Gary Weibrecht v. Gilster-Mary Lee Corporation

Commission denied employee's Motion to Submit Additional Evidence. Commission member Shalonn K. Curls dissented.

On August 24, 2020, pursuant to the Second Injury Fund's August 6, 2020, Motion for Completion of Transcript, endorsed by employee's attorney, the Commission ordered formal motions and responses, e-mails and administrative law judge minute entries relevant to employee's post-trial motions made a part of the record in this matter.

We now turn to the merits of employee's application for review. Having reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record, we find that the award of the administrative law judge denying compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to $\S 286.090$ RSMo, we affirm the award and decision of the administrative law judge. We further affirm the administrative law judge's rulings on employee's post-trial motions, for reasons cited in her July 2, 2019, minute entry, referenced supra.

We affirm and adopt the August 27, 2019, award and decision of Administrative Law Judge Maureen Tilley, which we attach and incorporate herein.

Given at Jefferson City, State of Missouri, this $\qquad 11th \qquad$ day of March 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Córnejo, Chairman


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


I have read the administrative law judge's award, the employee's application for review, employee's motion to submit additional evidence, and the Second Injury Fund's memorandum in opposition. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I would grant the employee's Motion to Submit Additional Evidence in this matter, as permitted by 8 CSR 20-3.030(2)(A) and (B).

Employee in this case settled his claim against the employer on June 27, 2018. Employee's claim against the Second Injury Fund for permanent total disability remained open.

Administrative Law Judge Maureen Tilley heard employee's claim against the Second Injury Fund on May 29, 2019. Employee's attorney prepared his client's case for hearing based on then current law, Gattenby v. Treasurer of Missouri-Custodian of the Second Injury Fund, 516 S.W.3d 859 (Mo. App. 2017). Gattenby held that § 287.220.2 applied to Second Injury Fund claims where, as in this case, the employee had a preexisting disability that occurred before January 1, 2014.

On June 25, 2019, the Supreme Court of Missouri issued its decision in Cosby v. Treasurer of State of Missouri as Custodian for Second Injury Fund, 579 S.W.3d 202 (Mo. banc 2019). The Cosby decision abrogated Gattenby and held that if the date of an employee's primary injury was after January 1, 2014, § 287.220.3, not 287.220.2 applied to the employee's Second Injury Fund claim.

On June 27, 2019, aware that the law controlling his client's entitlement to benefits under the Workers' Compensation Law had radically changed, and before proposed awards from the parties were due and prior to the administrative law judge's issuance of her award, employee's attorney filed a motion to reopen the record for a supplemental hearing to file additional evidence to satisfy employee's burden of proof pursuant to $\S 287.220 .3$.

The administrative law judge denied employee's motion by minute entry on July 2, 2019. She subsequently denied two additional motions employee filed requesting reconsideration of employee's earlier request to file additional evidence or in the alternative to allow employee to present an offer of proof as part of the record. On August 27, 2019, the administrative law judge issued her Final Award denying employee's claim for permanent total disability benefits against the Second Injury Fund based on a finding that employee filed to establish a claim under § 287.220.3.

The administrative law judge's refusal to allow employee to submit additional evidence prior to issuance of her award, after the Missouri Supreme Court overruled Gattenby and effectively changed employee's burden of proof, constituted a due process violation because it denied employee an opportunity to receive an award for permanent total disability benefits without a full and complete hearing. For the same reason, I dissented from Commission's July 2, 2020, order denying employee's October 31, 2019, Motion to Submit Additional Evidence to the Commission.

Employee: Gary M. Weibrecht

-2-

Employee's request complied with 8 CSR 20-3.03092)(A) and (B) in that it specified the names and substance of employee's newly discovered evidence, consisting of medical and vocational evidence as well as testimony by employee establishing that a preexisting, compensable back injury combined with his primary injury on July 19, 2016, to result in permanent total disability thus satisfying employee's burden of proof under § 287.220.3. These exhibits and testimony could not reasonably have been discovered and produced at the administrative law judge's May 29, 2019, hearing because employee's attorney had no reasonable basis to anticipate either the timing or the substance of the Supreme Court's decision in *Cosby*. Employee's attorney further complied with § 287.210.5 by sending a copy of Dr. Paul Hinton's July 17, 2019, medical report, attached to employee's motion, to the Second Injury Fund's attorney more than seven days prior to Dr. Hinton's deposition.

Employee's additional evidence is not cumulative. The new evidence employee requested leave to offer was not relevant at the time of the administrative law judge's hearing but, as a result of *Cosby*, it is now relevant and necessary to address the more stringent requirements for a permanent total disability claim against the Second Injury Fund pursuant to § 287.220.3.

In my opinion, the administrative law judge's denial of employee's post-trial motions to submit additional evidence and this body's subsequent refusal to allow employee's request to submit additional evidence to the Commission constitutes an abuse of discretion and violates due process. The admission of additional evidence under the circumstances of this case, which involves an unforeseen change in employee's burden of proof, is necessary to further the interests of justice. I dissent from the majority's endorsement of the administrative law judge's award denying compensation and its denial of employee's request to submit additional evidence relevant to the standard for proving Second Injury Fund liability pursuant to 287.220.3, as established in *Cosby*, *supra*.

Shalonn K. Curls

Shalonn K. Curls, Member

Employee: Gary M. Weibrecht Injury No. 16-063011

Dependents: N/A

Employer: Gilster-Mary Lee Corp. (settled)

Additional Party: Second Injury Fund

Insurer: Self-Insured / ESIS, TPA

Appearances: Jack H. Knowlan, Jr., attorney for the employee.

Keyla Rhoades, attorney for the Second Injury Fund.

Hearing Date: May 29, 2019 Checked by: MT/kg

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: July 19, 2016

1. State location where accident occurred or occupational disease contracted: DeWitt,

Arkansas (principal place of employment in Perryville, Missouri)

1. Was Employee employed by Employer at time of alleged accident or occupational disease?

Yes

1. Did the employer receive proper notice? Yes

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

Yes

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

1. Was the employer insured by the above named insurer? Yes (self-insured)

1

Employee: Gary Weibrecht

Injury No. 16-063011

1. Describe the work employee was doing and how the accident happened or the occupational disease contracted: Employee was jacking up a trailer. The dolly leg popped out of gear causing the employee to fall and injure his low back.

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident or occupational disease: Low back

1. Nature and extent of any permanent disability: 36.25% permanent partial disability of his body as a whole referable to the low back

1. Compensation paid to date for temporary total disability: $21,870.00

1. Value of necessary medical aid paid to date by the employer-insurer: $166,298.25

1. Value of necessary medical aid not furnished by employer-insurer: N/A

1. Employee's average weekly wage: 1,473.16

1. Weekly compensation rate: 911.27 for TTD and PTD and $477.33 for PPD

1. Method of wage computation: By agreement

1. Amount of compensation payable: None

1. Second Injury Fund liability: No

1. Future requirements awarded: N/A

On May 29, 2019, the employee, Gary Weibrecht, appeared in person and by his attorney, Jack H. Knowlan, Jr., for a hearing for a final award. The Second Injury Fund was represented at the hearing by Assistant Attorney General, Keyla Rhoades. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: On or about July 19, 2016, Gilster-Mary Lee Corp. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and was duly qualified as a self-insured employer.
2. Covered Employee: On or about July 19, 2016, Gary Weibrecht was an employee of Gilster-Mary Lee Corp. and was working under the Workers' Compensation Act.
3. Accident: On or about July 19, 2016, the employee sustained an accident arising out of and in the course of his employment.
4. Notice: The employer had notice of the employee's accident.
5. Statute of Limitations: The employee's claim was filed within the time allowed by law.
6. Average Weekly Wage and Rate of Compensation: The employee's average weekly wage was $\ 1,473.16. His rate of compensation for temporary total disability and permanent total disability is $\ 911.27, and his rate of compensation for permanent partial disability benefits is $\ 477.33.
7. Medical Causation: The employee's injury to his back was medically causally related to the July 19,2016 accident.
8. Medical Expenses: The employer-insurer paid $\ 166,298.25 in medical expenses.
9. Temporary Total Disability: The employer-insurer paid $\ 21,870.00 in temporary disability benefits.
10. Maximum Medical Improvement: The employee reached maximum medical improvement on July 13, 2017.

1. Liability of Second Injury Fund for permanent total disability benefits or, alternatively, permanent partial disability benefits.

The following exhibits were offered and admitted into evidence on May 29, 2019:

Employee's Exhibits:

1. Original and Amended Claims for Compensation.
2. October 4, 2018 deposition of Dwight Woiteshek, M.D. with attached deposition exhibits 1-3.

**Injury No. 16-063011**

1. October 17, 2018 deposition of Benjamin Hughes with attached deposition exhibits 1 - 2.

1. Medical records from Olive Surgical Group 11/30/05 - 1/13/10.

1. Medical records from St. Louis Orthopedic 2/14/14 to 9/12/14.

1. Medical records from Armon Bert, DC 6/16/15 to 7/17/15.

1. Medical records from Orthopedic Sports Medicine 8/5/16 to 9/30/16.

1. Medical records from St. Luke's Center for Diagnostic Imaging 8/23/16.

1. Medical records from Perry County Memorial Hospital 9/23/16.

1. Medical records from Orthopedic Surgery 10/18/16 to 7/13/17.

1. Medical records from Pain Management Services 10/18/16 to 11/15/16.

1. Medical records from Southern Illinois Eyecare 3/17/17.

1. Stipulation for Compromise Settlement for July 19, 2016 claim against Gilster-Mary Lee Corp. under injury number 16-063011.

1. Stipulation for Compromise Settlement for January 5, 2014 claim against Gilster-Mary Lee Corp. under Injury Number 14-007945.

1. Wage Statement.

**Second Injury Fund:** The Second Injury Fund did not offer any exhibits.

The employee was born on July 10, 1952, and was 66 years old at the time of the hearing. He is 5'8" tall and weighs approximately 200 pounds. The employee is married and has three adult children. His wife is retired, and they live in Perryville, Missouri.

The employee was not working at the time of the hearing. His last day of work was on December 9, 2017, and he officially resigned as of December 15, 2017. The employee worked 42 years as a truck driver for Gilster-Mary Lee. The employee tried to return to work for Gilster-Mary Lee after his back surgery, but was unable to keep working due to the pain in his back. The employee retired early and is receiving Social Security retirement benefits.

The employee graduated from high school, and his grades were average. He did not serve in the military, and he did not obtain any vocational or other education after he graduated from high school. The employee used a computer on a limited basis to take training courses while he was employed with Gilster-Mary Lee. He is not currently using a computer, but the employee does use his phone to get information from the Internet. The employee does not have any experience programming or working on computers, but he can read and write and can do basic math. The employee does not have any learning disabilities that affected his ability to work and earn a wage.

**Injury No. 16-063011**

Before he started working as a truck driver for Gilster-Mary Lee, the employee worked for a poultry processing business and had several factory jobs with International Shoe, Chrysler, and Prince Gardner Billfold. The employee has not worked since he resigned from Gilster-Mary Lee on December 15, 2017.

The employee's average weekly wage for the 13 weeks prior to his July 19, 2016 accident was 1,473.16. The parties stipulated to a rate of 911.27 for temporary total and permanent total disability and $477.33 for permanent partial disability.

The employee injured his low back on October 28, 2005 while he was working for Gilster-Mary Lee. There was a damaged bag of grits on a pallet, and he hurt his back while restacking the pallet. The employee reported his accident and Gilster-Mary Lee authorized treatment with Dr. Bernardi in St. Louis. Dr. Bernardi prescribed a Medrol Dosepak that completely resolved his symptoms, and the employee returned to work without restrictions. Dr. Bernardi opined that Employee sustained 10% permanent partial disability of the body as a whole as a result of the October 2005 low back injury. The October 2005 back injury did not affect the employee's ability to do his job as a truck driver, and he had no problems with his back until his July 14, 2009 accident.

The employee had another work-related injury to his back on July 14, 2009. He was working for Gilster-Mary Lee and hurt his back when he tried to straighten a pallet of 50-pound bags that were leaning. The employee's symptoms after his July 14, 2009 accident included pain in his low back and pain down his left leg. The employee reported his accident, and Gilster-Mary Lee authorized treatment with Dr. Bernardi. Dr. Bernardi ordered an MRI of the employee's lumbar spine. The MRI indicated the employee had disc protrusions at L4-5, L3-4 and L5-S1. Dr. Bernardi prescribed another Medrol Dosepak, but after the 2009 accident, the employee did not have a complete recovery. The records indicate the Medrol Dosepak provided a 75% reduction in the employee's pain level. After the Medrol Dosepak, the employee was still having pain with weakness and tingling in the left leg. Dr. Bernardi did not recommend surgery, and on November 19, 2009, he released the employee to return to work without restrictions.

Although the employee was able to return to work as a truck driver with Gilster-Mary Lee after his July 14, 2009 accident, the injury to his back did affect his ability to do his job. He had to be more careful with his back, and he was trying to avoid another injury. The employee started hiring lumpers to load and unload his truck. The employee had to stretch his back and loosen it up before he did any lifting or it would cause pain in his back. The employee's back and leg pain also affected him when he was not working. He had to get help from his sons or neighbors with lifting and mowing. The employee also had to be careful playing sports, and he avoided lifting over 75 pounds. One hundred pounds was too much weight, and he avoided lifting more.

Employee: Gary Weibrecht

Injury No. 16-063011

than 25 to 30 pounds repetitively. The employee did not pursue a settlement for his July 14, 2009 accident.

The employee decided to get chiropractic treatment for his low back in 2015. He saw Dr. Armon Bert three or four times, but decided to stop going because the adjustments were not providing any lasting relief, and the employee's schedule as a truck driver made it difficult for him to see the chiropractor during the week.

January 5, 2014 Injury to Right Shoulder - On January 5, 2014, the employee injured his right shoulder while pulling pins to move the wheels on his trailer. He was working for Gilster-Mary Lee at the time, and the employer authorized treatment with Dr. Keith Odegard. Dr. Odegard ordered an MRI of his right shoulder that indicated there were problems with the rotator cuff, a labral tear, and a partial tear of the biceps tendon. After conservative treatment failed to improve his symptoms, Dr. Odegard performed a surgery on the employee on May 9, 2014. The diagnosis was an anterior and posterior tear of the labrum and right shoulder impingement. Dr. Odegard described his operative procedure as "right shoulder arthroscopy and extensive debridement, right shoulder arthroscopic subacromial decompression, and right shoulder mini open biceps tenodesis."

After several months of post-operative physical therapy, Dr. Odegard released the employee to return to work without restrictions on September 12, 2014. Although the employee advised Dr. Odegard he was ready to try to return to work, the employee was still complaining of stiffness and weakness in his shoulder. He was also still taking Ibuprofen and having problems sleeping on his right side.

The January 5, 2014 injury to the employee's right shoulder affected his ability to do his job as a truck driver. The employee had problems lifting with his right arm, shifting gears, and climbing in and out of his truck. The employee received a settlement for the January 5, 2014 injury to his right shoulder based on 20% PPD of the shoulder.

Primary Claim

On July 19, 2016, the employee was jacking up a trailer and the dolly leg popped out of gear. The trailers were crammed together and when the dolly came out of gear, the employee fell and hurt his back. His symptoms at the time of his accident included pain just above the belt and pain down the back of his left leg.

The employee reported his accident and Gilster-Mary Lee authorized treatment. He initially received conservative treatment from Dr. Andrew Wayne at Orthopedic Sports Medicine in St. Louis. After trigger point injections and therapy failed to provide any relief, Dr. Wayne ordered an MRI of the lumbar spine on September 8, 2016, and compared it to the 2009 MRI. The new MRI was similar to the 2009 MRI, but it showed a new annular tear at L4-5. Dr. Wayne then gave the employee an epidural steroid injection at L4-5 on September 8, 2016, but it did not provide any lasting relief from his symptoms. With the exception of 24 hours after the epidural steroid injection, the employee continued to work full duty during the time he was seeing Dr. Wayne.

**Injury No. 16-063011**

At the September 16, 2016 appointment with Dr. Wayne, the employee was still complaining of low back pain and pain into his left hip and groin. Dr. Wayne was concerned that the employee might have a labral tear in his left hip so he ordered an MRI arthrogram of his left hip. When the MRI of the hip was negative, Dr. Wayne recommended a referral to a spine surgeon.

Gilster-Mary Lee authorized additional treatment with Dr. James Coyle. Dr. Coyle looked at the MRI of the lumbar spine on August 23, 2016, and agreed with Dr. Wayne's conclusion that the employee had bulging discs at L3-4 and L5-S1, with a disc protrusion and annular tear at L4-5. Dr. Coyle compared the new MRI with the radiology report from the 2009 MRI, and noted the annular tear at L4-5 was not mentioned in the 2009 radiology report. Based on the new annular tear, Dr. Coyle concluded that the July 19, 2016 accident was the prevailing factor in causing the employee's current condition and need for treatment. Based on Dr. Coyle's opinion, Gilster-Mary Lee authorized and paid for all of the employee's medical treatment.

Dr. Coyle initially referred the employee to Dr. Gregory Smith at Pain Management Services for injections. Sometime in early November of 2016, the employee started having symptoms in his right leg without any new precipitating event. In Dr. Coyle's November 1, 2016 record, he noted that in addition to the annular tear at L4-5, the employee also had facet arthropathy at L4-5 and L5-S1 with severe degenerative changes at L5-S1 that were pre-existing conditions.

During the November 1, 2016 visit, Dr. Coyle discussed the possibility of surgery, and advised the employee that it was very unlikely that he could return to over-the-road truck driving with an L4 through L5 lumbar decompression and fusion. The employee responded by telling Dr. Coyle that if Dr. Coyle did his job, the employee would take care of his, and he planned to go back to work.

After an additional epidural injection provided only temporary relief, Dr. Coyle recommended an L4-5 and L5-S1 decompression with an anterior and posterior fusion. Dr. Coyle stated in his November 22, 2016 record that the employee's "need for surgery is referable to this work accident, as well as multilevel degenerative disc disease."

Dr. Coyle did the recommended 2-level fusion on December 14, 2016. His pre and post-operative diagnosis was "Severe degenerative disc disease at L5-S1, disc prolapse and annular fissure L4-5, and bilateral lower extremity radiculopathy." Dr. Coyle's diagnosis supports a conclusion that part of the reason the employee needed the surgery was because of the problems he had with his back in 2005 and 2009. Dr. Coyle's operative report indicates he removed the L4-5 and L5-S1 discs and did anterior and posterior fusions at both levels.

The surgery by Dr. Coyle helped, but the employee still had significant problems. He developed swelling in his groin and left leg, and had severe hiccups for several days after the surgery. The employee also started seeing a shadow in his left eye that he felt was attributable to low blood pressure during the 8-hour surgery by Dr. Coyle. Although the surgery helped, the employee still had significant pain in his back and left groin area.

The employee stopped taking narcotic pain medication a few days after he was released from the hospital. The narcotic pain medication was affecting him mentally, and he was concerned that

**Injury No. 16-063011**

He might get addicted. The employee continued to take Ibuprofen and other over-the-counter pain medication, but he decided not to use any narcotic pain medicine.

Dr. Coyle ordered extensive physical therapy after the surgery. The May 5 and May 24, 2017 therapy records indicate the employee was hopeful that he would be able to return to work, but was concerned about cranking dollies, lifting doors, and bouncing on the truck seat for the long hours he would be driving.

On May 25, 2017, the employee advised Dr. Coyle that he wanted to try to return to work and Dr. Coyle released the employee to return to work without restrictions other than to observe normal safety precautions. In Dr. Coyle's final record of July 13, 2017, he felt the employee was doing well and determined the employee was at MMI.

Based on Dr. Coyle's release, the employee returned to work as a truck driver for Gilster-Mary Lee on May 30, 2017. His symptoms at that time included back pain, weakness, and stiffness; and they were much worse than the symptoms he had been experiencing before his July 19, 2016 accident. The employee indicated that his attempt to return to work did not turn out as he had anticipated. The pain in his back made it difficult for him to hook and unhook the trailer. He had problems moving, lifting and bending. The employee had difficulty inspecting his trailer and the air hoses. He also had trouble raising and lowering the trailer door. Riding in the truck was also a problem. The employee had to take frequent breaks to relieve the pain in his back, which affected his productivity. The pain in his back and legs made it difficult for him to concentrate.

Although the employee did not have any new accidents or injuries to his back during the time period after he returned to work, there was a trip in October of 2017 that made him realize that he might not be able to keep working. The employee had a flat tire in Arkansas. Although he called road service to change the tire, he had to get the spare tire down and put the flat tire up. When he got to Houston, the trailer door was stuck so he had to get help pushing it up, and when they were finished unloading, he had to pull it down. By the end of that trip to Houston, the employee's back pain was terrible, and in November of 2017, he spoke with the vice president of Gilster-Mary Lee and told him he did not think he would be able to keep working. The vice president encouraged him to give it another month, but after a few weeks, the employee went back and gave Gilster-Mary Lee his two-week notice.

Gilster-Mary Lee paid all of the employee's temporary total disability benefits and medical expenses related to the July 19, 2016 accident. The employee settled his claim against Gilster-Mary Lee based on 36.25% permanent partial disability, and Gilster-Mary Lee agreed to fund a Medicare Set Aside account to take care of future medical expenses. The employee's claim against the Second Injury Fund was left open.

**Right Shoulder** - The employee still has a "bee sting" pain in the front of his right shoulder. The pain in his right shoulder that gets worse with certain activities. The employee avoids lifting over his head with his right arm. The employee estimated his strength in his right arm is

**Injury No. 16-063011**

approximately half of the strength he has in his left arm. He cannot lift more than a gallon of milk with his right arm extended away from his body. The employee has problems sleeping on his right shoulder because his right arm goes numb and starts hurting. The employee occasionally takes Ibuprofen to help relieve the symptoms in his right shoulder. Since his July 19, 2016 accident, the condition of the employee's right shoulder has stayed about the same.

The employee's current symptoms in his low back include constant pain with occasional stinging and weakness in his legs. The pain is in the center of his low back just above his belt line. There is never a time when the employee is pain free. The employee described the constant pain in his low back as an aching, burning pain, and he rated it as a 3 or 4 on a scale of 0 to 10. Activities that make his back pain worse include sitting too long, standing in one position, lifting too much weight, twisting, bending, and any type of misstep that jars his back. The employee described the more severe pain as a needle and bee sting pain, and rated it as an 8 or 9 on a scale of 0 to 10. On average, the employee has the more severe pain 3 or 4 times a day, and it can last anywhere from a few seconds to a day or two.

In addition to the pain in his low back, the employee also has a stinging, aching pain that goes down the back of his left leg. He also has weakness in both legs that he attributes to his back injuries. The employee has problems lifting his legs from the hip, which makes it difficult for him to go up steps or stairs.

The employee believes that the symptoms in his back and legs have gradually gotten worse since Dr. Coyle determined he was at MMI.

Employee sits in a recliner to relieve the symptoms in his back and legs. He also takes Ibuprofen and occasionally takes naps during the day. The employee has also found that taking hot showers provides temporary relief for his back pain. When the employee uses a recliner, it typically takes an hour to relieve the pain in his back. If he ignores the pain and does not rest in a recliner, the employee's back pain gets worse and he has to take 800 milligrams of Ibuprofen and go to bed.

The employee relieves his back and leg pain by taking medication, changing positions, using a recliner or lying down, taking hot showers, stretching, and avoiding things that make his back and leg pain worse.

The employee's back and leg pain have a significant effect on his ability to function. Lifting more than 25 to 30 pounds causes severe pain in his back. He can lift a small bag of dog food, but could not lift that much on a repetitive basis. The employee cannot sit for more than 30 minutes, and he starts having more pain after 10 to 15 minutes. Standing in one position for more than 30 minutes also causes an increase in the employee's back pain. He can walk, but if he has to walk more than ½ mile, he will need to use a recliner. The employee can bend at the waist, but only if he has something to hold on to. The employee cannot twist. He has to turn his

**Injury No. 16-063011**

Whole body. The employee can squat, but only if he can hold on to something with both hands. The employee has problems using ladders and steps because he had problems lifting his feet to the next step. The employee can still drive, but has to stop and take a stretch break after an hour.

The employee gave several examples of things he is no longer able to do because of the injuries to his back. He can no longer do woodworking and he stopped playing any sports after his July 19, 2016 accident. The employee cannot do anything that requires him to lift more than 25 to 30 pounds, and he is no longer able to pull weeds from the garden or flowers. He also had to sell his wood burning stove because he is not able to cut and split firewood.

The employee is able to do some vacuuming and can load the washer and dryer. He also helps his wife make the bed, and he can still feed the chickens and gather their eggs. The employee is still able to mow the grass in their yard, but he had to buy a special air ride seat for his mower, and it takes longer because he has to take breaks.

The employee's back injuries have caused him to make adjustments in the way he does any jobs around his house. He can go for about 30 minutes and then has to take a break either sitting on the porch or in his recliner.

The employee's injuries to his back have also affected his recreational and social activities. He is still able to go deer hunting, but he cannot hunt as long. If the employee gets a deer, he has to get help from his sons or other family members. The employee has given up fishing, and sitting in a church pew is very painful. The employee has gone to a couple of movies, but doesn't go very often because it's hard on his back to sit that long.

The employee's back pain also affects his ability to sleep at night. He takes Ibuprofen to help him get to sleep, but he wakes up every hour or so because he has to change positions. He gets around seven hours of bed rest, but only sleeps about 1/2 of that time. As a result of his problems sleeping, the employee is tired during the day and typically takes a nap.

Cold or damp weather makes the employee's back feel worse, and he has problems with his balance when he first stands up from a sitting position. His back pain has also affected his sexual intimacy with his wife. The employee's back pain has also affected him mentally in the form of depression and problems concentrating.

The employee is taking Ibuprofen or other over-the-counter pain medication for his back. He is not taking narcotic pain medication because of the effect it has on him mentally, and he does not want to become addicted. The employee has discussed his concern about taking narcotics with Dr. Coyle and other doctors.

During a typical day, the employee gets up around 6:30, drinks a cup of coffee and watches the morning news. He then takes their dog out and checks the garden, chickens and purple martins.

Employee: Gary Weibrecht

Injury No. 16-063011

The employee will then come back inside and watch television while resting in his recliner. He normally takes an hour nap around 11:00 a.m. before eating lunch. After lunch, the employee watches television, and will then walk out and get the mail. During the afternoon, he may take the dog out again or check the chickens, but takes television breaks while resting in his recliner. He may also check with his wife to see if she has something she needs him to do. After super, the employee watches more television and goes to bed around 10:30 p.m.

Other Health Issues

The employee has high blood pressure and high cholesterol, but the medication he is taking has been effective in controlling them. The high blood pressure and high cholesterol have not had any effect on the employee's ability to work and earn a wage.

Opinion Regarding Ability to Work

The employee does not believe he would be able to return to his former job as a truck driver because of the pain in his back. He also does not believe he could do a light or sedentary job where he did not have to do any heavy lifting and could rotate between a sitting and standing position, because of the pain in his back and legs.

Depositions and Reports offered by Employee

Dwight Woiteshek, M.D.

Dr. Woiteshek examined the employee on January 31, 2018, and prepared a medical report dated February 7, 2018. Dr. Woiteshek's deposition was taken on October 4, 2018. Dr. Woiteshek's deposition, curriculum vitae, medical report, and "History Questionnaire" were admitted as Employee's Exhibit 2.

Dr. Woiteshek provided a permanent partial disability rating of 55 percent of the body for the July 19, 2016 accident due to the traumatic annular tear at L4-L5 with the central disc protrusion. For the pre-existing conditions, Dr. Woiteshek gave a 25 percent permanent partial disability rating for the right shoulder, and a total of 25 percent permanent partial disability for the 2005 and 2009 injuries to the employee's low back. In his deposition, Dr. Woiteshek indicated that the rating was cumulative.

Dr. Woiteshek recommended the employee avoid all bending, twisting, pushing, pulling, carrying and other similar tasks as needed. He also recommended the employee not handle weights greater than 10 to 15 pounds, and only lift on an occasional basis using proper lifting techniques. Dr. Woiteshek did not want the employee to handle weight over-head or away from his body, and he did not want him to carry weight over a long distance or over uneven terrain. Dr. Woiteshek advised that the employee avoid remaining in a fixed position for more than 20 to 30 minutes, including sitting and standing.

On the issue of permanent total disability, Dr. Woiteshek concluded that the employee was no longer able to compete in the open labor market and was permanently and totally disabled. He

Employee: Gary Weibrecht

Injury No. 16-063011

felt the employee's total disability was the result of a combination of his work-related injury on July 19, 2016 and the employee's pre-existing conditions.

Mr. Ben Hughes

Mr. Ben Hughes is a vocational rehabilitation counselor with England & Company Rehabilitation Services, Inc. Mr. Hughes evaluated the employee on March 13, 2018, and prepared a vocational report dated March 23, 2018. Mr. Hughes' deposition was taken on October 17, 2018. Mr. Hughes' report and deposition were admitted as Employee's Exhibit 3.

Mr. Hughes opined that if a person assumes just the conclusions given by Dr. Coyle, the employee could return to his previous job as a driver. However, if you look at the restrictions given by Dr. Woiteshek, the employee would be unemployable, incapable of employment or competing for employment.

Mr. Hughes also stated that if the employee is found to be unemployable by the tier of fact, or if the employee is found to be permanently and totally disabled, he believes it would be based on the employee's primary injury in 2016 alongside the pre-existing conditions.

RULINGS OF LAW:

Issue 1. Liability of Second Injury Fund for permanent total disability benefits or, alternatively, permanent partial disability benefits.

Employee's primary injury occurred on July 19, 2016. Therefore, Employee's Second Injury Fund claim should be analyzed under Section 287.220.3. Section 287.220.3(2) indicates that a permanent total claim against the Second Injury Fund shall be compensable only when a number of conditions are met:

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

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

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

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**Injury No. 16-063011**

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; or

(b) An employee is employed in a sheltered workshop as established in sections 205.968 to 205.972 or sections 178.900 to 178.960 and such employee thereafter sustains a compensable work-related injury that, when combined with the preexisting disability, results in a permanent total disability as defined under this chapter.

This case involves a primary injury to Employee's low back and alleged pre-existing injuries to Employee's low back and right shoulder.

In this case, Employee did not present sufficient evidence to establish that his low back injury or right shoulder was a compensable injury as defined in Section 287.020.

Section 287.020 provides in part:

1. (1) In this chapter the term "injury" is hereby defined to be an injury which has arisen out of and in the course of employment. An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.

Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition and the asserted cause. *Brundige v. Boehriner Ingelheim*, 812 S.W.2d 200, 202 (Mo.App. W.D. 1991). Here, Employee did not provide evidence to establish his prior injuries were the prevailing factor in his medical condition and disability. As a result, Employee has not established that his prior injuries were work compensable.

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**Injury No. 16-063011**

Employee has also failed to establish that his pre-existing back injuries condition reached the fifty-week requirement under Section 287.220.3. Dr. Bernardi opined that Employee sustained 10% permanent partial disability of the body as a whole as a result of the October 2005 injury. However, Employee indicated that the 2005 back injury did not affect the employee's ability to do his job as a truck driver, and he had no problems with his back until his July 14, 2009 accident. Employee testified as to the effects the 2009 injury had on his job and the effects his back and leg pain had on his other life activities when he was not working. The employee did not present evidence of a rating from Dr. Bernardi for the 2009 work injury. Dr. Woiteshek opined that Employee sustained 25% permanent partial disability of the body as a whole at the lumbar spine level from injuries that Employee sustained on October 28, 2005 and July 14, 2009. In his deposition, Dr. Woiteshek indicated that the rating was cumulative. Employee did not meet his burden of proof in identifying the extent of permanent partial disability he sustained for each back injury individually. Consequently, he did not meet his burden of proof that either of his pre-existing low back injuries reached the fifty-week requirement.

Employee has also failed to establish that his pre-existing right shoulder condition reached the fifty-week requirement under Section 287.220.3. Employee settled his right shoulder claim for 20% of the right shoulder (46.4 weeks). When he was released by Dr. Odegard on September 12, 2014, Dr. Odegard noted Employee had "slight stiffness and slight weakness in his shoulder but it was moving better." Employee was off medicine except for "an occasional ibuprofen." Employee returned to work without restrictions and was able to work full-duty, full-time without the continued use of any prescription medications. Based on the Employee's testimony and the medical evidence, I find that Employee sustained 20% permanent partial disability of his right shoulder that resulted from his pre-existing right shoulder injury. Consequently, Employee's pre-existing right shoulder does not reach the fifty-week requirement.

Furthermore, the only experts in this case who address permanent total disability considered both conditions in their opinions. Dr. Woiteshek opined Employee was permanently and totally disabled as a result of the combination of his work injury and pre-existing conditions. Mr. Hughes also opined the same and specifically indicated that Employee's right shoulder was a factor in Employee's inability to return to the work force.

Nothing in the statute indicates that conditions that do not meet these requirements may be considered for the purpose of Second Injury Fund permanent total liability. Under the principles of strict construction, it would appear that Section 287.220.3 requires a singular pre-existing disability must combine with the primary to totally disable the employee. The statute references a pre-existing disability in the singular and makes no reference to the consideration of multiple pre-existing disabilities that meet the requirements being used together in determination of Fund liability.

For the reasons stated above, the Employee has failed to establish a claim under Section 287.220.3. Therefore, based on all of the evidence presented, Employee's claim against the Second Injury Fund, for permanent total disability benefits, is denied.

Section 287.220.3(2) also states "No claims for permanent partial disability occurring after January 1, 2014, shall be filed against the Second Injury Fund." Employee's accident occurred

en July 19, 2016, therefore Employee's claim for permanent partial disability is denied because it is not a compensable claim.

Employee: Gary Weibrecht

I certify that on **8-27-19**, 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 __________________________


Made by:

Maureen Tilley

Administrative Law Judge

Division of Workers' Compensation