarich rated Claimant's disability at 50 percent of the lumbar spine and 5 percent at the cervical spine with regard to the work injury. Regarding his preexisting injuries and conditions, Dr. Volarich provided ratings of 10 percent of the lumbar spine, 15 percent of the cervical spine, 15 percent of the right knee, and deferred to a psychiatrist for any disability related to Claimant's psychiatric disorders. Dr. Volarich opined that the combination of Claimant's disabilities created a substantially greater disability than the simple sum or total of each separate injury/illness. Dr. Volarich concluded, however, that Claimant is permanently and totally disabled as a direct result of the work-related injury of November 21, 2013 standing alone. As Dr. Volarich stated, "the severity of the 11/21/13 work-related injury far outweighs any preexisting disabilities he had." (Ex. 14). Dr. Volarich recommended the use of ongoing prescription medications to control pain, including Gabapentin and Tramadol. He said Claimant may need removal or replacement of the hardware in the future and was at an increased risk for the development of adjacent level breakdown above his lumbar fusion which will require additional future medical treatment.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

Dr. Volarich also provided the following restrictions referable to Claimant's spine after November 21, 2013:

1. Avoid all bending, twisting, lifting, pushing, pulling, carrying, climbing and other similar tasks to an as-needed basis.
2. He should not handle any weights greater than 20 pounds and limit this task to an occasional basis assuming proper lifting techniques.
3. He should not handle weight over his head or away from his body, nor should he carry weight over long distances or uneven terrain.
4. Avoid remaining in a fixed position for any more than 45-60 minutes at a time, including both sitting and standing.
5. Rest when needed, including resting in a recumbent fashion.
6. Pursue an appropriate stretching, strengthening, and range of motion exercise program in addition to non-impact aerobic conditioning such as walking, biking, or swimming to tolerance daily.

Prior to the injury on November 21, 2013, Dr. Volarich would have advised him to work full duty to tolerance with normal work precautions. (Exhibit 14).

Dr. Koprivica performed an IME at the request of the Employer/Insurer on May 8, 2018. Like Dr. Volarich, he also found that Claimant is permanently and totally disabled. He opined, however, that such disability resulted from the synergism between the preexisting disabilities with the disability attributed to the November 21, 2013 work injury. Dr. Koprivica provided permanent partial disability ratings. He rated Claimant's lumbar spine at 25 percent as a result of the November 21, 2013 work injury. Regarding Claimant's preexisting injuries, Dr. Koprivica provided ratings at 15 percent of the right knee, 25 percent of the cervical spine, and 15 percent of the lumbar spine.

Dr. Koprivica provided the following permanent restrictions that flowed from the November 21, 2013 injury and the preexisting multilevel stenosis, as well as his prior cervical spine injury and right knee injury:

1. He should be restricted to occasional bending at the waist, pushing, pulling, or twisting.
2. He should be restricted from sustained or awkward postures of the lumbar spine.
3. He should be restricted from whole body vibration exposure or jarring.
4. He should only occasionally lift or carry, with lifting or carrying limited to 20 pounds as a maximum.
5. He should be restricted to rare squatting, crawling, or kneeling.
6. He should be restricted entirely from climbing activities.
7. He should be restricted from repetitive motions of the head and neck.
8. He should avoid sustained or awkward postures of the cervical spine.
9. He should be restricted from repetitive or sustained activities above shoulder girdle level with either upper extremity.
10. He should be allowed postural changes between sitting, standing, and walking.
11. He should be able to sustain captive standing or walking intervals of 30 minutes to one hour and sitting should be restricted to one hour.

Vocational Opinions

10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

Phillip Eldred, a Certified Rehabilitation Counselor, performed an independent vocational evaluation on June 27, 2017. After his evaluation and review of medical records and opinions, he opined that Claimant has vocational restrictions at less than the sedentary work level. Specifically, Mr. Eldred said using the Occupational Access System (OASYS) as a tool, he found no jobs that Claimant could perform given the work restrictions imposed by Dr. Volarich.

Mr. Eldred explained that Claimant obviously was not able to return to his previous work. Claimant also had no transferable job skills, no training potential, and no ability to perform unskilled jobs. Mr. Eldred concluded that Claimant is unemployable in the open labor market and was permanently and totally disabled as a result of the November 21, 2013 injury in isolation. Mr. Eldred further concluded that Claimant's preexisting injuries were not vocationally disabling such as to constitute a hindrance or obstacle to employment before November 21, 2013 (Exhibit 15).

In his deposition of August 8, 2017, Mr. Eldred testified that no employer would hire Claimant if they were aware of his functional limitations. He further testified that Claimant conveyed to him that he constantly rotates throughout the day between sitting, standing, and lying down, spending two to two and a half hours in bed each day. Moreover, Mr. Eldred testified that Claimant performed poorly on the Purdue Pegboard Test, which tests the gross movement of the arms and hands. Claimant's lack of employment over the previous three years would be a red flag to employers, he would have difficulty being retrained due to his constant pain and use of narcotic pain medication, and his age makes him less marketable for competitive employment.

Ben Hughes performed a vocational rehabilitation evaluation at the request of the Employer on June 7, 2018. Mr. Hughes noted that during the evaluation, Claimant shifted from left to right in his seat, sat toward his left side with his right hand on the arm of the chair, walked with a limp, stood slowly, would sit forward, and on one occasion he stood leaning on two chairs using both hands to maintain his balance. Mr. Hughes recorded that Claimant no longer rides horses, rides his Harley, plays basketball with his kids, camps, fishes, or hunts as a result of his November 21, 2013 work injury. Mr. Hughes noted that he applied for and currently receives Social Security Disability benefits.

Regarding Claimant's symptoms, Mr. Hughes noted that he has pain in his right leg and low back and his right leg and right foot are numb all the time which affects his balance. Mr. Hughes reported that Claimant can stand for approximately 5-6 minutes, walk one half block, avoids bending and kneeling, can sit for 10-30 minutes depending on the day, can drive for approximately 40 minutes before he needs to stop and stretch, and uses a cane while on uneven ground or if he knows he is going to be on his feet for any length of time. On a typical day, Claimant gets 2-3 hours of sleep per night. Throughout the day, he performs some chores, but finds himself alternating between lying down, walking, and sitting.

Relying on Dr. Robson's restrictions, Mr. Hughes opined that Claimant is capable of work at the light demand level, although he was not capable of all of the work within that category. Observing the restrictions of Dr. Koprivica, Mr. Hughes opined that Claimant is capable of work at the sedentary level. Observing the restrictions given by Dr. Volarich, Mr. Hughes determined that Claimant is unemployable. Mr. Hughes ultimately concluded that if Claimant is found permanently and totally disabled, it appears to be the result of his preexisting medical problems in combination with his more recent injury.

In his deposition of December 19, 2018, Mr. Hughes admitted that Claimant would make a poor first impression due to his physical ailments and Claimant would have significant difficulty finding employment.

11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

because of his subjective complaints. He found that Claimant would have problems with pace and persistence with his work due to sleep issues and medications. He believed Claimant also would have limited options given his geographic region and restrictions from physicians, and might have problems maintaining employment if he takes off work regularly (Exhibit E).

**Current Condition**

Through his credible testimony, Claimant established that he has constant dull and throbbing pain in his low back that ranges between 6-8/10 on an average day. His pain increases to a sharp pain when he sits, stands, or walks too long. He suffers from pain that feels like an electrical shock that he rated at 10/10 and said that it sometimes feels like 20/10. This happens approximately 4-5 times per day and 8-10 times per night and lasts anywhere from a few minutes up to an hour or two. Claimant also suffers from reduced range of motion in his spine, spasms in his back, and numbness and tingling in his right leg that causes him to lose his balance and fall. He has no sensation in his foot and cannot feel where he is stepping. He uses a cane in the morning if he is stiff and uses it in the evening if he has been on his feet throughout the day. He relies on a grabber to retrieve items from the floor. He can bend down, but has difficulty arising. He is unable to lift his 25-pound grandchild because of his back, neck, and arm.

Claimant testified convincingly that the low back aching pain he suffered prior to the primary injury was very different from his pain post-2013. He explained that his back pain now is a sharper, harsher pain that is hard to ignore and makes it hard for him to function. The electric shock pains and numbness and tingling in the right leg and hip did not start until after his primary injury. Claimant did not have to lie down during the day or use a cane before the primary injury.

A typical day for Claimant includes light cleaning, simple or microwave cooking, getting on his computer to see pictures of his kids on social media or play slot games, and talking to his kids on the phone. Claimant's children do his housecleaning. His wife does the laundry and grocery shopping. He also has to keep an eye on his wife, who has a seizure condition, but he cannot help her up if she falls. He may drive her to the store but waits in the car. His leg numbness and tingling makes it difficult to use the pedals on the car and his lack of range of motion makes it difficult to twist his body. He relies on mirrors.

As he moves throughout the day, Claimant frequently shifts positions, lying down multiple times. He typically sleeps less than five hours, waking throughout the night due to pain. When he wakes, he has to walk before going back into bed. Because of his lack of sleep, Claimant has no energy. Since being released by Dr. Robson with permanent restrictions, Claimant has not ridden his motorcycle or played basketball with his boys. He sold his bass boat and john boat. He has not worked since leaving the prison and did not apply for unemployment. He would like to work if he could put in an "honest day's work." He enjoyed his job with the Department of Corrections and had worked consistently since high school.

**Credibility Finding**

As noted above, I find Claimant's testimony credible and compelling. I also find Dr. Volarich and the vocational opinion of Mr. Eldred more persuasive than other expert opinions in this case.

12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

Claimant bears the burden of proving entitlement to workers' compensation. § 287.808 RSMo. An Administrative Law Judge shall weigh the evidence impartially without giving the benefit of the doubt to any one party. All provisions of the Workers' Compensation Law are to be construed strictly. § 287.800 RSMo.

Section 287.020.6 RSMo, defines total disability as:

> The inability to return to any employment and not merely inability to return to the employment in which the employee was engaged in at the time of the accident.

The test for permanent and total disability is the workers' ability to compete in the open labor market and the workers' potential for returning to employment. *Knisley v. Charleswood Corp.*, 211 S.W.3d 629, 635 (Mo. App. E.D. 2007). The primary question is whether an employer can reasonably be expected to hire the claimant given his present physical condition, and reasonably expect the claimant to successfully perform the work. *Id.* It is not necessary that an injured employee be rendered completely inactive or inert in order to be entitled to receive compensation for permanent and total disability. *Julian v. Consumers Market, Inc.*, 882 S.W.2d 274 (Mo. App. S.D. 1994).

When a claimant has alleged permanent and total disability, and the Second Injury is a named party, the first analysis is the degree of disability from the last injury. *Hughey v. Chrysler Corp.*, 34 S.W.3d 845 (Mo. App. E.D. 2000). "If a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, then the Second Injury Fund has no liability and employer is responsible for the entire amount." 34 S.W.3d at 847. Consequently, preexisting disabilities are irrelevant until this determination. *Mihalevich Concrete Constr. v. Davidson*, 233 S.W.3d 747, 754 (Mo. App. W.D. 2007).

Claimant gave compelling testimony as to his extreme limitations that occurred since this last work accident. His occupational history demonstrates that he had a strong work ethic and he loved his job as a corrections officer and would have continued working in any job if he could. "The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." *Reiner v. Treasurer of State of Mo.*, 837 S.W.2d 363, 367 (Mo. App. E.D. 1992) overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. banc 2003).

Claimant's testimony is buttressed by the opinions of Dr. Volarich who recognized that Claimant had some significant preexisting conditions, but still concluded it was this last accident of violently falling down stairs that caused the permanent total disability. Mr. Eldred did not believe Claimant could work and was vocationally unemployable. I have found these opinions credible given a review of the entire record. Therefore, the Employer and Insurer are responsible for all compensation and the Second Injury Fund has no liability.

13

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

Missouri Law requires that employers provide injured employees with medical treatment. Section 287.140.1 RSMo, reads:

> In addition to all other compensation paid to the Claimant under this section, the Claimant 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.

As quoted above, § 287.140 RSMo, requires Employer/Insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003). Employer shall provide medical treatment to cure and relieve the effects of the injury even though some of such treatment may also give relief from pain caused by a preexisting condition. *Tillotson v. St. Joseph Medical Center*, 347 S.W.3d 512 (Mo. App. W.D. 2011).

The authorized treating physician Dr. Robson and Dr. Volarich both identified the need for ongoing prescription medication. Dr. Volarich also identified other treatment such as a future need for the replacement of the orthopedic fixation. Therefore, Claimant is entitled to future medical treatment to cure or relieve the effects of the work injury.

1. Beginning September 28, 2016, and continuing for the remainder of Claimant's lifetime, Employer shall pay to Claimant weekly benefits in the amount of $377.92 for permanent total disability. Employer is entitled to a credit in the amount of $2,793.91.

1. Employer is liable for future medical treatment to cure and relieve the effects of the work injury, including but not limited to prescription medication.

1. The Second Injury Fund has no liability.

The award is subject to review and modifications as provided by law. Interest as provided by law is applicable.

The compensation awarded to Claimant shall be subject to a lien in the amount of 25 percent to the following attorney for necessary legal services provided to Claimant: Van Camp Law Firm, LLC.

14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Gary L. Fuwell

Injury No.: 13-087198

I certify that on 10-16-19

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 ______ M.P.

Date by: ______ Victorine R. Mahon

Victorine R. Mahon

Administrative Law Judge

Division of Workers' Compensation