David Shields v. Schneider National Carriers, Inc.

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 13-036354**

**Employee:** David M. Shields

**Employer:** Schneider National Carriers, Inc. (settled)

**Insurer:** Old Republic Insurance Company (settled)

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 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 January 21, 2021, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Karen W. Fisher, issued January 21, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this ______ 9th ______ day of July 2021.

**LABOR AND INDUSTRIAL RELATIONS COMMISSION**

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

**DISSENTING OPINION FILED**

Shalonn K. Curls, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence within the record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the award of the administrative law judge should be reversed.

The administrative law judge erred in finding that employee was permanently and totally disabled (PTD) due to his May 3, 2013 primary occupational disease (2013 OD) alone. I believe that employee is permanent partial disabled (PPD) from the 2013 OD, and is PTD only when combining his 2013 OD with his pre-existing disabilities. Therefore, I would find the Second Injury Fund liable for employee's PTD benefits under § 287.220.2, RSMo.

Dr. P. Brent Koprivica opined that employee's 2013 OD alone made him PTD, but also suggested the possibility that employee was "[PTD] based on the synergism of combining the pre-existing industrial disabilities . . . based on the occupational hearing impairment and tinnitus, the impairment and result disability from obstructive sleep apnea and his lumbar disability"1 arising with the 2013 OD claim.

Furthermore, vocational expert Mr. Terry Cordray opined that "the combination of [employee's] preexisting conditions and current limitations that would preclude [employee's] current vocational capacities." ${ }^{2}$

A part of employee's 2013 OD was caused by his previous work-related lifting, but employee was not exposed to any of those duties during his time with employer/insurer, and I do not believe that employer/insurer should be held liable for that unrelated progressive disease and disability. Therefore, I do not believe that employer/insurer should be held liable for the age-based, genetic-based, and other non-work-related factors that contributed to his 2013 OD and made the whole-body-vibration exposure disability synergistically enhanced and more severe.

The evidence established that employee was PTD due to his 2013 OD combining with his pre-existing tinnitus, hearing loss and sleep apnea.

For these reasons, I would find employer/insurer to be liable for employee's PPD, and the Second Injury Fund to be liable for employee's PTD benefits under § 287.220.2. Because the majority of the Missouri Labor and Industrial Relations Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn K. Curls, Member

[^0]

[^0]: ${ }^{1} See Transcript at 1488.

{ }^{2}$ See Transcript at 1528.

Employee: David M. Shields

Dependents: N/A

Employer: Schneider National Carriers, Inc.

Insurer: Helmsman Management Services

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Injury No. 13-036354

Before the DIVISION OF WORKERS' COMPENSATION Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Address: 1600 N. 11th Street, New York 11, N.Y. 10026

Hearing Date: September 15, 2020

Checked by:

1. Are any benefits awarded herein? No.
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: 05/03/2013
5. State location where accident occurred or occupational disease was contracted: In or about Canton, Madison County, Mississippi, and other locations while Employee was operating a semi-truck over the road in the service of Employer.
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes.
7. Did employer receive proper notice? Yes.
8. Did accident or occupational disease arise out of and in the course of the employment? Yes.
9. Was claim for compensation filed within time required by Law? Yes.
10. Was employer insured by above insurer? Yes.
11. Describe work employee was doing and how accident occurred or occupational disease contracted: Employee performed over-the-road trucking activities for Employer subjecting him to whole-body-vibration exposure, which was the prevailing factor causing Employee to contract occupational disease in his lumbar spine.
12. Did accident or occupational disease cause death? No.
13. Part(s) of body injured by accident or occupational disease: Body as a whole referable to the lumbar spine.
14. Nature and extent of any permanent disability: None ordered. (EMPLOYEE SETTLED WITH EMPLOYER/INSURER POST-FINAL HEARING).
15. Compensation paid to-date for temporary disability: $0.00
16. Value necessary medical aid paid to date by employer/insurer? $0.00
17. Value necessary medical aid not furnished by employer/insurer: None.

Page: 1

1. Employee's average weekly wages: 931.03

1. Weekly compensation rate: 620.96 for Permanent Total Disability (PTD)/Temporary Total Disability (TTD) benefits and $433.58 for Permanent Partial Disability (PPD) benefits.

1. Method wages computation: By agreement of the parties.

COMPENSATION PAYABLE

1. Amount of compensation payable: None.

1. Second Injury Fund liability: None.

1. Future requirements awarded: None.

Page: 2

Employee: David M. Shields

Dependents: Not Applicable

Employer: Schneider National Carriers, Inc.

Insurer: Helmsman Management Services

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

Hearing Date: September 15, 2020

Injury No. 13-036354

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by:

INTRODUCTION

The undersigned Administrative Law Judge convened the Final Hearing on September

15, 2020. One claim was brought forward, 13-036354, with an occupational disease date of May

3, 2013. David Shields (Claimant) appeared in person and with his attorney, William Peterson.

Attorney Kip Kubin appeared on behalf of Schneider National Carriers, Inc., (Employer) and Old

Republic Insurance Company (Insurer). Assistant Attorney General Michael Bang appeared on

behalf the Treasurer of Missouri as Custodian of the Second Injury Fund. The parties reached the

following stipulations and narrowed the issues, as follows:

STIPULATIONS

The parties stipulated to the following facts:

1. On May 3, 2013, Schneider National Carriers, Inc., (henceforth "Employer") was an

employer operating subject to the Missouri Workers' Compensation Law.

1. On May 3, 2013, Employer's liability for Missouri Workers' Compensation benefits was

self-insured and Helmsman Management Services was third-party administrator in

Employer's behalf.

1. On May 3,2013, David M. Shields (henceforth "Employee") was an employee of

Employer.

1. Employee has filed a Claim for Compensation dated May 30, 2013, with two subsequent

amended claims filed August 6, 2013, and July 9, 2015.

1. Employee notified Employer of his alleged work injury.
2. For purposes of this proceeding, Employee's average weekly wage of 931.03 was

sufficient to allow a compensation rate of 620.69 for Permanent Total Disability

(PTD)/Temporary Total Disability (TTD) benefits and $433.58 (maximum rate) for

Permanent Partial Disability (PPD) benefits.

1. Employer has not paid Employee any temporary total disability benefits.
2. Employer has not paid any medical benefits.

Page: 3

1. If a compensable injury is found, then Employee reached maximum medical improvement on December 2, 2014.

While multiple issues were presented for determination at the hearing, the sole issue for purposes of this award is the liability of the Second Injury Fund for Permanent Total Disability.

At the Final Hearing, Employer/Insurer disputed jurisdiction, medical causation, nature and extent of unpaid TTD benefits, unpaid medical expenses, liability for future medical treatment, and nature and extent of permanent disability.

Employer/Insurer argued there was no jurisdiction in Missouri over Employee's claim and also denied medical causation - at the time of the Final Hearing, Employer/Insurer had not paid out any benefits to Employee under Chapter 287. Nevertheless, after the Final Hearing was held but before any Award was entered, Employer/Insurer and Employee entered into a Stipulation for Compromise Settlement resolving their disputes in exchange for, in part, a lump sum payment of $\ 175,000.00. I signed the Stipulation for Compromise Settlement on October 29, 2020.

As it were, I find Chapter 287 does apply to Mr. Shields' case pursuant to $\S 287.110$, RSMo. The evidence established Missouri to be the state where Mr. Shields' contract of employment was made. I found Mr. Shields' testimony that Missouri was the state where he was hired by Employer to be particularly persuasive and convincing given all the circumstances. During cross-examination, counsel for Employer/Insurer created some momentary uncertainty with some questions, but attorney questions are not evidence and when considering the full weight of the admitted evidence as must be done, it is clear that jurisdiction exists over Employee's claim.

Due to the settlement agreement that Employee entered into with Employer/Insurer after the Final Hearing, the issues regarding TTD benefits, unpaid past medical, and future medical treatment have been rendered moot.

Claimant's Exhibit 1

Springfield Neurological

Claimant's Exhibit 2

Wichita Clinic

Claimant's Exhibit 3

Preliminary hearing transcript

Claimant's Exhibit 4

Regional Eye Center

Claimant's Exhibit 5

Midwest Sleep Diagnostics

Claimant's Exhibit 6

Precision Pulmonary Diagnostics

Claimant's Exhibit 7

Manzer Family Medicine

Claimant's Exhibit 8

Dr. Manzer note

Claimant's Exhibit 9

Sacry Family Medicine

Claimant's Exhibit 10

Via Christi Clinic

Claimant's Exhibit 11

Ortho 4 States

Claimant's Exhibit 12

Industrial Physical Therapy

Claimant's Exhibit 13

Atlas Ergonomics

Claimant's Exhibit 14

Ortho 4 States

Claimant's Exhibit 15

.Ortho 4 States with Dr. Smith Report

Claimant's Exhibit 16

Via Christi Clinic Cervical MRI

Claimant's Exhibit 17

Rec'd from Employer-Insurer 6-23-13

Claimant's Exhibit 18

. Ortho 4 States

Claimant's Exhibit 19

. Ortho 4 States

Claimant's Exhibit 20

. Rec'd from O.C. through Cloud 2-25-19

Claimant's Exhibit 21

.CDL Medical Exam Report 12-26-12

Claimant's Exhibit 22

.Mercy McCune Brooks

Claimant's Exhibit 23

.Manzer Family Medicine

Claimant's Exhibit 24

. Ortho 4 States

Claimant's Exhibit 25

.Manzer Family Medicine

Claimant's Exhibit 26

.Industrial Physical Therapy

Claimant's Exhibit 27

. Premier Surgical Institute

Claimant's Exhibit 28

. David Shields 9-6-13

Claimant's Exhibit 29

. Dr. Koprivica 5-5-2014

Claimant's Exhibit 30

IME Dr. Bailey 10-30-14

Claimant's Exhibit 31

. Cordray Report 11-05-14

Claimant's Exhibit 32

Dr. Koprivica 12-17-14

Claimant's Exhibit 33

Dr. Koprivica 06-05-15

Claimant's Exhibit 34

.Mr. Eldred 06-20-15

Claimant's Exhibit 35

Dr. Bailey 11-24-15

Claimant's Exhibit 36

.Mr. Eldred 5-19-16 transcript and three exhibits

Claimant's Exhibit 37

. Cordray depo 7-21-16

Claimant's Exhibit 38

Dr. Koprivica Addendum 12-20-16

Claimant's Exhibit 39

Benjamin Hughes Vocational Report for SIF 5-22-17

Claimant's Exhibit 40

. Ben Hughes 11-13-17

Claimant's Exhibit 41

.Shields, David 10-15-18

Claimant's Exhibit 42

Dr. Smith Exhibit 1

Claimant's Exhibit 43

Dr. James Smith 7-2-20

Claimant's Exhibit 44

.EVID - Truck Repair Bills

Claimant's Exhibit 45

.EVID - Van Truckload Bonus Results

Claimant's Exhibit 46

.WC Injury \#13-036354

Claimant was born on July 3, 1951. He is 69 years old. He completed the eighth grade, but has no GED.

Claimant started driving semi-trailers in 1973. He started working for Schneider in November 2011, as an over-the-road driver. Claimant testified to working full-time for six decades. He testified to driving ten to eleven hours a day, on average. He also testified that he would hire "lumpers" to unload his trailers when the trailers were heavy. Claimant denied having any physical limitations before his occupational disease started to impact his vocational ability.

Claimant was given a defective truck to drive while employed by his employer. On May 3, 2013, the vibration and jarring became so severe that Claimant sought repairs from Freightliner. It was noted that the bearing in the rear end of his truck was dysfunctional. Employee had to wait four days for repairs to be made.

By April 9, 2013, Claimant's extreme back pain made walking difficult. He was seen at Atlas Health for his complaints, where they recommended that he obtain a neurosurgical evaluation. An MRI performed on April 24, 2013, revealed bilateral facet hypertrophy from T12 through L3 and generalized lumbar degenerative disease. There was bilateral facet hypertrophy at L3-4 with associated mild central stenosis. There was also bilateral facet hypertrophy at L4-5 with a shallow broad-based disc protrusion producing moderate stenosis.

On September 20, 2013, Dr. Smith performed a decompressive laminectomy at L4-5. After his surgery, Claimant developed numbness and pain in his left leg. Claimant also still had back pain. On June 6, 2014, Dr. Smith performed a bilateral hemilaminectomy and partial medial facetectomy at the L4-5. Bilateral hemilaminectomies and partial medial facectomies and foraminotomies were done at the L5-S1. Claimant continued with postoperative treatment up till December 2, 2014, when he was released at maximum medical improvement.

Evidence was introduced at hearing to support two preexisting disabilities. Claimant testified to working full-time for six decades. He also testified to having no preexisting physical limitations.

Claimant was prescribed bilateral hearing aids in 2009. He testified that while wearing hearing aids he could hear pretty well. Dr. Koprivica found there to be a 12.5 % BAW disability. Neither Dr. Bailey nor Dr. Smith diagnosed there being any preexisting hearing disability.

2) Sleep Apnea

Claimant lost his previous employment with Leggett and Platt due to issues with vision, sleep apnea, and hearing. In 2009 Employee started using a CPAP machine. Employee did not report any subsequent issues at work due to trouble sleeping. Dr. Koprivica assessed a 15\% preexisting disability for Employee's sleep

apnea. Neither Dr. Bailey nor Dr. Smith diagnose there being any preexisting disability due to sleep apnea.

Dr. Koprivica issued two reports. His first report is dated May 05, 2014. His second report is dated December 17, 2014. In his addendum, Dr. Koprivica stated that the purpose of the reevaluation was to "update his clinical course since he has received care and treatment since my May 5, 2014, evaluation."

In his most recent report, Dr. Koprivica opined that Claimant was permanently and totally disabled due to his April 2, 2013 (May 3, 2013), injury, in isolation. Dr. Koprivica restricted Claimant from frequent or constant bending at the waist, pushing, pulling, or twisting. He should avoid sustained or awkward postures of the lumbar spine. He is restricted from squatting, crawling, kneeling, or climbing tasks. He is to only occasionally lift or carry. On a rare basis, Claimant is restricted to less than 50 pounds for waist-level lifting or carrying. For occasional lifting or carrying, he is to limit himself to 20 pounds. He is also to avoid frequent lifting or carrying. He is to avoid whole-body vibration or jarring activities.

Dr. Bailey did not believe Claimant's injury was work related.

Dr. Smith opined that Claimant had chronic degenerative symptoms which were aggravated by Claimant's broken truck. He did not see Claimant after his surgeries were performed. He did not opine there being any percentage of disability.

Mr. Philip Eldred concluded that Claimant is permanently and totally disabled as a result of his back injury up to and including May 3, 2013. With regard to preexisting obstacles to employment, he opined that while Mr. Shields had an impairment, it was not a vocationally disabling impairment such as to constitute a hindrance or obstacle to employment before May 3, 2013.

Mr. Terry Cordray opined that Claimant is capable of returning to work at the sedentary level. Mr. Cordray also opined that Claimant "retains the capacity to obtain the GED and has not made an effort to apply for any jobs."

Alternatively, Mr. Cordray states that he agrees with Dr. Koprivica that Claimant's inability to obtain employment is a result of the combination of his physical limitations to sedentary and light jobs with his hearing loss and sleep apnea, which causes him significant amount of fatigue; which was stated in Dr. Koprivica's original report. When questioned in cross-examination, Mr. Cordray testified to not having read Dr. Koprivica's December 2014 report before the day of the deposition (p. 41, In 11-14). When asked if the fact that Dr. Koprivica changed

his ultimate conclusion in his addendum report had any bearing on his opinion regarding Claimant's employability, Mr. Cordray stated "No." (p. 41, ln 22). He further clarified that his opinion did not change because there was no secondary physical evaluation performed (p. 41, ln. 22-24).

Mr. Ben Hughes concluded that Claimant would be able to return to his previous vocation as an over-the-road driver, relying on Dr. Bailey's lack of restrictions. However, looking to the restrictions provided by Dr. Koprivica, Claimant would be unable to compete in the open labor market due to his occupational disease claim of May 3, 2013, considered in isolation.

Claimant no longer works. Before his occupational disease, he drove a semitrailer for 40 years, driving approximately 10-11 hours a day. Since his occupational disease development, Claimant can only remain seated for 20-30 minutes at a time. Claimant also testified to currently only being able to walk for three blocks and being able to remain standing for 20-30 minutes, where he had no limitations with either before. Claimant testified that he currently has a 10 -pound lifting restriction, where previously he was able to bench press 100 pounds. Claimant testified that he no longer travels anymore, where he used to travel all around the United States; Claimant states he has a 66 mile maximum for traveling, which puts his back at a 7-8 on a pain scale of 1-10 and necessitates him needing to lie down all afternoon and night.

I find the testimony given by Claimant to be credible. I accept the opinion of Dr. Koprivica to be more credible than that of Dr. Bailey or Dr. Smith. I also find vocational experts Mr. Eldred and Mr. Hughes to be more credible than Mr. Cordray. Mr. Cordray relies upon an outdated opinion of Dr. Koprivica that was amended after receiving additional records regarding medical treatment. Mr. Cordray refused to take the amended opinion into consideration due to there being no second physical evaluation, ignoring the additional records reviewed that took into account Claimant's subsequent treatment.

The workers' compensation law for the State of Missouri underwent substantial change on or about August 28, 2005. The burden of establishing any affirmative defense is on the employer. The burden of proving an entitlement to compensation is on the employee. §287.808. RSMo. Administrative Law Judges and the Labor and Industrial Relations Commission shall weight the evidence impartially without giving the benefit of the doubt to any party when weighing

evidence and resolving factual conflicts, and are to construe strictly the provision. $\S 287.800$. RSMo.

Liability of the Second Injury Fund

In order to find permanent total disability against the Second Injury Fund, it is necessary that the employee suffer from a permanent partial disability as a result of the last compensable injury, and that disability has combined with a prior permanent partial disability to result in total disability. §287.220.1, RSMo. (2000); Brown v. Treasurer of State of Missouri, 795 S.W.2d 479, 482 (Mo. App. 1990); Anderson v. Emerson Elec. Co, 698 S.W.2d 574, 576 (Mo. App. 1985). )

This standard was most simply set forth when the Missouri Court of Appeals held:

Where a preexisting permanent partial disability combines with a work-related permanent partial disability to cause permanent total disability, the Second Injury Fund is liable for compensation due the employee for the permanent total disability after the employer has paid the compensation due the employee for the disability resulting from the work-related injury. Reiner v. Treasurer of State of Missouri, 837 S.W.2d 363,366 (Mo. App. 1992)

In determining the extent of disability attributable to the employer and Second Injury Fund, the extent of the compensable injury must be determined first. Roller v. Treasurer of the State of Missouri, 935 S.W.2d 739, 742-43 (Mo. App. 1996). If the compensable injury results in permanent total disability, no further inquiry into Second Injury Fund liability is made. Id. It is therefore necessary that the employee's last injury be closely evaluated and scrutinized to determine if it alone results in permanent total disability and not permanent partial disability, thereby alleviating any Second Injury fund liability.

In the present case, after consideration and review of the evidence, I find and conclude that Claimant sustained an occupational disease. I further find that that occupational exposure ended on May 3, 2013, his last day of work. I find Claimant 50 % BAW permanent partial disability to the lumbar resulting from repetitive truck jarring and vibrations.

"For a claimant to demonstrate Fund liability for PTD, he must establish (1) the extent or percentage of the PPD resulting from the last injury only, and (2) prove that the combination of the last injury and the preexisting disabilities resulted in PTD. Lewis v. Treasurer of State, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014).

For purposes of calculating PTD benefits, a claimant's preexisting disabilities are irrelevant until employer's liability for the last injury is determined. Lewis v. Treasurer of State, 435 S.W.3d 144, 157 (Mo. App. E.D. 2014). A claimant must establish the extent, or percentage, of the permanent partial disability resulting

from the last injury only, and prove that the combination of the last injury and the preexisting disabilities resulted in permanent total disability. Once the court found that claimant had a preexisting disability and was permanently totally disabled after the primary injury, the court must determine the amount of disability resulting from the primary injury alone, which fixed the amount of employer's liability, and then deduct that amount from the compensation due the claimant for PTD to determine the Fund's liability. *Lewis v. Treasurer of State* 435 S.W.3d 144, 158 (Mo. App. E.D. 2014.)

At the hearing, the Second Injury Fund cited *Garrone v. Treasurer of State* as the legal basis for disputing Fund liability. *Garrone* holds that an "occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee's ability to perform his ordinary tasks and harming his earning ability." 157 S.W.3d 237, 242. Turning to the issue of permanent total disability, Dr. Koprivica credibly testified that Claimant was permanently and totally disabled as a result of his occupational disease claim. In rendering this decision, I find Dr. Koprivica credible, reliable, and worthy of belief. I also find the opinions, report, and deposition of vocational experts Phillip Eldred and Ben Hughes credible. Conversely, I find the opinions of Dr. Bailey and Mr. Cordray lack credibility.

Claimant was an extremely credible witness at trial, and I conclude his testimony regarding serious limitations due to the occupational disease is supplied by the medical records and the physical findings of Dr. Koprivica. I therefore specifically discredit Mr. Cordray and Mr. Hughes' testimony that Claimant can return to competitive employment at the sedentary vocational level, if one applies the lack of restrictions opined by Dr. Bailey. I find the testimony of Mr. Hughes and Mr. Eldred credible and convincing that Claimant is permanently and totally disabled due to his occupational disease claim of May 3, 2013, in isolation.

Accordingly, I find competent and substantial evidence supporting a finding that Claimant is permanently and totally disabled due to his occupational disease claim of May 3, 2013, in isolation. Therefore, I also find there to be no Second Injury Fund liability.

This Award is subject to modifications as provided by law.

Date: 1-12-2021

I certify that on 1-21-21 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________

Made by: __________________________

Karen W. Fisher

Administrative Law Judge

By __________________________

MARLBORO

Page: 10