Ronald Cox v. Missouri Department of Corrections

(Affirming Award and Decision of Administrative Law Judge)

**Injury No.:** 15-015561

**Employee:** Ronald Cox

**Employer:** Missouri Department of Corrections

**Insurer:** Central Accident Reporting Office (CARO)

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 April 30, 2020. The award and decision of Administrative Law Judge Bruce Farmer, issued April 30, 2020, 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 ______ 19th ______ day of February 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

DISSENTING OPINION FILED

Reid K. Forrester, Member

Shalonn K. Curls, Member

**Attest:**

Secretary

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

The objective evidence in the record demonstrates that employee only had a 4\% permanent partial disability, B.A.W., as found by Dr. Todd Silverman. Dr. Silverman persuasively opined that employee's work-related symptoms were "mild and not limiting at this time." ${ }^{1}$

Dr. Silverman also opined that employee still had a significant activity level that indicated his ability to compete in the open labor market. Dr. Silverman stated:

[Employee's] level of activity includes independence with ADLs, woodworking, driving, hiking, hunting, taking trips, and watching a lot of You Tube videos and being quite conversant on political topics. I agree with the opinion of the vocational specialist [Mr. Terry Cordray] that Mr. Cox is capable of working.

I would modify the administrative law judge's award allowing benefits etc., at a level of a 4 % permanent partial disability, B.A.W. Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

[^0]

[^0]: ${ }^{1}$ Dr. Silverman considered employee's "ongoing subjective symptoms of headache, dizziness and shortterm memory loss."

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 751-4231 FAX: (573) 751-2012

www.labor.mo.gov/DWC

APRIL 30, 2020

15-015561

Scan Copy

*Employee : RONALD L COX 08777835 7 4319 STATE ROAD H FULTON, MO 65251*Employer : DEPT OF CORRECTIONS PO BOX 236 JEFFERSON CITY, MO 65102-0236*Insurer Attorney : ATTY GENERAL ERIC SCHMITT PO BOX 899 SUPREME COURT BLDG JEFFERSON CITY, MO 65102

LIEN - DOUGLAS L VAN CAMP 714 W HIGH STREET JEFFERSON CITY MO 65101-1526

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Continued

AWARD ON HEARING HLP

Please visit our website at www.labor.mo.gov/DWC


Employee: Ronald Cox

Injury No.: 15-015561

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Injury: Central Accident Reporting Office (CARO)

Hearing Date: February 3, 2020

Briefs filed: March 16, 2020

Checked by:

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: March 13, 2015
5. State location where accident occurred or occupational disease was contracted: Fulton, Callaway County
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Claimant was assaulted by an inmate while working as a corrections officer.
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: Head, neck
14. Nature and extent of any permanent disability: See Award
15. Compensation paid to-date for temporary disability: $\ 43,644.16
16. Value necessary medical aid paid to date by employer/insurer: $\ 124,214.04

1. Value necessary medical aid not furnished by employer/insurer? None.
2. Employee's average weekly wages: $\ 669.98
3. Weekly compensation rate: $\ 446.65 for TTD, PPD and PTD
4. Method wages computation: Stipulation

1. Amount of compensation payable:

Claimant last worked on March 13, 2015 and was paid TTD through the MMI date of November 30, 2016. He is owed from December 1, 2016 to the date of the hearing, February 3, 2020 in the amount of 165 weeks and 5 days, or $\ 74,016.29 and weekly benefits of $\ 446.65 per week for the remainder of Claimant's lifetime.

1. Future requirements awarded: Claimant is entitled to future medical treatment and the employer is ordered to provide the prescription of Cymbalta or other headache medication. The employer retains to right to designate the authorized treating physician.

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 % for all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Kiefer Law Office, LLC. The lien held by Van Camp Law Firm LLC to be satisfied by Kiefer Law Office, LLC.

Employee: Ronald Cox

Injury No. 15-015561

Dependents: N/A

Employer: Missouri Department of Corrections

Insurer: Central Accident Reporting Office (CARO)

Hearing Date: February 3, 2020

On February 3, 2020, the parties appeared for a final hearing. Ronald Cox ("Claimant") appeared in person and with counsel, Christine Kiefer. The Missouri Department of Corrections and CARO appeared through their attorney, Assistant Attorney General Erika Eliason. The parties requested the opportunity to submit post-hearing briefs and the case was submitted on March 16, 2020.

The parties agree that the issues in dispute are the nature and extent of Claimant's disability and future medical treatment.

The parties stipulated to the following facts:

1. That the Missouri Division of Workers' Compensation has jurisdiction over this claim;
2. That venue for the evidentiary hearing is proper in Cole County;
3. That the claim for compensation was filed within the time allowed by the statute of limitations, RSMO $\S 287,430$;
4. That both the Employer and Employee were covered under the Missouri Workers' Compensation Law at all relevant times;
5. That Claimant's average weekly wage is $\ 669.98 with compensation rates of $\ 446.65 for TTD, PTD, and PPD.
6. That Employee sustained an accident arising out of and in the course of his employment with The State of Missouri- Department of Corrections on March 13, 2015;
7. That the notice requirement of RSMO $\S 287.420$ does not serve as a bar to the claim for compensation;
8. That Employer paid medical benefits in the amount of $\ 124,214.04;
9. That Employer paid temporary disability benefits of $\ 43,644.16;
10. That Central Accident Reporting Office fully insured the Missouri Workers Compensation liability of The State of Missouri- Department of Corrections;
11. That the date of MMI is November 30, 2016.

Claimant offered Exhibits 1-23, which were admitted into evidence (below). The Employer offered Exhibit A, Deposition of Ronald Cox, Exhibit B, Report and IME of Dr. Silverman, and Exhibit C, Deposition and report of Terry Cordray. All exhibits were admitted without objection. Claimant testified on his behalf along with Carol Mobley and Mary Humphries.

Claimant was 59 years old at the time of the hearing. He has a high school diploma. He worked at the Department of Corrections as a Corrections Officer I for 30 years. Claimant's work history consisted of heavy machine operator, construction, and selling items he made at a woodworking shop.

Claimant's job as a utility officer required him to perform heavy lifting and the testing required him to drag a 150 -pound dummy after completing other physical tasks like running an obstacle course and doing pushups and pull-ups. The job required him to bend, stoop, walk, run, navigate stairs, perform CPR, clean or pack up cells, and qualify with a weapon. He testified that he had no problem qualifying during training or testing over the years and that he never had any difficulties performing the duties of the job.

Claimant suffers from Leiden Factor V, a blood clotting disorder, which required him to take blood thinners over the years but resulted in no other symptoms or limitations. Claimant had no prior serious injuries or conditions.

Claimant testified about his activities before his work injury. He was an avid outdoorsman. He did primitive camping and distance hiking where he would be dropped off in remote areas and go into the woods with only a backpack, sleeping and preparing food from hunting. He would be gone for several days at a time, sleeping in a hammock and hiking through rough terrain. He was a dedicated hunter and fisherman, doing these tasks all through the years.

Claimant also participated in gold mining activities. He was part of a group that would travel to Georgia, Arizona, and North Carolina to mine for gold. The process would require him to use back hoes or picks and shovels to dig 3-4 feet underground, load gravel out of a creek, run the gravel through a high banker and trammel, separate the gravel, and then clean it and run it through finishing equipment. He also would bend to collect gravel from creek beds and hand pan them in search of small pieces of gold. This activity often meant he would load and move 5 gallon buckets full of gravel, lifting up to 120 pounds throughout the day. He also would bend or kneel over to clean bedrock, using a screwdriver to get into cracks.

A member of the Calloway County Fair Association, Claimant was the president for several years. He was a major part in planning the yearly county fair and participated in every aspect of it from planning and financial responsibilities to physical construction.

Claimant testified that he was at work on March 13, 2015 and recalls helping the victim of a stabbing in the prison in the morning, and investigating the incident. He went to the victim's cell to pack his property as he was at the infirmary. He recalls that he was about 2-3 hours into overtime hours during this shift. The last memory he has of the day is walking back to the housing unit to get his coat and lunch box. He has no recollection of the remainder of the day and has no real clear memory until about two months after the incident.

Claimant learned from other people that he was assaulted by an inmate, punched and kicked repeatedly and thrown against a wall. Someone at the hospital took photos of his head after his surgery and these have remained on his phone. (Exhibit 22-23) He doesn't recall the surgery, but

understands that they operated on his skull and left him with a scar on the top of his head. He has no memory of the hospital or any initial treatment.

Claimant testified about his ongoing problems since the injury. He has found that "words go dyslexic" and are backwards. He has difficulty putting the words together, but even when he does, he finds he can't understand what he's reading. He watches videos which are easier for him to comprehend. He has blurry vision that has continued. Claimant also suffers from short-term memory loss.

Claimant testified that he suffers dizziness and the feeling of being light-headed. He has these symptoms every time he goes from a seated to standing position. He has this feeling if he bends over, or looks down quickly. This is a symptom that has not improved over time. Stress also makes him feel lightheaded and his headaches are also often accompanied with dizziness.

Claimant suffers from daily headaches. He takes medication for these that is still being provided by the Employer/Insurer and it does help. However, he still lays down throughout the day, every day, due to headaches. They require him to lay in a dark room, and has the pain in the back of his neck and into the top of his head and temples. Sometimes these episodes last two days at a time. Every day he lays down for a couple of hours and if he is recovering from a headache, he will sleep for several hours at a time.

Claimant testified that he has not done any of the extensive hiking and primitive camping he did before. He cannot handle rough terrain, set up camp, or remember where he is to get back home. He has gone once per year to the gold mining event in Georgia, and once in Arizona and North Carolina. However, he now simply drives a four-wheeler occasionally to move gravel, and sits at table and pours gravel, using only a tablespoon into a finishing machine. He also takes frequent breaks, and goes to his camper to lie down and/or sleep multiple times during the day. He does no digging, or walking on rough terrain, and does no lifting of heavy materials, nor does he operate any heavy equipment. He has gone on these trips with groups, and does minimal amounts of driving along the way. He also does the trip to Georgia over two days, whereas before, he would make the drive in one day. He also hasn't done any local mining as he cannot handle walking on rough terrain of creek beds.

Claimant's girlfriend, Carol Mobley, testified and substantiated the relevant testimony about Claimant's activities.

On a typical day, Claimant wakes up at 9:00 or 10:00 am and eats breakfast, prepared by his mother. He will look at his computer and watch videos on wood carving or fishing or hunting. He occasionally "goes to the shop" which is a pole barn on his property. There, he will do minor wood working to make a bowl or other small object, but no longer makes tables, cabinets or other large items. He can only be in the shop for short periods of time, and then will come inside to lay down. He spends much of his day lying in bed watching TV and on days when the headaches are severe, he will stay in bed all day. He does not do any cooking, cleaning, or laundry as his mother does these things, and he only occasionally goes to the store.

When asked about other work, Claimant testified that he has to lay down throughout the day and cannot do any work as this would not be allowed. He cannot do any activity consistently for long periods and cannot remember instructions well enough to complete general job duties. He thinks he would forget information from day to day if he was given job tasks and responsibilities.

Mary Humphries, Claimant's mother testified on his behalf. He has lived with her since 2011. She stated that, since this injury, her son is no longer social. He does not spend time with friends as he used to. He isn't involved with the fair or the Lion's Club as he was in the past. He no longer does long hiking or camping excursions and hunts much less frequently as he used to. He does not socialize with her at the house, and stays in his room all day alone, which is not how he used to spend his time. She said he does do some mowing with a riding mower, but can no longer do weed eating or gardening. She has taken over that task. She said he cannot lift anything overhead and cannot stoop or bend over. She estimates that he is sleeping or in bed with the lights out for hours due to headache about 2-3 times per week.

Claimant was first seen on the date of injury at St. Mary's Hospital emergency room. A coworker who viewed video of the assault informed the hospital personnel that Claimant had been tackled by an inmate and punched and kicked "greater than 20 times" and that he had a loss of consciousness. He complained of headache, pain in the face, neck, chest, and back, and problems with his vision. He had multiple head and scalp contusions. A CT of the head was normal, as were all x-rays, and Claimant was released. (Ex. 11)

Next, Claimant was seen by Dr. Runde who indicated that the Claimant was unconscious for about 5-10 minutes after the assault and that he was slammed to the ground and hit upwards of 28 times in the face, head, and neck. He noted that Claimant did not recall the attack. He outlined headaches, face and jaw pain, swelling in the back of the head, sounds in his ears, and spots in his vision. Dr. Runde diagnosed Claimant with concussion, rib contusion, and face and head contusions. Dr. Runde referred Claimant to Dr. Bayes for concussion treatment. (Ex. 1)

On March 20, 2015, Dr. Bayes noted that the Claimant continued to have jaw pain, dizziness, and headaches. His physical exam showed significant tenderness over the bilateral occipital nerves, radiating to the scalp and front as well as tenderness over the bilateral supratrochlear nerves. He had a significant convergence deficit of 50 cm and inability to track when vestibular symptoms were evaluated. Dr. Bayes diagnosed him with post-concussion syndrome and vestibular dysfunction, greater occipital neuralgia, and TMJ pain. He recommended vestibular therapy and treatment for occipital neuralgia. He prescribed a topical anti-inflammatory neuropathic pain cream and Nortryptiline and Tramadol for headache pain. (Ex. 17)

On April 9, 2015, Claimant presented to Boone Hospital emergency room. He was bending over to put on his shoes and felt a sudden feeling of dizziness and as if he was going to pass out. He also had right leg and right arm numbness and nausea. A CT scan showed mild density collection across the frontal lobe, and a subdural hematoma. He was admitted to the intensive care unit. (Ex. 3, 5) The next day, Dr. Bondurant performed a left convexity craniotomy for evacuation of subdural hematoma. (Ex. 4)

Claimant returned to Dr. Bondurant on May 13, 2015. He continued to have double vision, headaches, correcting his walking to the right, pain in the right knee, movements of his right foot, tinnitus in the ears, slower cognition, and difficulty processing information. A follow-up CT showed that there was still a small collection across the right convexity. However, the collection had reduced over time. Dr. Bondurant recommended that Claimant be evaluated by a traumatic brain injury clinic to continue rehabilitation. He also recommended further evaluation by ophthalmology. He found Claimant to be unable to work.

At the subsequent visit in June 2015 Claimant reported increase in double vision, worsening of his balance and concentration, and weakness and shakiness. A CT scan from this day showed resolution of the fluid collection. He kept him off work and recommended ongoing rehabilitation. On November 30, 2016, Dr. Bondurant saw Claimant. Claimant reported sensitivity to light and heat, which caused him to "walk aimlessly and demonstrate(s) some dysarthric speech. He described these episodes leading to severe headache. Dr. Bondurant recommended evaluation by a neurologist to consider the possibility of seizures. He continued to have dizziness and vertigo, headache, lightheadedness, and tiredness.

In June 2015 the Claimant saw Dr. Bokkwan in the ophthalmology clinic at the University of Missouri. He indicated blurry vision, sensitivity to light, photosensitivity, dizziness, seeing white spots in his vision, headache. He was diagnosed with myopia, hyperopia, convergence insufficiency, post-concussion syndrome, traumatic brain injury, and subdural hematoma. He noted monocular double vision in both eyes and recommended that the Claimant wear sunglasses. However, he did not recommend prism or any other special glasses. (Ex. 13)

On June 29, 2015, Claimant began treating with Dr. Alvarez at Rehabilitation Medicine Specialists. Claimant relayed his ongoing symptoms, consistent with those reported throughout his treatment. She diagnosed problems with short-term memory, focusing ability, decreased reading comprehension, dizziness, migraines, impaired mobility with decreased balance, difficulty sleeping. She recommended medications for headaches, speech, vestibular, and physical therapy, and a sleep study. She kept him off work. In subsequent visits he reported that therapy was helping, but he continued to suffer from headaches, dizziness, hand tremors, blurry vision, and memory problems. He continued to have issues with bright lights, loud noises, and large groups of people. She prescribed Cymbalta which he has continued to take and has been provided by the Employer to date. By June 2016 Mr. Cox was still experiencing dizziness with position changes, headaches, fatigue, periods of blacking out, memory problems, seeing objects on the left side, difficulties with reading comprehension. On October 5, 2016 Dr. Alvarez found him to be at MMI. (Ex. 15)

On September 21, 2015 an EEG was performed that was normal. (Ex. 7) Another EEG performed on December 4, 2015 was normal. (Ex. 6)

There are multiple therapy notes from St. Mary's Hospital, outlining physical, occupational, and speech therapy. He claimant attended speech language therapy for "cognitive, visual disturbance late effects secondary to TBI with brain bleeds." However, after much therapy, these records indicate that in September 2016, Claimant was still experiencing attention and memory deficits and weakness in auditory and attention/memory. He was setting reminders on his phone. He was able to attend and recall information for 10 minutes but relied on his voice recorder on his phone. (Ex. 12) There are also voluminous records from Select Physical Therapy

stemming from March 2015 to August 2016. These outline ongoing dizziness and headaches. (Ex. 18)

Claimant returned to Dr. Alvarez in August 2017. She indicated that Claimant was having episodes where he would stare into space, has slurred speech, shaking of the hands and feet, severe headache after the episodes, and no recollection of them. He was referred by her to neurology. Dr. Sand saw Claimant on September 18, 2017 and indicated neurological deficits on his exam. He recommended EEG monitoring. He had EEG testing and returned to Dr. Alvarez in November 2017. She indicated that his episodes were not epileptic events. She recommended no additional treatment. (Ex. 16, 19)

Claimant was seen at The University of Missouri in October 2017 for a long-term video EEG monitoring. There were three events when the Claimant had eye fluttering, movements in the right hand, flapping of the wrists and forearms, shaking of the feet, and rapid blinking. The findings were normal EEG, with no EEG change during the witnessed events. They found no correlation with seizures and found him to not have epileptic events. (Ex. 14)

Claimant retained Dr. Cohen, a board certified neurologist, to conduct an evaluation. Dr. Cohen examined Claimant on March 24, 2017. His diagnoses and ratings are: severe attack at work, extensive cerebral bleeding including bilateral subdural hematomas, status post cranial surgery for left subdural hematoma, moderate traumatic brain injury with post-concussive syndrome characterized by cognitive dysfunction, vestibular dysfunction, post-traumatic vascular headaches, and severe tinnitus. He provided a rating of 60 % of the body as a whole referable to the head.

Dr. Cohen stated, "He should be restricted from any work in which he could be injured from any problems with his balance, no work around heavy equipment or dangerous equipment, no climbing or working on ladders, very limited driving and this should be only local driving and avoiding the highways. The patient should not be entrusting regarding remembering any of the essential information due to his short-term memory as it is impaired at this point. Because of his significant headaches, he would need to be allowed to lie down and if the headache does not resolve, he would need to be allowed to go home. Also because of the severe tinnitus, he would need to be able to work in some occupation in which significant concentration is not required." (Ex. 21)

Dr. Cohen also stated that the Claimant is "permanently and totally disabled and not capable of gainful employment in today's open labor market. This permanent total disability in my opinion is due to the primary work-related injury of 03-14-15." Id.

Dr. Cohen's deposition was taken on October 8, 2019. Dr. Cohen testified that the Claimant lays down throughout the day due to headaches, and that the headaches are severe enough "that it would make it extremely difficult for him to work, to be able to focus and concentrate and do whatever particular job he was doing, that they are severe migraines." (p. 31) He also stated that Claimant was not bed-ridden, and could do some activities, but could not be gainfully employed. (p. 30) He also testified that Claimant was continuing to take Cymbalta which is a medication that

will have positive results in those suffering from migraine headaches. (p. 27) He confirmed that none of his opinions changed after reviewing updated notes. (p. 8-12)

Certified Vocational Counselor, Kristine Skahan, evaluated Claimant on July 4, 2017. She met with the claimant, administered vocational testing, reviewed medical records, and reached conclusions regarding Claimant's ability to work and compete in the open labor market. She found his restrictions to put him in the "less than sedentary" category, and there are not jobs that are less than sedentary. She indicated that his restrictions would "interfere with his ability to perform even simple un-skilled work (unskilled work is defined as work that can be learned in up to 30 days.)" (Ex. 20, report p. 15) She concluded that Claimant had a "total vocational disability and loss of access to the open competitive labor market due to the $3 / 13 / 15$ work injury." (p. 17) Specifically, the restrictions of not being entrusted with any essential information, tinnitus, his poor short term memory and inability to concentrate, and needing to lie down throughout the day or go home due to headache would "eliminate him from being able to work in a competitive setting from sedentary to light, unskilled all the way up to skilled. I mean those restrictions are not consistent with competitive work." (Depo p. 27-28)

At the request of the employer, Claimant was evaluated by Certified Vocational Counselor, Terry Cordray, on January 3, 2019. Mr. Cordray opined that "if one considers that Mr. Cox has seizures as described by Dr. Cohen, then Mr. Cox is totally vocationally disabled." (Ex. C, report p. 15) Mr. Cordray goes on to discuss Mr. Cox traveling alone, paying his bills, driving long distances, and attending fairs.

Mr. Cordray deposition was taken on July 8, 2019. (Ex. C) Mr. Cordray testified that "problems with dizziness or balance issues, you would have to note that, if it was an ongoing problem with balance and dizziness, he would be seriously compromised in his ability to work." (Depo p. 26) He also agreed that being unable to compete in the open labor market does not require a state of inertia and that ability to do hobbies outside of work does not necessarily mean a person can work in the open labor market. (p. 28) He also agreed that a person can be independent in their activities of daily living and still be unable to compete in the open labor market. (p. 29)

Claimant was last evaluated by neurologist, Dr. Silverman on March 26, 2019. Mr. Cox relayed the same complaints, including dizziness, unsteadiness, unresponsive episodes, headaches, poor short-term memory, and inability to judge hot and cold. He acted dizzy and had a need to stabilize himself on the exam table before "staring off into space." (Ex. B) Dr. Silverman agreed that Claimant "most certainly suffered a concussion, otherwise known as mild traumatic brain injury or m TBI." (Ex. B, p. 13). His ultimate diagnoses were concussion, post-concussion syndrome, consistent with intermittent headaches, intermittent dizziness and short term memory loss, non-epileptic seizures, subdural hematoma, resolved post-surgical evacuation. He recommended that Claimant continue his use of Cymbalta for headaches. He provided a rating of 4 % of the body as a whole, but also listed AMA guidelines of 2 % for post-traumatic headaches, 2 % for vestibular dysfunction, 2 % for alteration in cognition. (p. 14). He felt that Claimant was able to work and agreed with the opinion of Mr. Cordray (p. 15)

Permanent total disability is defined as an "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." Mo. Rev. Stat. § 287.020.6. Permanent total disability is measured by "a claimant's ability to compete in the open labor market." Searcy v. McDonnell Douglas Aircraft Co., 894 S.W.2d 173, 178 (Mo. App. 1995) (citing Carron v. Ste. Genevieve School Dist., 800 S.W.2d 64, 67 (Mo. App. 1990)). The fact finder must determine whether "any employer in the usual course of business could reasonably be expected to employ claimant in his present physical condition." Id. An employee is not permanently disabled if a reasonable employer would hire him or her. Schussler v. Treasurer of State - Custodian of Second Injury Fund, 393 S.W.3d 90, 96 (Mo. App. 2012).

The critical inquiry in a PTD analysis is whether, considering the employee's physical condition, any employer in the ordinary course of business would reasonably be expected to hire the employee. ABB Power T\&D Co. v. Kempker, 236 S.W.3d 43, 48 (Mo. App. 2007). The claimant in a workers' compensation case has the burden to prove all the essential elements of his claim. Jefferson City Country Club v. Pace, 500 S.W.3d 305, 313 (Mo. App. 2016).

I have thoroughly reviewed the hearing transcript, the deposition testimony and the medical records. After careful review of the testimony and other evidence presented, I find that Claimant is permanently and totally disabled and unable to compete in the open labor market.

Claimant's injuries were the result of a vicious assault. Claimant was left with no memory of the assault or the days immediately following. Claimant suffered bilateral subdural hematomas that required surgery; specifically, a left convexity craniotomy. I find credible Claimant's testimony that he continues to suffer frequent headaches and dizziness. Claimant's testimony is supported by the medical records and the testimony of the other witnesses. Claimant continues to take medication for headaches prescribed by the authorized treating physician.

The employer argues that Claimant is able to travel, do wood working and that his physical activity demonstrates that he is capable of working. While there is some merit to these arguments, I find that Claimant's current physical limitations prevent him from being employed. I find Claimant's testimony to be credible regarding his frequent headaches, dizziness, fatigue and his need to take frequent breaks or naps. I find that Claimant's physical activity has been greatly diminished by the injuries he suffered in the assault.

The medical records and testimony largely supports Claimant. Dr. Cohen's report and deposition testimony confirms that Claimant has many of the symptoms associated with postconcussion syndrome. Dr. Cohen testified that just considering Claimant's headaches, dizziness, nausea, sensitivity to light and the need to lay down, it would be extremely difficult for Claimant to work. I find that this specific testimony and opinion of Dr. Cohen credible and supported by the other medical records. Dr. Cohen acknowledges that Claimant is not "bedridden", but that Claimant cannot do activities enough to be gainfully employed.

Vocational Counselor, Kristine Skahan, also supports this finding. Her report and testimony confirm that the conditions listed above eliminate Claimant from being able to work in a competitive setting. Mr. Cordray, employer's vocational expert, agrees that problems with

dizziness and balance would seriously compromise Claimant's ability to work. If you combine these conditions with the frequent headaches, it is clear that Claimant is unable to work.

In finding that Claimant is permanently disabled, I have largely discounted the possibility that Claimant suffers from a seizure disorder caused by the assault. The medical evidence is inconclusive. The objective testing conducted, including a long-term EEG monitoring study, do not support a seizure diagnosis. Dr. Cohen did not diagnose a seizure disorder. Dr. Lanigar determined that the events were consistent with psychogenic non-epileptic events. (Ex. 14) Psychogenic non-epileptic events are episodes of movement, sensation, or behaviors that are similar to epileptic seizures but do not have a neurologic origin; rather, they are somatic manifestations of psychologic distress. Whether Claimant suffers from seizures is not determinative. His other symptoms as described herein are sufficient to render him unemployable.

One final note regarding the medical evidence. I acknowledge the medical records and reports of treating physicians Dr. Alvarez and Dr. Silberman. Those records document Claimant's continuing symptoms of headaches, dizziness and fatigue but conclude that Claimant is not disabled. However, neither doctor was deposed. Due to the complexity of the medical issues in this case, the records without further explanation are not sufficient to overcome the medical evidence submitted by Claimant.

Having reviewed all the evidence and after observing Claimant and the other witnesses at the hearing, I find their testimony about Claimant's functional ability related to his work injuries to be credible and persuasive. Their testimony is supported by the medical records admitted into evidence. When all of the evidence is carefully reviewed, it leads to the conclusion that Claimant is permanently and totally disabled.

Claimant also seeks an award of future medical treatment. As such, Claimant needs to "show a 'reasonable probability' that, because of [the] work-related injury, future medical treatment will be necessary". Stevens v. City of Citizens Memorial Healthcare Foundation, 244 S.W.3d 234, 237 (Mo. App. 2018). "An employer is required to compensate for future medical care only if 'the evidence establishes a reasonable probability that additional medical treatment is needed and, to a reasonable degree of medical certainty, that the need arose from the work injury.'" A B B Power T \& D Co., 236 S.W.3d at 53 quoting Bowers v. Hiland Dairy Co., 188 S.W.3d 79, 85 (Mo. App. 2006).

Two neurologists examined Claimant; Dr. Cohen for the Claimant and Dr. Silverman for the employer. Both doctors recommended continued use of Cymbalta or other headache medication. Therefore, Claimant is entitled to future medical treatment and the employer is ordered to provide the prescription of Cymbalta or other headache medication. The employer retains to right to designate the authorized treating physician.

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant last worked on March 13, 2015 and was paid TTD through the MMI date of November 30, 2016. He is owed from December 1, 2016 to the date of the hearing, February 3, 2020 in the amount of 165 weeks and 5 days, or $\ 74,016.29 and weekly benefits of $\ 446.65 per week for the remainder of Claimant's lifetime.

I certify that on 4-30-20

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 $\qquad Adjl

Made by: \qquad Bruce Farmer

\qquad$ Administrative Law Judge

Division of Workers' Compensation