Kevin Willems v. Upland Trucking, Inc.

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 16-069511

Employee: Kevin Willems

Employer: Upland Trucking, Inc.

Insurer: General Casualty Company of WI/QBE Americas, Inc.

Additional Party: Treasurer as Custodian of the Second Injury Fund

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated August 25, 2020. The award and decision of Administrative Law Judge Mark Siedlik, issued August 25, 2020, is attached and incorporated by this reference.

The Commission further approves and affirms the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

Given at Jefferson City, State of Missouri, this $\qquad 8th \qquad$ day of April 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Abbreviations:

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:

I have reviewed the evidence, 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 disagree with the majority's decision to affirm the administrative law judge's award. I do not believe that employee is permanently and totally disabled, and believe that employee should only be entitled to an award based upon Dr. Chris Fevurly's 13\% permanent partial disability rating to the body as a whole resulting from employee's March 22, 2016 primary injury.

There are several factors that I believe support my conclusion that employee can compete in the open labor market. Employee has experience working various positions such as a building manager, negotiating contracts, customer service, and in retail sales. Many of the jobs he performed required the use of computers and were largely administrative in nature. I believe that these skills fit perfectly with most sedentary office jobs. Employee's ability to obtain a real estate license in the state of Kansas in 2014 is further evidence of his cognitive abilities. Vocational expert Mr. Terry Cordray opined that employee could make $\ 20 per hour in a sedentary job market, and if he pursued additional education and training, he might be able to find work as a medical coder. Moreover, employee testified that his wife already works from their home, which leads me to believe that the groundwork may already be in place for him to work remotely in a sedentary job.

Employee has not made any attempts to find a job since his March 22, 2016 primary injury, because of his mistaken belief that he cannot return to work due to his subjective limitations. However, employee admitted at the hearing that he has earned commissions on three real estate transactions since the primary injury.

To summarize, I would find employee to not be permanently and total disabled, and find employee to be entitled to $\ 15,882.26, the value of Dr. Fevurly's 13 % permanent partial disability rating, less the stipulated overpayment of temporary total disability benefits in the amount of $\ 16,175.74. Because the majority has determined otherwise, I respectfully dissent.

Reid K. Forrester, Member

1. Are any benefits awarded herein? Yes
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the law? Yes
4. Date of accident or onset of occupational disease: March 22, 2016
5. State location where accident occurred or occupational disease was contracted: Jackson County, Missouri
6. Was above Employee in the employ of above Employer at the 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 the claim for compensation filed within the time required by law? Yes
10. Was the Employer insured by the above Insurer? Yes
11. Describe the work Employee was doing and how the accident occurred or the occupational disease contracted: Employee, while in the course and scope of employment, the claimant injured his back.
12. Did the accident or occupational disease cause death? No Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Kevin Willems

Injury No. 16-069511

1. Part(s) of body injured by accident or occupational disease: whole body

1. Nature and extent of any permanent disability: permanent and total disability

1. Compensation paid to date for temporary disability: 72,277.24

1. Value necessary medical aid paid to date by Employer/Insurer: $41,864.99

1. Value necessary medical aid not furnished by Employer/Insurer: to be determined

1. Employee's average weekly wages: 924.75

1. Weekly compensation rate: 616.50/$464.58

1. Method wages computation: agreement

COMPENSATION PAYABLE

1. Amount of compensation payable: PTD benefits

1. Second Injury Fund liability: none

Permanent total disability benefits from Second Injury Fund:

TOTAL: TO BE DETERMINED

Future requirements awarded: Medical treatment and weekly benefits to begin 12/20/2017 and to continue for the life of the claimant.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Willems

Injury No. 16-069511

**Employee:** Kevin Willems

**Employer:** Upland Trucking, Inc.

**Insurer:** General Casualty Company of WI/QBE Americas, Inc.

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

**Hearing Date:** June 2, 2020

**Checked by:** MSS/pe

On June 2, 2020, the parties came on for hearing before Administrative Law Judge Mark Siedlik. The claimant, Kevin Willems, is present and represented by Michael Stang. The employer, Upland Trucking, Inc., and its insurer, General Casualty Company of WI/QBE Americas, Inc., are represented by Daniel Lobdell. The Second Injury Fund is a party and is represented by Ashley Grace and Kimberly Fournier.

This case involves injuries on or about March 22, 2016, while the claimant was in the employ of Upland Trucking, Inc., and alleges an accident in Jackson County, Missouri. At the time of the injuries, the parties were subject to the Missouri Worker's Compensation Law and the employer's liability was insured by General Casualty Company of Wisconsin c/o QBE Americas, Inc.

The parties have agreed to an average weekly wage of 924.75, and the compensation rates agreed to be 616.50 over 464.58. Weekly benefits totaling 72,277.24 have been paid. The parties have agreed that there is an overpayment of temporary total disability in the amount of 16,175.74. Medical expenses of 41,864.99 have been paid.

The issues to be resolved at this proceeding are:

1. Accident (Second Injury Fund only);
2. Whether the accident arose out of and in the course and scope of employment (Second Injury Fund only);
3. Medical causation (Second Injury Fund only);
4. Future medical care;
5. The nature and extent of temporary total disability;
6. The nature and extent of permanent disability;
7. Liability of the Second Injury Fund. (Specifically, the Second Injury Fund alleges the claimant is barred from filing a Second Injury Fund claim pursuant to §287.220.12.)

The claimant offered into evidence Claimant's Exhibits 1 and 2 which were admitted. The Employer and Insurer marked Employer/Insurer's Exhibits A through D and offered Exhibits A through C which were admitted. Exhibit D was withdrawn. The Second Injury Fund

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Willems

Injury No. 16-069511

offered Second Injury Fund Exhibits Roman Numeral I and II. Exhibit I was admitted; Exhibit II was withdrawn.

The claimant is at the time of trial a 58-year-old man who resides in Maize, Kansas. The claimant is a 1980 high school graduate who did not attend college or receive any vocational training. Claimant has held a Class B commercial driver's license since 1988 and was recertified as CDL licensee in 2015. The claimant obtained a real estate license in the State of Kansas in 2014.

The claimant has work experience as a building manager, having worked for a period of time as the building coordinator at Hall Kimbrell Environmental Services. In that capacity, the claimant negotiated contracts, tract billable hours and maintained control over orders and inventory. The claimant also has experience as an owner or operator of residential and commercial maintenance which required the managing of employees, the negotiation of contracts, coordination of schedules and the management of inventory and customer service. Claimant has had further experience as an operations manager and later general manager overseeing the functioning of day-to-day operations of a Kansas City shopping center, responsible for loss prevention, risk management, safety and security, landscaping and tenant customer service.

Claimant further has retail sales experience. As previously mentioned, Claimant obtained a real estate license in the State of Kansas. Claimant testified that the endeavor was part-time and over a 4 to 5 year period, the claimant received approximately 12-15,000 for his labor.

The claimant alleges an injury on March 22, 2016 when he was carrying lumbar at a construction site and stepped into a hole causing injury to his low back. Claimant immediately contacted his employer and testified he was able to finish his shift on that date. The claimant was sent to Concentra the next day and after an examination was taken off work. The claimant received conservative treatment from the occupational clinic and was referred to Dr. Sean Wheeler, who recommended facet injections. Dr. Wheeler later performed bilateral L4-5 and bilateral L5-S1 facet injections on April 27, 2016.

The claimant was eventually referred to Dr. Striebinger for a surgical evaluation which was initially denied. A second opinion from Dr. Carabetta was obtained and surgery ultimately approved and performed on October 31, 2016. During that surgery, Dr. Striebinger performed a laminectomy with a discectomy on the left side at the L3-4 level. Later on March 29, 2017, Dr. Striebinger recommended a dorsal column stimulator. That device was surgically implanted but later removed having failed to provide anticipated results. That removal occurred on July 11, 2017.

Claimant since that time has been receiving pain management care in the form of hydrocodone with occasional epidural steroid injections. The claimant was placed on a lifting restriction of no greater than 15 pounds, with no bending or twisting, and ultimately released from care on December 19, 2017 with the above-mentioned restrictions in place and a recommendation for ongoing pain management.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Willems

Injury No. 16-069511

The claimant in 1984 suffered a disc herniation to the right side of his low back in a non-work-related personal injury. Claimant underwent surgery at the L5-S1 level. Claimant testified to a work incident which aggravated his low-back co