Troy Barnes v. Karrenbrock Construction, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 16-104170**

**Employee:** Troy Barnes

**Employer:** Karrenbrock Construction, Inc. (Settled)

**Insurer:** Bitco General Insurance Corporation (Settled)

**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 September 10, 2019, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 10, 2019, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this **17th** day of December, 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. 16-104170

Employee: Troy Barnes

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

I find the opinion of Dr. Jerry Meyers persuasive that employee was permanently and totally disabled due to the primary injury in combination with employee's preexisting conditions. This opinion was supported by vocational expert Timothy D. Kaver, who stated on July 8, 2019:

> I concur with Dr. Meyers' opinion that [employee] is totally and permanently disabled due to the combination of his most recent November and December of 2016 work-related bilateral carpal tunnel injuries/surgeries. The carpal tunnel injuries/surgeries have created obstacles to his reemployment, and combined with his pre-existing medical concerns [employee] is totally and permanently disabled.

*Award, p. 6 (citing Exhibit 16).*

I do not find persuasive vocational expert J. Stephan Dolan's opinion that he was permanently and totally disabled because he "was unemployable and had no access to the labor market prior to the primary injury," or that employee "was employed only because of accommodations and excess use of opioids." *Award, p. 6 (quoting Exhibit II).*

I further disagree with the administrative law judge's finding that "the role of the claimant's pre-existing medical conditions that did not constitute pre-existing permanent partial disabilities, suggests that the claimant does not meet the current statutory criteria for permanent total disability benefits from the Second Injury Fund [because the] statute in its current state appears to require exclusion of those pre-existing medical conditions in determining the source of the claimant's total disability." *Award, p. 12.*

When interpreting statutes, one is required to give words their plain and ordinary meaning whenever possible with a goal of giving effect to the legislature's intent. *St. Louis Police Officers' Association v. Board of Police Commissioners of the City of St. Louis, 259 S.W.3d 526,528 (Mo. banc 2008).* Statutes should be interpreted to avoid unreasonable or absurd results including those that might defeat the purpose of the legislature. *Leiser v. City of Wildwood, 59 S.W.3d 597,603 (Mo. App. 2001).* An adjudicator should presume that the legislature included every word of the statute for a purpose and that every word has meaning. *Hewitt v. St. Louis Rams P'ship, 409 S.W.3d 572,574 (Mo. App. 2013).*

There is no question that, due to lack of funding, the legislature intended to limit the Second Injury Fund's liability when it enacted the current version of § 287.220, RSMo. Nonetheless, the fact remains that the legislature did not intend to disallow consideration of other conditions once an employee meets the threshold under one of the four statutory categories. The legislature presumably intended to set a threshold to

Injury No. 16-104170

Employee: Troy Barnes

- 2 -

reach Second Injury Fund liability where a preexisting condition must have been significant enough to equate to at least fifty weeks of disability and meets one of the subsections 1-4. If the employee satisfies one of these conditions precedent, nothing in the language of the statute prohibits the administrative law judge from considering other unrelated conditions that do not necessarily qualify under one of the four condition precedents. Certainly, the statute would not intend to prohibit permanent total disability for an individual who was able to qualify under more than one subsection or condition precedent.

The administrative law judge's interpretation of § 287.220.3 is inconsistent with the recent Missouri Court of Appeals, Western District, opinion in *Treasurer of the State of Missouri as Custodian of the Second Injury Fund v. Jonathan Parker WD83030* (July 14, 2020, Rule 83.02 motion for transfer granted September 4, 2020). I agree with the Western District appellate court majority's reasoning in this important decision, now under consideration by our state's Supreme Court.

I would reverse the administrative law judge's award denying benefits against the Second Injury Fund. Because the Commission majority has decided otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Troy Barnes

Dependents: N/A

Employer: Karrenbrock Construction, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Bitco General Insurance Corporation (Settled)

Hearing Date: July 17, 2019

Injury No.: 16-104170

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

1. Are any benefits awarded herein? No

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: November 18, 2016

1. State location where accident occurred or occupational disease was contracted: St. Charles County, Missouri

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: The employee, a cement finisher, developed bilateral recurrent carpal tunnel syndrome from repetitive wrist intensive activities at work.

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: Both wrists

1. Nature and extent of any permanent disability: 10% Permanent partial disability to each wrist plus two weeks for disfigurement

1. Compensation paid to-date for temporary disability: $7,755.77

1. Value necessary medical aid paid to date by employer/insurer: $23,583.99

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 1,286.97
3. Weekly compensation rate: $\$ 857.98 / \ 464.58
4. Method wages computation: By agreement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability: No

TOTAL:

NONE

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: James P. Krupp, Esq.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

This Workers' Compensation case requires a determination of Second Injury Fund liability arising out of a work-related injury in which the claimant, a concrete finisher, developed bilateral recurrent carpal tunnel syndrome from repetitive wrist intensive activities at work. The sole issue for determination is liability of the Second Injury Fund. The evidence compels an award for the defense.

At the hearing, the claimant testified in person and offered depositions of the claimant, Jerry R. Meyers, M.D., a vocational report from Timothy Kaver, numerous photographs, a wage report from the employer, records from the Missouri Division of Workers' Compensation, and voluminous medical records. The defense offered a deposition of David M. Brown, M.D., and a vocational report from J. Stephen Dolan.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2016, because the occupational disease was contracted in Missouri. Any markings on the exhibits were present when offered into evidence.

In 2015, this 56-year-old claimant, a cement mason/concrete finisher for the past 30 years, developed recurrent carpal tunnel syndrome. Dr. Petre first examined the claimant in June 2015 for hand/wrist pain. Eventually Dr. Petre referred the claimant to Dr. Moeser who examined the claimant in March 2016 and sent him for a nerve conduction study. Dr. Moeser diagnosed bilateral carpal tunnel syndrome. See Exhibit 3B. The Employer/Insurer directed the claimant to Dr. Brown for treatment. On September 12, 2016, Dr. Phillips took a medical history of a greater than one-year history of right worse than left recurrent sharp, dull, throbbing, aching hand pain, intermittent global numbness and weakness. He noted that the claimant underwent successful bilateral carpal tunnel releases in 2002 with complete symptomatic relief. He performed testing that revealed recurrent median nerve neuropathies across the carpal tunnels. See Exhibit 3F.

The claimant's last day of work for this or any other employer was November 18, 2016. On November 22, 2016, Dr. Brown performed a right carpal tunnel release, and on December 5, 2016, Dr. Brown performed a left carpal tunnel release. See Exhibit 3F. On March 29, 2017,

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

Dr. Brown examined the claimant and found the numbness and tingling in his hands were much improved in both hands with some soreness. On April 11, 2017, Dr. Brown opined the claimant suffered a 4% permanent partial disability to each hand. See Exhibit 3F. The claimant settled his Workers' Compensation Claim with his employer based on a 10% permanent partial disability to each wrist. See Exhibit 3E.

Pre-Existing Conditions

On Jan. 10, 1997, the claimant suffered a non-surgical compression disc fracture in his lower back at L1 when his snowplow truck went off a bridge crashing to the ground 20-30 feet below. See Exhibits 3(M), 3(O), 10, and 11. Dr. Powell and Keohane provided medical care. See Exhibit 3(N). The claimant settled his Workers' Compensation Claim with his employer based on a 30% permanent partial disability to his low back (120 weeks of permanent partial disability benefits). See Exhibit 12.

On August 26, 1997, the claimant consulted Dr. Siler for excessive daytime sleepiness, snoring, and witnessed apneas all suggestive of sleep apnea. See Exhibit 3(P). Dr. Siler has treated the claimant for sleep apnea since then and provided a CPAP machine with periodic monitoring and testing. See Exhibit 3(P). As of March 23, 2016, Dr. Siler assessed the claimant with allergic rhinitis, organic obstructive sleep apnea, obesity, restless leg syndrome, and nicotine dependence. See Exhibit 3(P). The claimant has used a CPAP machine every night for years up to the present time as prescribed and has missed a few days of work over the years because of sleeping difficulties. The claimant testified the pain in numerous parts of his body also causes him to lose sleep.

In 2002, the claimant suffered from bilateral carpal tunnel, had bilateral carpal tunnel releases, and settled his Workers' Compensation Claim with his employer based on a 20% permanent partial disability to the left wrist, an 18% permanent partial disability to the right wrist, (66.5 weeks of permanent partial disability benefits) with a 15% load, and two weeks for disfigurement. See Exhibits 3H, 13.

On March 2, 2010, Dr. Schaberg diagnosed advanced bilateral osteoarthritis and performed bilateral knee replacements. See Exhibit 3(N). The claimant continued to report knee pain from cystic lesions, tendinitis, and osteolysis. See Exhibit 3(N). Dr. Schaberg prescribed prescription pain medical to reduce the pain level. See Exhibit 3(N). The claimant opined his knee issues are related to the work he performed as a cement mason over the years being on his knees when finishing surface of the cement and stressing his knees during the hard physical labor of the job. The claimant did not file a Workers' Compensation Claim related to his knees. No physician opined that the claimant's work was the prevailing factor causing his knee disorder.

As of March 23, 2016, the claimant consumed the following daily medications: Atenolol, CPAP DVI, Lisinopril, Meloxicam, and Ropinirole. See Exhibit 3(P). The claimant also consumed the following medications as needed: Cyclobenzaprine, Flonase Allergy Relief, Hydrocodone-Acetaminophen, Methylphenidate, Tramadol, and Viagra. See Exhibit 3(P). The claimant testified to the numerous medications he was taking in November 2016 and presently, which included pain medications, muscle relaxers and sleep medications. He testified he

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

consumed numerous Vicodin or Hydrocodone and Tramadol pills daily before and after the primary injury.

The claimant testified he is not an opioid or a drug addict from the pain medications and they did not make him high or affect his ability to drive or to work with construction equipment and tools on the job before his ceased work on November 18, 2016. He testified they helped him to work with the pain. He testified the weeks immediately before quitting work on November 18, 2016, he was able to work full time and overtime with his pre-existing disabilities. See Exhibit 2.

The claimant testified he initiated permanent total disability benefits in January-March 2017, when he filed his Workers' Compensation Claim in this case and applied for Social Security Disability Benefits. The claimant opined his pre-existing conditions alone were not the cause of his permanent total disability; rather, that it was the combination of his bilateral carpal tunnel disease(s)/injury(s) from the 2016 occurrence combined with his preexisting disabilities that have made him permanently and totally disabled. The claimant also opined the January 1997 snowplow accident caused his neck pain. However, no physician has opined the 1997 accident caused his neck condition.

Jerry R. Meyers, M.D.

On October 27, 2018, Dr. Meyers took a medical history from the claimant, reviewed his medical records, examined the claimant, and diagnosed bilateral carpal tunnel syndrome, status post-surgical bilateral carpal tunnel surgical releases, post traumatic compression fracture of L1 with progression of collapse since injury date, intractable low back pain secondary to traumatic lumbar injury with L1 compression fracture, recurrent bilateral carpal tunnel syndrome, status post-surgical release of recurrent bilateral carpal tunnel surgical syndrome. See Exhibit 15. Dr. Meyers agreed with the results of the claimant's Workers' Compensation settlements pertaining to these conditions.

Dr. Meyers also found the claimant had multiple medical conditions involving his neck, shoulders, and hands. These medical conditions include sleep apnea, polyarthritis, hypertension, bilateral shoulder bursitis, cervical disc disease with cervicalgia, and chronic post knee replacement pain. See Exhibit 15.

Based on his review of medical records, medical history, and physical examination, he opined the claimant is now permanently and totally disabled due to a combination of both his pre-existing work injuries and his other non-work injuries. See Exhibit 15. "When all of these orthopedic problems ... the need for daily narcotic medications, and the permanent restrictions listed below; it is my opinion that Mr. Barnes is totally and permanently disabled and unable to compete in the open labor market." See Exhibit 15.

Timothy D. Kaver

On May 10, 2019, Timothy Kaver, a Vocational Rehabilitation Counselor, interviewed the claimant and reviewed the claimant's medical, educational, and work history records, and Dr. Meyers' deposition, and opined:

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

Based on the evidence gathered and received, including my personal interview of Troy Barnes and the review of the three depositions submitted to my office, it is my professional opinion that Troy Barnes is totally and permanently disabled, and he is unable to return to work, at any level of physical activity. It is my opinion that Mr. Barnes' carpal tunnel injuries may have created obstacles to his reemployment, but it is his pre-existing medical conditions, which cause his total disability. The combination of Troy Barnes' medical concerns, including his pain and fatigue symptoms, require Mr. Barnes to recline periodically, for a total of two to four hours per eight-hour day. Employers cannot accommodate for an employee who must recline on the job. Should his pre-existing medical condition not exist, Troy Barnes could have returned to employment, if not to the heavy labor of a Cement Mason, then to a sedentary to light career. As an individual who is unable to remain active at job site for eight hours, Troy Barnes is unable to successfully staff a job, at any level of activity. See Exhibit 16.

On July 8, 2019, Mr. Kaver issued a supplemental report and opined:

I concur with Dr. Meyers' opinion that Troy Barnes is totally and permanently disabled due to the combination of his most recent November and December of 2016 work-related bilateral carpal tunnel injuries / surgeries. The carpal tunnel injuries / surgeries have created obstacles to his reemployment, and combined with his pre-existing medical concerns Troy Barnes is totally and permanently disabled. See Exhibit 16.

J. Stephen Dolan

On June 27, 2019, J. Stephen Dolan, a Vocational Rehabilitation Counselor, reviewed the claimant's medical, educational, and work history records and opined:

Based upon his age, education, work skills and restrictions from Dr. Tate, I believe Mr. Barnes was unemployable and had no access to the labor market prior to the primary injury. He was employed only because of accommodations and excess use of opioids. See Exhibit II.

SECOND INJURY FUND

To recover against the Second Injury Fund in this case based upon two permanent partial disabilities, the claimant must prove the following conditions:

(1) The claimant has a medically documented pre-existing 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 either (a) a direct result of a compensable injury as defined in section 287.020; or (b) not a compensable injury, but such pre-existing disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated pre-existing injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; and

WC-32-R1 (6-91)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

(2) The claimant thereafter sustains a subsequent compensable work-related injury that, when combined with the pre-existing disability, as set forth in items (a) or (b), above results in a permanent total disability. Section 287.220.3, RSMo 2016.

Section 287.220, RSMo 2016, contains four distinct steps in calculating the compensation due an employee, and from what source:

1. The employer's liability is considered in isolation—"the employer at the time of the last injury shall be liable only for the degree or percentage of disability which would have resulted from the last injury had there been no preexisting disability;"

1. Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered;

1. The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and

1. The balance becomes the responsibility of the Second Injury Fund. *Nance v. Treasurer of Missouri*, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).

Many of the pertinent facts in this case are clear. The disability from the last injury alone is a 10% permanent partial disability to each wrist. See Exhibit 3E. Based on the forensic evaluations and the claimant's testimony, the claimant is unemployable in the open labor market based on the claimant's age, education, past relevant employment history, and his limitations and restrictions.

Prior to this occurrence, the claimant suffered from a 30% permanent partial disability to his low back (120 weeks of permanent partial disability benefits) and a 20% permanent partial disability to the left wrist, and an 18% permanent partial disability to the right wrist (66.5 weeks of permanent partial disability benefits). See Exhibits 3H, 12, and 13. Prior to this occurrence, the claimant also suffered from had multiple medical conditions involving his neck, shoulders, and hands. These medical conditions include sleep apnea, polyarthritis, hypertension, bilateral shoulder bursitis, cervical disc disease with cervicalgia, and chronic post knee replacement pain. See Exhibit 15.

Before this occurrence, as of March 23, 2016, the claimant consumed the following daily medications: Atenolol, CPAP DVI, Lisinopril, Meloxicam, and Ropinirole. See Exhibit 3 (P). The claimant also consumed the following medications as needed: Cyclobenzaprine, Flonase Allergy Relief, Hydrocodone-Acetaminophen, Methylphenidate, Tramadol, and Viagra. See Exhibit 3 (P). The claimant testified he consumed numerous medications daily for pain relief both before and after the primary injury. The claimant testified he is not an opioid or a drug addict from the pain medications and they did not make him high and affect his ability to drive or to work with construction equipment and tools on the job before his ceased work on November 18, 2016. He testified they helped him to work with the pain. He testified that the weeks immediately before quitting work on November 18, 2016, he was able to work full time and overtime with his pre-existing disabilities. See Exhibit 2.

W.C-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

Dr. Meyers and two vocational counselors opined the claimant is totally disabled and unemployable in the labor market given his limitations and restrictions, his medication side effects, and his age, education, work skills, and past relevant work history. Dr. Meyers testified that he is not a vocational expert and had no experience in vocational placement. See Dr. Meyers' deposition, pages 81-82.

On May 10, 2019, Mr. Kaver interviewed the claimant and reviewed his medical records and three depositions. He opined the claimant "is totally and permanently disabled, and he is unable to return to work, at any level of physical activity. It is my opinion that Mr. Barnes' carpal tunnel injuries may have created obstacles to his reemployment, but it is his pre-existing medical conditions, which causes his total disability. The combination of Troy Barnes' medical concerns, including his pain and fatigue symptoms, require Mr. Barnes to periodically recline, for a total of two to four hours per eight-hour day. Employers cannot accommodate for an employee who must recline on the job." See Exhibit 16. Two months later, Mr. Kaver submitted a supplemental report concluding, "I concur with Dr. Meyers' opinion that Troy Barnes is totally and permanently disabled due to the combination of his most recent November and December of 2016 work-related bilateral carpal tunnel injuries / surgeries. The carpal tunnel injuries / surgeries have created obstacles to his reemployment, and combined with his pre-existing medical concerns Troy Barnes is totally and permanently disabled." See Exhibit 16.

The claimant presented a case for an award of benefits based on the conclusions of Dr. Meyers and Mr. Kaver's report addendum. In his brief, he argued, inter alia:

> Claimant is entitled to recover in this case for his permanent total disability from the Second Injury Fund. ... Claimant at a minimum had preexisting disabilities equating to 120 weeks from his 1997 snowplowing injury and workers' compensation settlement of 30% of his body as a whole referable his lumbar spine, and additionally from his 2002 bilateral carpal tunnel occupational disease settled for 20% of his left wrist and 18% of his right wrist equating to 66.5 weeks of permanent partial disability. These separately and together exceed 50 weeks. See Claimant's brief.

The defense contends the claimant is not eligible for Second Injury Fund benefits for three reasons. First, the defense contends the claimant's pre-existing carpal tunnel syndrome does not qualify under the statute, because the disability does not equal a minimum of 50 weeks of permanent partial disability compensation. Second, the defense argued the claimant's "total disability is a result of not just his work-related injuries by also ... multiple non-work-related medical conditions". Finally, the defense also argued the claimant was permanently and totally disabled before the 2016 occurrence, based on the reports of the vocational experts and the claimant's consumption of potent pain medication before the 2016 occurrence.

First, the defense argued the claimant's pre-existing work-related carpal tunnel syndrome does not qualify under the statute, because the disability does not equal a minimum of 50 weeks of permanent partial disability compensation. However, the claimant settled his Workers' Compensation Claim with his employer based on a 20% permanent partial disability to the left wrist, an 18% permanent partial disability to the right wrist, (66.5 weeks of permanent partial

WC-32-0.1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

disability benefits) with a 15% load, and two weeks for disfigurement. See Exhibits 3H, 13. The overall disability exceeds fifty weeks. Thus, this argument is unsound.

Second, the defense argued the claimant's "total disability is a result of not just his work-related injuries by also ... multiple non-work-related medical conditions". See Dr. Meyers' deposition, page 83. Dr. Meyers did not opine that those multiple non-work-related medical conditions were pre-existing permanent partial disabilities. No forensic expert opined whether these multiple non-work-related medical conditions (sleep apnea, polyarthritis, hypertension, bilateral shoulder bursitis, cervical disc disease with cervicalgia, and chronic post knee replacement pain) constitute pre-existing permanent partial disabilities that directly and significantly aggravate or accelerate the subsequent work-related injury. None of the forensic evidence suggests that any of these medical conditions constitute "unrelated pre-existing injuries or conditions that do not aggravate or accelerate the subsequent work-related injury". A strict reading of the statute requires that the permanent partial disability shall be demonstrated and certified by a physician. Section 287.190.6(2), RSMo 2016. Medical opinions addressing disability must be stated within a reasonable degree of medical certainty. Section 287.190.6(2), RSMo 2016. Apparently, these medical conditions do not constitute permanent partial disabilities as defined by the statute, because no physician certified that they are permanent partial disabilities.

The defense also argues the claimant was permanently and totally disabled before the 2016 occurrence, based on the reports of the vocational experts and the claimant's consumption of potent pain medication before the 2016 occurrence. This is a critical point, because the text of the statute that authorizes additional permanent disability benefits from the Second Injury Fund requires that:

The claimant 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... § 287.220.

By the section's plain language, it applies to a claimant who has a "preexisting permanent partial disability," not to claimants who are already permanently and totally disabled. Schussler v. Treasurer of State-Custodian of Second Injury Fund, 393 S.W.3d 90, 98 (Mo.App. WD 2012).

Consequently, the Division cannot apply the methodology of section 287.220, if the claimant is already permanently and totally disabled before the accident that causes additional disability. It is important to determine the legally defined requirements for permanent and total disability. The Courts have enunciated a test for determining whether the claimant's work in outside of employment in the open labor market:

Missouri courts have made clear that the Commission is not prevented from finding that a claimant is permanently and totally disabled simply because he or she holds limited, sporadic and/or highly accommodated employment. "Certainly the ability to perform some work is relevant to th[e] [total disability] determination, but it is not dispositive. To the contrary, a number of cases have

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

recognized that a claimant can be totally disabled even if able to perform sporadic or light duty work." Cooper v. Med. Ctr. of Indep., 955 S.W.2d 570, 575 (Mo.App. W.D.1997). Molder v. Missouri State Treasurer, 342 S.W.3d 406, 412 (Mo. Ct. App. 2011)

The question in this case turns on when the claimant stopped being able to compete in the open labor market. The defense contends this occurred before November 2016:

Claimant testified that his 1997 back injury was "life-changing." He testified that he had chronic pain and radicular symptoms after the 1997 injury. He testified that his pain was an average of 7-8/10, and would get up to a 10/10. He has consistently been on narcotic pain medications since the 1997 injury. He testified at trial that he took tramadol 4-6 times per day and hydrocodone 1-5 times per day due to back pain leading up to his primary injury. Claimant had testified at his deposition that he was taking five Vicodin per day and six tramadol per day prior to the primary injury. Ex. 17, p. 56.

Dr. Meyers explained that taking hydrocodone and tramadol causes sleepiness and drowsiness. He said that someone taking these medicines are "not to be anywhere near machinery." Ex. 15, p. 19. He further stated that he would "hate to have [Claimant] driving with all these medications on board... I don't think he would be able to function well. I just don't think he could do it on these medications." Ex. 15, p. 22.

Similarly, Mr. Dolan concluded that Claimant should not have been driving to and from work sites, and should not have been using dangerous equipment. Ex. II, p. 4. Mr. Dolan believed that Claimant would not have been employable as a construction worker due to these medications. Ex. II, p. 4. In fact, given the amount of medications Claimant was regularly taking prior to the primary injury, Mr. Dolan believed Claimant was unemployable prior to the primary injury. Ex. II, p. 4. Mr. Dolan did not believe Claimant's primary injury had any impact on Claimant's permanent total disability. Ex. II, p. 4.

Claimant's vocational expert, Tim Kaver, issued his initial report on June 9, 2019. Ex. 16. Mr. Kaver met Mr. Barnes on May 10, 2019, conducted an interview, and administered academic testing. Mr. Kaver also reviewed a number of medical records, reports, and depositions. In his report, Mr. Kaver explained in detail that Claimant's primary carpal tunnel did not contribute to Claimant's total disability. Ex. 16, p. 9. Mr. Kaver explained that Claimant's preexisting medical concerns, including his pain, symptoms, and fatigue, would have prevented an employer in the open labor market from hiring Claimant. Ex. 16, p. 9. Specifically, Mr. Kaver noted that Mr. Barnes reported needing to recline for two to four hours per eight-hour day. Ex. 16, p. 9. Employers cannot accommodate this need to recline. Mr. Kaver concluded Claimant "is permanently and totally disabled, and the primary cause of his total disability is his multitude of preexisting medical conditions." Ex. 16, p. 10. This is the same conclusion reached by the Fund's expert, Mr. Dolan.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

Mr. Kaver issued an addendum one month later. Mr. Kaver did not see Claimant again for this addendum. Mr. Kaver did not receive any new records, reports, or depositions. Instead, Mr. Kaver seemingly issued an addendum without any new information. In his addendum, he agreed with Dr. Meyers' opinion that Claimant was permanently totally disabled due to the primary carpal tunnel injury in combination with Claimant's multiple preexisting disabilities.

Dr. Meyers found Claimant was permanently totally disabled due to several issues: peripheral neuropathy, neck problems, bilateral knee replacements, sleep apnea, right shoulder bursitis, chronic low back pain, prior carpal tunnel, and the primary carpal tunnel surgeries. Ex. 15, p. 47-60. Dr. Meyers specifically testified that his opinion regarding Claimant's permanent total disability was not limited to the work injuries, but also included the multiple non-work-related medical problems. Ex. 15, p. 83.

Mr. Kaver and Mr. Dolan reviewed the same records, reports and depositions, and they came to the exact same conclusion: Claimant was unemployable in the open labor market prior to the primary carpal tunnel injury. The vocational experts based their opinions on Claimant's own description of his symptoms and his use of narcotic pain medication. In fact, even Dr. Meyers acknowledged in his deposition that Claimant should not have been operating machinery or even driving given the number of medications he was taking prior to the primary injury. See Defense Brief.

The defense contentions have some strong points and some weak points. The first point is whether the claimant was consuming excessive pain medication at work before the 2016 occurrence and performing limited, sporadic and/or highly accommodated employment. The claimant testified in his deposition:

Q So why did you stop working altogether at that time (November 2016)?

A I guess because the carpal tunnel, the second surgery was just kind of the straw that broke the camel's back, and I had been dealing with the pain issues, I was up to taking ... five Vicodin of Hydrocodone and six Tramadol a day just to get through the day. ... See claimant deposition, pages 55, 56.

A fair reading of the testimony is that the 2016 occurrence drove him to consumption of a high level of prescription pain medication. The defense did not tie him down to show that he consumed this level of prescription pain medication since his 1997 low back injury. The medical records and the claimant's testimony reflect that he consumed prescription pain medication prior to the 2016 occurrence, but the 2016 occurrence appears to have accelerated the claimant's consumption of prescription pain medication. In addition, the claimant's pay records reflect that he worked substantial full time hours (39.979166 hours per week on average) and received substantial remuneration over $30.00 per hour. See Exhibit 2. This does not suggest limited, sporadic and/or highly accommodated employment.

WU-32-R1 (6-81)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

Injury No.: 16-104170

However, on this critical issue the weight of the forensic evidence compels a conclusion the claimant was unemployable in the open labor market and, therefore, permanently and totally disabled before the 2016 occurrence. Both vocational counselors opined that the claimant's pre-existing limitations and restrictions when combined with his age, education, and past relevant work history made him unemployable in the open labor market before the 2016 occurrence. Mr. Kaver did not recant his prior opinion. He opined the 2016 occurrence combined with his pre-existing conditions to render him permanently and totally disabled, but this is understandable if the claimant was already unemployable in the open labor market due to his pre-existing conditions. Mr. Kaver interviewed the claimant and reviewed extensive documentation regarding the claimant's medical and employment history. His finding the claimant was unemployable in the labor market due to his pre-existing conditions is especially probative:

> It is my opinion that Mr. Barnes' carpal tunnel injuries may have created obstacles to his reemployment, but it is his pre-existing medical conditions, which cause his total disability. The combination of Troy Barnes' medical concerns, including his pain and fatigue symptoms, require Mr. Barnes to periodically recline, for a total of two to four hours per eight-hour day. Employers cannot accommodate for an employee who must recline on the job. Should his pre-existing medical condition not exist, Troy Barnes could have returned to employment, if not to the heavy labor of a Cement Mason, then to a sedentary to light career. As an individual who is unable to remain active at job site for eight hours, Troy Barnes is unable to successfully staff a job, at any level of activity. See Exhibit 16.

While some of the facts could lead a lay observation to conclude that the claimant was employable in the labor market prior to the 2016 occurrence, the overwhelming forensic evidence compels a finding that the claimant was unemployable in the open labor market prior to the 2016 occurrence, because no employer would hire the claimant if he were to lose his employment with this employer.

Finally, the role of the claimant's pre-existing medical conditions that did not constitute pre-existing permanent partial disabilities, suggests that the claimant does not meet the current statutory criteria for permanent total disability benefits from the Second Injury Fund. Dr. Meyers opined the claimant's pre-existing permanent disabilities (low back injury and bilateral carpal tunnel syndrome), his other pre-existing medical conditions (polyosteoarthritis in his neck, upper back, and his knees), combined with the permanent partial disability from his the 2016 occurrence to render him permanently and totally disabled. See Dr. Meyers deposition, pages 47-60, 83. The statute in its current state appears to require exclusion of those pre-existing medical conditions in determining the source of the claimant's total disability.

Since the claimant was unemployable in the open labor market and therefore totally disabled before the 2016 occurrence and the total disability is not the result of combination of permanent partial disabilities meeting the criteria stated in Section 287.220.3, RSMo 2016, the Claim must be denied.

WC-32-R1 (6-81)

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Troy Barnes

I certify that on 9-10-19

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 _my_


Made by:

EDWIN J. KOHNER

Administrative Law Judge