Juanita Kurbursky v. Independent In-Home Services, LLC

week, from August 21, 2012 through September 10, 2012, for a total of $\ 306.00. Employee was therefore entitled to additional temporary total disability based upon a weekly compensation rate of $\$ 204.00 .{ }^{1}$

The administrative law judge determined that employee was 20\% permanently partially disabled (PPD) to the body as a whole (this rating includes 10\% PPD for the cervical and thoracic spine, plus 10\% PPD at the lumbar spine). Employee was not permanently and totally disabled. Employee's maximum medical improvement date was September 10, 2012, the date that she was placed at maximum medical improvement by Dr. James Jordan. The administrative law judge further determined that the Second Injury Fund was not liable because employee was not PPD or permanently totally disabled, and was still able to compete in the labor market.

Employee and employer filed timely applications for review. Employee's application for review challenged the administrative law judge's determination on the issues of past and future medical expenses, Second Injury Fund liability, and the credibility of the medical experts.

Employer's application for review challenged the administrative law judge's determination on the issues of employee's average weekly wage, the applicable weekly compensation rate, and the use of that rate in the calculation of employee's temporary total disability benefits.

For the reasons stated below, we modify the award of the administrative law judge on the issues of: (1) employee's weekly compensation rate; (2) temporary total disability benefits; and (3) Second Injury Fund liability.

The administrative law judge's award sets forth the stipulations of the parties and the administrative law judge's findings of fact as to the issues disputed at the hearing. We adopt and incorporate those findings to the extent that they are not inconsistent with the modifications set forth in our award. Consequently, we make only those findings of fact pertinent to our modifications herein.

Employee was a home health care worker at employer. She worked at employer for 20 to 25 hours per week, and she was deemed to be a part-time employee. Employee described the August 15, 2012 primary injury by stating that she was carrying bags and struck her head on a canoe that was on top of a car. Employee earned $\ 7.65 per hour at employer, and worked 20 to 25 hours per week. Employee testified that there were

[^0]

[^0]: ${ }^{1} An hourly rate of \ 7.65 multiplied by a 40 -hour week, multiplied by $2 / 3$.

about three other employees performing this same job in a fulltime capacity. Employee specifically named Pamela Chapman as one of the employees that worked 40 hoursplus per week. Employer paid employee temporary total disability benefits in the amount of $\ 102.00 per week for the period of August 21, 2012 through September 10, 2012, for a total of $\ 306.00.

(1) In 1971, at age 12, employee suffered torn cartilage in her right knee. She was squatting when her knee locked up. This right knee injury slowed her down in later jobs.

(2) In 1975, when she was about 16 years old, employee had a left knee sprain.

(3) In 2001, employee had a left ankle sprain. She was at her sister's home when she twisted her ankle and fell to the ground. This injury was aggravated by standing and walking.

(4) In 2011, employee was diagnosed with right foot plantar fasciitis with a heel spur and a bone contusion.

(5) In 2011, employee was diagnosed with right carpal tunnel syndrome, and employee is right-hand dominant. She later underwent carpal tunnel release surgery. This surgery occurred after the August 15, 2012 primary injury, but before employee's examination by Dr. Robert Poetz.

(6) Employee was diagnosed with degenerative disc disease in her neck before the August 15, 2012 primary injury.

Dr. Poetz opined that employee is permanently and totally disabled from the combination of the August 15, 2012 primary injury and her pre-existing conditions. He further opined that employee has been permanently and totally disabled since the August 15, 2012 primary injury, and that she will remain permanently and totally unemployable in the open labor market.

Dr. Poetz diagnosed employee with the following due to her preexisting disabilities: 1) 5 % PPD to the body as a whole at the cervical spine due to degenerative disc disease (400 week level); 2) 20\% PPD at the right knee (1971) (160 week level); 3) 15\% PPD due to a left knee sprain in 1975 (160 week level); 4) 15\% PPD due to a left ankle sprain in 2001 (155 week level); 5) 15\% PPD at the right foot due to employee's 2011 foot plantar fasciitis with heel spur and bone contusion (150 week level); and 6) 30\% PPD at the right wrist ( 175 week level), due to right carpal tunnel syndrome diagnosed in 2011.

At Dr. Poetz's deposition and in his February 10, 2014 report regarding employee's primary and preexisting injuries, he opined that employee's present and prior disabilities results in a total which exceeds the simple sum by 20 %. Dr. Poetz stated that there is a relationship between the lower extremities and the lumbar spine, and that if the knees

were compromised, then a greater strain would be placed on the lumbar spine. Dr. Poetz stated that there is a relationship between the foot, ankle and the lumbar spine, and that an individual with ongoing foot and ankle complaints will alter their gait to compensate for their foot and ankle problems, which can cause pain in the lower back. Dr. Poetz also opined that there is relationship between the upper extremity and the neck and upper back, and that if a patient were to perform an assembly position, that person would be required to view what they are assembling, whether it is looking down, side to side, or overhead. If this job is performed consistently, a greater strain would be placed on a person's neck and upper back.

We find Dr. Poetz's PPD ratings, and his opinions on the relationship between employee's primary and preexisting injuries to be persuasive. However, we do not find Dr. Poetz's opinion on permanent total disability liability to be persuasive. We find that the effects of the primary injury interact with the effects of employee's preexisting disabilities affecting to produce a greater disability than the simple sum of disability referable to those conditions. Furthermore, we find that a 20 % multiplicity factor is appropriate to account for this synergistic interaction.

We adopt and affirm the administrative law judge's conclusions on the issues of whether employee's August 15, 2012 primary injury was a compensable injury, past and future medical care, the nature and extent of employee's disability, and employee's maximum medical improvement date.

§ 287.250.3 RSMo provides, in relevant part:

1. If an employee is hired by the employer for less than the number of hours per week needed to be classified as a full-time or regular employee, benefits computed for purposes of this chapter for permanent partial disability, permanent total disability and death benefits shall be based upon the average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature and at the number of hours per week required by the employer to classify the employee as a full-time or regular employee, but such computation shall not be based on less than thirty hours per week.

The administrative law judge determined that employer did not dispute employee's evidence regarding her $\ 7.65 hourly rate, or the rate and the number of hours worked by her coworkers. However, we find that the basis for the calculation of employee's average weekly wage comes from employee's own testimony at the hearing before the administrative law judge, when she testified that she only worked about 20-25 hours per week. Section 287.800 RSMo requires us to strictly construe workers' compensation statutes. If the Missouri legislature simply wanted us to calculate part-time employees at a rate of a full-time worker at 40 hours, then the legislature could have directed us to do so. However, the current wording of the statute does not state that, and the current

Approach taken by the Commission makes the most sense based on the statute as it is currently written. Based on that, we use a 30 hour work week, since, under $\S 287.250$, it represents the closest to the actual amount of hours worked by employee per week that is allowed under that statute.

Therefore, we calculate employee's average weekly wage using a 30 hour work week, instead of the 40 hour work week that the administrative law judge used for his calculation. We find that employee's average weekly wage is $\$ 229.50 .{ }^{2}$ Additionally we find that employee's weekly compensation rate for temporary total disability is $\$ 153.00 .{ }^{3}$

The parties did not dispute whether employee was entitled to temporary total disability benefits, but rather the proper rate of compensation for same. As stated above, we have found that employee's average weekly wage was improperly calculated by the administrative law judge based upon a 40 hour work week, when it should have been calculated by using a 30 hour work week. Accordingly, pursuant to § 287.170 RSMo, we conclude that the appropriate weekly compensation rate for temporary total disability benefits is $\ 153.00. We also find that employee was underpaid $\ 51.00 in temporary total disability for each week during the period of August 21, 2012 through September 10, 2012, which equals an award of $\ 153.00 of additional temporary total disability.

All cases of permanent disability where there has been previous disability due to injuries occurring prior to January 1, 2014, shall be compensated as provided in this subsection. Compensation shall be computed on the basis of the average earnings at the time of the last injury. If any employee who has a preexisting permanent partial disability whether from compensable injury or otherwise, of such seriousness as to constitute a hindrance or obstacle to employment or to obtaining reemployment if the employee becomes unemployed, and the preexisting permanent partial disability, if a body as a whole injury, equals a minimum of fifty weeks of compensation or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, according to the medical standards that are used in determining such compensation, receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree or percentage of disability, in an amount equal to a minimum of fifty weeks compensation, if a body as a whole injury or, if a major extremity injury only, equals a minimum of fifteen percent permanent partial disability, caused by the combined disabilities is substantially greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of the combined

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[^0]: ${ }^{2} 30 hours per week, multiplied by employee's hourly rate of \ 7.65.

${ }^{3} Employee's average weekly wage of \ 229.50 multiplied by 66 and two-thirds percent.

disabilities, 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. After the compensation liability of the employer for the last injury, considered alone, has been determined by an administrative law judge or the commission, the degree or percentage of employee's disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined by that administrative law judge or by the commission and the degree or percentage of disability which existed prior to the last injury plus the disability resulting from the last injury, if any, considered alone, shall be deducted from the combined disability, and compensation for the balance, if any, shall be paid out of a special fund known as the second injury fund[.]

We find that the evidence in the record supports a finding that the Second Injury Fund is liable for employee's PPD, and modify the administrative law judge's award on this point. Based on the foregoing, we conclude that employee has satisfied each of the statutory requirements for proving Second Injury Fund liability for PPD benefits. Pursuant to $\S 287.190$, we calculate the Second Injury Fund's liability as follows, using Dr. Poetz's ratings for employee's preexisting disabilities:

- 20 weeks ( 5 % PPD to the body as a whole at the cervical spine) +

- 32 weeks ( 20 % PPD from employee's 1971 right knee injury) +

- 24 weeks ( 15 % PPD from employee's 1975 left knee injury) +

- 22.5 weeks ( 15 % PPD from employee's 2011 diagnosis of right foot plantar fasciitis) +52.5 weeks ( 30 % PPD from employee's 2011 right wrist injury) +

- 80 weeks ( 20 % PPD to the body as a whole from employee's August 15, 2012 primary injury) equals 231 weeks,

- multiplied by a 20 % multiplicity factor, equals 46.2 weeks.

At a PPD rate of $\ 153.00, the Second Injury Fund is liable for $\ 7,068.60 in PPD benefits.

We modify the award of the administrative law judge as to the issues of Second Injury Fund liability, and temporary total disability.

Employer is liable to employee for an additional $\ 153.00 in temporary total disability benefits for the period of August 21, 2012 through September 10, 2012.

The Second Injury Fund is liable to employee for enhanced PPD benefits in the amount of $\ 7,068.60.

The award and decision of administrative law judge Kevin A. Elmer is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Employee: Juanita Kurbursky

-7-

The Commission approves and affirms the administrative law judge's allowance of an 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 $\qquad 7th \qquad$ day of April 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

SEPARATE OPINION FILED

Reid K. Forrester, Member

SEPARATE OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed the evidence, read the briefs of the parties, and considered the whole record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I concur with the majority's "Final Award Allowing Compensation, Modifying the Award and Decision of the Administrative Law Judge" on the issues of employee's average weekly wage, weekly compensation rate for employee's permanent partial disability benefits, and temporary total disability benefits. However, I respectfully dissent from that portion of the majority's award of permanent partial disability benefits from the Second Injury Fund.

I believe that the administrative law judge's determination of employee's average weekly wage was based on an interpretation of $\S 287.250 .3$ that would have ultimately resulted in a "financial windfall," as explained in a dissent in Martin v. Mid-America Farm Lines, Inc., 769 S.W.2d 105 (Mo. Banc, 1989) during an analysis of a prior version of §287.250: "[T]he purpose of the [Workers' Compensation] Act is to compensate, or 'make whole,' an injured employee, not create a financial windfall. To hold otherwise would create a situation in which it is more advantageous, financially, to be injured than to be employed."4

Furthermore, I do not believe that the Second Injury Fund should be liable to employee in this case because employee is not permanently and totally disabled, and can still compete in the labor market. Dr. Ted Lennard performed an independent medical evaluation on employee on June 20, 2013, and recommended that employee avoid prolonged bending activities and lifting greater than 30 pounds. Mr. Wilbur Swearingin, the Second Injury Fund's vocational expert, testified that he found no clear evidence that employee had impairments that rose to the level of being vocationally disabling such as to constitute a hindrance or obstacle to employment prior to her August 15, 2012 primary injury. Mr. Swearingin also opined that under Dr. Ted Lennard's medical restrictions, employee would be employable in a variety of sedentary and light occupations, including as a hotel clerk. Mr. Gary Weimholt, employer's vocational expert, also opined that, based upon Dr. Lennard's physical restrictions, employee has a reasonable expectation of employment in the open labor market.

To summarize, I concur with the majority's decision on the issues of employee's average weekly wage and weekly compensation rate for employee's permanent partial disability benefits, and temporary total disability benefits. I dissent, in part, because I believe that the Second Injury Fund should not be found liable for employee's permanent partial disability. Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

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[^0]: ${ }^{4}$ Martin, 769 S.W.2d at 115. Internal citations are omitted.

I concur with the majority on the issue of Second Injury Fund liability for employee's additional permanent partial disability benefits. However, I dissent from the majority's denial of past and future medical expenses, along with their calculation of employee's average weekly wage and weekly compensation rate.

Under $\S 287.140 .1$, an "employee shall receive and the employer shall provide such medical, surgical, chiropractic and hospital treatment ... as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury." The burden is on the claimant to prove entitlement to future medical treatment. ${ }^{5}$ A Claimant is entitled to an award of future medical treatment if that person shows by a reasonable probability that future medical treatment is needed to cure and relieve the effects of the injury. ${ }^{6}$

In regards to employee's request for past medical expenses, employee submitted evidence of medical records and bills from a number of providers for treatment she sought after employer refused to provide additional treatment for employee's ongoing symptoms related to her August 15, 2012 primary injury. Employee and Dr. Robert Poetz both provided testimony that the bills were reasonable and were related to treatment flowing from her primary injury. Therefore, I believe that employee is entitled to payment for her past medical bills related to the unauthorized treatment in the amount of $\ 35,282.05.

In regards to employee's request for future medical expenses, Dr. Poetz opined in his February 10, 2014 report that employee has already reached maximum medical improvement for her August 15, 2012 primary injury, but could benefit from additional medical care. ${ }^{7}$ Dr. Poetz further opined that based upon employee's primary and preexisting injuries, employee should undergo a series of epidural steroid injections If symptoms in her cervical and lumbar spine persist, and that if there was no response, employee "should undergo a repeat MRI of the cervical and lumbar spine followed by surgical intervention, if indicated."8 Therefore, I believe that employee is also entitled to an award of future medical treatment.

Additionally, I believe that the administrative law judge did not err in his calculation of employee's average weekly wage and weekly compensation rate, and that he correctly applied $\S 287.250 .3. Employee testified that she earned \ 7.65 per hour. The wage statement provided by employer is consistent with this testimony. Employee also testified that there were at least three other employees, including her friend, Pamela Chapman, who performed the same job duties and were paid the same hourly rate, but who worked full-time, 40 hours per week, because some clients required 24 -hour care.

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[^0]: ${ }^{5}$ Dean v. St. Luke's Hospital, 936 S.W.2d 601,603 (Mo. App. 1997) overruled on other grounds, Hampton v. Big Boy Steel Erection, 121 S.W.3d at 223 (Mo. banc 2003).

${ }^{6} Concepcion v. Lear Corporation, 173 S.W.3d 368,372 (Mo. App. 2005).

{ }^{7} Transcript at 411.

{ }^{8}$ Id. at 409 .

Injury No.: 12-062235

Employee: Juanita Kurbursky

-2-

Employer did not provide any evidence to dispute this testimony. For the purpose of calculating employee's compensation rate for permanent partial disability and temporary total disability, I believe that the administrative law judge correctly determined employee's average weekly wage and weekly compensation rate to be 306.00 and 204.00, respectively.

For these reasons, I concur with the majority's award of Second Injury Fund benefits to employee. However, I would also find employee to be entitled to an award of past and future medical expenses, and an average weekly wage and weekly compensation rate of 306.00 and 204.00 respectively. Because the majority of the commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls, Member

Employee: Juanita Kurbursky

Injury No. 12-062235

Dependents: N/A

Employer: Independent In Home Services, LLC

Insurer: Commerce \& Industry

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: October 18, 2019

Checked by: KAE

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: August 15, 2012.
5. State location where accident occurred or occupational disease was contracted: Texas County, Missouri.
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: Home health provider, walked into a canoe striking head.
12. Did accident or occupational disease cause death? No. Date of death? NA
13. Part(s) of body injured by accident or occupational disease: Back.
14. Nature and extent of any permanent disability: 20 % whole body disability.
15. Compensation paid to-date for temporary disability: $\ 306.00, for three weeks of TTD.
16. Value necessary medical aid paid to date by employer/insurer? $\ 6,417.66
17. Value necessary medical aid not furnished by employer/insurer? Zero dollars
18. Employee's average weekly wages: $\ 129.46

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

1. Weekly compensation rate: $\ 204.00 for PPD/TTD
2. Method wages computation: Same or similar employee working full-time at 40 hours per week x hourly wage of $\ 7.65.

1. Amount of compensation payable by Employer/Insurer:

Unpaid medical expenses: $\ 0

3 weeks of underpayment of temporary total disability at a rate of $\ 102.00 per week: $\ 306.00

80 weeks of permanent partial disability from Employer / Insurer: $\ 16,320.00

1. Second Injury Fund liability: No.

TOTAL: $\ 16,626.00

1. Future requirements awarded: None.

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

Employee: Juanita Kurbursky

Injury No. 12-062235

Dependents: N/A

Employer: Independent In Home Services, LLC

Insurer: Commerce \& Industry

Additional Party: Treasurer of Missouri, as the Custodian of the Second Injury Fund

Hearing Date: October 18, 2019

Checked by: KAE

The above-referenced workers' compensation claim was heard before the undersigned Administrative Law Judge on October 18, 2019. Further, the parties were afforded an opportunity to submit briefs or proposed awards, resulting in the record being completed and submitted to the undersigned on or about December 17, 2019.

The employee appeared personally and through her attorney Ronald Edelman, Esq. The employer and insurer appeared through their attorney, Robert O. Musick. The Second Injury Fund appeared through its attorney, Skyler Burks, Assistant Attorney General.

The parties entered into a stipulation of facts. The stipulation is as follows:

(1) On or about August 15, 2012, Independent In Home Services, LLC, was an employer operating under and subject to The Missouri Workers' Compensation Law, and during this time was fully insured by Commerce \& Industry.

(2) On the alleged injury date of August 15, 2012, Juanita Kurbursky was an employee of the employer, and was working under and subject to The Missouri Workers' Compensation Law.

(3) On or about August 15, 2012, the employee sustained an accident, which arose out of and in the course of her employment with the employer.

(4) The above-referenced employment and accident occurred in Texas County, Missouri. Venue is proper.

(5) The employee notified the employer of her injury as required by Section 287.420, RSMo.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

(6) The Claim for Compensation was filed within the time prescribed by Section 287.430, RSMo.

(7) Temporary total disability compensation has been provided to the employee in the amount of $306.00, representing three weeks in disability benefits, payable for the period of August 21, 2012, through September 10, 2012, utilizing a weekly rate of $102.00.

(8) The employer and insurer have provided medical treatment to the employee, having paid $6,417.66 in medical expenses.

(9) Claimant's attorney is entitled to a fee of 25% plus expenses.

ISSUES

The issues to be resolved by hearing include:

(1) Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

(2) Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $35,282.05.

(3) Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

(4) What is the applicable compensation rate?

(5) Whether the employee is entitled to additional temporary total disability (TTD) compensation.

(6) What is the nature and extent of disability as a consequence of the accident of August 15, 2012? Permanent partial disability (PPD) or permanent total disability (PTD)?

(7) What is the date of Maximum Medical Improvement (MMI)?

(8) Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund, is liable for payment of additional permanent partial disability (PPD) compensation or permanent total disability (PTD) compensation.

EVIDENCE PRESENTED

The employee testified at the hearing in support of her claim. In addition, the employee offered for admission numerous exhibits as submitted by Attorney Edelman at hearing. These exhibits were received and admitted into evidence:

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

Exhibit 1................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................................

Claimant Juanita Kurbursky testified live at hearing and by deposition taken on May 1, 2014. Claimant was born on June 13, 1959, making her 60 years of age at the time of the hearing. Claimant testified that she is sleep deprived, in pain, citing problems with her shoulders, arms, back, legs, and feet. Claimant detailed a number of medications that she is taking, and named Tramadol, Extra Strength Tylenol, and Gabapentin as medications that she is taking relative to this Workers' Compensation claim. She named other medications that she is taking for gout, "A-Fib," a heart condition, a pacemaker, and cholesterol.

Claimant testified as to ongoing treatment by Shawn Moore, a nurse practitioner for Dr. Maynard in Salem, Missouri. This is her primary care physician and she treats at that office every one to three months. Claimant testified that she uses a cane every day.

At the time of the 2012 work injury, she was 53 years of age. Claimant lives at 210 Campbell, No. 29, Licking, Missouri. She has lived there for about 18 months. Her husband died in 2014. This residence is four-plex apartment.

Claimant named her five children, also that she has 19 grandchildren. She testified that she receives assistance from family members for meals.

Before the date of injury, Claimant required no assistance for activities of daily living. She now has to be careful how to walk and move, as a result of being weaker in her legs and back. She gave up her driver's license in 2016, attributing this to suffering dizziness and sleep problems.

Ms. Kurbursky graduated from high school in San Marcos, California, in 1977. She pursued some junior college study during high school. Claimant attended trade school for medical transcribing and office procedure, studying at Merit College of Medical Careers. She obtained a certificate in this trade, but that certificate is not current.

Claimant detailed her employment history, first noting that she was primarily a homemaker from 2000 through 2011, raising her family. She testified that past injuries (referring to those before the work injury of August 15, 2012) did slow her down some.

Past work history included working at a Walmart in Salem, Missouri, in overnight receiving. She also worked at Town \& Country Supermarket, Licking, Missouri, in about 1998/1999 as a deli worker. She testified that she had to be careful how she moved, performing this job.

Regarding her employment by Independent In Home Services, the employer in this claim, Claimant testified that she last worked there on September 18, 2012, and that she could not return to this job because of pain, which was after medical release by Dr. Jordan. Claimant asked her supervisor, Debbie Jorgenson, for more treatment and that request was refused.

For a period from about May 2011 through June 2012, Claimant had simultaneous employment at Scenic Rivers Hotel, working as a desk clerk and doing laundry.

Claimant does not believe she can return to work because of problems with her neck, shoulders, and back. Claimant's work for Independent In Home Services was providing home health care. Her job duties required lifting of 50 pounds and assisting adult patients. Working for this business, she had worked two to four hours per client (referring to the patients that she would visit at home) doing this five days per week. She estimated working for this business 20 to 25 hours per week, and she was deemed to be a part-time employee. At the time of the August 15, 2012, injury, she had two patients. Claimant testified that she had no permanent restrictions before August 15, 2012, and that she had no special accommodations at work.

She did testify that she self-imposed some restrictions, just to be careful, and that she had difficulty performing her job for Independent In Home Services because of prior injuries to the knees and ankle. Claimant testified as to radiating pain in her shoulders and arms, upper and lower back, headaches, and problems with sleeping and alertness.

Claimant also testified about a prior injury working for Independent In Home Services when she suffered a slip and fall on the ice. She underwent x-rays at Texas County Hospital. This did not lead to a Workers' Compensation claim being filed.

Ms. Kurbursky described the August 15, 2012 injury which occurred in Success, Missouri. She was carrying bags and struck her head on a canoe that was on top of a car. This impact caused her to go to the ground. She did not have loss of consciousness. Claimant detailed the symptoms after this event as being pain in head, being dazed, and having a headache. Regarding neck pain, she said she did not feel any immediate pain. She detailed upper back pain radiating into the shoulders and lower back pain radiating down to the feet.

Claimant was able to finish her job duties working for that client on August 15, 2012. She called Debbie Jorgenson to report that injury.

On August 15, 2012, after leaving the client's home where she struck her head, Claimant traveled on to visit a second client, but had difficulty doing so. Again communicating with Debbie Jorgenson, an Emergency Room visit was approved and Claimant went to Texas County Hospital.

Claimant treated with Dr. Jordan on August 27, 2012, and he put Claimant on limited duty such that she was unable to perform her job. She also participated in physical therapy with Advance Care PT, consisting of about six visits. Dr. Jordan released Claimant without restrictions on September 10, 2012.

Claimant pursued unauthorized medical treatment with Dr. Kunkel, a pain management physician. She treated with Dr. Kunkel from November 2012 into 2013. She underwent epidural steroid injections and radiofrequency thermocoagulation. She also underwent an MRI in January 2013. Claimant testified that she has had DVT and a pulmonary embolism due to inactivity. Describing her symptoms at present, Claimant detailed complaints with her shoulder, fatigue, headache, back, legs, and whole body. She reiterated that she is still seeing Dr. Maynard in Salem for dispensing medication.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

Related to the work injury of August 15, 2012, Claimant described limitations that she can

only stand for a couple of minutes, that she can only sit for about 30 min, and that this affects her

driving, and that she can only lift 10 to 15 pounds once or 10 pounds repetitively.

Claimant next detailed a number of older injuries and medical conditions that predate the

August 15, 2012, work injury.

In 1971, at age 12, Claimant suffered torn cartilage in her right knee. She was squatting

when her knee locked up. She underwent an arthrogram in California. Ms. Kurbursky detailed

ongoing symptoms with her right knee, describing an aching pain that she rated at 1 to 2 on a 10

scale. This right knee injury slowed her down in later jobs. As a result, she would avoid accepting

any employment involving heavy walking.

Claimant next detailed an injury in 1975, when she was about 16 years old. This was a left

knee sprain. She had ongoing symptoms that she described as aching, swelling, and arthritic pain.

She rated pain as 1-2/10. This left knee sprain would cause her to walk slower and would cause

her pain. Claimant again noted that due to this left knee sprain she would avoid accepting

employment involving heavy walking or heavy standing.

Ms Kurbursky next detailed a 2001 injury, consisting of a left ankle sprain. She was at her

sister's home when she twisted her ankle and fell to the ground. She described this as a high-ankle

sprain, causing ongoing pain and swelling. This injury was aggravated by standing and walking.

At present, Claimant still has to be careful to not re-sprain the ankle. Due to the left ankle sprain,

Claimant indicated she would not consider accepting employment that involved heavy walking or

heavy standing, specifically describing that she would not consider employment as a cashier or a

stocking position.

Claimant detailed a 2012 diagnosis of right foot plantar fasciitis. She also has heel spurs

and bone contusions. Dr. Fox, a podiatrist, gave her shoe inserts. This right foot injury affected

her speed and movement.

Ms. Kurbursky detailed a 2011 diagnosis of right carpal tunnel syndrome, and the fact that

she is right-hand dominant. She has difficulty gripping and has numbness and pain in the fingers.

A nerve conduction study confirmed a diagnosis of carpal tunnel syndrome and Claimant first

wore a wrist brace. She later underwent carpal tunnel release surgery. She has ongoing numbness

in the right hand. She described 25 to 30% lost strength in her hand and wrist. This carpal tunnel

surgery occurred after August 15, 2012, but before Claimant's examination by Dr. Poetz. Claimant

detailed ongoing pain and the same symptoms as described above with the right hand and wrist.

Due to the right carpal tunnel injury, she would not seek employment with jobs that required typing

or transcription, or repetitive factory work.

Claimant also described a diagnosis of degenerative disc disease in her neck before the

August 15, 2012, date of injury. This condition caused her pain of 7-8/10 at worst. She underwent

chiropractic treatment for flare-ups of the pain in her neck from degenerative disc disease. This

condition also causes her restricted range of motion.

Employee described her overall symptoms and disabilities, also describing typical daily

activities. She indicated she is very sedentary, that she gets out of bed at five to six a.m., having

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

breakfast and medication. All day she will sit on the couch or bed watching TV or reading. Her daughter is a home health aide and assists with cleaning, household chores, and shopping.

It is Ms. Kurbursky's belief that she needs home health care aid due to the effects of the August 15, 2012, injury. Claimant testified that her daughter is paid $10.00 per hour to perform as a home health aide, working three to four hours per day, three hours per week, and that this arrangement started in 2016. This service is paid by Medicare or Medicaid. Claimant testified that her sleep is affected by the August 15, 2012, injury.

Claimant described her hobbies before August 15, 2012, being sewing, crocheting, and crafts. She now has difficulty sitting which affects these activities. Claimant describe her social activities before August 15, 2012, as eating dinner out and attending school functions. She now has difficulty traveling, finding it difficult to get in and out of the car.

Ms. Kurbursky stated she used a cane to walk before August 15, 2012, but that she uses the cane more now. She suffers headaches about two times per week causing pain of 2-3/10, increasing to 5-6/10. Claimant testified as to her belief that her neck and back pain would make her unable to work in her previous jobs. A 30-pound lifting restriction from Dr. Lennard prohibits her from working in home health care. She believes that the effects of the August 15, 2012, injury alone would keep her from being able to work.

Claimant testified that she receives SSI-survivor benefits from her deceased husband's Social Security. She has applied for Social Security Disability, citing a combination of preexisting injuries and the injuries from August 15, 2012.

Ms. Kurbursky earned $7.65 per hour working for Independent In Home Services, and worked 20 to 25 hours per week. Claimant testified that there were about three other employees performing this same job in a fulltime capacity. Specifically named was Pamela Chapman and that this individual worked 40 hours-plus per week. Claimant asks the judge to award benefits paid according to an average weekly wage of 306.00, based upon 7.65 times a 40-hour week.

Claimant testified that there were extensive medical bills not paid by Employer/Insurer. Referring to medical bills as set forth in Claimant's Exhibit 20, Claimant testified that all of these medical services were related to the injury of August 15, 2012, coming after a denial of treatment by Employer/Insurer. Specifically, Claimant testified as to medical treatment by Dr. Kunkel, Phelps County Regional, Texas County Hospital, Mercy Pharmacy, and Walmart Pharmacy. Claimant asked the Judge to award the sum of $35,282.05 for past medical services related to the injury of August 15, 2012. She detailed that as to medical bills as set forth in Exhibits 16 and 19, only some of the medical expenses are related to treatment for the work injury of August 15, 2012, and that these are noted by checkmarks on those Exhibits.

Employee asked the judge to award her permanent total disability (PTD) benefits, either against the employer or against the Second Injury Fund. Claimant asks for future medical treatment to be left open, also to include home health services.

Page 9

On cross-examination by Employer/Insurer's attorney, Claimant recalled providing deposition testimony in Rolla, Missouri, in 2014. Claimant affirmed that her prior testimony by deposition in 2014 was truthful and accurate in describing injuries and medical conditions that predate the work injury of August 15, 2012.

In her deposition, Claimant testified about the injury to her left knee from the 1970s. She still has problems with the left knee (Exhibit I, page 20, line 2). Everyday life activities would cause swelling in that knee (Exhibit I, page 20, line 9). More active days, such as going to an amusement park, would likewise cause swelling in that knee (Exhibit I, page 20, line 14). The left knee injury from the 1970s did interfere or cause problems with performing her jobs, specifically that "it made me be slower. I had to be careful with it." (Exhibit I, page 20, line 1-2). This knee injury caused her to be slower at her jobs at Walmart, at Town and Country, at the motel, and as an in-home health care provider (Exhibit I, page 21, line 5-6).

Claimant next described the 1970's injury to her right knee. The right knee injury still gives her problems (Exhibit I, page 22, line 10). The problems with the right knee are described as swelling and acute pain behind the knee (Exhibit I, page 22, line 12). This right knee condition dates back to the 1970s (Exhibit I, page 22, line 16). Claimant described swelling as being behind and around the knee cap (Exhibit I, page 22, line 19) and that this pain occurs "basically every day." (Exhibit I, page 22, line 21). Comparing the two knee injuries, the right knee injury is more severe (Exhibit I, page 22, line 24). Claimant testified that her right knee injury did interfere with her ability to do jobs and that the right knee injury made her slower (Exhibit I, page 23, line 2-3).

Her knees did give her problems while working at Lane Bryant (Exhibit I, page 26, line 11). Those knee problems were described as swelling and aching from sitting so long (Exhibit I, page 26, line 13-14). Claimant described that her knees would swell from being used and from not being used (Exhibit I, page 26, line 17).

Claimant also discussed her employment at Town \& Country in the Deli Department. Claimant was asked about any problems that she had doing lifting to perform that job, and she discussed doing that job to the best of her ability with injuries to her knees and hands, specifically detailing an injury to the right hand/wrist (Exhibit I, page 28, line 11-13). The onset of the wrist problems occurred while working at Town \& Country (Exhibit I, page 28, line 21). Her knees were swelling while she worked at Town \& Country (Exhibit I, page 30, line 10). Claimant was asked about whether she had any problems doing her job duties at Town \& Country. Claimant was asked about the ongoing condition of the knees while working at Town \& Country. Claimant responded that she was slower in doing her job activities (Exhibit I, page 30, line 17-18). While working at Town \& Country she would suffer from swelling in the knees after work and sometimes during work when she had to squat (Exhibit I, page 20, line 20-21).

Claimant next detailed working at a Walmart store in Salem and that she continued to have problems with her knees and right wrist (Exhibit I, page 34, line 1).

The alleged effects of her injury to both knees and the right wrist while performing her job duties at Walmart are (Exhibit I, page 34, line 2 through page 35, line 4):

Q And were they interfering with your ability to do your job at all?

A I did it to the best of my ability, and as far as to the injuries that I had.

Q I would like to explore that a little bit. I would like to know that problems you had doing it, because of these injuries. So you had trouble getting on your knees? You had trouble doing overhead? What do you mean exactly?

A Because of my knees, I did have trouble getting down on them. I had trouble getting up. I had to push up on them. We had to be on our knees to do stocking of the lower shelves. Then we would have to reach up on the carts that we had, to get merchandise. Then bring it down.

Q Let me interrupt you for a second. You had trouble getting down on your knees and getting up. Did you have some sort of trouble reaching up and getting the merchandise and bringing it down?

A The heavy merchandise. Yes.

Q Because of your knees, your wrist, or what?

A Because of my wrist.

Q Okay.

A I also had to walk around the store and carry shelving. I had to readjust shelving.

Q Did those cause you problems?

A Yes. Because they were awkward. We had to pull pallets of merchandise.

Claimant next detailed a 2001 injury to her left foot, describing that injury as a high ankle sprain (Exhibit I, page 39, line 9-12). Claimant detailed ongoing problems with that ankle as being very weak and causing swelling if she is on the ankle too much (page 40, line 5-6).

Employee next detailed a 2011 injury to her right foot, being plantar fasciitis (Exhibit I, page 40, line 11-12). She still has occasional problems with the right foot injury (Exhibit I, page 40, line 24) and that this problem occurs about once every three months (page 41, line 1), with each flare-up lasting about one week (Exhibit I, page 41, line 5-6). Asked again about the condition of the left ankle and whether this injury interfered with job performance, Claimant responded that the injury made her slower and she "had to be careful of it." (Exhibit I, page 41, line 17-18). Claimant next described that the interference with her ability to perform her job was caused by both the plantar fasciitis and the left ankle, affecting her work when those conditions would flare up (Exhibit I, page 41, line 21).

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

Ms. Kurbursky was asked about the carpal tunnel injury, confirming that this occurred in about 2011 (Exhibit I, page 41, line 23) and that this condition was only on the right side (Exhibit I, page 41, line 25). Asked about ongoing problems with carpal tunnel, Claimant stated, "It's weak. I have to be careful how I grab things. I can't lift anything real heavy." (Exhibit I, page 42, line 6-7). She could lift a gallon of milk (page 42, line 11), but that she would not be able to lift a case of soda very well (Exhibit I, page 42, line 13). Claimant detailed that the right hand injury causes problems with writing (Exhibit I, page 42, line 16) and that problems consist of cramping, and numbness in the little finger (Exhibit I, page 42, line 19-20). Her carpal tunnel problems did interfere with her ability to do her job (Exhibit I, page 43, line 5), causing problems with being able to grip things (Exhibit I, page 43, line 7). This condition that affected her grip affected activities such as cooking, laundry, and cleaning (Exhibit I, page 43, line 10-11).

Claimant was asked about how her injuries affected her job at Scenic Rivers Motel. Those job activities caused swelling in her knees, arms, and neck (Exhibit I, Page 45, line 10-11). Her employment with Independent In Home Services was from January 2011 through August 2012 (Exhibit I, page 49, line 5). Claimant was asked whether she had difficulty being able to do her job at Independent In Home Services prior to the injury in August of 2012. Claimant responded in the affirmative, "Yes. I did it to the best that I could." (Exhibit I, page 49, line 8). Claimant described those problems as swelling of the knees, ankles and wrist (Exhibit I, page 49, line 10-11), specifying that the problem was with the right wrist (Exhibit I, page 49, line 14).

Regarding the effects of the work injury of August 15, 2012, Claimant detailed that this injury affected the left side of her neck, and both shoulders (Exhibit I, page 50, line 21-22), also her spine and tailbone (Exhibit I, page 51, line 1). The neck, right and left shoulders, spine and tailbone were the full extent of injuries sustained in the work injury (Exhibit I, page 51, line 8).

Claimant also detailed multiple health issues including an injury from about September 2012 when she was getting into a truck and her right shoulder popped (Exhibit I, page 52, line 1-4). The onset of deep vein thrombosis in January 2014 (Exhibit I, page 52, line 9) and that this was located in her right knee (Exhibit I, page 52, line 12). The onset of shortness of breath after the work injury of 8/15/12 (Exhibit I, page 53, line 7-8). She states a diagnosis of gout in January 2014 (Exhibit I, page 53, line 14). Claimant detailed a diagnosis of Sjogren's Syndrome in December 2012 (Exhibit I, page 55, line 14), describing this as an autoimmune disorder related to arthritis (Exhibit I, page 55, line 16-17). Claimant admitted taking medication for depression (Exhibit I, page 56, line 12), for A-fib (Exhibit I, page 56, line 14), for heart problems and water retention (Exhibit I, page 56, line 16).

Claimant testified that she started walking with a cane after her left ankle injury in 2001 (Exhibit I, page 64, line 4-5). She described the frequency and duration of using a cane, that she did so about once every three months (Exhibit I, page 64, line 20) and that use of the cane would last about a couple of weeks (Exhibit I, page 64, line 23).

On cross-examination by Assistant Attorney General Burks, Claimant testified that there were no formal medical restrictions issued by physicians before the injury of August 15, 2012. Claimant also testified that she did not have any special job accommodations by her employers, in order to carry out her job duties.

Dr. Ted Lennard

Page 12

The Complete Medical Report of Dr. Ted Lennard is in evidence as Employer/Insurer's Exhibit B. Dr. Lennard examined Claimant on June 20, 2013, and authored a ten-page report. A copy of Dr. Lennard's Curriculum Vitae is also included. Dr. Lennard examined Claimant in person, and provided a summary of medical records of other medical providers.

Dr. Lennard diagnosed cervical, thoracic, and lumbar strain; also noting cervical and lumbar degenerative changes. Dr. Lennard opines that the work accident on August 15, 2012, was the prevailing factor in the onset of her cervical, thoracic, and lumbar strain. He opines that her co-existing spine degenerative disease is unrelated to her work accident. Dr. Lennard places Claimant at maximum medical improvement (MMI) for the work-related injury. He opines that based upon the physical examination, Claimant's description on the Numerical Pain Scale, crippled perception of her disability on the Oswestry Scale, extensive locations of pain on her Pain Diagram, time off work, poor physical condition, pain focus on the Behavioral Medicine Profile, and obesity, it is unlikely that Claimant's subjective complaints will change with any form of treatment at her spine.

Dr. Lennard has issued permanent partial disability (PPD) ratings. Regarding the cervical and thoracic spine, Dr. Lennard rates 10 % of the whole body with 5 % attributed to the workrelated injury of August 15, 2012, and the remaining 5 % to non-work-related degenerative disc disease. Regarding the lumbar spine, Dr. Lennard rates 10 % of the whole body with 5 % attributed to the work-related injury of August 15, 2012, and the remaining 5 % to non-work-related degenerative disc disease.

Dr. Lennard recommends that Claimant should lose weight and exercise. He provides medical restrictions, detailing that from a functional standpoint Claimant should avoid prolonged bending activities and lifting greater than 30 pounds. Dr. Lennard, describing this work restriction, provides that the restrictions are due 50 % from the work accident of August 15, 2012, and 50 % from her co-existing non-work-related degenerative changes.

Dr. Lennard noted Claimant's height of 66 inches, weight of 314.8 pounds, and a BMI of 50.80 .

Dr. Poetz examined Claimant at the request of her attorney Ronald Edelman. He has authored a report dated February 10, 2014, and has testified by deposition. This report and deposition are in evidence ( Exhibit 5).

Dr. Poetz offered the following diagnoses relative to the injury of $8 / 15 / 12$ :

(1) C5-6 cervical disc protrusion with exacerbation of the degenerative disc disease;

(2) L5-S1 lumbar disc protrusion; and

(3) Concussion with post traumatic headaches.

Dr. Poetz offered the following diagnoses of pre-existing injuries and conditions.

(1) Cervical degenerative disc disease, pre-existing;

(2) Right knee internal derangement, 1971;

(3) Left knee sprain, 1975;

(4) Left ankle sprain, 2011;

(5) Right foot plantar fasciitis with heel spur and bone contusion, 2011; and

(6) Right carpal tunnel syndrome diagnosed in 2011 with status post carpal tunnel release performed July 24, 2013.

Dr. Poetz issued PPD ratings relative to the $8 / 15 / 12$ injury as follows:

(1) 20 % PPD of the body as a whole for the cervical spine;

(2) 20 % PPD of the body as a whole for the lumbar spine; and

(3) 20 % PPD of the body as a whole at the head.

Dr. Poetz issues the following PPD ratings as to injuries or conditions that predate $8 / 15 / 12$ :

(1) 5 % PPD of the whole body for the cervical spine;

(2) 20 % PPD of the right knee, 1971;

(3) 15 % PPD of the left knee, 1975;

(4) 15 % PPD of the left ankle, 2001;

(5) 15 % PPD of the right foot, 2011; and

(6) 30 % PPD of the right hand and wrist, 2011.

Dr. Poetz opines in his report that Claimant is permanently and totally disabled as a result of the combination of the August 15, 2012, work injury and her pre-existing conditions. He opines that she has been PTD since August 15, 2012, and that she will remain permanently and totally unemployable in the open labor market.

Dr. Poetz issued various restrictions in the Work Restriction Evaluation form that accompanies his narrative report.

Dr. Poetz places Claimant at MMI, indicating that Claimant "still could possibly achieve benefit from the medical care recommended above." In the foregoing portion of the report, Dr. Poetz has recommended warm moist packs and range of motion exercises and Cox II nonsteroidal anti-inflammatory medication or the new topical anti-inflammatory medications such as Voltaren Gel or Flector Patch.

The doctor also makes some conditional recommendations for further treatment. He recommends that if symptoms in the cervical and lumbar spine persist, she should undergo a series of epidural steroid injections. He recommends that if no response, she should undergone a repeat MRI of the cervical and lumbar spine followed by surgical intervention, if indicated. He recommends managed weight loss.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

Dr. Poetz testified by deposition on January 27, 2015. Dr. Poetz testified that the Work Restriction form was intended primarily for the primary injury, but there are overlaps that apply to other areas as well (Exhibit 5, page 44, line 2-4). On direct examination by Mr. Edelman, Dr. Poetz affirms the opinion in his report that Claimant is PTD. Dr. Poetz places Claimant at MMI effective June 30, 2013 (Exhibit 5, page 45, line 9). Clarifying the opinion in his report that PTD is as a result of the August 15, 2012, work accident in combination with numerous pre-existing medical conditions and disabilities, Dr. Poetz affirmed this at deposition (Exhibit 5, page 48, line 24) discussing medical conditions that pre-existed the August 2012 work accident. Dr. Poetz identified those as injuries to the right leg, left knee, right foot, left foot and right wrist (Exhibit 5, page 64, line 12). Dr. Poetz testified that crepitus can be a disabling condition (Exhibit 5, page 64, line 15) and that plantar fasciitis, heel spur and bone contusion of the right cuboid can be a disabling condition (Exhibit 5, page 64, line 23).

Dr. Poetz was cross-examined by the attorney for the employer/insurer as to a number of the recommendations that he made to avoid certain activities, with those recommendations at page 7 of his report (Exhibit 5, page 67, line 7). Dr. Poetz was questioned about whether he would have imposed certain restrictions for pre-existing conditions, in the event that Claimant had not sustained the work injury of August 2012 (Exhibit 5, page 69, line 5-8). Dr. Poetz testified that he would have imposed a restriction to avoid pushing and pulling, based upon pre-existing disabilities (Exhibit 5, page 69, line 9). Dr. Poetz testified that he would have imposed the restriction to avoid heavy lifting and strenuous activity even without the work injury of August 2012 (Exhibit 5, page 69, line 15). Dr. Poetz testified that he might impose a restriction to avoid prolonged sitting, standing, walking, stooping, bending, squatting, twisting, or climbing, conditioning that response that the restrictions would not be to the degree as set forth in his report (Exhibit 5, page 69, line 21-22). Dr. Poetz testified that his restriction to avoid walking is related to pre-existing medical conditions to her lower extremities (Exhibit 5, page 70, line 2). Dr. Poetz opined that a restriction to avoid overhead use of upper extremities would still be in place, even absent the August 2012 work injury (Exhibit 5, page 70, line 12). Dr. Poetz testified that a recommendation to avoid excessive and repetitive use of the upper extremities would likewise be in place absent the effects of the August 2012 work injury (Exhibit 5, page 70, line 16). Dr. Poetz testified that a restriction to avoid use of equipment that creates torque, vibration, or impact to the upper extremities would still be in place absent the August 2012 work injury (Exhibit 5, page 70, line 22).

On cross-examination by the Assistant Attorney General, Dr. Poetz testified as to his belief that Claimant was not walking with a cane prior to the work injury of August 2012. He agreed that Claimant was not using a cane prior to August 2012 (Exhibit 5, page 89, line 15). This testimony by Dr. Poetz is in direct contradiction to Claimant's testimony that she had utilized a cane for walking as early as 2001. Dr. Poetz explained that he was not aware before the deposition that Claimant was using a cane "before," referring to the August 2012 work injury (Exhibit 5, page 90, line 15-16).

The Assistant Attorney General asked Dr. Poetz whether the extent of the disability from the last injury alone, without consideration of pre-existing conditions or subsequent unrelated conditions, would render Claimant permanently and totally disabled. Dr. Poetz specifically stated that it is not his opinion that the work injury alone would render Claimant permanently and totally disabled (Exhibit 5, page 96, line 11).

Page 15

Gary Weimholt is a vocational expert retained by employer/insurer. He has authored a written report dated July 6, 2015. This report and his Curriculum Vitae/Resume are exhibits to Mr. Weimholt's deposition. Mr. Weimholt was deposed on February 19, 2016 (Exhibit A).

Mr. Weimholt opines that Claimant has a reasonable expectation for employment in the open competitive labor market given the restrictions of Dr. Lennard. He opines that Claimant has an education and work experience which would provide for either full-time or part-time work at a sedentary to light physical demand level.

Mr. Weimholt opines that under restrictions of Dr. Poetz, these would allow for some work at a sedentary or light physical demand level for fours per day or part-time. Mr. Weimholt notes that Claimant was not participating in the full-time labor market between approximately 2001 to 2010, having multiple physical complaints such as being slowed down at work or having swelling and pain in both knees. Mr. Weimholt notes that Claimant was requiring a cane after an injury to the left ankle in 2011.

Mr. Weimholt testified by deposition on February 19, 2016. Asked about the percentage of work that he performs in Workers' Compensation matters, Mr. Weimholt testified that his work used to be practically 100 % at the request of the Employer or Insurer, but that this has changed over time and that approximately 70 % of his work has been done at the request of the Claimant's representative (Exhibit A, page 9, line 6-12). His ability to offer thorough and learned opinions is not hindered by the lack of examining Claimant (Exhibit A, page 11, line 10). Mr. Weimholt opines that the injury to bilateral knees dating back to the 1970s does create industrial disability or an impediment to prospective employability (Exhibit A, page 12, line 14). Mr. Weimholt testified that an individual walking with the assistance of a cane would be a hindrance in a vocational sense in many circumstances (Exhibit A, page 15, line 8-10, 12, 14, 15). An individual who requires the use of a cane would also have "placeability" issues, depending on the nature of the job (Exhibit A, page 15, line 25 through page 16, line 1-5). Mr. Weimholt distinguished "placeability" from "industrial disability" (Exhibit A, page 16, line 9-10). "...(A) worker is not only subject to what employers are looking for but what employers are getting in terms of other applicants as well. So it's the competitive aspect of it. And so for certain jobs I think a cane would limit ones competitiveness against other applicants." (Exhibit A, page 16, line 18-24).

Mr. Weimholt also detailed pre-existing injuries or medical conditions that predate the work injury of August 2012, noting cervical degenerative disc disease (Exhibit A, page 17, line 14-15), carpal tunnel that was pre-existing (Exhibit A, page 17, line 16-17), difficulty with breathing (page 17, line 19-20), and a history of depression (Exhibit A, page 18, line 12-13). Mr. Weimholt also discussed his awareness of plantar fasciitis that came about in 2011 or early 2012 (Exhibit A, page 19, line 19-20). The carpal tunnel of the right wrist had affected Claimant's motor function of her right wrist (Exhibit A, page 21, line 9) and he testified that the condition of the right wrist created industrial disability or an impediment to prospective employability (page 21, line 13).

Mr. Weimholt testified as to his consideration of the opinions of Dr. Lennard (Exhibit A, page 30, line 23) and Dr. Poetz (Exhibit A, page 31, line 3). Mr. Weimholt testified that he has

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

considered the permanent medical restrictions of Drs. Poetz and Lennard in formulating his

opinions about Claimant's prospective employability (Exhibit A, page 31, line 10).

Mr. Weimholt described the medical restrictions offered by Dr. Lennard (Exhibit A, page

32, lines 4-10) and by Dr. Poetz (Exhibit A, page 32, line 14-25 through page 33, line 1-3). He

elaborated on the opinion in his report that Claimant has a reasonable expectation for employment

in the open competitive labor market given the restrictions of Dr. Lennard Exhibit A, (page 34,

line 7-14). His use of "sedentary" and "light" as being Department of Labor classifications for

physical exertion (Exhibit A, page 34, line 20), detailing what these two terms mean (Exhibit A,

page 34, line 22-25 through page 35, line 1-15).

Mr. Weimholt offered detailed discussion of Claimant's education and academic abilities

(Exhibit A, page 35, line 23-25 through page 36, line 1-20), also discussing that Claimant's work

history demonstrates that she has worked in jobs at the light and sedentary level (Exhibit A, page

36, line 21-25 through page 37, line 1-7). He took into consideration academic testing, namely the

Wide Range Achievement Test, Form 3 (Exhibit A, page 37, line 23-25). Mr. Weimholt opined

that Claimant scored very well on reading ability and that her math ability is sufficient for jobs

that don't require lot of financial detail (Exhibit A, page 38, line 11-17).

Mr. Weimholt testified as to his opinions utilizing the medical restrictions offered by Dr.

Poetz. The restrictions of Dr. Poetz would most likely take Claimant out of the full-time labor

market (Exhibit A, page 39, line 7-25).

Mr. Weimholt testified that in the event that the Administrative Law Judge would find the

Claimant cannot access the open labor market, then liability for such unemployability would be

relative to a combination of pre-existing medical conditions combined with the 2012 work injury

(Exhibit A, page 43, line 4-5).

Mr. Weimholt testified as to his understanding that Dr. Poetz has opined that Claimant is

permanently and totally disabled as a result of the combination of the August 15, 2012, work-

related injury and her pre-existing conditions (Exhibit A, page 48, line 18-21).

On cross-examination by the Assistant Attorney General, Mr. Weimholt testified as to his

awareness that Claimant had difficulty doing her job at Scenic River Landing Motel prior to

8/15/12, detailing that the job working at the hotel had caused swelling and pain in her knees, arm

and neck, and that Claimant had difficulty reaching up with her right arm (page 97, line 10-13).

Asked about limitations on sitting or standing prior to August of 2012, Mr. Weimholt testified of

his belief that there were no physician directed restrictions (page 106, line 12). Asked again about

the possibility of restrictions with respect to sitting and standing, Mr. Weimholt testified that

Claimant did have complaints about activities that would be involved with standing; she had

swelling in the knees; and her left knee caused her to be slower in her work and she had to be

careful with it while working at Walmart, Town & Country Grocery Store, at the Motel, and as an

in-home health aide (page 106, line 25-26 through (page 107, line 1-4).

James England, Jr.

Page 17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

Mr. England is a vocational expert who has authored a vocational report and testified by deposition on behalf of Claimant. His report and *Curriculum Vitae*/Resume are in evidence as exhibits to his February 23, 2015, deposition (Exhibit 6).

In his narrative report, Mr. England opines that under Dr. Lennard's restrictions, Claimant would "still be capable of some types of entry-level service employment such as cashiering and retail sales positions as well as some customer service work."

Considering Dr. Poetz's restrictions, Mr. England opines that Claimant, "would be limited to less than what would be needed to sustain even sedentary work on a consistent, day-to-day basis. Some of the restrictions involving her back and neck would limit her to no more than sedentary work and the extra restrictions on her upper extremities would limit her ability to do even that level of work activity."

He further opines, "As she actually appears to be functioning I believe she is likely to remain totally disabled as a result of the combination of her medical problems, some of which preexisted the primary injury as well as some which seem to be related to the primary injury."

On direct examination by Claimant's attorney, Mr. England reiterated his opinions in his report that under Dr. Lennard's restrictions there would still be some kinds of service employment possible for her (Exhibit 6, page 23, line 7-10). Discussing his consideration of Dr. Poetz's restrictions, Mr. England reiterated the opinion in his report that "the combination of those medical problems I felt would render her totally disabled." (Exhibit 6, page 23, line 20-23). Asked to assume that Dr. Poetz's restrictions would apply only to the last accident (referring to the work injury of August 15, 2012), He testified that the last accident alone would make her permanently and totally disabled (Exhibit 6, page 25, line 1). Given consideration of sleep deprivation and need to alternatively change posture, he could not place Claimant in any job (Exhibit 6, page 26, line 25). Mr. England opines that no employer would hire Claimant with those limitations (Exhibit 6, page 27, line 3). Mr. England was asked to consider sleep disorder problems, assuming those arose from the last accident alone, and he testified that, "Assuming that her problems are caused by that result in - in other words, assuming that the problems resulted from the last accident cause her to have this lack of sleep and to be foggy during the day and dozing off and things like that, yeah, I think that by itself would prevent her from sustaining a regular job." (Exhibit 6, page 29, line 8-14).

On cross-examination by attorney for Employer/Insurer, Mr. England was asked about Claimant's obesity, noting that Claimant is five foot seven and weighs 320 pounds (Exhibit 6, page 35, line 9-11).

Q. And you would agree that obesity such as that of Ms. Kurbursky would serve as a hindrance or obstacle to obtaining employment or re-employment?

A. All things considered, sure. (Exhibit 6, page 35, line 19-22).

Mr. England also testified that if an individual demonstrates shortness of breath while just moving around, that this would serve as a hindrance or obstacle to obtaining employment or re-employment (Exhibit 6, page 36, line 2). He agreed that an individual who experiences popping and cracking in both of their knees, difficulty with steps and squatting, that this knee condition is

Page 18

a hindrance or obstacle to obtaining employment or reemployment (Exhibit 6, page 38, line 1). Mr. England agreed that an individual who has difficulty raising their arm above shoulder level, with occasional numbness and a tendency to drop things with their arm, that the condition of the shoulder serves as a hindrance or obstacle to obtaining employment or re-employment (Exhibit 6, page 37, line 9). He agreed that a weak ankle, which causes an individual to have problems of being up on their feet as long, that the weak ankle could serve as a hindrance or obstacle to obtaining employment or reemployment (Exhibit 6, page 38, line 13-16). Mr. England acknowledged that Claimant had walked with a cane intermittently even before the last injury, indicating that she now uses a cane all the time which is a quad cane rather than a single cane (Exhibit 6, page 38, line 21-24). He agreed that if Claimant was using a cane every three months or so for about 11 years before the work injury, that this would be a hindrance or obstacle to employment or reemployment, noting it would especially be a hindrance or obstacle for jobs that would involve having both hands free when the individual is up on her feet (Exhibit 6, page 39, line 12-14). Mr. England agreed that plantar fasciitis that flares up every three months and slows the individual down would also serve as a hindrance or obstacle to obtaining employment or reemployment, indicating his belief that this assertion is probably true (Exhibit 6, page 40, line 3). Mr. England noted that Claimant has difficulty reaching overhead with her right arm (Exhibit 6, page 41, line 8) and that this problem came before August 2012 (Exhibit 6, page 41, line 11).

Mr. England indicated his belief that Claimant's limitations in walking were caused by a combination of her legs and back (Exhibit 6, page 44, line 13-15). Asked about the condition of Claimant's legs, Mr. England clarified that he was considering the condition of her knees, her ankle, her feet, all those things (Exhibit 6, page 44, line 18-19).

Mr. England testified that Claimant's academic scores are adequate for a number of entrylevel types of work (Exhibit 6, page 46, line 21).

Regarding consideration of sleep difficulty issues, Mr. England indicated his awareness that Claimant uses an oxygen tank at night (Exhibit 6, page 52, line 8). Most of the individuals that he has seen who are taking oxygen at night have had some difficulties with sleep (Exhibit 6, page 53, line 10-12). Asked about his opinion that Claimant would not likely be hired over all alternative candidates and that Claimant would not be able to sustain work in the long run, Mr. England discussed that he has broken down four main factors that are the big contributors to her permanent and total disability. Those four factors are her size, her walking with a quad cane, her only getting a few hours of sleep, and the fact that she dozes off unpredictably (Exhibit 6, page 54, line 4-7). Mr. England agreed that Claimant's size has nothing to do with the August 2012 work injury (Exhibit 6, page 54, line 12). Further elaborating on Claimant's weight, Mr. England testified as to his belief that she was within ten pounds of that weight before (presumably referring to before the work injury). Mr. England agreed that Claimant's use of a cane was prior to August 2012, indicating intermittent use of a cane (Exhibit 6, page 55, line 2). Mr. England was asked whether Claimant's shortness of breath is any way attributable to the work accident, indicating his belief that it is not related (Exhibit 6, page 56, line 4). Discussing the issue of sleep difficulty, Mr. England acknowledged that his report does not contain any description that Claimant loses sleep because of pain complaints or any symptoms that are attributable to the work accident (Exhibit 6, page 58, line 12-13). Mr. England stated his understanding that pain complaints have contributed to Claimant's inability to sleep, basing this upon what Claimant told him (Exhibit 6, page 59, line 11). Mr. England agreed that when Claimant was referring to pain complaints that she was referring to pain complaints in general attributable to any part of her body, indicating that Claimant

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

was functioning until the last injury, making it in to work, but that with the pain she was

experiencing she was no longer able to do that (Exhibit 6, page 59, line 17-23).

Mr. England has noted that Claimant's primary problems include stiffness and pain in her

ankles, low back, and arms (Exhibit 6, page 60, line 2).

On cross-examination by the Assistant Attorney General, Mr. England was asked whether

Claimant had any real limitations in sitting, standing, lifting, or walking before August 2012. He

responded that Claimant had some difficulty with steps, squatting, and that kind of thing, but

overall Claimant was still able to do her job (Exhibit 6, page 72, line 23-25).

On cross-examination by attorney for Employer/Insurer, Mr. England agreed that there

were no medical records indicating that Claimant needs to sleep or that she has difficulty sleeping

(Exhibit 6, page 88, line 16-17) and that the only indication of problems sleeping comes directly

from Claimant (Exhibit 6, page 88, line 19-20). Mr. England indicated that Claimant advised him

that she can only stand between ten and 15 minutes (Exhibit 6, page 88, line 14) indicating that he

did not see this standing limitation contained in any of the medical records (Exhibit 6, page 89,

line 3).

Wilbur Swearingin

Wilbur Swearingin is a vocational expert who was retained by the Second Injury Fund. He

has authored a narrative report which is an exhibit to his deposition, along with his Curriculum

Vitae. Mr. Swearingin was deposed on March 21, 2016 (Exhibit II).

Mr. Swearingin's report contains his opinion that observing the restrictions outlined by Dr.

Poetz, Ms. Kurbursky is not competitively employable. Mr. Swearingin opined that the restrictions

Dr. Poetz outlined relative to the injury of August 15, 2012, in isolation are sufficient to render

Claimant neither placeable nor employable in the open labor market.

Mr. Swearingin opined that should the trier of fact determine Dr. Lennard's restrictions to

be appropriate, then Claimant would be employable in a variety of sedentary and light occupations,

including hotel clerk.

Mr. Swearingin opined that should the trier of fact determine the appropriate restrictions

are those outlined by Dr. Poetz, and applicable to the August 15, 2012, injury, then PTD arises

from the work injury of August 15, 2012, in isolation.

On direct examination by the Assistant Attorney General, Mr. Swearingin was questioned

as to whether at the time of her injury in August 2012 Claimant was having any problems,

hindrance, or obstacle to doing those jobs. Mr. Swearingin responded that Claimant was able to

perform all the essential duties of those jobs, she had various impairments, meaning diagnoses and

some complaints along the way, remaining able to perform the required duties of her job. Mr.

Swearingin also testified that there was no indication that Claimant was provided significant

accommodations by employer or that she had difficulty performing job duties (Exhibit II, page 19,

line 22-25 through page 20, line 1-9). Mr. Swearingin was asked whether there was a hindrance

or obstacle to Claimant's employment prior to the injury of August 15, 2012, and he testified that

Page 20

he found no clear evidence that she had impairments that rose to the level of being vocationally disabling such as to constitute a hindrance or obstacle to employment.

On cross-examination by attorney for Employer/Insurer, Mr. Swearingin was questioned about medical restrictions offered by Dr. Poetz (Exhibit II, page 39, line 23 through page 41, line 11):

Q And correct me if I'm characterizing this incorrectly, you summarized Dr. Poetz's testimony as suggesting that all of the restrictions he offered applied to the occupational injury of August 15, 2012, but also those resolution may overlap with preexisting conditions. Is that a fair recitation of your understanding of Dr. Poetz's testimony?

A Yes.

Q And if the trier of fact would incorporate medical restrictions as issued by Dr. Poetz as being most reasonable and applicable in this claim, and if the trier of fact would determine that those medical restrictions were attributable to one or more preexisting conditions in addition to the work injury of August 15, 2012, would you agree that that would give rise to permanent and total disability as a result of a combination of preexisting injuries and medical conditions along with the work injury?

A Well, certainly if you took those conditions and those - if you look at her preexisting conditions and the last injury and combine then (sic) all together, certainly she's permanently and totally disabled.

I think the issue becomes, as Dr. Poetz's question was, you know, he certainly said there was overlap between the - of some of the conditions - or the restrictions to preexisting conditions with those from the last injury, but then he goes along to say, "Well, if we just had the last injury, I'd give the same restrictions."

So sure, there's overlap. And then there's the same restrictions independently.

Q And the way I was posing my question to you, I was asking you if the trier of fact would determine that Dr. Poetz's restrictions that he offered were attributable to preexisting conditions in addition to the work injury, would you agree that that would give rise to permanent and total disability with liability for a combination of preexisting factors along with the work injury of August 15, 2012?

At this point the Assistant Attorney General made an objection. The deposition resumed as follows (page 41, line 21 through 42, line 7:

Q And subject to Ms. Harris' objection, would you try to answer the question I posed?

A Yeah. I think if you look at a restriction and it's -- and you have two basis for the restrictions, sure, that's -- you've got a combination effect there. But I

think the issue that seems to have come out is that it really didn't make any difference. The restriction is not going to be different whether it's from just the last injury or from the combination. But you can certainly have a combined effect. That's true.

Mr. Swearingin was questioned about Claimant's right carpal tunnel injury, indicating he was familiar with that injury (Exhibit II, page 45, line 4). He agreed that Claimant indicated that the condition of the right wrist did interfere with her ability to grip (Exhibit II, page 45, line 9). Mr. Swearingin then testified that this is not a limitation of motor function, but rather a limitation of strength and grasp. (Exhibit II, page 45, line 14-15)

On cross-examination by Claimant's attorney, Mr. Swearingin was questioned about conditions that were diagnosed and evaluated by Dr. Poetz prior to the last injury that may have been a hindrance or obstacle to some kind of employment, not just what Claimant was doing in her work history. He gave an example that a job that required climbing would be affected by knee issues, obesity, or an ankle issue (Exhibit II, page 53, line 14-16). Mr. Swearingin gave a further example of a shoulder condition that would affect someone hanging sheet rock or performing overhead activities such as an electrician (Exhibit II, page 53, line 17-22). This exchange follows (Exhibit II, page 53, line 23 through page 55, line 10):

Q So what you're saying is that even though they may have not been considered by you to be a hindrance or obstacle to the jobs that she did when she had those symptoms, you would definitely consider those to be a hindrance or obstacle to some level of gainful employment; is that fair?

A Yes.

Q And so there are jobs that by definition she would not have been qualified for based on her prior symptoms and limitations caused by those preexisting conditions; is that correct?

A That's correct.

Q You're just saying that she was able to do the jobs that she was previously employed in because they weren't as demanding as the general gainful employment that may have required more activity; is that fair?

A Try that again. Something in there didn't -

Q Let me rephrase that. I agree with you.

A -- didn't connect.

Q That was not as artful as I would wish.

MR. EDELMAN: I apologize. I withdraw that question.

Q (By Mr. Edelman) Let me just say this: She was able to do the job that she gave you a history of, despite her limitation, symptoms, and hindrances that the prior conditions would have created to other work; is that fair?

A Yeah. What I think you're saying is that the jobs that she had and jobs that were similar or lighter to what she had, which would be a significant number of occupations. She was doing a medium-strength job.

And so when you're really thinking about the sedentary jobs, light jobs, she would have had very little impairment. When you think of heavier type jobs or those jobs that require certain physical tasks, she would have had limitations doing.

The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee, Section 287.808 R.S.Mo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weigh the evidence impartially without giving the benefit of the doubt to any party when weighing evidence and resolving factual conflicts, and are to construe strictly the provisions, Section 287.800 R.S.Mo.

Whether the alleged accident or incident of occupational disease caused the injuries and disabilities for which benefits are now being claimed.

Employer/insurer have accepted the compensability of a work-related injury that occurred on 8/15/12. All other issues regarding what benefits Claimant is entitled to are addressed below.

Whether the employer and insurer are obligated to pay for certain past medical care and expenses in the amount of $\ 35,282.05.

Employee is not entitled to payment for past medical bills related to unauthorized treatment she received, and she did not meet the burden of proving that the need for such treatment was related to the $8 / 15 / 12$ work injury.

Section 287.140.1 R.S.Mo. (2005) provides that an employer shall provide such medical, surgical, chiropractic, and hospital treatment, as may reasonably be required after the injury or disability, to cure and relieve from the effects of the injury. An employee has the burden of proving his entitlement to benefits for care and treatment authorized by $\S 287.140 .1$, i.e., that which is reasonably required to cure and relieve from the effects of the work injury. Rana v. Landstar TLC, 46 S.W.3d 614, 622 (Mo. Ct. App. 2001). Meeting that burden requires that the past bills be causally related to the work injury. Bowers v. Hiland Dairy Co., 132 S.W.3d 260 (Mo. Ct. App. 2004).

Claimant was placed at MMI by Dr. James Jordan on September 10, 2012. Records of Dr. Jordan are in evidence with the Complete Medical Report of Dr. Lennard. Dr. Jordan first

Employee: Juanita Kurbursky

Injury No.: 12-062235

examined Claimant on August 27, 2012, indicating he was seeing Claimant on follow up from the ED (Emergency Department). This examination was approximately 12 days after the date of injury. Dr. Jordan indicated that he was seeing Claimant for complaints of the neck, low back, and bilateral arm pain. In the notes following the examination of September 10, 2012, Dr. Jordan noted that Claimant could not lift her right arm after injuring it while getting into her husband's SUV on August 31, 2012 and that Claimant went to the Phelps County ED on September 1, 2012. She was given Percocet and x-rays were negative. Dr. Jordan then notes that on September 8, 2012 Claimant was putting wet clothes in her dryer and her low back started hurting. Dr. Jordan stated that all of Claimant's acute injuries associated with the work injury are at MMI. He noted an acute right shoulder injury and lumbar injury as not being work-related.

Claimant presents a report and deposition testimony of Dr. Poetz. Dr. Poetz examined Claimant on October 17, 2013, testifying by deposition on January 27, 2015.

There is no other medical evidence to substantiate that any of the unauthorized medical treatment was reasonably required to cure and relieve Claimant from the effects of the injury. It is Claimant's burden to establish that the past bills be causally related to the work injury, and I find that she has not met this burden.

I find that Dr. Jordan, as the authorized treating physician, had a better opportunity to examine Claimant relative to the effects of the August 15, 2012, work injury. His examinations occurred close in time to the work injury. Hence, I find Dr. Jordan to be more credible than Dr. Poetz on the issue of whether additional medical treatment was reasonably required to cure and relieve Claimant from the effects of the work injury.

Whether the employee has sustained injuries that will require additional or future medical care in order to cure and relieve the employee from the effects of the injuries.

Claimant did not meet her burden of proving that she's entitled to future medical treatment and she did not prove there is a reasonable probability that she will need future medical treatment following from the $8 / 15 / 12$ work injury.

The standard of proof for entitlement to an allowance for future medical aid cannot be met simply by offering testimony that it is "possible" that the employee will need future medical treatment. Modlin v. Sunmark, Inc., 699 S.W.2d 5, 7 (Mo. Ct. App. 1995). However, it is not necessary for the employee to present "conclusive evidence" of the need for future medical treatment. Sifferman v. Sears Roebuck and Company, 906 S.W.2d 823, 838 (Mo. Ct. App. 1995). In order to meet his burden, an employee is required to show by a "reasonable probability" that he will need future medical treatment. Dean v. St. Luke's Hospital, 936 S.W.2d 601, 604 (Mo. Ct. App. 1997). In addition, the employee must establish through competent medical evidence that the medical care requested "flows from the accident" before the employer is responsible. Landers v. Chrysler Corporation, 963 S.W.2d 275 (Mo. Ct. App. 1997).

On September 10, 2012, Dr. Jordan indicated in the Workers' Compensation report to employer that: "No further treatment anticipated after final PT re-evaluation."

Dr. Lennard in his June 20, 2013, report diagnoses "cervical, thoracic, and lumbar strain" and "cervical and lumbar degenerative changes." Dr. Lennard opines that:

"Based on Ms. Kurbursky's examination, 7-8/10 on the numerical pain scale, crippled perception of her disability on the Oswestry Scale, extensive locations of pain on her pain diagram, time off work ( 10 months), poor physical condition, pain focus on the Behavioral Medicine Profile, and obesity (BMI - 50.80) it is unlikely Ms. Kurbursky's subjective complaints of pain will change with any form of treatment directed at her spine. At this time she has reached MMI for her work related injury."

Claimant's examining physician Dr. Poetz has provided various recommendations for possible medical treatment in his report and deposition testimony.

I find that Dr. Jordan, as the authorized treating physician, was in a better position to evaluate the nature and extent of the injuries close in time to the injury of August 15, 2012. Therefore, I find Dr. Jordan is more credible in recommending no additional treatment to cure and relieve from the effects of the work injury.

As such, Claimant has not met her burden of proof in showing a reasonable probability that she will need future medical treatment following from the August 15, 2012, work injury.

Section 287.250 .3 provides that

If an employee is hired by the employer for less than the number of hours per week needed to be classified as a full-time or regular employee, benefits computed for purposes of this chapter for permanent partial disability, permanent total disability and death benefits shall be based upon the average weekly wage of a full-time or regular employee engaged by the employer to perform work of the same or similar nature and at the number of hours per week required by the employer to classify the employee as a full-time or regular employee, but such computation shall not be based on less than thirty hours per week.

Claimant testified that she earned $\ 7.65 per hour. The wage statement provided by Employer in Exhibit C is consistent with this testimony. Claimant also testified that there were at least three other employees, including her friend, Pam Chapman, who performed the same job duties and were paid the same hourly rate, but who worked full-time because some clients needed 24 hour care. Employer/Insurer did not provide any evidence to dispute this testimony.

I find that, for the purpose of calculating permanent disability compensation rates, Claimant's average weekly wage should be increased under Section 287.250 .3 to $\ 306.00 using

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

the same or similar employee analysis. The applicable compensation rate for the employee is $204.00 per week.

**Claimant is entitled to additional benefits for temporary total disability in the amount of $306.00.**

The burden of proving entitlement to temporary total disability benefits lies with the employee. *Boyles v. USA Rebar Placement*, 26 S.W.3d 418, 424 (Mo. Ct. App. 2000). The purpose of a temporary total disability award is to cover the employee's healing period from a work related injury. *Tilley v. USF Holland*, 325 S.W.3d 487, 492 (Mo. Ct. App. 2010). Temporary total disability awards are owed until the employee can find employment or the condition has reached the point of maximum medical progress. *Id.* An award of temporary total disability is not appropriate for a disability for which further improvement is not expected. *Williams v. Pillsbury Co.*, 694 S.W.2d 488, 489 (Mo. Ct. App. 1985).

Employer/Insurer's Exhibit E is a ledger that reflects temporary disability payments for the period from August 15, 2012, through September 10, 2012. These payments were made at 102.00 per week, for a total of three weeks, totaling 306.00.

Dr. Jordan placed Claimant at maximum medical improvement, Claimant had reached the point of maximum medical progress and was not entitled to temporary total disability benefits after September 10, 2012.

Dr. Poetz, in his report of February 10, 2014, stated that, "This patient has reached maximum medical improvement based on the treatment she was provided; however, she still could possibly achieve benefit from the medical care recommended above." In that report, Dr. Poetz noted that he had examined Claimant on October 17, 2013. Hence, the effective date of MMI according to the opinions of Dr. Poetz is no later than October 17, 2013.

I find that Dr. Jordan as the authorized treating physician was in a better position to evaluate the entirety of Claimant's medical status. As such, I find that Claimant was at MMI on September 10, 2012. It is also determined that an underpayment of 102.00 per week occurred resulting in the employee being awarded an additional 306.00 for the three weeks of TTD.

Employee is entitled to PPD benefits of 20% of the whole body, reflecting 10% disability for the cervical and thoracic spine, plus 10% disability for the lumbar spine.

Dr. Lennard has rated work-related PPD totaling 10 % whole body disability, with 5 % whole body disability for the cervical and thoracic spine, plus 5 % whole body disability for the lumbar spine.

I find Dr. Lennard's opinions and ratings to be well-reasoned; however, I find that PPD for both levels of the spinal column is somewhat higher than that contemplated by Dr. Lennard.

Ratings issued by Dr. Poetz on behalf of Claimant are permanent partial disability of 20 % of the whole body for the cervical spine, 20 % of the whole body for the lumbar spine, plus 20 % of the whole body for the head. I find these ratings to be substantially inflated, given the testimony of Claimant and the medical evidence before me.

Claimant has alleged that she is permanently and totally disabled, relying upon opinions of Dr. Poetz and Mr. England. It is noteworthy that Dr. Poetz opined in his written report that Claimant is permanently and totally disabled as a result of the combination of the August 15, 2012, work-related injury and her pre-existing conditions, whereas at the time of his deposition he speculated as to the possibility that Claimant is permanently and totally disabled as a result of the work injury alone. I do not find Dr. Poetz credible for the assertion that Claimant is unemployable in the open labor market.

In Mr. England's written report, he opined that Claimant is likely to remain totally disabled as a result of the combination of her medical problems, some of which pre-existed the primary injury as well as some which seem to be related to the primary injury. Then, on direct examination by Claimant's attorney in his deposition, Mr. England testified that the last accident alone would make Claimant permanently and totally disabled, when asked to assume that Dr. Poetz's medical restrictions would apply only to the last accident. In this case, I find Mr. England's opinions less than credible.

It is noteworthy that in his narrative report Mr. England opines that Claimant would still be capable of some types of employment under Dr. Lennard's restrictions.

As noted above, Mr. Weimholt opines that Claimant has a reasonable expectation for employment in the open labor market given the restrictions of Dr. Lennard. Mr. Weimholt has opined that under medical restrictions of Dr. Poetz, these restrictions would still allow for some work at a sedentary or light physical demand level for four hours per day or part-time.

Mr. Swearingin offered alternate opinions regarding whether Claimant is employable in the open labor market. He opined that under the restrictions outlined by Dr. Poetz, Claimant is not competitively employable. However, he opined that observing the restrictions of Dr. Lennard, Claimant would be employable in a variety of sedentary and light occupations, including hotel clerk, an occupation she has held in the relevant past.

The term "total disability" in Section 287.020.7 R.S.Mo. (2005) means the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. The phrase "inability to return to any employment" has been interpreted as the inability of the employee to perform the usual duties of

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

the employment under consideration in the manner that such duties are customarily performed by

the average person engaged in such employment. Kowalski v. Mc-G Metals and Sales, Inc., 631

S.W.2d 919, 922 (Mo. Ct. App. 1992).

The test for permanent total disability is whether, given the employee's situation and

condition, he or she is competent to compete in the open labor market. Reiner v. Treasurer of the

State of Missouri, 837 S.W.2d 363, 367 (Mo. Ct. App. 1992). Total disability means the "inability

to return to any reasonable or normal employment." Brown v. Treasurer of Missouri, 795 S.W.2d

479, 483 (Mo. Ct. App. 1990). The central question is whether, in the ordinary course of business,

an employer would reasonably be expected to hire the employee in his present physical condition

reasonably expecting him to perform the work for which he is hired. Thornton v. Haas Bakery,

858 S.W.2d 831, 834 (Mo. Ct. App. 1993).

Given the totality of the vocational opinions from Mr. England, Mr. Weimholt, and Mr.

Swearingin, I find that Claimant is competent to compete for employment in the open labor market.

I find the restrictions offered by Dr. Poetz to be excessive and beyond those which are reasonably

anticipated for Claimant on a permanent basis. While it is expected that Mr. England would opine

that Claimant is likely to remain totally disabled, I do not find his opinions persuasive. First, he

opined that Claimant is totally disabled as a result of the combination of her pre-existing conditions

and the primary injury. Then, only on direct examination by Claimant's attorney, did he speculate

that the last accident alone would make Claimant permanently and totally disabled. This portion

of Mr. England's deposition testimony included a substantial amount of speculation as to the effect

of sleep deprivation and daytime drowsiness. Speculating on the loss of sleeping caused by pain,

Mr. England indicated his assumption that Claimant was referring to pain complaints in general

attributable to any part of her body.

All three of these vocational experts have opined that Claimant could still be capable of

competing in the open labor market under the medical restrictions issued by Dr. Lennard.

Mr. Weimholt and Mr. Swearingin have offered abundant testimony as to Claimant's

ability to compete in the open labor market. I do not need to find that Claimant is medically able

to return to work in the same job capacity that she performed for Independent In Home Services.

Rather, I find that Claimant is capable of competing for employment as described by Mr. Weimholt

and Mr. Swearingin. Mr. Weimholt opines that even under the medical restrictions of Dr. Poetz

these restrictions would still allow for some work.

I find the opinions of Mr. Weimholt and Mr. Swearingin to be more persuasive than those

of Mr. England.

VII.

What is the date of Maximum Medical Improvement (MMI)?

As noted above, I find that Claimant was at MMI effective September 10, 2012. This

was the date that she was placed at MMI by Dr. Jordan.

VIII.

Whether the Treasurer of Missouri, as the Custodian of the Second Injury Fund,

Page 28

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Juanita Kurbursky

Injury No.: 12-062235

is liable for payment of additional permanent partial disability (PPD) compensation or permanent total disability (PTD) compensation?

As noted above, I find that Claimant is not permanently and totally disabled, in that she is able to compete for employment in the open labor market.

I certify that on 1-21-20,

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 $\qquad up \qquad$