Daniel Tucker v. K & K Pallet Company

Injury No.: 01-069138

Employee: Daniel Tucker, Jr.

-2-

administrative law judge awarded employee 60 2/7 weeks of temporary total disability benefits. But that the period of April 9, 2001 through June 5, 2003 constituted 112 3/7 weeks.

Employee and employer/insurer responded to the Commission's request and agreed that there was indeed a discrepancy in the administrative law judge's award and that 112 3/7 weeks does represent the length of time between April 9, 2001 and June 5, 2003.

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

On April 9, 2001, employee was throwing 45-pound pallets that had fallen off his truck up onto a loading dock when he suffered an umbilical hernia. On July 17, 2002, Dr. Roger De La Torre, employee's treating physician, diagnosed employee with a recurrent umbilical hernia with incarceration and recommended surgery. On June 5, 2003, Dr. De La Torre examined employee and found no evidence of a recurrence of the hernia. Dr. De La Torre recommended that employee return to his duties as a truck driver with no restrictions and placed him at MMI on that date. The administrative law judge's temporary total disability award was based upon the length of time between employee's April 9, 2001 primary injury and the June 5, 2003 MMI date. The length of time between April 9, 2001 and June 5, 2003 represents 112 3/7 weeks. However, the administrative law judge appears to have mistakenly based his temporary total disability award on a June 5, 2002 date, and not June 5, 2003, by awarding 60 2/7 weeks of temporary total disability benefits (the time between April 9, 2001 and June 5, 2002).

Pursuant to § 287.170, a claimant is entitled to receive temporary total disability compensation benefits for not more than 400 weeks during the continuance of such disability at the weekly rate of compensation in effect for the date of injury for which the claim is made. The burden of proving entitlement to temporary total disability benefits lies with the employee. ${ }^{2}$ The purpose of a temporary total disability award is to cover the employee's healing period from a work related injury. ${ }^{3}$ Temporary total disability awards are owed until the employee can find employment or the condition has reached the point of maximum medical progress. ${ }^{4}$ An award of temporary total disability is not appropriate for a disability for which further improvement is not expected. ${ }^{5}$

We agree with the administrative law judge's determination of employee's MMI date. We find that the evidence in the record supports a finding that employer/insurer is liable for employee's temporary total disability, calculated as follows:

- $\quad \ 373.30 (employee's temporary total disability weekly compensation rate) multiplied by 112 3/7 weeks, equals $\ 41,969.59, minus $\ 4,231.57 (The temporary total disability benefits already paid by employer/insurer),

[^0]

[^0]: ${ }^{2} Boyles v. USA Rebar Placement, 26 S.W.3d 418, 424 (Mo. Ct. App. 2000).

{ }^{3} Tilley v. USF Holland, 325 S.W.3d487, 492 (Mo. Ct. App. 2010).

{ }^{4} \mathrm{Id}.

{ }^{5}$ Williams v. Pillsbury Co., 694 S.W.2d 488, 489 (Mo. Ct. App. 1985).

- $=$ \$37,738.02.

We adopt and affirm the administrative law judge's conclusions on the other issues in this matter.

We modify the award of the administrative law judge on the issue of temporary total disability.

The award and decision of Administrative Law Judge Edwin J. Kohner is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

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

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

Given at Jefferson City, State of Missouri, this $\qquad 15th \qquad$ day of June 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls

Shalonn K. Curls, Member

Attest:


Improvee: Daniel Tucker, Jr.

I have reviewed and considered all of the competent and substantial evidence on the whole record, including the parties' response to the Commission's request for additional information.

Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law. I do not believe that employee should be entitled to any additional past or future medical benefits from employer/insurer, with the exception of what has already been paid by employer/insurer and the modified temporary total disability benefits (TTD).

Additionally, if employee is permanently and totally disabled, (PTD), then I believe that the Second Injury Fund (SIF) should be found liable for employee's PTD, not employer/insurer. Employer/insurer should only be liable for permanent partial disability benefits (PPD), based upon a 25 % PPD rating to the body as a whole referable to the abdominal/groin area. I believe that the majority's decision to modify the TTD award should be affirmed.

Employee suffered from several significant preexisting disabilities, including bipolar affective disorder, posttraumatic stress disorder, and personality disorder. Dr. Elizabeth F. Pribor, a psychiatrist, opined that employee has no psychiatric disability as a result of the April 9, 2001 primary injury. However, Dr. Pribor also opined that employee was 50\% PPD from his preexisting psychiatric disabilities, and that employee would need ongoing treatment for his preexisting psychiatric conditions for the rest of his life ${ }^{1}$.

Therefore, I would reverse the decision of the administrative law judge on the issues of PTD liability, past and future medical benefits, and affirm the Commission's modification of TTD benefits.

Because the Commission majority has decided otherwise, I respectfully dissent.

Reid K. Forrester, Member

[^0]

[^0]: ${ }^{1}$ Transcript at 2886-87, 2962.

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: April 9, 2001
5. State location where accident occurred or occupational disease was contracted: Warren County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee, a truck driver, suffered a hernia while lifting pallets onto loading dock.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Abdomen
14. Nature and extent of any permanent disability: Permanent total disability
15. Compensation paid to-date for temporary disability: $4,231.57
16. Value necessary medical aid paid to date by employer/insurer: $4526.74

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

1. Value necessary medical aid not furnished by employer/insurer? 85,283.30
2. Employee's average weekly wages: 560.00
3. Weekly compensation rate: $373.30/$314.26
4. Method wages computation: By agreement

COMPENSATION PAYABLE

1. Amount of compensation payable:

Unpaid medical expenses: $85,283.30

60 2/7 weeks of temporary total disability

with a credit for benefits paid of 4,231.57 18,273.09

Permanent total disability benefits from Employer beginning June 5, 2003, for

Claimant's lifetime Indeterminate

1. Second Injury Fund liability: No

TOTAL: Indeterminate

1. Future requirements awarded: See additional findings of fact and rulings of law.

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.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

This Workers' Compensation case raises several issues arising out of a work-related injury in which the claimant, a truck driver, suffered a hernia while lifting pallets and throwing them onto a loading dock. The issues for determination are: (1) Medical causation, (2) Liability for Past Medical Expenses, (3) Future medical care, (4) Temporary disability, (5) Permanent disability and date of maximum medical improvement, and (6) Second Injury Fund liability. The evidence compels an award for the claimant for medical expenses, future medical care, temporary total disability benefits, and permanent total disability benefits from the employer and insurer.

At the hearing, the claimant testified in person and offered depositions of Robert P. Poetz, D.O., Gary Weimholt, and the claimant; certified records from the Missouri Division of Workers' Compensation; certified medical treatment records and bills; lists of the claimant's prescriptions and medications; a summary of past medical expenses; stipulations signed by all parties; and a certified receipts and payment ledger from the Division of Child Support Enforcement. All parties agreed to amend the transcript of Dr. Poetz's deposition testimony on page 27, lines 16 - 17 to reflect Dr. Poetz's actual testimony that the date of the work accident was April 9, 2001 instead of March 28, 2011.

The defense offered depositions of Bernard Randolph, M.D., Dr. Elizabeth Pribor, M.D., James M. England, Jr., and Marcia McCabe, Ph.D.; correspondence from Dr. Roger De La Torre; and a certified copy of a medical report from Richard T. Katz, M.D. The claimant objected to Dr. Katz's medical report as hearsay, forensic in nature, prepared for litigation and not submitted by complete report. The claimant's objection was sustained and the defense made an offer of proof. The claimant reasserted his objection to Dr. Pribor's references to Dr. Stilling's report in her deposition (Ex. A) page 13 line 11 and page 42 line 22 and Dr. Pribor's references to Dr. Stilling's report in her report. The claimant's objection was taken under submission. The claimant also reasserted his objection to Dr. Randolph's references to Dr. Katz's report in his deposition (Ex. D) page 12 line 6 and page 22 lines 11 - 24. The claimant's objection was taken under submission. Employer/Insurer's Exhibits A-F were entered into evidence.

All objections not previously sustained are overruled. Jurisdiction in the forum is authorized under Sections 287.110, 287.450, and 287.460, RSMo 2000, because the accident 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: Daniel R. Tucker, Jr.

Injury No.: 01-069138

This case arrived for hearing over eighteen years after the April 2001 accident. In the interim, the employer, K&K Pallet Company, a fictitious name, registered to H.K. Putnam Industries, Inc., expired in 2009. H.K. Putnam Industries, Inc., was administratively dissolved by the Missouri Secretary of State on November 8, 2007. The claimant testified that the principle owner of the employer died about a year after the April 2001 accident. The insurer became financially unstable and entered liquidation proceedings on October 3, 2001, in Pennsylvania, where it remains to date.

SUMMARY OF FACTS

On April 9, 2001, this now 55-year-old claimant, a truck driver, was throwing 45-pound pallets that had fallen off his truck up onto a loading dock when he suffered an umbilical hernia. On April 10, 2001, the claimant went to Dr. Kulkamthorn, a family medicine practitioner, and reported abdominal pain and bulging near his umbilical area. See Exhibit 10. Dr. Kulkamthorn diagnosed an umbilical hernia and recommended rest and surgery. On July 16, 2001, Dr. Kulkamthorn performed an umbilical herniorrhaphy without mesh. On July 25, 2001, Dr. Kulkamthorn removed the surgical staples. See Exhibit 11. On October 3, 2001, the employer's Workers' Compensation insurer became insolvent and entered liquidation proceedings that continue to this day.

On April 29, 2002, the claimant returned to Dr. Kulkamthorn reporting a flare-up of hernia type pain in his umbilical area. Dr. Kulkamthorn diagnosed recurrent paraumbilical hernia and again recommended surgery. See Exhibit 11. On May 1, 2002, Dr. Kulkamthorn performed another umbilical hernia repair without mesh. Dr. Kulkamthorn removed the staples on May 10, 2002. On May 13, 2002, the claimant returned to Dr. Kulkamthorn reporting continued pain and swelling around his incision. A CT scan showed fluid collection in the right lower quadrant interior abdominal wall. Dr. Kulkamthorn diagnosed an abscess and hematoma and prescribed Keflex and Percocet. See Exhibit 12.

The claimant testified he was unhappy with the outcome of the first two surgeries and tried to get authorization for surgery with a different doctor. The claimant testified he spoke to his employer who agreed to additional treatment, but when the claimant tried to contact the insurer, the adjusters could not provide any authorization for treatment because the insurer was in liquidation proceedings.

On July 13, 2002, the claimant went to Crossroads Regional Hospital emergency room reporting his hernia had popped out again shortly after his last surgery when he coughed. The claimant received Percocet and a hernia binder to wear at all times. The claimant was advised not to lift anything heavy for 21 days and to follow up with a surgeon for repair of the hernia. See Exhibit 11.

On July 17, 2002, the claimant went to Dr. De La Torre, a board-certified bariatric surgeon, who diagnosed recurrent umbilical hernia with incarceration and recommended surgery. See Exhibit 14. On July 24, 2002, Dr. De La Torre performed a diagnostic laparoscopy, massive adhesiolysis, and reduction of incarcerated umbilical hernia with mesh placement. On August 8, 2002, Dr. De La Torre noted the claimant's surgical wound was closing slowly. On October 30, 2002, the claimant reported some ongoing abdominal pain and difficulty lifting, but Dr. De La

WC-32-R1 (6-81)

Page 4

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

Torre did not believe the hernia had reoccurred. See Exhibits 11, 14. On June 5, 2003, Dr. De La Torre examined the claimant and found no evidence of a recurrence of the hernia. Dr. De La Torre recommended the claimant return to his duties as a truck driver with no restrictions. See Exhibit F.

On October 8, 2003, the claimant went to the Crossroads Regional Hospital emergency room complaining of abdominal pain and fever. A CT scan of the abdomen and pelvis revealed a small lesion, but no recurrent hernia. The diagnosis was chronic abdominal pain. See Exhibit 11.

On August 12, 2004, the claimant went to Dr. Bergman, a general surgeon, for chronic abdominal pain he had experienced since the July 24, 2002 surgery. Dr. Bergman ordered a CT scan, which did not reveal any new hernia. On September 3, 2004, Dr. Bergmann diagnosed chronic periumbilical pain that did not require further surgery. Dr. Bergman released the claimant to work with permanent lifting restriction of less than 20 pounds. See Exhibit 15.

The claimant testified after the April 2001 work injury his depression got worse. He testified he was in constant pain and could not work, so he could not support himself or his wife. The claimant testified his wife left him, and he had to sell his belongings. He moved in with relatives and relied on them for care and support. The claimant testified the worsening depression after the injury and the frustration at not being able to work or to get medical treatment after the Insurer's insolvency caused him to spiral downward and consider suicide.

On October 16, 2004, the claimant was involuntarily committed to the Metropolitan St. Louis Psychiatric Center. The claimant reported depressed mood, poor sleep, poor concentration, low energy and suicidal ideation. The claimant stated he was depressed and had low self-esteem because after three surgeries, he had lost his wife, income and apartment and his family was supporting him. He remained hospitalized there until November 8, 2004. See Exhibits 16A, B.

On April 6, 2005, the claimant was admitted to De Paul Health Center Psychiatric Center for inpatient treatment for depression. The claimant reported he had been depressed since October 2004 and had stopped taking his medications six weeks prior. The claimant was placed on medications and monitored closely. He participated in individual and group therapy. The claimant was diagnosed with major depression with psychotic features, cannabis abuse, alcohol abuse, hypertension and obesity with a history of cerebrovascular disease. He was treated with Valium, Diltiazem, Pepcid, Seroquel, Zocor, and Effexor XR. The claimant remained hospitalized there through April 10, 2005. See Exhibit 13. According to Dr. Pribor's psychiatric report, the claimant received outpatient psychiatric treatment for six years from 2006 through 2012. See Dr. Pribor deposition, report page 11.

On July 26, 2005, the claimant went to Dr. Chad Smith, a family medicine physician, for abdominal pain and fever. Dr. Smith sent the claimant to Crossroads Regional Hospital for testing, where he was admitted to the hospital. See Exhibit 18. On July 27 and 28, 2005, Dr. Follwell, a bariatric surgeon, performed procedures related to the claimant's gastroesophageal reflux disease (GERD) and duodenal ulcer. On July 29, 2005, Dr. Follwell performed a diagnostic laparoscopy, intraabdominal adhesiolysis and laparoscopic appendectomy. The postoperative diagnosis was massive intraabdominal adhesions and a fibrosed appendix. On July 30, 2005, the hospital discharged the claimant. See Exhibits 11, 14.

WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

On August 15, 2005, the claimant returned to the Crossroads Regional Hospital emergency room complaining of right leg swelling and abdominal pain and was admitted to the hospital for testing. An abdominal CT revealed multiloculated thick-walled fluid collection on either side of the surgical staple line in the right lower quadrant post-appendectomy site. Venous Doppler of the right lower extremity showed deep vein thrombosis right popliteal vein. The claimant was assessed with post-op right lower extremity deep vein thrombosis, postoperative appendiceal abscess, and increased protein to albumin ratio. Dr. Beattie, an oncologist, prescribed IV heparin and Coumadin. On August 17, 2005, a CT scan showed no change in the postoperative inflammatory change at the appendiceal stump and IV antibiotics were continued. The claimant was discharged on August 20, 2005, on Coumadin therapy and instructions not to do any heavy lifting. The claimant was advised he would require regular monitoring for Coumadin indefinitely. The claimant followed up with Dr. Follwell for abdominal pain and with Dr. Beattie for Coumadin monitoring. See Exhibits 11, 14, 17.

Since 2009, the claimant has continued to consult his primary care physician for prescription medication for several conditions, including abdominal pain. The claimant has continued to see Dr. Beattie and his primary care physician for prescriptions and monitoring for Coumadin and Warfarin. See Exhibit 18. The claimant received psychiatric treatment as an outpatient at Crider Health Center from November 2004 through December 2006 and from 2012 until the present. See Exhibit 20. At the time of the hearing, the claimant testified he had been seeing Dr. Goldmeier on a regular basis until about 2 months prior and he was looking for a new psychiatrist.

Pre-Existing Medical Conditions

The claimant alleged he had two pre-existing medical conditions at the time of his 2001 work-related injury: (1) Depression and PTSD and (2) Hypertension. The claimant's Workers' Compensation file reveals several prior work injuries and two settlements. See Exhibit 1. However, the claimant testified he does not recall those settlements and that the symptoms for any prior injuries had resolved at the time of the April 9, 2001, work-related injury.

The claimant testified he has suffered from depression for much of his life. The claimant also testified in about 1987 (this date varies in the records), he was involved in a motor vehicle accident when he was working with a friend. The claimant was a passenger in a truck that the friend was driving. The truck struck a van, killing three adults and six children. After that incident, the claimant also suffered from symptoms of PTSD. However, the claimant did not receive any medical treatment for the depression or PTSD until after the April 9, 2001, work-related injury. The claimant testified leading up to the April 9, 2001 work-related injury, he experienced depression, flashbacks, nightmares, and trouble trusting and being around people. Occasionally the depression or PTSD would cause difficulty sleeping, so he would be tired during the day, which could affect his concentration. In spite of problems, the claimant continued to perform his job duties without restrictions or accommodations. These conditions stayed the same leading up to the April 9, 2001 work injury, and then the depression worsened.

The claimant testified in 1990 he started feeling flushed and shaky and was diagnosed with hypertension. The claimant received medication, which controlled the symptoms if he took

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

the medication regularly. The claimant testified leading up to the April 9, 2001, work-related injury he continued to take medication for this condition prescribed by his primary care doctor, and the condition stayed the same. After the April 9, 2001 work-related injury, the claimant's doctor changed his medications because the hypertension worsened and was no longer controlled well with the prior medication.

Current Complaints and Limitations

The claimant testified since the April 9, 2001 work-related injury, he is tired all day and has to lie down during the day. He testified he is exhausted from pain and not sleeping well at night due to abdominal pain. The claimant testified he wakes up multiple times during the night because when he turns over the scar tissue in his abdomen pulls at surrounding tissue causing severe pain and some nights he does not sleep at all. The claimant testified he has to lie down and nap usually twice a day for 1.5-2 hours at a time. The claimant testified he did not have to lie down during the day before the primary injury. The claimant testified lack of sleep and his medications make it harder for him to concentrate and it effects his memory.

The claimant testified at the time of the hearing he was taking the following prescription medications:

- Cymbalta twice a day, prescribed by Dr. Goldmeier and Dr. Smith for depression

- Abilify once a day, prescribed by Dr. Goldmeier for depression

- Omeprazole once a day, prescribed by Dr. Smith for stomach upset and GERD

- Oxycodone/Percocet three times a day, prescribed by Dr. Stoneking for pain

- Warfarin/Coumadin, once a day, prescribed by Dr. Beattie and then by Dr. Smith, for blood thinner/DVT since 2005

- Metformin prescribed by Dr. Smith for diabetes diagnosed in 2010

- Lipisol, once a day, prescribed by Dr. Smith for hypertension

- Lipitor once a day, prescribed by Dr. Smith for cholesterol

The claimant testified before the April 9, 2001, work-related injury, he enjoyed bowling and softball. He has not been able to participate in any sports since the injury because when he twists his torso or lifts something heavy, he has abdominal pain and gets nauseous and has to lie down. The claimant testified he does not drive anymore, and he hasn't been able to sit for long periods in a car since the April 9, 2001 work-related injury. The claimant testified he cannot sit, stand or bend for any length of time without changing positions and cannot walk more than a block without stopping to rest. He is unable to lift more than 10-15 pounds due to abdominal pain. The claimant testified he uses a cane for instability. He has also continued to use a hernia belt since the April 9, 2001 work-related injury. The claimant testified he experiences abdominal pain and depression every day.

The claimant testified after his employer went out of business in 2002, he tried to work for one or two months for A & W Pallet, Inc. This job was part-time and very sporadic and only required driving, no lifting. The claimant testified he still could not perform the job duties because of abdominal pain that he attributed to the hernia and scar tissue that pulled on the surrounding tissue. The claimant testified he has not applied for any jobs or tried to work since

WC-32-R1 (6-81)

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

then because he can't do what he used to do, and he does not believe he has any skills or education to do something else.

Educational and Vocational History

The claimant testified he left school at the beginning of the ninth grade and did not pursue a GED. The claimant received training as an electrical lineman in the military in the early 1980's. The claimant also attended a nine-week course at a truck driving school in 1983, after he was honorably discharged from the Army. While the claimant was working, he qualified for CDLs in Missouri and Illinois, but those licenses have not been renewed since the April 9, 2001 work-related injury. The claimant testified he would no longer be able to qualify for a CDL.

The claimant testified he worked at a full-service gas station for his father from the time he left school until he went in the Army. He pumped gas, changed oil and performed basic maintenance on vehicles, such as changing parts and mounting and balancing tires. For several months after he got out of the Army, the claimant delivered milk for Mid-America Dairy.

The claimant testified that from 1986 - 1994 he was an independent contractor, driving his own tractor-trailer for a number of companies, including North American Van Lines. During this time, he also drove a flatbed truck for Oliver Transportation. This was all long-distance driving. When the claimant worked for American Van Lines, he did household moving and managed the packing and loading and unloading of the truck. When the claimant worked for Oliver Transportation, he hauled steel products, including railroad ties, coiled steel, and flat steel. He loaded and unloaded the truck using a crane. These jobs required the claimant to climb in (pulling himself up) and out of trucks and sit for prolonged periods. These jobs also required reaching, carrying, squatting, twisting, walking and lifting 15 - 100 pounds.

The claimant testified from 1995 until April 2001 he worked for this employer as a delivery driver. His job involved loading and unloading the tractor-trailer with a forklift and making deliveries in Missouri and Illinois. Sometimes pallets would fall during the loading and unloading and he would have to move them. The claimant testified he tried to work after the April 9, 2001 work-related injury, while he was waiting for the first surgery, but the pain was too bad and he could not perform his job duties. The claimant testified his employer, the owner of K & K Pallet, died a little more than one year after the work injury and the business closed.

Robert P. Poetz, D.O.

On March 8, 2011, Dr. Poetz examined the claimant and took medical history. Dr. Poetz also reviewed medical records and bills. The claimant reported since the 2001 accident, he continued to experience abdominal pain that was severe enough to require pain medication and restrict his daily activities. The claimant complained turning certain ways caused scar tissue in his abdomen to pull on the surrounding tissue and cause pain. The claimant told Dr. Poetz he was unable to lift anything over fifteen pounds without pain and bloating in his abdomen, which could last a couple of weeks. The claimant also reported he experienced severe pain in his abdomen with coughing or sneezing. The claimant reported since 2005, he has been on Coumadin, which requires frequent monitoring and he would have to remain on this medication indefinitely. See Exhibit 8, report page 1.

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

Dr. Poetz diagnosed the following medical conditions due to the 2001 accident: large umbilical hernia with omentum; status post large umbilical herniorrhaphy; recurrent paraumbilical hernia; status post repair of umbilical hernia; recurrent umbilical herniate with incarceration and massive intraabdominal adhesions; status post diagnostic laparoscopy, massive adhesiolysis, reduction of incarcerated umbilical hernia, and laparoscopically assisted umbilical herniorrhaphy with mesh placement; massive intraabdominal adhesions and a fibrosed appendix; status post diagnostic laparoscopy, intraabdominal adhesiolysis, and laparoscopic appendectomy; post-operative right lower extremity deep vein thrombosis; and exacerbation of depression. See Dr. Poetz deposition, medical report, pages 7-8. Dr. Poetz imposed permanent restrictions related to these conditions, including to avoid heavy lifting, strenuous activity, pushing and pulling, prolonged sitting and standing, and stressful situations. See Dr. Poetz deposition, medical report, page 8. Dr. Poetz opined that the claimant suffered the following permanent partial disabilities due to these conditions: a 50% permanent partial disability to the abdomen; a 20% permanent partial disability to the right knee; a 15% permanent partial disability to the vascular bed; and a 15% permanent partial disability due to the depression. See Dr. Poetz deposition, medical report, page 10. Dr. Poetz opined that the April 9, 2001, accident was the substantial and prevailing factor for these conditions and related disabilities. See Dr. Poetz deposition, medical report, page 10.

Dr. Poetz recommended the following ongoing medical care related to the April 9, 2001 work accident and injury: the claimant will have to remain on Coumadin (Warfarin) indefinitely and therefore will need continued monitoring with PT/INR testing; the claimant should avoid certain activities and trauma that could cause injury and increase his risk of bleeding and should be watchful for any unusual signs of swelling as he has impaired venous flow; the claimant should be on an enteric coated baby aspirin daily; the claimant may benefit from the insertion of a vena filter; the claimant should remain under the care of a psychiatrist for treatment of depression including maintenance of medications. See Dr. Poetz deposition, medical report, page 8.

Dr. Poetz also diagnosed the following preexisting conditions: depression, post-traumatic stress disorder, and hypertension. See Dr. Poetz deposition, medical report, page 10. Dr. Poetz opined the claimant suffered a 15% permanent partial disability due to the depression and a 10% permanent partial disability due to the hypertension. See Exhibit 8, medical report, page 10. He opined, "The combination of the present and pre-existing disabilities results in a total which exceeds the simple sum by fifteen percent. It is also my opinion that Mr. Tucker is permanently and totally disabled as a result of his April 9th, '01, work-related injury and in addition to his prior conditions." See Dr. Poetz deposition, pages 19, 20.

Dr. Poetz opined the claimant was permanently disabled and he would remain permanently and totally unemployable in the open labor market. He opined, "If absent the prior conditions and he was suffering from the April 9, 2001, injury alone, he would still be permanently and totally disabled." See Dr. Poetz deposition, page 20.

In his September 7, 2012, supplemental report, Dr. Poetz addressed questions relating to Dr. Randolph's opinion and Dr. Randolph's deposition testimony with regard to whether the adhesions in the claimant's abdominal cavity were caused by the April 9, 2001 injury, and were a

WC-32-R1 (6-41)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

result of his first three hernia surgeries. Dr. Poetz opined all four abdominal surgeries, including the three repair surgeries and the 2005 intraabdominal adhesiolysis, were directly related to and arising out of the April 9, 2001 accident and hernia injury. Dr. Poetz opined the first three surgeries were directly related to the repair of the original hernia and the subsequent reoccurrences of the hernia and the fourth surgery in 2005 was related to massive intraabdominal adhesions caused by the multiple surgeries. See Dr. Poetz deposition, supplemental medical report, page 1. He also opined the claimant would continue to experience chronic abdominal pain as a result of his adhesions and may require additional surgeries in the future related to adhesions or complications arising from adhesions. This would also increase the claimant's disability and continue to reduce his ability to function. See Dr. Poetz deposition, supplemental medical report, page 2.

Dr. Poetz opined adhesions form as a natural part of the body's healing process following surgery and can cause internal organs to attach to the surgical site and lead to severe complications. Dr. Poetz opined abdominal adhesions most commonly form after abdominal surgery and a patient may begin to develop adhesions days after surgery but may not experience symptoms for months or even years later. See Dr. Poetz deposition, supplemental medical report, page 1. Adhesions become larger and tighter as time passes. Adhesions that require surgery, like the claimant's, will reoccur because surgery itself is one of the main causes of adhesions. See Dr. Poetz deposition, supplemental medical report, page 2.

Dr. Poetz also testified the claimant became permanently totally disabled on April 9, 2001, and reached maximum medical improvement on October 29, 2009. See Dr. Poetz deposition, page 22.

Bernard C. Randolph, Jr., M.D.

On July 9, 2009, Dr. Randolph, a physiatrist, examined the claimant and took a verbal history. Dr. Randolph also reviewed the claimant's medical records for treatment that occurred through August 2004. On May 8, 2012, after reviewing additional medical and psychiatric records and Dr. Poetz's report, Dr. Randolph issued an addendum report.

In his medical report, Dr. Randolph noted the claimant continued to report mild to moderate symptoms in the periumbilical area, primarily when lifting heavy objects and occasionally with sneezing. See Dr. Randolph deposition, medical report page 2. Dr. Randolph concluded the April 9, 2001, injury was the cause of the claimant's umbilical hernia and the need for the first three surgeries. See Dr. Randolph deposition, medical report page 4. Dr. Randolph believed the claimant was at maximum medical improvement on the date of the examination, and the claimant did not require any work restrictions with regard to the umbilical hernia. Dr. Randolph opined the claimant suffered a 5% permanent partial disability related to the hernia. See Dr. Randolph deposition, medical report page 5.

In his addendum report, Dr. Randolph opined based on the additional records it appeared increasing abdominal pain identified in 2005, was related to the effects of gastroesophageal reflux disease, peptic ulcer disease, and appendicitis "and to a lesser extent" the symptoms were also related to the effects of the prior umbilical hernia surgeries. Dr. Randolph opined, therefore, the procedures performed in 2005 were not substantially related to the April 9, 2001, work-

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

related accident and the complications resulting from those procedures, including the DVT, were not substantially related to the work accident. Dr. Randolph also opined the claimant's psychiatric conditions were not substantially related to the work accident. Dr. Randolph reaffirmed his previous opinion, the claimant was at MMI and did not require any work restrictions related to the April 9, 2001, work-related injury. See Dr. Randolph deposition, addendum report page 2.

Dr. Randolph testified the laparoscopic exploratory surgery of the claimant's abdomen in 2005 led to the removal of adhesions and a fibrotic appendix and that this surgery gave rise to the development of the claimant's DVT. See Dr. Randolph deposition, page 29. Dr. Randolph testified he was not aware of any diagnosis or condition relating to the intestine or bowel, other than the multiple hernia surgeries, that caused the need for the 2005 surgery to remove the abdominal adhesions. See Dr. Randolph deposition, pages 33, 44. Dr. Randolph testified he did not identify any risk factor other than the hernia surgeries, for the development of the adhesions in the claimant's abdomen. He also did not identify any risk factor other than the primary injury, for the umbilical hernia. See Dr. Randolph deposition, page 44. Dr. Randolph testified it was not unusual that the exploratory surgery in 2005 revealed adhesions because the claimant had abdominal surgery before, and "it's not uncommon to have adhesions when you've had prior surgery." See Dr. Randolph deposition, page 54. Dr. Randolph testified if the laparoscopic surgery and blood clots were related to the work injury, that would change his opinion regarding nature and extent of disability. See Dr. Randolph deposition, page 41.

Elizabeth F. Pribor, M.D.

Dr. Pribor, a psychiatrist, interviewed the claimant for five hours and administered psychiatric tests. She also reviewed medical records and reports, a vocational report and the depositions of the claimant and Gary Weimholt. On July 20, 2015, Dr. Pribor issued a medical report. On November 16, 2015, Dr. Pribor issued an addendum to the report.

Dr. Pribor did not review any records from the claimant's 2004 inpatient treatment at Metropolitan Psychiatric Center or any records from several years of "intensive outpatient" psychiatric treatment after the work injury at St. Joseph's Hospital West. See Dr. Pribor deposition I, medical report, page 2. Dr. Pribor noted the claimant never saw a psychiatrist, psychologist, or counselor before 2001. See Dr. Pribor deposition I, medical report, page 8.

Dr. Pribor opined: 1) The claimant has numerous psychiatric disorders that all started before April 9, 2001. None of the related symptoms were caused by the 2001 injury; 2) The claimant had a significant exacerbation of his psychiatric symptoms in 2004 that coincided with discontinuing his alcohol use in 2002, his financial instability that resulted in him moving in with family, and his inability to work which kept him off any kind of schedule. The exacerbation of his psychiatric disorders were not caused by the work related incident; 3) The claimant presents with signs of exaggeration; 4) The claimant does need psychiatric treatment. The need for this treatment is, for the most part, not related to the work-related injury. There is a small amount of exacerbation of the depressive part of his bipolar affective disorder related to not being able to work, but it is not the prevailing cause in the exacerbation of that disorder; 5) From a psychiatric perspective alone, the claimant would do better if he could work. While it will do him well to function in a job, it is also going to be difficult for him to function in many jobs. When one

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combines this with his relative lack of education and poor vocational history it will be even more difficult; 6) From a psychiatric standpoint, the claimant's prognosis is fair to good if he can continue to remain abstinent and stay in treatment; 7) Even if the claimant is never released to return to work from a physical standpoint in his chosen career, he would do well to have a much more productive day. See Dr. Pribor deposition I, medical report, pages 21-23.

Dr. Pribor diagnosed: Post traumatic stress disorder related to significant abuse during childhood and the 1996 motor vehicle accident, bipolar affective disorder, alcohol use disorder presently in remission, personality disorder not otherwise specified with cluster B, specifically borderline traits and childhood antisocial personality disorder traits, status post multiple abdominal hernias, elevated lipids, status post deep vein thrombosis, history of hypertension, Factor-V leiden mutation, impaired fasting glucose and ultimately diabetes mellitus type II, obstructive sleep apnea, GERD, syringomyelia status post shunt placement, colon polyps and GI bleed, iron deficiency anemia, chronic kidney disease, status post several procedures including, laparotomies, hernia repairs, appendectomy, cholecystectomy, and laminectomy. See Dr. Pribor deposition I, medical report.

On November 16, 2015, Dr. Pribor issued a one-page addendum to her report in which she reasserted her opinion that "while [the claimant] has several psychiatric diagnoses, as outlined in [the July 20, 2015] report none of these diagnoses are a direct result of the work-related injury of April 9, 2001, and therefore, he has 0% permanent partial psychiatric disability as a result of that injury." Dr. Pribor also opined the significant psychiatric diagnoses stated in the original report "result in a 50% permanent partial disability, and impair his ability to function in higher stress environments." See Dr. Pribor deposition I, addendum medical report.

Dr. Pribor limited her examination and diagnosis to only the claimant's psychiatric and psychological disorders and she did not examine or rate the claimant for any of his physical injuries or conditions. Dr. Pribor also testified she would defer to the other medical experts in the case in their diagnoses and ratings of any physical disabilities and their combinational effect. See Dr. Pribor deposition I, pages 72, 73.

Dr. Pribor agreed physical damage, pain and trauma to an individual's body can aggravate and exacerbate depression or mental disorders. See Dr. Pribor deposition I, page 86. Dr. Pribor testified if someone is already depressed then they are feeling pain and therefore, cannot return to work because of their pain, it can add to their depression. See Dr. Pribor deposition I, page 89. She also testified chronic pain can make the depression worse and the depression can make chronic pain worse. See Dr. Pribor deposition I, page 92. Dr. Pribor testified the claimant would need ongoing psychiatric treatment for life relating to his pre-existing psychiatric conditions, primarily bipolar disorder and post-traumatic stress disorder. See Dr. Pribor deposition I, page 100.

Dr. Pribor responded to a hypothetical question about a patient with sleep deprivation:

Q. So if the employee has a physical and mental condition either due to this last work injury alone or due to the combination of his prior mental illnesses, disorders that you've diagnosed and the work injury, if that keeps him from sleeping at night; and therefore, he gets up and is sleep deprived and no fully alert

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enough to do the necessary functions of a job because of the lack of alertness, could you ever psychiatrically release him to go to work?

If he's not alert enough when he finally gets up to do the necessary functions of the job, if he's not alert, if he's sleep deprived, if he'll have to lie down and rest, sleep during what we would consider to be otherwise normal work hours, knowing that and despite the best efforts of doctors to alleviate that problem, but it can't be cured, could you ever psychiatrically release him to go back to work knowing that? See Dr. Pribor deposition I, page 93.

A. Well, so hypothetically speaking, if I had a patient who was always sleep-deprived, and I could never get more than two or three hours a night of sleep, regardless of what medications I use, I might not be able to release them to return to work. See Dr. Pribor deposition I, page 94.

In a letter to the defense attorney dated June 27, 2016, Dr. Pribor recalled the above question as "something to the effect of, 'You wouldn't ever send someone back to work who had chronic insomnia and never got a normal night's sleep' or '... never got more than a few hours' sleep?" She recalled her response as "something to the effect of, 'Hypothetically, I can imagine a scenario where if someone chronically only received three or four hours' sleep a night I would state they would be unable to work.'" Dr. Pribor stated while she believed her response to the question at the deposition a few days before, was an accurate statement, "the more complete answer would be to say that hypothetically I can imagine a scenario where someone had chronic insomnia I would not release them to return to work, but the more common hypothetical would be that individuals with chronic insomnia would nonetheless be able to return to work." She then described causes and symptoms of chronic insomnia. She concluded, "Individuals without chronic psychiatric conditions also complain of insomnia, but in short, the more complete answer to that question is that it is hypothetically accurate that an individual who is complaining of chronic insomnia might be unable to return to work but more likely would be released to work." See Dr. Pribor deposition II, letter.

Dr. Pribor testified she sent the June 27, 2016, letter after "mulling over" her testimony right after the prior deposition. See Dr. Pribor deposition II, page 8. She further testified, after reviewing the transcript of her prior testimony, she realized that the question as she phrased in her letter is not exactly what was asked. See Dr. Pribor deposition II, page 11. She testified the letter was meant to clarify her response by explaining that there are multiple factors to complaints of chronic insomnia, and that she would need more information such as how much the individual is sleeping over a 24-hour period. See Dr. Pribor deposition II, page 12.

Dr. Pribor testified if an individual is not alert enough to do the necessary functions of the job because he's sleep deprived and he had to lie down, rest, sleep during normal working hours, she would not release him to go back to work. See Dr. Pribor deposition II, page 20. Dr. Pribor also agreed if in addition to preexisting psychiatric conditions that caused sleeping problems, an individual also had pain from a subsequent injury that caused sleep problems, it could combine to make those problems worse. See Dr. Pribor deposition II, pages 31-32.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

Gary Weimholt

On August 24, 2011, Gary Weimholt, a vocational rehabilitation consultant, interviewed the claimant and reviewed the claimant's medical records and reports. Mr. Weimholt noted the claimant has less than a high school level of education; that persons with such low levels of education have fewer job opportunities; and the jobs they are able to acquire tend to be more physical in nature. In addition, the claimant's reading level is at seventh grade level, his math level is at the fifth grade level and he has no computer literacy skills or similar office related skills and abilities. Mr. Weimholt also did not believe the claimant has the current academic skills and abilities to complete a post high school level of training or education or he possesses transferable job skills to less than the full range of light or sedentary work. See Weimholt, report page 11.

Mr. Weimholt noted the work restrictions form completed by Dr. Poetz would indicate an inability to perform the full range of sedentary work or any work at a light level. These restrictions would also limit the claimant in his ability to drive automotive equipment or maintain sustained positions as part of a job. Mr. Weimholt also noted Dr. Bergman indicated the claimant could only function in a job with lifting activities of less than 20 pounds and he suffered from chronic pain. Mr. Weimholt acknowledged the claimant's history of psychiatric hospitalization due to depression and post-traumatic stress type problems. See Weimholt, report page 12.

Mr. Weimholt reviewed personal attributes considered by employers to be most important to the job performance of a worker, entry-level job openings in the state, and current job openings in the area where the claimant lives. Mr. Weimholt concluded given the claimant's level of education and vocational history, he is at a great disadvantage and has many shortcomings when compared to other workers who compete for these jobs. Mr. Weimholt also concluded, in view of the claimant's medical restrictions and ongoing symptoms, the claimant would either be physically unable to perform, or not be qualified to perform, the entry-level jobs he identified. Mr. Weimholt opined there were no job openings in the claimant's area with a less than the full range of light work or work at a sedentary physical demand level. Based on his experience with job placement, Mr. Weimholt believed the claimant would not receive accommodations necessary to become employed by a new employer. See Weimholt, report page 12-15.

Mr. Weimholt opined the claimant "has a total loss of access to the open competitive labor market and is totally vocationally disabled from employment." He also opined "there is no reasonable expectation that an employer, in the normal course of business, would hire [the claimant] for any position, or that he would be able to perform the usual duties of any job that he is qualified to perform." Due to the claimant's complicated medical history, Mr. Weimholt deferred to the medical opinions with regard to the role that preexisting injuries, in combination with the 2001 injury, or the injury of 2001 in and of itself, have resulted in the claimant's total loss of labor market access. Mr. Weimholt noted, however, the claimant's physical restrictions "appear to be mostly related to the 2001 injury." See Weimholt, report, page 15.

Mr. Weimholt testified based on the physical restrictions given by Dr. Poetz for the last injury standing, along with the claimant's age, education and transferable skills, the claimant is

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not employable in the open labor market. See Weimholt deposition, page 58. Mr. Weimholt opined based on the claimant's physical restrictions and limitations related to his last injury alone, the chronic pain he associates with that injury and the irritability and unwillingness to be around people caused by that pain, as well as his lack of transferrable skills and educational deficiencies, the claimant is unemployable in the open labor market. See Weimholt deposition, page 62.

James M. England, Jr.

On September 15, 2013, Mr. England, a certified rehabilitation counselor and licensed professional counselor, interviewed the claimant and reviewed the claimant's medical records and reports and the depositions of the claimant, Dr. Poetz, Dr. Randolph, and Mr. Weimholt. The claimant reported he saw his primary care physician every three months and his psychiatrist every five weeks. The claimant reported his major physical limitation is his inability to lift very much, he lifts no more than ten to fifteen pounds. The claimant also reported he could walk about 1/2 mile, but couldn't bend over without pinching his stomach; that he limited his driving due to the pain and seizure issues; and his bipolar problems, including depression and paranoia required treatment, but he thought he was functioning better and was interested in getting out more. The claimant reported he used to enjoy bowling, but it has been too strenuous since the April 9, 2001, work injury. See England report pages 11-12.

Mr. England concluded Dr. Poetz's restrictions would limit the claimant to less than a full day of work at even a sedentary level of exertion. Mr. England believed, however, the claimant indicated functioning at a much better level than Dr. Poetz's restrictions would allow. Mr. England opined, even assuming the restrictions noted by the claimant, he would still be able to perform in such jobs as a medical transporter, in which he had expressed interest, as well as a general courier delivering small parcels or packages, work as a security guard, as a cashier, as a small products assembler, in some retail sales positions, etc. See England report page 14.

Mr. England opined the claimant would benefit from vocational rehabilitation services assuming, he actually had the restrictions he felt he had. Mr. England opined, however, under the findings of Dr. Randolph there would be no need for vocational rehabilitation. Mr. England also opined only if one assumes Dr. Poetz's findings in isolation would the claimant be found to be incapable of performing more than part-time sedentary work activity. See England report page 15.

Mr. England testified if an individual's psychiatric or physical needs are such that he would exceed the breaks that an employer typically allowed, he would not be hired if the employer knew about the condition, and, if he were hired, he would not be able to maintain employment. See England deposition, pages 29-30. Mr. England also testified if an individual's psychiatric or physical condition is such that he is sleep deprived so that he is not alert and needs to sleep during the day, he would not be hired if the employer knew about the condition, and, if he were hired, he would not be able to maintain employment. See England deposition, pages 32-33. Mr. England agreed if an individual has sleep deprivation that he blames on his last accident alone and wakes up at night due to pain and problems from surgeries and adhesions form that accident, so that he has to rest during the day, then the last accident would make him unemployable. See England deposition, pages 42-43.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

The claimant bears the burden of proving that not only did an accident occur, but it resulted in injury to him. *Thorsen v. Sachs Electric Co.*, 52 S.W.3d 611, 621 (Mo.App. W.D. 2001); *Silman v. William Montgomery & Associates*, 891 S.W.2d 173, 175 (Mo.App. E.D. 1995); *McGrath v. Satellite Sprinkler Systems*, 877 S.W.2d 704, 708 (Mo.App. E.D. 1994). For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Silman*, supra. The testimony of a claimant or other lay witness can constitute substantial evidence of the nature, cause, and extent of disability when the facts fall within the realm of lay understanding. *Id.* Medical causation, not within the common knowledge or experience, must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause. *McGrath*, supra. Where the condition presented is a sophisticated injury that requires surgical intervention or other highly scientific technique for diagnosis, and particularly where there is a serious question of pre-existing disability and its extent, the proof of causation is not within the realm of lay understanding nor -- in the absence of expert opinion -- is the finding of causation within the competency of the administrative tribunal. *Silman*, supra at 175, 176. This requires claimant's medical expert to establish the probability claimant's injuries were caused by the work accident. *McGrath*, supra. The ultimate importance of the expert testimony is to be determined from the testimony as a whole and less than direct statements of reasonable medical certainty will be sufficient. *Id.*

On April 9, 2001, this now 55-year-old claimant, a truck driver, was throwing forty-five pound pallets that had fallen off his truck up onto a loading dock when he suffered an umbilical hernia. Prior to April 9, 2001, the claimant worked full-time, full-duty driving a truck for more than 15 years, without restrictions or accommodations.

Dr. Poetz testified the April 9, 2001 work injury, was the substantial cause of the hernia and medical treatment for the condition. Dr. Poetz opined the claimant suffered permanent partial disability as a result of the occurrence. None of the other evidence refutes Dr. Poetz' findings. Dr. Randolph opined the claimant developed an umbilical hernia while working on that date and the claimant suffered permanent partial disability from the occurrence. He did not refute Dr. Poetz' conclusion the occurrence was the substantial cause of the hernia and medical treatment for the condition.

Based on the weight of the evidence, the claimant prevails on this issue.

As of April 9, 2001, the date of the claimant's work-related accident, the term "maximum medical improvement" was not mentioned in the Workers' Compensation Act. At that time, Section 287.149.1 provided that "[t]emporary total or temporary partial disability benefits shall be paid through the rehabilitative process." In 2017 the legislature added the phrase "until the employee reaches maximum medical improvement, unless such benefits are terminated by the employee's return to work..." "Courts have used various terms to determine when an employee's condition has reached the point where further progress is not expected, including the term

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maximum medical improvement." *Cardwell v. Treasurer*, 249 S.W. 3d 902, 910 (Mo.App. E.D. 2008)

The claimant's treating physician, Dr. De La Torre, placed the claimant at maximum medical improvement on June 5, 2003, advising that the claimant could return to work without restrictions. See Exhibit F. Dr. Randolph, concluded that the claimant "was at MMI two or three years before what happened in July 2005." See Dr. Randolph deposition, page 23. Dr. Poetz testified the claimant reached maximum medical improvement on October 29, 2009. See Dr. Poetz deposition, page 22. Dr. De La Torre offered his opinion before the claimant developed the massive abdominal adhesions, underwent an additional surgery to remove those adhesions and developed a DVT as result of that surgery.

The evidentiary records support Dr. De La Torre's finding that no further improvement was anticipated regarding the claimant's condition after June 5, 2003. The weight of the evidence is that the claimant's condition continued to deteriorate after that date, and additional medical care was required to stem the decline. Although Dr. Poetz's finding the claimant exhibited no improvement after October 29, 2009, the medical records suggest the medical care after June 2003, sought to stem the claimant's continued deterioration rather than medical procedures to make improvements in the claimant's condition.

**LIABILITY FOR PAST MEDICAL EXPENSES**

The statutory duty for the employer is to provide such medical, surgical, chiropractic, and hospital treatment as may be reasonably required after the injury. Section 287.140.1, RSMo 1994.

The intent of the statute is obvious. An employer is charged with the duty of providing the injured employee with medical care, but the employer is given control over the selection of a medical provider. It is only when the employer fails to do so that the employee is free to pick his own provider and assess those against his employer. However, the employer is held liable for medical treatment procured by the employee only when the employer has notice that the employee needs treatment, or a demand is made on the employer to furnish medical treatment, and the employer refuses or fails to provide the needed treatment. *Blackwell v. Puritan-Bennett Corp.*, 901 S.W.2d 81, 85 (Mo.App. E.D. 1995).

The method of proving medical bills was set forth in *Martin v. Mid-America Farm Lines, Inc.*, 769 S.W.2d 105 (Mo. banc 1989). In that case, the Missouri Supreme Court ordered that unpaid medical bills incurred by the claimant be paid by the employer where the claimant testified that her visits to the hospital and various doctors were the product of her fall and that the bills she received were the result of those visits.

We believe that when such testimony accompanies the bills, which the employee identifies as being related to and are the product of her injury, and when the bills relate to the professional services rendered as shown by the medical records and evidence, a sufficient, factual basis exists for the Commission to award compensation. The employer, may, of course, challenge the reasonableness

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or fairness of these bills or may show that the medical expenses incurred were not related to the injury in question. Id. at 111, 112.

As stated in Sickmiller v. Timberland Forest Products, Inc., 407 S.W.3d 109, 121 (Mo. App. S.D. 2013), "[S]ection 287.140.1 'does not require a finding that the workplace accident was the prevailing factor in causing the need for particular medical treatment.'" (quoting Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511, 517 (Mo. App. W.D. 2011)). "Where a claimant produces documentation detailing his past medical expenses and testifies to the relationship of such expenses to the compensable workplace injury, such evidence provides a sufficient factual basis for the Commission to award compensation." Id. (quoting Treasurer of Missouri v. Hudgins, 308 S.W.3d 789, 791 (Mo. App. W.D. 2010)).

Farmer-Cummings v. Personnel Pool of Platte County, 110 S.W.3d 818, 820 (Mo. banc.2003), held an employer was only obligated to reimburse an employee for those medical expenses for which the employee will actually be held liable. The medical fees and charges compensable under Section 287.140 refer only to an employee's actual medical expenses - those expenses employee pays out of pocket, expenses for which employee will actually be held responsible in the future, and fees for which a Medicare or Medicaid lien exist. Id. The fees or charges recoverable by an employee are the amounts the care provider actually requires employee to pay, initially or thereafter, for medical services provided. Farmer-Cummings, 110 S.W.3d at 821. Thus, an employee's recoverable fees and charges include only those amounts which have to be paid for her treatment, and for which employee will otherwise be held liable. Farmer-Cummings, 110 S.W.3d at 822.

In the Farmer-Cummings case, the claimant developed work-related asthma, which required treatment. Farmer-Cummings, 110 S.W.3d at 819. While Farmer-Cummings sought compensation for her medical expenses, her employer refused to pay the charges. Farmer-Cummings, 110 S.W.3d at 819-820. The Commission held the defense liable for 118,581.99 in medical expenses. Farmer-Cummings' total medical charges were 158,291.71. From this amount, the Commission subtracted $39,637.72 in fees that the medical care providers either wrote off or adjusted from the total medical charges. The amount remaining after write-offs and adjustments, $118,581.99, was comprised of charges either paid by Medicaid, Farmer-Cummings, her private health insurer, or charges which were still outstanding. Farmer-Cummings, 110 S.W.3d at 820.

The claimant appealed and argued that the Commission erred in refusing to award compensation for those amounts written off or adjusted from the total medical charges. Id. The issue before the court was whether the original bills remained "fees and charges" collectible by the claimant, if they were reduced or written off by the provider. Farmer-Cummings, 110 S.W.3d at 821. Missouri courts previously determined an employee was not entitled to compensation for provider write-offs. Mann v. Varney Construction, 23 S.W.3d 231, 233 (Mo. App.E.D.2000), held an employee was not entitled to compensation for Medicaid write-off amounts, when the total amount submitted had never been sought from him. Similarly, Lenzini v. Columbia Foods, 829 S.W.2d 482, 487 (Mo. App.W.D.1992), reduced a compensation award by an amount which had been written off by care providers. Id.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Daniel R. Tucker, Jr.

Injury No.: 01-069138

The Supreme Court noted that inherent in both Mann and Lenzini was the requirement of actual liability on the employee's behalf. Write-offs or adjustments which extinguished the liability of an employee were not fees and charges, within the contemplation of Section 287.140. Farmer-Cummings, 110 S.W.3d at 821. Thus, the claimant's fees and charges included only those amounts which had to be paid for her treatment, for which she would otherwise be liable. Id. On reviewing the medical bills, the court could not determine with certainty whether she remained liable for write-offs or adjusted fees. Farmer-Cummings, 110 S.W.3d at 823 n.9. The Supreme Court reversed, and remanded the claim for determination of the claimant's continuing liability for the medical expenses. If the claimant remained personally liable for any of the reductions, she was entitled to recover them. However, if the defense established that the claimant was not subject to further liability, she was not entitled to a windfall recovery. Farmer-Cummings, 110 S.W.3d at 823.

Ellis v. Treasurer, 382 S.W.3d 217,223-224 (Mo.App.S.D.2009), held the claimant could recover her entire medical charges where she testified that she had actual liability for her total medical expenses, and some of the medical charges were paid by an ERISA-qualified health insurer, which the claimant was contractually required to reimburse.

In Maness v. City of Desoto, 421 S.W.3d 532 (Mo.App.E.D.2014), the Court clarified the claimant's burden of proof to recover an award of past medical expenses, and the circumstances under which an employer can take credit for deductions and offsets taken against an employee's total medical charges. Section 287.140.1 required an employer to provide such care as may reasonably be required after the injury to cure and relieve from the effects of the injury. An employee seeking past medical expenses had to prove the need for treatment and medication flowed from the work injury. A sufficient factual basis existed for an ALJ to award past medical expenses where employee's medical bills were introduced into evidence, employee testified those bills were related to and the product of the work injury, and the bills related to the professional services rendered, as shown by the medical records in evidence. An employer could challenge the reasonableness or fairness of the bills, or show the medical expenses incurred were not related to the injury in question. Maness, 421 S.W.3d at 544. The evidence showed, and the defense did not dispute, the claimant's health insurer paid a portion of his medical bills. Since the employer did not assert those payments came from it or its workers' compensation insurer, it could not take a credit for amounts paid by the claimant's health insurer. Thus, the Commission did not err in awarding these amounts to the claimant. Maness, 421 S.W.3d at 545.

However, when a claimant carried his burden under Martin by producing documentation detailing past medical expenses, and testifying to the relationship of the expenses to the compensable injury, the employer can raise a defense. Specifically, the employer can establish the employee was not required to pay the billed amounts, the employee's liability for the disputed amounts was extinguished, and the reason employee's liability was extinguished did not otherwise fall within the provisions of Section 287.270. If the employee remained personally liable for any write-offs or fee reductions taken against the total medical expenses, he was entitled to recover them as "fees and charges" within the meaning of Section 287.140. But if the employee was not subject to further liability for those amounts, he was not entitled to a windfall recovery. Maness, 421 S.W.3d at 545-546. The employer could not take advantage of fee reductions or discounts against the total medical charges. In so holding, the Court relied on the

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fact the injured employee had signed documents, wherein he agreed to be responsible for the total charges for medical services rendered to him by certain care providers. Id.

In this case, the claimant seeks $85,283.30 for past medical care and expenses. In support of his Claim, the claimant presented evidence of medical records and bills from a number of providers. These bills are summarized in Exhibit 26. This summary includes bills relating to the second failed surgery from the authorized provider. It appears these bills may not have been paid because the Insurer was entering liquidation proceedings at that time.

The claimant testified his visits to the hospital and various doctors were the product of his April 9, 2001 work injury, and the bills he received were the result of those visits with pharmaceutical expenses for prescription medication. The employer did not present any evidence or testimony to rebut the evidence or the claimant's testimony or to challenge the reasonableness of the bills.

In July 2002, one year after the first hernia repair surgery and one month after the second hernia repair surgery, the claimant notified his employer and the Insurer that he needed additional treatment for the abdominal pain resulting from the failed surgeries. Although the claimant's employer agreed to provide treatment, the insurer refused to authorize the third surgery in 2002, because it was entering liquidation proceedings due to financial instability, so the claimant sought treatment on his own. In 2005, when the claimant required additional treatment because of scar tissue from the 2001 and 2002 surgeries, the employer and the insurer were no longer in business, so the claimant again sought treatment on his own with the same group of physicians that performed the third surgery. The defense did not offer any evidence to show the claimant failed to request medical services from the employer or insurer and did not present any evidence they were prejudiced by the claimant's choice of medical provider.

This case is complicated by medical care that did not produce the expected results for several reasons. First, the usual surgical procedures to restore the claimant's health failed to provide the expected results. Second, the patient's care management by the employer did not provide the medical care required to cure and relieve the claimant's medical condition, because the employer became defunct and was administratively dissolved by the Missouri Secretary of State. The employer's insurer entered liquidation proceedings due to financial instability after the occurrence and was largely absent. Third, the medical care involved many medical conditions and spanned over a decade. Each party has presented extensive forensic medical experts who offered various explanations regarding the relationship of all of the claimant's medical conditions. Fourth, the claimant's financial instability due to the lack of temporary disability benefits during the treatment period complicated the medical situation. However, the ultimate question is whether the medical procedures and expenses flow from the occurrence. The claimant's testimony combined with medical records that suggest an interrelationship between the claimant's various medical conditions compels a finding the medical treatment experienced by the claimant flow from the occurrence and its unfortunate course of events.

In a well-written brief, the Liquidator's legal counsel argued the medical bills were "not separated out as far as specific medical conditions are concerned, whether prescription charges, hospitalizations or otherwise." See Liquidator's brief. However, Dr. Poetz testified, "That those medical bills, the services rendered were necessary and the medical bills were appropriate." See Dr. Poetz deposition, page 23. The Liquidator's legal counsel did not cite his cross-examination

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Injury No.: 01-069138

of Dr. Poetz or provide any refutation by his own expert of the evidence presented by the claimant.

Based on the evidence in the record, as a consequence of the accident of April 9, 2001 and resulting injuries, the claimant incurred medical expenses in the amount of $85,283.30. This medical care was reasonable, necessary, and flowed from the 2001 accident. Further, the medical expenses were fair and reasonable. Therefore, the claimant is awarded $85,283.30 in past medical expenses for treatment resulting from the 2001 work-related injury.

FUTURE MEDICAL CARE

Pursuant to Section 287.140.1, an employer is required to provide care "as may be reasonably required to cure and relieve from the effects of the injury." This includes allowance for the cost of future medical treatment. *Pennewell v. Hannibal Regional Hospital*, 390 S.W.3d 919, 926 (Mo. App. E.D. 2013) citing *Poole v. City of St. Louis*, 328 S.W.3d 277, 290-91 (Mo. App. E.D. 2010). An award of future medical treatment is appropriate if an employee shows a reasonable probability that he or she is in need of additional medical treatment for the work-related injury. *Id.* Future care to relieve [an employee's] pain should not be denied simply because he may have achieved [maximum medical improvement]. *Id.* Therefore, a finding that an employee has reached maximum medical improvement is not necessarily inconsistent with the employee's need for future medical treatment. *Id.*

The Workers' Compensation Act requires employers "to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee's employment[.]" § 287.120.1. This compensation often includes an allowance for future medical expenses, which is governed by Section 287.140.1. *Rana v. Landstar TLC*, 46 S.W.3d 614, 622 (Mo.App.2001).

Section 287.140.1 places on the claimant the burden of proving entitlement to benefits for future medical expenses. *Rana*, 46 S.W.3d at 622. The claimant satisfies this burden, however, merely by establishing a reasonable probability that he will need future medical treatment. *Smith v. Tiger Coaches, Inc.*, 73 S.W.3d 756, 764 (Mo.App.2002). Nonetheless, to be awarded future medical benefits, the claimant must show that the medical care "flow [s] from the accident." *Crowell v. Hawkins*, 68 S.W.3d 432, 437 (Mo.App.2001) (quoting *Landers v. Chrysler Corp.*, 963 S.W.2d 275, 283 (Mo.App.1997)).

While an employer may not be ordered to provide future medical treatment for non-work related injuries, an employer may be ordered to provide for future medical care that will provide treatment for non-work related injuries if evidence establishes to a reasonable degree of medical certainty that the need for treatment is caused by the work injury. *Stevens v. Citizens Mem'l Healthcare Found.*, 244 S.W.3d 234, 238 (Mo.App.2008); *see also Bowers v. Hiland Dairy Co.*, 132 S.W.3d 260, 270 (Mo.App.2004) (claimant must present "evidence of a medical causal relationship between the condition and the compensable injury, if the employer is to be held responsible" for future medical treatment). *Conrad v. Jack Cooper Transport Co.*, 273 S.W.3d 49, 52 (Mo.App. W.D. 2008).

In determining whether medical treatment is "reasonably required" to cure or relieve a compensable injury, it is immaterial that the treatment may have been required because of the

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complication of pre-existing conditions, or that the treatment will benefit both the compensable injury and a pre-existing condition. Tillotson v. St. Joseph Med. Ctr., 347 S.W.3d 511, 519 (Mo.App. W.D 2011). Rather, once it is determined that there has been a compensable accident, a claimant need only prove that the need for treatment and medication flow from the work injury. Id. The fact that the medication or treatment may also benefit a non-compensable or earlier injury or condition is irrelevant. Id. Application of the prevailing factor test to determine whether medical treatment is required to treat a compensable injury is reversible error. Id. at 521.

The claimant testified since the last work injury, he has ongoing problems, including abdominal pain that interrupts his sleep at night and significantly limits his daily activities. The claimant also requires regular monitoring for his indefinite use of blood thinners related to the DVT caused by the 2005 surgery. Dr. Poetz's opined the claimant would continue to experience chronic abdominal pain as a result of his adhesions and may require additional surgeries in the future related to adhesions or complications arising from adhesions. See Dr. Poetz deposition, page 48. Dr. Poetz recommended future medical care be available to treat the residual symptoms from the claimant's work related injury. Dr. Poetz recommended a blood thinner for prevention of deep vein thrombosis, a Greenfield filter in the claimant's groin, and availability of future surgical procedures in the event the claimant develops another hernia. See Dr. Poetz deposition, pages 42, 43, 44. Dr. Pribor opined the claimant would need ongoing treatment for his pre-existing psychiatric conditions (bipolar affective disorder, posttraumatic stress disorder, disorder, and personality disorder) for the rest of his life. See Dr. Pribor deposition I, page 109. On the other hand, Dr. Randolph found nothing in the record to indicate that any additional medical care was indicated. See Dr. Randolph deposition, page 23.

The record suggests the claimant's medical condition has been stable since 2006 and Dr. Poetz' recommendations relate to possibilities of changes in the claimant's future medical conditions. The stability in the claimant's physical condition suggests that Dr. Randolph's findings are more credible and consistent with the evidence in relation to additional surgical procedures. Dr. Pribor was the only forensic mental health provider to offer specific recommendations for the claimant's psychiatric conditions, but she related the treatment to extensive pre-existing psychiatric disorders. Certainly, psychiatric disorders can improve or deteriorate over time due to the course of the disorder and the past eighteen years have resulted a difficult timeline given the demise of the employer and insurer with little or no guidance for treatment.

Given the stability of the claimant's physical condition for over a decade, Dr. Randolph's evaluation of the claimant's condition is more credible pertaining to additional surgical procedures. Dr. Poetz' evaluation suggesting the claimant's need for future surgical procedures represents a possibility of future medical care rather than a reasonable probability. Dr. Pribor and Dr. Randolph opined the claimant's requirement for Coumadin is a result of his Factor V Leiden mutation, an inherited blood-clotting disorder, due to a mutation of the blood's factor V protein. See Dr. Randolph deposition, page 24. Dr. Pribor's evaluation of the claimant's need for additional mental health care suggests the treatment she recommended relates to pre-existing conditions that wax and wane over decades due to the nature of the various disorders.

On the other hand, Dr. Poetz opined the claimant required ongoing pain medication relating to his hernia condition. Assuming the credibility of the claimant's complaints of chronic

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abdominal pain reflected in the medical records, Dr. Poetz recommendation appears unchallenged. The complaints of abdominal pain would appear to flow from the work-related accident and any treatment of the resulting medical condition. Therefore, the weight of the evidentiary records compels an award for additional medical care to cure and relieve from the effects of the injury.

TEMPORARY DISABILITY

Compensation must be paid to the injured employee during the continuance of temporary disability but not more than 400 weeks. Section 287.170, RSMo 1994. Temporary total disability awards are designed to cover the employee's healing period, and they are owed until the claimant can find employment or the condition has reached the point of maximum medical progress. When further medical progress is not expected, a temporary award is not warranted. Any further benefits should be based on the employee's stabilized condition upon a finding of permanent partial or total disability. Shaw v. Scott, 49 S.W.3d 720, 728 (Mo.App. W.D. 2001). The Missouri Supreme Court ruled that if "additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to Section 287.149.1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries."

The plain language of section 287.149.1 does not mandate the commission arbitrarily rely on the maximum medical improvement date to deny TTD benefits, if the claimant is engaged in the rehabilitative process. Instead, whether a claimant is engaged in the rehabilitative process is the appropriate statutory guidepost to determine whether he or she is entitled to TTD benefits under the plain language of Section 287.149.1. It is plausible, and likely probable, that the maximum medical improvement date and the end of the rehabilitative process will coincide, thus, marking the end of the period when TTD benefits can be awarded. However, when the commission is presented with evidence, as here, that a claimant has reached maximum medical improvement yet seeks additional treatment beyond that date for the work-related injury in an attempt to restore himself or herself to a condition of health or normal activity by a process of medical rehabilitation, the commission must make a factual determination as to whether the additional treatment was part of the rehabilitative process. If the commission determines the additional treatment was part of the claimant's rehabilitative process, then he or she is entitled to TTD benefits pursuant to section 287.149.1 until the rehabilitative process is complete. Once the rehabilitation process ends, the commission then must make a determination regarding the permanency of a claimant's injuries. Greer v. Sysco Food Servs., 475 S.W.3d 655, 668-69 (Mo. Banc 2015).

The Court, thus, requires a detailed analysis of the claimant's medical treatment to determine whether the claimant is entitled to temporary total disability benefits. In this case, the claimant has not held gainful employment since the date of injury and the medical course of treatment to stabilize his hernia injury extended for many years. However, temporary disability benefits are not normally paid beyond the date the claimant attained maximum medical improvement, the date in which the medical providers viewed no improvement in the claimant's

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medical condition. The evidentiary records support Dr. De La Torre's finding that no further improvement was anticipated regarding the claimant's condition after June 5, 2003. Therefore, the claimant is awarded temporary total disability benefits from April 9, 2001, through June 5, 2003, 60 2/7 weeks, with a credit for benefits paid of $4,231.57.

Permanent partial disability or permanent total disability shall be demonstrated and certified by a physician. Medical opinions addressing compensability and disability shall be stated within a reasonable degree of medical certainty. In determining compensability and disability, where inconsistent or conflicting medical opinions exist, objective medical findings shall prevail over subjective medical findings. Objective medical findings are those findings demonstrable on physical examination or by appropriate tests or diagnostic procedures. Section 287.190.6(2), RSMo 2016.

"Total disability" is defined as the inability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident. Section 287.020.7, RSMo 2000. The test for permanent total disability is whether, given the claimant's situation and condition, he or she is competent to compete in the open labor market. *Sutton v. Masters Jackson Paving Co.*, 35 S.W.3d 879, 884 Mo.App. 2001. The question is whether an employer in the usual course of business would reasonably be expected to hire the claimant in the claimant's present physical condition, reasonably expecting the claimant to perform the work for which he or she is hired. *Id.* In determining whether the employee can return to employment, Missouri law allows the consideration of employee's age and education, along with physical abilities. *VAXI v. Technologies Automotive*, 956 S.W.2d 340 (Mo.App. E.D. 1997).

Workers' compensation awards for permanent partial disability are authorized pursuant to Section 287.190. "The reason for [an] award of permanent partial disability benefits is to compensate an injured party for lost earnings." *Rana v. Landstar TLC*, 46 S.W.3d 614, 626 (Mo. App. W.D. 2001). The amount of compensation to be awarded for a PPD is determined pursuant to the "SCHEDULE OF LOSSES" found in Section 287.190.1. "Permanent partial disability" is defined in Section 287.190.6 as being permanent in nature and partial in degree. Further, "[a]n actual loss of earnings is not an essential element of a claim for permanent partial disability." *Id.* A permanent partial disability can be awarded notwithstanding the fact the claimant returns to work, if the claimant's injury impairs his efficiency in the ordinary pursuits of life. *Id.* "[T]he Labor and Industrial Relations Commission has discretion as to the amount of the award and how it is to be calculated." *Id.* "It is the duty of the Commission to weigh that evidence as well as all the other testimony and reach its own conclusion as to the percentage of the disability suffered." *Id.* In a workers' compensation case in which an employee is seeking benefits for PPD, the employee has the burden of not only proving a work-related injury, but that the injury resulted in the disability claimed. *Id.*

In a workers' compensation case, in which the employee is seeking benefits for PPD, the employee has the burden of proving, inter alia, that his or her work-related injury caused the disability claimed. *Rana*, 46 S.W.3d at 629. As to the employee's burden of proof with respect to the cause of the disability in a case where there is evidence of a pre-existing condition, the

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employee can show entitlement to PPD benefits, without any reduction for the pre-existing condition, by showing that it was non-disabling and that the "injury cause[d] the condition to escalate to the level of [a] disability." Id. See also, Lawton v. Trans World Airlines, Inc., 885 S.W.2d 768, 771 (Mo. App. 1994) (holding that there is no apportionment for a pre-existing non-disabling arthritic condition aggravated by a work-related injury); Indelicato v. Mo. Baptist Hosp., 690 S.W.2d 183, 186-87 (Mo. App. 1985) (holding that there was no apportionment for a pre-existing degenerative back condition, which was asymptomatic prior to the work-related accident and may never have been symptomatic except for the accident). To satisfy this burden, the employee must present substantial evidence from which the Commission can "determine that the claimant's preexisting condition did not constitute an impediment to the performance of claimant's duties." Rana, 46 S.W.3d at 629. Thus, the law is that a reduction in a PPD rating cannot be based on a finding of a pre-existing non-disabling condition, but requires a finding of a pre-existing disabling condition. Id. at 629, 630. The issue is the extent of the disability that was caused by such injuries. Id. at 630.

In this case, the claimant testified for years prior to April 9, 2001, he suffered from depression and post-traumatic stress disorder. However, the claimant could not recall receiving psychiatric treatment prior to April 9, 2001, and there is no evidence the claimant received treatment for depression or post-traumatic stress disorder prior to the last work injury. The claimant testified before April 9, 2001, he was always able to perform his job duties without restrictions or accommodations. The claimant also testified although his prior depression and post-traumatic stress disorder occasionally interfered with his sleep, it was not until after the April 9, 2001, work-related injury he needed to lie down during the day due to lack of sleep.

The claimant testified since the April 9, 2001, work-related injury, he is exhausted due to sleep deprivation from abdominal pain. He wakes up multiple times during the night, because when he turns over the scar tissue in his abdomen pulls at surrounding tissue causing severe pain. Some nights he does not sleep at all. The claimant testified he has to lie down and nap usually twice a day for 1.5-2 hours at a time. The claimant testified lack of sleep and his medications make it harder for him to concentrate and affect his memory.

The claimant testified before the April 9, 2001, work-related injury, he enjoyed bowling and softball. He has not been able to participate in any sports since the injury because when he twists his torso or lifts something heavy, he suffers abdominal pain, becomes nauseous, and has to recline. The claimant testified he does not drive anymore, and he hasn't been able to sit for long periods in a car since the April 9, 2001, work-related injury. The claimant testified he cannot sit, stand, or bend for any length of time without changing positions. He cannot walk more than a block without resting or lift more than 10-15 pounds due to abdominal pain. The claimant testified he experiences daily abdominal pain and depression.

The claimant testified after this employer went out of business in 2002, he tried to work for one or two months for A & W Pallet Co. He testified the job only required driving, no lifting, but he still could not perform his job duties because of abdominal pain from the hernia and scar tissue. He has not applied for any jobs or tried to work since then because he can't do what he used to do and he does not believe he has any skills or education to do something else.

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Substantial forensic evidence from Dr. Poetz and Mr. Weimholt support this conclusion. Dr. Poetz opined the claimant is physically limited by a self-imposed 10-15 pound lifting limitation. See Dr. Poetz deposition, page 24. On the other hand, Dr. Randolph opined the claimant could return to work with no restrictions. See Dr. Randolph deposition, page 17. He opined the claimant suffered a 5% permanent partial disability from the 2001 accident. The divergent evaluations are difficult to reconcile.

Dr. Poetz and Mr. Weimholt both testified the claimant is permanently and totally disabled as a result of the physical limitations from the April 9, 2001, injury alone, including ongoing pain and sleep deprivation. See Dr. Poetz deposition, page 51; Dr. Weimholt deposition, pages 58, 62. Dr. Poetz opined, "If he hadn't had prior conditions and only had this injury, in my opinion he would be totally and permanently disabled from that injury alone." See Dr. Poetz deposition, page 58. Mr. Weimholt also found the claimant's lack of education to be a great disadvantage in the open competitive labor market. See Weimholt deposition, page 37.

Mr. England testified if an individual's psychiatric or physical condition is such that he is sleep deprived, so that he is not alert and needs to sleep during the day, he would not be hired if the employer knew about the condition, and if he were hired he would not be able to maintain employment. Mr. England agreed if an individual has sleep deprivation that he blames on his last accident alone and wakes up at night due to pain and problems from surgeries and adhesions from that accident, so that he has to rest during the day, then the last accident would make him unemployable. Significantly, Mr. England advised the Liquidator in 2013 the claimant "would certainly benefit from vocational rehabilitation services assuming he actually has the restrictions that he feels he has." See England deposition, report, page 15. This is especially significant for the claimant who had been outside of the labor market for a dozen years. However, the Liquidator elected not to take advantage of the voluntary vocational rehabilitation program enshrined in the Missouri Workers' Compensation statute. On the other hand, one cannot speculate on what could have resulted from following Mr. England's guidance. It is noted the vocational rehabilitation sections in the Missouri Workers' Compensation statute is strictly voluntary. Section 287.143, RSMo 2016.

Dr. Pribor did not consider or evaluate any of the claimant's physical conditions. However, Dr. Pribor testified physical damage, pain and trauma to an individual's body can aggravate and exacerbate depression or mental disorders. Dr. Pribor also testified if an individual is not alert enough to do the necessary functions of the job, because he's sleep deprived and he had to lie down, rest, sleep during normal working hours, she would not release him to go back to work. Dr. Pribor agreed that if, in addition to preexisting psychiatric conditions that caused sleeping problems, an individual also had pain from a subsequent injury that caused sleep problems, it could combine to make those problems worse.

The Liquidator's legal counsel argued in his well-written brief that Dr. Randolph's evaluation the claimant suffered a five percent permanent partial disability from the accident, Dr. Pribor's finding the claimant had a fifty percent pre-existing permanent partial disability from all of his other maladies that she opined pre-dated the 2001 accident. Thus, the Liquidator suggests the claimant's disability from the 2001 accident is relatively minor and the bulk of the claimant's disability results from the conditions that pre-date the claimant's 2001 hernia accident at work. The difficulty with that position is the claimant was apparently reasonably functional before the

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2001 work-related accident, and the medical care that followed, but he became exceedingly dysfunctional after the occurrence and the course of treatment for the hernia. The Liquidator had the option to take control of the medical care and offer vocational rehabilitation had it sought to do so and probably still has those options nearly two decades after the 2001 work-related accident, but apparently elected not to do so. Dr. Poetz and Mr. Weimholt's evaluations appear to be more consistent with the rest of the record than to the evaluations relied on by the Liquidator.

The claimant argued forcefully in his brief the claimant's physical restrictions described by Dr. Poetz, his subjective pain complaints, and sleep deprivation from the pain result in permanent total disability in conjunction with the claimant's age, lack of high school diploma or GED, and his past relevant work history of manual labor. Dr. Pribor's diagnostic assessment included obstructive sleep apnea and various psychiatric disorders, which may help to explain the claimant's sleep deprivation although she did not conduct a sleep study. Although Dr. Pribor opined the huge list of medical and psychiatric conditions were pre-existing permanent partial disabilities, the evidence of any disabling effect from those conditions before the 2001 accident do not appear in the record. It is recognized those medical conditions have the potential to create disabling conditions, but Dr. Poetz finding the 2001 work-related accident was sufficiently severe to result in the claimant's permanent total disability alone.

Based on the weight of the evidence in the entire record, the limitations and restrictions from the April 9, 2001, work-related accident, render the claimant unemployable in the open labor market as a result of the April 9, 2001, work-related injury alone, in combination with the claimant's age, education, and past relevant work history. Therefore, the claimant is awarded permanent total disability benefits from the Employer/Insurer from the date he attained maximum medical improvement as determined above.

SECOND INJURY FUND

Section 287.220.1, RSMo 2000, 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 preexisting 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).

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"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." ABB Power T&D Company, 236 S.W.3d 43, 50 (Mo.App. W.D. 2007).

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 in 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 Id. (internal citations omitted).

The claimant testified regarding his ability to perform his job duties prior to April 9, 2001, full-time, full-duty with no restrictions or accommodations. Dr. Poetz and Gary Weimholt opined the effects of the last injury alone rendered the claimant unemployable on the open labor market. The Liquidator argued in his well-written brief the Second Injury Fund has liability for additional permanent disability benefits. As determined above, the April 9, 2001 injury, in and of itself resulted in the claimant's permanent, total disability. Therefore, any prior partial disabilities are irrelevant and the Second Injury Fund is not liable for disability benefits.


Made by:

EDWIN J. KOHNER

Administrative Law Judge

Division of Workers' Compensation