OTT LAW

Kevin Young v. Linmark Machine Products, Inc.

Decision date: June 7, 2021Injury #03-05117321 pages

Summary

The Labor and Industrial Relations Commission affirmed the Administrative Law Judge's award of workers' compensation to Kevin G. Young for carpal tunnel injuries, finding the award supported by competent and substantial evidence. The Commission upheld the ALJ's evidentiary rulings excluding certain statements that were not provided to the employee's attorney within the statutory thirty-day period required by Missouri law.

Caption

FINAL AWARD ALLOWING COMPENSATION (Affirming Award and Decision of Administrative Law Judge with Supplemental Opinion)
Employee:Kevin G. Young
Dependent:Patricia Young
Employer:Linmark Machine Products, Inc. (settled)
Insurer:Sentry Insurance A Mutual Company (settled)
Additional Party:Treasurer of Missouri as Custodian of Second Injury Fund
This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge (ALJ) awarding compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the ALJ with this supplemental opinion.
Discussion
The Second Injury Fund’s timely application for review challenges the ALJ’s evidentiary rulings sustaining the employee’s attorney’s objection to admission of Second Injury Fund Exhibit No. IX, a document that purported to be a 2001 letter from employee to a treating physician, urging the physician to opine that employee’s carpal tunnel surgeries were not work related. Employee’s attorney also objected to references to his client’s alleged statement included in employee’s November 17, 2003 deposition; Dr. Wagner’s January 12, 2004, independent medical examination report; and Dr. John R. Wagner’s August 21, 2005, deposition. (Second Injury Fund Exhibit Nos. VI, VII, and II respectively) ^{ 1 }
Employee’s attorney objected to admission of his client’s statement and references thereto on numerous grounds, including that the statement was not provided to him within thirty days of his June 2, 2003, certified mail request to employer for complete copies of all statements pursuant to § 287.215 RSMo ^{ 2 }
Section 287.215 RSMo provides:
No statement in writing made or given by an injured employee, whether and transcribed by a stenographer, signed or unsigned by the injured employee, or any statement which is mechanically or electronically

^{1} The Second Injury Fund’s application for review incorrectly referenced Dr. Wagner’s deposition as its Exhibit VII. Second Injury Fund Exhibit VII consists of Dr. Wagner’s January 12, 2004, independent medical examination report, addressed to the employer/insurer. See Transcript, Index of Exhibits and page 2687. ^{2} Claimant’s Exhibit 26, Transcript, 2240-2243.

Injury No. 03-051173

Employee: Kevin G. Young

-2-

recorded, or taken in writing by another person, or otherwise preserved, shall be admissible in evidence, used or referred to in any manner at any hearing or action to recover benefits under this law unless a copy thereof is given or furnished the employee, or his dependents in case of death, or their attorney, within thirty days after written request for it by the injured employee, his dependents in case of death, or by their attorney. The request shall be directed to the employer or its insurer by certified mail. The term "statement" as used in this section shall not include a videotape, motion picture, or visual reproduction of an image of an employee. [emphasis added]

The Second Injury Fund argues that plain language of Section 287.215 does not provide for its application to the Fund and that because Workers' Compensation law is entirely a creature of statute, one cannot presume that the legislature intended such an application. The Second Injury Fund further contends it is "absurd to conclude, as the ALJ did, that 287.215 would apply to exclude statements based on requests made solely on [sic] the employer and not the Fund." 3 Citing *Fischer v. Waste Management*, 58 S.W.3d 523 (Mo. Banc 2001) the Second Injury Fund argues that exclusion of employee's statement in this case does not promote the purpose of § 287.215 to avoid surprises in that "a letter written by the Claimant in 2001 and produced at a deposition in 2003 was not a surprise to Claimant when offered at the hearing in 2020." 4 We disagree with the Second Injury Fund's reasoning.

We find the plain meaning of the words in § 287.215 clearly mandate that any statement by an employee that is not furnished by the employer or its insurer within thirty days of a written request on the behalf of employee, his or her dependents, or their attorney by certified mail to the employer or its insurer may not be used against the employee in any hearing or action to recover benefits. The statute does not specify or limit which party or parties are prohibited from using the alleged statements, only that such statements may not be used against the employee.

We therefore affirm the ALJ's evidentiary rulings relating to the Second Injury Fund's Exhibits II, VI, and IX.

Award

We affirm and adopt the award of the administrative law judge as supplemented herein.

The award and decision of Administrative Law Judge Edwin J. Kohner, issued September 10, 2019, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

We approve and affirm the administrative law judge's allowance of attorney's fee herein as being fair and reasonable.

3 Brief of Appellant Treasurer of Missouri Custodian of the Second Injury Fund, filed March 8, 2021, p. 28.

4 Id., p. 29. We note that the ALJ's hearing in this case occurred on June 19-21, 2019.

Imployee: Kevin G. Young

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Given at Jefferson City, State of Missouri, this ____ 7th ____ day of June 2021.

![img-0.jpeg](img-0.jpeg)

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman
Reid K. Forrester, Member
Shalonn K. Curls, Member

Attest:

*Reid K. Forrester*

Secretary

Issued by DIVISION OF WORKERS' COMPENSATION

AWARD

Employee: Kevin Young

Dependents: Patricia Young

Employer: Linmark Machine Products, Inc. (Settled)

Additional Party: Second Injury Fund

Insurer: Sentry Insurance A Mutual Company (Settled)

Hearing Date: June 19-21, 2019

Injury No.: 03-051173

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: EJK/kmr

FINDINGS OF FACT AND RULINGS OF LAW

  1. Are any benefits awarded herein? Yes
  1. Was the injury or occupational disease compensable under Chapter 287? Yes
  1. Was there an accident or incident of occupational disease under the Law? Yes
  1. Date of accident or onset of occupational disease: May 9, 2003
  1. State location where accident occurred or occupational disease was contracted: Franklin County, Missouri
  1. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
  1. Did employer receive proper notice? Yes
  1. Did accident or occupational disease arise out of and in the course of the employment? Yes
  1. Was claim for compensation filed within time required by Law? Yes
  1. Was employer insured by above insurer? Yes
  1. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee, a machinist, suffered repetitive trauma to his elbows and developed cubital tunnel syndrome.
  1. Did accident or occupational disease cause death? No Date of death? N/A
  1. Part(s) of body injured by accident or occupational disease: Both elbows
  1. Nature and extent of any permanent disability: 17 ½% Permanent partial disability to each elbow
  1. Compensation paid to-date for temporary disability: None
  1. Value necessary medical aid paid to date by employer/insurer: None

Revised Form 31 (3/97)

Page 1

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

  1. Value necessary medical aid not furnished by employer/insurer? Not determined
  1. Employee's average weekly wages: 800.00
  1. Weekly compensation rate: 533.33/$340.12
  1. Method wages computation: By agreement

COMPENSATION PAYABLE

  1. Amount of compensation payable:

Previously Settled

  1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential ($193.21) payable by SIF for 73.5 weeks beginning December 30, 2003, and, thereafter, $533.33 for Claimant's lifetime

TOTAL:

  1. Future requirements awarded: None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Ronald D. Edelman, Esq.

WC-32-R1 (6-81)

Page 2

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

FINDINGS OF FACT and RULINGS OF LAW:

Employee:Kevin Young
Dependents:Patricia Young
Employer:Linmark Machine Products, Inc. (Settled)
Additional Party:Second Injury Fund
Insurer:Travelers Indemnity Company (Settled)
Injury No.:03-051173
Before the
Division of Workers'
Compensation
Department of Labor and Industrial
Relations of Missouri
Jefferson City, Missouri
Checked by:EJK/kmr

This Workers' Compensation case raises several issues arising out of an alleged work related occupational disease in which the claimant, a machinist, suffered repetitive trauma to his elbows and developed cubital tunnel syndrome. The issues for determination are (1) Medical Causation, (2) Arising out of and in the course of Employment, (3) Notice, (4) Statute of Limitations, (5) Second Injury Fund Liability, and (6) Dependency of Spouse. The evidence compels an award for permanent total disability benefits from the Second Injury Fund.

At the hearing, the claimant testified in person and offered depositions of the claimant, Dr. Robert P. Poetz D.O., and James M. England, Jr., records from the Missouri Division of Workers' Compensation and the Social Security Administration, medical treatment records, lists of the claimant's prescriptions and medications, photos of equipment, and a copy of the claimant's marriage license. The Second Injury Fund offered depositions of the claimant, Russell C. Cantrell, M.D., John R. Wagner, M.D., and Gary Weimholt, and medical reports from Patrick A. Hogan, M.D., and John R. Wagner, M.D., and statements from the claimant. Claimant's Exhibit 3 and Defense Exhibits II and III are compacted copies of the original depositions, and counsel asserted that no other copies were available. Counsel represented that the ability to produce normal copies is no longer available due to the age of the documents. At this level, the Exhibits are legible, probative, and bear the endorsement of an officer of the court as genuine. The Commission and the Court may revisit the receipt of these Exhibits into the evidentiary records based on the rules applicable in those forums.

The claimant's objections, based on section 287.215 RSMo. 2000, to the admission of statements from the claimant, Exhibit IX, and references to those statements in Dr. Wagner's deposition and the claimant's 2003 deposition, Exhibits VII and VI, are sustained. The documents will be included in the record as an offer of proof.

All objections not previously sustained are overruled as waived. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, because the accident was alleged to have occurred in Missouri. Any markings on the exhibits were present when offered into evidence.

WC-32-R1 (6-81)

Page 3

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

SUMMARY OF FACTS

In May 2003, this then 42-year-old claimant, a machinist, suffered repetitive trauma to his elbows and developed cubital tunnel syndrome. The claimant testified his job duties required repetitive movement of his hands and arms and upper extremities with extreme torque and vibration. He testified he performed these movements an average of hundreds of times per day. He testified he told his employer about his symptoms. See Exhibit 2, page 29. The claimant's doctors took him off work from June 16, 2003, through August 11, 2003. The claimant testified after trying to return to work for one week, the claimant's employer placed him on administrative leave and then terminated him when he was unable to return to work.

On June 16, 2003, the claimant went to Dr. Sherrill complaining of bilateral hand weakness and numbness. The claimant reported increased difficulty executing activities at work. Dr. Sherrill noted the claimant had become myelopathic and ordered X-rays and an MRI of the cervical spine. Dr. Sherrill took the claimant off work pending the results of the MRI. See Exhibit 6. On June 23, 2003, an MRI of the cervical spine without contrast revealed posterior disc spur complexes at C4-5 and C5-6, which touched, but did not compress the spinal cord. See Exhibits 6, 12. On June 30, 2003, the claimant returned to Dr. Sherrill who referred the claimant to Dr. Ghazala Hayat for a neurological exam. See Exhibit 6.

On July 17, 2003, Dr. Peeples performed an EMG/nerve conduction study showing results were within normal limits with no evidence of right or left median or ulnar neuropathy. See Exhibit 7. On August 19, 2003, the claimant went to Dr. Hayat who recommended additional diagnostic testing. See Exhibit 15. On September 24, 2003, the claimant underwent another EMG/nerve conduction study at St. Louis University Hospital. This study was consistent with bilateral carpal tunnel syndrome with no evidence of right cervical radiculopathy. See Exhibit 6. On October 1, 2003, the claimant returned to Dr. Hayat and her assessment was bilateral carpal tunnel syndrome. Dr. Hayat recommended the claimant see a hand surgeon. See Exhibit 15.

On October 9, 2003, Dr. Gray examined the claimant for shooting pains in his right wrist with some numbness and extreme right upper arm and shoulder pain. Dr. Gray did not believe the claimant's carpal tunnel syndrome was related to his neck problems. Dr. Gray recommended the claimant see a neck surgeon and provided wrist splints for the bilateral carpal tunnel syndrome. See Exhibit 16.

On October 28, 2003, the claimant followed up with Dr. Hayat, who diagnosed bilateral carpal tunnel syndrome and signs of myelopathy could be related to an old injury. See Exhibit 15. On November 13, 2013, the claimant followed up with Dr. Gray complaining of bilateral carpal tunnel symptoms and arm pain. Dr. Gray's assessment was bilateral arm pain not related to carpal tunnel syndrome. Dr. Gray referred the claimant to Dr. Farias for a second opinion on carpal tunnel syndrome and to Dr. Place, an orthopedic spine surgeon for evaluation of neck pain. Dr. Gray recommended the claimant remain off work pending these evaluations. See Exhibit 16.

On November 21, 2003, the claimant reported to Dr. Farias he was having hand symptoms similar to the symptoms he experienced prior to his carpal tunnel surgeries in 2000.

WC-32-R1 (0-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

and pain in his right upper arm and shoulder. Dr. Farias' assessment was recurrent carpal tunnel syndrome with EMG evidence of mild ulnar nerve neuropathy. Dr. Farias recommended surgery. See Exhibit 16.

On November 26, 2003, Dr. Farias performed right carpal and cubital tunnel open release. At his December 16, 2003 follow-up with Dr. Farias, the claimant reported improvement in his right hand, but his left hand symptoms were starting to wake him up at night. On December 23, 2003, Dr. Farias performed left carpal and cubital tunnel open release. On December 30, 2003, Dr. Farias noted the claimant was doing well after surgery and kept him off work for two more weeks. See Exhibit 16.

On April 2, 2004, the claimant went to Dr. E. R. Anderson for chiropractic treatment. Dr. Anderson opined the claimant was unable to work due to all his problems and might have to seek employment in a different area. See Exhibit 11.

On May 26, 2004, the claimant returned to Dr. Fitzgerald. The claimant reported back, neck and arm pain, that his hands were always cold, and that he was unable to sleep due to pain. Dr. Fitzgerald noted decreased grip bilaterally with right worse than left, bilateral arm pain and decreased range of motion in the claimant's neck. Dr. Fitzgerald opined the claimant was not able to perform a substantial portion of his trade as a machinist and recommended a disability evaluation. See Exhibit 10.

On June 16, 2004, Dr. Fitzgerald described the claimant as walking with a slow, wide-based gait and multiple spasms in the thoracic and lumbar spine. Dr. Fitzgerald noted the claimant was unable to sit or stand for prolonged periods of time and had difficulty with prolonged fine motor activities. Dr. Fitzgerald concluded the claimant could not perform sustained activity 8 hours per day, 5 days per week at the sedentary level because of his neck and low back pain and his difficulty with prolonged fine motor operations. Dr. Fitzgerald completed a Social Security Disability form stating the claimant was unable to sit or stand for prolonged periods, had difficulty with prolonged motor operations and was unable to perform full-time employment at the sedentary level. See Exhibit 10.

The claimant has continued to follow up regularly with his primary care physician, Dr. Felipe Eljaiek, for prescriptions and treatment related to his chronic neck and back pain as well as other conditions. See Exhibit 22. In 2017, Dr. Eljaiek referred the claimant to Dr. Youkilis for a neurological evaluation of his chronic neck and back pain. See Exhibit 23.

On June 19, 2017, Dr. Youkilis examined the claimant for chronic neck, back, thoracic, and lumbar spine pain and poor balance. The claimant reported in December 2016, while helping his grandmother into a car, his back pain worsened. Dr. Youkilis noted at the time he examined the claimant, his primary complaint was pain at the lumbosacral junction, worsened by sitting and standing and pain in his neck and thoracolumbar junction. See Exhibit 23.

Dr. Youkilis noted a lumbar spine MRI on December 9, 2016, revealed multilevel degenerative changes most prominent at L5-S1, associated with Modic endplate change; facet arthropathy at L3-4, without significant stenosis; facet arthropathy at L4-5, associated with mild to moderate left lateral recess stenosis; degenerative disease and height loss at L5-S1, associated

WV-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

with foraminal stenosis, right greater than left; and mild left lateral recess stenosis at L5-S1. An MRI of cervical and thoracic spine on March 6, 2017, revealed spondylosis at C2-7, associated with loss of lordosis; moderate central canal stenosis at C4-6; no signal change in cervical or thoracic spinal cord; chronic appearing compression deformity of the superior endplate of T10, associated with kyphosis at T9-10.

Dr. Youkilis' assessment was a history of chronic disability, chronic narcotic use and chronic smoking, chronic low back pain, which has worsened since December, and hyperreflexia of unclear etiology. Dr. Youkilis' recommended referral to neurologists for further workup of his hyperreflexia and unusual balance problems and that physical therapy would be beneficial. Dr. Youkilis concluded there was no clear role for neurosurgical intervention at that time. See Exhibit 23.

The claimant testified after the bilateral carpal and cubital tunnel open release surgeries in November and December 2003, his symptoms improved, but he continued to have pain, numbness and tingling in both arms, loss of strength and dexterity in his hands and difficulty sleeping due to the pain. On May 26, 2004, the claimant reported to Dr. Fitzgerald he continued to experience back, neck and arm pain, his hands were always cold, and he was unable to sleep due to pain. At that time, Dr. Fitzgerald noted decreased grip bilaterally with right worse than left, bilateral arm pain and decreased range of motion in the claimant's neck. See Exhibit 10. On November 30, 2004, the claimant reported to Dr. Poetz he had difficulty lifting, carrying, writing, crossing his fingers, and buttoning his shirt and tying his shoes and loss of strength, cramps and limited movement in his hands. See Dr. Poetz report, page 1.

On July 20, 2015, the claimant settled this 2003 Claim with his employer for 17 1/2% of each elbow and left the Second Injury Fund Claim open. See Exhibit 1.

Pre-Existing Medical Conditions

The claimant alleged he had five serious pre-existing medical conditions: (1) Thoracic compression fracture at T11, (2) Herniated nucleus pulposus at C4-5 with degenerative disc disease, (3) Sleep apnea, (4) Bilateral carpal tunnel syndrome, and (5) Cervical strain and radiculitis with exacerbation of prior herniated nucleus pulposus at C4-5.

(1) In 1979, the claimant suffered a T11 compression fracture in a motorcycle accident and received conservative treatment for his injuries. See Exhibits 2, 19, Dr. Poetz report, page 5. The claimant testified he continued to have some pain and stiffness in his upper back since 1979 and sometimes made it difficult to get into the awkward positions required by his job.

(2) On June 26, 1998, an MRI of the claimant's neck revealed degenerative disc disease at C4-5 and C5-6 with disc protrusion lateralizing into the foramen at C4-5 and a more prominent protrusion lateralizing to the left at C5-6. See Exhibit 5. On July 9, 1998, the claimant reported to Dr. Sherrill he had experienced neck pain since his motorcycle accident in 1979, but the neck pain had worsened in the previous six months and he had difficulty sleeping due to the neck pain. Dr. Sherrill recommended traction, wearing a collar at night, and changing from a waterbed to a regular mattress. See Exhibit 6. On October 5, 1998, the claimant reported to Dr. Sherrill that by wearing the collar at night and changing his mattress, he had been able to

WV-32-81 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

reduce episodes of severe neck pain from one every other week to one per month. See Exhibit 6.

The claimant testified since 1998, the stiffness in his neck made it difficult to get into the awkward positions sometimes required to load and unload parts into the vise and to tighten and loosen the vise with very heavy parts.

(3) In 1990, Dr. Marchiando examined the claimant for complaints of a left-sided airway obstruction. On October 10, 1990, Dr. Marchiando performed a septoplasty to correct a septal deviation. See Exhibit 4. In 1999, the claimant was diagnosed with sleep apnea and has used a CPAP machine to treat the condition since then. See Exhibits 2, 19, Dr. Poetz report page 5. However, the claimant testified the CPAP is no longer effective because it dislodges when he tosses and turns at night due to upper extremity pain. The claimant testified as he had more and more difficulty sleeping, it made it harder to concentrate at work.

(4) In 2000, the claimant developed bilateral carpal tunnel syndrome and filed a Claim for Compensation with his employer. The claimant settled his 2000 claim with his employer based on a 20% permanent partial disability of the right wrist and a 17.5% permanent partial disability of the left wrist with a 10% load and four weeks disfigurement. See Exhibit 1. A Worker's Compensation Award in Injury Number 00-179638 presents a detailed statement of the factual background relating to that condition.

(5) In 2002, the claimant developed increased cervical arthritis C4-6 and right arm weakness with radicular symptoms in the forearm and hand resulting in complaints of neck pain and right arm numbness, headaches and dizziness with periods off work. On July 2, 2003, the claimant went to Dr. Solman complaining of right hand and arm pain with numbness. Dr. Solman noted the claimant's history of neck pain and arthritis. X-rays of the cervical spine showed loss of normal cervical lordosis, as well as decreased disc space and degenerative changes at C4-6. Dr. Solman diagnosed cervical arthritis C4-6 and right arm weakness with radicular symptoms in the forearm and hand. Dr. Solman referred the claimant to Dr. Petkovich, a neurosurgeon, due to decreased reflexes and significant decrease in strength with radicular signs. See Exhibit 13.

On July 3, 2003, Dr. Petkovich examined the claimant and reviewed cervical spine X-rays that demonstrated overall structural alignment with mild degenerative changes at C4-5 and C5-6. Dr. Petkovich assessed the claimant with soft tissue cervical strain with mild degenerative changes. Dr. Petkovich recommended aggressive physical therapy with cervical traction. Dr. Petkovich released the claimant to return to work as tolerated. See Exhibit 14. On July 21, 2003, Dr. Petkovich diagnosed muscular and ligamentous soft tissue cervical strain with multiple subjective complaints of pain. He recommended Bextra, physical therapy and work as tolerated. See Exhibit 14.

On September 11, 2003, MRI's of the claimant's brain and thoracic spine showed an old T10 compression fracture with effacement of, and focal volume loss of the cord at that level and C5-6 canal stenosis. See Exhibit 6. On September 23, 2003, Dr. Hayat noted the MRI showed bulging discs at C5-6. See Exhibit 15.

WU-32-01 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

The claimant testified after he stopped working in 2003, his neck pain went back to the level it was on February 22, 2002. The pain would temporarily worsen in bad weather or if he overexerted himself, but it would always go back to the 2002 level. The claimant testified his neck condition made it hard to concentrate and do his job because of the pain and tightness in his neck and the pain in his arm. Because of the pain and tightness in his neck, he had to move his whole body when he wanted to look to the side. He had to do things differently due to pain and had trouble meeting his quota. It also affected his sleep.

In 2015, the claimant settled his Workers' Compensation Claim with his employer based on an 18.9% of the neck. See Exhibit 1. A Worker's Compensation Award in Injury Number 02-156441 presents a detailed statement of the factual background relating to that condition.

Current Complaints and Limitations

The claimant testified in 2019, a decade and a half after this occurrence, the claimant's hands are always cold and he has trouble writing due to hand cramps and loss of dexterity. The claimant testified his wife does the housework, cooking and grocery shopping and the claimant's wife has to help him with buttons, shoelaces, and driving if he has to go more than a short distance. The claimant testified he is now taking the following prescription medications prescribed by his primary care physician:

- Pristiq once a day for depression (before that Effexor)

- Clonazepam twice a day for pain in his neck and upper extremities

- Gabapentin twice a day for pain in his neck and upper extremities since 2003

- Oxycodone 3 times a day for pain in his neck and upper extremities since 2018 (before that Fentanyl since 2003)

- Skelaxin (a muscle relaxer) two times a day since 1998

- Melatonin (a sleep aid) once a day since 2017

- Ambien/Zopinol (a sleep aid) once a day since 1995

- Quetiapine once a day for high blood pressure since 2018

The claimant testified these medications make him drowsy and affect his concentration and memory. The claimant testified he has difficulty sleeping every night due to the pain in his neck and arms and back. He wakes up multiple times during the night and his CPAP is not effective, since he has to change positions frequently due to the pain. As a result, he is always tired and he has to lie down several times during the day. The claimant testified the pain and fatigue from not sleeping well makes it difficult to concentrate.

The claimant testified he used to enjoy playing the guitar, fishing and hunting, and doing gardening and yard work, but he can no longer do any of those things. The claimant testified he can mow his small lawn using a riding mower and clear snow from the short driveway using a 4-wheeler, but it is very difficult and he has to take multiple breaks. The claimant testified he and his wife used to go to the movies and go out dancing, but he can't do that anymore because of pain and limited movement and because he has to change position frequently.

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

The claimant testified since the last work injury in 2003, he can only drive short distances and he has a handicap sticker for his car. Driving in traffic is very difficult, because he has difficulty turning his head and concentrating.

The claimant testified since 2003, he had one job interview in 2005 at Atro Engineering in Sullivan, Missouri. When they found out about his physical limitations, the interview ended and he never heard from them. The claimant also testified he is unable to update his certifications because he cannot sit or stand for prolonged periods, he cannot use the computer for very long because of his hands and wrists and arms and neck, and he has trouble focusing because of lack of sleep. He testified he tried to go back to school in 2004 or 2005, but he could not sit, write, or concentrate.

Educational and Vocational History

The claimant left school after the ninth grade and later received his GED. The claimant took some college courses in drafting, computer numerical control and Cam/Cad at East Central College in Union, MO. See Exhibit 2. He earned a one-year drafting certificate from the community college courses and received a certificate from a two-day course. See Exhibit X. The claimant testified that these certifications are not current because the technology changes every 6 months or so, and machinists have to be re-trained on the new software.

From 1980 to 1994, Carden Machine Shop employed the claimant as a machinist. The claimant operated a CNC lathe. He described his duties as light because the programmed machine did all the work. From 1994 until he stopped working in 2003, this employer employed the claimant as a machinist, and the claimant operated a manual Bridgeport type mill and a semimanual CNC mill. The claimant testified after Dr. Petkovich released him to return to work on August 11, 2003, and he worked until August 19, 2003, when he stopped due to constant pain in his neck and arms. His employer put him on administrative leave and eventually discharged him.

Robert P. Poetz, D.O.

On November 30, 2004, Dr. Poetz reviewed medical records, Dr. Wagner's report, and a job description questionnaire for repetitive trauma injuries that the claimant completed, took the claimant's verbal medical history, and performed a physical examination.

In his 2004 report, Dr. Poetz described Claimant's complaints:

I have difficulty with lifting, carrying, and writing due to my hand symptoms. I get electrical shock-type pains that shoot down the sides of my body into all of my extremities. These pains go all the way down to my toes, which tingle all the time. I have a loss of strength in my hands, especially on the right, and I can't cross my fingers. I also have limited movement with my hands and I am always dropping things. I get hand cramps after writing for a period. See Dr. Poetz report pages 1-2.

Dr. Poetz diagnosed the following medical conditions due to the May 9, 2003 injury: Recurrent bilateral carpal tunnel syndrome, status post bilateral carpal tunnel release and bilateral cubital tunnel syndrome, status post bilateral cubital tunnel release. See Dr. Poetz report, page 7.

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

Dr. Poetz opined the claimant suffered the following permanent partial disabilities from the May 9, 2003, occurrence: 25% of the right hand and wrist; 20% of the left hand and wrist; 30% of the right upper elbow; and 25% of the left elbow. See Dr. Poetz report, page 9. Dr. Poetz testified the claimant's ongoing work activities were a substantial factor causing the recurrent bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome and the resultant disability to the upper extremities. See Dr. Poetz deposition, pages 30, 32.

Dr. Poetz opined the claimant suffered from the following pre-existing partial disabilities prior to this occurrence:

- 25% of the neck (2002);

- 35% of the right wrist (2000);

- 30% of the left wrist (2000);

- 30% of the neck (1998);

- 25% of the thoracic spine (1979);

- 15% of the right shoulder (1979);

- 15% of the right hand; and

- 10% relating to sleep apnea. See Dr. Poetz report, pages 9, 10.

Dr. Poetz opined the claimant is permanently and totally disabled as a result of the 2003 work injury in combination with his preexisting injuries as of May 9, 2003, and the claimant will be permanently and totally unemployable in the open labor market. See Dr. Poetz report, page 10. Dr. Poetz opined the claimant "is medically permanently and totally disabled, indicating that any activity that would be within his occupational skills would require a workload on areas of his body that are already impaired, which would increase the risk of faster progression of those processes as well as increase the risk of injury to him and other workers." See Dr. Poetz deposition, page 40.

In his 2011 addendum report, Dr. Poetz opined with regard to the May 9, 2003, work related injury, the claimant reached maximum medical improvement on December 30, 2003, and the claimant had been permanently and totally disabled since May 9, 2003. See Dr. Poetz 2011 addendum report, page 1.

Dr. Poetz testified the 2003 work injuries combined synergistically with all prior disabilities because "they are all part of the musculoskeletal system. When one area of that system is impaired, it creates a greater workload for other parts of that musculoskeletal system, thereby causing a synergistic effect." See Dr. Poetz deposition, pages 32-33. Dr. Poetz also opined:

> Reduced functioning due to pain or limitations in the cervical spine accompanied by weakness, decreased sensation and functional limitations of the bilateral extremities would combine to cause a greater strain on one another. In addition, due to complications stemming from each upper extremity the combined effect places a greater strain on each upper extremity. Also, injury to the cervical spine in combination with the thoracic spine and right scapula would place a greater intensity on each region of the affected body parts. See Dr. Poetz 2011 addendum report, page 2.

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

John R. Wagner, M.D.

On January 12, 2004, Dr. Wagner, an orthopedic surgeon, reviewed the claimant's medical records and diagnostic tests and performed a physical examination. See Exhibit VII, pages 1-2. Dr. Wagner also reviewed X-rays and MRI's and diagnosed a prior compression fracture of the thoracic spine resulting in compression on the spinal cord. See Exhibit VII, page 3. Dr. Wagner opined the claimant required no further treatment and he could return to work full duty following his release by Dr. Farias. See Exhibit VII, page 3.

Patrick A. Hogan, M.D.

On April 29, 2005, Dr. Hogan, a neurologist, interviewed and examined the claimant and identified a history of sleep apnea, hypertension, and depression. See Exhibit VIII. The claimant reported the following complaints to Dr. Hogan: neck pain and a burning sensation from the base of the claimant's neck to the sacral region since approximately 2000; unsteadiness and use of a cane for approximately six months; and an electric shock-type sensation on either side of the claimant's body from the claimant's shoulders to his toes. See Exhibit VIII, page 1. Dr. Hogan found no evidence of occupational disorder or that the claimant's ability to work was restricted in any manner. He opined the claimant could return to work full duty without restrictions and that the claimant had attained maximum medical improvement with no permanent partial disability with no evidence of occupational disorder. See Exhibit VIII, pages 4-5.

Russell C. Cantrell, M.D.

On February 1, 2006, Dr. Cantrell, a physician specializing in physical medicine and rehabilitation, took a verbal history, performed a physical examination, and reviewed medical records, diagnostic studies and the reports of Dr. Wagner, Dr. Hogan, and Dr. Poetz. See Exhibit III, page 1. Dr. Cantrell opined the claimant's 2000 bilateral carpal tunnel syndrome may have developed as a result of his occupational activities as a machinist. However, he also opined the claimant's subsequent bilateral carpal tunnel syndrome in 2003 and his cubital tunnel syndrome were not causally related to his work activities. See Exhibit III, page 10. Dr. Cantrell opined the underlying conditions, including the claimant's multilevel degenerative disc disease in his cervical spine may have resulted in symptoms consistent with double crush syndrome and the symptoms in his lower extremities could best be attributed to the thoracic injury at T10 suffered in the motorcycle accident. See Exhibit III, page 10. Dr. Cantrell opined although the claimant has disability based on clinical presentation, the disability is secondary to a combination of cervical and thoracic myelopathy not caused by the work injuries. See Exhibit III, page 10.

James M. England, Jr.

On July 6, 2005, Mr. England, a certified vocational counselor, interviewed the claimant and reviewed the claimant's medical records and the reports of Dr. Wagner, Dr. Poetz, and Dr. Hogan. Mr. England opined, "With the combination of medical problems that he appeared to be having and had been treated for and the difficulties that he was still experiencing and considering the majority of the medical evidence, I think in particular at least two treating physicians as well

WC-15-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

as one examining physician's opinion, based on that as well as the man's description of his problems and what I observed when he was in here, I didn't think that he was employable in the open labor market." See England deposition, pages 14-15. Mr. England testified based on Dr. Fitzgerald's and Dr. Anderson's records, the effective date of the claimant's inability to seek and obtain employment was March or April 2004. See England deposition, pages 15-16.

Mr. England testified based his conclusion that the claimant was not employable in the open labor market on his review of the medical records, the claimant's difficulties with his neck, elbows, hands, wrists, and the kinds of restrictions prescribed by the treating doctors and Dr. Poetz. See England deposition, pages 16-17. Mr. England concluded, "somebody with the combination of those medical restrictions as well as taking into consideration how this gentleman presents, the difficulty that he's having in getting sleep consistently" would not be employable in the open labor market. See England deposition, pages 16-17. The claimant reported to Mr. England he was rarely getting more than two to four hours of actual sleep on many nights. Mr. England testified that "[i]f somebody's only getting that amount of sleep, they're going to have difficulty the next day staying awake, alert, focused, that type of thing." See England deposition, pages 17-18.

Gary Weimholt

On June 19, 2018, Mr. Weimholt issued a vocational report after reviewing the claimant's medical records and the depositions of Mr. England, Dr. Poetz, Dr. Wagner, and Dr. Cantrell. Mr. Weimholt did not meet with the claimant. See Weimholt report, page 1.

Mr. Weimholt opined, from a vocational and employment perspective, there were no symptoms or medical problems that were a hindrance or obstacle to the claimant's employment leading up to his 2000 carpal tunnel syndrome occurrence. See Weimholt report, page 25. Mr. Weimholt also opined the injury of October 26, 2000 was not a significant obstacle or hindrance to the claimant in terms of performing his customary job or hundreds of other jobs within his occupational base. Finally, Mr. Weimholt opined the injuries of February 2002 and May 2003 did not result in a loss of the claimant's ability to perform work in the open competitive labor market. See Weimholt report, page 26. Mr. Weimholt opined the claimant would have had a large number of alternative occupations available to him, at age 42, even after leaving his employment with this employer. See Weimholt report, page 26.

Mr. Weimholt opined the claimant would have been employable in the open competitive labor market and had a reasonable expectation of employment within the normal course of business. See Weimholt report page 26. Mr. Weimholt opined, from a vocational rehabilitation standpoint, any additional limitations or symptoms the claimant has had appear to be related to some other condition as stated by Dr. Cantrell, Dr. Wagner and Dr. Hogan and that the claimant's current condition appears to be from the worsening of a previous condition that had not been a hindrance or obstacle to his ability to perform work. See Weimholt report, page 27.

After reviewing the opinions and work restrictions of Dr. Poetz, Mr. Weimholt concluded that Dr. Poetz attributed his work restrictions to the three work injuries at Linmark Machine and pre-existing problems and that the restrictions indicate that the claimant would be able to work on a part-time basis at a sedentary physical demand level. See Weimholt report, page 27.

WC-32-03 (5-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

Mr. Weimholt opined the claimant remained employable in the open competitive labor market following the 2000, 2002, and 2003 occurrences. See Weimholt report, page 27.

Mr. Weimholt opined no employer would reasonably be expected to hire a person whose medical needs and conditions interrupted his sleep and required him to lie down and rest during the day, and to take more breaks than are allowed. See Weimholt deposition, pages 68-71.

Mr. Weimholt opined the use of narcotic pain medications and difficulty staying alert would adversely affect an individual's employability. See Weimholt deposition, pages 65-67.

Mr. Weimholt agreed, "work is different than everyday life because of the routine, frequency, and duration of the activity." See Weimholt deposition, pages 50-51.

NOTICE AND STATUTE OF LIMITATIONS

In 2003, Section 287.430 provided that "no proceedings for compensation under this chapter shall be maintained unless a claim therefore is filed with the division within two years after the date of injury or death ... except that if the report of injury or the death is not filed by the employer as required by section 287.230, the claim for compensation may be filed within three years of the date of injury ..." and "[a] claim against the Second Injury Fund shall be filed within two years of the date of injury or within one year of when a claim is filed against an employer or insurer ... whichever is later." In 2003, Section 287.380 required an employer to notify the division within ten days after knowledge of an accident and to file a "full and complete report" within a month of that notification.

The alleged date of injury in this case is May 9, 2003, and the claimant filed his Claim for Compensation with the Division of Workers' Compensation on June 9, 2003, within two years of the alleged date of injury. Based on the evidence the claimant filed his Claim for Compensation in a timely fashion.

In 2003, there was no notice requirement for occupational diseases. However, the evidence shows the claimant, nevertheless, provided his employer with sufficient notice by filing a claim for compensation on June 9, 2003. There is no contrary evidence. Based on the evidence, the claimant appears to prevail on the issue of notice.

DEPENDENCY OF SPOUSE

Based on the claimant's testimony and the evidence provided, the claimant married Patricia Young on July 3, 1989. See Exhibit 24. Patricia is currently the claimant's spouse and dependent, and was the claimant's spouse and dependent at the time of the February 22, 2002, alleged work-related occupational injury. Under section 287.230.2, Patricia Young is, therefore, entitled to receive compensation pursuant to this award should the claimant die prior to his dependent spouse, Patricia Young.

COMPENSABILITY

Under Section 287.067.2, "[a]n occupational disease is compensable if it is clearly work related and meets the requirements of an injury which is compensable as provided in subsections

WC-32-81 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

2 and 3 of section 287.020. An occupational disease is not compensable merely because work was a triggering or precipitating factor." Subsections 287.020.2 and 287.020.3 provide in relevant part:

  1. ... [a]n injury is compensable if it is clearly work related. An injury is clearly work related if work was a substantial factor in the cause of the resulting medical condition or disability. An injury is not compensable merely because work was a triggering or precipitating factor.
  1. (1) In this chapter, the term "injury" is hereby defined to be an injury, which has arisen out of and in the course of employment. The injury must be incidental to and not independent of the relation of employer and employee. Ordinary, gradual deterioration or progressive degeneration of the body caused by aging shall not be compensable, except where the deterioration or degeneration follows as an incident of employment.

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

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

(b) It can be seen to have followed as a natural incident of the work; and

(c) It can be fairly traced to the employment as a proximate cause; and

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

"In order to support a finding of occupational disease, the employee must provide substantial and competent evidence that he has contracted an occupationally induced disease rather than an ordinary disease of life. The inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort." Townser v. First Data Corp, 215 S.W.3d 237, 241 (Mo.App. E.D. 2007) (citing Kelley v. Banta & Studc Construction Co. Inc., 1 S.W.3d 43, 48 (Mo.App. E.D.1999).) Carpal tunnel syndrome is an occupational disease. Id. "The claimant must establish generally through expert testimony that the occupational disease was caused by conditions in the work place. Such conditions need not be the sole cause of the disease, so long as they are a substantial contributing factor." Id.

In May 2003, this then 42-year-old claimant, a machinist, developed reoccurring weakness and numbness in both hands and wrists and pain and numbness in both elbows. The claimant's job duties required repetitive movement of his hands and arms and upper extremities with extreme torque and vibration. The claimant testified in detail that he performed these movements hundreds of times per day at work operating machines.

He testified operating the manual Bridgeport-type mill for drilling required repeated up and down motions with either the right or left hand or both hands at the same time, and arms, shoulders and neck all day. Using the manual Bridgeport mill for milling required repeated

WC-32-81 (6-81)

Page 14

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

clockwise or counterclockwise rotation motions, side-to-side/in and out, using both hands, arms, shoulders and neck against great resistance all day. He testified using the programmable Bridgeport type mill required repeated up and down motions with either the right or left hand or both hands at the same time, and arms, shoulders and neck most of the day, and sometimes repeated clockwise or counterclockwise rotation motions using both hands, arms, shoulders and neck when he had to override the servos.

He testified programming, set-up, and operation of the Horizontal Machining Center required typing commands into the control board, loading and unloading parts into a vise, repeated tightening and loosening the 100 lb. vise, at times with very heavy parts in awkward positions. It also required from hand tapping small threads in soft steel shafts to hand tapping large threads in very hard pre-heated treated steel shafts. He performed the clockwise and counterclockwise motions into the 3-foot shafts while bent over a table.

He testified the following tasks gave him the most trouble and caused his upper extremity symptoms: the up and down motion with either his right or left hand, arm and shoulder, or both at the same time, and his neck: the clockwise and counterclockwise rotation motion using his right and left hands, arms and shoulders and his neck; the movement of his hands and arms to type commands into the control board; the movement of his hands, arms, shoulders and neck to load and unload parts into the vice and to tighten and loosen the vice, at times with very heavy parts in awkward positions; and the use of his upper extremities and neck while hand tapping large threads in very hard, pre-heated, treated steel.

He testified he performed these motions more than 100 times per day, and that the resistance and torque produced a strong and constant vibration that felt like using a heavy weed whacker for the entire shift. He testified the vibrations in his upper extremities would continue for some time even after his shift ended and that his hands would be numb at the end of his shift from the vibration. He also testified he was not equally exposed to these types of duties and movements at this frequency or duration outside of work.

Dr. Poetz opined the claimant's ongoing work activities were a substantial factor causing the claimant's recurrent bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome and the resultant disability. See Dr. Poetz deposition, pages 30, 32.

The defense argues that the claimant's occupational exposure was not a substantial factor causing his medical conditions and disability based on forensic medical reports from Dr. Wagner, Dr. Hogan and Dr. Cantrell. However, the claimant's testimony and Dr. Poetz' conclusions are supported by the description of the duties of a machinist and the exertional requirements as described by Gary Weimholt, one of the vocational experts in his very detailed report. See Exhibit I. Based on the weight of the evidence in the entire record, the claimant's 2003 cubital tunnel syndrome arose out of and in the course of his employment from his repetitive activities causing a 17 1/2% permanent partial disability to each elbow from the occurrence.

WC-32-81 (6-41)

Page 15

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

SECOND INJURY FUND

"Section 287.220 creates the Second Injury Fund and sets forth when and in what amounts compensation shall be paid from the [F]und in '[a]ll cases of permanent disability where there has been previous disability.'" For the Fund to be liable for permanent, total disability benefits, the claimant must establish that: (1) he suffered from a permanent partial disability as a result of the last compensable injury, and (2) that disability has combined with a prior permanent partial disability to result in total permanent disability. Section 287.220.1. The Fund is liable for the permanent total disability only after the employer has paid the compensation due for the disability resulting from the later work-related injury. Section 287.220.1 ("After the compensation liability of the employer for the last injury, considered alone, has been determined the degree or percentage of disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined..."). Thus, in deciding whether the Fund is liable, the first assessment is the degree of disability from the last injury considered alone. Any prior partial disabilities are irrelevant until the employer's liability for the last injury is determined. If the last injury is and of itself resulted in the employee's permanent, total disability, then the Fund has no liability, and the employer is responsible for the entire amount of compensation. ABB Power T & D Company v. William Kempker and Treasurer of the State of Missouri, 236 S.W.3d 43, 50 (Mo.App. W.D. 2007).

Section 287.220.1, RSMo 1994, contains four distinct steps in calculating the compensation due an employee, and from what source:

  1. The employer's liability is considered in isolation—"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 pre-existing disability."
  1. Next, the degree or percentage of the employee's disability attributable to all injuries existing at the time of the accident is considered;
  1. The degree or percentage of disability existing prior to the last injury, combined with the disability resulting from the last injury, considered alone, is deducted from the combined disability; and
  1. The balance becomes the responsibility of the Second Injury Fund. Nance v. Treasurer of Missouri, 85 S.W.3d 767, 772 (Mo.App. W.D. 2002).

Based on the entire record, the claimant suffered a cervical strain and exacerbation of his pre-existing medical condition in 2003 resulting in a 17 1/2% permanent partial disability to each elbow (73.5 weeks). At the time the 2003 injury was sustained, the claimant had an 18.9% permanent partial disability to the neck (75.6 weeks), a 25% pre-existing permanent partial disability to the body as a whole (100 weeks) and a 20% permanent partial disability of the right wrist and a 17.5% permanent partial disability of the left wrist (65.625 weeks). The permanent partial disability from the last injury combines with the pre-existing permanent partial disability to create an overall disability that exceeds the simple sum of the permanent partial disabilities.

WC-32-R1 (6-81)

Page 16

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

The credible evidence establishes the last injury, combined with the pre-existing permanent partial disabilities, caused greater overall disability than the independent sum of the disabilities. The claimant testified credibly about significant ongoing complaints associated with these injuries. The claimant changed how he performs many activities due to the combination of the problems. The claimant testified as a result of the combination of the problems, he had limited the way he lifts objects at work and at home.

The test for permanent total disability is the worker's ability to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition. Id. at 48.

The claimant testified he now takes narcotic pain medication and other medications that make it difficult to concentrate and affect his memory. The claimant also testified he has difficulty sleeping every night due to the pain in his neck and arms and back, that he wakes up multiple times during the night and that his CPAP is not effective, since he has to change positions frequently due to the pain and this dislodges the CPAP. He testified as a result, he is always tired and has to lie down several times during the day. He also testified the fatigue from not sleeping well also makes it difficult for him to concentrate.

The claimant testified that before May 2003, he was able to care for himself in all regards including personal chores and daily living, but with some difficulty due to his prior injuries and conditions. However, since May 2003, he requires assistance from his wife for most aspects of daily living. The claimant testified about ongoing complaints associated with his medical conditions and how he has modified how he performs most activities.

On June 16, 2004, Dr. Fitzgerald, a treating physician, opined the claimant was unable to sit or stand for prolonged periods of time and had difficulty with prolonged fine motor activities. Dr. Fitzgerald concluded the claimant could not perform sustained activity 8 hours per day, 5 days per week at the sedentary level because of his neck and low back pain and his difficulty with prolonged fine motor operations. Dr. Fitzgerald completed a Social Security Disability Form stating the claimant was unable to sit or stand for prolonged periods, had difficulty with prolonged motor operations and was unable to perform full-time employment at the sedentary level. See Exhibit 10. Dr. Fitzgerald's opinion is consistent with Dr. Poetz's findings.

Dr. Poetz opined the claimant "is medically permanently and totally disabled, indicating that any activity that would be within his occupational skills would require a workload on areas of his body that are already impaired, which would increase the risk of faster progression of those processes as well as increase the risk of injury to him and other workers." See Dr. Poetz deposition, page 40. Dr. Poetz also opined the claimant had been permanently and totally disabled since May 9, 2003. See Dr. Poetz 2011 addendum report, page 2.

The claimant testified he had one interview in 2005 at Atro Engineering in Sullivan, but he never heard from them. The claimant also testified he is unable to update his certifications because he cannot sit or stand for prolonged periods, he cannot use the computer for very long because of his hands, wrists, arms, and neck, and he has trouble focusing because of lack of

WC-32-R1 (6-81)

Page 17

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Kevin Young

Injury No.: 03-051173

sleep. He testified he tried to go back to school in 2004 or 2005, but he could not sit, write, or concentrate.

In 2005, Mr. England opined the claimant was not employable in the open labor market based on the medical records, the combination of the claimant's medical problems, difficulties with his neck, both elbows, hands, wrists, and the restrictions by the treating doctors and Dr. Poetz. See England deposition, pages 16-17.

In 2018, Mr. Weimholt opined that, from a vocational rehabilitation standpoint, any additional limitations or symptoms the claimant has had appear to be related to some other condition as stated by Dr. Cantrell, Dr. Wagner and Dr. Hogan and that the claimant's current condition appears to be from the worsening of a previous condition that had not been a hindrance or obstacle to his ability to perform work. See Weimholt report page 27. However, Mr. Weimholt also opined no employer would reasonably be expected to hire a person whose medical needs and conditions interrupted his sleep and required him to lie down and rest during the day, and to take more breaks than are allowed. See Weimholt deposition, pages 68-71. Mr. Weimholt also opined the use of narcotic pain medications and difficulty staying alert would adversely affect an individual's employability. See Weimholt deposition, pages 65-67.

Mr. England's opinion has greater credibility than Mr. Weimholt's conclusions, because Mr. England had the opportunity to interview the claimant in 2005 and seems to have considered all of the medical records and reports in a more extensive manner. Mr. Weimholt placed more support on the medical findings of Dr. Wagner, Dr. Hogan, and Dr. Cantrell and suggested the claimant is employable in a variety of occupations. Given the combination of the claimant's restrictions and limitations from the 2003 occurrence combined with his pre-existing permanent partial disabilities, his GED educational attainment, his outdated computer course skill level, his past relevant employment history, and his age, the evidence compels a conclusion that the claimant is unemployable in the open labor market and therefore permanently and totally disabled due to a combination of his permanent partial disabilities.

Therefore, the claimant is awarded permanent total disability benefits from the Second Injury Fund.

I certify that on 9-10-19

I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By:

Mide by:

J. KOHNER

Administrative Law Judge

Division of Workers' Compensation

WC-32-81 (K-87)

Page 18

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