Randall Clinkenbeard v. Department of Corrections

**Injury No.:** 14-089634

**Employee:** Randall Clinkenbeard

**Employer:** Department of Corrections

**Insurer:** Central Accident Reporting Office

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. We have reviewed the evidence, read the parties' briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we reverse the award and decision of the administrative law judge.

At the hearing on April 1, 2019, the parties asked the administrative law judge to resolve the following issues: 1) Liability of the Second Injury Fund; and 2) Employer's liability for future medical care.

The Employer/Insurer (Employer) and the Employee stipulated to the degree of permanent partial disability for the primary injury referable to the left shoulder as 27.5% (at the 232 week level) and to the left elbow as 10% (at the 210 week level). The Second Injury Fund did not stipulate to the level of permanent partial disability attributable to the work injuries. Employer and Employee stipulated to a lump sum payment, as set forth in Exhibit 30 of the hearing record, leaving only the future medical issue for the hearing. All parties stipulated to the date of maximum medical improvement (MMI) as January 19, 2016.

The administrative law judge determined that the Second Injury Fund is liable for permanent total disability benefits beginning September 3, 2017, (84.8 weeks after the stipulated date of MMI), at the stipulated compensation rate of $402.00 per week. The administrative law judge adopted the stipulated primary injury disability ratings.

The Second Injury Fund filed a timely application for review with the Commission alleging the administrative law judge erred in not applying the correct section of the law regarding Second Injury Fund liability consistent with the plain meaning of § 287.220 RSMo and the decision of the Supreme Court in *Cosby v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund*, 579 S.W. 3d 202 (Mo banc 2019), decided on June 25, 2019.¹

No application for review to the Commission was filed by Employee or Employer. The issue of future medical care was not before the Commission. The administrative law judge's ruling on this issue is final.

---

¹ *Cosby* was decided by the Labor and Industrial Relations Commission on August 16, 2017. As constitutional claims were raised, the matter was appealed to the Missouri Supreme Court on July 23, 2018, and oral argument was heard on October 24, 2018. At the time of the hearing in the instant matter in April 2019, *Cosby* was pending, and was handed down in June 2019, the same month as the Award by the administrative law judge in this case.

Injury No.: 14-089634

Employee: Randall Clinkenbeard

-2-

We note that, although Employee did not file an application for review, he requested that the Commission consider that the matter should be remanded to the Division of Workers' Compensation for further evidence. We deny that request.

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

Amendments to the Workers' Compensation Act, specifically, § 287.220.3 were enacted by the legislature in 2013. Those amendments clearly set forth that the amended section applies to all claims against the Second Injury Fund for injuries occurring after January 1, 2014.

This section provides, in pertinent part:

> Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

>

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

>

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

>

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

>

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

>

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

>

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

Employee's October 28, 2014, primary injury by accident to his left shoulder, resulted in a 27.5% permanent partial disability (at the 232 week level); and a 10% permanent partial disability (at the 210 week level) to his left elbow. The injury occurred after January 1, 2014, and therefore we are required to apply the law under § 287.220.3. The administrative law judge erred in this respect by applying § 287.220.2 RSMo.

Injury No.: 14-089634

Employee: Randall Clinkenbeard

-3-

Our ruling here is, in the first instance, governed by the clear and unambiguous words of the statute, which mandates that we "shall construe the provisions of this chapter strictly." § 287.800 RSMo. In looking to the words of § 287.220.3, it is clear on its face that a claim against the Second Injury Fund for "injuries occurring after January 1, 2014," (injury is defined by reference to § 287.020 RSMo), is to be compensated in accordance with § 287.220.3.

The amendments to the statute were set forth long prior to the hearing in this matter (April 2019), and well before the work injury of October 28, 2014. The new terms of subsection 3 were promulgated well in advance of the effective date of January 1, 2014. The unambiguous language of the statute sets forth that a claim for injury occurring after that date would be governed by § 287.220.3. Employee argues that a "retroactive application" of the Supreme Court's decision in *Cosby* would work an injustice to him. *Id.* However, *Cosby* merely affirmed that the plain words of the statute should be followed. In discussing the plain and ordinary meaning of the statute, the Court stated:

> "When read in the context of section 287.220 as a whole, section 287.220.2 must be interpreted to apply to all cases of permanent disability in which all injuries, including the subsequent compensable injury, occurred prior to January 1, 2014. Section 287.220.3 applies to all PTD or PPD claims against the fund in which any injury arising out of or in the course of employment, including the subsequent compensable injury occurred after January 1, 2014."

*Cosby v. Treasurer of the State of Missouri as Custodian of the Second Injury Fund*, 579 S.W. 3d 202 at 207 (Mo banc 2019).

We reject employee's argument that § 287.220.2 should apply to his case. He argues that although *Cosby* effectively abrogated *Gattenby v. Treasurer of Missouri*, 516 S.W.3d 859 (Mo. App. W.D. 2017)², had the *Cosby* decision been rendered prior to his hearing, he may have taken a different strategy in settling with the employer, and in presentation of his case. He goes so far as to suggest we should revisit the stipulations which the parties previously voluntarily adopted as binding, and to remand to revisit the liability of all parties. We reject that argument and in accordance with the law must give effect to the parties' previously adopted stipulations and voluntary agreements of settlement, in this case, with the objective of settling employer's obligations to employee, in all respects but the issue of future medical. *Bock v. Broadway Ford Truck Sales Inc.*, 55 S.W. 3d 427, 436 (Mo. App. E.D. 2001; (See also Exhibit 30, the written stipulation and agreement). If we did not do so, any party, who later regretted the terms of its bargained for settlement, could reopen their case and prolong the dispute indefinitely.

No qualifying preexisting disability has been established.

² *Gattenby* was decided by the Missouri Court of Appeals for the Western District. Jurisdiction in the instant matter was within the Southern District of Missouri. *Gattenby* held that section 287.220.3 applied where both the preexisting and primary injuries occurred after January 1, 2014. *Cosby* held that *Gattenby* should no longer be followed to the extent it was inconsistent with the Court's opinion. *Cosby* at 208, n. 5. Since that time in the wake of *Cosby*, the Western District has ruled in *Dubuc v. Treasurer of the State of Missouri*, 597 S.W.3d 372 (Mo. App. 2020) and *Treasurer of the State of Missouri v. Parker*, No. WD83030, (July 14, 2020). That matter is now on transfer to the Missouri Supreme Court. The Missouri Court of Appeals for the Eastern District affirmed the Commission's ruling in *Bennett v. Treasurer of State*, No. ED108713, (Aug. 25, 2020) that Fund liability did not exist where the employee did not prove permanent total disability resulted from his primary injury with a single preexisting right shoulder injury. The Courts' rulings are somewhat at odds at this time.

Injury No.: 14-089634

Employee: Randall Clinkenbeard

-4-

Dr. David Volarich offered medical reports on November 7, 2016 and on September 22, 2017, after examination of employee, and review of records. He cited the numerous preexisting injuries and conditions claimed by employee (as set forth in the administrative law judge's decision and award at page 10), and concluded that based on all the cited conditions, in combination with his primary injury, employee was permanently and totally disabled. Mr. Phillip Eldred, vocational rehabilitation specialist, also opined that the combination of all the preexisting conditions with employee's primary injuries resulted in permanent total disability.

The analysis under § 287.220.3, at the outset involves the following two requirements. First, a showing of a medically documented preexisting disability that reaches the threshold of 50 weeks permanent partial disability. Second, the preexisting disability must meet one of the qualifying types of disabilities listed in subparts i - iv of § 287.220.3(2)(a)a. or § 287.220.3(2)(b). If either one of these is absent, Second Injury Fund liability does not exist. Only after these two qualifying conditions are met, do we reach the final piece of the analysis. We can find Second Injury Fund liability only if "employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) ... results in a permanent total disability..." Id. (Our emphasis)

There was no evidence that any of the prior injuries were the direct result of active military duty (sub i). The evidence before us does not establish that any of the preexisting conditions or injuries were compensable injuries³, as defined in section 287.020.3 RSMo (sub ii). It was not shown that any preexisting condition directly and significantly aggravated or accelerated the subsequent work injury (sub iii). None of the injuries were related to work in a sheltered workshop, as set forth in 287.220.3(2)(b).

There is evidence to show a preexisting fracture of the right shoulder from 2009, which was a non-work-related injury. Therefore, subsection (2) (a) (iv) of § 287.220.3 addressing an opposite extremity requires consideration. However, no medical opinion supports the conclusion that the combination of the right shoulder preexisting condition and any resulting disability, combined with the left shoulder and elbow primary injuries to result in permanent total disability. Rather, Dr. Volarich and Mr. Eldred opined that it was all the preexisting conditions together that combined to result in permanent total disability with the primary injury.

We find that permanent total disability has not resulted from a combination of employee's primary injuries to his left extremity and a preexisting disability to his right shoulder. We find the other claimed preexisting conditions and injuries do not qualify under § 287.220.3.

Conclusions of Law

Employee's permanent partial disability resulting from the last (primary) injury does not combine with any preexisting qualifying disability to result in total and permanent disability pursuant to the provisions of § 287.220.3(2). We therefore conclude that the Second Injury Fund is not liable for permanent total disability benefits.

As noted above, the administrative law judge's award denying future medical treatment became final when employee did not file a timely application for review. Employee is not entitled to future medical treatment from the employer/insurer.

3 There is some indication that a workers' compensation claim was filed and later dismissed in regard to one of the knee injuries addressed by employee. Other causes of knee pain unrelated to any work exposure are also present in the record.

Employee: Randall Clinkenbeard

-5-

We reverse the award of the administrative law judge.

Employee's claim against the Second Injury Fund is denied because employee failed to demonstrate that the primary injury combines with a qualifying preexisting disability under § 287.220.3, to establish permanent total disability.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued June 7, 2019 is attached for reference.

Given at Jefferson City, State of Missouri, this 23rd 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.: 14-089634

Employee: Randall Clinkenbeard

After a review of the evidence, having read the parties' briefs and heard their arguments, I am convinced that the appropriate course of action under these unique circumstances is to remand this matter to the administrative law judge to allow for the presentation of additional evidence.

After the parties submitted their case to the administrative law judge following the April 1, 2019 hearing, the Supreme Court of Missouri decided the case of *Cosby v. Treasurer of State of Missouri as Custodian for Second Injury Fund*, 579 S.W.3d 202 (Mo. banc 2019). That case was decided on June 25, 2019, just days after the issuance of the administrative law judge's Award in this matter on June 7, 2019. In its decision, the Supreme Court abrogated the holding in the 2017 case of *Gattenby*⁴ and held that if the date of an employee's primary injury was after January 1, 2014, § 287.220.3 RSMo, not § 287.220.2 RSMo applied to the employee's Second Injury Fund claim. In the case before us, the administrative law judge applied § 287.220.2, and in so doing, there was no need to address the additional qualifications for preexisting conditions, as set forth in § 287.220.3. Based on a reasonable conclusion by employee's counsel that *Gattenby* was the state of the law at the time of preparing the case for hearing, the need for establishing the connection between any one specific, qualifying preexisting disability with the primary injury, was not part of the case development and presentation.

The Second Injury Fund filed an application for review challenging the administrative law judge's reliance on §287.220.2 to decide the case and pointing to the ruling in *Cosby*. The employee did not file an application for review to the Commission in this matter. However, in response to the Second Injury Fund's application to the Commission, based on the ground that the incorrect provision of law was applied, employee's attorney requested that should we adopt the Second Injury Fund's argument, he should be provided an opportunity to provide additional evidence specific to the issue. Effectively, the employee's request is a motion to reopen the record for a supplemental hearing for additional evidence. 8 CSR 20-3.030)(2) In the furtherance of justice, I believe that is what should occur here, given that the state of the law was, and still is, subject to further qualification and refinement, as suggested by the cases which are being presented to the appellate courts at the time of this writing. If employee were to take this matter up to the Court of Appeals, in all likelihood, the Court would be in the same position as we are now, of deciding whether to allow employee the opportunity to supplement the record so that a proper review under § 287.220.3 could be undertaken.

Because I disagree with the majority's decision to deny Second Injury Fund liability without a full opportunity for employee to present his case under the current state of the law, I must respectfully dissent.

Shalonn K. Curls, Member

⁴ *Gattenby v. Treasurer of Missouri*, 516 S.W. 3d 859 Mo. App. W.D. 2017, (transfer denied) *Gattenby* was routinely cited by parties in Second Injury Fund cases for the proposition that both the preexisting and primary injuries both need to be after the effective date of January 1, 2014, in order for § 287.220.3 to apply. In the instant case, only the primary injury arose after January 1, 2014.

**Injury No. 14-089634**

**Before the**

**DIVISION OF WORKERS' COMPENSATION**

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

**Checked by: VRM/ps**

1. Are any benefits awarded herein? Yes.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: October 28, 2014.
5. State location where accident occurred or occupational disease was contracted: Licking, Texas County, Missouri.
6. Was above Claimant in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work Claimant was doing and how accident occurred or occupational disease contracted: During the course and scope of employment, Claimant pulled open the hood of a semi-truck when he felt a pop in his left elbow, immediate pain into his shoulder, and swelling in his hand.
12. Did accident or occupational disease cause death? No. Date of death? N/A.
13. Part(s) of body injured by accident or occupational disease: Upper left extremity.
14. Nature and extent of any permanent disability: See below.
15. Compensation paid to-date for temporary disability: Employer had paid 2 days of TTD; however; Employer agrees to pay an additional 24 weeks and 6 days.
16. Value necessary medical aid paid to date by employer/insurer? $42,926.91.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Randall Clinkenbeard

Injury No.: 14-089634

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

1. Claimant's average weekly wages: 603.00.

1. Weekly compensation rate: 402.00.

1. Method wages computation: By stipulation.

**COMPENSATION PAYABLE**

1. Amount of compensation payable:

24 and 6/7 weeks of unpaid Temporary Total Disability (per stipulation) and 84.8 weeks of Permanent Partial Disability (per stipulation):

**TOTAL:**

$44,082.18 (per stipulation)

1. Second Injury Fund liability: See below.

1. Future requirements awarded:

No future medical is awarded.

The Second Injury Fund is liable for permanent total disability. The date of maximum medical improvement is January 19, 2016. Because there is no differential between the permanent partial disability and permanent total disability rates, weekly benefits of $402.00 from the Second Injury Fund shall begin September 3, 2017, (84.8 weeks after the stipulated date of MMI), and continuing for the remainder of Claimant's lifetime.

This Award is 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 percent of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Van Camp Law Firm, LLC.

**Claimant:** Randall Clinkenbeard

**Injury No. 14-089634**

Employer paid $114.86 in temporary total disability benefits. Employer has agreed to pay an additional 24 weeks and 6 days of temporary total disability benefits as a part of the stipulations reached prior to the hearing.

Employer paid $42,926.91 for Claimant's medical treatment.

Claimant reached maximum medical improvement on January 19, 2016.

Employer and Claimant agree that Claimant sustained a 27.5 percent permanent partial disability to the left shoulder at the 232 week level and 10 percent permanent partial disability of the left elbow at the 210 week level. The Second Injury Fund does not join in the stipulation regarding the degree of disability.

The issues to be resolved by hearing include:

1. Is Employer responsible for future medical care to cure and relieve the effects of the work injury?
2. What is the nature and extent of disability against the Second Injury Fund, if any?
3. What is the nature and extent of disability from the primary injury, as it pertains to any Second Injury Fund liability?

Claimant testified on his own behalf and presented the following exhibits, all of which were admitted into evidence:

Employer did not call any witnesses, but presented the following exhibit, which was admitted into evidence:

The Second Injury Fund did not call any witnesses and offered no exhibits.

Claimant is a 60-year-old man who resides with his wife in a one-story home in Groesbeck, Texas. He graduated from high school in 1976. He studied air conditioning and refrigeration in technical school, but never worked in that field. After graduating from high school, Claimant worked at a supermarket for 19 years as an Assistant Manager, stocking produce and shelves and unloading trucks. While working as a volunteer fire fighter over the course of 30 years, he earned about 12 hours of college credit.

Claimant took a job with the Department of Corrections in 1996 to obtain better pay and benefits. His last job with the Department was at the Sally Port which allowed him to sit down between searching trucks. On October 28, 2014, while working in his capacity as a corrections officer, he was pulling open the hood of a semi-truck when he felt a pop in his elbow and immediate pain from his elbow into his shoulder. His hand swelled so rapidly that he had to remove his ring and watch. Claimant reported his injury to the Employer and filed a Claim for Compensation.

Employer accepted compensability of the claim and authorized treatment. When seen at the emergency room on the date of the injury, he was diagnosed with a left arm injury, placed in a sling, prescribed medications and placed on light duty. He followed-up with Dr. Atiles on November 3, 2014, who diagnosed a strain and ordered an MRI of the left elbow, which revealed moderate effusion, soft tissue edema, and a sprain of the medial collateral ligament. This MRI was reviewed on November 6, 2014, when he was diagnosed with medial and lateral epicondylitis and prescribed medications and physical therapy. On November 25, 2014, Dr. Atiles noted persistent pain in the left elbow and left shoulder and ordered an MRI of the left shoulder.

On December 15, 2014, Dr. Swango noted ongoing pain in the left shoulder and elbow as well as numbness and tingling in the left index and middle fingers. He ordered an EMG/NCS, which came back normal and continued physical therapy and light duty restrictions.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Randall Clinkenbeard

Injury No. 14-089634

Dr. Lennard evaluated Claimant on January 27, 2015, and noted ongoing pain in the left shoulder and left elbow with limited motion of the elbow and occasional numbness and tingling in the fingers. Dr. Lennard continued physical therapy and restrictions before ordering an MRI of the left shoulder on February 24, 2015. The MRI of the left shoulder revealed a SLAP tear, tenosynovitis of the long head of the biceps and moderate osteoarthritis of the AC joint.

On March 17, 2015, Dr. Hicks diagnosed Claimant with a left elbow medial collateral ligament strain and a left shoulder SLAP tear and recommended surgery for the shoulder. On April 1, 2015, Dr. Hicks performed a left shoulder arthroscopy, synovectomy, labral debridement, subacromial decompression, and distal clavicle resection. Claimant underwent postoperative physical therapy. On April 16, 2015, Dr. Hicks noted persistent pain and limited motion in the left elbow and ordered a repeat MRI, which showed tendinopathy, effusion and small tissue edema. Dr. Hicks reviewed the MRI on May 14, 2015, and continued physical therapy and restrictions. On June 11, 2015, Dr. Hicks recommended a second opinion due to Claimant's persistent left shoulder pain.

Dr. Miller evaluated Claimant on June 29, 2015. He did not recommend surgery and returned Claimant to the care of Dr. Hicks. Dr. Hicks released Claimant from his care on July 9, 2015, with a permanent lifting restriction of 20 pounds.

Dr. Cantrell performed an IME on July 13, 2015, and ordered a CT scan of the left elbow. Dr. Snyder also performed an IME on October 22, 2015, and recommended an MRI/arthrogram of the left shoulder, which revealed rotator cuff tendinopathy and a possible small labral tear. Dr. Cantrell reviewed the CT scan, MRI, and a repeat EMG/NCS. He recommended an injection in the left shoulder, which was performed by Dr. Hurford on January 5, 2016. When the injection provided no relief, Dr. Cantrell released Claimant at MMI on January 19, 2016.

Preexisting Conditions

1. Right Shoulder

Claimant hurt his shoulder on February 6, 2009, when he fell at least 15 feet from a roof while adjusting a satellite dish. He was diagnosed with an avulsion fracture of the right greater tuberosity and a fracture of the neck of the proximal right humerus. To treat his injury, he wore a sling and underwent a course of physical therapy. Leading up to his 2014 injury, Claimant suffered from constant aching pain which increased with activity. He had reduced range of motion, weakness, grinding, and popping as well and difficulty reaching overhead and behind his back. He had problems sleeping on his right side. Claimant had to reduce his hunting and prop his gun up when he did hunt as a result of the right shoulder injury.

1. Bilateral Knees

Claimant fell off a roof on August 8, 2009, and injured his right knee while running to an emergency at work on May 5, 2010. He initially received conservative treatment; however, on August 3, 2010, Claimant underwent a lateral release, synovectomy, and chondroplasty of the medial femoral condyle and lateral patella. On September 28, 2010, Claimant had the same surgery on his left knee. An MRI of the left knee on January 29, 2013 showed a degenerative tear of the medial meniscus and three compartmental chondromalacia. On March 26, 2013, Claimant underwent a second surgery on his left knee, this time consisting of a medial menisectomy and a revision of the synovectomy. After the second surgery, Claimant

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Randall Clinkenbeard

Injury No. 14-089634

received a Synvisc injection in the left knee and discussed a total knee replacement. He also received a cortisone injection in the right knee on January 17, 2014.

Leading up to the October 28, 2014 injury, Claimant suffered constant aching and throbbing pain in both knees that was worse with activity, popping, grinding, and catching in both knees. He also walked with a limp. Claimant's symptoms prompted his move to the Sally Port where there were no stairs, no responding to officer calls, and where he could sit down in between trucks to ice and elevate his legs. He wore a knee brace on his left knee under his Department of Corrections uniform. He missed work one to two times each month due to his knee symptoms.

1. Bilateral Hips

Beginning in 2010, Claimant suffered from painful osteoarthritis and trochanteric bursitis. His pain increased with sitting, standing, and walking on concrete or unlevel ground.

1. Back

Since his time working in the grocery store, Claimant suffered back pain with sciatica. An MRI showed degenerative disc disease at L5-S1 with a small extrusion, but no root impingement. Claimant had reduced range of motion in his low back, making it hard for him to even tie his shoes. To treat his symptoms, Claimant testified that he would lie down. He also took Tylenol and ibuprofen, and used a heating pad. His low back pain played a part in his decision to move to a position at the Sally Port.

1. Sleep Apnea

Claimant was diagnosed with sleep apnea in approximately 2007 and narcolepsy in 2009. Because of the narcolepsy, Claimant was restricted in driving. He changed his work schedule to match his wife's hours so she could drive him to work. Claimant was tired and often fell asleep, even at work. This was another reason for his transfer to the Sally Port.

1. Left Wrist

In the 1980s, Claimant injured his left wrist while cutting a branch with a chainsaw. He underwent surgery to repair the wound, receiving hundreds of stiches. He still suffers numbness in his thumb, first finger, and wrist, as well as reduced grip strength.

1. GERD/Acid Reflux

Also in the 1980s, Claimant was diagnosed with GERD/Acid Reflux. He underwent surgery which now prevents him from vomiting. He has to be careful with his diet to avoid burning pains. He had missed several days of work due to these conditions.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Randall Clinkenbeard

Injury No. 14-089634

1. Diabetes

Claimant was diagnosed with diabetes in 2007, for which he treats with Metformin, Glipizide, and insulin. He has suffered from numbness and tingling in his feet and was tired and grumpy when his sugars got either too high or too low.

1. Restless Leg Syndrome

Since his diagnosis in 2010, Claimant has taken Requip to treat restless leg syndrome help him sleep.

1. Cataracts and Deafness

Leading up to his October 28, 2014 injury, Claimant has worn glasses and hearing aids in both ears due to the development of cataracts and a bilateral hearing deficit.

Ongoing Symptoms

Leading up to the October 28, 2014 injury, Claimant had numerous physical problems that made working most difficult. Since the work injury in 2014, Claimant now continues to suffer from pain and reduced strength and range of motion in his left shoulder and left elbow. Claimant credibly testified he used to rely on his left arm to compensate for the problems he had with his right shoulder. He no longer can do that. He has a lot of problems lifting with his left arm, that when combined with the problems he was already having with his right shoulder, knees, hips, and low back, he has difficulty performing daily tasks.

Claimant's grip strength already was limited from a prior wrist injury, but now he is even weaker due to the work-related injury on October 28, 2014. He already had problems sleeping due to sleep apnea, GERD, narcolepsy, and restless leg syndrome. Now that his left shoulder and left elbow pain are waking him multiple times at night, his tiredness has increased.

On a normal day he wakes up and piddles around the house before he has to sit down and take a break. He sleeps 3 to 4 hours during the day. He might go to the grocery store with his wife, but often has to go back to the car to wait for her to finish or use a scooter because of his pain. On a bad day he spends all of his time either in bed or in his recliner.

Because of his injuries, Claimant's wife takes care of the yard work and repairs around the house. He has not hunted since 2014. He recently tried to shoot his .22, but he could not hold the gun steady, so he didn't even fire it.

While Claimant owns a laptop, he types with one finger and does not use Microsoft programs. While working for the Department of Corrections, he was required to submit reports, but his wife typed his reports from Claimant's handwritten notes.

Claimant has not worked since he was approved for Social Security Disability in May 2016. He has not applied for unemployment or any other jobs because of his multiple injuries and conditions, including those from the last work injury.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Randall Clinkenbeard

Injury No. 14-089634

Dr. Michael Snyder, a board-certified orthopedic surgeon specializing in upper and lower extremities, evaluated Claimant and issued a written opinion on October 22, 2015. Dr. Snyder recommended further treatment including an MRI arthrogram on the left shoulder due to his continued symptoms. He also recommended cortisone injections, dynamic splinting and possibly a capsular release for the left elbow. Dr. Snyder noted that the prognosis for surgery on the left elbow was very guarded. At the time of his report, Dr. Synder did not believe Claimant was at maximum medical improvement. He did not render a permanency opinion. After Dr. Snyder's suggestions, further testing was completed and an injection was provided, but it was of no benefit to Claimant.

Claimant was evaluated by Dr. Volarich on November 7, 2016. Dr. Volarich noted that Claimant continued to have pain in his left shoulder that radiated to his shoulder girdle and increased with activity, reaching overhead, and elevating his arm. Dr. Volarich noted limitations in abduction as well as reaching behind the back, across the body, and overhead. Regarding the left elbow, Dr. Volarich noted ongoing pain that increased with use of the left arm, limited range of motion, and pain that radiated into the forearm. Dr. Volarich diagnosed Claimant with a left elbow medial collateral ligament strain with irreversible aggravation of arthritis and left shoulder internal derangement (labral tear with impingement). He rated Claimant's disability at 45 percent of the left shoulder and 20 percent of the left elbow and provided restrictions regarding the use of Claimant's left shoulder and left elbow as follows:

1. He should limit overhead use of the left arm and prolonged use of the left arm away from his body especially above chest level.
2. He should minimize pushing, pulling, and particularly traction maneuvers with the left upper extremity. He is instructed on the proper ergonomic use of his upper extremities.
3. He should not handle weight greater than about 3 pounds with his left arm extended away from his body to overhead, and limit these tasks to as needed or as tolerated.
4. He can handle weight to tolerance with the left arm dependent assuming proper lifting techniques, but in general, I would recommend 15 pounds with the left arm alone.
5. He is advised to pursue an appropriate strengthening, stretching, and range of motion exercise program daily for his shoulders to tolerance.

1. He is advised on proper ergonomic use of the left upper extremity, and to avoid using this extremity in an awkward or blind fashion.
2. He should minimize repetitive gripping, pinching, squeezing, pushing, pulling, twisting, rotatory motions, and similar tasks and limit to tolerance.
3. He should avoid impact and vibratory trauma to the left hand, and should use appropriate braces, anti-vibration gloves, support straps and other protective devices as needed.
4. He can handle weights to tolerance with the left arm extended away from his body, as well as with this arm dependent close to his body, assuming proper lifting techniques.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Randall Clinkenbeard

Injury No. 14-089634

1. He is advised to continue a strengthening, stretching, and range of motion exercise program for this extremity to tolerance daily.

(Ex. B, pp. 7-8)

In a supplemental report dated September 22, 2017, Dr. Volarich noted that leading up to the injury on October 28, 2014, Claimant suffered from right shoulder pain that interfered with his ability to do household activities and engage in recreational activities. He reported that due to his right shoulder symptoms, Claimant had to be careful when working, limited his lifting, and bid to work somewhere other than general population so he could avoid takedowns and altercations. Dr. Volarich also detailed the problems Claimant had with his knees leading up to the primary injury including pain in both knees, especially with squatting, kneeling, and maneuvering stairs. Dr. Volarich noted that Claimant took the occasional day off from work because of his knees and had to limp and wear a knee brace at work. Regarding his hips, Dr. Volarich noted that Claimant had pain that was made worse by sitting and standing. He took medications for his hips and took mini breaks as needed at work. Claimant also had problems with his low back as noted by Dr. Volarich. Specifically, he had pain at the midline and along the iliac crest with what felt like knots in his muscles. He described the pain as a constant, dull pain that increased with activity and became sharp a couple of times a week with spams. Dr. Volarich also discussed Claimant's sleep apnea, noting that his co-workers looked out for him when he fell asleep at work and his wife drove him to and from work. Regarding the left wrist, Dr. Volarich noted numbness along the radial forearm, wrist pain with loss of flexion at the thumb, and loss of grip strength. Dr. Volarich noted that due to Claimant's GERD, he had to take days off work any time he had a GI illness because it would take a long time for his symptoms to resolve. Finally, Dr. Volarich noted that Claimant's diabetes has led to polyuria and polydipsia, which meant he was constantly thirsty and had to take frequent breaks to urinate. He also noted that Claimant's mood was affected by his blood sugars. Dr. Volarich diagnosed Claimant with the following preexisting injuries and conditions:

1. Right shoulder avulsion fracture of the greater tuberosity - S/P non operative treatment.
2. Right knee internal derangement - S/P arthroscopic lateral release, chondroplasties of the medial femoral condyle and patella with synovectomy (2010).
3. Left knee internal derangement - S/P arthroscopic lateral release, chondroplasties of the medial femoral condyle and patella and synovectomy (2010).
4. Recurrent left knee internal derangement - S/P arthroscopic partial medial meniscectomy and synovectomy (2013).
5. Persistent left knee pain - S/P partial ACL tear with recurrent medial meniscal tear (2013).
6. Bilateral hip trochanteric bursitis (2010).
7. Chronic lumbar syndrome with intermittent radicular symptoms right greater than left leg secondary to L5-S1 disc extrusion/herniation - S/P non operative treatment (2010).
8. Sleep apnea with narcolepsy (2007).
9. Left distal forearm chainsaw injury - S/P surgical repair with residual sensory loss along the distal superficial sensory radial nerve to the thumb (1989).
10. Non-insulin dependent diabetes mellitus with poor control and end organ disease including significant peripheral neuropathy of the lower extremities, cataract formation in both eyes, proteinuria, and erectile dysfunction (2008).
11. Gastroesophageal reflux disease - S/P fundoplication (1980's).

Dr. Volarich rated Claimant's preexisting injuries and conditions as follows: 30 percent of the right shoulder; 35 percent of the right knee; 60 percent of the left knee; 15 percent of the right hip; 15 percent of the left hip; 25 percent of the lumbar spine; 15 percent of the body as a whole referable to his sleep apnea and narcolepsy; 20 percent of the left forearm; 10 percent of the body as a whole referable to GERD; and

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Randall Clinkenbeard

Injury No. 14-089634

25 percent of the body as a whole referable to his diabetes. Dr. Volarich explained that Claimant's preexisting injuries and conditions, when combined with his primary injuries, created permanent and total disability.

After delineating all of Claimant's preexisting conditions, Dr. Volarich said Claimant should see his personal physician for any medical care in the future, but he cited no specific recommendations for the work-related injury of October 28, 2014.

1. Mr. Phillip Eldred

Mr. Eldred performed a vocational evaluation on January 16, 2018. He concluded that Claimant had an impairment, which was vocationally disabling such as to constitute a hindrance or obstacle to employment before October 28, 2014. He also concluded that Dr. Volarich's restrictions are less than the sedentary work level. Given those restrictions, Claimant was unable to return to any of his previous work (all of which was from the Medium to Very Heavy demand levels), has no transferable job skills, no training potential, and cannot perform unskilled jobs. Even if Claimant were capable of performing sedentary work, Mr. Eldred opined that Claimant would not be able to perform any of his past work, would have no transferable jobs skills, would have no training potential and his worker trait profile would not be comparable to any unskilled sedentary jobs.

Mr. Eldred noted that Claimant's education is limited to high school graduation and a few college credits for firefighting. Furthermore, his scores on the WRAT-4 put him at a 9th grade level for reading, 4th grade level for spelling and 8th grade level for math. Based on his evaluation, Mr. Eldred concluded that Claimant is unemployable in the open labor market and is permanently and totally disabled as a result of his injury on October 28, 2014, combined with his preexisting injuries and conditions.

RULINGS OF LAW

Nature and Extent of Liability - Last Injury

Claimant alleges that he is permanently and totally disabled as against the Second Injury Fund. As noted in *Hughey v. Chrysler Corp.* 34 S. W.3d 845, 847 (Mo. App. E.D. 2000), the first determination is the degree of disability from the last injury. If Claimant's last injury in isolation rendered Claimant permanently and totally disabled, then the Second Injury Fund has no liability. *Feld v. Treasurer of Missouri as Custodian of the Second Injury Fund*, 203 S.W.3d 230, 233 (Mo. App. E.D. 2006).

Claimant and Employer stipulated as to his level of disability regarding the primary injury. The Stipulation of Facts, details an agreement for 27.5 percent of the left shoulder and 10 percent of the left elbow referable to the October 28, 2014 injury, in isolation. The Second Injury Fund contests this degree of disability. Dr. Volarich rated Claimant's disability at 45 percent of the left shoulder and 20 percent of the left elbow. Conversely, Dr. Cantrell rated Claimant's disability at 10 percent of the left shoulder and 0 percent of the left elbow. Given the whole record, I find and conclude that the stipulated disability of 27.5 percent of the left shoulder and 10 percent of the left elbow accurately reflects the degree of disability that Claimant sustained from the last work injury on October 28, 2014.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Claimant: Randall Clinkenbeard

Injury No. 14-089634

**Nature and Extent of Liability - Second Injury Fund**

Having determined that Claimant suffered a 27.5 percent permanent partial disability to the left shoulder and 10 percent permanent partial disability of the left elbow from the last injury, I next consider whether Claimant is permanently and totally disabled from a combination of his preexisting disabilities with the disability from the last injury. Section 287.020 RSMo, defines total disability as: "The inability to return to any employment and not merely inability to return to the employment in which the employee was engaged in at the time of the accident." The test for permanent and total disability is the workers' ability to compete in the open labor market and the workers' potential for returning to employment. *Knisley v. Charleswood Corp.*, 211 S.W.3d 629,635 (Mo. App. E.D. 2007). The primary question is whether an employer can reasonably be expected to hire the claimant given his present physical condition, and reasonably expect the claimant to successfully perform the work. *Id.* It is not necessary that an injured employee be rendered completely inactive or inert to receive compensation for permanent and total disability. *Julian v. Consumers Market, Inc.*, 882 S.W.2d 274 (Mo. App. S.D. 1994).

Both Dr. Volarich, a rating physician, and Mr. Eldred, the vocational expert, indicated that Claimant is permanently and totally disabled as a result of the last injury in combination with his preexisting injuries and conditions. The Second Injury Fund did not offer any evidence disputing the conclusions of Dr. Volarich and Mr. Eldred. I accept as credible and persuasive the opinions of Dr. Volarich and Mr. Eldred that Claimant is permanently and totally disabled as a result of the combination of the preexisting injuries and conditions and those injuries and disabilities resulting the last work accident. The Second Injury Fund offered no convincing contrary evidence. The medical, vocational, and lay testimony clearly indicate that Claimant would not be able to perform any work on the open labor market. I conclude that Claimant is permanently and totally disabled as a result of his preexisting injuries and conditions in combination with the disability from the last work injury.

Claimant reached maximum medical improvement effective January 19, 2016. The stipulation between Claimant and Employer for the last work injury resulted in 84.8 weeks of permanent partial disability benefits. There is no differential between the permanent partial and permanent total disability rates. Therefore, permanent total disability benefits of $402.00 are owed as of September 3, 2017.

**Future Medical**

Section 287.140 RSMo, requires Employer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003). "Section 287.140.1 makes no reference to a 'prevailing factor' test... The legal standard for determining an employer's obligation to afford medical care is clearly and plainly articulated in section 287.140.1 as whether the treatment is reasonably required to cure and relieve the effects of the injury." 347 S.W.3d at 518. *Tillotson v. St. Joseph Med. Ctr.*, 347 S.W.3d 511, 525 (Mo. App. W.D. 2011)

Dr. Snyder opined that Claimant needed further medical care, but at the point he gave such opinion, Claimant was not yet at maximum medical improvement. Claimant received subsequent diagnostic testing and treatment after Dr. Snyder's opinion, but it was not beneficial. In his initial IME report, Dr. Volarich opined that Claimant may need a home exercise program for his left upper extremity and over-the-counter

**Claimant:** Randall Clinkenbeard

**Injury No. 14-089634**

analgesics. He suggested no surgery for the left upper extremity. Dr. Volarich did not recommend any specific future treatment for the 2014 work-related injuries in his September 22, 2017 report.

Having reviewed the entire record, I find no credible or persuasive evidence that future medical treatment may be reasonably required to cure or relieve the effects of Claimant's work-related injuries of October 28, 2014.

Consistent with, and in the manner set forth in the stipulations with Claimant, Employer/Insurer shall pay $44,082.18, representing 24 and 6/7 weeks of unpaid temporary total disability, 27.5 percent permanent partial disability of the left shoulder, and 10 percent permanent partial disability of the left elbow.

No future medical treatment is awarded.

The Second Injury Fund is liable for permanent total disability. The date of maximum medical improvement is January 19, 2016. Because there is no differential between the permanent partial disability and permanent total disability, weekly benefits of $402.00 from the Second Injury Fund shall begin September 3, 2017, (84.8 weeks after the stipulated date of MMI), and continuing for the remainder of Claimant's lifetime.

The Van Camp Law Firm, LLC, has requested a fee equal to 25 percent of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. I find that such request is fair and reasonable and order that this amount shall constitute a lien on the compensation awarded herein.

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

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I certify that on **10-7-19** 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 **__________________________**

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**Made by:**

**Victorine R. Mahon**

Chief Administrative Law Judge

Division of Workers' Compensation