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 complaints but does not recall additional medical treatment nor whether worker's compensation benefits were pursued.

Over a period of 10 years or more beginning in the 1980s, Claimant underwent surgeries on his right knee as a result of non-work related personal injuries. Claimant testified since 1991 he has not had ongoing issues with the right knee, was never placed on permanent restrictions and had no impairments with finding employment or reemployment opportunities.

Claimant in March 2010 sustained a work-related injury to his left shoulder. Claimant testified he did not have permanent restrictions after that work injury and that the left shoulder condition did not impair his ability to continue working or find new employment. The claimant testified that case was settled for 20 % permanent partial disability of the left upper extremity at the shoulder.

Claimant further testified to a non-work related injury to the right thumb for which surgery was eventually performed in 2014. The claimant did recall permanent restrictions of limited pinching and repetitive movement.

The claimant further testified to a May 12, 2015 work-related injury to the left knee. The claimant underwent arthroscopic surgery and eventually settled that claim for compensation in the State of Kansas for 19 % impairment to the left knee. The claimant testified after that left knee surgery he was not placed under any permanent restrictions and had no ongoing issues. The claimant was able to work full duty and had no impairments in continuing employment or finding new employment.

Claimant further alleges on February 9, 2016 an injury to his low back while delivering lumbar. The claimant underwent physical therapy, and returned to full-time full duty in late February. The claimant indicated he had no residuals or ongoing pain from that injury. That February 9, 2016 injury is the subject of Injury No. 16 -062878, which the claimant at this proceeding indicated and agreed there is no Missouri jurisdiction and that the claim should be dismissed.

The claimant testified since he was released from treatment he has not been able to return to work. The claimant testified and medical documentation in evidence supports the contention the Claimant has failed back syndrome. Claimant testifies that he is in daily pain which begins at the beltline and radiates down the left lower extremity to the foot. The claimant indicated because of that pain he must use assistive devices to ambulate. Claimant further testified that sitting and standing occur on irregular and unpredictable time periods, as well as the need to lie down and attempt to rest multiple times per day. The claimant has been limited to lifting less than 15 pounds. The claimant has indicated he has disturbed sleep and does not sleep longer than four hours per night. The claimant has indicated a growing sense of depression because of his preoccupation with his disabilities.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Willems

Injury No. 16-069511

The claimant testified prior to March 22, 2016 he was working full time without any work restrictions or accommodations. The claimant was routinely lifting 100 to 150 pounds and was not taking any regular prescriptive pain medications.

The claimant offered the medical report of Dr. Koprivica, which is in evidence. In his report, the doctor indicated that the claimant is permanently and totally disabled as a result of the work-related accident of March 22, 2016 and attributed a 50% whole body disability to that accident. Dr. Koprivica indicated the claimant had numerous pre-existing conditions and found a pre-existing disability of 20% permanent partial disability of the left shoulder. Further, the claimant had a 20% permanent partial disability to the right hand and 25% permanent partial disability to both knees as a result of multiple surgeries.

The doctor indicated the claimant's need to recline unpredictably as well as reduced tolerances to sitting, standing, and walking and permanent restrictions of no bending at the waist or constant pushing, pulling or twisting. Claimant was restricted to lifting no more than 15 pounds and was advised not to attempt squatting, crawling, kneeling or climbing.

The claimant was examined by Dr. Logan, a psychiatrist, on behalf of the claimant. After a review of past psychiatric issues in an interview with the claimant, Dr. Logan came to some conclusions. Dr. Logan took a history of the claimant's early childhood and failed marriages. Dr. Logan described the difficulties experienced by the claimant from the loss of physical ability, the frequent daily use of narcotic pain medication, and the sleep disturbances which Dr. Logan felt resulted in situational depression.

Dr. Logan diagnosed the claimant with major depressive disorder and somatic symptoms disorder with predominant pain. Dr. Logan was of the opinion these psychiatric conditions were the result of the March 22, 2016 accident in isolation. Dr. Logan recommended ongoing treatment with continued use of prescriptive medications together with cognitive behavioral therapy.

Claimant was examined by Dr. Fevurly on behalf of the employer and insurer. Dr. Fevurly took a recitation of the claimant's medical history to date, discussed the mechanism of the accident involved on March 22, 2016 and performed his examination. Dr. Fevurly found the claimant to be at maximum medical improvement from the surgery performed to the low back at the L4-5 level and resulting radiculopathy thereafter. Dr. Fevurly believed the claimant was not a good candidate for ongoing medical treatment or therapeutic interventions. Dr. Fevurly ultimately opined in his report of January 30, 2019 that the claimant had a permanent partial disability of 13% of the whole body.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Willems

Injury No. 16-069511

Dr. Fevurly, while opining the claimant had a 13% permanent partial disability, nevertheless placed the claimant on restricted ability to lifting no more than 10 pounds, with avoidance of bending and stooping to occasional only and static positioning of 30 minutes. Dr. Fevurly further restricted the claimant from climbing ladders or limited stair climbing to occasional. The doctor further restricted pushing and pulling activities to 20 pounds and offered no opinion as to whether the claimant could return the "open labor market."

VOCATIONAL EVIDENCE

Michael Dreiling

The claimant engaged Mr. Michael Dreiling, vocational consultant, who opined that based on the claimant's age, education and vocational skills together with medical restrictions due to the injury of March 22, 2016, that the claimant was essentially and realistically unemployable in the open labor market. Mr. Dreiling further opined there was no reasonable expectation that an employer would hire the claimant in his present condition. Mr. Dreiling based this on the medical restrictions placed by not only Dr. Koprivca but by Dr. Fevurly, which including reclining unpredictably, no frequent or constant bending, pushing, pulling or twisting, no awkward postures, occasional lifting or carrying less than 15 pounds, squatting, crawling, kneeling or climbing. Mr. Dreiling was of the opinion these restrictions alone would prevent the claimant from competing in the open labor market. While acknowledging the claimant had a real estate license, it was Mr. Dreiling's opinion that the claimant would have difficulty working in a competitive labor market with the physical restrictions set forth.

Terry Cordray

Terry Cordray, a vocational consultant, was engaged by the employer and insurer and his testimony is in evidence. Mr. Cordray took a history from the claimant, reviewed multiple medical records and performed an interview of the claimant. After a review of the claimant's job history, Mr. Cordray performed a job market analysis and concluded that the claimant retained the ability to earn $20 per hour in a sedentary job market and gave an example of medical coding as a potential source of employment. Mr. Cordray in his testimony admitted that the opinions formed were limited to the specific restrictions from Dr. Koprivica and Dr. Fevurly. Mr. Cordray admitted in his testimony that if it were believed that the claimant's restriction included the need to recline at unpredictable times that this would in fact make Claimant unemployable. Mr. Cordray was further unaware that the claimant was taking narcotic pain medication several times a day and that the presence of that fact would preclude the claimant's ability to renew a commercial driver's license. Finally, Mr. Cordray admitted that while he believed the claimant's physical restrictions would allow him to work as a medical coder, he admitted employment in that field would require additional education and training for the claimant, the success of which could only be speculation.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Willems

Injury No. 16-069511

A worker's compensation claimant bears the burden of proof to establish all essential elements of their claim. The employee must establish a causal connection between the accident and the claimed injuries. In this case, as with many, there are conflicting medical opinions and the fact finder may reject all or part of one party's expert testimony which he does not consider credible and accept as true the contrary testimony given by another expert. Kelly v. Banta and Stude Construction Co., Inc., 1 SW 3d 43 (Mo app 1999).

The claimant has alleged that the work accident of March 22, 2016 either alone or in combination with other pre-existing conditions will render him permanently and totally disabled. To determine the liability for the permanent and total disability, if found, the first determination to be made is the degree of disability attributed to the last injury considered alone. To that end, if the last accident is determined to be the source of the permanent and total disability, pre-existing disabilities are irrelevant.

Section 287.020.7 RSMo provides: "The term 'total disability' as used in this chapter shall mean inability to return to any employment and not merely inability to return to the employment in which the employee was engaged at the time of the accident." The inability to return to any employment has been interpreted to be the inability of the employee to perform the usual duties of employment in the matter customarily performed by the average person engaged in such employment. The test is one of determining, mindful of the medical or vocational restrictions applied, whether the claimant is competent to compete in the open labor market. That being said, the claimant is not required to be completely inactive or inert in order to be totally disabled. The determination is whether it would be reasonably expected that an employer in the course of business would hire that person in their present condition expecting the person to be able to complete job duties as assigned.

The overwhelming consensus of the evidence leads me to conclude that the accident of March 22, 2016 resulted in the injuries to the claimant which were the prevailing factor in causing injuries to his back and left lower extremity and need for ongoing medical and psychiatric treatment. I find this accident separate and in isolation to be the cause of the claimant's inability to compete in the open labor market.

Finally, Claimant credibly testified that he injured his back at work on March 22, 2016. Claimant testified that prior to this accident he was working full-time without restriction, able to lift in excess of 100 pounds and at times far greater. The claimant further credibly testified he used no assistive devices despite a multitude of pre-existing conditions of ill to both knees and his lower spine. Claimant testified he was prescribed neither chronic pain medication nor exhibited the symptoms of sleep disturbance, inability to bend, stoop, squat and climb stairs or ladders. I find credible evidence to support that contention in the opinion of Dr.Koprivica, who placed medical restrictions on the claimant which were consistent with the restrictions placed by the examining doctor for the employer and insurer, Dr. Fevurly. Dr.Koprivica further noted that the claimant's work injuries of March 22, 2016 render the claimant currently and totally disabled without consideration of the psychological disability which developed from the March 22, 2016 accident. Dr. Logan, an examining psychiatrist, opined because of the depressive disorder

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Willems

Injury No. 16-069511

associated with the work accident of March 22, 2016 the claimant was in need of ongoing prescription medication and cognitive therapy.

Vocational testimony from Mr. Michael Dreiling and Mr. Terry Cordray, while taking into consideration the medical restrictions placed on the claimant had differing opinions as to the claimant's employability in the open labor market. Mr. Cordray on cross-examination indicated that he was unaware of the claimant's need to recline at unpredictable intervals, as well as the ongoing narcotic pain medication administered to the claimant. Mr. Cordray, faced with that information which he did not possess when authoring his report, indicated that if those conditions were to be believed the claimant was in fact unemployable in the open labor market.

The Second Injury Fund which was a party to this proceeding addressed the multiple preexisting conditions, and contended that the conditions did not qualify for consideration or were not the cause of the claimant's permanent and total disability. The Second Injury Fund also advanced the contention that the claimant was barred from filing a claim for compensation based on Section 287.220 (12) which states "no compensation shall be payable from the Second Injury Fund if the employee files a claim for compensation under the Worker's Compensation law of another state with jurisdiction over the employee's injury or accident or occupational disease." While raised as an issue by the Second Injury fund, there was no competent evidence on the record to determine if that statute applies. The claimant on examination by counsel for the Second Injury Fund was asked if the claimant had in fact filed a claim in the state of Kansas for this same work injury to which the claimant replied that he was not sure; he left those details to his lawyer. There was no further examination of the claimant or evidence provided by the Second Injury Fund or counsel for the claimant to ever establish whether there was in fact a claim filed in the State of Kansas for a March 22, 2016 injury. The court, left with no evidence to consider, finds that $\S 287.220 .12$ has no application and is given no weight in determining Second Injury Fund liability.

The Court does find, however, that the Second Injury Fund has no liability in this case based on the reasoning set forth above that the last accident in isolation is the cause of the claimant's permanent and total disability.

The claimant is entitled to future medical treatment pursuant to $\S 287.140$. Claimant has established through credible testimony the ongoing need for prescription medication for pain management. The claimant has demonstrated the need for the use of assisted devices to ambulate. The examining psychiatrist, Dr. Logan, diagnosed the claimant with major depressive disorder and has recommended prescription therapy as well as cognitive behavioral therapy. I find based on this credible evidence presented that the employer and insurer are responsible to provide treatment consistent with the ongoing needs of the claimant to cure and relieve the conditions of his work accident of March 22, 2016.

I find for the reasons set forth above the claimant is entitled to permanent total disability benefits as a result of the work-related injury of March 22, 2016. Employer and insurer are directed to provide medical treatment to cure and relieve the conditions of the work-related

accident of March 22, 2016 consistent with the reasoning set forth above. The employer and insurer are to provide permanent and total disability benefits in the amount of $\ 616.50 per week beginning December 19, 2017, the date that the claimant was deemed at maximum medical improvement, and to continue through his lifetime. The employer and its insurer, are entitled to credit for temporary total disability benefits overpaid in the amount of $\ 16,175.74.

Claimant's counsel, Mr. Michael Stang, is entitled to attorney's fees of 25 % of sums recovered under this award.

I certify that on 8-25-20,

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.


Mark Siedlik

Chief Administrative Law Judge

Division of Workers' Compensation