Jonathan Parker v. Asplundh Tree Expert Company

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In explaining the requirements of the second condition, the Court held that an employee must show that "the primary injury results in PTD when combined with all preexisting disabilities that qualify under one of the four eligibility criteria listed in [§287.220.3(2)(a)]."2 The Court specifically and unequivocally rejected the employee's argument that the second condition can be met by showing that the employee's primary injury resulted in PTD when combined with all of the employee's disabilities "regardless of whether those disabilities meet the first condition."3

Pursuant to the Court's mandate, we issue this award.

Employee, a tree trimmer, suffered recurrent neck pain from job duties that required him to do heavy lifting and repeatedly look up to trim trees. Employee sustained an injury on June 12, 2014 when he turned his head and felt a sharp pain while driving a company truck. Dr. James Stuckmeyer evaluated employee's disability related to the June 12, 2014 injury as 35 % to the body as a whole related to the neck. Consistent with our original June 26, 2019 award and employee's settlement with employer/insurer, we find that employee sustained 40 % PPD to the body as a whole referable to the neck related to his primary injury.

With respect to employee's preexisting disabilities, and mirroring with the factual findings included in our original award, we find as follows:

- Employee clearly sustained a preexisting injury from his accident on March 8, 2014, for which he received 25 % permanent partial disability at the 232 -week level of the right upper extremity. This exceeds the 50 weeks necessary for $\S 287.220$ to apply.

- Dr. Stuckmeyer did not assign any specific disability to employee's back condition or provide any specific restrictions, nevertheless employee credibly testified as to how his back condition affected him prior to the June 2014 injury and how it impacted his ability to sit, stand and walk.

- Dr. Stuckmeyer made a determination that looking at employee's difficulties with his back and the complaints, specifically pain in the lumbar spine and radiculopathy down the left side, as well as daily back pain, and his knee pain, that he was totally disabled due to a combination of his preexisting conditions of the back and the complaints with his shoulder injury combined with the last accident to his cervical spine of June 14, 2014.

- Employee's vocational expert, Mr. Michael Dreiling, was not very specific in either his vocational report or his deposition. However, it is clear that he was taking employee's entire situation, including his neck and shoulder as well as back and legs, into consideration when he determined that employee is unemployable in the open labor market.

- It is clear that the employee would have had great difficulty safely trimming trees if he stayed within the restrictions provided by Dr. Stuckmeyer with regards to his neck. Therefore, he was likely occupationally disabled as a tree trimmer from those restrictions alone. However, the additional restrictions placed on his dominant right upper

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[^0]: ${ }^{2}$ Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 182 (Mo banc, 2021).

${ }^{3} \mathrm{Id}$. (emphasis added).

extremity when combined with the restrictions on his neck and limitations stemming from his back and legs resulted in his total disability.

- Dr. Stuckmeyer and vocational expert Mr. Dreiling both opined the employee is permanently and totally disabled as a result of a combination of all his disabilities. We find these opinions credible and further find there is no contrary evidence that would contradict such findings. ${ }^{4}$

Based on the above, we find that employee is permanently and totally disabled due to a combination of qualifying and non-qualifying preexisting disabilities, as defined by § 287.220.3(2)(a) together with disability attributable to his June 12, 2014 primary injury.

Is the SIF liable under § 287.220.3(2) when employee's PTD results from the combination of non-qualifying disabilities with disability attributable to employee's primary injury and one or more qualifying preexisting disabilities?

No party disputes that employee's June 12, 2014 accident resulted in disability and qualified as a primary injury for purposes of SIF liability under § 298.220.3. It is further undisputed that employee established one "qualified" preexisting disability pursuant to § 287.220.3(2)(a)a(ii), consisting of 25 % PPD of the right upper extremity rated at the 232 -week level ( 58 weeks) resultant from his prior March 8, 2014, work injury.

Dr. Stuckmeyer originally opined that the employee's primary injury in isolation rendered him PTD. He later revised this opinion to find that employee's PTD was due to disability from his June 12, 2014, work injury, his qualified preexisting right shoulder disability and significant disabilities involving employee's lumbar spine and bilateral knees.

Both Dr. Stuckmeyer and employee's vocational expert Mr. Dreiling included preexisting conditions related to employee's lumbar spine and knees that did not qualify pursuant to $\S 287.220 .3$ in assessing the SIF's liability. The record includes no other expert opinions.

Consistent with findings of fact included in our original June 26, 2019 award we find that employee's PTD was due to the combination of all of his preexisting disabilities together with disability attributable to employee's last accident.

As a matter of law, we find that Parker requires employee to show that disability from his primary injury combined solely with disability from one or more qualifying preexisting disabilities to result in PTD.

Consistent with the Supreme Court's mandate, employee's PTD claim against the SIF herein must fail because he failed to demonstrate that his PTD resulted solely from disability attributable to his primary injury combined "with the preexisting disability, as set forth in items (i), (ii) (iii), or (iv) of subparagraph a. of this paragraph."5

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[^0]: ${ }^{4}$ See Jonathan Parker v. Asplundh Tree Expert Company/Liberty Mutual Insurance Company (settled) and Treasurer of Missouri as Custodian of Second Injury Fund, Injury No. 14-042039 (LIRC, June 26, 2019), incorporating by reference Administrative Law Judge Emily S. Fowler's award and decision issued September 6, 2019, to the extent not inconsistent with the Commission's supplemental opinion.

${ }^{5}$ Treasurer of the State of Missouri As Custodian of the Second Injury Fund v. Parker, at 4 (SC98704, April 20, 2021).

Consistent with the Supreme Court's interpretation of $\S 287.220 .3$ as applied to the facts of this case, we deny employee's claim for PPD against the SIF.

The Commission's June 26, 2019 Final Award Allowing Compensation is attached for information only.

Given at Jefferson City, State of Missouri, this $\qquad 10th \qquad$ day of August, 2021.


LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:


Employee's claim for permanent total disability (PTD) against the Second Injury Fund (SIF) under § 287.220.3 RSMo. should prevail because, as a matter of fact and law, employee's PTD is clearly due solely to restrictions from his neck and dominant right upper extremity.

Dr. James Stuckmeyer only placed restrictions in regard to employee's neck and dominant right upper extremity; he imposed no restrictions on employee's back or knees. Although vocational expert Mr. Michael Dreiling's opinion set out twenty-five factors that made up employee's vocational profile, only three of these possibly related to employee's back or legs. Mr. Dreiling clearly opined in his testimony that employee cannot access the open labor market due to the combination of his two work injuries and his vocational profile, without considering anything associated with his back, legs, or left hip.

Employee's post-Parker Supplemental Brief to the Commission provides the following legal analysis of the Supreme Court's statutory interpretation of $\S 287.220 .3(2)$ applied to the facts of this case:

While there are admittedly references to Parker's back and knees in evidence, Parker asks this body to look beyond those mere references to the substance of what those conditions were and respectfully asserts that there is no other conclusion to reach other than Parker is permanently and totally disabled due to the combination of the qualifying shoulder and neck injuries. While Parker concedes the back and knees do not qualify under the statute because there is no evidence of 50 -weeks of disability for those conditions, unlike many other cases on appeal where there are preexisting conditions which may or may not reach 50 -weeks or fall within one of the four subcategories, Parker's case is unique. Herein, there is no evidence of any disability associated with his back or Parker's knees. No doctor assigned any percentage of disability nor did any doctor assign any restrictions for either of those conditions. . . .Parker did not receive any accommodations from his employer [related to his back or knees], and he did not miss any time from work. There is no evidence to support that Parker had any disability due to his back or knees. $\S 287.190(6)(1)$ defines "permanent partial disability" as a "disability that is permanent in nature and partial in degree" and section two states permanent partial disability "shall be demonstrated and certified by a physician". No doctor has assigned any disability to Parker's back or knees.

The Supreme Court in Parker also stated that "the existence of non-qualifying disabilities does not count against (or for) the claimant in evaluating whether he meets the second threshold condition. In other words, two claimants with identical qualifying preexisting disabilities and primary injuries should be evaluated the same way when determining if they meet the second condition regardless of whether one has additional nonqualifying disabilities. Parker SC98704 2021 WL1554726. Therefore, Parker's prior back or knee complaints should not count against him as the evidence clearly proves his shoulder injury qualifies under the statute and combines with his neck to render him permanently and totally disabled.

Moreover, Dreiling, the vocational expert, gave unrefuted testimony that Parker would have difficulty finding any type of employment due to his shoulder and neck alone. In Treasurer of Mo. v. Majors, 506 S.W.3d 348, 352-53 (Mo. App. 2016), the Western District found that the Commission should look to the substance of the doctor's medical conclusions and the physical restrictions to

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determine the nature of their opinion, "the words the medical expert uses are often important, not so much in and of themselves but as a reflection of what impression such witness wishes to impart." Malam v. Department of Corrections., 492 S.W.3d 926 (Mo. 2016).

> [I]t is not simply the opinion of the medical expert but that opinion in combination with the vocational expert that this [Commission] can rely on to determine whether Parker has met his burden of proof. "The record may not contain a single expert opinion addressing the entirety of a claimant's conditions. Rather the Commission may consider the opinions of multiple experts of differing specialties to arrive at its factual determination as to the parts and sum of a claimant's conditions." Patterson v. Central Freight Lines, 452 S.W.3d 759, 767 (Mo. App. 2015). Wherefore, the Commission can consider Dr. Stuckmeyer's conclusion regarding the medical conditions and look at the substance of his opinion and which conditions he chose to assign disability to and permanent restrictions for, i.e., only the qualifying shoulder and neck injuries, combined with the persuasive and uncontroverted testimony of Dreiling who testified that based on only those two qualifying conditions Parker would have difficulty finding any type of work. . . . The overwhelming weight of the evidence supports the conclusion that Parker is permanently totally disabled when considering only his qualifying conditions of the shoulder and neck.

The Supreme Court of Missouri's *Parker* decision, even strictly construed, does not preclude employee's claim against the SIF under § 287.220.3 in this case because no medical expert assigned any degree of disability whatsoever to employee's back and knee conditions. Because employee's back and knee conditions do not constitute permanent partial disabilities as defined by § 287.190(6)(1) of The Workers' Compensation Law, employee's PTD in this case must be deemed to have resulted solely from a combination of disability attributable to his primary injury in combination with disability attributable to his qualifying preexisting right shoulder work-related disability.

Because the majority finds otherwise, I respectfully dissent.

Shalonn K. Curls, Member

6 Employee/Respondent's Supplemental Brief before the Labor and Industrial Relations Commission, pp. 8-10, filed July 9, 2021.

(Affirming Award and Decision of Administrative Law Judge With Supplemental Opinion)

**Injury No.:** 14-042039

**Employee:** Jonathan Parker

**Employer:** Asplundh Tree Expert Company (settled)

**Insurer:** Liberty Mutual Insurance Company (settled)

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission for review as provided by § 287.480 RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge allowing compensation is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge with this supplemental correcting opinion.

On page 7 of the administrative law judge's award, the fourth sentence in the first paragraph states:

> He was sent to Dr. Adrian Jackson and eventually had a cervical fusion at the C3-C4 level, which occurred in August of 2015 (emphasis added).

We delete this sentence and replace it with:

> He was sent to Dr. Adrian Jackson and eventually had a cervical fusion at the C3-C4 level, which occurred in September of 2015.

On page 10 of the ALJ's award, the first four sentences of the second paragraph state:

> It is interesting to note in the medical records, and especially in the reports of Dr. Stuckmeyer and Mr. Dreiling, as well as Mr. Dreiling's deposition, that there is much made of Dr. Stechschulte and Dr. Hess's restrictions. It is noted that neither Dr. Hess nor Dr. Stechschulte placed permanent restrictions on Employee. It is hard for this Court to understand how after shoulder surgery and especially cervical fusion at the high level of C3-C4 there would be no permanent restrictions of any kind. This Court does not take Dr. Stechschulte nor Dr. Hess's reports at face value (emphasis added).

We delete these sentences and replace them with:

> It is interesting to note in the medical records, and especially in the reports of Dr. Stuckmeyer and Mr. Dreiling, as well as Mr. Dreiling's deposition, that there is much made of Dr. Stechschulte and Dr. Jackson's restrictions.

Employee: Jonathan Parker

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restrictions. It is noted that neither Dr. Jackson nor Dr. Stechschulte placed permanent restrictions on Employee. It is hard for this Court to understand how after shoulder surgery and especially cervical fusion at the high level of C3-C4 there would be no permanent restrictions of any kind. This Court does not take Dr. Stechschulte nor Dr. Jackson's reports at face value.¹

The above technical corrections to the administrative law judge's award do not detract from her legal reasoning or her correct analysis of the evidence in the record.

**Conclusion**

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

The award and decision of Administrative Law Judge Emily S. Fowler, issued September 6, 2018, is attached and incorporated to the extent not inconsistent with this supplemental opinion.

We approve and affirm 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 **24th** day of June 2019.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Comejo, Chairman

Reid K. Forrester, Member

Curtis E. Chick, Jr., Member

Attest:

Secretary

¹ We note that Dr. Jackson's office records include notes of his physician assistant, Derek W. Barnard, approved by Dr. Jackson. See transcript, 392,393,396,400,401, and 406.

Employee: Jonathan Parker

Injury No. 14-042039

Dependents: N/A

Employer: Asplundh Tree Expert Co.

Insurer: Liberty Mutual Insurance Co.

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

Hearing Date: July 11, 2018

Checked by: ESF/1h

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: June 12, 2014
5. State location where accident occurred or occupational disease was contracted: Independence, Jackson 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: While in the course and scope of his employment, Employee was driving a company truck when he turned his head and felt a sharp pain. This occurrence came after recurrent neck pain from his job duties which required him to do heavy lifting and repeatedly look up to trim trees.

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

1. Did accident or occupational disease cause death? No

Date of death? N/A

1. Part(s) of body injured by accident or occupational disease: Body as a whole as to the neck

1. Nature and extent of any permanent disability: permanent partial disability: 40% permanent partial disability to the body as a whole as settled with the employer. Permanent total disability as to the Second Injury Fund

1. Compensation paid to date for temporary total disability: $14,195.17

1. Value necessary medical aid paid to date by employer/insurer? $88,140.49

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

1. Employee's average weekly wages: 1,057.23

1. Weekly compensation rate: 704.82/$446.85

1. Method wages computation: by stipulation of the parties

Compensation payable

1. Amount of compensation payable: Employer and Employee settled the primary claim for 40% to the body as a whole.

1. Second Injury Fund liability: Second Injury Fund shall pay permanent total disability to Employee of $704.82 beginning November 25, 2015. The Second Injury Fund shall be given a credit of 446.85 per week for 160 weeks and thereafter shall pay to Employee 704.82 for as long as Employee remains permanently and totally disabled.

1. Future requirements awarded: N/A

The Court awards attorney fees in the sum of 25% of all benefits herein to Steffanie Stracke, attorney for Employee.

WC-32-R1 (6-81)

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On July 11, 2018, the parties appeared for final hearing. The Division had jurisdiction to hear this case pursuant to §287.110. The Employee, Jonathan Parker, appeared in person and was represented by his attorney Steffanie Stracke. The Employer/Insurer did not appear as they had previously settled the primary claim. The Second Injury Fund appeared through Counsel Mr. Eric Lowe.

The parties stipulated to the following:

1. That the employer, Asplundh Tree Experts Co., was an employer operating subject to the provisions of the Missouri Workers' Compensation law on June 12, 2014, and was fully insured by Liberty Insurance Co.;
2. That Jonathan Parker was its Employee and he was working subject to the law in, Independence, Jackson County, Missouri;
3. That Employee sustained an accident by repetitive trauma arising out of and in the course of his employment;
4. That the Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;
5. That Employee's average weekly wage is 1,057.23 resulting in a compensation rate of 704.82 for temporary total and permanent total disability and a permanent partial rate of $446.85;

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

1. That the Employer has paid 14,195.17 in temporary total disability benefits and has paid 88,140.49 for medical care;

1. Employee reached maximum medical improvement on November 25, 2015;

1. Employer and Employee settled the primary claim for 40% permanent partial disability to the body as a whole.

ISSUES

The issues to be resolved by this hearing are as follows:

1. Whether the Employee suffered any disability and, if so, the nature and extent of Employee's disability

1. Whether the Second Injury Fund is liable to the Employee for any disability compensation.

FINDINGS

The Employee, Jonathan Parker, testified in person and offered the following exhibits, all of which were admitted into evidence:

- **Claimant's Exhibit A** - Sixty Day Submission, Dr. James Stuckmeyer's reports dated February 15, 2016 and July 3, 2016

- **Claimant's Exhibit B** - Sixty Day Submission, Dr. James Stuckmeyer's report dated January 12, 2018

- **Claimant's Exhibit C** - Deposition testimony of Michael Dreiling with attached exhibits

- **Claimant's Exhibit D** - Stipulation for Compromise Settlement, 14-042039 with the employer

- **Claimant's Exhibit E** - Stipulation for Compromise Settlement, 14-019448 with employer/insurer

The Second Injury Fund did not object to the reports of Dr. James Stuckmeyer contained in Claimant's Exhibits A and B but objected to the underlying medical records Dr. James Stuckmeyer reviewed because no affidavit was attached. $287.210.7 states that the "notice shall include a copy of the report and all the clinical and treatment records of the physician including copies of all records and reports received by the physician from other healthcare providers...within ten days after receipt of such notice a party shall dispute whether a report meets the requirements of the complete medical report by providing written objections by the offering party stating the grounds for the dispute, and at the request of any party, the administrative law judge shall rule upon such objections upon pretrial hearing whether the report meets the requirements of a complete medical report and upon the admissibility of the report or portions thereof." Nothing in the statute requires that the underlying medical records have an affidavit and the Second Injury Fund failed to object within ten days of the dates each of the sixty-day exhibits were filed; therefore, the Second Injury Fund's objection is overruled and Claimant's Exhibits A and B are admitted into evidence.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

The Second Injury Fund did not call any witnesses or offer any exhibits.

Based on the above exhibits and the testimony of the Employee, I make the following findings:

Employee Jonathan Parker (hereinafter referred to as Employee) is a 46 year-old man at the time of hearing whose date of birth is March 8, 1972. He currently resides in Roscoe, Missouri. He testified he needed to move there because he needed to be closer to his family to help him out. He currently has one son, Seth, living with him who is 19. Employee never made it past the ninth grade in school as he married his pregnant girlfriend at the time. He was 16 years old when he dropped out of school. He attempted to obtain his GED a number of times throughout the years but he was never successful. Both work and children got in the way of his ability to take and pass the exam. He has no other formal education since leaving high school; he cannot type, and has never had a job that required computer skills. He has no special licenses or certification. At one time, he had a CDL but it is no longer current.

He began working at 16 years old starting in the family tree service. He would split firewood and learn to trim trees. He worked for approximately 10 years and was in his early twenties when he left the family business to work in a box factory. This next job required him to feed a machine corrugated paper. It required him to stand throughout the day, bend, twist, and constantly use his arms. His job duties required him to push paper down rollers and grab a handful of paper and feed it to a hopper. This started at chest level and worked on down to floor level. He would then return and start over again. He also worked for another box company making printing dyes. He explained that he would take a sheet of plastic and stains and glue it and it would then be printed on boxes. The job duties required him to lift a 5-gallon bucket of ink, which required him to climb up on the machine and pour the ink into a trough. He would have to climb up and down to retrieve the dyes to place them in the trough. He did this type of work at the various box companies for approximately 10 years.

He ultimately returned to tree service work at the family tree service company. He worked there five years and then began working for Asplundh in 2004. The work that Asplundh did was for the Independence Power and Light Company. In this job, they did not trim the entire tree but only half the tree to get the branches off the power lines. All work was done in Independence, Jackson County, Missouri. Employee started out as a grounds person whose job duties included setting up cones and signs and getting the tools for the other workers. He would also clean up the branches and put them into a wood chipper as well as rake the lawns after the work was done. He then moved to the next position, which was tree trimmer. As a tree trimmer, he was required to climb trees. He used ladders, a chain saw, tree spikes, and a tree saddle. The tree saddle was a contraption with D-rings that he wore around his waist. You could attach chain saws and other tools to it. He mostly used a trim saw but occasionally used the bigger saw for groundwork. He noted that the trim saw weighed about 5 pounds or less. Employee eventually worked up to foreman position. He had all the same job duties that he had prior except he also would organize the crew making sure the work was done safely.

The job requirements included being able to look straight up into the trees so he could look at the power lines to determine what to cut. He was also required to have motion of his right WC-32-R1 (6-81)

Page 5

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

upper extremity to run a chain saw to trim branches. The chain saw work also required being able to do work overhead. Occasionally the work required using a bucket truck. Employee noted that they normally worked 40 hours per week unless there was storm work.

While working at Asplundh on March 8, 2014, Employee, who is right hand-dominant, went to unhook his chain saw that hangs from a ring on his left hip and as he extended his arm out away from his body, he felt a "pop" in his arm. Employee reported this injury to his employer and the employer ultimately referred him for authorized treatment. Employee was initially seen at US Healthworks on March 19, 2014. An MRI from March 27, 2014 at Truman Medical Center revealed a possible partial thickness tear involving the origin of the common extensor tendon. Employee was placed on light duty restrictions and provided a Medrol Dosepak and physical therapy. Asplundh Tree Experts, Co. provided Employee with a variety of light duty positions while he was under work restrictions due to the injury to his right arm. Employee, at one time, was required to sit in a truck that was immobile due to it not having a transmission, for eight hours a day, but was given no job tasks. Employee had difficulty sitting in the truck for the entire eight hours due to back pain and would need to get out several times throughout the day in order to stretch and move to help alleviate his back pain. Employer also placed him in a position as a courier where he was delivering equipment around to various job sites. Employee also had a light duty position as the flagger who held signs warning the public of the crew working nearby. Employee had difficulty performing that job due to the constant standing required and Employee would squat or sit down on the pavement when not given a break to allow him to change positions to attempt to alleviate his back pain.

Employee was eventually referred to Dr. Daniel Stechschulte where he was diagnosed with a right elbow distal biceps tear, right elbow lateral epicondylitis with partial thickness common extensor tear and right shoulder complaints, as well as right upper extremity paresthesia complaints. On August 13, 2014, Dr. Stechschulte performed a right elbow antecubital exploration with bicep tendon bursectomy, biceps tendon takedown and biceps tendon reassertion to the radial tuberosity. Employee continued under work restrictions and advanced to physical therapy. Dr. Stechschulte noted on November 4, 2014 Employee had continued symptoms of right shoulder pain. Dr. Stechschulte sent Employee to work conditioning, recommended a full duty release, and placed Employee at maximum medical improvement on January 13, 2015. Despite that release, Employee returned to Dr. Stechschulte on February 26, 2015, and was assessed as having right triceps tendonitis, right olcranium bursitis. Ultimately, Dr. Stechschulte released Employee with no permanent restrictions on March 26, 2015. Despite that full duty release, Employee did not return to work on a full duty basis. Employee did not return to climbing trees or do any type of trimming work but continued in the light duty positions earlier described until he was taken off work following his cervical fusion on September 3, 2015.

Employee indicates that he has no strength overhead and anytime he reaches up or out his right elbow pops. Employee avoids lifting anything overhead and states the heaviest thing he lifts is a gallon of milk. Employee did not feel that he maintained the strength to use a chain saw to perform the job duties at Asplundh Tree Experts, Co. Dr. Stuckmeyer placed restrictions on no lifting to exceed 20 to 25 pounds on an occasional basis with the right upper extremity, below shoulder height and 15 to 20 pounds above the shoulder.

WC-32-R1 (6-81)

Page 6

Employee's injury from the primary claim occurred on June 12, 2014. He was driving one of the company trucks when he looked left and felt an electrical or sharp shock in his neck. After this, it became difficult for him to look up and he had to stand further away from a tree in order to look up. He was sent to Dr. Adrian Jackson and eventually had a cervical fusion at the C3-C4 level, which occurred in August of 2015. Because the surgery was so high in the neck, the side effects include choking when he tries to take pills. The vertebrae in his neck push against his esophagus. Eating and swallowing are difficult and he must do it by taking small portions. He has difficulty looking up. It is always painful to do so. He no longer has the sharp pain but does have a popping and aching in his neck. He noted that the sharp pain feeling had happened before but that this incident was the culmination of consistent problems with his neck. He feels a grinding and popping in his neck when he turns his head and has a pain level of a constant five. The pain is the same whether he is moving his neck or not. When he was released by Dr. Jackson, there were no work restrictions. He attempted to go back to the employer but they never called him back. He told the general foreman that he could no longer climb trees but he would be willing to train people to do the trimming. Ultimately, he never received a response from the employer and he also never received a termination letter.

Since he was unable to return to Asplundh for employment, he attempted to work at the Dollar Tree store. He talked to the manager and explained the physical problems he was having with his neck, back, knees, and his inability to lift. He was given an opportunity to work for Dollar Tree in June or July of 2016. This lasted for only a few weeks, as he could not take the pain. His neck, back, and knees hurt from squatting and lifting. His duties included stocking which required him to walk, bend, and be up and down throughout the day. He could not do any overhead lifting. He continued to have problems with his head, neck and shoulders. He has not worked for anybody since that time.

He noted the problems he has include poor sleep. He has pain throughout his whole body including his hips and back, which radiates down to his left leg keeping him from being comfortable. He gets about 2 to 4 hours of sleep a night. He tosses and turns constantly throughout the night. He has worked on good sleep hygiene but this does not help. He gets up and walks daily to his parents' house about one block away. He tries to do things for his parents including weed eating. He could not do this all day but only in short time periods. After doing a small amount of this type of work his body hurts. His parents help him with laundry. He tries to return the help by sweeping the shop. He can do this for approximately 20 minutes and has to stop. He could not do any of these duties all day long, as he cannot stand on his feet all day. He has to change positions throughout the day. He can only sit for about 20 to 30 minutes. Walking the one block to his parents' house requires him to sit and rest afterwards. He has injured his right wrist because he falls down. He has shooting pain through his hip, which caused him to fall. He was wearing a brace on his arm the day of trial and explained that he fell and broke his wrist, fingers and knuckles. He has fallen more than once. He takes Gabapentin for pain.

Employee noted that he saw Dr. Chandra in 2010 for back pain. An MRI showed deterioration of the spine and bulging disc. He eventually had injections in the spine. This back pain shoots down his left leg from his hip. The injections had helped for a short time. He was working full time for Asplundh during this time. He had help from his coworkers when he was having difficulty climbing. In turn, he would watch and make sure that other people were safe and helped the grounds men as much as he could. He noted that the problems with his back are

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

now more intense and stays more constant. He noted that on June 29, 2013 he had back pain and leg pain as well as knee pain. His knees ached and were stiff. Prior to 2014, he had cortisone injections in his knees, which did not last long.

He noted that he has tried to use his riding lawn mower but could not finish the mowing because his back started hurting too badly. He also tried to rearrange his house one time by having his boys do the work, he simply directed it. He stated he could not do the box factory work or the print presswork due to knee, hip and back problems. He could not stand. He could not do a driving job all day because he cannot sit and his neck would interfere with his being able to safely drive a vehicle. He has difficulty turning his head with his arms up on the steering wheel and would not be able to double check his blind spots. He misses working and would love to go back to the tree service work but does not feel he could physically do the work. Not working causes depression. He has spoken to a doctor who had prescribed anti-depressant medication. He notes that he drinks to dull the pain.

On cross-examination, he confirmed he attempted to get a GED in 1990 and 1992 but has not tried in last 15 years. He admitted he took the written test and passed this for his CDL. He has no learning disability that he is aware of. He noted he would not be able to work for the family business of Parker Tree Service, which is still in existence, because he cannot do the work. Although he might have the ability to bid jobs, his uncle would not hire someone to just do the bid work. He noted that the positions on light duty, including flagging and courier work, were real jobs but they were not full time job duties of working for a tree service. The job of sitting in a truck all day was not a real job. He admitted he has watched his grandchildren with his girlfriend. He never watched them by himself, as he could not lift the children if they needed to be picked up. He noted he did not want to take the anti-depressant offered to him by his doctor. He has never been taken off work due to depression. In 2011, he had two of three back injections but did not have the third because it made him sick. He noted that Dr. Chandra did not want him climbing ladders but never wrote it down. He has never had any specific treatment for his right or left hips. He has had no other treatment other than injections for his back. He admitted he has no restrictions from any doctors prior to his last accident. There was no condition that kept him from working prior to his last accident. He had worked full time prior to his last accident. He has not attended any other interviews for work since Dollar Tree and has not filed any applications for jobs since that time. He noted Dr. Jackson released him from the neck surgery with no restrictions. Dr. Stechschulte also released him from arm surgery with no restrictions. He admitted he is not aware of any restrictions regarding standing, sitting or walking by any of his treating physicians. He has never contacted Missouri State Rehabilitation Services about returning to employment. He only takes Gabapentin and a blood pressure medication. He noted that the bigger saw weighs about 5 pounds heavier than a trim saw and has a bigger bar and a larger motor. He has no source of income from any disability at this time.

On redirect examination, he noted that after his arm injury he never returned to trimming work. After the painful shock to his neck, he complained of neck problems and it progressively got worse. Watching his grandchildren would not have kept him from looking for work. He confirmed he never watched them by himself because he could not pick them up. On recross-examination, he admitted he has never looked for sedentary work. He stated there are no other tree services that he knows of that use only flaggers or couriers as a specific job. He did note that Asplundh and Parker Tree Service are the only tree services he has ever worked for.

WC-32-R1 (6-81)

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

In reviewing Employee's testimony, the Court finds that his testimony is consistent with the medical records. I find his testimony to be consistent with the information he had shared with Michael Dreiling at the time of his vocational assessment. Employee has consistently indicated that he has had ongoing issues with his back dating back to 2010.

Employee offered the reports from Dr. Stuckmeyer dated February 15, 2016 and July 3, 2016. These reports were based upon medical records which Dr. Stuckmeyer reviewed covering the care Employee received from both his June 12, 2014 accident as well as the March 8, 2014 accident. These medical records also covered treatment to his back and problems with his knees. In the February report, Dr. Stuckmeyer simply discussed the accident of March 8, 2014 as well as the accident of June 12, 2014 and assessed ratings for each injury. He noted that the right upper extremity injury was at 30% of the right upper extremity at the shoulder and the June 12, 2014 injury was rated at 35% permanent partial disability to the body as a whole related to the neck. He placed restrictions on Employee of no lifting more than 20-25 pounds and no lifting 15-20 pounds above the shoulder level. He noted that after the right shoulder injury of March 8, 2014, Employee could return to work; however, after the cervical injury on June 12, 2014, Employee could not return to work. In his July 3, 2016 report he quoted Mr. Dreiling's report, which noted that Employee can only stand for 30 minutes due to leg and hip pain as well as having difficulty looking up due to his cervical problems and difficulty sleeping due to overall pain.

Dr. Stuckmeyer subsequently filed an additional report dated January 12, 2018. In this report, he notes that there were additional medical records that he reviewed. He noted that medical records dated May 27, 2010 from Dr. Chandra showed that Employee suffered symptoms of back pain and radiating pain into the right lower extremity. He also found that medical records from a Dr. Vasan noted ongoing symptoms of a lumbago and sciatica. There were additional medical records from Dr. Chandra on November 14, 2012 that noted symptoms of right knee pain and assessed Employee as having a lateral collateral ligament sprain. And in Dr. Chandra's medical records of January 28, 2013, he noted persistent symptoms of back and leg pain. After reviewing these additional medical records, Dr. Stuckmeyer made a determination that looking at Employee's difficulties with his back and the complaints, specifically pain in the lumbar spine and radiculopathy down the left side, as well as daily back pain, and his knee pain, that he was totally disabled due to a combination of his pre-existing conditions of back and the complaints with his shoulder injury combined with the last accident to his cervical spine of June 14, 2014.

Employee offered the deposition and report of Mr. Dreiling, a vocational expert. Mr. Dreiling noted that Employee's physical abilities and problems included pain issues due to his back and hip, pain issues due to his right shoulder, and pain issues due to his cervical neck area. He noted that Employee, based upon his discussions with Employee, testing and review of his medical records, could sit for less than an hour, could stand for less than 30 minutes due to back pain as well as left hip and leg pain. He also noted that Employee had difficulty looking up due to his cervical problems and poor sleep due to his back pain and overall pain. He also noted Employee had problems with his dominant upper extremity due to his March 2015 injury with employer. After reviewing Employee's medical records as well as educational and skills background, he noted that Employee never obtained a GED. He had no formal vocational

WC-32-R1 (5-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

training and although he attempted to get a GED has never been successful. He noted that he took both the neck and right shoulder problems into account when determining whether Employee was employable or not. He ultimately determined that Employee was unemployable in the open labor market. Although he is not very specific in either his vocational report or his deposition, it is clear that he was taking Employee's entire situation, including his neck and shoulder as well as back and legs, into consideration when he determined that Employee is unemployable in the open labor market.

It is interesting to note in the medical records, and especially in the reports of Dr. Stuckmeyer and Mr. Dreiling, as well as Mr. Dreiling's deposition, that there is much made of Dr. Stechschulte and Dr. Hess's restrictions. It is noted that neither Dr. Hess nor Dr. Stechschulte placed permanent restrictions on Employee. It is hard for this Court to understand how after shoulder surgery and especially cervical fusion at the high level of C3-C4 there would be no permanent restrictions of any kind. This Court does not take Dr. Stechschulte nor Dr. Hess's reports at face value. After reviewing the medical records and the opinions of Dr. Stuckmeyer and Mr. Dreiling, this Court finds that Dr. Stuckmeyer's restrictions with regard to Employee's right upper extremity, his cervical region, his back, knees and legs are far more reasonable herein.

The first issue for this Court to determine is whether the Employee suffered any disability and the nature and extent of Employee's disability. Subsequent to that this Court must determine whether the Second Injury Fund is liable to the Employee for any disability, either permanent partial or permanent total disability, and in this case the Employee has alleged that he is permanently and totally disabled. There is no credible evidence that the Employee was rendered permanently and totally disabled as a result of the injury caused by his occupational disease cumulative trauma of June 12, 2014 considered in isolation and without regard to his alleged preexisting disability from his March 8, 2014 work injury, as well as his preexisting disability to his back and legs. Employer is liable for permanent total disability compensation under $287.220 RSMo (1994) only where it is found that the primary accident alone caused the Employee to be permanently and totally disabled. Mathia v. Contract Freighters, Inc., 929 S.W. 2d 271,276 (Mo. App. 1996); Feldman v. Sterling Properties, 910 S.W. 2d 808 (Mo.App.1995); Moorehead v. Lismark Distributing Company, 884 S.W. 2d 416,419 (Mo. App. 1994); Kern v. General Installation, 740 S.W. 2d 691,692 (Mo. App. 1987). Compensation cases in which there has been a previous disability are to be determined under $287.220.1 RSMo (1994).

Employee clearly sustained a pre-existing injury from his accident on March 8, 2014 for which he received 25% permanent partial disability at the 232-week level of the right upper extremity. This is Employee's dominant arm for which he has credibly testified that he has ongoing issues and limitations, which clearly would have a significant impact on his ability to work overhead and carry weight over 20 pounds.

I adopt and agree that Employee has 25% permanent partial disability of the right upper extremity which exceeds the 50 weeks necessary for $287.220 to apply. Since Employee's preexisting disability associated specifically with his back occurred in 2010 and was documented in the medical records through 2013, that condition pre-dated the statutory changes to $287.220 and therefore the decision in Gattenby v. Treasurer of State of Mo, 516 S.W. 3d 859 (Mo.App.2017) controls. Dr. Stuckmeyer did not assign any specific disability to that condition.

WC-32-R1 (6-81)

Page 10

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

or provide any specific restrictions, nevertheless, I believe Employee credibly testified as to how his back condition affected him prior to the June 2014 injury and how it impacted his ability to sit, stand and walk. Dr. Stuckmeyer did opine that condition was a potential obstacle or hindrance to re-employment.

It is important to note that Employee never returned to full duty employment following his placement at maximum medical improvement from the March 8, 2014 accident and that Dr. Stuckmeyer placed entirely different restrictions on him for his dominant right upper extremity which are arguably more restrictive than those placed on him for his last accident to his neck.

In order to establish Second Injury Fund liability for permanent total disability benefits, the Employee must prove that: one, that he has permanent disability resulting from a work related injury; see §287.220.1 RSMo. (1994) Messex v. Sach's Electric., 989 S.W. 2d 474 (Mo. App. 1998) §287.220.1 RSMo. (1994); two, that he has permanent disability predating the compensable work injury, which for an accident after January 1, 2014 meets the statutory threshold set forth therein and for accidents prior to January 1, 2014 is "of such seriousness as to constitute a hindrance or obstacle to employment or to obtain re-employment if the Employee becomes unemployable; and, three, the combined effect of the disability resulting from the work related injury and disability attributable to all conditions existing at the time the last injury was sustained results in permanent total disability. Boring v. Treasurer, 947 S.W. 2d 483 (Mo. App. 1997); Reiner v. Treasurer, 837 S.W. 2d 363 (Mo. App. 1992); Frazier v. Treasurer, 869 S.W. 2d 152 (Mo. App. 1994).

The first requirement has already been met and I find that the 40% permanent partial disability to the body as a whole referable to the neck is appropriate.

With regard to the second requirement, a determination must be made as to the degree or percentage of disability that is attributed solely to the preexisting conditions at the time of the last injury. Lammert v. Vess Beverages, Inc, 968 S.W. 2d 720 (Mo. App. 1999); Carlson v. Plant Farm, 952 S.W. 2d 369 (Mo. App. 1997). Employee settled his March 8, 2014 injury for 25% permanent partial disability to the shoulder at the 232-week level which represents 58 weeks of disability which meets the statutory requirements of §287.220 for injuries sustained after January 1, 2014. In addition, Dr. Stuckmeyer opined that Employee's preexisting problems with his back, which are well documented in the medical records including the 2010 MRI and 2011 epidural injection, as well as references in the records in 2012 and 2013 to ongoing back pain, represented an obstacle or hindrance to Employee's re-employment should he become unemployed. The Court finds that Dr. Stuckmeyer's determinations are credible and further that Employee's preexisting disabilities were a hindrance or obstacle to his employment as noted by Dr. Stuckmeyer.

The last requirement in establishing Second Injury Fund liability is proving that the Employee is permanently and totally disabled as a result of the combined effects of the disabilities. The first part of this inquiry involves the findings whether the Employee is permanently and totally disabled. §287.020.7 RSMO (1986) defines total disability as the inability to return to any employment and not merely the inability to return to employment in which the Employee was engaged at the time of the accident. It is clear that the Employee would have had great difficulty safely trimming trees if he stayed within the restrictions provided by Dr.

WC-32-R1 (6-81)

Page 11

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Jonathan Parker

Injury No: 14-042039

Stuckmeyer with regards to his neck. Therefore, he was likely occupationally disabled as a tree trimmer from those restrictions alone; however, the additional restrictions placed on his dominant right upper extremity when combined with the restrictions on his neck, as well as his limitations stemming from his back and legs result in his total disability. It is clear that Employee suffered from disabilities predating the compensable work related injury, which are of such seriousness as to constitute a hindrance or obstacle to employment or to obtain re-employment if the Employee became unemployed. As noted by Dr. Stuckmeyer, these disabilities include no lifting to exceed 20 to 25 pounds on an occasional basis with the right upper extremity below shoulder height and 15 to 25 pounds above shoulder, as well as the difficulty that Claimant had with back pain and knee pain. While Dr. Stuckmeyer clearly changed his initial opinion regarding the neck alone being responsible for the permanent total disability, I find his ultimate opinion to be consistent with the testimony of Michael Dreiling, as well as that of the Employee.

Michael Dreiling felt that the Employee was unemployable due to his entire vocational profile, which included both his lack of GED and his restrictions from both his neck and his shoulder, as well as the comments that Employee made about his ongoing back pain and the difficulty that gave him with sitting and standing. I believe it was the opinion of both of these experts that Employee is permanently and totally disabled as a result of a combination of all his disabilities. This Court finds these opinions credible and further finds there is no contrary evidence that would contradict such findings.

Wherefore, this Court, based on the above and foregoing finds that Employee is permanently and totally disabled due to the combination of his preexisting disabilities and his disability from his injury from his last accident.

This Court finds that Employee is entitled to permanent total disability benefits from the Second Injury Fund. The Second Injury Fund is therefore ordered to pay weekly permanent total disability benefits to the Employee in the amount of $704.82 per week for permanent total disability beginning November 25, 2015. The Second Injury Fund shall be given credit for 160 weeks of permanent partial disability as paid by the employer at 446.85 per week and thereafter shall pay 704.82 per week for as long as Employee remains permanently and totally disabled.

Finally, this Court awards to Employee's attorney, Steffanie Stracke 25% of all benefits awarded herein.

WC-32-R1 (6-81)

Page 12

Issued by DIVISION OF WORKERS' COMPENSATION Employee: Jonathan Parker

I certify thit on 9-let 8

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



Emily S. Fowler

Administrative Law Judge

Division of Workers' Compensation