William Beavers v. St. John's Mercy Medical Center

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 07-123519

**Employee:** William Beavers

**Dependent:** Arthur Schon (Alleged)

**Employer:** St. John's Mercy Medical Center

**Insurer:** Mercy Hospitals East Communities

**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 2, 2019. The award and decision of Administrative Law Judge John K. Ottenad, issued December 2, 2019, is attached and incorporated by this reference.

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

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

Given at Jefferson City, State of Missouri, this **16th** day of November 2020.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

Injury No.: 07-123519

Employee: William Beavers

I have reviewed the evidence, read the briefs of the parties, and considered 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 disagree with the majority's decision to affirm the administrative law judge's (ALJ) award. The ALJ erred in finding that employee's December 24, 2007 work injury (2007 injury) "was not the prevailing factor in causing any disc pathology, need for surgery, or any treatment after the surgery[.]1

I believe that employee's surgery and treatment after being released by Dr. Russell Cantrell at maximum medical improvement were reasonably necessary to cure and relieve the effects of employee's 2007 injury, and employee would have been found to be permanently and totally disabled (PTD) either due to the 2007 injury alone, or in combination with his preexisting disabilities. I find that employee has sustained his burden of proving his entitlement to future medical care. Dr. Robert Poetz opined that employee will continue to require ongoing future medical care. Employee also has a prosthetic cord stimulator installed in his back. Additionally, I believe that employee is entitled to past medical benefits from employer in the amount of $161,268.14. Employer wrongfully denied responsibility for all treatment after employee's release from Dr. Cantrell. Employee's bills for his surgery and cord stimulator were related to the 2007 injury and should have been paid by employer. The total amount employee alleged for medical treatment against the employer was $161,268.14. Employer produced no evidence to dispute the reasonableness of these bills. Dr. James Coyle testified that the surgery performed by Dr. Armond Levy was reasonable. The ALJ erred in finding the date of maximum medical improvement of August 13, 2008, which was prior to employee's low back surgery, and by not awarding any temporary total disability (TTD) from December 5, 2009 through January 26, 2010. Employee was still engaged in the "rehabilitative process" under §287.149 due to his 2007 injury. Employee did not work from December 5, 2009 through January 26, 2010 due to the surgery performed by Dr. Levy, and was therefore still engaged in the rehabilitative process requiring TTD. Dr. Coyle and Dr. Poetz both opined that Dr. Levy's surgery was reasonable. Therefore, I find that employee is owed TTD from December 5, 2009 through January 26, 2010 in the amount of $4,568.57.

Employer did not assert post injury misconduct until the day of the ALJ hearing, and should therefore be precluded from amending their answer. I also find that the ALJ was incorrect in finding that Dr. Poetz was not as credible as employer's doctors solely due to the focus of their medical practice. I also believe that employee proved that he was PTD due to the 2007 injury alone. Dr. Poetz was the only medical expert who reviewed and opined as to both the 2007 injury and all of employee's pre-existing conditions, and to consider the synergy and combination of the 2007 injury and employee's preexisting disabilities. Additionally, I find that Arthur Schon was employee's dependent, and is entitled to collect benefits under Schoemehl v. Treasurer of the State of Missouri.2 Employee and his partner, Arthur Schon, have cohabitated in a homosexual relationship and have acted as though they were married since 2005. They were

1 See Award, page 36.

2 217 S.W.3d 900 (Mo. 2007).

RJRT004359116

Injury No.: 07-123519

Employee: William Beavers

-2-

together at the time of the accident and the ALJ hearing. Employee considers Mr. Schon to be his spouse. They have continuously cared for one another as if they were married. Although employee does not have a marriage license, I do not believe that this alone should preclude him from dependency benefits.

To summarize, I believe that the ALJ's award should be reversed, and found in favor of employee for PTD benefits against employer with TTD from December 5, 2009 through January 26, 2010 in the amount of 4,568.57, medical aid not furnished by employer in the amount of 161,268.14, dependency benefits in favor of Arthur Schon, and lifetime future medical treatment against employer. The ALJ should not have allowed employer to amend its answer to include the issue of post injury misconduct. Because the majority has determined otherwise, I respectfully dissent.

S. Kiki Curls

Shalonn K. Curls, Member

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 07-123519

AWARD

Employee: William Beavers

Dependents: (Alleged) Arthur Schon

Employer: St. John's Mercy Medical Center

Additional Party: Second Injury Fund

Insurer: Mercy Hospitals East Communities

C/O Sisters of Mercy Health System

Hearing Date: July 15, 2019

Record Closed August 14, 2019

Injury No.: 07-123519

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

FINDINGS OF FACT AND RULINGS OF LAW

1. Are any benefits awarded herein? Yes

1. Was the injury or occupational disease compensable under Chapter 287? Yes

1. Was there an accident or incident of occupational disease under the Law? Yes

1. Date of accident or onset of occupational disease: December 24, 2007

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

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

1. Did employer receive proper notice? Yes

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

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

1. Was employer insured by above insurer? Yes

1. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant

worked for Employer as a nurse and injured his low back and body as a whole, when he was attempting to lift

and move a 200-pound patient up in bed with a co-worker, and he felt a grinding pain in his low back with

pain down his legs.

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

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

1. Nature and extent of any permanent disability: 12.5% of the Body as a Whole—Lumbar Spine

1. Compensation paid to-date for temporary disability: $3,693.59

1. Value necessary medical aid paid to date by employer/insurer? $24,105.57

Revised Form 31 (3/97)

Page 1

1. Value necessary medical aid not furnished by employer/insurer? (Alleged) 161,268.14
2. Employee's average weekly wages: 905.26
3. Weekly compensation rate: $603.51 for TTD/ $389.04 for PPD
4. Method wages computation: By agreement (stipulation) of the parties

1. Amount of compensation payable:

1. Second Injury Fund liability:

**TOTAL: $28,636.27**

1. Future requirements awarded: None

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ronald D. Edelman.

On July 15, 2019, the employee, William Beavers, appeared in person and by his attorney, Mr. Ronald D. Edelman, for a hearing for a final award on his claim against the employer, St. John's Mercy Medical Center, and its insurer, Mercy Hospitals East Communities C/O Sisters of Mercy Health System, as well as the Second Injury Fund. The employer, St. John's Mercy Medical Center, and its insurer, Mercy Hospitals East Communities C/O Sisters of Mercy Health System, were represented at the hearing by their attorney, Mr. Christopher T. Archer. The Second Injury Fund was represented at the hearing by Assistant Attorney General Adam T. Sandberg.

To allow the parties time to prepare and file their proposed awards or briefs in this matter, the record did not technically close until August 14, 2019. Although we did not go back on the record or take any further evidence in this matter after the initial hearing date, the record was, then, closed on that date and the briefs were submitted by the parties by September 9, 2019, after extensions beyond the initial due date for the briefs were requested by Claimant and the Second Injury Fund, and granted.

At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) On or about December 24, 2007, William Beavers (Claimant) sustained an accidental injury arising out of and in the course of employment, when he was working as a nurse (RN) for Employer, and, when, while lifting a patient, and as a result thereof, he suffered injury to his back/lumbar spine. 2) Claimant was an employee of St. John's Mercy Medical Center (Employer). 3) Venue is proper in the City of St. Louis. 4) Employer received proper notice.

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Injury No. 07-123519

5) The Claim was filed within the time prescribed by the law.

6) At the relevant time, Claimant earned an average weekly wage of 905.26, resulting in applicable rates of compensation of 603.51 for total disability benefits and $389.04 for permanent partial disability benefits.

7) Employer paid temporary total disability (TTD) and temporary partial disability (TPD) benefits in the amount of $3,693.59, representing a period of time from December 28, 2007 to July 7, 2008, or 9 2/7 weeks at a rate of 557.08.

8) Employer paid medical benefits totaling 24,105.57.

9) If the surgery on the back by Dr. Levy is related and compensable, the parties agree that the date of January 26, 2010 is the correct date of maximum medical improvement (MMI). If the back surgery by Dr. Levy is not found to be related, then the Employer alleges that the correct MMI date is August 13, 2008, per Dr. Cantrell.

10) The parties agree that there was an underpayment of TTD/TPD totaling $430.87 for the period of time of December 28, 2007 to July 7, 2008, which should have been paid if the correct rate of $603.51 had been used for the payment of benefits during that time.

ISSUES:

1) Is the back surgery performed by Dr. Levy, and all of the medical treatment after Claimant's release by Dr. Cantrell, as well as any resultant disability, medically causally related to his accident at work for Employer on December 24, 2007?

2) Is Claimant entitled to payment for past medical expenses in an amount to be determined?

3) Is Employer responsible for providing future medical care for this injury?

4) Is Claimant entitled to additional temporary total disability (TTD) benefits from December 5, 2009 to January 26, 2010, or 7 4/7 weeks at a rate of 603.51 for a total of 4,568.57?

5) What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

6) What is the liability, if any, of the Second Injury Fund?

7) Was Claimant terminated for post-injury misconduct under Mo. Rev. Stat. § 287.170.4?

8) Is Claimant entitled to a finding of dependency and Schoemehl benefits pursuant to Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900 (Mo. 2007)?

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EXHIBITS:

The following exhibits were admitted into evidence:

**Employee Exhibits:**

1. Certified records of the Missouri Division of Workers' Compensation for Claimant in Injury Numbers 92-096720, 93-139993, 96-122093, 98-002237, 98-029457, 03-018982, 07-089167, and 07-123519
2. Certified correspondence from Claimant's attorney to Employer, dated January 27, 2010, requesting statements and providing a copy of the original Claim for Compensation
3. Deposition of Dr. Robert Poetz, with attachments, dated March 22, 2016
4. Deposition of Mr. Gary Weimholt, with attachments, dated August 13, 2012
5. Certified copy of Claimant's Social Security disability file and Social Security disability Award dated September 21, 2011
6. Deposition of Mr. William Beavers dated June 11, 2010
7. Deposition of Mr. William Beavers dated May 19, 2016
8. Certified medical treatment records of St. John's Mercy Medical Center
9. Certified medical treatment records of Dr. James Coyle/Midwest Spine Surgeons
10. Certified medical treatment records of Dr. Nabil Ahmad
11. Certified medical treatment records of Orthopedic & Sports Medicine, Inc. (Dr. Russell Cantrell)
12. Certified medical treatment records of Alternative Health & Pain Center (Dr. Richard Novak)
13. Certified medical treatment records and bills of Anderson Hospital, Maryville, IL
14. Certified medical treatment records of University Club Medical
15. Certified medical treatment records of Dr. Armond Levy
16. Certified medical treatment records and bills of SSM St. Clare Health Center
17. Certified medical treatment records and bills of SSM Physical Therapy
18. Certified medical treatment records and bills of Family Care Specialists (Dr. Dean Schueler)
19. Certified medical treatment records of Millennium Pain Management, LLC (Dr. Kevin Coleman)
20. Certified medical treatment records of Cedar Imaging
21. Certified medical treatment records and bills of Marquette General Family Medicine (Drs. David Shahbazi and Hnan Sharif)
22. Certified medical treatment records and bills of Marquette General Health System
23. Certified medical treatment records and bills of U.P. Rehabilitation Medicine Associates, P.C. (Dr. Carl Eiben)
24. Certified medical treatment records and bills of U.P. Superior Vascular Interventional Specialists (Dr. Christopher Mehall)
25. Certified medical treatment records of Denali Healthcare
26. Receipts for payments made by Claimant for co-pays and "Caregiving Services"
27. Medical treatment records and bills from UP Health System Marquette/DLP Marquette Physician Practices, Inc.
28. Certified medical treatment records of St. Anthony's Medical Center

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1. Certified medical treatment records of Premier Care Orthopedics (Dr. Lawrence Kriegshauser)

1. Certified medical treatment records of St. Anthony's Medical Center

1. Certified medical treatment records of Premier Care Orthopedics (Dr. Ravi Shitut)

1. Medical treatment records of Family Care Specialists (Dr. Dean Schueler)

1. Certified medical treatment records of West County Neurological Surgery, Inc. (Dr. Peter Yoon)

1. Pharmacy records and bills from various pharmacies, including certified pharmacy records and bills from Walgreens

1. Various correspondence from Claimant's attorney to Employer/Insurer's attorney requesting additional medical care

1. Withdrawn by Claimant prior to admission

1. Withdrawn by Claimant prior to admission

1. Summary of medical bills at issue in this case

1. Joint Trial Stipulations by the Employee, Employer and the Second Injury Fund

1. Medical bills of DLP Marquette Physician Practices, Inc.

1. Medical treatment records of Neurospinal Surgery, P.C. (Dr. J.A. Marchosky)

**Employer/Insurer Exhibits:**

A. Deposition of Dr. Russell Cantrell, with attachments, dated January 15, 2014

B. Deposition of Dr. James Coyle, with attachments, dated May 20, 2014

B-1. Videotaped deposition of Dr. James Coyle dated May 20, 2014

C. Deposition of Mr. James England, with attachments, dated August 21, 2016

D. Employer's Personnel Action Forms for Claimant

E. Excerpts of Employer's Human Resources Policy & Procedure Manual

F. Employer's Employee Counseling Reports for Claimant

G. Assorted medical treatment records dated prior to December 24, 2007

H. Medical treatment records of University Club Medical from 2008

I. Assorted medical treatment records from December 2009

**Second Injury Fund Exhibits:**

Nothing offered or admitted at the time of trial

**Notes:**

1) Some of the deposition exhibits were admitted with objections contained in the record. Unless otherwise specifically noted below, the objections are overruled and the testimony fully admitted into evidence.

2) Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on July 15, 2019. No additional markings have been made since their admission on that date.

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Claimant raised objections at the time of trial to Employer's inclusion of Issue 7, the post-injury misconduct defense, as a way of mitigating Employer's exposure for the claimed additional period of temporary total disability. Claimant argued that as it is an affirmative defense, it should have been affirmatively pled in the Answer by Employer, and it was not. During an extensive discussion on the record regarding Claimant's objection, I learned that this issue was first raised by Employer during Claimant's deposition in 2010. The parties agreed that it was also discussed, in detail, during a mediation conducted by another Judge over a year prior to this trial. Although Claimant's attorney argued that he was somehow prejudiced by the lack of the affirmative pleading, it became clear to me that he made no demands for production of witnesses or other relevant information at least in the last year since the mediation, if not longer. Claimant was offered the opportunity to continue the trial to conduct additional discovery, and cure any perceived prejudice, but he chose, instead, to proceed with the trial on this date. Accordingly, I find that Claimant was not prejudiced by the lack of the affirmative pleading of the post-injury misconduct defense by Employer in their Answer.

Therefore, the record should reflect that I allowed Employer to amend their Answer at the time of trial by interlineation to include the post-injury misconduct defense, and **OVERRULED** Claimant's objection to the inclusion of that issue in this case.

My review of the transcripts of the various depositions in this case revealed a myriad of objections raised by the various parties. I also found, and was particularly troubled, that in some instances, as in Exhibit 4, many such objections were included in sections of the deposition where the attorneys simply traded barbs, argued and insulted each other. Had this occurred in a trial setting, it certainly would not have been tolerated and would have been stopped. It is unfortunate that it occurred during depositions without a Judge present to curtail this kind of behavior. In any event, I was not persuaded to, specifically, sustain any of the objections, and, instead, have allowed all of the testimony of the witnesses, as well as the commentary and behavior of the attorneys to be included in the record of evidence in this case.

Based on a comprehensive review of the substantial evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational opinions and depositions, the medical records and bills, the testimony of Employer's witness, and the other documentary evidence, as well as my personal observations of Claimant and the other witness at hearing, I find:

1. **Claimant** is a 51-year-old, currently unemployed individual, who was working as a nurse for St. John's Mercy Medical Center (Employer), on the date of his accident, December 24, 2007. He was 39 years old at the time of his accident in 2007.

1. **Claimant** was previously married to Jennifer Wasser from May of 2000 to January of 2002. That marriage ended in divorce. He has no children. For the last 14 years, Claimant has been in a relationship with his partner, Arthur Schon. They live together

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in a house in Michigan, and although they are not married, Claimant said that he considers Mr. Schon to be his spouse. He said that they have exchanged personal vows, like a marriage, and he is like a common law spouse. Claimant testified that they completely financially support each other, with joint income and joint expenses, and Claimant considers Mr. Schon to be his dependent. He said that Mr. Schon takes care of him and does "everything" around the house. Mr. Schon is not working because of degenerative disc disease of the neck from carrying a mailbag. Claimant confirmed that there was no legal reason for them not being married, rather, it was their personal choice. He said that they had both had prior marriages and decided not to be married anymore.

3) In terms of his education, Claimant is a high school graduate from the Grandview R-2 School District and obtained an Associate's Degree in Applied Science in Nursing from Jefferson College in Hillsboro, Missouri.

4) Claimant's work history began with some hay baling and work study while at Jefferson College. He worked as a grocery store checker at Schnucks, without any problems. He worked for 12 1/2 years as a general medical nurse at St. Anthony's Medical Center, where he said that he had some self-imposed restrictions, and also worked for a time at Gambro Dialysis, as a dialysis nurse without any problems. Claimant denied having any permanent restrictions placed on him prior to his 2007 injury.

5) Claimant testified that he was diagnosed with GERD and irritable bowel syndrome since 1994. He said that he has burning indigestion and severe diarrhea on account of these conditions. He also described a hiatal hernia, so the acid goes up into his esophagus from his stomach. He testified that he has taken a probiotic every day and has also taken Prilosec to address these conditions. Claimant described flare-ups one to two times a month. He said that it affected his work because he would have to go to the bathroom more urgently after eating, and take more breaks, requiring other co-employees to cover for him.

6) Medical treatment records of Dr. Dean Schueler at Family Care Specialists (Exhibit 32) document a visit on October 29, 2001, when Claimant was complaining of abdominal pain and some diarrhea due to irritable bowel syndrome, stomach problems due to gastritis, and a history of anxiety, as well as migraines. He denied any other major problems. Claimant was taking various medications for those complaints, including Prevacid for the dyspepsia, Zoloft for the anxiety and Vicodin for the migraines. Claimant continued seeing Dr. Schueler for various complaints/conditions, and on June 13, 2003 asked about starting an antidepressant, since he did not feel the Zoloft was working as it should. He was started on Effexor and reported on July 7, 2003 that it was working and he wanted to remain on that medication for his depression.

7) According to the records of the Missouri Division of Workers' Compensation (Exhibit 1), Claimant sustained a number of, apparently, minor injuries while working for St. Anthony's Medical Center. He injured his right thumb with a needle stick on

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July 24, 1992 (Injury No. 92-096720); sustained a lumbar strain bending over to fix an IV pump on October 23, 1993 (Injury No. 93-139993); developed right hip and thigh pain while helping to transfer a heavy patient on October 10, 1996 (Injury No. 96-122093); strained his wrist while helping to transfer a patient on January 12, 1998 (Injury No. 98-002237); and strained his left shoulder while transferring a patient on March 28, 1998 (Injury No. 98-029457). Of all of those injuries, the records show that Claimant was paid 5/7 weeks of TTD for the October 23, 1993 lumbar strain and had medical treatment for low back pain that occasionally went into the left buttock, but no leg pain. There is no indication that Claimant received any settlements or was paid any permanent partial disability for any of these injuries. Prior to the December 24, 2007 injury, that is the subject of this Claim, there were two additional Reports of Injury noting a left index finger needle stick when he worked at Gambro Healthcare on March 8, 2003 (Injury No. 03-018982) and a right index finger needle stick when he worked at St. John's Mercy Medical Center on September 18, 2007 (Injury No. 07-089167). Again, there was no indication of lost time from work, extensive medical treatment or permanent partial disability on account of these injuries.

8) On account of the October 23, 1993 low back injury described above, Claimant received medical treatment at St. Anthony's Medical Center (Exhibits 30 and G) on that same date for low back pain and pain into the left buttock. He was diagnosed with a lumbar strain.

9) As a result of the March 28, 1998 left shoulder injury, Claimant initially received medical treatment for this left shoulder at St. Anthony's Medical Center (Exhibit 28), where he was diagnosed with a left shoulder strain and given some physical therapy in April 1998. Claimant was also examined by Dr. Lawrence Kriegshauser at Premier Care Orthopedics (Exhibit 29) on May 6, 1998. Although his shoulder was improved with the treatment he had at St. Anthony's, Claimant still reported pain in the shoulder. Dr. Kriegshauser diagnosed a left rotator cuff strain with secondary tendinitis and subacromial bursitis. He administered a cortisone injection and recommended follow-up in a couple weeks to see if the complaints had subsided. When Claimant followed up with Dr. Kriegshauser on May 20, 1998, he reported full range of motion and excellent strength, with only occasional muscle soreness. He released Claimant to return to full-duty work and provided no further treatment for the left shoulder.

10) Claimant testified that as a result of the left shoulder injury, he experienced self-imposed guarding, which made him slower with some work activities, such as moving patients.

11) Claimant testified that he suffered from low back complaints in the late 1990s, that also slowed him down, and resulted in more self-imposed guarding. Medical treatment records from St. Anthony's Medical Center (Exhibits 30 and G) document a course of physical therapy he received for lumbar derangement syndrome from July 2, 1999 to July 30, 1999. Claimant provided a history of waking up on June 11, 1999 with low back pain for no apparent reason. His low back pain complaints were on the left greater than right and into the left gluteal region. X-rays taken on June 23, 1999

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showed a minimal degree of levoscoliosis, and a CT scan of the lumbar spine taken on that same date showed a centrally herniated disc at L5-S1 and a central focal disc bulge at L4-L5 (Exhibit 30).

12) Claimant was examined by Dr. Ravi Shitut at Premier Care Orthopedics (Exhibits 31 and G) on July 20, 1999 in connection with his low back pain. He gave a history of waking up with the pain without any specific injury, with complaints initially in the low back and left buttock, then, over the next few days, aching into the left posterior thigh to mid-thigh area. Claimant provided the history of his prior 1993 work injury with complaints of intermittent left buttock pain since then. He had been off work for the back complaints for the prior month, but his complaints had significantly subsided. Dr. Shitut diagnosed an acute aggravation of the central disc herniation at L5-S1. He recommended that Claimant finish his course of physical therapy, but did not think any other treatment was necessary at that time. Dr. Shitut expected that Claimant would have some aggravations and increased complaints, "which is typical of the kind of problem that he has," but he hoped that it would not be aggravated to the point of requiring surgery.

13) Chiropractic treatment records of Dr. Richard Novak, D.C. at the Alternative Health & Pain Center (Exhibits 12 and G) show treatment Claimant received in that office, starting on July 30, 2002. On that date, Claimant reported low back pain that radiates down the left leg, which he occasionally has, dating back to 1998. On the pain chart, Claimant drew stabbing and aching pain from his low back, through his left buttock and down the back of his left leg to his knee. He reported similar complaints from the low back to the left buttock on October 8, 2004, for which he sought chiropractic treatment. The records also show a course of treatment for pain in his neck and down his right arm from December 15, 2006 to January 9, 2007.

14) Claimant testified that he began working for Employer on October 6, 2003 as a clinical floor nurse. He said that he worked in that position for approximately three years, but, then, transferred to a staff nurse position in the dialysis unit as a result of neck pain and pain running down his arm. He switched jobs because the dialysis unit job only required him to care for two patients at a time, so it was less work for him and entailed less lifting, as well. He said that he was having some pain with lifting patients, so he switched to the dialysis job for the slower pace and less lifting with fewer patients. As a general nurse, he had to lift lots of people, but as a dialysis nurse, his duties entailed getting assignments, taking vitals, setting up the dialysis machines, and watching the machines run for three to four hours per patient, for two sets of two patients per day.

15) Claimant testified that he developed neck and right arm pain from falling asleep on his arm on the table on a plane. Medical treatment records of Dr. Peter Yoon at West County Neurological Surgery, Inc. (Exhibit 33) begin with a visit on January 31, 2007, when Claimant complained of neck and right arm pain for the last several months, with the current exacerbation going on for about three weeks. He already had three steroid injections, but still had pain radiating to the elbow. He had a cervical MRI that showed a herniated disc at C5-C6, but that was mainly going to the left,

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while all of his complaints were to the right arm. After a new MRI that showed some degenerative disc disease with spurring at C5-C6 and a myelogram that showed no significant pathology in the cervical or thoracic region, Dr. Yoon concluded that there was no component of radiculopathy to his pain. By March 7, 2007, Claimant was now claiming severe pain that was radiating bilaterally, but Dr. Yoon did not think there was any surgical solution for these complaints.

16) On March 22, 2007, Claimant sought a neurosurgical consultation with Dr. J.A. Marchosky at Neurospinal Surgery, P.C. (Exhibit 41) for his gradually worsening cervical pain, with pain, numbness, paresthesias and weakness in the right upper extremity. Dr. Marchosky diagnosed C5-C6 degenerative disc disease, with a herniation, spondylosis and radiculopathy. He recommended surgery. On April 4, 2007, Dr. Marchosky took Claimant to surgery at St. Luke's Hospital (Exhibit 41). He performed C5-6 anterior partial vertebrectomies, microdissection of C5-6 with discectomy and spondylectomy, and C5-C6 tricortical structural allograft fusion with anterior Synthes plate instrumentation. By May 17, 2007, Claimant reported that his preoperative symptoms had cleared, and Dr. Marchosky released Claimant to return to full work without restrictions on May 22, 2007. In a final note dated July 17, 2007, Claimant reported lifting a heavy patient at work and having a new onset of neck discomfort. He also had pain in both arms with numbness and paresthesias. Dr. Marchosky thought Claimant had a mild cervical strain, but also thought he may be developing median nerve entrapment neuropathy at the wrists, right greater than left. He took Claimant off work for a week, prescribed medications and recommended dorsal wrist splints at night.

17) Following the neck surgery, Claimant testified that he had limited range of motion in his neck. He estimated that he had about 60% of normal range of motion. He also had some pins and needles sensations in the right arm, down to the fourth and fifth fingers, but he said the aching in the arm was gone.

18) Medical treatment records of Dr. Mark Scheperle at University Club Medical (Exhibits 14 and G) begin on August 25, 2004 with complaints of a pulled muscle in his upper back for which he was diagnosed with a trapezius strain. On December 22, 2005, Claimant presented to Dr. Scheperle with low back pain. He reported an old injury when his back popped out and said that he woke up hurting two days prior to this visit. He reported some radiation to his left buttock, but no numbness or tingling in the extremity. He was given Valium and Vicodin. Claimant followed up on March 1, 2006 for his depression, low back pain, GERD and mid back/shoulder pain. He was, again, prescribed those same two medications. The note from October 4, 2006 records a visit for neck and back pain, for which he is given medication, and there is another mention of a follow-up for back pain and depression on November 6, 2006. By early 2007, Claimant begins getting diagnostic testing and focused treatment from specialists for his neck complaints, as described above.

19) Despite switching nursing positions, Claimant testified that he had no problems with lifting before the last injury. He said that he was also awake, alert and attentive prior to the last injury, all of which is needed for patient care. He worked full-time for

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Employer leading up to the December 24, 2007 accident and had no prior work restrictions from any physician, just self-imposed restrictions, such as always getting help with lifting. He testified that he was able to perform his job, before the last injury, without any accommodations, and even noted that it was a good place to work and he liked the people in his unit.

20) Claimant testified that on or about December 24, 2007, he was attempting to lift and move a 200-pound patient up in bed with a co-worker, but the patient did not help at all, and he felt a grinding pain in his low back with pain down his legs. Claimant described that this pain was different from what he experienced before, in that he previously had occasional low back pain more than a month apart at a time, at a pain level of 3-4, while this was a level of 10. He also denied having any prior radiculopathy, whereas now he had radiating pain down his legs, left worse than right. Claimant reported the injury to the nursing shift supervisor right after it happened, and they took him to the Mercy Emergency Room.

21) Despite denying having prior left leg pain or radiculopathy, the prior records show periodic treatment for low back pain and pain into the left buttock and left leg.

22) Medical treatment records of St. John's Mercy Medical Center (Exhibit 8) document Claimant's admission to the emergency room on December 24, 2007 with complaints of low back pain and pain down both legs. He provided a consistent history of his injury at work earlier that day. He was diagnosed with acute low back pain and left leg sciatica, for which he was prescribed medication and taken off work. He followed up with Unity Corporate Health (Exhibit 8) from December 26, 2007 until January 2, 2008. He was diagnosed with a lumbar strain and there was a question of whether he herniated a disc given his complaints to the left hip/upper thigh and into the left leg. Claimant, again, provided a consistent history of the work injury, but reported that he "really never had back problems before." When his complaints did not markedly improve with conservative treatment, he was referred for further treatment to a specialist.

23) Claimant came under the care of Dr. James Coyle (Exhibit 9) on January 7, 2008. Claimant provided a consistent history of his work injury, as well as of his prior low back injury from 1998. Dr. Coyle diagnosed a lumbar sprain with left leg radiculopathy. He ordered an MRI of the lumbar spine, recommended that Claimant start aquatic therapy and noted that he could continue to work light duty as the unit secretary. He opined that Claimant's work was the prevailing factor in causing his current symptoms.

24) The MRI of Claimant's lumbar spine was taken at St. John's Mercy Medical Center (Exhibit 9) on January 11, 2008. It showed degenerative disc disease at L5-S1 with a broad-based central disc protrusion which causes anterior compression of the thecal sac. Claimant began a course of physical therapy on January 18, 2008 at St. John's Mercy Sports & Therapy (Exhibit 8), and returned to see Dr. Coyle on January 28, 2008. Dr. Coyle found a negative straight leg raise test and symmetrical reflexes, but continued pain to the left leg with SI joint tenderness on the left. He

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recommended continued physical therapy and referred Claimant for an epidural steroid injection.

25) The medical treatment records of Dr. Nabil Ahmad (Exhibit 10) show that Claimant had his first lumbar epidural steroid injection on January 30, 2008, which provided some relief, so he had a second one on February 18, 2008 involving both S1 nerve roots. He also had trigger point injections on February 14, 2008.

26) Claimant returned to Dr. Coyle (Exhibit 9) on February 25, 2008, reporting continued left buttock, posterior thigh and calf pain, radiating to the left foot. Dr. Coyle found intact motor strength and symmetrical reflexes. He recommended continued conservative treatment for Claimant's low back complaints, but noted that if he does not improve with this, consideration may need to be given to a lumbar decompression and arthrodesis at L5-S1. Dr. Coyle recommended that he continue to see Dr. Ahmad for the conservative treatment, and said that he would see Claimant back if Dr. Ahmad felt surgical consideration was warranted. He also recommended that Claimant continue working on a daily basis, as he had been.

27) Despite having just seen Dr. Coyle the same day, St. John's Mercy Medical Center (Exhibit 8) records show that Claimant, also, presented at the emergency room on February 25, 2008, complaining that he had cortisone shots and has called Dr. Ahmad multiple times since, but he is not doing anything for Claimant's ongoing low back pain. Claimant was diagnosed with sciatica and given Darvocet for the pain.

28) Claimant continued treating with Dr. Ahmad (Exhibit 10). On February 29, 2008, Dr. Ahmad noted that Claimant only had minor relief of his symptoms from the first two epidural steroid injections, so he decided to hold off on the third. He ordered additional physical therapy, which Claimant attended at St. John's Mercy Sports & Therapy (Exhibit 8), as well as continued light-duty work and medications. When Claimant followed up on March 20, 2008, Dr. Ahmad noted ongoing low back pain. He had ordered a myelogram of the low back to ensure there was nothing else going on, and noted that the myelogram showed only mild degenerative changes without appearing to cause significant thecal sac or nerve root compromise. Dr. Ahmad agreed that there was nothing surgical there and surmised that the complaints were from a piriformis strain and the sacroiliac joints. He did not believe Claimant's complaints were radicular in nature and recommended continued therapy and medications. By March 28, 2008, Claimant was complaining of low back pain, but no radicular symptoms. He was improving with therapy and medications, so Dr. Ahmad recommended continuing both, with gradually decreasing work restrictions. Since he did not believe Claimant had any lumbosacral radiculopathy, he did not think further injections were needed. He diagnosed low back pain secondary to myofascial pain, lumbar strain and sacroiliac joint dysfunction.

29) In the midst of this authorized treatment for his low back, Claimant also saw his own physician, Dr. Mark Scheperle at University Club Medical (Exhibit 14) on March 12, 2008 and April 3, 2008 for his reported low back pain from his 2007 work injury.

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30) Claimant was, next, examined by Dr. Russell Cantrell at Orthopedic & Sports Medicine, Inc. (Exhibit 11) on April 7, 2008, for the purpose of evaluating and treating Claimant's ongoing lumbar spine pain from his work injury of December 24, 2007. Dr. Cantrell took a consistent history of the work injury and of Claimant's prior problems and diagnoses in the low back. He reviewed the medical treatment records and performed a physical examination. He opined that Claimant's subjective pain complaints were mechanical in nature, and given his positive response to the therapy and sacroiliac injections, he believed a large component of his complaints were sacroiliac in origin. He did not believe Claimant had any focal disc herniations attributable to the December 24, 2007 work injury, and, instead, had a lumbosacral sprain, for which he recommended work-conditioning therapy and work restrictions.

31) Claimant continued to attend therapy at St. John's Mercy Sports & Therapy (Exhibit 8) through June 27, 2008 and continued to see Dr. Cantrell (Exhibit 11). On May 7, 2008, Dr. Cantrell noted that Claimant had improved strength with the therapy, and by June 10, 2008, he recorded that Claimant reported a decrease in his pain level. Because he was showing improvement with therapy, Dr. Cantrell advanced him in therapy and recommended a functional capacity evaluation before his next visit. The functional capacity evaluation taken on July 1, 2008, showed that Claimant was capable of functioning in the medium work demand level. He was noted to have demonstrated consistent performance throughout the test and no overt pain behaviors.

32) When Claimant next saw Dr. Cantrell (Exhibit 11) on July 8, 2008, Claimant reported that he had a worsening of his pain complaints subsequent to the functional capacity evaluation, for which he had to miss work, but he was not reporting radicular complaints. Dr. Cantrell kept Claimant on restricted work and provided a prescription for the flare-up of his pain complaints in the low back. At his next examination on July 21, 2008, Claimant reported no change in his pain complaints. Dr. Cantrell was going to put him in a half-day work hardening program, but Claimant said that he was going to be gone for two weeks on vacation in Michigan cleaning up a property, so he would not be able to attend the work hardening anyway. Claimant requested that he be allowed to resume his regular work, despite his complaints, because he felt capable of engaging in most normal activities. Therefore, Dr. Cantrell provided some prescriptions and released him to regular duty activities as of this date. Finally, on August 13, 2008, Dr. Cantrell noted that Claimant was back to full-duty activities, only had a pain level of 1-2 out of 10, and had only been using Tylenol and Celebrex on a daily basis. Dr. Cantrell recommended an ongoing home exercise program and use of Tylenol on an as-needed basis, as well as short-term use of Celebrex. He released Claimant from care and placed him at maximum medical improvement for the work injury.

33) Claimant testified that throughout his medical treatment, provided by Employer after the injury, he had sharp back pain and pain into his legs. He said that the injections from Dr. Ahmad provided only mild relief, but did not cure or fully relieve his symptoms. He testified that he was working as the unit secretary during this treatment, but any cough or sneeze sent jolting pain throughout his whole body.

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Claimant admitted that the additional physical therapy from Dr. Cantrell started slowly helping, but he was still taking Darvocet for pain and Effexor for sleep/pain.

34) Claimant raised issues with the accuracy of the results from the functional capacity evaluation. He said it was a controlled setting in one room with equipment, not like his real work setting. He did not believe it simulated any of the tasks he would do as a nurse, and he was allowed to take as many breaks as he wanted, which is not consistent with what he is allowed to do in his regular job. He also raised issues with the fact that he was asked to do tasks, even though it caused him pain.

35) Claimant testified that after he was released by Dr. Coyle, he asked for more treatment, and after he was released by Dr. Cantrell, he asked for more treatment. In fact, he said that he had at least five conversations with Employer, after his release by Dr. Cantrell, asking for more treatment. He agreed that his pain level was down to a 2-3 out of 10 when released by Dr. Cantrell, but he still had the radiating pain down both legs, left worse than right, and he said that his pain got back up to a 5-6 out of 10 on a good day, or even higher on a bad day. Claimant also reported that he was awake 2-3 times per night because of pain. When Employer did not authorize any more treatment, Claimant said that he sought medical care on his own for his ongoing complaints.

36) After his release from care by Dr. Cantrell, Claimant said that he returned to the dialysis unit for Employer, but he did not perform his regular duties every shift. He said that co-workers assumed many of the lifting duties and other nurses, except for Belinda, would help him out. He estimated that he did 20% of the lifting and everyone else pitched in to help with the rest. He testified that he could take breaks whenever he needed. He said that he could not have continued working in the unit without their help.

37) In connection with this injury, Employer paid $24,105.57 in medical benefits. Employer, also, paid Claimant temporary total disability (TTD) and temporary partial disability (TPD) benefits in the amount of $3,693.59, representing a period of time from December 28, 2007 to July 7, 2008, or 9 2/7 weeks at a rate of $557.08.

38) After his release by Dr. Cantrell, and before his employment with Employer ended, Claimant saw his own physician, Dr. Mark Scheperle at University Club Medical (Exhibit H) on June 17, 2008, September 9, 2008, October 6, 2008 and December 22, 2008. While there are references in the last two visits to frank cervical problems that the doctor relates to his prior cervical fusion, there is absolutely no clear indication in any of those visits that Claimant was having any low back pain or problems. No low back pain was reported in any of the chief complaint sections, there were no abnormalities noted on the physical examinations regarding the low back, and there were no diagnoses regarding the low back either.

39) Claimant's employment with Employer ended when he was terminated on July 20, 2009. Claimant testified that prior to the 2007 injury, he was tardy due to his neck complaints, and after the 2007 injury, he was tardy due to back complaints. St.

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John's Mercy Medical Center/Hospital Employee Counseling Reports (Exhibit F), confirm that he was counseled for absenteeism and tardiness in early December 2007 for instances of each infraction in the months leading up to that time. He was ultimately terminated because of an encounter he had with a co-worker, Belinda. Claimant said that he and Belinda were in the unit alone, and he thinks she was frustrated because he was not helping her. They had a disagreement over who was going to do the board, which culminated in an argument and Claimant telling her to "get the fuck out of my face." Both he and Belinda were fired for using the F-word.

40) Mr. Edward Mahan, Employer's Senior Human Resources Manager at Mercy Hospital East, testified live at the hearing in this case. He has worked in this position for Employer for 13 years. Referring to the St. John's Mercy Human Resources Policy & Procedure Manual (Exhibit E), Mr. Mahan noted that it was categorized as an intolerable offense to use profane, abusive, insulting or threatening language within the hearing of a patient and/or visitor. The consequences for an intolerable offense is discharge. The Personnel Action Form (Exhibit D) dated July 20, 2009, confirms that Claimant was involuntarily terminated as of that date, for improper conduct/abusive language. The report describes that Claimant used foul language (the F-word) that was directed at another employee when they were at the nurses' station, with patients, visitors, other nurses and a transporter in the department. When Claimant was confronted about the incident, he admitted that he had made a mistake. Although the tardiness and absenteeism reports were in his file, Mr. Mahan confirmed that the termination was solely for the abusive language.

41) Claimant disputes that there were any patients or visitors there when he used the offensive language, so he disputes that he violated that specific provision of the policy manual. Mr. Mahan confirmed that he did not witness the incident so he does not know if there were patients/visitors there or not. However, Claimant's supervisor noted in the report that there were, and the co-worker, Belinda, also apparently said that it was within the hearing of patients/visitors.

42) After Claimant was terminated by Employer, he testified that he was off work for five to six weeks, but, then, he went to work at DaVita Dialysis, essentially doing the same job responsibilities as he had done for Employer, except that he had no help from co-workers and had six patients at a time. He testified that he got the job there because he liked working as a nurse and he had to have a job. He did not recall any new accidents at DaVita, but noted that he had temporary exacerbations of his complaints. He said that he eventually quit working there in December 2009, because the pain was too bad and he could not deal with it anymore. Claimant believed that all the complaints he had, while working at DaVita, were from the 2007 injury.

43) After the conversations Claimant allegedly had with Employer asking for more treatment, after he was released by Dr. Cantrell, Claimant admitted that he did not contact Employer in late 2009 before getting back surgery. Claimant filed his Claim for Compensation (Exhibit 2) on January 27, 2010, including in it a demand for more benefits and medical treatment. Correspondence from Claimant's attorney (Exhibit 35) begins on February 14, 2010 with a letter to the insurance adjuster

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indicating that his client had back surgery and requesting more medical care under the Workers' Compensation case. There are numerous other letters beginning on February 28, 2010 (4 in 2010, 1 in 2011, 1 in 2012, 1 in 2015 and 1 in 2017) from Claimant's attorney to Employer's prior and current attorney, again, requesting medical care for Claimant.

44) Medical treatment records from Dr. Mark Scheperle at University Club Medical (Exhibits 14 and I) document a visit on December 7, 2009, when Claimant reported a complaint of lower back pain. This is his first visit for low back pain since the April 3, 2008 exam. The note indicates, "pain began couple of weeks ago progressively worse - last episode 07." The doctor noted his prior MRI showing disc pathology at L4-5 and L5-S1. He diagnosed acute low back pain with radiculopathy. He prescribed medication and sent Claimant for a new lumbar spine MRI.

45) Claimant presented to Anderson Hospital (Exhibits 13 and I) on December 8, 2009 for a lumbar spine MRI with complaints of back pain with radiculopathy from a known disc protrusion/bulge. The MRI showed a minimal diffuse disc bulge at L4-5 and large central disc protrusion at L5-S1. The doctor compared this MRI to the one from January 11, 2008 and opined that the L5-S1 protrusion had approximately doubled in size, but was still not causing obvious lateral recess narrowing. The mild-to-moderate neural foraminal stenosis was unchanged.

46) The medical bill for the MRI at Anderson Hospital (Exhibit 13) was $2,189.00.

47) Chiropractic treatment records of Dr. Richard Novak, D.C. at the Alternative Health & Pain Center (Exhibits 12 and I) show additional treatment Claimant received in that office on December 8 and 10, 2009. On December 8, 2009, Claimant reported low back pain radiating into both legs, down to his toes. On the Symptom Questionnaire from that date, when asked how the condition developed, Claimant answered, "pushing a patient on a stretcher, pushing dialysis machines & portable water." The term "Work Accident" was underlined and a question mark was placed over it. He reported the initial onset of complaints in 1998 and listed the 2007 injury, "pulling a patient up in bed," as a significant accident from the past.

48) Claimant came under the care of Dr. Armond Levy at Greater St. Louis Neurosurgical Specialists (Exhibits 15 and I) on December 16, 2009. In anticipation of this examination, Claimant filled out a Comprehensive Health History form dated December 14, 2009, in which he gave a history of the December 2007 work injury, noted that he was on "work comp" from December until August 2008 "for this occurrence," but then noted that his problems, for which he was now seeking treatment, began, "end of November, constant pain unless I'm not working." Dr. Levy recorded complaints of lumbar spine pain that began approximately two months prior, with a gradual onset, and pain radiating into both legs, with associated numbness and tingling in both feet. There was no reference to the 2007 work injury in his initial note. The physical examination showed normal strength, tone, bulk (no atrophy) and reflexes in the lower extremities, with a negative straight leg raising test.

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Dr. Levy diagnosed a moderately large herniated disc at L5-S1 without myelopathy and recommended a posterior microdiscectomy on the left at L5-S1.

49) The records of SSM St. Clare Health Center (Exhibit 16) confirm Claimant had pre-surgical testing on December 16, 2009, and, then, was taken to surgery by Dr. Levy at that facility on December 18, 2009. On the Admission Records for each visit, "NO" is entered in the box entitled "ACCIDENT WK. REL." Dr. Levy performed a left L5-S1 lumbar microdiscectomy with use of operating microscope.

50) Claimant followed up with Dr. Levy (Exhibit 15) after surgery on December 24, 2009, noting that his pre-operative symptoms were unchanged and Claimant was not satisfied with his post-op course. The doctor prescribed medications and physical therapy. By January 20, 2010, Claimant, again, reported no change to his pre-op symptoms, except he reported no back pain with pain into both thighs/calves and right arm paresthesias. Dr. Levy ordered new MRIs of the low back and neck to assess these ongoing complaints.

51) Claimant attended a course of physical therapy at SSM Physical Therapy (Exhibit 17) from December 30, 2009 to January 22, 2010. On December 30, 2009, he was reporting pain across both sides of his back, left greater than right, with occasional shooting pain into the left leg, but denied numbness/tingling into the legs. He gave a two-month history of these pain complaints, and, also, reported that the complaints started after transferring a patient on a stretcher at St. Anthony's Hospital. Over the course of this period of therapy, the records show occasional reports of decreased pain, but overall an increase in his low back pain complaints. Despite the therapy, by January 18, 2010, Claimant was reporting increased back pain, numbness/tingling into his legs and difficulty sleeping. He described it as "nerve pain" at a level of 7 out of 10. Claimant commented that he was ready to have a fusion.

52) The cervical and lumbar spine MRIs were performed at SSM St. Clare Health Center (Exhibits 15 and 16) on January 25, 2010. The cervical spine MRI showed mild foraminal narrowing at C3-4 secondary to uncovertebral joint hypertrophy and a left C3-4 disc extrusion without canal stenosis. The lumbar spine MRI showed a very small residual nonenhancing disc protrusion at L5-S1 and enhancing scar tissue at the anterior left lateral margin of the thecal sac at L5-S1 with mild mass effect on the anterior thecal sac.

53) On January 26, 2010, Dr. Levy (Exhibit 15) opined that the lumbar MRI "really looks pretty good" with only post-op changes, and the cervical spine looks fine with a solid fusion. He suggested an L5-S1 epidural steroid injection, but Claimant refused, saying that they did not help in the past. Instead he ordered lumbar and cervical physical therapy.

54) The medical bills of Dr. Armond Levy at Greater St. Louis Neurosurgical Specialist (Exhibit 15) show total charges of $4,000.00 for his medical treatment of Claimant. The medical bills of SSM St. Clare Health Center (Exhibit 16) show total charges of $18,763.60 for dates of service of December 16 and 18, 2009 and

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January 25, 2010. Of those charges, I note that $3,419.00 are specifically for the cervical spine x-rays and MRI on January 25, 2010, leaving $15,344.60, specifically for the lumbar spine treatment, allegedly related to the December 24, 2007 work injury. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

55) In terms of the progression of his low back pain complaints, Claimant testified that after the surgery by Dr. Levy, his complaints actually got worse. He said the surgery was not a success. From the time Dr. Cantrell released him until he had surgery, he described his back pain as intermittent, but after surgery, it was constant, with radiating pain into both hips and stabbing pain in the bottom of the left foot. Using a pain scale, Claimant testified that after Dr. Cantrell, he was at a 2-3 out of 10; went up to 5-6 out of 10 routinely while at DaVita; and, then increased to a 7-8 out of 10 routinely after the surgery with Dr. Levy. Claimant testified that the increased pain has necessitated ongoing pain management since his surgery, and he thinks his peptic ulcer is related to his use of all the medications he was taking for his pain complaints. In addition to medications, he had a TENS unit installed and has to have the battery changed after seven years, that he relates to his injury and ongoing pain. He has to see a doctor every six months for medications. Claimant also reported ongoing sleep problems, waking up at least three times per night with jolting pain if he rolls flat on his back, that he relates to the December 24, 2007 injury.

56) A review of the certified records of the Social Security Administration (Exhibit 5) show that Claimant applied for Social Security disability benefits on January 29, 2010. Claimant alleged disability and functional limitations referable to his lumbar degenerative disc disease, cervical spine/disc disease (numbness, tingling and pain in his arms), depression and ulcers. In addition to his medical treatment records, Claimant had a medical evaluation with Dr. Raymond Leung on May 27, 2010 that confirmed diagnoses in the cervical and lumbar spine, with reduced range of motion in each, but normal sensation and reflexes, no atrophy and no spasm. He had a psychological evaluation by Ashley Darling, PsyD, on October 23, 2010 that diagnosed major depressive disorder, recurrent, which Claimant stated began in 1994 and has been a significant problem since 2004 because of his medical conditions (neck and back). An Illinois Request For Medical Advice form filled out by Dr. B. Rock Oh on November 19, 2010 states, "Claimant's statements appear partially credible. Claimant's MDIs can be expected to produce some limitations in function, but the extent of limitation described by claimant in terms of comprehensive restrictions of every area of physical and mental functioning exceeds that supported by the objective medical evidence in file." Nonetheless, Claimant received a fully favorable decision granting him Social Security disability benefits on September 21, 2011, with a date of disability of December 4, 2009, for severe impairments related to degenerative disc disease of the lumbar or lumbosacral spine and depression. Interestingly, in the decision, I find no specific reference to the December 24, 2007 work injury, but there is a description of Claimant having complaints "after transferring a patient from a stretcher." Claimant has continued to receive Social Security disability benefits of $1,551.50 per month up to the current time.

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57) Claimant came under the care of a new primary care physician, Dr. Dean Schueler at Family Care Specialists (Exhibit 18) on January 27, 2010. Claimant reported neck and back pain and the need for pain pills. He said that he initially had low back pain radiating into his left hip and thigh, but now since surgery, he has pain across the whole back, and, now, down the right leg to the calf. He was diagnosed with lumbago, cervicalgia, peptic ulcer and anxiety. He was prescribed medications, including Darvocet. On February 17, 2010, Claimant told the doctor that Dr. Levy told him he should be able to return to work, but Claimant did not agree with that, indicating that he can barely walk. In the note dated February 23, 2010, Claimant provided the history of the 2007 injury, but said, "This bout began Thanksgiving weekend...pushes dialysis machines around and gets pain." Dr. Schueler noted that in his condition, he could not release him to work. Dr. Schueler started him on methadone and ordered a new round of physical therapy. Claimant continued seeing Dr. Schueler regularly throughout 2010 with basically the same complaints, diagnoses of lumbosacral disc degeneration and lumbago, among other things, and prescriptions for various pain medications and pain patches.

58) Claimant attended another course of physical therapy at SSM Physical Therapy (Exhibit 17) from March 3, 2010 until May 3, 2010 for both low back (lumbago) and cervical (cervicalgia) complaints. On March 3, 2010, Claimant was reporting basically the same complaints he had when he last attended therapy, and, also reporting that he had no relief from the prior round of therapy. He provided the updated history of the new MRIs and of the onset of neck pain with pain into the arm. Over this period of therapy, Claimant, again, basically showed no real improvement in function, nor any real decrease in his complaints. He reported little relief of his pain with the therapy and noted that the only thing that helps his pain is wearing the TENS unit at home. He also continued to have right arm pain and difficulty sleeping. The assessments from the therapist noted high subjective complaints of pain which limited his overall progress, as well as self-limited lumbar range of motion and cogwheeling.

59) Medical bills from SSM Physical Therapy (Exhibit 17) show total charges of 2,701.00 for the therapy from December 30, 2009 to January 22, 2010, and 11,016.00 for the therapy from March 3, 2010 to May 3, 2010. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

60) Medical treatment records of Millennium Pain Management (Exhibit 19) document an office visit on April 27, 2010, as a referral from Dr. Levy, for lumbar discography due to low back pain. Dr. Kevin Coleman assessed Claimant as having lumbar degenerative disc disease, status post L5-S1 microdiscectomy, with myofascial pain. He found that Claimant had negative discography at L1-2, L2-3 and L3-4, and positive discography at L4-5 and L5-S1. He ordered a post discogram CT scan that was carried out that same day at Cedar Imaging (Exhibit 20). The lumbar spine CT scan showed an annular tear across L4-5 and narrowed degenerative disc with leak into the canal at L5-S1 especially around the S1 left root.

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61) The records of Dr. Dean Schueler at Family Care Specialists (Exhibit 18) continue from January 18, 2011 to February 11, 2013. Although the records show intermittent treatment for various other conditions, Claimant continues to see the doctor for pain medications and follow-up for lumbar spine degeneration and cervicalgia, as well as anxiety. In general, his pain complaints are about the same throughout, and Claimant notes various functional difficulties with sitting too long, standing too much, or walking too far. His treatment with this physician ended on February 11, 2013, because Claimant reported that he was moving to Michigan on March 1st. Dr. Schueler kept him on methadone, and indicated that Claimant was still unable to work with the diagnosis of degeneration of the lumbar or lumbosacral disc. He indicated that he would check into medical marijuana.

62) Medical bills from Dr. Dean Schueler at Family Care Specialists (Exhibit 18) show total charges of $3,315.00 for treatment from January 27, 2010 to February 11, 2013. While the vast majority of the visits appear to be in connection with his low back complaints and medication refills, there are some that appear to be solely for other conditions, such as the March 14, 2011 visit for an earache, which would not be related at all to this injury. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

63) Medical treatment records from UP Health System Marquette Family Medicine (Exhibit 21) show treatment Claimant had there with Drs. Hnan Sharif and David Shahbazi beginning on April 11, 2013. Claimant established himself as their patient after moving to Michigan, so that they served as his primary care physicians. Claimant provided a history of his prior neck and low back surgeries and complaints. He was initially diagnosed with radicular low back pain and lumbar disc degeneration, but after Dr. Sharif reviewed his prior treatment records, he expressed concern about continuing to treat his back pain with the levels of narcotics and benzos that Claimant was taking. He recommended referral to Dr. Lehtinen for pain management and eventual weaning off some of the chronic pain medications. As Claimant continued to regularly treat with Dr. Sharif throughout 2013 and into 2014, he was also seeing Dr. Eiben for pain management, but Dr. Sharif was managing his pain medications. His diagnosis changed to chronic pain syndrome, and on June 16, 2014, there was a suggestion that there may be a large psychological component to the pain Claimant was experiencing. Counseling was suggested. Notes from 2014 into 2015 also began to document Claimant using marijuana on a daily basis for pain relief as the doctor began to taper his methadone and other pain medications. On July 29, 2015, Claimant's care was transferred to Dr. David Shahbazi, who took another extensive history of his back and neck problems, and his continued pain radiating from his neck down both arms and from the back sometimes into the left leg, as well as multiple other medical conditions/complaints, for which he was taking multiple medications. In 2015, Claimant's neck pain apparently became worse in that he presented to the emergency room for it and reported it to the doctor. Claimant noted on December 30, 2015, he was getting significant relief from marijuana and he was not taking any other pain medications. The notes from 2016 into 2018 mention that Claimant obtained a nerve stimulator that, he believes, was helping him manage his back pain. The last note dated September 24, 2018, mentioned paresthesias in his feet with walking,

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worse when his back pain is worse, but also a diagnosis of prediabetes. He was using marijuana four times a day for pain relief.

64) Medical bills from UP Health System Marquette Family Medicine (Exhibit 21) and DLP Marquette Physician Practices, Inc. (Exhibit 40) document total charges of $5,450.05 for the dates of service that Claimant highlighted and identified as being related to his treatment for his low back from April 11, 2013 to September 24, 2018. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

65) Medical treatment records of Dr. Carl Eiben at U.P. Rehabilitation Medicine Associates, P.C. (Exhibit 23) show Claimant was first examined on referral from Dr. Sharif on July 8, 2013. Claimant complained of neck and right arm pain, low back and left leg radicular pain, and a chronic sleep disorder. He gave a history of the low back issues since 2007 when he was injured. The doctor noted that Claimant was there strictly for opioid medications, but Dr. Eiben wanted him to get into a pain rehabilitation program. He described Claimant as anxious, somewhat depressed and having a strong pain focus with expansive descriptions and visible expressions for his pain. He recommended cervical and lumbar MRIs, with EMGs of the right arm and left leg. He diagnosed chronic cervical and lumbar radiculopathy, chronic pain syndrome and chronic opioid use. He thought Claimant would be a good candidate for pain management and did not see the need for long-term opioid use. On August 12, 2013, Dr. Eiben read the cervical MRI as showing the surgical changes at C5-6 and foraminal stenosis at C3-4. The lumbar MRI, he said, was "basically normal for age" except for the surgical changes at L5-S1, without any recurrent disc. The EMG studies were basically normal with no evidence of right cervical or left lumbar radiculopathy. He diagnosed chronic pain syndrome with no evidence of neurocompressive lesion in the spine and no EMG evidence of radiculopathy, and probable myofascial pain syndrome. Claimant's last visit with Dr. Eiben was on February 10, 2014. Dr. Eiben noted Claimant was still showing a significant degree of pain behavior and symptom focus, but his physical examination was basically normal, except for decreased lumbar range of motion, with good sensation, tone, strength and reflexes. He noted that Claimant was walking with a cane that "he uses but does not really need." Dr. Eiben offered the same diagnosis and recommended that Claimant set up a program for exercise, increasing his chores around the house, a leisure program, and long-term, should look into returning to work part-time as an RN in more of an administrative position. Whether Claimant pursued this program or not, he thought the opioid medications should be weaned.

66) Medical bills of Dr. Carl Eiben at U.P. Rehabilitation Medicine Associates, P.C. (Exhibit 23) document total charges of $1,559.76 for Claimant's treatment in connection with his low back. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

67) Claimant was seen by Hannah Steinitz, Ph.D. at UP Health System Marquette Department of Neuropsychology and Rehabilitation and Health Psychology (Exhibit 27) on November 9 and 13, 2015, for a health psychology comprehensive

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pain evaluation. She concluded that Claimant has been contending, for some time, with cervical and lumbar pain. She did not think he was an ideal candidate for pain medications, but thought he would benefit from learning behavioral pain management techniques and strategies. She recommended cognitive-behavioral therapy and some physical therapy to address some of his complaints. He had three individual psychotherapy visits from November 24, 2015 to January 21, 2016. He was complaining about worsening bilateral below-knee neuropathy on January 5, 2016 and expressed interest in seeing Dr. Mehall for a spinal cord stimulator. Interestingly, in the January 21, 2016 report, Dr. Steinitz describes issues raised by Claimant, which he heard from his attorney, that her initial report focused more on the presenting neck complaints, with less emphasis on his back pain, and that his "attorney wants both stressed." She noted that Claimant had not made any progress with his behavioral steps and did not obtain any resources that they had discussed. He was heading to St. Louis to care for his mother and was to follow up when he returned to Michigan.

68) Medical bills of DLP Marquette Physician Practices, Inc. (Exhibits 27 and 40) document total charges of $1,887.11 for the evaluation and treatment Claimant received from Dr. Steinitz. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

69) The medical treatment records of Dr. Christopher Mehall at U.P. Superior Vascular Interventional Specialists (Exhibit 24) begin with an examination of Claimant on January 25, 2016. Claimant gave a history of his low back and neck problems, describing his left leg pain as the thing that is most limiting at the current time. Dr. Mehall thought he would be a good candidate for a trial of a spinal cord stimulator to try to address his low back and leg complaints before moving on to do something about the neck.

70) Medical treatment records of Marquette General Health System (Exhibit 22) document cervical and lumbar MRIs ordered by Dr. Carl Eiben on July 15, 2013. The cervical MRI showed surgical changes at C5-6, central canal stenosis throughout the cervical levels, and severe left foraminal stenosis at C3-4. The lumbar MRI showed surgical changes at L5-S1, osteophytic ridging of the endplates in the lateral aspect of L5-S1 contributing to moderate left foraminal narrowing, but no evidence of lumbar central canal stenosis. These records document visits to the emergency room on September 12 and 14, 2015 for significantly worsened neck pain and complaints into both arms. He had a cervical MRI on September 14, 2015 that showed severe left and mild right foraminal stenosis at C3-4, mild narrowing of the central canal at C3-4 and C4-5 due to disc bulges, and minimal narrowing at C6-7 and C7-T1. Compared to the MRI of July 15, 2013, the doctor noted mild progression of the disc bulges at C4-5 and C6-7, but no significant change at the C3-4 level. These records also show surgeries Claimant had by Dr. Christopher Mehall on March 14, 2016 to place trial spinal cord stimulator leads, remove them on March 17, 2016, and to implant permanent spinal cord stimulator leads and a generator on April 19, 2016.

71) Medical bills of UP Health System-Marquette (Exhibit 22) show total charges of $102,546.66 for the dates of service that Claimant highlighted and identified as being

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related to his treatment for his low back from July 15, 2013 to June 30, 2016. However, in reviewing the bills, I note that some of the charges ($875.00) are for blood tests (comprehensive metabolic panels and others) that do not seem directly related to low back treatment in this case, and some charges are in connection with his worsened neck complaints that prompted two visits to the emergency room in September 2015 (2,579.22), leaving a balance clearly related to the low back treatment of 99,092.44. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

72) When Claimant followed up on April 27, 2016, after the permanent spinal cord stimulator was implanted (Exhibit 24), he reported some improvement in his pain, but said that both of his feet were now causing him pain. He was advised to limit his activity to what is comfortable to him until his wounds completely heal.

73) Medical bills of Dr. Christopher Mehall at Superior Imaging Specialists, PC (Exhibit 24) show total charges of $4,432.00 for the treatment provided from January 25, 2016 to April 19, 2016. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

74) Medical treatment records of Denali Healthcare (Exhibit 25) show Claimant received physician certifications from Dr. Robert Townsend to access the Michigan Medical Marijuana Program starting on August 23, 2014. In a note dated September 10, 2016, Dr. Townsend diagnosed Claimant as having chronic pain from degenerative disc disease and spinal stenosis, and he recommended marijuana for treatment of the pain and to reduce his persistent, severe muscle spasms. A similar certification was issued, dated August 25, 2018, with a diagnosis of chronic pain from the low back with persistent severe muscle spasms.

75) Claimant submitted into evidence receipts for "caregiving services" (Exhibit 26) totaling $9,900.00, that represent the amounts he has spent on medical marijuana from September 29, 2017 to February 28, 2019. The vast majority of the receipts, all but 2 of the 42 receipts, are dated in the timeframe of September 29, 2017 to August 14, 2018. In that 10 1/2 month period, Claimant averaged a marijuana purchase every week, although some of the receipts showed purchases on back-to-back days, or within a few days of the prior purchase.

76) Claimant also placed in evidence certified pharmacy records and bills of Walgreens, as well as records and bills from RightSource Rx, SHOPKO Pharmacy, Wal-Mart Pharmacy, Snyders Drug, and Humana Pharmacy (Exhibit 34) for various prescriptions from December 24, 2009 to January 18, 2018. These records show various prescriptions ordered by different doctors during that time period. Claimant highlighted prescriptions allegedly related to his work injury that total $970.98 [385.25 from Walgreens, 207.74 from RightSource Rx, 33.99 from SHOPKO Pharmacy, 12.80 from Wal-Mart Pharmacy, 41.80 from Snyders Drug, and 289.40 from Humana Pharmacy]. The bills show various payments and adjustments from an insurance company, but not Workers' Compensation.

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77) Claimant testified that he has received medical bills from the various providers listed above for all of this treatment, which, he believes, is connected to his December 24, 2007 injury. He confirmed that he has demanded payment of the bills under Workers' Compensation, but they have been paid by his own insurance or Medicare, since Workers' Compensation did not pay them. He still feels that he has an obligation to pay them as a part of this Claim since, he believes, they are related to the work injury, and he has requested payment of the bills as a part of this Award. He is also seeking payment of temporary total disability benefits from December 5, 2009 to January 26, 2010 for the period of time Dr. Levy had him off work for the low back surgery, and, he is seeking future medical treatment, as recommended by Dr. Poetz.

78) The deposition of Dr. Russell Cantrell (Exhibit A) was taken on January 15, 2014 by Employer to make his opinions in this case admissible at trial. Dr. Cantrell is board certified in physical medicine and rehabilitation. He examined and treated Claimant in connection with the December 24, 2007 work injury. He testified consistent with the findings and opinions contained in his reports, as described above. He confirmed that he released Claimant at maximum medical improvement on August 13, 2008 and he had no further contact from Claimant after that date, not even for prescription refills. He agreed with Dr. Coyle that Claimant had a back sprain that was medically casually related to the December 24, 2007 work injury. He explained that he believed Claimant's ongoing symptoms were caused by a mechanical sacroiliac condition, and so the disc pathology at L4-5 and L5-S1 is unrelated to the condition, for which he treated Claimant, from the work injury. His findings of negative radicular signs during each of his evaluations also supported his conclusion that this was not a nerve root compression or disc issue.

79) The videotaped deposition of Dr. James Coyle (Exhibits B and B-1) was taken on May 20, 2014 by Employer to make his opinions in this case admissible at trial. Dr. Coyle is board certified in orthopaedic surgery, with a fellowship in spine surgery, and as a medical examiner. He examined and treated Claimant in connection with the December 24, 2007 work injury. He testified consistent with the findings and opinions contained in his reports, as described above. He also testified regarding an independent medical examination he conducted of Claimant on January 15, 2013, after his review of all of the medical treatment records and evaluations, and performing a new physical examination. Dr. Coyle diagnosed postlaminectomy syndrome L5-S1, with discography suggesting concordant pain at L4-5, too, as of the time of his January 15, 2013 evaluation. Dr. Coyle compared the lumbar MRI results from January 11, 2008 and December 8, 2009, and opined that there was a marked difference in the disc pathology at L5-S1, with Claimant having continued to work during that almost two-year period. He explained that the MRI from 2009 showed a very large disc herniation with an extruded fragment (something that someone could not tolerate under less than very unusual circumstances), while the MRI from 2008 showed a mild bulge with disc desiccation. Dr. Coyle opined that there was no indication for surgery when he saw Claimant in 2008, which is confirmed by Dr. Cantrell's findings from that time. However, his pain increased in the fall of 2009, leading to the surgery, from which Claimant had a very poor outcome and was much worse after surgery. Dr. Coyle opined that the injury of December 24, 2007 was not

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the prevailing cause of the condition in 2009 that precipitated the need for surgery. He explained that the marked change in Claimant's clinical condition, as well as the change in the radiographic findings substantiates his opinion. Dr. Coyle believed Claimant was at maximum medical improvement for the December 24, 2007 injury when he was released by Dr. Cantrell in 2008. He diagnosed Claimant as having a low back strain, and rated Claimant as having 5% permanent partial disability of the body as a whole referable to the lumbar spine, on account of the December 24, 2007 injury. He did not diagnose any disc pathology medically causally related to the December 24, 2007 work injury.

80) In a supplemental report dated April 3, 2014, Dr. Coyle reviewed Claimant's pre-existing medical treatment records showing Claimant had low back and lower extremity complaints and problems going back to 1993. He confirmed that Claimant actually had evidence of disc prolapse at L4-5 and a disc herniation at L5-S1 predating the work injury of December 24, 2007. He explained from his review of the 1999 lumbar CT report, that since Claimant had a large herniation noted back in 1999, and that herniation was not present in the same way on the 2008 MRI, the prior herniation desiccated and reseated, leaving the degenerative disc referenced in the 2008 MRI. Despite the evidence of the prior herniation and low back and leg problems before December 24, 2007, Dr. Coyle did not change his rating of disability in this case.

81) On cross-examination, Dr. Coyle agreed that when he initially treated Claimant, he suggested that surgery might be a possibility needed by Claimant, as an absolute last resort, if his complaints did not subside. However, he explained that the surgery he contemplated was a fusion for back instability, and the surgery Dr. Levy performed was a microdiscectomy to remove a disc herniation. Those are two different surgeries for two different problems, instability versus decompression. Although Dr. Coyle did not identify a specific intervening trauma in the medical records between December 24, 2007 and the surgery by Dr. Levy, he did note that Claimant was continuing to work in dialysis pushing carts and that Dr. Levy identified the symptoms as starting about two months prior to December 2009. He also explained, in great detail, based on the color of the disc material on the MRI from December 2009 showing the water content, that the extruded fragment was more of an acute development and was not sitting there for two years, therefore, supporting his opinion that this was a new development to 2009 and not related to the 2007 injury.

82) The deposition of Dr. Robert Poetz (Exhibit 3) was taken on March 22, 2016 by Claimant to make his opinions in this case admissible at trial. Dr. Poetz is an osteopathic physician, board certified in general practice, who spends 95% of his time practicing family medicine. He is a clinical professor in family medicine (meaning medical students shadow him for a period of time and are tested in family medicine), and he has performed surgery in the past, but that was at least 10 years ago. He examined Claimant on one occasion, February 14, 2011, at the request of his attorney and provided no medical treatment. He issued his report dated June 14, 2011, following his examination, and testified on direct consistent with that report. In addition to performing a physical examination of Claimant, he also reviewed

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Claimant's medical treatment records. Claimant provided a history of the injury at work on December 24, 2007 and of his continued complaints in his low back and bilateral legs, left worse than right. He also provided a history of his pre-existing issues and treatment for gastroesophageal reflux disease, irritable bowel syndrome, depression, left shoulder, low back and neck. The physical examination showed an antalgic gait with use of a cane, stable emotional demeanor, decreased range of motion in the left shoulder, decreased range of motion in the cervical and lumbar spine, straight leg raising positive bilaterally for low back pain, decreased pinprick sensation in both legs in a non-dermatomal pattern, but intact deep tendon reflexes and no other motor or sensory deficits noted.

83) Pre-existing the December 24, 2007 injury, Dr. Poetz diagnosed a herniated nucleus pulposus at L5-S1 with residual degenerative disc disease from 1998; C5-6 herniated nucleus pulposus, status post C5-6 partial vertebrectomy, microdissection with discectomy and C5-6 fusion with instrumentation from 2006; left shoulder rotator cuff sprain from 1997; and gastroesophageal reflux disease and irritable bowel syndrome. Medically causally related to the December 24, 2007 work injury, Dr. Poetz diagnosed moderately large herniated nucleus pulposus at L5-S1 with exacerbation of degenerative disc disease, status post left L5-S1 microdiscectomy. He opined that all of the treatment and surgery Claimant had for the low back was medically necessary to treat his complaints, and the bills were reasonable and customary. He believed that Claimant would need further treatment for his low back complaints in the form of medications, a repeat MRI, epidural steroid injections, and, perhaps, surgery. He opined that the work injury on December 24, 2007 was the substantial and prevailing factor in causing 35% permanent partial disability of the body as a whole referable to the lumbar spine. He rated pre-existing disabilities of 15% of the body as a whole referable to the lumbar spine from 1998, 35% of the body as a whole referable to the cervical spine from 2006, 15% of the left shoulder from 1997 and 10% of the body as a whole referable to the gastroesophageal reflux and irritable bowel syndrome. It should be noted that although he rated the gastroesophageal reflux and irritable bowel syndrome as "pre-existing" in his report, in his deposition testimony, Dr. Poetz opined that it was actually related to the December 24, 2007 injury as a result of the medications he was taking for that injury. Dr. Poetz opined that the combination of the present and prior disabilities exceeds the simple sum by 15-20%.

84) Dr. Poetz placed a number of functional restrictions on Claimant, including the inability to lift anything from the floor or overhead, and only occasionally lift from a table and carry 5-10 pounds. Dr. Poetz restricted Claimant's ability to stand/walk to 0-2 hours per day, and sit 2-4 hours per day, with no bending, climbing or reaching, and only occasional squatting and kneeling. Finally, he opined that Claimant was permanently and totally disabled "as a result of his December 24, 2007 injury and in addition to his prior injuries and conditions." He testified that the effects of the December 24, 2007 injury, by itself, was enough to render Claimant permanently and totally disabled.

85) After receiving and reviewing the surgical note from Dr. Levy, Dr. Poetz issued a supplemental report dated October 8, 2012, in which he indicated that none of his

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opinions were changed based on the additional medical. He further opined that Claimant would have reached the point of maximum medical improvement on January 26, 2010, if he did not have any of the additional treatment he previously mentioned. However, Claimant would still need pain management to prescribe medications and manage the TENS unit. He believed that Claimant would have become permanently and totally disabled as of his last day of work, December 4, 2009. Finally, if Claimant had sleep deprivation, due to the complaints from the December 24, 2007 injury, he opined that Claimant would be permanently and totally disabled due to the effects of that injury in and of itself.

86) Dr. Poetz issued his third letter dated March 14, 2016, after receiving and reviewing additional records and the deposition testimony of Dr. Coyle. Dr. Poetz disagreed with some of Dr. Coyle's conclusions and believed that Claimant suffered a symptomatic disc protrusion from the December 24, 2007 injury, which was made relatively asymptomatic by the epidural steroid injections. However, as he continued to work, it caused the disc protrusion to progress to a full blown disc herniation. Therefore, he believed the progression of the disease, without any other specific trauma, led to the surgery, which was all related to the December 24, 2007 injury. In reaching this conclusion, he assumed a history from Claimant that there was no new injury, repetitive trauma, overuse stress or strain, or acute lifting accident at DaVita that made Claimant worse. However, he agreed with Dr. Coyle that Claimant had a poor outcome from surgery and had postlaminectomy syndrome. Dr. Poetz's fourth letter dated March 30, 2016 just confirmed that none of his opinions changed after his review of more medical treatment records from Dr. Novak.

87) On cross-examination, Dr. Poetz agreed that Claimant returned to full-duty work from August 13, 2008 until he was fired on July 22, 2009, without missing any time for low back symptoms or complaints. When questioned about the prior low back disc herniation at L5-S1, the same level at issue in the primary injury, Dr. Poetz agreed that his testimony regarding how the disc symptoms progressed after the primary injury, but as a result of it, could also possibly apply to the prior disc herniation and how those complaints progressed over time up to the December 24, 2007 injury. He agreed that some of his restrictions were, in part, as a result of Claimant's prior cervical problems, in addition to his low back issues.

88) The deposition of Mr. Gary Weimholt (Exhibit 4) was taken by Claimant on August 13, 2012, to make his opinions in this case admissible at trial. Mr. Weimholt is a Certified Disability Management Specialist and a vocational rehabilitation consultant. He interviewed Claimant on August 16, 2011, at the request of Claimant's attorney, and reviewed extensive medical treatment records and reports. He prepared a report dated February 25, 2012, that contained the history he received from Claimant, and his findings and conclusions in this matter. He opined that Claimant did not have any previous deficit in terms of basic academic abilities and has a skilled work history. However, in considering a number of potential job openings for Claimant, Mr. Weimholt found reasons (restrictions from the doctors limiting Claimant to less than physical capacity for jobs, lack of transferable skills, Claimant's ongoing symptoms, pain medications and sleep disturbance) that prevent him from being able to obtain

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any of those positions. Mr. Weimholt noted that after Claimant's cervical surgery, he modified his work tasks. He agreed that Dr. Cantrell's restrictions did not result in a total loss of access to the labor market, but Dr. Poetz's restrictions would take Claimant completely out of the labor market and make him totally vocationally disabled from employment. Mr. Weimholt noted that Claimant's complaints associated with the December 24, 2007 injury, would be sufficient in and of themselves to take him out of the competitive labor market, but he also acknowledged that the prior neck fusion was a hindrance to his job as a nurse. Therefore, he deferred to the medical experts on whether the total loss of access to the open labor market was referable to just the December 24, 2007 injury, or, instead, a combination of his pre-existing and primary disabilities. He confirmed that his opinions on employability were based on the totality of the information that he received, including the outcome of the 2009 back surgery, not just based on Claimant's abilities as of August 2008, after he was initially released for the December 24, 2007 injury.

89) The deposition of Mr. James England, Jr. (Exhibit C) was taken by Employer on April 21, 2016, to make his opinions in this case admissible at trial. Mr. England is a certified vocational rehabilitation counselor. He interviewed Claimant on February 21, 2013, at the request of Employer's attorney, and reviewed extensive medical treatment records and reports. He prepared a report dated March 4, 2013, which contained a history from Claimant, medical record review, family and social background, educational background, vocational history, and a summary of his functional restrictions/limitations. Mr. England found that Claimant was a well-educated and articulate man, with transferable skills that could be utilized at both sedentary and light levels of exertion, even assuming he could not go back to medium-level work as a nurse. He agreed that assuming Dr. Poetz's restrictions, Claimant would not be employable, but assuming the findings of essentially any of the other doctors, Claimant would be capable of performing a wide variety of nursing jobs, as well as many less physically demanding jobs. Mr. England encouraged Claimant to consider vocational rehabilitation to help him find a less physically demanding nursing job, and Claimant said that he would think about it and would contact him in the future if he felt he was ready to try to work again.

90) On cross-examination, Mr. England agreed that Claimant's prior neck, left shoulder, gastroesophageal reflux and irritable bowel syndrome conditions, if as symptomatic as described by Claimant, would have been a hindrance or obstacle to employment or re-employment. However, he was working full duty without physician-imposed restrictions prior to December 24, 2007.

91) In terms of his current complaints, Claimant testified that he has the same symptoms now as he had when he was released by Dr. Levy after surgery, constant low back pain with radiating pain into both hips and pain into the left leg/foot. He said the TENS unit decreased the frequency, but he still has pain. He testified that he has anxiety and depression since the 2007 work injury because he is stuck at home and cannot do anything. He described physical symptoms from his anxiety/depression of feeling hot, hyperventilating, getting nauseous and feeling a tingling in his whole body. He has some hopelessness and he falls asleep easily during the day, since he is unable to sleep

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regularly at night. He said that he feels tired all the time and he does not think clearly. He does not know of any jobs that he could do with the constellation of symptoms that he currently has.

92) Claimant testified that he qualified for the Michigan Medical Marijuana Program right away and continues to take marijuana every day as a replacement for the narcotic pain medication that he used to take on a daily basis. He also continues to take Cymbalta, Elavil and Ultram. He is seeking ongoing payment for these medications and the marijuana as a part of his request for future medical treatment in this case.

93) Regarding his ability to function at the current time, Claimant testified that he does not drive anymore, and has not driven since 2009, but he does have a valid driver's license in case of an emergency. He said that his partner drove him to St. Louis for the hearing and they had to stop more than normal on the way down from Michigan. He reported that his legs get restless if he sits too long, so he cannot sit long and has to get up and move periodically. While Claimant needed no help with chores or personal care before the work injury, now his partner takes care of all the household chores. He said that he uses a cane now because he has fallen (like his legs are not even there). Claimant testified that he has problems walking and can only walk for a maximum of 15 minutes. He has problems showering, so he must use a shower chair. He is unable to bowl or hike anymore, like he once could. He does no lifting over 5 pounds now and no standing more than 10-15 minutes at a time.

94) Claimant testified that he does not think there are any jobs he can do because of his ongoing complaints, and being on drugs (opiates and marijuana). He testified that the combination of his problems/complaints from all of his various conditions made it harder for him to do things at work. It was harder to pull himself up or use stairs. All added together, they made him worse. However, he said that even if he never had any of the prior injuries/disabilities, he did not believe that he would be capable of working because of just the constant pain in his back, down his legs and into his feet, as well as the sleep problems from that back pain. In that respect, he thought his complaints, that he believes came from the 2007 injury, are enough to keep him from working without considering his prior disabilities.

95) On cross-examination, Claimant admitted that when he starting getting worse with his low back pain in November 2009, the main reason was that he was doing the job by himself, without the help he enjoyed from co-workers when he was with Employer. He admitted that his job duties for DaVita in 2009 contributed to his increased pain in the low back.

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Based on a comprehensive review of the substantial evidence, including Claimant's testimony, the expert medical opinions and depositions, the vocational opinions and depositions, the medical records and bills, the testimony of Employer's witness, and the other documentary evidence, as well as my personal observations of Claimant and the other witness at hearing, and based upon the applicable laws of the State of Missouri, I find:

The record of evidence is clear, and the parties have also stipulated, that Claimant sustained an accidental injury on December 24, 2007, arising out of and in the course of Claimant's employment for Employer. I find that Claimant was working as a dialysis nurse for Employer, performing his regular job duties, and he was attempting to lift and move a 200-pound patient up in bed with the help of a co-worker, when he felt a grinding pain in his low back with pain down his legs. Based on the evidence in the record, I find that that is where the agreement between the parties really ends. While they agree that Claimant sustained an injury to his lumbar spine, there is no agreement on the specific diagnosis of the low back condition medically casually related to the December 24, 2007 injury. Nor is there any agreement on whether the additional extensive medical treatment and surgery Claimant received on his own for the low back, the future medical treatment Claimant seeks, or the need for an additional period of temporary total disability benefits, is related to the December 24, 2007 injury.

Considering the date of the injury, it is important to note the statutory provisions that are in effect, including Mo. Rev. Stat. § 287.800 (2005), which mandates that the Court "shall construe the provisions of this chapter strictly" and that "the division of workers' compensation shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts." Additionally, Mo. Rev. Stat. § 287.808 (2005) establishes the burden of proof that must be met to maintain a claim under this chapter. That section states, "In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true."

Claimant bears the burden of proof on all essential elements of his Workers' Compensation case. *Fischer v. Archdiocese of St. Louis-Cardinal Ritter Institute*, 793 S.W.2d 195 (Mo. App. E.D. 1990) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The fact finder is charged with passing on the credibility of all witnesses and may disbelieve testimony absent contradictory evidence. *Id.* at 199.

**Issue 1:** Is the back surgery performed by Dr. Levy, and all of the medical treatment after Claimant's release by Dr. Cantrell, as well as any resultant disability, medically causally related to his accident at work for Employer on December 24, 2007?

Under Mo. Rev. Stat. § 287.120.1 (2005), every employer subject to the Workers' Compensation Act shall furnish compensation for the personal injury of the employee by accident arising out of and in the course of employee's employment. According to Mo. Rev.

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Stat. § 287.020.2 (2005), accident is defined as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift." Further, under Mo. Rev. Stat. § 287.020.3(1) (2005), "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. 'The prevailing factor' is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability." Finally, under Mo. Rev. Stat. § 287.020.3(2) (2005), an injury is deemed to arise out of and in the course of the employment only if the accident is the prevailing factor in causing the injury and it does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment.

In a Workers' Compensation case, expert medical testimony is not necessarily needed to establish the cause of the injury, if causation is a matter within the understanding of laypersons. *Knipp v. Nordyne, Inc.*, 969 S.W.2d 236 (Mo. App. W.D. 1998) overruled on other grounds by *Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003). When the condition presented in a case is a sophisticated injury that requires surgical intervention or highly scientific technique for diagnosis, and especially when there is a serious question of pre-existing disability, then the proof of causation is not within the realm of lay understanding. *Id.* at 240.

While the parties have agreed that Claimant sustained an accidental injury arising out of and in the course of his employment for Employer, there are significant disputes in the record of evidence regarding what medical conditions/diagnoses and complaints/problems are medically casually related to that work injury on December 24, 2007. This case is, further, complicated by the fact that Claimant had complaints, diagnoses and ongoing problems with his low back pre-existing the December 24, 2007 injury, and that there is a significant gap in time between when his authorized treatment with Dr. Cantrell ended after the December 24, 2007 injury, and when he, ultimately, had surgery and a new ongoing course of treatment with Dr. Levy and others. Therefore, the threshold issue in the case at bar is what complaints and diagnoses are medically casually related to the December 24, 2007 injury.

Claimant's apparent contention, based on both his trial testimony and his statements to the various doctors or experts, is that while he had prior low back diagnoses and occasional complaints, he had no prior significant, ongoing, low back pain and no leg pain that interfered with his ability to work, such that all of those more significant complaints are related to the December 24, 2007 injury. He, further, alleges that his complaints in his low back and legs never fully subsided after December 24, 2007, so, despite going back to work, he did so with problems that continued, without any new injury, until he found himself needing the low back surgery in December 2009. Therefore, Claimant contends that the need for the surgery, the less than optimal result from the surgery, all of his ongoing complaints and his ongoing need for treatment for his low back, are all related to the December 24, 2007 work injury. In order to meet his burden of proof in this case, Claimant needed to present credible testimony on his own behalf, as well as competent, credible and reliable medical evidence to support his claims. Claimant and Employer have offered competing medical evidence and testimony concerning Claimant's assertions in this regard.

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In evaluating the competing theories and evidence in the record, I note that Claimant's testimony and recollection of his complaints and problems are not always corroborated by what I find in the medical treatment records in evidence. While I do not believe Claimant was trying to be purposefully misleading, in that respect, I acknowledge that with the passage of time (treatment occurring over many years both before and after December 24, 2007) and with the volume of treatment from numerous different providers over those years, I find that I cannot fully rely on Claimant's statements regarding the onset and progression of his low back and leg complaints in this case. Instead, I find that the medical treatment records are the best evidence as to the progression of Claimant's complaints referable to his low back and legs.

I find that Claimant's low back problems began in 1993 when he sustained a lumbar strain bending over to fix an IV pump on October 23, 1993. The records show that Claimant was paid 5/7 weeks of TTD for the October 23, 1993 lumbar strain and had medical treatment for low back pain that occasionally went into the left buttock, but no leg pain. Claimant had intermittent left buttock pain since this initial onset, leading up to 1999.

I find that his next documented low back treatment was in 1999, when he had a course of physical therapy for lumbar derangement syndrome. Claimant provided a history of waking up on June 11, 1999 with low back pain for no apparent reason. His low back pain complaints were on the left greater than right and into the left gluteal region. A CT scan of the lumbar spine taken on June 23, 1999, showed a centrally herniated disc at L5-S1 and a central focal disc bulge at L4-L5. Claimant treated with Dr. Ravi Shitut for low back pain radiating into his left buttock and left leg, who expected that Claimant would have some aggravations and increased complaints, "which is typical of the kind of problem that he has," but he hoped that it would not be aggravated to the point of requiring surgery.

Despite Claimant denying any prior radicular complaints or complaints into his legs prior to December 24, 2007, after this round of low back treatment in 1999, and the diagnosis of the herniated disc at L5-S1, as well as the bulging disc at L4-5, I find that Claimant had periodic treatment for low back and left leg complaints leading up to December 24, 2007. Chiropractic treatment records from Dr. Richard Novak show treatment Claimant received in that office, starting on July 30, 2002. On that date, Claimant reported low back pain that radiates down the left leg, which he occasionally has, dating back to 1998. On the pain chart, Claimant drew stabbing and aching pain from his low back, through his left buttock and down the back of his left leg to his knee. He reported similar complaints from the low back to the left buttock on October 8, 2004, for which he sought chiropractic treatment.

In addition to the chiropractic treatment, I find that Claimant had treatment for low back pain radiating to the left buttock, but no numbness or tingling into the extremity, from Dr. Mark Scheperle on August 25, 2004. He had additional visits for low back treatment, among other things, on March 1, 2006, October 4, 2006 and November 6, 2006. He was prescribed Vicodin and Valium during that time for this complaints. Despite his ongoing low back treatment and complaints, I find that Claimant was working full-time, full-duty, with regard to his low back, leading up to December 24, 2007.

I find no real dispute in the records that from December 24, 2007, the date of his work injury, until August 13, 2008, the date he is released and placed at maximum medical

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improvement by Dr. Russell Cantrell, Claimant is in a course of treatment for low back pain and pain into his legs, left worse than right. I find that a lumbar spine MRI taken on January 11, 2008, showed degenerative disc disease at L5-S1 with a broad-based central disc protrusion (the same level where he was previously diagnosed with a herniated disc in 1999), which causes anterior compression of the thecal sac. After a period of physical therapy, injections and conservative treatment, I find that when Dr. Cantrell released Claimant on August 13, 2008, Claimant was back to full-duty activities, only had a pain level of 1-2 out of 10, and had only been using Tylenol and Celebrex on a daily basis.

Although Claimant testified that he had ongoing low back and leg complaints that gradually increased between August 13, 2008 and December 2009, I find that medical treatment records, in this interim period from Dr. Mark Scheperle, do not support that assertion. They document visits on June 17, 2008, September 9, 2008, October 6, 2008 and December 22, 2008. While there are references in the last two visits to frank cervical problems that the doctor relates to his prior cervical fusion, there is absolutely no clear indication in any of those visits that Claimant was having any low back pain or problems. No low back pain was reported in any of the chief complaint sections, there were no abnormalities noted on the physical examinations regarding the low back, and there were no diagnoses regarding the low back either.

While Claimant denies any specific injury or exacerbation of his low back complaints in or around December 2009, I find that the medical treatment records and other evidence in the case, again, do not support that assertion. When Claimant sees Dr. Mark Scheperle on December 7, 2009, Claimant reported low back pain, noting, "pain began couple of weeks ago progressively worse - last episode 07." He diagnosed acute low back pain with radiculopathy. A lumbar spine MRI taken on December 8, 2009 showed a minimally diffuse disc bulge at L4-5 and a large central disc protrusion at L5-S1. The doctor compared this MRI to the one from January 11, 2008 and opined that the L5-S1 protrusion had approximately doubled in size, but was still not causing obvious lateral recess narrowing. The mild-to-moderate neural foraminal stenosis was unchanged.

Chiropractic records from Dr. Novak on December 8, 2009 contain a Symptom Questionnaire, and when asked how the condition developed, Claimant answered, "pushing a patient on a stretcher, pushing dialysis machines & portable water." The term "Work Accident" was underlined and a question mark was placed over it. He reported the initial onset of complaints in 1998 and listed the 2007 injury, "pulling a patient up in bed," as a significant accident from the past. The records of Dr. Armond Levy on December 16, 2009 contain a Comprehensive Health History form dated December 14, 2009, in which he gave a history of the December 2007 work injury, noted that he was on "work comp" from December until August 2008 "for this occurrence," but, then noted that his problems, for which he was now seeking treatment, began, "end of November, constant pain unless I'm not working." Dr. Levy recorded complaints of lumbar spine pain that began approximately two months prior, with a gradual onset, and pain radiating to both legs, with associated numbness and tingling in both feet. There was no reference to the 2007 work injury in his initial note. Finally, I find that the Social Security Administration decision has no specific reference to the December 2007 injury, but does contain a description of Claimant having complaints "after transferring a patient from a stretcher."

WCO211110.01)

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In summary, given this history of Claimant's complaints and diagnoses, as illuminated in the medical treatment records, and other evidence, I find that Claimant clearly had a disc herniation at L5-S1 that pre-existed the December 24, 2007 work injury, which Dr. Shitut hoped would not be aggravated to the point of needing surgery. I find that Claimant continued to have periodic flare-ups of his low back complaints up through, at least, late 2006, that often required treatment with Vicodin and Valium. I, further, find that Claimant had left buttock and left leg radicular complaints that pre-existed the December 24, 2007 injury, and for which he sought treatment in 1999 (left buttock and thigh), 2002 (left buttock and leg), 2004 and 2006 (left buttock).

I find that the medical treatment records show that Claimant suffered an acute exacerbation of his low back and leg complaints on December 24, 2007, albeit at the same L5-S1 level that was previously symptomatic, which required a new round of conservative medical treatment to address these acutely increased complaints. I find that by the time of his release by Dr. Cantrell on August 13, 2008, Claimant was back to full-duty activities, only had a pain level of 1-2 out of 10, and had only been using Tylenol and Celebrex on a daily basis. I find that Claimant sought no other treatment for low back pain or problems from his release by Dr. Cantrell until over a year later, while he continued working full-time, full-duty for Employer and for DaVita during that time.

I find that in or around December 2009, Claimant suffered another acute exacerbation of his low back and leg complaints, while working for DaVita. I find that the records document Claimant pushing or transferring a patient on a stretcher, pushing dialysis machines and pushing portable water, all activities he had to perform while working for DaVita in 2009, as activities he was performing at or around the onset of his worsened low back and leg complaints that precipitated him seeking more treatment in December 2009. Given the extensive period of time that he was back to work without complaints after his release in August 2008, I find that this new onset of complaints, represents a new exacerbation of his low back problems, separate and apart from the 2007 work injury, for which he had already been released over a year earlier.

Having made these findings, based on the medical treatment records and other evidence in the record, I now turn to the expert medical opinions offered by the parties for guidance on the medical causation issue, since we are dealing with a sophisticated injury that requires highly scientific technique for diagnosis and surgical intervention, especially, in light of the significant pre-existing issues in this same part of the body. Claimant offered the opinions and testimony of Dr. Robert Poetz, a board certified osteopathic general practice physician, who practices in family medicine. Medically causally related to the December 24, 2007 work injury, Dr. Poetz diagnosed a moderately large herniated nucleus pulposus at L5-S1 with exacerbation of degenerative disc disease, status post left L5-S1 microdiscectomy. On the other hand, Employer offered the opinions and testimony of Dr. James Coyle, a board certified orthopedic surgeon, with a fellowship in spine surgery. Medically causally related to the December 24, 2007 work injury, Dr. Coyle diagnosed a low back strain. Employer also offered the opinions and testimony of Dr. Russell Cantrell, who is board certified in physical medicine and rehabilitation. Dr. Cantrell agreed with Dr. Coyle that Claimant had a back sprain that was medically causally related to the December 24, 2007 work injury.

W0132 0116.01

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In reviewing the expertise and qualifications of these competing physicians, I find that, since he is an orthopedic surgeon who specializes in treatment of the spine, and this is a case involving treatment, diagnosis and surgery of the spine, Dr. Coyle has a clear advantage over Dr. Poetz, who specializes in family/general practice. While Dr. Poetz evaluates and treats a myriad of conditions to all different parts of the body in his general/family practice, Dr. Coyle concentrates his practice on just the part of the body (the spine) that is central to this case. In that respect, I find that Dr. Coyle's opinions are more credible and persuasive from strictly the aspect of his enhanced training, qualifications and expertise.

In comparing and contrasting the testimony of Drs. Poetz and Coyle, I am also impressed with the detailed explanations of the basis of his opinions provided by Dr. Coyle and how he directly compared the MRI images from January 2008 and December 2009, as a way of illustrating how there was a marked difference in the pathology in the low back leading to the need for the surgery, separate and apart from the 2007 accident. I find that his identification of the extruded fragment at L5-S1 in 2009, which was not present in 2008, and accounted for the increased complaints and need for surgery in 2009, was clearly a new finding over a year after Claimant was already released by Dr. Cantrell. Dr. Coyle, also, clearly explained the interplay of the prior disc herniation from 1999 with the findings on the January 2008 MRI, as a way of tying together the totality of the progression of Claimant's low back problems and diagnoses. I find that Dr. Coyle clearly opined that Claimant was not a surgical candidate in 2008, and by the time he was in late 2009, it was for a different condition that could not have been present that whole period of time since the December 24, 2007 injury. I find that Dr. Coyle's explanations and opinions are more supported by the medical treatment records in evidence, not to mention, directly supported by the testimony and opinions of Dr. Cantrell, as well.

Therefore, given the enhanced expertise, training and practice of Dr. Coyle, given the more thorough and detailed explanations of his opinions, and given that his opinions and conclusions are more consistent with, and supported by, the balance of the medical treatment records and opinions in evidence, I find that the opinions and conclusions of Dr. Coyle are more competent, credible and persuasive than the competing opinions of Dr. Poetz.

Accordingly, on the basis of Dr. Coyle's competent, credible and persuasive medical opinions, as well as based on my findings from the medical treatment records, as described above, I find that Claimant sustained a low back strain, medically causally related to the December 24, 2007 work injury. In other words, I find that the work injury on December 24, 2007 was the prevailing factor in causing this medical condition and some amount of permanent partial disability on account of it.

In light of the pre-existing symptomatic disc pathology at L5-S1, and the significant subsequent disc pathology changes discovered at that same level in late 2009, I find that Claimant has failed to meet his burden of proving that any disc pathology in the low back was medically causally related to his low back injury on December 24, 2007. Additionally, I find that Claimant has failed to meet his burden of proving that the low back surgery performed by Dr. Levy, and/or all of the medical treatment he received following that low back surgery, as a result of his ongoing complaints from the surgery, are medically causally related to the December 24, 2007 work injury. I find that the December 24, 2007 work injury was not the prevailing factor in causing any disc pathology, need for surgery, or any treatment after the surgery on account of his

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ongoing complaints related to the surgery. Claimant's allegations, in this regard, are not supported by the competent, credible and persuasive medical opinions of Drs. Coyle and Cantrell.

Given that the next two issues both deal with Claimant's entitlement to medical care, I will address both issues in the same section of the Award.

Issue 2: Is Claimant entitled to payment for past medical expenses in an amount to be determined?

Issue 3: Is Employer responsible for providing future medical care for this injury?

Under Mo. Rev. Stat. § 287.140.1 (2005), "the employee shall receive and the employer shall provide such medical, surgical, chiropractic and hospital treatment as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." Mo. Rev. Stat. § 287.140.3 (2005) also states, "All fees and charges under this chapter shall be fair and reasonable."

Just as Claimant must prove all of the other material elements of his claim, the burden is also on him to prove entitlement to future medical treatment. *Dean v. St. Luke's Hospital*, 936 S.W.2d 601, 603 (Mo. App. 1997) *overruled on other grounds, Hampton v. Big Boy Steel Erection*, 121 S.W.3d at 223 (Mo. banc 2003). Claimant is entitled to an award of future medical treatment if he shows by a reasonable probability that future medical treatment is needed to cure and relieve the effects of the injury. *Concepcion v. Lear Corporation*, 173 S.W.3d 368, 372 (Mo. App. 2005).

Claimant seeks payment for past medical bills in the amount of $161,268.14 for all of the treatment he obtained on his own after his release by Dr. Cantrell on August 13, 2008, including, but not limited to, his low back surgery with Dr. Levy, the post-surgical care, his ongoing pain management (medications and doctors' visits), his spinal cord stimulator implantation and his ongoing marijuana purchases. Claimant also seeks an order providing for ongoing future medical treatment at Employer's expense for the rest of his life to cure and relieve him of the effects, he believes he still has, as a result of the December 24, 2007 work injury.

Claimant's pursuit of these benefits is predicated on his belief that all of this medical treatment, and his ongoing need for more treatment, is medically causally related to, and needed to cure and relieve him of the effects of, the December 24, 2007 work injury. For the reasons described above in more detail, I find that Claimant has failed to meet his burden of proving that all of the medical treatment he obtained on his own after his release by Dr. Cantrell, and his ongoing need for more treatment, is medically causally related to the December 24, 2007 injury.

Based on my review of the medical treatment records, as summarized above, and based on the competent, credible and persuasive medical opinions and testimony of Dr. Coyle, as supported by the opinions and testimony of Dr. Cantrell, I find that Claimant reached the point of

WCO2.01 (1)-81)

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maximum medical improvement for his low back strain, medically causally related to the December 24, 2007 work injury, on August 13, 2008, when he was finally released by Dr. Cantrell. I find that, at that point, Claimant was no longer in need of any continued or ongoing medical treatment for the December 24, 2007 work injury.

I find that the low back surgery, he obtained on his own in December 2009, followed by the extensive, significant, ongoing course of treatment he has received because of the less than optimal result of that surgery, is not related to the December 24, 2007 injury. I find that his need for that surgery and that ongoing care and treatment is, instead, related to a subsequent, unrelated worsening of his low back condition, separate and apart from the December 24, 2007 work injury. As such, I find that none of that past treatment, nor any need for ongoing future medical care and treatment, is medically causally related to the December 24, 2007 injury, nor is it needed to cure and relieve him of the effects of that work injury.

Claimant's request for an award of past medical benefits of $161,268.14, and his request for ongoing future medical care and treatment, as a part of this case, is denied.

Since these next two issues in this case are also inter-related, I will address both of them in the same section of the Award.

Issue 4: Is Claimant entitled to additional temporary total disability (TTD) benefits from December 5, 2009 to January 26, 2010, or 7 4/7 weeks at a rate of 603.51 for a total of 4,568.57?

Issue 7: Was Claimant terminated for post-injury misconduct under Mo. Rev. Stat. § 287.170.4?

Pursuant to Mo. Rev. Stat. § 287.170 (2005), Claimant is entitled to receive temporary total disability compensation benefits for not more than 400 weeks during the continuance of such disability at the weekly rate of compensation in effect for the date of injury for which the claim is made.

However, under Mo. Rev. Stat. § 287.170.4 (2005), if Claimant is "terminated from post-injury employment based upon the employee's post-injury misconduct, neither temporary total disability nor temporary partial disability benefits are payable." The statute notes that "post-injury misconduct" shall not include absence from the workplace due to an injury unless the employee is capable of working with restrictions, as certified by a physician.

The parties agree that Claimant was underpaid temporary total and/or temporary partial disability benefits (TTD/TPD) totaling $430.87 for the period of time of December 28, 2007 to July 7, 2008, which should have been paid if the correct rate of $603.51 had been used for the payment of benefits during that time. Employer agrees to pay Claimant $430.87 as a part of this Award to fully compensate Claimant for his TTD/TPD benefits during this time frame.

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Claimant alleges that he is entitled to an additional $4,568.57 in temporary total disability benefits for the period of time he was off work leading up to, and recovering from, the December 2009 back surgery by Dr. Levy. Employer alleges that Claimant is not entitled to any additional temporary total disability benefits in this case, even if the back surgery is found related to the December 24, 2007 work injury, because he was terminated by Employer for post-injury misconduct.

For the same reasons described above in more detail in the medical benefits section, I find that Claimant has failed to meet his burden of proving that he is entitled to any additional temporary total disability benefits after his release by Dr. Cantrell at maximum medical improvement on August 13, 2008, since the treatment and surgery that gave rise to this disputed period of time off work was not medically casually related to the December 24, 2007 injury.

Additionally, even if the surgery was deemed related to the December 24, 2007 work injury, I find that Claimant would still not be entitled to any additional temporary total disability benefits in this case, because he was terminated by Employer for post-injury misconduct.

I find that Claimant, admittedly, used profanity with a co-worker in a workplace dispute over who would handle certain job duties. Mr. Mahan credibly testified, on behalf of Employer, that the use of profane, abusive, insulting or threatening language within the hearing of a patient and/or visitor was an intolerable offense, which would result in the discharge of the employee. Both Claimant and the co-worker were terminated for the use of profanity during the workplace dispute.

While Claimant acknowledges that he used profanity, he now disputes that there were any patients or visitors present to hear the profanity, so, therefore, it was not a valid termination. Although Mr. Mahan was not present for the actual verbal dispute, I find that the Personnel Action Form dated July 20, 2009, in evidence in this case, contains statements from the time of the verbal altercation that confirm Claimant's use of foul language and confirm the presence of patients, visitors, other nurses and a transporter at the nurses' station when the verbal exchange occurred. Claimant admitted in the documentation that he made a mistake, when he was confronted about it, but nowhere in the documentation do I find Claimant raising any issues regarding the absence of patients or visitors within the hearing of the altercation. And, even if he had raised those concerns at the time of his termination, since he was ultimately still terminated, I find that his assertions, in that regard, were not substantiated.

Therefore, given that Claimant was, in fact, terminated from post-injury employment based upon his own post-injury misconduct, I find that Employer has no liability for any additional temporary total or temporary partial disability benefits in this case under § 287.170.4.

For either of the above-stated reasons, Claimant's request for any additional temporary total disability benefits is denied.

Given that the next two issues are also so inter-related in this claim, and further given Claimant's allegation that he is permanently and totally disabled, I will address these two issues together.

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Issue 5: What is the nature and extent of Claimant's permanent partial and/or permanent total disability attributable to this injury?

Issue 6: What is the liability, if any, of the Second Injury Fund?

Under **Mo. Rev. Stat. § 287.020.6 (2005)**, "total disability" is defined as the "inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent total disability is claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in his present physical condition. *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173 (Mo. App. E.D. 1995) *overruled on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003).

Under **Mo. Rev. Stat. § 287.190.6 (1) (2005)**, "permanent partial disability" means a disability that is permanent in nature and partial in degree. "The claimant bears the burden of proving the nature and extent of any disability by a reasonable degree of certainty. *Elrod v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 138 S.W.3d 714, 717 (Mo. banc 2004). Proof is made only by competent substantial evidence and may not rest on surmise or speculation. *Griggs v. A.B. Chance Co.*, 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. *Id.* at 704. Extent and percentage of disability is a finding of fact within the special province of the [fact finding body, which] is not bound by the medical testimony but may consider all the evidence, including the testimony of the Claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. *Fogelsong v. Banquet Foods Corp.*, 526 S.W.2d 886, 892 (Mo. App. 1975) (citations omitted).

Additionally, under the 2005 amendments to the Workers' Compensation Law, the Legislature added further provisions that have an impact on the determination of the nature and extent of permanent disability. **Mo. Rev. Stat. § 287.190.6 (2) (2005)** states,

> Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures.

Therefore, according to the terms of this statute, it is incumbent upon the claimant to have a medical opinion from a physician that demonstrates and certifies claimant's permanent partial or permanent total disability within a reasonable degree of medical certainty. Further, if there are conflicting opinions from physicians in a given case, then objective medical findings must prevail over subjective findings.

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In cases such as this one where the Second Injury Fund is involved, we must also look to Mo. Rev. Stat. § 287.220 (2005) for the appropriate apportionment of benefits under the statute. In order to recover from the Fund, Claimant must prove a pre-existing permanent partial disability existed at the time of the primary injury. Then to have a valid Fund claim, that pre-existing permanent partial disability must combine with the primary disability in one of two ways. First, the disabilities combine to create permanent total disability, or second, the disabilities combine to create a greater overall disability than the simple sum of the disabilities when added together.

In the second (permanent partial disability) combination scenario, pursuant to Mo. Rev. Stat. § 287.220.1 (2005), the disabilities must also meet certain thresholds before liability against the Second Injury Fund is invoked, and they must have been of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment should employee become unemployed. *Messex v. Sachs Electric Co.*, 989 S.W.2d 206 (Mo. App. E.D. 1999) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. 2003). The pre-existing disability must result in a minimum of 12.5% permanent partial disability of the body as a whole (50 weeks) or 15% permanent partial disability of a major extremity. These thresholds are not applicable in permanent total disability cases.

Where the Second Injury Fund is involved and there is an allegation of permanent total disability, the analysis of the case, essentially, takes on a three-step process:

First, is Claimant permanently and totally disabled?;

Second, what is the extent of Employer's liability for that disability from the last injury alone?; and

Finally, is the permanent total disability caused by a combination of the disability from the last injury and any pre-existing disabilities?

In determining this case, I will follow this three-step approach to award all appropriate benefits under the Statute.

In order to successfully meet his burden of proof on the issue of permanent total disability as a part of this case, Claimant needed to present credible testimony on his own behalf regarding his continued problems, complaints and limitations associated with his disabilities, either from the December 24, 2007 injury alone, or in combination with any pre-existing disability, as well as credible medical/vocational evidence to support his allegation of permanent total disability.

In the case at bar, I find that Claimant would only be potentially successful in his claim for permanent total disability benefits if his subsequent December 2009 back surgery and his ongoing, increased complaints, limitations and pain management treatment were considered as a part of the December 24, 2007 work injury. I find that Claimant's medical and vocational experts (Dr. Poetz and Mr. Weimholt) both clearly include the subsequent back surgery and his worsened complaints following it, as part of the basis for their conclusion that Claimant is permanently and totally disabled.

For the reasons described above in more detail, I have found that December 2009 back surgery, and his ongoing, increased complaints, limitations and pain management treatment following it, are not medically causally related to the December 24, 2007 work injury. Instead, consistent with the credible and persuasive opinions and testimony of Dr. Coyle, I find that they

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represent a subsequent deterioration of his low back condition, unrelated to the December 24, 2007 injury. Therefore, I find that treatment and his ongoing, worsened complaints, problems and functional limitations, as well as any disability related to it, cannot be included as a basis for a finding of permanent total disability in this case. To the extent that both of Claimant's experts include the subsequent, unrelated deterioration in their assessment of disability in this case, I find that I cannot fully rely on either one to support an award of compensation in this matter.

Accordingly, since Claimant has not been successful in connecting the subsequent surgery and worsened low back disability, on account of it, to the December 24, 2007 injury, and since the subsequent treatment and disability are such an integral part of Claimant's allegation of permanent total disability, I find that Claimant has failed to meet his burden of proving that he is permanently and totally disabled, either as a result of the December 24, 2007 injury alone, or as a result of the combination of that injury with any pre-existing disability. I find that neither Employer, nor the Second Injury Fund, has any liability for permanent total disability benefits in this case.

The next step in the analysis, then, is determining the extent of Employer's liability from the last injury alone for permanent partial disability. While I do not necessarily agree with the numerical assessment of disability contained in his report and testimony, based on the competent and credible opinion of Dr. Coyle, I find that Claimant has met his burden of proof to show that Employer is responsible for the payment of permanent partial disability on account of the December 24, 2007 work injury.

The issue of nature and extent of permanent partial disability is further complicated in this case by the pre-existing low back diagnoses and treatment that are noted by virtually every doctor and found in the diagnostic tests in the record of evidence. Mo. Rev. Stat. § 287.190.6 (3) (2005) also provides that, "Any award of compensation shall be reduced by an amount proportional to the permanent partial disability determined to be a preexisting disease or condition or attributed to the natural process of aging sufficient to cause or prolong the disability or need of treatment." Therefore, in the case at bar, when determining how much permanent partial disability Claimant has in the lumbar spine attributable to the work injury, I find that it is necessary to divide out any disability that pre-existed the December 24, 2007 work injury attributable to the prior, symptomatic lumbar spine diagnoses and issues.

I have previously found that Claimant sustained a low back strain, medically causally related to this accident at work on December 24, 2007. I find that that low back strain was superimposed on a previously, occasionally symptomatic lumbar disc herniation at L5-S1, and disc bulge at L4-5, that manifested itself as degenerative disc disease at L5-S1 on the January 11, 2008 lumbar MRI. Prior to December 24, 2007, I find that Claimant had occasional low back complaints and complaints into his left buttock and left leg that caused him to seek medications and other treatment for relief. Following the December 24, 2007 injury, I find that Claimant received injections and physical therapy for his worsened low back complaints, but, ultimately, was released to return to full-duty, full-time work for Employer.

Based upon all of these findings, I find that Claimant has a total of 20% permanent partial disability of the body as a whole referable to the lumbar spine, attributable to the totality of his

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low back condition, pre-existing the December 24, 2007 injury and as a result of it. I, further, find that out of that 20%, 7.5% permanent partial disability of the body as a whole referable to the lumbar spine is attributable to his pre-existing low back condition, leaving 12.5% permanent partial disability of the body as a whole referable to the lumbar spine, as being attributable to the December 24, 2007 injury at work.

Accordingly, I find Employer is responsible for the payment of 50 weeks of permanent partial disability benefits in connection with the December 24, 2007 work injury.

Since I have already found that Claimant is not entitled to permanent total disability benefits from the Second Injury Fund in this case, the final issue for determination, then, is whether Claimant has met his burden of proving an entitlement to permanent partial disability benefits from the Second Injury Fund, based on the combination of the disability from his December 24, 2007 work injury and any pre-existing disabilities. Having thoroughly considered all of the competent and credible evidence in the record, I find that Claimant has met his burden of proof to show an entitlement to a permanent partial disability award against the Second Injury Fund.

Claimant has alleged pre-existing disabilities to the body as a whole referable to the lumbar spine, body as a whole referable to the cervical spine, left shoulder and body as a whole referable to gastroesophageal reflux and irritable bowel syndrome that potentially combine with the disability from the primary 2007 lumbar spine injury to trigger Second Injury Fund liability. In order for the alleged pre-existing disability to actually trigger Second Injury Fund liability, it must meet the appropriate threshold of 12.5% permanent partial disability of the body as a whole (50 weeks) or 15% permanent partial disability of a major extremity and it must be found to have been a hindrance or obstacle to employment or re-employment, should Claimant become unemployed.

With regard to the pre-existing injuries and disabilities Claimant has alleged, I find Claimant has provided testimony and/or evidence to explain the nature of the injuries/disabilities, and the various ways in which these disabilities impacted his ability to work, despite the fact that he continued to work full duty up until the 2007 injury. I also found medical treatment records and/or reports in evidence documenting the treatment Claimant received for these conditions, prior to the December 24, 2007 work injury. I, further, find Dr. Poetz provided diagnoses and opinions on the pre-existing conditions and rated Claimant as having pre-existing permanent partial disability on account of the pre-existing conditions. Dr. Poetz, also, provided a general opinion that the combination of the present and past disabilities exceeds the simple sum.

With regard to the pre-existing cervical spine issues, I find that Claimant had a C5-6 herniated nucleus pulposus, status post C5-6 partial vertebrectomy, microdissection with discectomy and C5-6 fusion with instrumentation from 2006. I find that after the surgery, he had limited range of motion in his neck, and, also, had some pins and needles sensations in the right arm, down to the fourth and fifth fingers. I find that Claimant transferred from a staff nurse position to a dialysis nurse position, while working for Employer prior to December 24, 2007, because it was slower paced and involved less lifting, to accommodate his ongoing neck and arm complaints. Based on this evidence, I find that his pre-existing cervical spine condition was, both, disabling and a hindrance or obstacle to employment prior to December 24, 2007. I find

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that Claimant had 25% permanent partial disability of the body as a whole referable to the cervical spine, and that it combined with the primary low back disability to result in disability significantly greater than the simple sum of the disabilities.

With regard to the pre-existing lumbar spine issues, I find that Claimant had a herniated nucleus pulposus at L5-S1 with residual degenerative disc disease from 1998. As should be clear from my findings earlier on the low back disability that I found attributable to the December 24, 2007 injury, I also found pre-existing permanent partial disability at the level of the lumbar spine attributable to the prior symptomatic L5-S1 disc herniation. However, I find that the lumbar spine disabilities, since they are both to the same part of the body (low back) are merely additive, and there is no greater disability on account of their combination. Since I can find no synergistic combination effect between the pre-existing and primary low back disabilities, I find that I cannot include any pre-existing low back disability in my calculation of Second Injury Fund benefits in this case.

With regard to the pre-existing left shoulder, gastroesophageal reflux disease and irritable bowel syndrome issues, I find Claimant was diagnosed with a left shoulder rotator cuff sprain from 1997 and gastroesophageal reflux disease and irritable bowel syndrome. Regarding the left shoulder, after a course of conservative treatment, Claimant returned to work with only self-imposed guarding that made him slower with some activities, by his own report. Regarding the gastroesophageal reflux disease and irritable bowel syndrome issues, Claimant reported that he might have to go to the bathroom more urgently at times and take more breaks. In his testimony, Dr. Poetz, also, waffled on whether any disability regarding the gastroesophageal reflux disease and irritable bowel syndrome issues was really pre-existing, or, instead, attributable to the increased medications Claimant was taking for pain relief after his failed low back surgery in 2009. Based on this evidence, I find that any disability Claimant may have had for these issues pre-existing the December 24, 2007 work injury is minimal, at best, and, in fact, too minimal to actually combine with the primary low back disability to result in a significantly greater disability than the simple sum of the disabilities when added together. Since I find the disabilities for these issues too minimal to combine, I find that I cannot include them in any calculation of Second Injury Fund benefits in this case.

Given the applicable statutory thresholds of 15% of a major extremity or 12.5% of the body as a whole (50 weeks), I find that the pre-existing body as a whole disability referable to the cervical spine meets the statutory threshold to trigger Second Injury Fund liability. I further find that the pre-existing body as a whole referable to the cervical spine disability was of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. Finally, consistent with Dr. Poetz's opinion on combination, I find that the combination of the pre-existing cervical spine and primary lumbar spine disabilities creates a substantially greater disability than the simple sum or total of each separate injury/illness, and so a loading factor should be added. I, therefore, find that Claimant is entitled to receive 22.5 weeks of compensation from the Second Injury Fund.

In order to calculate the amount of this award from the Second Injury Fund, I added together all of the qualifying disabilities and assessed a loading factor of 15% [12.5% of the body as a whole referable to the lumbar spine (50 weeks) + 25% of the body as a whole referable to the cervical spine (100 weeks) = 150 total weeks of compensation times the 15% loading factor =

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22.5 weeks from the Fund]. I arrived at the 15% loading factor based on the evidence submitted at trial, the severity of the disabilities that combined to create the Second Injury Fund liability in this case, the involvement of symptoms in both the upper and lower portions of the spine (upper and lower extremities) and the impact the combined disabilities had on Claimant's ability to work or compete for work in the open labor market.

Accordingly, the Second Injury Fund is responsible for the payment of 22.5 weeks of permanent partial disability pursuant to this award.

Issue 8: Is Claimant entitled to a finding of dependency and Schoemehl benefits pursuant to Schoemehl v. Treasurer of the State of Missouri, 217 S.W.3d 900 (Mo. 2007)?

Pursuant to Schoemehl v. Treasurer of the State of Missouri, Claimant alleged that if he was found to be permanently and totally disabled, then his partner should be found to be his dependent, and entitled to collect permanent total disability benefits for the rest of the dependent's life, after Claimant dies. While Claimant raises issues regarding how dependency is defined under the statute, and whether an unmarried, unrelated couple can be deemed dependents of each other, for purposes of the Workers' Compensation Statute, all of his arguments are predicated on a finding that he is entitled to collect lifetime permanent total disability benefits. Given my rulings above that Claimant has failed to prove that he is entitled to receive permanent total disability benefits as a part of this case, I find that this is a moot issue, which will not be further addressed in this Award.

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CONCLUSION:

Claimant sustained an accidental injury on December 24, 2007, arising out of and in the course of Claimant's employment for Employer. Claimant was working as a dialysis nurse for Employer, performing his regular job duties, and he was attempting to lift and move a 200-pound patient up in bed with the help of a co-worker, when he felt a grinding pain in his low back with pain down his legs. On the basis of Dr. Coyle's competent, credible and persuasive medical opinions, as well as based on the medical treatment records, as described above, Claimant sustained a low back strain, medically causally related to the December 24, 2007 work injury.

In light of the pre-existing symptomatic disc pathology at L5-S1, and the significant subsequent disc pathology changes discovered at that same level in late 2009, Claimant has failed to meet his burden of proving that any disc pathology in the low back was medically causally related to his low back injury on December 24, 2007. Additionally, Claimant has failed to meet his burden of proving that the low back surgery performed by Dr. Levy, and/or all of the medical treatment he received following that low back surgery, as a result of his ongoing complaints from the surgery, are medically causally related to the December 24, 2007 work injury. The December 24, 2007 work injury was not the prevailing factor in causing any disc pathology, need for surgery, or any treatment after the surgery on account of his ongoing complaints related to the surgery.

Claimant reached the point of maximum medical improvement for his low back strain, medically causally related to the December 24, 2007 work injury on August 13, 2008, when he was finally released by Dr. Cantrell. At that point, Claimant was no longer in need of any continued or ongoing medical treatment for the December 24, 2007 work injury. Claimant's request for an award of past medical benefits of $161,268.14, and his request for ongoing future medical care and treatment, as a part of this case, is denied.

Claimant was underpaid temporary total and/or temporary partial disability benefits (TTD/TPD) totaling $430.87 for the period of time of December 28, 2007 to July 7, 2008, which should have been paid if the correct rate of $603.51 had been used for the payment of benefits during that time. Employer agrees to pay Claimant $430.87 as a part of this Award to fully compensate Claimant for his TTD/TPD benefits during this time frame.

Claimant has failed to meet his burden of proving that he is entitled to any additional temporary total disability benefits after his release by Dr. Cantrell at maximum medical improvement on August 13, 2008, since the treatment and surgery that gave rise to this disputed period of time off work was not medically causally related to the December 24, 2007 injury. Additionally, even if the surgery was deemed related to the December 24, 2007 work injury, Claimant would still not be entitled to any additional temporary total disability benefits in this case, because he was terminated by Employer for post-injury misconduct. Claimant's request for any additional temporary total disability benefits is denied.

Claimant has failed to meet his burden of proving that he is permanently and totally disabled, and unable to compete for employment in the open labor market, regardless of whether the December 24, 2007 injury is considered in isolation, or a combination of his alleged primary and pre-existing disabilities is considered. Neither Employer, nor the Second Injury Fund, has

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any liability for permanent total disability benefits in this case. Claimant has 12.5% permanent partial disability of the body as a whole referable to the lumbar spine, related to the December 24, 2007 injury at work.

Claimant met his burden of proof on his entitlement to permanent partial disability benefits from the Second Injury Fund, only with respect to his pre-existing cervical spine disability. He failed to meet that burden of proof with regard to the pre-existing lumbar spine, left shoulder, gastroesophageal reflux disease and irritable bowel syndrome issues. Claimant had permanent partial disability of 25% of the body as a whole referable to the cervical spine, which pre-existed the December 24, 2007 work injury. Based on the applicable thresholds, the pre-existing cervical spine disability meets the statutory threshold to trigger Second Injury Fund liability. Claimant also met his burden of proof to show that the pre-existing cervical spine disability was of such seriousness so as to constitute a hindrance or obstacle to employment or re-employment, should Claimant become unemployed. The Second Injury Fund is to pay 22.5 weeks of permanent partial disability benefits.

Given that Claimant has failed to prove that he is entitled to receive permanent total disability benefits as a part of this case, the remaining issue on dependency is moot and will not be further addressed in this Award.

Compensation awarded is subject to a lien in the amount of 25% of all payments in favor of Mr. Ronald D. Edelman, for necessary legal services.

I certify that on 12-2-19 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

By __________________________

Made by __________________________

JOHN K. OTTENAD

Administrative Law Judge

Division of Workers' Compensation

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