Steven Oakley v. Central Transport Incorporated

(Affirming Award and Decision of Administrative Law Judge)

Injury No.: 10-109148

Employee: Steven Scott Oakley

Employer: Central Transport Incorporated

Insurer: Cherokee Insurance

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial

Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having

reviewed the evidence and considered the whole record, the Commission finds that the

award of the administrative law judge is supported by competent and substantial evidence

and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to

§ 286.090 RSMo, the Commission affirms the award and decision of the administrative

law judge dated December 29, 2020. The award and decision of Administrative Law

Judge Maureen Byrne, issued December 29, 2020, is attached and incorporated by this

reference.

The Commission further approves and affirms the administrative law judge's allowance

of attorney's fee herein as being fair and reasonable.

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

Given at Jefferson City, State of Missouri, this _2nd_ day of July 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Çörnejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

Employee: Steven Scott Oakley Injury No. 10-109148

Dependents: $\quad \mathrm{N} / \mathrm{A}$

Employer: Central Transport Incorporated

Additional Party: Second Injury Fund

Insurer: Cherokee Insurance

Appearances: Phillip Barkett, Jr. and Joseph P. Rice, III, attorneys for Employee. Christopher Patt, attorney for Employer-Insurer. Crystal Williams, attorney for Second Injury Fund.

Hearing Date: September 30, 2020 Checked by: $\mathrm{MB} / \mathrm{kg}$

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? November 17, 2010
5. State location where accident occurred or occupational disease contracted: Scott 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 arise out of and in the course of employment? Yes
9. Was claim for compensation filed within time required by Law? Yes

Employee: Steven Oakley

Injury No. 10-109148

1. Was Employer insured by above Insurer? Yes

1. Describe what Claimant was doing and how accident occurred: Employee was on the loading dock when the door came off its track and fell on Employee knocking him into the back of a trailer.

1. Did accident or occupational disease cause death? No

1. Parts of body injured by accident: Thoracic spine, Low back, and head

1. Nature and extent of any permanent disability: See award

1. Compensation paid to date for temporary total disability: 163,982.50

1. Value necessary medical aid paid to date by employer-insurer: 291,570.75

1. Value necessary medical aid not furnished by employer-insurer: N/A

1. Employee's average weekly wages: 690.94

1. Weekly compensation rate: PPD: 418.58 & PTD: $460.63

1. Method wages computation: Agreement

1. Amount of compensation payable: See award

1. Second Injury Fund liability: Yes

1. Future requirements awarded: See award

Said payments shall be payable as provided in the findings of fact and rulings of law, and shall 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 attorneys for necessary legal services rendered to the claimant: Phillip Barkett, Jr. (12.5%) and Joseph P. Rice, III (12.5%). Phil Dormeyer's claim for an attorney's lien is agreed to be $3,890.34. This amount is deducted out of the 25% attorney's lien.

On September 30, 2020, the employee, Steven Scott Oakley, appeared in person and with his attorneys, Phillip Barkett, Jr. and Joseph P. Rice, III, for a hearing for a final award. The employer-insurer was represented at the hearing by their attorney, Christopher Patt. The Second Injury Fund was represented at the hearing by the Assistant Attorney General, Crystal Williams. At the time of the hearing, the parties agreed on certain undisputed facts and identified the issues that were in dispute. These undisputed facts and issues, together with a statement of the findings of fact and rulings of law, are set forth below as follows:

1. Covered Employer: Central Transport Inc. was operating under and subject to the provisions of the Missouri Workers' Compensation Act, and its liability was fully insured by Cherokee Insurance.
2. Covered Employee: On November 17, 2010, Steven Scott Oakley was an employee of Central Transport Incorporated and was working under the Workers' Compensation Act.
3. Accident; On November 17, 2010, the employee sustained an accident arising out of and in the course of his employment.
4. Notice: The employer had notice of the employee's accident.
5. Statute of Limitations: The employee's claim was filed within the time allowed by law.
6. Average weekly wage and rate: The employee's compensation rate for TTD and/or PTD is $\ 460.63. The compensation rate for PPD is $\ 418.58
7. Medical causation: The employee's injury was medically causally related to the accident on November 17, 2010, except the employer-insurer disputes medical causation of any injury to the lower back.
8. Medical aid furnished by the employer-insurer: The employer-insured paid the amount of $\ 291,570.75 in medical aid.
9. Temporary Disability paid by the employer-insurer: The employer-insurer paid $\ 163,982.50 representing 356 weeks for the time period of December 13, 2010 through September 19, 2017 for temporary disability benefits.
10. Unpaid mileage: The employer-insurer owes $\ 893.24 in unpaid mileage to the employee.
11. Attorney's lien: Phil Dormeyer's claim for an attorney's lien is agreed to be $\ 3,890.34.
12. Payment of the cost of treatment for the lower back by Employer-Insurer if the lower back is compensable: If the Division of Workers' Compensation finds the lower back claim to be compensable, then the employer-insurer is liable for the reasonable and necessary costs of treatment.

1. Date of Maximum Medical Improvement: What date did Employee reach maximum medical improvement?
2. Claim for future medical aid: Whether Employee is entitled to future medical care as related to the accident of November 17, 2010.

**Injury No. 10-109148**

1. Whether Employer-Insurer is entitled to a credit for an overpayment of TTD paid from the date of MMI to September 19, 2017.

1. Nature and Extent of Disability: Whether Employee is permanently totally disabled or permanently partially disabled and what is the nature and extent of that disability as it relates to the employer and the Second Injury Fund.

1. Medical causation of the Lumbar spine: Whether Employee's injury to his lumbar spine is medically causally related to the accident on November 17, 2010.

The following exhibits were offered and admitted into evidence:

1. Division of Workers Compensation Records
2. CMMP Surgical Center (prior surgery)
3. St. Mary's Health Center (prior)
4. Agreed Medical Records: Ferguson Medical Center - Dr. Jones & Dr. Bryant
5. Health Facilities Rehab
6. Agreed Medical Records: Midwest Neurosurgeons - Dr. Sonjay Fonn
7. Dr. Donald deGrange IME
8. Missouri Delta Medical Center
9. Agreed Medical Records: Advanced Pain Centers - Dr. Romero and Dr. Naushad
10. Agreed Medical Records: Regional Brain & Spine - Dr. Vaught, Dr. Reis and Dr. Guidos
11. Ferguson Medical Group - Dr. Heath
12. Cape Girardeau Metro Treatment Center
13. Dr. Joseph Yazdi IME

17A. Dr. Joseph Yazdi IME

17B. Letter to Dr. Yazdi from Phil Barkett

17C. Dr. Joseph Yazdi IME

17D. Letter to Dr. Yazdi from Phil Barkett

17E. Letter from Dr. Yazdi

17F. Deposition of Dr. Yazdi

1. Report of Susan Shea

18A. Deposition of Susan Shea

1. TTD Payments
2. Medical Payments
3. Patient Ledger - Midwest Neurosurgeons

A. Deposition Transcript of Dr. Michael Chabot with exhibits

B. Complete Medical Report of Dr. Milne including all records relied on.

C. Deposition Transcript of Benjamin Hughes with Exhibits

E. Report of Dr. Kaylea Boutwell of August 18, 2015

F. Medical and TTD Payments

**Injury No. 10-109148**

Administrative notice was taken of the contents of the Division of Workers’ Compensation’s file, in this case, for Employee.

On October 27, 2020, Employee’s attorney filed a motion to add a supplemental exhibit (Exhibit 7). The Second Injury Fund and Employer-Insurer did not have an objection to this motion. Employee’s Exhibit 7 was admitted into evidence.

#### Preliminary Information

The employee, Steven Scott Oakley, is 48 years of age, having been born on May 27, 1972. Employee went to high school at East Prairie, Missouri but left after the eleventh grade. He did not graduate. Employee went to work and lived with relatives as his mom passed away when he was young. Employee never had any vocational training or obtained his GED, although he has taken GED classes.

The first place Employee worked was for Ivy’s Drive-In located in East Prairie. He cooked and smoked the meats. He then went to work as a farm hand but could not recall where or when he worked.

Employee moved to Jefferson City, Missouri and started his own construction business with his partner, Joe Smith. They did carpentry work and remodel jobs. In 1995, Employee also went to work for the Department of Corrections as a Corrections Officer 1. He worked for the prison for about ten years. Employee would work until 3 p.m. at the prison and then would work his construction jobs in the evenings.

In 2005, Employee returned to the Southeast Missouri region. He went to work for Brenda K. Sands Company in Benton, Missouri, driving a truck. That company went out of business. Employee had various jobs after this, which mainly involved driving a truck. Employee worked for Edwards Transportation in East Prairie, Crop Production Services, and USF Holland. Employee also worked as a farm hand for Kevin Hughes during this time. Employee testified he had no problems doing the required labor for these jobs.

Employee went to work for Central Transport to obtain health benefits for his two children. Employee had to do dock work and freight work in loading the trucks, and he would also drive locally. The terminal was in Sikeston, Missouri.

When he was a child, he was diagnosed with ADHD. He took medication for a brief time but could not recall how long he took them. He has not taken medication for it as an adult. He described that it would affect him some in school in that he could get the answer but could not explain how he got it. Otherwise, he thought he was a good reader and a good writer and he learned ways to adapt.

In 2000, Employee injured his right shoulder while working at the Department of Corrections. A fight broke out and Employee was stabbed with a shank. Employee did file a workers' compensation claim. Employee treated with Dr. Timothy Galbraith. On June 29, 2000, Employee underwent a right shoulder arthroscopy. On January 18, 2001, Dr. Galbraith performed another arthroscopic procedure with decompression on the right shoulder.

After the surgeries, Employee went back to work in carpentry and did have to accommodate a little bit. He continued to have minor complaints, such as some stiffness and he could tell when it was going to rain. He was not as strong as he once was in that arm, but he learned how to use it.

Employee settled this claim for 23 % permanent partial disability with his Employer. After this injury, Employee did leave his job with the Department of Corrections, not because of his shoulder but because they were moving to a new facility and he did not want to deal with the move. It was his personal choice to leave this job.

In 2004, Employee injured his neck in an ATV accident. On February 4, 2004, Dr. William Rogers performed an anterior cervical discectomy with fusion at C5-6. The postoperative diagnosis was disc herniation at C5-6 with disc degeneration.

He indicated after this surgery, his range of motion was slightly limited but it did not affect his ability to drive and he could still work. Employee testified it got to where no one would even know he had had a surgery and did not notice it.

In 2007, Employee suffered a low back strain while working for Excel. Employee stated this injury resolved and did not bother him. He could not recall what treatment he had for it. He settled for 4 % permanent partial disability of the lumbar spine.

Employee was working on November 17, 2010 at 9:00 p.m. He had been working since 6 or 7 in the morning. He was standing on the dock waiting on a co-worker to come out of the trailer with the forklift so Employee could close the door. Employee was hit on the left side of his body by the door. Employee estimates the weight of this door as 700 to 800 pounds.

The door was removed and Employee called his supervisor Jim Dugan to report the injury. He filled out an accident report and was told to turn it in the next morning.

**Injury No. 10-109148**

Employee testified he first treated at Ferguson Medical Group following the work accident at the direction of Jim Dugan. Employee provided Dr. Gordon Jones a history of injury and reported pain in his neck and left shoulder since the door had fallen on him. X-rays taken of Employee's cervical spine showed a previous fusion at C5-6 with anterior spondylosis below the fusion at C6-7. He was prescribed Flexeril. He continued to follow up with Dr. Gordon noting minimal improvement and was prescribed Percocet and physical therapy on December 10, 2010. Dr. Jones reviewed an MRI ordered of the cervical spine and left shoulder. The MRI revealed disc bulge at C6-7, greater on the left, with severe bilateral foraminal stenosis. MRI of the left shoulder revealed tendonitis in the supraspinatus tendon and biceps. He was referred to a neurosurgeon at that time.

Employee testified that following the November 17, 2010 accident he did not leave employment with Employer and continued helping out. He would help pick up trailers and drive them to St. Louis because a co-worker, who had previously run the St. Louis route, had passed away. He primarily was picking up and dropping trailers off at this time. He testified he was able to do the work he described following the accident. Employee testified he performed this work following the accident for around a month. He testified his employment ended when a supervisor of Employer from California was visiting the facility. He testified the supervisor told him Employer would not be able to use him following the injury. While working light duty and prior to his termination, Employee testified he was being considered for a supervisor/salesman job with Employer because he would be able to perform that position.

Employee treated with Dr. Sonjay Fonn with Midwest Neurosurgeons beginning in January of 2011. Employee presented with chief complaints of neck and left arm pain and weakness. Dr. Fonn reviewed the cervical spine MRI and found large disc herniations at C4-5 and C6-7 on the left with the prior C5-6 surgically repaired level. A CT myelogram of the cervical spine was ordered and a course of epidural injections at C4-5 and C6-7 were scheduled. The CT myelogram of the cervical spine confirmed the results of the cervical MRI and three epidural steroid injections were recommended. Employee underwent C4-5 and C6-7 epidural steroid injections into the cervical spine on February 15, 2011, February 22, 2011, and March 1, 2011.

Employee reported no relief from the epidural steroid injections, and Dr. Fonn recommended surgical intervention on March 9, 2011. Dr. Fonn performed C4-5 and C6-7 anterior microdiscectomies and decompression and removal of Zenith plating at C5-6 on April 26, 2011. He returned postoperatively on May 25, 2011 noting preoperative symptoms had significantly resolved. He was placed on light duty restrictions at that time.

Dr. Fonn noted on July 20, 2011 that Employee had complaints of mid thoracic spine pain. Employee had fairly severe mid thoracic pain to palpation. An MRI of the thoracic spine was recommended. MRI of the thoracic spine taken August 1, 2011 revealed disc herniations at T4-T7 causing cord deformity. Disc herniations were also present at T3-T4 and T8-9 which did not cause cord deformity. Dr. Fonn administered epidural steroid injections into Employee's thoracic spine on October 24, 2011, November 2, 2011, and November 7, 2011. Employee reported no relief with the epidural steroid injections, and after obtaining a CT myelogram of the thoracic spine, Dr. Fonn recommended surgery on January 4, 2012.

On April 4, 2012, Employee reported to Dr. Fonn that his thoracic and cervical symptoms were resolving. Employee indicated that he had noticed his low back had been hurting since the accident with radiation into his left leg into his knee. Dr. Fonn noted he had reviewed his notes and did not see any evidence of reports of low back pain. X-rays taken of the lumbar spine revealed moderate to severe degenerative changes and loss of the disc height at the L5-S1 level. Dr. Fonn recommended an MRI of the lumbar spine which was denied by Employer. An MRI of the lumbar spine was later taken on July 10, 2012, which revealed no focal disc herniation or significant central spinal canal stenosis.

Employee underwent the injections with Dr. Fonn on August 8, 2012, August 15, 2012, and August 22, 2012 at L5-S1. He reported significant relief but not complete resolution of his symptoms after the injections.

Employee presented to Missouri Delta on November 16, 2012 reporting that he had been lying in bed when he felt something pop in his lower back and left hip. He was last seen by Dr. Fonn on November 21, 2012 where he discussed the aggravation and popping sensation in his lower back. He indicated his restrictions from Dr. Fonn while treating included no lifting over the weight of a gallon of milk and limited driving time.

Employee was referred to Dr. Abdul Naushad at Advanced Pain Center for chronic neck and lower back pain beginning December 19, 2012. He was diagnosed with failed back syndrome and prescribed Celebrex, Gabapentin, Hydrocodone, Metaxalone, and Valium. Dr. Naushad prescribed Imitrex on January 2, 2013 after Employee reported migraines following his neck surgery.

Employee continued treatment with Dr. Alfred Romero at Advanced Pain Center in February and March of 2013 for neck and back pain. He had been performing physical therapy which he reported was not helpful. He did report his physical functioning as better and his overall functioning as being a little better. Dr. Romero ordered an MRI of the cervical spine which revealed a mild disc protrusion with mild endplate spurring at C3-C4 disc desiccation. Employee reported numbness in his hands. A cervical epidural steroid injection was ordered and performed on Employee on May 9, 2013. Employee reported continued complaints following the injection and throughout follow-up appointments. His lumbar examinations were noted to be normal with mild to moderate tenderness at the facet joints. Employee treated with Dr. Romero for pain management through September of 2013.

Medical care was transferred to Dr. Kevin Vaught at Regional Brain and Spine beginning August 15, 2013. Employee's surgical history following the accident was reiterated, and he reported complaints of headaches and memory loss since the accident. He reported he had low back pain prior to the accident due to degenerative disc disease, but no lower extremity pain. His complaints included progressive low back pain and bilateral inguinal pain with left leg pain. Dr. Vaught noted that due to the length of time between the evaluation and accident, it was impossible to know whether his low back pain was caused from the November 17, 2010 accident. MRIs to all affected body parts, physical therapy for the SI joint, and a possible SI joint injection were recommended. On August 19, 2013 Dr. Vaught opined Employee was not at

**Injury No. 10-109148**

Maximum medical improvement and not cleared from a neurosurgical standpoint to return to work.

Dr. Christopher Reis of Regional Brain and Spine evaluated employee on September 18, 2013. Occipital nerve blocks for headaches were recommended, and he noted Employee may be a candidate for a cervical spinal cord stimulator for radiating arm pain. Dr. Annamaria Guidos of Regional Brain and Spine conducted a bilateral upper extremity EMG/NCS on September 30, 2013. The study was consistent with no evidence of an acute cervical radiculopathy or ulnar neuropathy. An MRI of Employee's left shoulder taken the same day revealed moderate left acromioclavicular osteoarthritis and mild to moderate left supraspinatus, infraspinatus, and subscapularis tendinopathy without discrete tear.

Myelograms of the cervical, thoracic, and lumbar spine were taken by Dr. Vaught on October 3, 2013. The myelograms demonstrated no significant impingement upon the thecal sac. There was no compression deformity or listhesis involving the cervical, thoracic, and lumbar spine. A CT of the thoracic spine revealed minor disc bulges but no evidence of stenosis with a solid thoracic fusion. A CT of the lumbar spine revealed no significant disc bulges or stenosis.

Dr. Vaught reviewed the imaging studies and noted findings of osteoarthritis and bursitis with tendinopathy in the left shoulder. An MRI of the brain to evaluate for memory loss was recommended. Dr. Vaught noted the lumbar imaging findings were benign and recommended physical therapy for SI joint dysfunction. Dr. Vaught found no compelling indications for neurosurgical intervention regarding the low back. Dr. Reis provided occipital nerve blocks as previously recommended on October 25, 2013. An MRI of the brain obtained by Dr. Vaught revealed no abnormality to suggest traumatic injury.

Employee testified that he continues to have pain in his low back, which goes down the left leg into his knee and foot. He described it as a sharp, stabbing pain. He has a dull achy pain in his hip and continues to have numbness in his right arm down to the tips of his fingers. For his neck, Employee described it as a rusty hinge, meaning it is real stiff and he has limited movement to the left.

Employee has trouble with lifting, squatting, twisting and bending at the waist. Employee has to lean to the left side when he is sitting to relieve pressure. He can climb stairs but it hurts as his muscles start tightening up. He has trouble with concentration and memory. He can raise his arms above his shoulder but it hurts and he cannot hold them up very long.

Employee does light house work and can walk up to a tenth of a mile. He has trouble sleeping and only gets about two hours at a time before he has to get up and stretch and then lays back down.

If Employee has to go somewhere, he will get up early as he has to move around to loosen up. He alternates sitting, standing, and walking during the day and lays down when his back pain gets bad. He will lie down two to three times per day for fifteen to twenty minutes at a time. He does not take any medication as he tries to manage it without it as he had a problem.

with prescription pain medication and had to go to a Methadone clinic to get off of them. He paid for this treatment out of his own pocket.

Employee has ringing in his ears all of the time but never got any treatment for that. He also continues to have headaches, two to three a week. The migraines center in the back and top of his head and affects his vision so that he has to lay down and close his eyes. They can last several hours.

Employee has trouble with reading, following instructions in writing and with math. Employee stated he was pretty sharp in math with his construction business before the primary injury.

Employee did not return to work as he was still having pain and he testified no doctor has ever cleared him to go back to work. Employee received TTD benefits up until September 19, 2017.

Mr. Ivie resides in Drummond, Tennessee but used to live in East Prairie, Missouri. He was Employee's coach and has known Employee for thirty-five years. Mr. Ivie also owned the drive in Employee used to work for. He drove up from Tennessee to pick up Employee and bring him to Cape Girardeau for the hearing.

He testified Employee fidgeted in his seat the whole time as he cannot sit still. He currently allows Employee to live in his home even though he is not making payments. Mr. Ivie states Employee has problems with his memory as he has noticed he can call him and ask Employee to do something and fifteen minutes later Employee did not remember what was asked of him.

On October 3, 2011, Dr. Donald deGrange evaluated Employee on behalf of Employer. Employee reported that after his prior cervical surgery in 2004, he was able to return to construction work approximately six weeks after the surgery and did not have any symptoms until the November 2010 accident. Dr. deGrange opined that Employee's accident was the prevailing factor in Employee's cervical disc herniation at C6-7 and possibly the disc bulges at the thoracic level. However, Dr. deGrange did not feel there was any indication for a thoracic surgery and did not think the revision surgery at C4-5 was indicated based on the minimal disc bulge at that level. Dr. deGrange recommended physical therapy and some injections for Employee's thoracic complaints.

Dr. deGrange rated Employee with 15 % permanent partial disability in his cervical spine due to the work accident of November 17, 2010. He further opined Employee should be

**Injury No. 10-109148**

restricted from heavy overhead work, forceful pushing or pulling over 100 pounds and repetitive work above shoulder level.

Dr. David Lange is an orthopedic surgeon. Dr. Lange performed an independent medical evaluation on November 1, 2012 following Employee's injury with Employer. Employee reported complaints of pain in the left shoulder, trapezius area, and clavicle. He reported inability to raise the shoulder due to pain. He reported to Dr. Lange his primary complaint was his left low back and left buttock which had pain down to his left thigh and into the sole of his left foot.

Employee reported 8 out of 10 discomfort during examination. Dr. Lange noted positive Waddell's signs with Employee moaning and groaning on all components of the examination, despite being in no acute distress. Spurling and straight leg testing were negative.

Following review of the medical treatment records and imaging studies, Dr. Lange opined it was reasonable to assume Employee sustained injury to the C6-7 and C4-5 discs during the accident and surgery was necessary. He did not opine regarding the thoracic surgery. Dr. Lange did not believe the low back and left lower extremity problems Employee discussed were related to his employment with Employer. Dr. Lange noted there were no records concurrent with the date of injury to suggest such symptoms.

Dr. Lange could not state with certainty whether Employee had reached maximum medical improvement in regard to the neck or thoracic areas. He noted Employee's suggestion of significant symptoms in the neck, and recommended CT scan of the neck to assess whether bony healing had occurred following the cervical spine surgery.

Dr. Lange opined that if Employee had a sit-down job with perhaps the ability to get up and move around occasionally, he would be able to return to work. Dr. Lange recommended a maximum lifting restriction of 20 pounds on an occasional basis.

Dr. Milne was asked to evaluate Employee's left shoulder. He saw Employee on May 6, 2014. Dr. Milne examined Employee, reviewed medical records and obtained a history from Employee. Dr. Milne opined that most of Employee's symptoms were more neurologic in nature and he did not see any evidence of rotator cuff damage. While Dr. Milne did not think the work injury was the prevailing factor in his left shoulder complaints, he did recommend further evaluation of his cervical spine to determine whether that could be causing the left shoulder complaints. Dr. Milne stated Employee is still on work restrictions as a result of all of his spine work. Dr. Milne did not think Employee needed any restrictions as it related to the left shoulder and did not believe any permanent partial disability was attributable to the work-related injury.

Dr. Boutwell evaluated Employee on August 18, 2015. From a pain management standpoint, she did not see any indication for any invasive procedures for pain management and indicated Employee should only be given conservative treatments based on his long-term use of

Employee: Steven Oakley

Injury No. 10-109148

opioids and dependency. She further opined that many of Employee's doctors had expressed a concern of Employee's use of the prescription medication.

**Dr. Michael Chabot**

Dr. Michael Chabot, an orthopedic surgeon, evaluated Employee at the request of Employer. He first examined Employee on September 17, 2015. After reviewing the medical records, performing a physical exam, and obtaining a history from Employee, Dr. Chabot opined that the work injury was the prevailing factor in the development of disc herniations at C4-5 and C6-7. Dr. Chabot believed that the cervical fusion performed by Dr. Fonn was reasonable and necessary. He disagreed with Dr. deGrange's opinion that the C4-5 fusion was not related to the work injury. Dr. Chabot did not think a thoracic fusion was indicated as it relates to his work injury.

Dr. Chabot also did not think Employee's low back pain radiating to the left lower extremity was related to his work injury. Dr. Chabot went on to say that "[w]hile there's some documentation of back complaints, it appears that these back complaints were focused in the upper thoracic spine, not the lumbar spine." However, Dr. Chabot did find Employee suffered a low back strain as a result of the work injury but did not assign any permanent disability to this injury. He recommended restrictions of thirty-five pound lifting limit and limit overhead lifting. Dr. Chabot rated Employee's cervical spine at 50% permanent partial disability as a result of the work injury, plus 10% permanent partial disability as it relates to the prior cervical fusion. Dr. Chabot rated the thoracic back strain injury with chronic myofascial pain at 8% permanent partial disability as it related to the work injury. Employee was placed at maximum medical improvement for his low back strain and his neck injury as of September 17, 2015.

Dr. Chabot was provided additional records and issued another report dated August 3, 2017. In that report, he agreed with the recommendation of Dr. Yazdi that a CT of the cervical spine with reconstructions was a reasonable diagnostic study to perform. After this study was performed, it was provided to Dr. Chabot. After review, Dr. Chabot issued another report dated February 15, 2018. Dr. Chabot thought the CT scan showed a satisfactory fusion at C4-5, C5-6 and C6-7. He concluded that his prior opinions remained unchanged.

**Dr. Joseph Yazdi**

Dr. Joseph Yazdi is a neurosurgeon licensed to practice in the state of Missouri. Dr. Yazdi performed an independent medical on September 20, 2016.

Dr. Yazdi noted that Employee sustained a C5-6 disc herniation in 2004 in which he underwent anterior cervical discectomy and fusion with plate fixation.

Dr. Yazdi personally reviewed MRIs of the cervical spine including one taken September 30, 2013. He testified that although the radiologist interpreted a solid fusion from the cervical spine surgery with Dr. Fonn, he disagreed with the reading and believed there was pseudoarthrosis at C6-7. Dr. Yazdi also reviewed MRIs of the lumbar spine taken on May 25, 2006 and July 10, 2012. He interpreted the first lumbar MRI to show Schmorl's node into the

**Injury No. 10-109148**

Inferior endplate of L1 and mild disc bulge at L5/S1. He interpreted mild degenerative changes with disc bulge at L4-5 and L5-S1 on the second one with definite progression of degenerative changes compared to the prior.

Dr. Yazdi diagnosed Employee with a concussion, C4-5 and C6-7 disc herniations and lumbar discogenic pain and radiculopathy as a result of the November 17, 2010 work injury.

Dr. Yazdi attributed Employee's memory complaints to the concussion sustained in the work injury for Employer. Dr. Yazdi believed Employee had pseudoarthrosis at C6-7 in the cervical spine and required a CT scan to further assess the area. Dr. Yazdi testified the November 17, 2010 injury did not cause the need for treatment to the thoracic spine. He believed the thoracic spine condition was preexisting and not aggravated by the November 17, 2010 injury.

Dr. Yazdi believed Employee's lumbar symptoms were different following the November 17, 2010 work injury because Employee reported being asymptomatic prior to the injury and was symptomatic at the time of the injury. Dr. Yazdi testified that the medical records did not document complaints of lower back pain until March or April of 2012. Dr. Yazdi opined Employee had not reached maximum medical improvement and was unable to work since the day of the work injury.

Dr. Yazdi issued a second report on April 18, 2018. Dr. Yazdi then issued a report on June 6, 2018. Dr. Yazdi testified this independent medical evaluation was identical to the April 18, 2018 report, with a section added in addressing the prevailing factor at the request of Employee's attorney.

Dr. Yazdi was provided Dr. Chabot's evaluations as well as a CT scan of the cervical spine from January 4, 2018 which he felt demonstrated pseudoarthrosis at C6-7.

Dr. Yazdi opined that Employee had not fully recovered from the concussion because he continued to have memory loss, confusion and sensitivity to light. He felt that those symptoms were permanent but that he was at MMI.

He stated that Employee should take notes and be allowed to refer to them as needed. He needed to work at his own pace with limited exposure to very bright lights. He recommended suboccipital and paraspinal trigger point injections for headaches along with instructions on relaxation for residual type headaches. He felt there was a 25% permanent partial disability of the body of the whole with regard to the concussion.

Based upon the CT scan of the cervical spine, Dr. Yazdi opined the C6-7 psuedoarthrosis was responsible for Employee's neck, shoulder, and left arm symptoms. He did not believe Employee had reached maximum medical improvement at the cervical spine and recommended a revisionary C6-7 fusion. Assuming Employee underwent no additional treatment, Dr. Yazdi rated his cervical disability at 25% as a result of the November 17, 2010 work injury. He testified Employee had 5% preexisting disability as a result of the 2004 cervical fusion, and that the prior fusion had a role in causing the additional two-level fusion.

Employee: Steven Oakley

Injury No. 10-109148

Dr. Yazdi placed Employee at maximum medical improvement for the thoracic spine. He testified Employee sustained 10% disability to the thoracic spine based upon the medical treatment he received.

Mr. Oakley had lower back pain and Dr. Yazdi opined that Mr. Oakley was not at MMI and recommended medial branch blocks of L3-4 as well as L5 disc. If there was no treatment for the lumbar spine, Dr. Yazdi opined that Mr. Oakley had a 25% permanent partial disability of his lumbar spine with restrictions of no lifting over 25 pounds, no pushing and pulling over 25 pounds and 5 minutes of rest per hour.

Dr. Yazdi provided restrictions regarding the cervical and lumbar spines of no lifting over 25 pounds, no pushing/pulling over 25 pounds, and five minutes of rest per hour as needed.

At the request of Employee's attorney, Dr. Yazdi authored a supplemental letter on September 26, 2018 addressing whether Employee was permanently and totally disabled. Dr. Yazdi was provided the vocational rehabilitation report of Susan Shea for review. Based upon Susan Shea's vocational report, Dr. Yazdi opined Employee was permanently and totally disabled.

Dr. Yazdi opined that Employee was permanently and totally disabled due to a combination of Employee's previous injuries in combination with the November 17, 2010 work injury.

Vocational experts

Susan Shea

Employee was evaluated by Susan Shea on June 21, 2018. Ms. Shea testified that, based upon several factors, Employee was not capable of being employed in any work which is typically performed in the national labor market. She based this opinion upon Employee's less than high school education, lack of transferable skills, possible need for additional treatment and surgery, cognitive deficits, and no skills which would motivate an employer to accommodate him to work. She opined Employee's inability to obtain employment was a result of the November 17, 2010 work injury in conjunction with his previous injuries.

Ms. Shea testified that Employee's prior employment history included jobs which were demanding to the body and required at least medium level work. She noted Employee's residual pain in his left shoulder blade, cervical, thoracic, and lumbar spine, and cognitive deficits. She testified Employee was an "average everyday Joe," and that employers would not provide special accommodations for him to be employed.

Ms. Shea testified she administered the wide range achievement test to Employee, a generally accepted vocational test. Employee's reading and spelling were at a fifth grade level and his mathematics were at a third grade level. She testified that Employee's performance levels at his job were higher than his testing results, which was typical considering he had been out of school for some time. Ms. Shea testified it is possible that the testing results could be manipulated. She testified that Employee's prior job as a truck driver required higher skills than

14

Employee: Steven Oakley

Injury No. 10-109148

shown on the wide range achievement test. She testified the wide range achievement test did not test for cognitive deficits.

Ms. Shea indicated in her report that Employee's restrictions included no lifting more than 25 pounds, no pushing or pulling more than 25 pounds, and need to rest for 5 minutes every hour, consistent with Dr. Yazdi's restrictions. She acknowledged on cross examination that Employee's treating doctor, Dr. Vaught, did not provide any permanent restrictions. She testified she did not include Dr. Chabot's restrictions in her report because she did not review Dr. Chabot's opinions while authoring her evaluation.

Ms. Shea noted that Employee had been unable to return to work in any capacity. Ms. Shea testified that Employee's anxiety and depression preexisted the November 17, 2010 work injury. She testified these diagnoses can be an obstacle to employment and can cause cognitive issues.

Benjamin Hughes

Employee was evaluated by vocational rehabilitation counselor Benjamin Hughes, who authored a report dated May 15, 2019.

Mr. Hughes testified that he reviewed treatment records pertaining to Employee's preexisting cervical and right shoulder conditions. This included Employee compensating for his previous right shoulder injury by using his left shoulder more.

Mr. Hughes documented that Employee did not obtain a high school diploma, and had dropped out of GED preparation classes due to monetary issues. Mr. Hughes noted that Employee's employment history included various labor jobs, 10 years as a Corrections Officer, and 20 years in the construction industry during which time he operated his own business for 15 years.

Mr. Hughes testified he administered the wide range achievement test to Employee. He testified Employee did quite well and his word reading was better than a high school equivalent. He testified his math computation skills were at an eighth grade level. Overall, Mr. Hughes believed Employee's testing scores did not present any hindrance to his employability. He testified Employee's above high school reading level set him apart from other individuals.

Mr. Hughes testified he questioned Employee about his daily and recreational activities. Employee reported being able to ride four-wheelers on a couple of occasions per year and enjoyed small furniture and painting projects. He testified Employee had stopped riding horses, hunting, and limited his social interactions following the November 17, 2010 injury. Mr. Hughes testified Employee was able to do cleaning and other around-the-house activities but could not do yardwork. He testified that on one occasion during the 90-minute evaluation, Employee stood up and bent over, and at the end of the evaluation Employee stood up quickly and walked briskly without appearing to be in pain.

Mr. Hughes opined Employee would be capable of sedentary or light work. Mr. Hughes testified that it is very possible Employee could obtain a high school equivalency. He testified that Employee's lengthy gap in employment could make it more challenging to obtain employment, but a number of employers would be interested in hiring Employee based upon his strong resume of past employment. Mr. Hughes testified if Employee obtained a high school

**Injury No. 10-109148**

equivalency, he could obtain additional job positions such as hotel clerk, information clerk, or work in the construction industry in cost estimating.

Certified rehabilitation counselor Terry Cordray authored a vocational evaluation on May 15, 2019. Mr. Cordray performed a file review which included Employee's medical records, educational background, employment background, and deposition testimony.

Mr. Cordray opined that Employee would be able to perform work which limited lifting from 20 to 35 pounds and allowed him 5 minutes of rest per hour. He testified that Employee would be able to perform a number of jobs within those restrictions such as various casino jobs, custodian, or light packing work. Mr. Cordray testified that with Employee's restrictions, Employee had access to the light and sedentary portion of the labor market which accounts for 50% of the labor market. Mr. Cordray testified that Employee could obtain employment within any of the doctor's restrictions provided.

Mr. Cordray noted in his report that Employee attended high school until the 12th grade but did not graduate from high school. He testified that Employee had made no attempt to obtain a GED or high school equivalency. He did not believe the fact Employee had been out of the workforce for nine years at the time of the deposition would prevent Employee from obtaining employment. When presented with Employee's wide range achievement test scores provided by Benjamin Hughes, Mr. Cordray testified that Employee would be capable of obtaining his GED and would be an extremely positive candidate.

Mr. Cordray reviewed Employee's employment history and identified a history of semi-skilled medium and heavy strength demand work. He noted that Employee's skills as a correctional officer and construction worker transferred to light and sedentary jobs as a security guard, surveillance systems monitor, and retail sales jobs. When contrasting his report to Susan Shea's report, Mr. Cordray disagreed that Employee had no particular skills and noted his history of performing semi-skilled work.

Mr. Cordray testified that he did not believe there was any combination of preexisting conditions with the work injury of November 17, 2010 that resulted in disability.

In this case, Employee testified that he had never been released to return to work by any doctor and continued to receive TTD benefits from his employer until September 19, 2017. He further testified that he never returned back to work because he was in too much pain. Dr. Chabot placed Employee at maximum medical improvement as of September 17, 2015. However, Employee continued to be evaluated and underwent further imaging beyond that point.

Employee: Steven Oakley

In his April 2018 report, Dr. Yazdi indicated Employee was not at maximum medical improvement for his cervical spine or his lumbar spine and recommended further treatment for both conditions.

Although Employee did not receive any further treatment, I find that he was continuing to seek evaluations and unable to return to work as of September 17, 2015. Based on all of the evidence present, including the credible testimony of Employee, I find that Dr. Yazdi's opinion regarding when Employee reached maximum medical improvement, is more credible than the opinion of Dr. Chabot on this issue. Furthermore, based on the recommendations of Dr. Yazdi, Employee was still in the rehabilitative process until September 19, 2017 and entitled to TTD benefits until such time.

Employee did not reach Maximum Medical Improvement until September 19, 2017, therefore Employer is not entitled to a credit for overpayment of TTD. Employer's request for a credit for overpayment of TTD is therefore denied.

**Issue 2. Claim for future medical aid: Whether Employee is entitled to future medical care as related to the accident of November 17, 2010.**

Pursuant to RSMo. 287.140.1, the employer is required to provide all medical, surgical, chiropractic, hospital treatment, including nursing, custodial, ambulance and medicines 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. *Poole v. City of St. Louis*, 328 S.W. 3d 277 (Mo. App. E.D. 2010).

Dr. Yazdi recommended suboccipital and paraspinal trigger point injections for headaches along with instructions on relaxation for residual type headaches. He also made a recommendation regarding future medical treatment of the lumbar spine. He recommended medial branch blocks of L3-4 as well as L5 disc. Dr. Chabot and Dr. Lange did not recommend any future medical care.

Based on all of the evidence presented, I find the opinion of Dr. Yazdi more credible than the opinions of Dr. Lange and Dr. Chabot on the issue of future medical care. I further find that the evidence supports a finding that Employee will require future medical treatment in the form of trigger point injections for headaches along with instructions on relaxation for residual type headaches and medial branch blocks of L3-4 as well as L5 disc. Based on the evidence and my above findings, Employer-Insurer is therefore directed to furnish additional medical treatment related to Employee's on or about November 17, 2010 work-related injury in accordance with Section 287.140 RSMo.

**Issue 4. Nature and Extent of Disability: Whether Employee is permanently totally disabled or permanently partially disabled and what is the nature and extent of that disability as it relates to Employer and the Second Injury Fund.**

Section 287.020.7 of Missouri Revises Statutes defines total disability as: "The inability to return to any employment and not merely inability to return to the employment in which the employee was engaged in at the time of the accident." The test for permanent and total disability is whether an employee is able to competently compete in the open labor market given his or her

**Injury No. 10-109148**

condition and situation. *Messex v. Sachs Elec. Co.*, 989 S.W.2d 206, 210 (Mo.App. E.D. 1999). The critical question in that determination is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given [his] present physical condition. *Molder v. Missouri State Treasurer*, 342 S.W.3d 406, 411 (Mo.App. W.D. 2011) (internal quotation and citations omitted). If an employer would be expected to hire that individual, it must still be shown whether the employee, in his present physical condition could be reasonably expected to perform the work for which he is hired. *Thornton v. Haas Bakery*, 858 S.W.2d 831, 834 (Mo.App. 1993).

This test "does not require that the claimant be completely inactive or inert." *Pavia v. Smitty's Supermarket*, 118 S.W.3d 228, 234 (Mo.App. S.D.2003) (quoting *Sifferman v. Sears, Roebuck and Co.*, 906 S.W.2d 823, 826 (Mo.App. S.D.1995)). Furthermore, the determination of disability is not purely a medical question: "The testimony of the claimant or other lay witnesses as to facts within the realm of lay understanding can constitute substantial evidence of the nature, cause, and extent of the disability, especially when taken in connection with, or where supported by, some medical evidence." *Grauberger v. Atlas Van Lines, Inc.*, 419 S.W.3d 795 (Mo. App., 2013).

Following the November 17, 2010 work injury, Employee received treatment or was evaluated by a number of physicians as evidenced by the record. Of those physicians, Dr. Fonn, Dr. Lange, Dr. deGrange, Dr. Chabot, and Dr. Yazdi addressed Employee's ability to perform work.

Dr. Fonn performed surgery on Employee's cervical spine on April 26, 2011. On May 25, 2011, Dr. Fonn advanced Employee to a 20-pound weight limit with no excessive bending or stooping at his surgical sight. Dr. Fonn did not provide any other restrictions while treating Employee. Dr. Fonn's opinions were made in close proximity to Employee's initial surgery.

Following Employee's cervical surgery and prior to his thoracic surgery, Dr. deGrange evaluated Employee's condition and addressed work restrictions. Dr. deGrange believed Employee should be restricted from heavy overhead work, and placed a restriction of no pushing or pulling greater than 100 pounds. Dr. deGrange's opinions do not support Employee's contention he is permanently and totally disabled. The opinions, however, were made prior to Employee's thoracic spine surgery and alleged lumbar spine symptoms.

Employee was evaluated by Dr. Lange on November 1, 2012. Dr. Lange evaluated Employee for his cervical and thoracic spine following his surgical procedures and after Employee's reported lumbar spine symptoms developed. When asked to address Employee's disability, Dr. Lange opined Employee was not currently disabled for all occupations and could perform a sit-down job with the ability to get up and move occasionally.

In support of his contention that he is permanently and totally disabled, Employee offered the deposition testimony of Dr. Yazdi and vocational rehabilitation counselor Susan Shea. Dr. Yazdi evaluated Employee's cervical spine, thoracic spine, lumbar spine, and cognitive issues. In his April 23, 2018 report, Dr. Yazdi addressed Employee's permanent work restrictions. Dr. Yazdi placed restrictions of no lifting over 25 pounds, no pushing or pulling over 25 pounds, and five minutes of rest per hour as needed for Employee's cervical spine, lumbar spine, and cognitive issues.

**Injury No. 10-109148**

Susan Shea testified in her deposition that she did not believe Employee was capable of being employed in any work as typically performed in the open labor market. In support of her conclusions, Ms. Shea noted Employee had less than a high school education, no particular skills that would motivate an employer to make any accommodations to allow Employee to work, no direct transferable skills, and no work available within Dr. Yazdi's assigned work restrictions. Dr. Yazdi was provided Ms. Shea's vocational report and asked to author an opinion of whether Employee was permanently and totally disabled. Following receipt of Ms. Shea's vocational report, Dr. Yazdi testified his opinion was Employee was permanently and totally disabled due to a combination of Employee's injuries from the November 17, 2010 work injury and previous disabilities.

Employer offered the testimony of vocational expert Benjamin Hughes into evidence in support of Employee being able to obtain employment in the open labor market. Mr. Hughes believed Employee's vocational testing scores indicated he could obtain a high school equivalency. Based upon the restrictions Mr. Hughes reviewed, he opined Employee is capable of performing sedentary or light work. Assuming Employee did not obtain a high school equivalency, Mr. Hughes believed Employee could perform jobs including cashier, fast food worker, parking lot attendant, or counter clerk. If Employee did obtain his high school equivalency, Mr. Hughes believed he was capable of working as a hotel clerk, information clerk, or cost estimating in construction.

The Second Injury Fund offered the testimony of vocational expert Terry Cordray into evidence in support of Employee being able to obtain employment in the open labor market. Mr. Cordray reviewed Employee's medical records, educational and employment background, and Susan Shea's vocational report. Mr. Cordray testified Employee was capable of obtaining employment within any of the physician's restrictions. He believed Employee could obtain employment in a number of jobs such as casino worker, custodian, or light packing work. He testified Employee had access to 50% of the labor market and was capable of light or sedentary work with his restrictions. He testified Employee would be an extremely positive candidate for obtaining his high school equivalency.

Dr. Fonn's opinions were made in close proximity to Employee's initial surgery. Furthermore, Dr. deGrange's opinions were made prior to Employee's thoracic spine surgery and alleged lumbar spine symptoms. Therefore, the opinions of Dr. Fonn and Dr. deGrange will not be used in the credibility assessment of the doctors.

Employee offered testimony regarding the impact his injuries have had on his daily ability to function. Based on all of the evidence presented, I find that Employee was a credible witness. Furthermore, Employee's testimony supports a conclusion that Employee will not be able to compete in the open labor market. With his physical limitations it is unlikely any employer would reasonably be expected to hire the employee in his present physical condition.

Based on all of the evidence presented, including the credible testimony of Employee, I find that the opinion of Dr. Yazdi is more credible than the opinions of Dr. Chabot and Dr. Lange regarding Employee's work restriction and the ability to perform work. Furthermore, I find that the opinions of Dr. Yazdi and Ms. Shea are more credible than Dr. Lange, Dr. Chabot, Mr. Hughes, and Mr. Cordray on the issue of whether Employee is employable in the open labor market. Based on all of the evidence presented, including the credible opinions of Dr. Yazdi and

**Injury No. 10-109148**

Ms. Shea, I find that Employee is permanently and totally disabled from all gainful employment as a result of a synergistic combination of Employee's preexisting permanent partial disabilities to his cervical spine, right shoulder, and low back, and the disability arising from the accident of November 17, 2010. Based on the credible testimony of Employee and the supporting medical and vocational evidence, I find that no employer in the usual course of business would reasonably be expected to employ the employee in his present physical condition and reasonably expect the employee to perform the work for which he is hired.

Based upon the evidence, I find that as a direct result of the last injury, Employee sustained a permanent partial disability of 10% of the body as a whole referable to the concussion (40 weeks). I further find that Employee sustained a permanent partial disability of 25% of the body as a whole referable to the cervical spine (100 weeks). I also find that Employee sustained a permanent partial disability of 5% of the body as a whole referable to the thoracic spine (20 weeks). I also find that Employee sustained a 5% permanent partial disability to the body as a whole referable to the lumbar spine (20 weeks). Based on all of the evidence presented, including the medical records, expert opinions and Employee's credible testimony, I find that the last injury alone did not cause Employee to be permanently and totally disabled. Furthermore, I find that Employer-Insurer is directed to pay the employee 418.58 per week for a total of 180 weeks. This equals a total of 75,344.40 in permanent partial disability benefits.

Based on a review of the evidence, I find that Employee's preexisting disabilities to his body as a whole, referable to his cervical spine, right shoulder, and lumbar spine constitute a hindrance or obstacle to his employment or to obtaining re-employment. I find that the prior injuries combined synergistically with the primary injuries, to cause Employee's overall condition and symptoms. Based on the supporting medical evidence and Employee's testimony, I find that Employee is permanently and totally disabled as a result of the combination of his preexisting injuries and condition and the November 17, 2010 injuries.

Based on the evidence presented, I find that Employee reached maximum medical improvement on September 19, 2017. Employer-Insurer's permanent partial disability payments would therefore have commenced on September 20, 2017, and would have continued for 180 weeks through March 2, 2021.

The Second Injury Fund is liable for the full amount of the permanent total disability benefits on March 3, 2021. The permanent total disability rate is 460.63 and the permanent partial disability rate is 418.58. Therefore, the Second Injury Fund is liable for the differential of $42.05 per week for the time period of September 20, 2017 through March 2, 2021, for a total of $7,569.

The Second Injury Fund is therefore directed to pay the employee the sum of $460.63 per week commencing on March 3, 2021 and said weekly benefits shall be payable during the continuance of such permanent total disability for the lifetime of the employee pursuant to Section 287.200.1, unless such payments are suspended during a time in which the employee is restored to his regular work or its equivalent as provided in Section 282.200.2.

As stipulated in the undisputed facts, the employer-insurer is directed to pay $893.24 in unpaid mileage to the employee.

**Issue 5. Medical causation of the Lumbar spine: Whether Employee's injury to his lumbar**

*Page 20*

**Injury No. 10-109148**

Employee must show a causal connection between Employee's work accident to his injury and disability. Causation "must be established by scientific or medical evidence showing the cause and effect relationship between the complained of condition and the asserted cause." *Williams v. DePaul Health Ctr.*, 996 S.W.2d 619, 631 (Mo. Ct. App. 1999), *overruled on other grounds by Hampton v. Big Boy Steel Erection*, 121 S.W.3d 220 (Mo. 2003) (citations omitted).

Dr. Lange, Dr. Chabot, and Dr. Yazdi addressed medical causation regarding Employee's low back injury.

Dr. Lange did not believe the low back and left lower extremity problems Employee discussed were related to his employment with Employer.

Dr. Chabot testified that the back strain he referenced in his September 17, 2015 Independent Medical Evaluation referred to the thoracic spine not lumbar spine. He testified from review of the lumbar spine MRI there was no evidence of acute disc injury or herniation. He acknowledged that based upon Employee's mechanism of injury, it was possible Employee sustained a simple strain injury to the lumbar spine.

Dr. Yazdi believed Employee's lumbar spine injury was a result of the November 17, 2010 work injury. Based on all of the evidence presented, including Employee's credible testimony, I find the opinion of Dr. Yazdi is more credible than the opinion of Dr. Lange and Dr. Chabot on the issue of medical causation regarding Employee's low back injury. I find that Employee's low back injury was medically causally related to Employee's work accident on November 17, 2010. I find Employee's work accident was the prevailing factor in causing Employee's low back sprain.

The employer-insurer stipulated that if the lower back was compensable they would be liable for reasonable and necessary costs for treatment. Therefore, the employer-insurer is directed to pay for the reasonable and necessary costs of the treatment of the low back.

Phillip Barkett, Jr. and Joseph P. Rice, III, attorneys at law, are allowed a fee of 25% of all sums awarded under the provisions of this award for necessary legal services rendered to the employee. The amount of this attorney's fee shall constitute a lien on the compensation awarded herein.

Interest on all sums awarded hereunder shall be paid as provided by law.

This award is subject to a child support lien.

The medical fee dispute portion of this case has been bifurcated and was therefore not addressed at this hearing.

*Page 21*

I certify that on 12-29-20

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


Made by:

Maureen

Byrne

Digitally signed by

Maureen Byrne

Date: 2020.12.18 10:05:39

$-06^{\prime} 00^{\prime}$

Maureen Byrne

Administrative Law Judge

Division of Workers' Compensation