Roy Franklin v. Mitchell Mill Systems USA, Inc.

Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION

(Modifying Award and Decision of Administrative Law Judge)

**Injury No.:** 14-025678

**Employee:** Roy Dale Franklin

**Employer:** Mitchell Mill Systems USA, Inc.

**Insurer:** Accident Fund Insurance Company of America

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

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

Employee claimed occupational disease based on progressive injury to his lumbar spine with onset of April 12, 2014. Employee had preexisting conditions that included disability to his right knee, right and left shoulders, low back, and bilateral carpal tunnel syndrome. He alleged permanent total disability against employer/insurer or the Second Injury Fund.

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

1. Nature and extent of permanent disability, if any, attributable to employee's April 12, 2014, occupational disease injury;
2. Liability of the Second Injury Fund or employer/insurer if permanent partial disability or permanent total disability is found; and
3. Future medical.

- Employee was very credible; his testimony was "genuine, honest, reliable, and trustworthy."

- Employee was not permanently and totally disabled based solely on disability from the primary occupational disease injury in isolation.

- Employee's primary occupational disease injury was the prevailing factor that caused him to suffer 17.5% PPD to the body as a whole.

- Employee is permanently and totally disabled with Second Injury Fund liability.

- The evidence and testimony at hearing established employee's entitlement to future medical.

*Award, p. 17.*

MNKOI 0000811616

Injury No. 14-025678

Employee: Roy Dale Franklin

- 2 -

The administrative law judge's award did not specifically cite or apply 287.220.3(2) RSMo to employee's April 12, 2014, claim.

The Second Injury Fund filed a timely application for review to the Commission alleging the administrative law judge erred in awarding permanent total disability against the Second Injury Fund for the following reasons:

1. The Administrative Law Judge failed to apply the correct law, § 287.220.3 RSMo, to employee's post-January 1, 2014, injury.
2. Application of the correct law, § 287.220.3 RSMo disqualifies several of employee's preexisting disabilities considered by the administrative law judge from being taken into consideration in determining Second Injury Fund liability.
3. Employee failed to prove that he is permanently and totally disabled as a result of his occupational disease in combination with preexisting disabilities that qualify for Second Injury Fund liability under § 287.220.3 RSMo.

On August 23, 2019, employee filed "Employee's Answer to the Second Injury Fund's Application for Review and, Alternatively, Employee's Application for Review (Answer)". Employee's Answer urged the Commission to affirm the administrative law judge's award or, in the alternative, to remand the Award to the Administrative Law Judge "for further clarification of the basis of [her] decision under the proper analytical framework for § 287.220.3, RSMo. [and] to amend the Award to clarify the basis of the decision under the correct analytical framework in light of the Cosby decisions."

Employer/insurer also requested the Commission to affirm the award of the ALJ or, alternatively, to remand to the Division of Workers' Compensation for further proceedings and clarification of the ALJ's determination.²

No party disputed the administrative law judge's finding that employee is permanently and totally disabled and that employer is obligated to provide future medical treatment pursuant to § 287.140 RSMo.

On July 28, 2020, the Commission issued an order that construed employee's alternative proposed application for review requesting a remand to the administrative law judge as inconsistent with the Commission's duty, pursuant to the Second Injury Fund's application for review and §§ 287.480 and 286.090 RSMo, to review the administrative law judge's award and issue its own findings of fact and conclusions of law. The order denied the remand motion and invited the parties to file supplemental briefs addressing the issues raised in the Second Injury Fund's application for review.

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

² Brief of Respondent Employer and Insurer, filed December 2, 2019, p. 21.

Injury No. 14-025678

Employee: Roy Dale Franklin

- 3 -

Employee claimed permanent total disability benefits against the employer/insurer or the Second Injury Fund. Because employee's primary injury occurred after January 1, 2014, we must apply the new criteria set forth under § 287.220.3(2) RSMo for establishing a compensable claim against the Second Injury Fund. See *Cosby v. Treasurer*, 579 S.W.3d 202 (Mo. banc 2019).

In relevant part, the statute provides as follows:

> 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 [emphasis added]; 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[.]

§ 287.220.3(2) RSMo.

Pursuant to § 287.800.1 RSMo, we must strictly construe the language of Chapter 287. As our courts have instructed:

> A strict construction of a statute presumes nothing that is not expressed. ... [I]t means that everything shall be excluded from its operation which

Injury No. 14-025678

Employee: Roy Dale Franklin

- 4 -

does not clearly come within the scope of the language used. Moreover, a strict construction confines the operation of the statute to matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter. The clear, plain, obvious, or natural import of the language should be used, and the statutes should not be applied to situations or parties not fairly or clearly within its provisions.

Allcorn v. Tap Enters., 277 S.W.3d 823, 828 (Mo. App. 2009) (citations omitted).

We wish to make clear our understanding that the Cosby, supra, works the effect that § 287.220.3 RSMo applies to employee's claim against the Second Injury Fund herein. That said, irrespective of whether an employee's Second Injury Fund claim is subject to § 287.220.2 or § 287.220.3 RSMo, we must first address the issue of the nature and extent of disability attributable to employee's primary occupational disease injury.

Disability attributable to employee's primary injury

Employee is sixty-six years of age. He had no training or education since graduating from high school. Employee's fifty-eight hour a week job as a welder for employer from 2006 to 2014 included frequently lifting fifty or more pounds, carrying, squatting, and kneeling. Employee had a number of preexisting conditions. He returned to heavy labor and worked fifty-eight hours per week after multiple injuries and surgeries relating to his right knee, right and left shoulders, low back, and bilateral carpal tunnel syndrome.

Employee asked employer to excuse him from certain types of work due to his back condition. Employer refused this request. While working on welding derricks from 2013-2014, employee's sciatica returned and his back condition worsened. On Sunday, April 13, 2014, he could not get out of bed.

Initially, employer told employee to stay home until he felt better. After employee consulted attorney Andrew Wood, employer referred employee to OccuMed. Employer's physician Dr. Estep documented employee's report of back pain and released him to return to work with restrictions that included no lifting, pushing, pulling or carrying more than ten pounds. Employer assigned employee to office work. Employee's condition did not improve after therapy, epidural steroid injections and traction. He never returned to his prior job on the floor.

Employee's expert Dr. Brent Koprivica conceded employee had industrially disabling limitations prior to 2014 but opined that if employee was permanently and totally disabled, it was due to the primary injury in isolation. Dr. Koprivica deferred to a vocational expert as to whether employee was permanently and totally disabled. Dr. Koprivica alternatively opined that if a fact finder found that employee's permanent total disability was not due to the primary injury, that he would assign 25% PPD to the primary injury. Dr. Koprivica further stated that when he took into account employee's total preexisting disabilities in combination with his April 2014 occupational disease claim he considered employee permanently and totally disabled. Finally, Dr. Koprivica testified that even assuming employee's prior lumbar condition and right knee disability were disregarded he would be permanently and totally disabled based on the combination of his primary injury and bilateral hand and shoulder condition.

Injury No. 14-025678

Employee: Roy Dale Franklin

- 5 -

Vocational rehabilitation expert Phillip Eldred noted that employee, a high school graduate, tested at the 7th grade level in word reading, the 5th grade level in spelling, and the 10th grade level in math. Mr. Eldred opined that employee could not return to less than sedentary work and identified no transferable skills for sedentary work. Based on his review of employee's medical restrictions, Mr. Eldred considered employee permanently and totally disabled as a result of his April 12, 2014, injury in isolation.

After testing of employee's reading, sentence comprehension, spelling and math ability, vocational rehabilitation expert Kristine Skahan identified a list of his transferable skills. She opined that employee was place-able in the competitive open labor market in entry-level work that would allow for a change of position. She suggested possible positions as telemarketer, photocopy machine operator, document scanner/imaging specialist, hospital clerk, surveillance monitor, scale house operator, shipping receiving weigher, or gas station cashier. Ms. Skahan acknowledged that employee had no experience in any of these jobs and that no reasonable employer would likely accommodate employee's need to sit in a recliner with his feet up to alleviate back pain during the day.

Our factual findings

After careful consideration, we find Dr. Koprivica's initial opinion that employee's permanent and total disability resulted solely from the effects of employee's occupational disease injury with onset of April 12, 2014, constitutes the most credible evidence in the record on the issue of medical causation of employee's undisputed permanent and total disability. We do not consider Dr. Koprivica's additional alternative analyses inconsistent, but rather merely his effort to respond to employee's attorney's diligent questioning designed to anticipate and address every possible liability scenario under § 287.220.3 RSMo. We further rely on the opinion of vocational expert Phillip Eldred that medical restrictions resultant from employee's primary injury rendered him unable to compete for work in the open labor market. We conclude employee's fifty-eight hour a week job as a welder for employer from 2006 to 2014, frequently lifting fifty or more pounds, carrying, squatting, and kneeling was the sole cause of his permanent and total disability.

Conclusions of Law

As we have found, the effects of employee's occupational disease injury with onset of April 12, 2014, considered alone, rendered employee permanently and totally disabled. An employer is liable where permanent total disability is solely attributable to an employee's primary work injury, regardless of whether § 287.220.2 or § 287.220.3 RSMo applies to employee's claim. Because we find the employer/insurer solely liable for permanent total disability benefits in this case we need not undertake an analysis whether employee's evidence is sufficient to meet the criteria for permanent total disability claims against the Second Injury Fund under § 287.220.3 RSMo.

Conclusion

We modify the award of the administrative law judge as to the issue of Second Injury Fund liability.

Employee is entitled to, and we order employer/insurer to pay weekly permanent total disability benefits after February 2, 2015, at the stipulated weekly permanent total

TI3681-0301

- 6 -

disability rate of $508.35. The weekly payments shall continue for employee's lifetime, or until modified by law.

The award and decision of Administrative Law Judge Karen Wells Fisher is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

We approve and affirm as fair and reasonable the administrative law judge's allowance of an attorney's fee in the amount of 25% of the compensation awarded in favor of Andrew P. Wood, of Wood, Cooper & Peterson, LLC.

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

Given at Jefferson City, State of Missouri, this 22nd day of October 2020.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

S. Viki Curls

Shalonn K. Curls, Member

Attest:

Secretary

Injury No. 14-025678

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 the employee failed to prove that he is permanently and totally disabled as a result of his April 12, 2014, work injury, either alone or in combination with prior disabilities.

The standard for determining whether an employee is permanently and totally disabled is whether the employee is able to compete in the open labor market. An employee is not permanently and totally disabled if a reasonable employer would hire him. *Schussler v. Treasurer of State-Custodian of Second Injury Fund*, 393 S.W.3d 90, 96 (Mo. App. 2012). I credit the opinion of vocational expert Kristine Skahan, who tested employee and found he had transferable skills that rendered him able to compete for work in various entry-level jobs that would allow for a change of position. Based on Dr. Koprivica's evaluation, I would award employee 25% permanent partial disability based on the body as a whole attributable to his April 12, 2014, onset occupational disease related to the lumbar spine. Regrettably, the administrative law judge's determination regarding the nature and extent of employee's permanent disability is not at issue in this appeal.

Employer/insurer argues that the Western District Court of Appeals construction of § 287.220.3 RSMo in *Treasurer v. Parker*¹ represents controlling authority and compels the Commission to assess liability against the Second Injury Fund in this case. On September 4, 2020, a week after employer/insurer filed its brief with the Commission, the Western District Court of Appeals granted the Second Injury Fund's motion to transfer *Parker* to the Missouri Supreme Court. In addition, the Eastern District Court of Appeals endorsed a different interpretation of § 287.220.3 RSMo, consistent with the Commission's view, in *Sterling Bennett vs. Treasurer of the State of Missouri as Custodian of the Second Injury Fund*, (ED108713, August 25, 2020)². For these reasons, as of the date of this award, *Parker* does not represent controlling legal authority that dictates the Commission's legal interpretation of § 287.220.3 RSMo.

I write separately to note these developments as well as to express my opinion that the employee remains able to compete for work in the open labor market and for this reason employer should only be liable for permanent partial disability benefits in the amount of 25% of the body as a whole.

Reid K. Forrester, Member

---

1 *Treasurer v. Parker*, WD83030 (July 14, 2020)

2 The court issued its mandate in *Bennett, Id.*, on September 17, 2020.

Injury No. 14-025678

Before the DIVISION OF WORKERS' COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

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: April 12, 2014
5. State location where accident occurred or occupational disease was contracted: Joplin, Jasper 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 performed welding activities for Employer, which involved, among other things, lifting, bending, reaching, and sustained awkward postures, which was the prevailing factor causing Employee to contract occupational disease in his lumbar spine.
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.
14. Nature and extent of any permanent disability: 17.5% to the body as a whole from the primary occupational disease claim (70 weeks). Permanent total disability as against the Second Injury Fund.
15. Compensation paid to-date for temporary disability: $8,988.90.
16. Value necessary medical aid paid to date by employer/insurer? $33,977.27.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

1. Value necessary medical aid not furnished by employer/insurer: None.

1. Employee's average weekly wages: 762.53.

1. Weekly compensation rate: 508.35 for Permanent Total Disability (PTD)/Temporary Total Disability (TTD) benefits and $446.85 for Permanent Partial Disability (PPD) benefits.

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

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

For Permanent Partial Disability:

$$446.85 \times 70 \text{ weeks} = 31,279.50$$

**TOTAL:** $31,279.50.

1. Second Injury Fund liability:

Permanent Total Disability (see below)

1. Future requirements awarded:

As explained further herein, Employee reached maximum medical improvement (MMI) on February 2, 2015.

Because there is a differential between the PPD and PTD rates in the amount of 61.50, the Second Injury Fund is liable to pay Employee 61.50/week for the first 70 weeks after February 2, 2015 (until June 6, 2016), which is equivalent to $4,305.00 (70 weeks × $61.50 = $4,305.00).

Beginning June 7, 2016, and continuing for the remainder of Employee's lifetime, the Second Injury Fund shall pay Permanent Total Disability benefits at the weekly rate of $508.35. As of July 30, 2019, 164 weeks have elapsed since June 7, 2016, which is equivalent to $83,369.40 (164 weeks × $508.35 = $83,369.40).

The accrued amount of PTD benefits due and owing by the Second Injury Fund as of May 14, 2019 is $87,674.40.

Employer shall provide future medical treatment to cure and relieve the effects of the work injury.

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

The compensation awarded to Employee shall be subject to a lien in the amount of twenty-five percent (25%) of all payments hereunder in favor of the following attorneys for necessary legal services rendered to Employee: Andrew P. Wood of Wood, Cooper & Peterson, LLC.

The undersigned administrative law judge conducted a final hearing in this case on April 15, 2019, in Joplin, Missouri. Roy Dale Franklin (Employee) appeared in person and with his attorneys, Andrew P. Wood and William E. Peterson. Mitchell Mill Systems USA, Inc. (Employer) and Accident Fund Insurance Company of America (Insurer) appeared through attorney Greg Carter. The Second Injury Fund (Fund) appeared through attorney Michael Bang. Also present at the hearing was Court Reporter Vickie Salmons.

At the final hearing, the parties reached stipulations and narrowed the issues as follows:

The parties stipulated to the following facts for purposes of the final hearing:

1. On April 12, 2014, Mitchell Mills System USA, Inc. (henceforth "Employer") was an employer operating subject to the Missouri Workers' Compensation Law.
2. On April 12, 2014, Employer's liability was fully insured by Accident Fund Ins. Co. of America (henceforth "Insurer").
3. On April 12, 2014, Roy Dale Franklin (henceforth "Employee") was an employee of Employer.
4. On April 12, 2014, Employee was working subject to the Missouri Workers' Compensation Law (henceforth "the Law").
5. On April 12, 2014, Employee sustained occupational disease injury to his lumbar spine, which arose out of and in the course of his employment with Employer.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

1. Employee's occupational disease injury on April 12, 2014 occurred in Jasper County, Missouri.

1. Employee notified Employer of his occupational disease injury as required by Section 287.420 RSMo. of the Law.

1. Employee filed a Claim for Compensation arising from the April 12, 2014 occupational disease injury that was assigned Injury No. 14-025678.

1. Employee's Claim for Compensation (Injury No. 14-025678) was filed within the time prescribed by Section 287.430 RSMo. of the Law.

1. At the time of the April 12, 2014 occupational disease injury, Employee's average weekly wage of 762.53 was sufficient to allow a compensation rate of 508.35 for Permanent Total Disability (PTD)/Temporary Total Disability (TTD) benefits and $446.85 for Permanent Partial Disability (PPD) benefits.

1. As a result of the April 12, 2014 occupational disease injury, temporary total disability benefits have been paid by Employer/Insurer in the amount of $8,988.90.

1. As a result of the April 12, 2014 occupational disease injury, Employer/Insurer has paid medical benefits in the amount of $33,977.27.

1. As a result of the April 12, 2014 occupational disease injury, Employee reached maximum medical improvement on February 2, 2015.

ISSUES

The parties stipulated that the purpose of the final hearing was to determine the following contested issues:

1. The nature and extent of permanent disability resulting from the April 12, 2014 occupational disease injury.

1. The liability of Employer/Insurer and/or Second Injury Fund if permanent partial disability and/or permanent total disability is found from the April 12, 2014 occupational disease injury.

1. Whether Employee is entitled to future medical care.

EXHIBITS

All of the following exhibits were admitted without objection. No alterations of the exhibits were made since their admission. Exhibits 1-40 were offered by Claimant. Employer/Insurer offered Exhibit A. The Second Injury Fund did not offer any exhibits.

**Employee:** Roy Dale Franklin

**Injury No. 14-025678**

1. Claim for Compensation - Inj #14-025678
2. Employer's Report of Injury - Inj #14-025678
3. Answer to Claim for Compensation filed by Employer
4. Answer to Claim for Compensation filed by Second Injury Fund
5. Records from Division of Workers' Compensation, consisting of 10 pages
6. Stipulation for Compromise Settlement (Employer) - Injury #11-066770
7. Stipulation for Compromise Settlement (Second Injury Fund) - Injury #11-066770
8. Medical records from Freeman Health System, consisting of 30 pages, certified December 9, 2011
9. Medical records from Midwest Orthopedic Surgery, consisting of 3 pages, certified December 30, 2011
10. Medical records from Midwest Orthopedic Surgery, consisting of 1 page, certified December 30, 2011
11. Medical records from Midwest Orthopedic Surgery, consisting of 21 pages, certified December 30, 2011
12. Medical records from Midwest Orthopedic Surgery, consisting of 11 pages, certified October 4, 2012
13. Medical records from Freeman Pain Center, consisting of 7 pages, certified December 8, 2011
14. Medical records from Freeman Practice Management (Dr Bradley Reeves), consisting of 84 pages, certified December 28, 2011
15. Medical records from Freeman Health System, consisting of 34 pages, certified May 13, 2014
16. Medical records from Freeman Health System, consisting of 97 pages, certified September 9, 2014
17. Medical records from Freeman Neosho Physician's Group, consisting of 23 pages, certified December 5, 2011
18. Medical records from Springfield Neurological & Spine Institute, consisting of 152 pages, certified February 4, 2015

1. Medical records from Orthopedic Specialists of the Four States, consisting of 53 pages, certified December 6, 2011
2. Medical records from BenchMark Rehab Partners, consisting of 35 pages, certified February 20, 2015
3. Medical records from Freeman NeuroSpine, consisting of 12 pages, certified December 9, 2011
4. Medical records from Springfield Neurological & Spine Institute, consisting of 21 pages, certified April 9, 2015
5. Medical records from Freeman Health System, consisting of 61 pages, certified January 18, 2016
6. Medical records from Mitchell Drug Stores, consisting of 3 pages, certified January 13, 2016
7. Medical records from Prime Care Family Medicine, consisting of 32 pages, certified February 23, 2016
8. Medical records from Freeman Health System (clinics), consisting of 68 pages, certified September 16, 2016
9. Medical records from Freeman Health System (hospital), consisting of 160 pages, certified September 16, 2016
10. Medical records from Freeman Health System (OccuMed), consisting of 200 pages, certified September 30, 2016
11. Medical records from Mitchell Drug Stores, consisting of 4 pages, certified September 8, 2016
12. Medical records from Prime Care Family Medicine, consisting of 5 pages, certified September 20, 2016
13. Medical records from Orthopedic Specialists of the Four States, consisting of 3 pages, certified September 16, 2016
14. Medical report of Dr. P. Brent Koprivica, dated December 12, 2012
15. Medical report of Dr. P. Brent Koprivica, dated May 28, 2015
16. Medical report addendum of Dr. P. Brent Koprivica, dated June 14, 2016

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

1. Vocational report of Mr. Phillip Eldred, dated September 16, 2015

1. Deposition of Roy Dale Franklin, taken February 2, 2012

1. Deposition of Roy Dale Franklin, taken January 5, 2016

1. Deposition of Dr. P. Brent Koprivica with exhibits, taken July 28, 2017

1. Deposition of Phillip Eldred with exhibits, taken August 22, 2017

1. Document containing Stipulations of Parties and Issues

A. Vocational report of Ms. Kristine Skahan and Deposition of Ms. Kristine Skahan with exhibits, taken February 26, 2018

FINDINGS OF FACT

As explained more fully herein, Employee satisfied his burden of proof and persuasion by presenting substantial and competent evidence that he is permanently and totally disabled as a result of the partial disability arising from his occupational disease claim dated April 12, 2014 in combination with his pre-existing disabilities. In addition, Employee produced competent and substantial evidence that persuasively established a reasonable probability that future medical treatment is necessary because of the work-related occupational disease injury. Accordingly, future medical treatment should be provided to cure and relieve the effects of the work injury.

A. Employee's Pre-Existing Disabilities.

It is overwhelmingly clear that Employee had profound pre-existing disabilities prior to his occupational disease claim dated April 12, 2014.

i. Right Knee.

In 1989, Employee suffered a traumatic injury to his right knee that resulted in major ligamentous disruption and muscle tears. On January 24, 1989, Dr. Esch performed the following surgical procedures on Employee's right knee: 1) Repair of the posterior cruciate ligament. 2) Repair of the posterior medial capsule. 3) Repair of the superficial and capsular medial ligaments. 4) Lateral arthrotomy with partial lateral meniscectomy and debridement of lateral funeral condylar fracture. (Ex. 11, p. 18/22)

Employee credibly and persuasively testified at the final hearing regarding the problems he has had with his right knee over the years. As discussed further herein, Dr. Koprivica was the only medical doctor who provided testimony concerning all of Employee's pre-existing disabilities. Dr. Koprivica assigned Employee a 22.5% permanent partial disability of the knee arising from Employee's pre-existing right knee injury.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

I am persuaded by the testimony of Employee and Dr. Koprivica on this issue. I find Employee's right knee injury was a pre-existing disability to the April 12, 2014 occupational disease claim in that it caused permanent disability and ongoing problems of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment.

ii. Right Shoulder.

Employee suffered a work-related injury to his right shoulder in 2000. On October 24, 2000, Dr. Bradley Reeves performed the following surgical procedures on Employee's right shoulder: 1) Arthroscopic labral debridement with repair of superior labrum. 2) Biceps tendon debridement. 3) Arthroscopic subacromial decompression. 4) Open rotator cuff repair. (Ex. 14, p. 81/86)

Ultimately, Employee entered into a Stipulation for Compromise Settlement on June 5, 2001 in which he received a settlement based on 20% disability of the right shoulder at the 232-week level. (Ex. 5, p. 1/10)

Employee credibly and persuasively testified at the final hearing regarding the problems he has had with his right shoulder over the years. Dr. Koprivica assigned Employee a 20% permanent partial disability of the shoulder associated with Employee's pre-existing right shoulder injury.

I am persuaded by the testimony of Employee and Dr. Koprivica on this issue. I find Employee's right shoulder injury was a pre-existing disability to the April 12, 2014 occupational disease claim in that it caused permanent disability and ongoing problems of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment.

iii. Left Shoulder.

Employee suffered a work-related injury to his left shoulder in 2003. On August 26, 2003, Dr. Bradley Reeves performed the following surgical procedures on Employee's left shoulder: 1) Left arthroscopic labral repair with Surtac anchor × 2. 2) Left arthroscopic subacromial decompression. 3) Left open rotator cuff repair through a mini open with arthroscopic assistance. (Ex. 14, p. 79/86)

Ultimately, Employee entered into a Stipulation for Compromise Settlement on April 14, 2004 in which he received a settlement based on 22.5% disability of the left shoulder at the 232-week level. (Ex. 5, p. 10/10)

Employee credibly and persuasively testified at the final hearing regarding the problems he has had with his left shoulder over the years. Dr. Koprivica assigned Employee a 22.5% permanent partial disability of the shoulder associated with Employee's pre-existing left shoulder injury.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

I am persuaded by the testimony of Employee and Dr. Koprivica on this issue. I find Employee's left shoulder injury was a pre-existing disability to the April 12, 2014 occupational disease claim in that it caused permanent disability and ongoing problems of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment.

iv. Low Back.

Employee has a pre-existing history of low back pain that ultimately required surgery. On November 5, 2009, Employee saw Dr. Pendergrass and reported lower back pain off and on for 10 years. (Ex. 17, p. 13/24) An MRI taken on November 6, 2009 revealed a moderate-sized disc protrusion at L4-L5 with moderate left-sided foraminal narrowing. There was also a mild disc protrusion at L5-S1 with an annular tear and mild bilateral foraminal narrowing. (Ex. 17, p. 23/24) After the MRI, Employee received a series of three lumbar epidural steroid injections in 2010 through Dr. Knudsen. (Ex. 13) Afterwards, Employee continued to have problems with his low back, which ultimately culminated with surgery with Dr. Ipsen. On October 6, 2011, Dr. Ipsen performed the following surgical procedures: 1) Left L4-L5 hemilaminectomy, partial medial facetectomy and foraminotomy. 2) Left L5-S1 hemilaminectomy, partial medial facetectomy and foraminotomy. (Ex. 19, p. 26/56)

Employee credibly and persuasively testified at the final hearing regarding the problems he has had with his low back over the years prior to the primary occupational disease claim. Dr. Koprivica assigned Employee a 10% permanent partial disability to the body as a whole associated with Employee's pre-existing low back condition.

I am persuaded by the testimony of Employee and Dr. Koprivica on this issue. I find Employee's low back condition was a pre-existing disability to the April 12, 2014 occupational disease claim in that it caused permanent disability and ongoing problems of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment.

v. Bilateral Carpal Tunnel Syndrome.

Employee suffered occupational disease development causing bilateral carpal tunnel syndrome prior to the primary occupational disease claim to his low back. On April 13, 2012, Dr. Lieurance performed open right carpal tunnel release surgery due to severe right carpal tunnel syndrome. (Ex. 12, p. 7/12) On May 16, 2013, Dr. Lieurance performed open left carpal tunnel release surgery. (Ex. 26, p. 26/69)

Ultimately, Employee entered into a Stipulation for Compromise Settlement with the Employer/Insurer in which he received a settlement based on 12.5% disability to the body as a whole due to bilateral carpal tunnel syndrome. (Ex. 6)

Employee also entered into a Stipulation for Compromise Settlement with the Fund based on the synergistic effect of combining his pre-existing disabilities at the time with the primary occupational disease development to his bilateral wrists. (Ex. 7) According to the settlement

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

documents with the Fund, a 10% loading factor represented the combination or synergistic effect based on pre-existing disabilities with percentages as follows:

1) 20% to the right shoulder (232-week level) for rotator cuff repair.

2) 22.5% to the left shoulder (232-week level) for rotator cuff repair.

3) 10% to the body (400-week level) for lumbar herniation.

4) 22.5% to the right knee (160-week level) for multiple surgeries.

(Ex. 7)

Employee credibly and persuasively testified at the final hearing regarding the problems he has had with his bilateral wrists over the years leading up to the primary occupational disease claim. Dr. Koprivica assigned Employee a 12.5% permanent partial disability to the body as a whole associated with Employee's pre-existing bilateral carpal tunnel syndrome.

I am persuaded by the testimony of Employee and Dr. Koprivica on this issue. I find Employee's bilateral carpal tunnel syndrome was a pre-existing disability to the April 12, 2014 occupational disease claim in that it caused permanent disability and ongoing problems of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment.

B. Employee's Primary Occupational Disease Injury.

There is no dispute that Employee suffered a compensable occupational disease development injury to his low back with a claim date of April 12, 2014. (Ex. 18, p. 17/156: Dr. Woodward-Authorized Provider: "The prevailing cause of the patient's current moderate/severe lumbosacral pain and left LE radiculopathy including left L4 symptoms would be the work duty physical activities he performed in mid-April 2014.") Associated with this claim, Employee received authorized treatment.

An MRI was performed of Employee's lumbar spine on July 7, 2014 and the interpreting radiologist provided the following impression: 1) Prior left hemilaminectomy at L4-L5 and L5-S1. 2) Diffuse disc degeneration L1-L2 level. 3) Annular tearing at L2-L3 and L3-L4 with mild right neural foraminal stenosis at L2-L3. 4) Left paramedian and lateral protrusion of the L4-L5 disc with a downward migrated fragment. There is a severe compression of the left traversing and exiting nerve root. 5) Moderate bilateral neural foraminal narrowing at L5-S1 where there is loss of intervertebral disc height.

Ultimately, Dr. Cunningham performed the following surgical procedures on October 14, 2014: 1) Redo L4-L5 decompression, exposure. 2) Use of operative microscope with redo L4-L5 microdiscectomy. (Ex. 18, p. 98/156)

Afterwards, Employee received authorized postoperative care. On February 11, 2015, Dr. Cunningham's note indicates Employee was complaining of constant pain across his lower back as well as numbness/tingling in his left anterior thigh. At that time, Employee was reporting pain

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

at 5/10. (Ex. 22, p. 10/22) This was the last time Dr. Cunningham provided Employee with treatment.

On March 20, 2015, Dr. Woodward indicated Employee could perform full-time regular work duties without any restrictions and assigned a 10% permanent partial disability rating to the body as a whole associated with the primary occupational disease development claim and a 10% permanent partial disability to the body as a whole for the pre-existing lumbar spine condition.

After Employee was released from authorized care, he was never able to return to work for Employer. In addition, he has had no substantial gainful activity since 2015. After leaving the workforce, Employee applied for and received Social Security Disability benefits.

It is worth noting that prior to the primary occupational disease claim, Employee underwent major surgery on his right knee, right shoulder, left shoulder, lower back, right wrist and left wrist. After every one of those 6 surgeries, Employee returned to work full duty. After his back surgery associated with the primary occupational disease claim, however, Employee credibly and persuasively testified that he could not go back to work because the pain from the primary injury, in combination with his pre-existing disabilities, was too much for him to bear and prevented him from engaging in competitive, gainful employment.

C. Evaluating Experts.

i. Dr. Jeff Woodward (Referred by Employer/Insurer).

Dr. Woodward provided authorized treatment to Employee for his primary occupational disease claim. On March 20, 2015, Dr. Woodward issued a Final Impairment Rating Report. (Ex. 22, p. 22/22). Dr. Woodward indicated Employee reached maximum medical improvement on February 2, 2015. He further indicated that Employee could perform full-time regular work duties without permanent physical work restrictions. Dr. Woodward concluded that the primary occupational disease claim was the prevailing factor causing a 10% permanent partial disability of the body as a whole. Dr. Woodward also assigned a pre-existing 10% permanent partial disability to the body as a whole for Employee's pre-existing lumbar condition.

ii. Dr. P. Brent Koprivica (Referred by Employee's Attorney).

On May 28, 2015, Employee was evaluated by Dr. Koprivica at the request of his attorney.¹

Dr. Koprivica issued a report concerning his evaluation of Employee dated May 28, 2015. (Ex. 33) He also issued an addendum report concerning Employee dated June 14, 2016. (Ex. 34) His deposition was taken on July 28, 2017. (Ex. 38) All of the reports and the deposition transcript were admitted as exhibits at the final hearing. (See Exs. 32-34, 38)

¹ Dr. Koprivica also evaluated Employee on December 12, 2012 associated with his workers' compensation claim involving his bilateral carpal tunnel syndrome. (Ex. 32)

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

Dr. Koprivica found that Employee's work duties were the prevailing factor in the development of left-sided disc herniation with resultant left lumbar radiculopathy. In addition, Dr. Koprivica diagnosed Employee as having post-laminectomy syndrome or failed back syndrome as a direct result of the outcome of the care and treatment necessitated by the primary occupational disease claim. (Ex. 33, p. 24/54)

As a result of the primary occupational disease claim, Dr. Koprivica believed it was medically probable Employee would have ongoing treatment needs. Specifically, Dr. Koprivica believed Employee would require ongoing monitoring by a physician as well as provision of pain management treatment. (Ex. 33, p. 25/54)

As noted previously, Dr. Koprivica identified and assigned permanent partial disability for the following pre-existing conditions:

- 12.5% permanent partial disability to the body as a whole regarding prior bilateral carpal tunnel syndrome.

- 20% permanent partial disability at the level of the shoulder (232-week level) regarding the right upper extremity.

- 22.5% permanent partial disability at the level of the shoulder (232-week level) regarding the left upper extremity.

- 10% permanent partial disability to the body as a whole regarding pre-existing lumbar condition.

- 22.5% permanent partial disability at the level of the knee (160-week level) regarding the right lower extremity.

(Ex. 33, p. 29/54)

Dr. Koprivica indicated it was possible Employee was permanently totally disabled based on the primary occupational disease claim in isolation. As such, he recommended a vocational evaluation. That said, however, Dr. Koprivica indicated that if Employee were not considered totally disabled based on the primary occupational disease claim in isolation, then he would apportion a 25% permanent partial disability to the body as a whole. (Ex. 33, p. 28/54) Dr. Koprivica also indicated his belief that Employee was permanently totally disabled when combining his pre-existing disabilities with the permanent disability associated with the primary occupational disease claim. (Ex. 33, p. 29/54)

iii. Mr. Phillip Eldred (Referred by Employee's Attorney).

Mr. Phillip Eldred provided a vocational evaluation of Employee at the request of Employee's attorney. Mr. Eldred issued a Vocational Rehabilitation Evaluation report dated September 16, 2015. (Ex. 35) His deposition was taken on August 22, 2017. (Ex. 39)

Mr. Eldred testified that Employee was permanently and totally disabled based on the primary occupational disease claim alone. (Ex. 39, pp. 21:23-22:6) Mr. Eldred also testified,

**Employee:** Roy Dale Franklin

**Injury No. 14-025678**

However, that Employee would be permanently and totally disabled when combining the permanent disability from the primary occupational disease claim with Employee's pre-existing permanent disability. (Ex. 39, pp. 22:7-23:13) Upon further clarification through cross-examination by the attorney for Employer/Insurer, Mr. Eldred testified his opinion was that Employee was permanently and totally disabled as a result of the permanent disability arising from the primary occupational disease claim in combination with his pre-existing permanent disability. (Ex. 39, pp. 23:22-31:2)

Ms. Kristine Skahan provided a vocational evaluation of Employee at the request of Employer/Insurer. Ms. Skahan issued a Vocational Rehabilitation Assessment report concerning Employee dated October 8, 2017. (Ex. A) Her deposition was taken on February 26, 2018. (Ex. A)

In her report, Ms. Skahan indicated that the restrictions placed by Dr. Koprivica would eliminate Employee from all of his past work and place him at less than the full range of light work. (Ex. A) She also concluded that Employee did not have any transferable skills to work at the less than full range of light work. Ultimately, Ms. Skahan stated in her report that Employee "retains the ability to perform other work at less than a full range of light that would not require transferable skills. A search for the local labor market found 3 part-time and 3 full-time jobs that he would qualify and were within his physical abilities." (Ex. A)

Upon further clarification through cross-examination by Employee's attorney, Ms. Skahan indicated she believed Employee "has a shot" at being hired for the 3 part-time and 3 full-time jobs she identified. (Ex. A, p. 43:5-11) Ms. Skahan acknowledged that Employee's "overall labor market has been eroded but not completely. I mean we're looking at entry level positions." (Ex. A, pp. 40:6-41:4) Ms. Skahan went on to testify that Employee "would have a fair chance of being hired into any of the entry-level jobs that we discussed or other entry-level jobs that are out there...." (Ex. A, p. 41:12-18)

Ms. Skahan also acknowledged that Employee had engaged in heavy work for the past 17 years of his employment history and that he had no experience whatsoever in the jobs she indicated he "has a shot" of being hired for, including the 3 part-time telemarketing positions. (Ex. A, p. 18:16-22, 21:1-5) Furthermore, Ms. Skahan acknowledged that Employee reported he often had to sit in a recliner with his feet up to help alleviate back pain during the day and that there would be no reasonable accommodation for that restriction by any employment in her experience. (Ex. A, pp. 20:3-22:10)

Employee provided deposition testimony on February 2, 2012 (Ex. 36) and January 5, 2016 (Ex. 37) that was admitted at the final hearing. In addition, he was called by his attorney and testified live at the final hearing. Employer and Fund did not call any live witnesses at the final hearing.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

Employee provided extensive and detailed testimony concerning his educational and work background. Employee also testified concerning the pre-existing disabilities leading up to the primary occupational disease claim. It was overwhelmingly clear from Employee's testimony that he had substantial pre-existing disability leading up to the primary occupational disease claim.

Employee testified that after each major surgery he had before his most-recent back surgery associated with the primary occupational disease claim (e.g., right knee; right shoulder; left shoulder; back; right wrist; and left wrist), he always returned back to work. After the last back surgery, however, Employee knew he was unable to physically perform his job for Employer. Employee testified that the ongoing low back pain associated with the primary occupational disease claim in combination with the pre-existing problems and deficits rendered him unable to return to substantial gainful employment.

Employee persuasively and credibly testified of his ongoing pain. He testified that his pain is 4/10 at its best. Employee testified that he experiences pain all of the time. He testified that he moved his bedroom downstairs in order to accommodate his problems. He testified of the significant impact his disabilities have on daily, routine activities such as mowing and riding in a car. Employee's disabilities have caused him to miss family trips. He has significant difficulty putting on socks and tying his shoes. He can't do dishes because leaning forward significantly hurts his back. His sleep is significantly affected. Employee refrains from doing anything involving climbing, crouching, bending, or squatting. Employee testified of substantial limitations with walking and his ability to get around. Employee's deficits interfere with his personal hygiene to such a degree that his wife must assist him with bathing because of his limited motion caused by his shoulder injuries. Employee has significant weakness with gripping and squeezing due to the condition of his wrists.

Employee testified that his back and joints are always very stiff when he arises in the morning. It takes him a while to be able to move around normally. He tries to use stretching exercises he learned through physical therapy, but the exercises are not as effective as they used to be. He spends a lot of time watching TV. As a result of his disabilities, Employee has prescriptions from his primary care provider for hydrocodone and tramadol. Employee testified that these medications do help with his pain for a short period of time, but that they make him mentally drowsy/sleepy. Employee testified that he spent a lot of time in a recliner during an average day with his feet elevated in an effort to minimize discomfort and pain.

It should be highlighted here that I had the opportunity to view Employee's testimony at the final hearing and see him in person. It was absolutely clear from seeing Employee and watching him that he has severe disabilities. The final hearing began at 9:00 a.m. and Employee began testifying shortly thereafter. Approximately 30 minutes into his testimony, Employee had to stand up and his discomfort was plainly evident. A break was taken at 10:00 a.m. after which Employee sat down again. Approximately 30 minutes later, Employee had to stand up again to try to relieve his discomfort. After standing for approximately 15 minutes, Employee sat down again and was able to complete his testimony. In short, the magnitude of Employee's disabilities is even more palpable when seeing and observing Employee perform a physical activity as simple

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

as providing courtroom testimony.

Employee has sought permanent total disability in this case against either Employer/Insurer as a result of the primary occupational disease claim alone or, alternatively, against the Second Injury Fund.

In addressing this issue, Chapter 287 and the digested cases establish that the degree of disability from the primary work injury alone must be determined first. See, e.g., *Palmentere Bros. Cartage Serv. v. Wright*, 410 S.W.3d 685, 691 (Mo. App. W.D. 2013) (Affirming Commission's decision that employee was permanently totally disabled from primary work injury alone so that the Fund was not liable for PTD benefits). "Consequently, preexisting disabilities are not relevant until this determination is made." *Palmentere Bros.*, 233 S.W.3d at 691. "If the primary injury standing alone rendered [employee] permanently and totally disabled, then the Second Injury Fund has no liability and [employer/insurer] is responsible for all of the compensation." *Palmentere Bros.*, 233 S.W.3d at 691.

The Southern District further explained this issue in *Vaught v. Vaught's, Incorporated*, 938 S.W.2d 931 (Mo. App. S.D. 1997) as follows:

> As explained in [*Stewart v. Johnson*, 398 S.W.2d 850, 854 (Mo.1966),] §287.220.1 contemplates that where a partially disabled employee is injured anew and sustains additional disability, the liability of the employer for the new injury "may be at least equal to that provided for permanent total disability." Consequently, teaches *Stewart*, where a partially disabled employee is injured anew and rendered permanently and totally disabled, the first step in ascertaining whether there is liability on the Second Injury Fund is to determine the amount of disability caused by the new accident alone. *Id.* The employer at the time of the new accident is liable for that disability (which may, by itself, be permanent and total). *Id.* If the compensation to which the employee is entitled for the new injury is less than the compensation for permanent and total disability, then in addition to the compensation from the employer for the new injury, the employee (after receiving the compensation owed by the employer) is entitled to receive from the Second Injury Fund the remainder of the compensation due for permanent and total disability. §287.220.1.

*Vaught*, 938 S.W.2d at 939.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

"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 Section 287.020, "...shall mean inability to return to any employment and not merely mean inability to return to employment in which the employee was engaged at the time of the accident." As stated in *Gordon v. Tri-Slate 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 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. See also *Thornton v. Haas Bakery*, 858 S.W.2d 831, 834 (Mo.App.E.D.1993); *Kowalski v. M-G Metals and Sales*, 631 S.W.2d at 922.

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

An employee's ability to return to any reasonable or normal employment or occupation does not mean returning to a demeaning and undignified occupation such as selling peanuts, pencils or shoe strings on the street. *Vogle v. Hall Implement Company*, 551 S.W.2d 922 (Mo. App. 1977).

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.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

2000). "The testimony of a lay witness can constitute substantial evidence of the nature, cause, and extent of disability when the facts fall within the realm of lay understanding." *Landers v. Chrysler Corp.*, 963 S.W.2d 275, 279 (Mo. App. E.D. 1997).

After careful consideration of all of the evidence and testimony, I find that Employee would not be permanently and totally disabled if one only considered the degree of disability from the primary occupational disease claim alone, in isolation. I find that Employee suffered a 17.5% permanent partial disability to the body as a whole for which the primary occupational disease claim was the prevailing factor in its development.

When considering Employee's pre-existing disabilities, the evidence presented was clear, convincing, and persuasive that Employee is permanently and totally disabled with Fund liability. I find the testimony of Mr. Eldred, Dr. Koprivica, and Mr. Eldred particularly persuasive and compelling on this issue. In addition, although the testimony of Ms. Skahan is not as straightforwardly clear on this issue, I find that her testimony also supports Employee's permanent total disability with Fund liability. See *Treasurer of the State of Missouri v. Majors*, 506 S.W.3d 348, 354 (Mo. App. W.D. 2016) ("[T]he record need not contain a single expert opinion addressing the entirety of a claimant's conditions. Rather, the Commission may consider the opinions of multiple experts of differing specialties to arrive at its factual determination as to the parts and sum of a claimant's conditions." *quoting Patterson v. Central Freight Lines*, 452 S.W.3d 759, 767 (Mo. App. E.D. 2015)).

The medical history in this case documents the severity of Employee's pre-existing disabilities as well as the disability from his primary occupational disease claim. Prior to the primary occupational disease claim, Employee underwent major surgery on his right knee, right shoulder, left shoulder, back, right wrist, and left wrist. The evidence clearly established that these conditions caused significant limitations and deficits prior to the primary occupational disease claim.

Having heard and seen Employee and carefully listened to his live testimony at the final hearing, I find Employee's testimony was very credible. His testimony was genuine, honest, reliable, and trustworthy. Employee's testimony was not significantly challenged or called into question. His testimony was persuasive and credible to support Employee's permanent total disability with Fund liability. Additionally, his testimony was validated by the objective findings in the medical records and the conclusions of the expert witnesses.

Mr. Eldred testified Employee was permanently totally disabled. So did Dr. Koprivica. Although Ms. Skahan did not expressly say Employee was permanently totally disabled due to Fund liability, I conclude that her testimony also supported my decision.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

In summary, the evidence is extremely persuasive and overwhelmingly clear that Employee is permanently and totally disabled with Second Injury Fund liability. As such, I find that Employee is permanently and totally disabled with Second Injury Fund liability.

Future medical care.

Employee sought future medical care at the expense of Employer/Insurer.

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. 2015).

An employee "need not present 'conclusive evidence' that future medical treatment is needed to be entitled to an award of future medical benefits." *Greer v. SYSCO Food Services*, 475 S.W.3d 655, 673 (Mo. banc 2015) (internal quotations omitted). "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-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).

The evidence and testimony presented at the final hearing established that future medical care should be left open for Employee.

Dr. Koprivica evaluated Employee, authored reports, and provided deposition testimony in this case. As previously summarized herein, Dr. Koprivica believed it was medically probable Employee would require future treatment. Dr. Koprivica's opinions concerning future medical treatment were credible, consistent with the other evidence, and persuasive.

Dr. Cunningham was an authorized medical provider who treated Employee at the request of Employer/Insurer. On September 17, 2014, Dr. Cunningham recommended an L4-L5 micro discectomy, which he performed on October 14, 2014. (Ex. 18, p. 51/156 and 98/156) In his note

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Roy Dale Franklin

Injury No. 14-025678

dated September 17, 2014, Dr. Cunningham noted there was "a 10% risk of re-herniation requiring reoperation at a later time" involved with Employee's authorized surgery. (Ex. 18, p. 51/156)

I am convinced that Employee has met his burden of demonstrating his entitlement to future medical care at the expense of Employer/Insurer, although Employer/Insurer shall retain the right to direct such care.

SUMMARY

- Employee is permanently and totally disabled with Second Injury Fund liability.

- Employer/Insurer is liable for permanent partial disability benefits to Employee in the amount of $31,279.50, which is based on 17.5% disability to the body as a whole, which is equivalent to 70 weeks of compensation at a rate of $446.85/week.

- The Second Injury Fund is liable for permanent total disability benefits to Employee for the remainder of his lifetime. Because there is a differential between the PPD and PTD rates in the amount of 61.50, the Second Injury Fund is liable to pay Employee 61.50/week for the first 70 weeks after February 2, 2015 (until June 6, 2016), which is equivalent to $4,305.00 (70 weeks × $61.50 = $4,305.00). Beginning June 7, 2016, and continuing for the remainder of Employee's lifetime, the Second Injury Fund shall pay Permanent Total Disability benefits at the weekly rate of $508.35. As of July 30, 2019, 164 weeks have elapsed since June 7, 2016, which is equivalent to $83,369.40 (164 weeks × $508.35 = $83,369.40). The accrued amount of PTD benefits due and owing by the Second Injury Fund to Employee as of July 30, 2019 is $87,674.40.

- Employer/Insurer shall provide Employee 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: Roy Dale Franklin

Employee's attorney, Andrew P. Wood, is awarded an attorney fee of twenty-five percent (25%) of all amounts awarded herein, which shall constitute a lien upon the Award in this matter. This is a reasonable fee for necessary legal services provided to Employee.

Date: _______________ 1 certify that on _______________ 8-5-19 _______________ 1 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: _______________ 11-02-2018

Made by: _______________ Karen Wells Fisher Administrative Law Judge Division of Workers' Compensation