Jeffrey Gilman v. Missouri American Water Company

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 11-020246

**Employee:** Jeffrey Gilman

**Employer:** Missouri American Water Company

**Insurer:** Travelers Indemnity Company of America

**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 December 17, 2019. The award and decision of Administrative Law Judge Victorine R. Mahon, issued December 17, 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 3rd day of September 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Improve: Jeffrey Gilman

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

I find that employee was not permanently or totally disabled due to the primary injury alone, but only in combination with his preexisting pulmonary condition. Employee did not return to work after the 2011 injury, due to not only the work injury, but also due to his asthma and pulmonary issues. When he filed for disability benefits through the Social Security office, he included his asthma as one of the reasons he could not work.

Also, the persuasive opinions from the experts show that the primary injury alone only rendered employee partially disabled at a rating ranging from 5% to 40% body as a whole regarding employee's physical injury to the lower back and 15% body as a whole regarding the psychological injury from the primary injury.¹ These combined percentages do not render employee totally disabled due to the primary injury alone. I find most persuasive the opinion of Dr. Rosenthal that employee only sustained a 30% permanent partial disability from the 2011 injury.

However, when combined with employee's preexisting pulmonary condition, I am persuaded that employee is permanently and totally disabled. Accordingly, pursuant to § 287.220 RSMo, the Second Injury Fund is liable for employee's permanent and total disability benefits, not employer.

I would modify the administrative law judge's award allowing benefits and hold the Second Injury Fund liable for employee's permanent total disability benefits. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

¹ I agree with the administrative law judge and do not find Dr. James Jackson's opinion persuasive.

Injury No.: 11-020246

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: March 16, 2011.
5. State location where accident occurred or occupational disease was contracted: Joplin, Newton 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: Employee was walking through a field at night while working on a water line when he stepped into a hole with his right foot causing him to fall.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Body as a whole referable to the lumbar spine and psyche.
14. Nature and extent of any permanent disability: Permanent Total Disability.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

1. Compensation paid to-date for temporary disability: $12,373.53.

1. Value necessary medical aid paid to date by employer/insurer: $17,936.77.

1. Value necessary medical aid not furnished by employer/insurer: Not in issue.

1. Employee's average weekly wages: 1,087.35.

1. Weekly compensation rate: 724.90 for Permanent Total Disability and Temporary Total Disability; $418.58 for Permanent Partial Disability.

1. Method wages computation: By agreement of the parties.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

See below

For past due Permanent Total Disability:

417 weeks at the rate of $724.90 per week

(November 8, 2011 to November 5, 2019 = 417 weeks)

**TOTAL:** $302,283.30

1. Second Injury Fund liability: None.

1. Future requirements awarded:

Beginning November 8, 2011, and continuing for the remainder of Employee's lifetime, Employer/Insurer shall pay $724.90 each week for permanent total disability, subject to review and modification as provided by law.

Interest shall be due as provided by law.

Employer/Insurer shall provide future medical treatment to cure and relieve the effects of the work injury consistent with the opinion of Dr. Koprivica.

The compensation awarded to Employee 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 Employee: William E. Peterson.

Employee: Jeffrey Lynn Gilman

Injury No. 11-020246

Dependents: Not Applicable

Employer: Missouri American Water Co.

Insurer: Travelers Indemnity Co. of America

Additional Party: Treasurer of Missouri as

Custodian of the Second Injury Fund

Hearing Date: October 1, 2019

On October 1, 2019, the undersigned administrative law judge conducted a final hearing in this case in Joplin, Missouri. Jeffrey Lynn Gilman (Employee) appeared in person and with his attorney, William E. Peterson. Missouri American Water Co. (Employer) and Travelers Indemnity Co. of America (Insurer) appeared through attorney Greg Carter. The Second Injury Fund (Fund) appeared through Assistant Attorney General Michael Bang. The parties reached stipulations of fact and narrowed the issues, as follows:

1. On March 16, 2011, Employer Missouri American Water Co. was operating subject to the Missouri Workers' Compensation Law and was fully insured by Travelers Indemnity Co. of America.
2. On March 16, 2011, Jeffrey Lynn Gilman was an employee of Employer, working subject to the Missouri Workers' Compensation Law.
3. On March 16, 2011, Employee sustained injuries to his back and psyche which arose out of and in the course of his employment with Employer.
4. The injury occurred in Newton County, Missouri. Jurisdiction and venue are appropriate.
5. Employee provided notice as required by $\S 287.420 RSMo.
6. The Claim for Compensation was filed within the time prescribed by \S 287.430 RSMo.
7. The average weekly wage was \ 1,087.35, yielding compensation rates of $\ 724.90 for permanent total and temporary total disability, and $\ 418.58 for permanent partial disability.
8. Employer/Insurer paid $\ 12,373.53 in temporary total disability and $\ 17,936.77 in medical benefits.
9. Employee reached maximum medical improvement on November 7, 2011.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

1. What is the nature and extent of permanent disability solely from the March 16, 2011 work injury?
2. If Employee is not permanently totally disabled from the March 16, 2011 work injury alone, then what is the extent of any permanent disability existing prior to March 16, 2011?
3. What, if any, is the liability of the Second Injury Fund?
4. Is Employee entitled to future medical care to cure or relieve the effects of the work injury?

The following exhibits were admitted without objection. No alterations of the exhibits were made since their admission.

1. Amended Claim for Compensation, Injury No. 11-020246;
2. Medical records - Freeman Health System (53 pages), certified November 4, 2011;
3. Medical records - Integris Baptist Regional Health Center, (6 pages), certified November 8, 2011;
4. Medical records - Integris Baptist Regional Health Center (72 pages) beginning with MRI Report dated January 4, 2012;
5. Medical records - SNSI (49 pages), certified November 8, 2011;
6. Medical records - Dr. Bradford Stephens (10 pages), certified November 11, 2011;
7. Medical records - St. John's Regional Medical Center (74 pages), certified November 22, 2011;
8. Medical records of Dr. Yasser Mokhtar, consisting of 28 pages, certified November 29, 2011;
9. Medical records of Dr. Bradford Stephens, consisting of 17 pages, certified February 1, 2012;
10. Medical records - Dr. John R. Smithson, Jr., (8 pages), certified February 13, 2012;
11. Medical records - Dr. Bradford Stephens (26 pages), certified April 13, 2012;
12. Medical records - Integris Baptist Regional Health Center (49 pages), certified December 26, 2012;
13. Medical records - Integris Baptist Regional Health Center (109 pages), beginning with medical request letter dated January 10, 2017 from William Peterson;
14. Medical records - Dr. Bradford Stephens (25 pages), certified January 17, 2013;
15. Medical records - Dr. Bradford Stephens (64 pages), beginning with medical request letter dated January 10, 2017 from William Peterson;
16. Medical records - Dr. Bradford Stephens (7 pages), beginning with fax cover sheet dated April 2, 2013 to Andrew Wood from Melissa;
17. Medical records - Dr. Bradford Stephens (6 pages), beginning with fax cover sheet dated September 12, 2012 to Andrew Wood from Melissa;
18. Medical records - Dr. John R. Smithson, Jr., (3 pages), certified July 14, 2013;
19. Medical records - Ortho 4 States (34 pages), certified February 2, 2015;
20. Medical records - Mercy McCune Brooks (94 pages), certified January 19, 2017;
21. Medical records - SNSI (21 pages), certified January 23, 2017;
22. Medical records - Walmart Pharmacy (14 pages), certified March 1, 2017;
23. Medical records - Walgreen Pharmacy (17 pages), certified March 3, 2017;

¹ Post hearing, Counsel for Employer/Insurer and Employee advised the Administrative Law Judge that reimbursement for past medical bills no longer was at issue.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

1. Medical records of Ortho 4 States (96 pages), certified April 28, 2017;

1. Medical records of Integris Miami Hospital, (414 pages), certified July 23, 2019;

1. Medical billing records - Dr. Bradford Stephens (4 pages), beginning with medical bill request letter dated December 26, 2012 from Andrew Wood;

1. Medical billing records - Dr. Bradford Stephens (12 pages), beginning with fax cover sheet dated August 14, 2014 to Andrew Wood from Melissa;

1. Medical billing records - Dr. Bradford Stephens (12 pages), beginning with medical bill request letter dated October 12, 2016 from Andrew Wood;

1. Medical billing records - St. John's Physicians, Inc. (Dr. John Smithson), (3 pages), beginning with fax cover sheet dated January 29, 2013 to Andrew Wood;

1. Medical billing records - Integris Baptist Regional Health Center (10 pages) beginning with MRI lumbar spine bill of $2914.00;

1. Medical billing records - Integris (4 pages), certified October 25, 2016;

1. Medical billing records - Mercy Hospital/Clinic, (2 pages), certified January 4, 2017;

1. Medical billing records - Ortho 4 States, (25 pages), certified January 17, 2017;

1. Medical billing records - Mercy Hospital/Clinic, (5 pages), certified February 6, 2017;

1. Medical billing records - Mercy Hospital/Clinic, (5 pages), certified February 6, 2017;

1. Medical report - Dr. Koprivica, dated February 20, 2012, (17 pages);

1. Addendum medical report - Dr. Koprivica, dated May 7, 2012, (2 pages);

1. Psychological report - Dr. Jackson, dated May 16, 2012 (28 pages);

1. Medical report - Dr. Woodward, dated July 17, 2012, (5 pages);

1. Vocational report - Mr. Terry Cordray, dated July 31, 2012, (22 pages);

1. Deposition transcript - Mr. Jeffrey Gilman, dated December 17, 2012, (29 pages);

1. Deposition transcript - Dr. Koprivica, dated October 17, 2013, (91 pages including exhibits);

1. Deposition transcript - Dr. Jackson, dated October 17, 2013, (126 pages including exhibits);

1. Deposition transcript - Mr. Terry Cordray, dated March 28, 2014, (91 pages including exhibits);

1. Psychological report - Dr. Halfaker, dated September 11, 2014, (40 pages);

1. Deposition transcript - Mr. Jeffrey Gilman, dated April 13, 2017, (69 pages);

1. Deposition transcript - Dr. Halfaker, dated May 24, 2017, (16 pages);

1. Medical report - Dr. Rosenthal, dated September 4, 2017, (9 pages);

1. Addendum medical report - Dr. Rosenthal, dated December 20, 2017, (4 pages);

1. Vocational report - Ms. Michelle Sprecker, dated January 10, 2018, (78 pages);

1. Medical report - Dr. Stuckmeyer, dated April 9, 2018, consisting of 17 pages;

1. Deposition transcript - Ms. Michelle Sprecker, dated June 15, 2018, (234 pages including exhibits);

1. Addendum vocational report - Mr. Terry Cordray, dated August 6, 2018, (5 pages); and

1. Addendum medical report - Dr. Stuckmeyer, dated August 6, 2018, (5 pages).

1. Unauthorized past medical expenses.

FINDINGS OF FACT

Employee testified at the hearing and in depositions. Because he admitted some memory deficit, which was evident at the hearing, I have relied on his earlier depositions in those circumstances where he had difficulty remembering facts (Ex. 41 and 46). He appeared as a credible witness.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

Employee was born on August 21, 1959. He was 60 years of age as of the date of the final hearing. He lives in Miami, Oklahoma with his wife, Lisa, of 20 years. They have adult children with grandchildren, but none are dependent on them. Employee does not drink alcohol or smoke.

Employee graduated from high school in 1978. He has no other formal education, vocational training, or certifications. He is not proficient in keyboarding. He had worked continuously from high school graduation until his work injury on March 16, 2011. Most of his early jobs had included heavy, unskilled labor. In 1983, Employee began working for Employer, Missouri American Water Company as a laborer digging ditches by hand and with a backhoe. He subsequently was promoted to a construction foreman. Employee would plan the job, delegate responsibilities, and complete paperwork. Nevertheless, Employee was a "working" foreman and had the same physical requirements as a laborer, which included lifting and carrying heavy parts weighing up to 100 pounds.

Employee's Preexisting Disability

Employee has preexisting asthma and suffers COPD. His preexisting pulmonary condition was severe and caused him to miss a significant amount of time from work between 2007 and March 16, 2011. This included an entire year off work due to his breathing problems. Even after returning to work full time, the condition regularly impacted his work due to breathing difficulties.

Medical records of a pulmonologist, Dr. Yasser Mokhtar, established that Employee had been prescribed nasal steroids; an inhaler; Advair (bronchodilator used for asthma and COPD); Singulair (anti-inflammatory to treat allergies and prevent asthma attacks); and a CPAP machine. In approximately 2007, Employee was hospitalized two days due to his pulmonary condition. Since that time, he has carried an inhaler on him at all times. The results of a Pulmonary Function Test dated July 23, 2008 showed, among other things, "moderate decline in maximum inspiratory pressure" and "severe decline in maximum expiratory pressure" (Ex. 8, p. 25). Because of his preexisting pulmonary condition, Employee was accommodated in his work. He did not use a pipe saw or a jackhammer, which were typical duties for his type of work.

Primary Injury and Medical Treatment

On March 16, 2011, Employee was assisting in the repair of a broken water line when he inadvertently stepped into a deep hole with his right leg, jarring his back and wrenching his left leg behind him. After the accident, Employee initially received medication at Freeman Urgent Care. When Dr. Rick Haggard of Freeman OccuMed saw him on March 17, 2011, Employee reported soreness/stiffness in his back and shoulders with radiating pain into the hips and the front of his legs. Dr. Haggard continued with medications, provided work restrictions, and placed Employee in physical therapy. But due to ongoing complaints, Employee's care was transferred to Dr. Jeff Woodward of Springfield Neurological & Spine Institute.

When Employee saw Dr. Woodward for an initial evaluation on May 16, 2011, he reported constant low back pain radiating to the front, bilateral thighs with discomfort was aggravated by sitting, standing, walking, stairs, and driving. As conservative care up to this time had provided no long-term relief, Dr. Woodward obtained an MRI of Employee's lumbar spine, which was positive for mild to moderate L5-S1 spondylosis with a mild diffuse disc protrusion, but no herniation. While Dr. Woodward believed the work injury had caused the lumbar radicular symptoms, he noted that Employee had multi-level preexisting

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

degenerative disc disease (DDD). Dr. Woodward imposed a work restriction of no continuous lifting greater than 25 pounds, prescribed a variety of medications, and administered a right L5 epidural steroid injection. Nothing helped. After the results of an EMG administered on July 27, 2011, were diagnostically normal, Dr. Woodward recommended a neurosurgery consultation. Employee then saw Dr. Charles Mace of the Springfield Neurological & Spine Institute.

Dr. Mace ordered a lumbar myelogram which was performed on September 14, 2011. It showed an annular fissure and disc bulging at L4-5. Dr. Mace recommended no surgical intervention and returned Employee to Dr. Woodward's care. Dr. Woodward ordered additional conservative care including physical therapy/work conditioning program. Dr. Woodward issued a final impairment rating on November 8, 2011, assigning five-percent permanent partial disability to the body as a whole for the work-related condition and another five percent for the preexisting lumbar DDD. Employer provided no further authorized treatment.

Employee promptly saw his primary care physician, Dr. Bradford Stephens, for continued low back pain. Dr. Stephens believed Employee could not stand without pain, "let alone lift 10 pounds." (Ex. 6, p. 9). Dr. Stephens continued Employee on his current medications, added a Lipoderm patch and Voltaren gel, and excused Employee from work effective November 8, 2011, the same date that Dr. Woodward had released Employee from care.

Under Dr. Stephens' care, Employee obtained another MRI on January 4, 2012, which indicated moderate herniations at L4-5 and L5-S1, an annular disc tear at L4-5, and moderate foraminal stenosis at L5-S1, "with no significant thecal sac effacement." (Ex. 4). Thus, when Employee saw Dr. John Smithson on January 12, 2012 for a surgical consult, he (like Dr. Mace) recommended against surgery. On February 29, 2012, Dr. Stephens wrote that Employee was indefinitely unable to work. He thereafter continued to treat Employee up to the date of the final hearing with a significant amount of medications, including: a Lipoderm patch, Voltaren gel, Naproxen (NSAID), Tramadol (Narcotic), Hydrocodone/Acetaminophen (Narcotic), Oxymorphone/Opana ER (Narcotic), Zolpidem (Sedative), Morphine (Narcotic), Fentanyl/Duragesic Patch (Narcotic), and Gabapentin (Nerve Pain Medication and Anticonvulsant), as well as medication for high blood pressure, memory issues, sleep disturbance, blood clots, depression, and restless leg syndrome.

Undeterred in his quest for pain relief, Claimant also saw Dr. Brian Ipsen for an orthopedic consult, and Dr. Michael Herndon for epidural steroid injections, several weeks of physical therapy, and a spinal cord stimulator. Although records show some temporary improvement in his pain complaints from these treatment modalities, it was not long lasting. Employee never quit taking narcotic medications and he admits that the unauthorized treatment had not been very helpful in alleviating his pain.

Current Physical Condition

After the primary work injury on March 16, 2011, Employee performed light-duty work for Employer until July 1, 2011. He then was terminated as Employer could no longer accommodate him. He has not worked anywhere since then. Employee complains of ongoing pain and discomfort despite narcotics and a spinal cord stimulator. He was using a walker to aid him in mobility at the time of the hearing, yet he still drives. He does have limitations with siting, standing walking, kneeling, crawling, and climbing. He does very

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

few chores around his home and is limited in his hobbies. While Employee can accomplish basic self-care activities, he needs help to tying his shoes and putting on socks.

**Medical Expert Evidence**

*Dr. Jeff Woodward* was an authorized treating physician. As noted above, he issued a rating report on November 8, 2011, assigning a five-percent permanent partial disability for the primary work injury and apportioned another five percent for preexisting DDD in lumbar spine. In his subsequent records review and 2012 report, Dr. Woodward stated he did not believe there was any reasonable probability of future medical treatment related to the primary work injury.

*Dr. P. Brent Koprivica* evaluated Employee on February 20, 2012, issued two reports, and provided testimony by deposition. Dr. Koprivica concluded that the March 16, 2011 work accident was the prevailing factor in a permanent injury to Employee's lumbar spine, with Employee suffering from chronic mechanical back pain from a discogenic source with significant changes objectively identified on MRI diagnostic imaging at the L4-L5 and L5-S1 levels. He opined that Employee also suffered permanent psychological impairment as a result of the work injury. Dr. Koprivica said the medical care and treatment Employee obtained was reasonable and necessary to cure or relieve the effects of the March 16, 2011 work injury, including that which had not been authorized.

Dr. Koprivica imposed significant restrictions, noting that Employee's disability was profound, even though his condition was not amenable to surgical repair. He initially imposed a 25-percent permanent partial disability to the body as a whole attributable to Employee's primary work injury. Dr. Koprivica, however, believed that Employee needed a vocational opinion and a psychological/psychiatric evaluation. He questioned Employee's employability and stated as follows:

> Assuming the psychological/psychiatric expert validates [Employee's] presentation, when one incorporates his psychological response to his injury and the overwhelming limitations with which he presents, it is my opinion that it is unrealistic to believe that [Employee] can access the open labor market.

>

> Under this understanding, it is my opinion that [Employee] is permanently and totally disabled based on the residual physical and psychological impairment based on his disabling back pain attributable to the March 16, 2011, work injury and the psychological responses to that injury when considered in isolation, in and of themselves.

(Ex. 36, pp. 15-16; Ex. 42, pp. 18-25 and 30).

Dr. Koprivica indicated that in the alternative, if Employee was not totally disabled from the last accident by itself, he would be totally disabled when combining the primary injury with Employee's preexisting pulmonary condition as it was of such seriousness as to constitute a hindrance or obstacle to employment or reemployment. Moreover, if Employee was determined not to be totally disabled, the preexisting disability, which constituted a 15-percent permanent partial disability to the body as a whole, synergistically combined with the primary disability and a 10-percent enhancement factor was appropriate.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

Dr. Koprivica further opined that it was reasonably probable that Employee would have ongoing future medical needs, including pain management.

Dr. Anne Rosenthal evaluated Employee on July 27, 2017 and issued reports on September 4, 2017, and December 20, 2017. She concluded that the primary work injury on March 16, 2011, was the prevailing factor of a lumbar strain that was superimposed on preexisting lumbar spine degenerative disease and that a significant portion of Employee's pain was preexisting and from the psychological overlay, which was addressed by Dr. Halfaker (see below). Dr. Rosenthal's ratings were in line with those of Dr. Woodward. She said from a physical lumbar strain, there was a 10 percent loss of function, with 5 percent of that amount attributable to preexisting degenerative changes. She deferred to Dr. Halfaker's psychological diagnosis and his rating of 15 percent to the body as a whole.

Dr. Rosenthal agreed that Employee's pulmonary condition was a preexisting hindrance and/or obstacle to employment and/or reemployment and, accordingly, apportioned a 30-percent permanent partial disability to the body as a whole for the preexisting pulmonary issues. Dr. Rosenthal did not express a definitive opinion regarding permanent total disability.

Dr. James Stuckmeyer evaluated Employee and issued reports dated April 9, 2018, and July 20, 2018. He found that the primary work injury on March 16, 2011, was the prevailing factor of injury to lumbar spine causing the development of chronic low back pain with bilateral lower extremity radiculopathy, and bilateral sacroiliac dysfunction. Dr. Stuckmeyer stated within a reasonable degree of medical certainty that the treatment to date has been necessary to cure and relieve the back and leg symptoms from the workplace injury occurring on March 16, 2011. He said Employee will require lifelong pharmacological management for his ongoing orthopedic condition and management for the surgically-placed spinal cord stimulator.

Dr. Stuckmeyer rated the work injury at 40-percent permanent partial disability to the lumbar spine. He placed significant restrictions on Employee's vocational ability arising from the work injury. He said Employee's preexisting diagnosis of COPD and asthma represented a hindrance or obstacle to employability, which he rated at 20 percent to the body. He indicated that the combination of the primary and preexisting disabilities combined synergistically and warranted a 15-percent multiplicity factor. Still, it was his opinion that if Employee was deemed permanently and totally disabled from the open labor market, that this degree of disability was caused from the workplace accident occurring on March 16, 2011, in isolation.

Expert Psychological Evidence

Dr. James Jackson evaluated Employee on May 16, 2012. He opined that Employee's work injury was the prevailing factor of permanent psychological injury manifesting as Conversion Disorder. Dr. Jackson did not identify any preexisting psychological conditions, diagnoses, or disability. He found that Employee's current symptoms, medical and psychological problems keep Employee from working. He found marked impairment on Employee's concentration and adaptation, and moderate impairment on social functioning. While Dr. Jackson assigned a 70-percent permanent partial psychological disability, he concluded from a psychological point of view that Employee was permanently totally disabled. Dr. Jackson believed it was reasonably probable that Employee would have ongoing future medical treatment requirements due to the

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

psychological disability for which the primary work injury was the prevailing factor in its occurrence. He believed Employee would benefit from psychiatric consultation and pain-management-group-treatment.

Dr. Dale Halfaker evaluated Employee on September 11, 2014, issued a report, and gave his testimony by deposition on May 24, 2017. Dr. Halfaker disagreed with Dr. Jackson both as to the diagnosis and the percentage of disability. Dr. Halfaker diagnosed Employee with "persistent somatic symptom disorder with predominant pain that is moderate in severity ..." (Ex. 45, p. 38). In addition, Dr. Halfaker believed Employee has some associated adjustment disorder with anxiety and depressed mood that interacts with the somatic symptom disorder. He said that while there was psychological overlay present, it was not conscious or malingered. Dr. Halfaker anticipated that Employee's current level of functioning was chronic, permanent, and stable, resulting in a "moderate impairment in social, occupational, and school functioning." (Ex. 45, p. 39). He provided a discrete rating of about 15 percent for the permanent psychological condition related to the last work accident. Dr. Halfaker did not address Employee's overall disability presentation but did not believe Employee was permanently totally disabled due to his psychological disability alone. Dr. Halfaker expressly stated, however, that "it will be necessary for an appropriate physician or the trier of fact to combine the psychological disability with any rated physical/medical disability to arrive at a comprehensive rating that takes all sources of disability into account." (Ex. 45, p. 39). Dr. Halfaker found no need for additional psychological services.

Expert Vocational Opinions

Terry Cordray performed a vocational evaluation of Employee and issued reports on July 31, 2012 and August 6, 2018. He testified by deposition on March 28, 2014.

Mr. Cordray testified that Employee would be significantly limited due to his lack of vocational or academic training beyond a high school diploma. Mr. Cordray noted that Employee had no computer keyboarding or software training, and he was not a candidate for academic vocational rehabilitation retraining. Although Employee did have experience supervising unskilled workers, his prior employment required him to perform activities at the same physical demand level as those he would supervise such that his supervisory experience was limited. He was incapable of performing such work. Ultimately, given Employee's age, education, work experience, and lack of skills, Mr. Cordray concluded Employee was totally disabled from the effects of the primary work injury alone, based on his physical and psychological disabilities.

Michelle Sprecker performed a vocational evaluation of Employee and issued a report concerning her findings dated January 10, 2018. She testified by deposition on June 15, 2018. She determined, in part, that Employee's employability depended upon which of the physicians' opinions one accepted. She found, based on the physical limitations from the last accident, alone, as assessed by Drs. Woodward and Rosenthal, Employee could return to the open labor market. If Dr. Rosenthal's restrictions relating to Employee's preexisting pulmonary condition was factored into the equation, Employee was totally disabled, absent accommodation by an employer. She further stated that based on the opinion of Dr. Koprivica, Employee was vocationally unemployable. Based on Dr. Stuckmeyer's physical restrictions, Ms. Sprecker found that Employee could perform sedentary work. But when age, education, geographical location, and Employee's skillset were considered with those physical restrictions, Ms. Sprecker concluded

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

that Employee could not access the open labor market, although in large metropolitan areas there could be access to a greater number of sedentary jobs.

**Credibility Assessment**

As Dr. Koprivica analyzed, it would be this combination of the psychological issue and the physical back condition, caused by the work accident, which created permanent and total disability in this case. While Employee's lumbar injury did not warrant surgery, Employee does suffer from significant, chronic pain. Dr. Koprivica's opinion was validated by Dr. Halfaker who determined that Employee was not malingering. As Dr. Halfaker found, Employee now suffers from a "persistent somatic symptom disorder with predominant pain that is moderate in severity" which also is chronic and stable (i.e.: permanent). Dr. Stuckmeyer serves to bolster the opinion that Employee was permanently and totally disabled from the last accident, even though he does not focus on the psychological component. I have carefully read all of the expert opinions and I find the opinions of Dr. Koprivica and Dr. Halfaker to be the most reasonable, credible, and persuasive expert opinions in this case as bolstered by Dr. Stuckmeyer. While I find both vocational opinions instructive, I accept as most persuasive that of Mr. Cordray in this instance. I specifically do not find credible Dr. Jackson's diagnosis of conversion disorder and find his rating of psychological disability to be excessive.

**RULINGS OF LAW**

**Nature and Extent of Liability**

Employee seeks Permanent Total Disability as against Employer/Insurer or the Second Injury Fund. In this 2011 case, the first determination is the degree of disability from the last injury. *Hughey v. Chrysler Corp.* 34 S.W.3d 845, 847 (Mo. App. E.D. 2000); *APAC Kansas, Inc. v. Smith*, 227 S.W.3d 1, 3 (Mo. App. W.D. 2007). "Consequently, preexisting disabilities are not relevant until this determination is made." *Palmentere Bros. Cartage Service v. Wright*, 410 S.W.3d 685, 691 (Mo. App. W.D. 2013). If Employee's last injury in isolation rendered Claimant permanently and totally disabled, then the Second Injury Fund has no liability. *Feld v. Treasurer of Missouri as Custodian of Second Injury Fund*, 203 S.W.3d 230, 233 (Mo. App. E.D. 2006).

"Whether an employee is permanently and totally disabled is a factual question." *Sage v. Talbot Indus*, 427 S.W.3d 906, 912 (Mo. App. S.D. 2014). Total disability, as defined in § 287.020 RSMo, means the inability to return to any employment and not merely the job in which Employee was engaged at the time of the accident." As stated in *Gordon v. Tri-State Motor Transit Co.*, 908 S.W.2d 849, 853 (Mo. App. S.D. 1995):

The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of the employment under consideration in the manner that such duties are customarily performed by the average person engaged in such employment. *Kowalski v. M-G Metals and Sales, Inc.*, 631 S.W.2d 919, 922 (Mo. App. S.D. 1982). The test for permanent total disability is whether, given the employee's situation and condition he or she is competent to compete in the open labor market. *Reiner v. Treasurer of State of Mo.*, 837 S.W.2d 363, 367 (Mo. App. E.D. 1992). Total disability means the "inability to return to any reasonable or normal employment." *Brown v. Treasurer of Mo.*, 795 S.W.2d 479, 483 (Mo. App. E.D. 1990). An

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

injured employee is not required, however, to be completely inactive or inert in order to be totally disabled. *Id.* The pivotal question is whether any employer in the usual course of business would reasonably be expected to employ the employee in that person's present physical condition, reasonably expecting the employee to perform the work for which he or she is hired. *Reiner v. Treasurer of State of Mo.;* 837 S.W.2d at 367.

*Gordon,* 908 S.W.2d at 853.

In determining whether an employee can return to employment, the Administrative Law Judge may consider the employee's education, ability to be re-trained, and academic and vocational testing. *Grauberger v. Atlas Van Lines, Inc.,* 419 S.W.3d 795, 801 (Mo. App. S.D. 2013). The fact finder is not bound by the exact percentages of the expert witness and is free to find another percentage of disability. *Ransburg v. Great Plains Drilling,* 22 S.W.3d 726, 732 (Mo. App. W.D. 2000).

After the work injury, Employee returned to work on light duty, but was released by Employer due to being unable to perform his regular job in July 2011. At the time, Employee had been employed by Employer for nearly 30 years. He has not been gainfully employed since July 2011. Employee's physical condition has not substantially improved since he last worked in July 2011. He does not have education beyond high school. He has performed physically demanding work his entire life, which he no longer can handle. Multiple, ongoing physical and psychological problems arising from the work injury are documented in the admitted records. He continues to have chronic pain and physical impairment from the work injury. The evaluators in this case have documented the severe limitations in Employee's vocational abilities. Based on the opinions of Dr. Koprivica, Dr. Halfaker, Dr. Stuckmeyer, and Mr. Cordray, Employee's credible testimony, and the record as a whole, I find and conclude that Employee is permanently and totally disabled as a result of the March 16, 2011 work accident, in isolation.

Accordingly, I conclude that due to the work injury on March 16, 2011, Employee is unable to perform any of his past work; that no reasonable employer in the normal course of business could be expected to hire Employee for competitive, gainful employment; and that Employee cannot compete in the workforce generally. Employer/Insurer is liable for permanent total disability benefits beginning November 8, 2011, and continuing for the remainder of his lifetime, subject to review and modification as provided by law. Given this determination, issues relating to the Second Injury Fund are moot.

Future Medical Treatment

Section 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 a work-related injury. The term "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). "The right to obtain future medical treatment should not be denied merely because it has not yet been prescribed or recommended as of the date of a workers' compensation hearing. . . ." *Mathia v. Contract Freighters, Inc.,* 929 S.W.2d 271, 277 (Mo. App. S.D. 1996). "Future medical care should not be denied simply because an employee may have achieved maximum medical improvement." *Greer v. SYSCO Food Services,* 475 S.W.3d 655, 673 (Mo. banc 2015). "Nor is an employee required to show evidence of the specific nature of the treatment needed." *Kolar v. First Student, Inc.,* 470 S.W.3d 770, 777 (Mo. App. E.D. 2015). Instead, an employee "needs only to show a reasonable probability that the future treatment is necessary because of his work-

Employee: Jeffrey Lynn Gilman

Injury No.: 11-020246

related injury." Greer, 475 S.W.3d at 673. See also Sickmiller v. Timberland Forest Products, Inc., 407 S.W.3d 109, 122 (Mo. App. S.D. 2013).

Dr. Koprivica said Employee would require future treatment, including ongoing chronic pain management; however, Dr. Halfaker found no need for additional psychological treatment. Consistent with the opinion of Dr. Koprivica, Employee is entitled to future medical care to cure or relieve the effects of the work injury of March 16, 2011. Employer/Insurer shall provide the same.

- Employee is permanently and totally disabled from the primary work injury alone.

- Employer/Insurer is liable for weekly permanent total disability benefits to Employee in the amount of $724.90 starting beginning November 8, 2011 (the day after Employee was determined to be at maximum medical improvement by Dr. Woodward) for the remainder of his lifetime. Beginning November 8, 2011 to November 5, 2019, a total of 417 weeks, the accrued amount owed Employee is $302,283.30.

- Employee is entitled to all future medical benefits that are reasonably necessary to cure and relieve the effects of Employee's work injury.

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

Employee's attorney, William E. Peterson, is awarded an attorney fee of 25 percent of all amounts awarded which shall constitute a lien upon the Award in this matter. This is a reasonable fee for necessary legal services provided to Employee.

I certify that on 12-17-19 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

Made by:

Victorine R. Mahon

Chief Administrative Law Judge