Clifford Wolf v. Duckett Creek Sewer District

whole for this injury, which meets the threshold of fifty weeks of disability pursuant to $\S 287.220 .3 .(2)$.

Employee had non-compensable preexisting disability relating to polio in the amount of 35 % PPD of each lower extremity at the ankle, which also satisfies the fifty-week requirement set out in the statute. This disability directly and significantly aggravated or accelerated employee's primary injury thus qualifying as a preexisting disability under $\S 287.220 .3 .(2)$ (iii).

- Based on Benjamin Hughes's vocational assessment and employee's credible testimony, employee is PTD as a result of the combination of disability relating to his primary and preexisting injuries.

- The SIF is liable for PTD beginning January 27, 2017, the stipulated maximum medical improvement (MMI) date, with a partial credit based on the estimated weeks of PPD attributable to employee's primary injury included in his settlement with the employer/insurer.

The SIF filed a timely application for review. It alleged the ALJ's award was erroneous in that:

1) The ALJ improperly included the employee's back condition in her PTD analysis because this ailment had not reached MMI before the primary injury.

2) The ALJ improperly found employee's 2015 back surgeries to be a preexisting condition by relating them back to employee's 2013 work injury. Employee's 2015 back surgeries constituted a subsequent condition that the ALJ should have excluded from the PTD analysis.

3) The ALJ improperly found that employee's polio disability met 287.220.3.(2)(a)a.(iii) because Dr. Cohen opined that employee's foot drop aggravated and accelerated his back injury, but did not opine that employee's childhood polio or residual bilateral foot drop aggravated or accelerated his work-related carpal tunnel syndrome.

4) The ALJ improperly considered multiple alleged preexisting disabilities in combination with employee's primary occupational disease because 287.220.3(2)(a)b permits an award of PTD only when a single qualifying preexisting disability combines with the primary injury to render employee PTD.

5) The ALJ improperly considered employee's "long history of disabling injuries" without analyzing each preexisting injury separately and improperly considered conditions that do not qualify under the statute.

6) The ALJ improperly found that employee's primary carpal tunnel syndrome combined to render him PTD because this condition did not play a role in employee's inability to work, was not the reason employee stopped working, and because Dr. Brown provided no restrictions for employee's primary injury.

7) The ALJ improperly found employee PTD as a result of his 2014 injury and preexisting conditions in that employee's vocational expert testified that he would be employable in the open labor market considering Dr. Brown and Dr. Minges' restrictions and that, if employee is PTD, it is due to his subsequent back surgeries and other health conditions.

Section 287.220.3.(2) as revised effective January 1, 2014, applies to employee's December 2, 2014, injury claim. This section provides, in pertinent part:

(2) Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) a. An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(i) A direct result of active military duty in any branch of the United States Armed Forces.

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(iv) A preexisting permanent partial disability of an extremity, loss of eyesight in one eye, or loss of hearing in one ear, when there is a subsequent compensable work-related injury as set forth in subparagraph b of the opposite extremity, loss of eyesight in the other eye, or loss of hearing in the other ear; and

b. Such employee thereafter sustains a subsequent compensable work-related injury that, when combined with the preexisting disability, as set forth in items (i), (ii), (iii), or (iv) of subparagraph a. of this paragraph, results in a permanent total disability as defined under this chapter . . .

In Treasurer of the State As Custodian of the Second Injury Fund v. Parker, the Supreme Court of Missouri held, "[A]n employee who suffers a preexisting disability before his primary injury can meet the first condition [of 287.220.3.(2)(a)] regardless of whether he knew (or it had been determined) before suffering his primary injury that his preexisting disability equaled 50 weeks PPD." ${ }^{1}$ This holding is dispositive of the SIF's argument that the ALJ erred in considering employee's back condition in her PTD analysis because this ailment had not reached MMI before employee's primary injury.

Parker further expressly held that multiple qualifying preexisting disabilities could be considered in determining SIF liability under 287.220.3.(2)(a). ${ }^{2}$ This holding is dispositive of the SIF's contention that 287.220.3.(2)(a) and (b) permits an award of PTD only when a single qualifying preexisting disability combines with the primary injury to render employee PTD.

In his March 27, 2019, report Dr. Raymond Cohen found employee's 2015 lumbar surgery to be related to employee's November 13, 2013, work-related fall. This constitutes competent and substantial evidence that employee's 2015 back surgery was medically causally related to his 2013 compensable injury.

Dr. Cohen further testified to a synergistic effect between employee's hands, back and feet and stated that employee cannot sustain gainful employment "because of all the parts together" with employee's lumbar spine the most limiting, followed by his hands and wrists. ${ }^{3}$ This testimony supports the ALJ's finding that employee's polio disability combined with his carpal tunnel syndrome (and back disability) to result in PTD. We note Dr. Cohen and vocational expert Mr. Benjamin Hughes testified they would consider the employee PTD even considering only his 2013 back injury and 2014 workrelated carpal tunnel syndrome. ${ }^{4}$

Dr. Cohen found that employee's hand condition played a role in causing him to be unable to work in that it caused him to have difficulty with tasks involving use of his hands forcefully. ${ }^{5}$ This constitutes competent and substantial evidence that disability from employee's primary carpal tunnel syndrome occupational disease combined with his qualified preexisting conditions to result in his PTD.

Vocational expert Mr. Hughes' statement that he would not consider employee PTD if, hypothetically, he considered only certain expert opinions in isolation. This does not undermine his conclusion, based on Dr. Malone and Dr. Cohen's opinions and

[^0]

[^0]: ${ }^{1}$ Treasurer of the State As Custodian of the Second Injury Fund v. Parker, 622 S.W.3d 178, 182 (Mo banc, 2021).

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

${ }^{3} Transcript, 92-93.

{ }^{4}$ Dr. Cohen further testified that employee would not be able to sustain gainful employment considering only his primary work injury of December 14, in combination with his November 2014 lower back injury. Tr. 93, 121. After originally stating on August 27, 2019, that he considered employee's PTD "from a combination of . . . preexisting issues alongside the primary injury of 12/02/2014" (Tr. 216) vocational expert Benjamin Hughes later opined on March 30, 2020, "per Dr. Cohen's updated report, I find the man's inability to work or compete to be based on his work injuries of 2013 and 2014." Tr. 217.

${ }^{5}$ Transcript, 95.

-5-

restrictions, that employee is not able to compete for, gain, or maintain any job in the open labor market. ${ }^{6}$

We regard the ALJ's reference to the employee's "long history of disabling injuries and health conditions leading up to [his primary injury of] December 2, 2014"7 as extraneous to her ultimate finding that employee's preexisting back and polio-related conditions constituted qualifying preexisting disabilities pursuant to 287.2203.(2)(a) that, in combination with disability from employee's primary injury, resulted in PTD. We disavow this language herein.

We affirm and adopt the award of the ALJ as supplemented herein.

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

The December 29, 2020, award and decision of Administrative Law Judge Margaret D. Landolt is attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $\qquad 25th \qquad$ day of August 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman


Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

[^0]

[^0]: ${ }^{6} Id., 215-216.

{ }^{7}$ Award, p. 8.

I have reviewed and considered all of the competent and substantial evidence in the record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I concur in the majority's Final Award Allowing Compensation and supplemental opinion except for its disavowal of the administrative law judge's reference to the employee's long history involving multiple disabling injuries and health conditions.

Section 287.020.6 provides, "The term "total disability" as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident."

As discussed in Christopher Klecka vs. Treasurer of Missouri as Custodian of the Second Injury Fund, (ED108721, June 22, 2021), harmonization of 287.220.3 and the above-cited provision of Missouri's Workers' Compensation Law, as interpreted by judicial precedent, requires that so long as an employee establishes one "qualifying" preexisting condition pursuant to 287.220.3(2)(a), additional non-qualifying physical conditions as well as an employee's age, skills, education, training, and transferable work skills, must be examined in analyzing whether an employee is unable to compete in the open labor market and therefore PPD under 287.220.3. I respectfully disagree with the majority's disavowal of language in the administrative law judge's award opinion that is consistent with this analysis.

Shalonn K. Curls

Shalonn K. Curls, Member

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (573) 526-8983 FAX: (573) 751-2012

www.labor.mo.gov/DWC

DECEMBER 29, 2020

14-105395

Scan Copy

*Employee . . . . : CLIFFORD W WOLF 13317006 0 18227 NORCLIFF CIRCLE ROCKY MOUNT, MO 65072 #Employee Attorney: JAMES G KRISPIN 1010 MARKET ST STE 1500 ST LOUIS, MO 63101

*Employee Attorney: JOHN H LAKE 3401 W TRUMAN BLVD JEFFERSON CITY, MO 65109 #Asst Atty General: ATTY GENERAL ERIC SCHMITT 815 OLIVE ST STE 200 ST LOUIS, MO 63101

Enclosed is a copy of the Award on Hearing made in the above case.

Under the provisions of the Missouri Workers' Compensation Law, an Application for Review of the decision of the Administrative Law Judge may be made to the Missouri Labor and Industrial Relations Commission within twenty (20) days of the above date. If you wish to request a review by the Commission, application may be made by completing an Application for Review Form (MOIC-2567). The Application for Review should be sent directly to the Commission at the following address:

Labor and Industrial Relations Commission PO Box 599 Jefferson City, MO 65102-0599

If an Application for Review (MOIC-2567) is not postmarked or received within twenty (20) days of the above date, the enclosed award becomes final and no appeal may be made to the Commission or to the courts.

Please reference the above Injury Number in any correspondence with the Division or Commission.

DIVISION OF WORKERS' COMPENSATION

Please visit our website at www.labor.mo.gov/DWC

WCC-142 (06-15) AWARD ON HEARING NLP Relay Missouri: 800-735-2966

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

Employee: Clifford Wolf

Injury No.: 14-105395

Dependents: N/A

Employer: Duckett Creek Sewer District (Settled)

Additional Party: Second Injury Fund

Insurer: Missouri Employer's Mutual Insurance Co. (Settled)

Hearing Date: November 3, 2020

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

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: December 2, 2014
5. State location where accident occurred or occupational disease was contracted: St. Charles, 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: Employee used his hands and wrists in a repetitive fashion during the course of his employment.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: Both wrists
14. Nature and extent of any permanent disability: 22.5 % PPD of the right wrist and 20 % PPD of the left wrist previously settled with Employer, and permanent and total disability for which SIF is liable.
15. Compensation paid to-date for temporary disability: N/A
16. Value necessary medical aid paid to date by employer/insurer? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Clifford Wolf

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

1. Employee's average weekly wages: 1,024.74

1. Weekly compensation rate: 683.16/$451.02

1. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Second Injury Fund liability: Yes

Permanent total disability benefits from Second Injury Fund:

weekly differential ($232.14) payable by SIF for 74.375 weeks beginning January 27, 2017, and, thereafter $683.16 a week for Claimant's lifetime

TOTAL: TO BE DETERMINED

1. Future requirements awarded: None

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

The compensation awarded to the claimant shall be subject to a lien in the amount of 25% of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant divided as follows: Mr. James G. Krispin - 66.7%; Mr. John Lake - 33.3%

Revised Form 31 (3/97)

Page 2

Employee: Clifford Wolf

Dependents: N/A

Employer: Duckett Creek Sewer District (Settled)

Additional Party: Second Injury Fund

Insurer: Missouri Employer's Mutual Insurance Co. (Settled)

Injury No.: 14-105395

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: MDL

A hearing was held on November 3, 2020, at the Division of Workers' Compensation in St. Charles, Missouri. Clifford Wolf ("Claimant") was represented by Mr. James Krispin. Duckett Creek Sewer District ("Employer") and its insurer Missouri Employer's Mutual Insurance Company previously settled their liability with Claimant, and this matter proceeded to hearing against the Second Injury Fund ("SIF") which was represented by Assistant Attorney General Barbara Toepke.

This case was tried concurrently with Injury No. 13-084714, which is the subject of a separate Award.

The parties stipulated that on or about December 2, 2014, Claimant sustained an occupational disease arising out of and in the course of employment; Claimant was an employee of Employer; venue is proper in St. Charles County, Missouri; Employer received proper notice of the injury; the Claim was timely filed; the appropriate rates of compensation are 683.16 for Permanent Total Disability ("PTD") benefits and 451.02 for Permanent Partial Disability ("PPD") benefits; Claimant reached maximum medical improvement from his primary injury on January 27, 2017; and in the event Claimant is found to be permanently and totally disabled PTD benefits shall commence on January 27, 2017. The issue for resolution is whether the SIF is liable for PTD benefits.

Mr. Krispin requested a fee of 25% of Claimant's award divided as follows: Mr. James G. Krispin - 66.7% and Mr. John Lake - 33.3%.

Revised Form 31 (3/97)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 14-105395

Claimant is a 48-year-old man with a high school diploma who obtained a specialty certification in wastewater treatment.

As a young child, Claimant contracted polio. His polio progressed to partial paralysis. He was unable to feed himself or walk. He was unable to attend Kindergarten or first grade. Claimant returned to school in the second grade. He wore braces after he was able to walk again. He underwent multiple surgeries, which involved straightening his toes and lengthening his Achilles tendon. Despite these surgeries, Claimant was left with a foot drop, and wore an AFO (ankle-foot orthosis) brace for a number of years and had various surgical procedures on his feet. Eventually Claimant was able to overcome his physical challenges and played basketball, football, and baseball in school.

For a year or two after high school, Claimant received social security disability benefits. He attended community college, and obtained technical training in wastewater management. Eventually Claimant found work as a wastewater operator. From the age of 25, Claimant remained continually employed in the wastewater treatment industry until he had to stop working at the end of 2014. Most of his employment during that time was for Employer. His job duties required frequent heavy lifting, working intensively with his hands changing valves and greasing equipment, driving tractors, and running heavy equipment as an operator. It also required frequent bending, kneeling, squatting, climbing ladders, reaching, carrying, and pushing/pulling. He averaged 45-50 hour workweeks and was occasionally on 24-hour call with a pager. In 2006, he began working part-time doing similar work at Portage Des Sioux Treatment Plant. Claimant's chronic foot drop was a permanent condition that affected his gait and hindered his ability to perform other tasks requiring use of his lower extremities like climbing ladders and walking on uneven ground.

On November 13, 2013, Claimant injured his back when he was performing plant checks. When he came across an overflowing tank, he climbed up on top of a pump, and slipped and fell on his back from a distance of 2-1/2 to 3 feet. He went to BarnesCare that day for complaints of back pain. X-rays revealed L4 spondylosis with Grade I spondylolisthesis; mild degenerative spur formation; and sclerosis consistent with degenerative joint disease in the posterior elements of the lower lumbar spine. He was assessed with a back contusion. He was given restrictions of bending or twisting limited to one hour per day, no climbing ladders, and a 15-pound lifting limit. A week later, Claimant was again evaluated at BarnesCare. At that visit Claimant reported feeling better, with mild tightness only. He was back to normal activities, but he mentioned pain in his tailbone. Claimant was assessed with a back contusion and placed at maximum medical improvement.

Claimant continued to experience problems with pain and limitations in his lower back. Employer accommodated him by cutting his mandatory overtime. They also moved him to the lab, which involved less walking around the plant. Claimant had to give up his part-time job at Portage Des Sioux. In early spring 2014, Claimant's pain continued to increase with walking and standing, and he experienced more numbness in his legs. Claimant explained he did not complain

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No. 14-105395

more and get medical help through Workers' Compensation because he had been told by Workers' Compensation that his claim was closed.

Eventually in August 2014, Claimant saw his private physician with multiple complaints. An MRI of the lumbar spine taken on September 24, 2014 disclosed bilateral L-5 pars defects and anterolisthesis with broad based disc bulge and facet arthropathy contributing to spinal canal stenosis and bilateral moderate foraminal encroachment at L4-5. Claimant then saw Dr. Forget for a neurosurgical consultation in November 2014, advising that his back pain began when he experienced the fall at work. Claimant last worked on December 2, 2014, because of the constellation of symptoms with his lower legs, lower back, and problems with his hands and wrists.

Claimant continued to follow-up with Dr. Forget after a failed surgical attempt in January 2015. On March 4, 2015, Dr. Forget performed an L4-L5 posterior lumbar interbody fusion with insertion of 13 mm bone cages, pedicle screws at L4 and L5, and morselized lamina autograft mixed with harvest bone spur marrow aspirate. The post-operative diagnosis was L4-L5 spondylolisthesis and facet arthropathy. Claimant continued to follow-up with Dr. Forget for post-operative care, and in September 2015 was given a recommendation to follow-up with pain management.

Claimant followed up with Dr. Moore for back pain in April 2017, and still experiences sharp pain in his lower back, and a tingling sensation in his buttocks radiating down the anterior thigh areas to the knees. He has increased pain with forward bending and with bending from side to side, and standing becomes painful after five minutes and walking after 20 minutes, both of which requires him to change positions. Stairs are difficult for him now as he has to use a railing, and it is difficult for him to go up and down an incline or even uneven ground. Squatting is painful as well. He cannot use a ladder for changing light bulbs or painting in his home. Riding a lawnmower causes burning in his lower back with increased pain.

Claimant settled his claim with Employer for 13.5% of the body as a whole referable to his back, and proceeded to trial against the SIF for which an Award has been issued. (Injury No. 13-084714).

PRIMARY INJURY

Leading up to December 2, 2014, Claimant began to have numbness and tingling in both hands. These symptoms became progressively worse over time, and he was eventually referred to Dr. Brown for a surgical opinion. As part of his work with Employer, Claimant frequently used both hands and wrists using wrenches and other hand tools to change or adjust valves, perform maintenance on large sewer pumps and other equipment and heavy machinery, greasing pumps, pulling wires, grabbing chains to turn valves, all of which occurred multiple times a day.

In October 2016, Dr. Brown diagnosed Claimant with bilateral carpal tunnel syndrome. Dr. Brown opined that Claimant's job with Employer was a hand intensive job, and considered his work for Employer the prevailing factor in causing his carpal tunnel syndrome. Dr. Brown was unaware of polio being a condition that causes carpal tunnel syndrome. After an EMG/NCS dated November 11, 2014, gave the impression of bilateral carpal tunnel syndrome, Dr. Brown

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performed a right carpal tunnel release on December 1, 2016, and a left carpal tunnel release on December 15, 2016. On January 27, 2017, Dr. Brown released Claimant at maximum medical improvement. While those surgeries provided some relief of Claimant's symptoms of weakness and loss of grip strength, he still experiences episodes of similar problems. He has intermittent shooting pain and weakness in his right hand, difficulty manipulating small objects, and pulling on a door is painful. He has difficulty holding onto a fishing pole. He can no longer do gardening or yard work because of the vibration from the weed eater, hand tools, or other mechanical tools. He has difficulty using a chainsaw. After driving for more than a short time, his hands and wrists tend to go numb while gripping the steering wheel.

Claimant testified a typical day for him involves sitting in a recliner most of the day. He does physical therapy. He doesn't sleep well because of pain, and takes frequent naps throughout the day. Sometimes when he is unable to sleep at night he goes to his recliner. He does not believe he could work at a full-time job. He takes Ibuprofen and Hydrocodone for pain. He has difficulty concentrating.

Claimant settled his claim with Employer for 22.5% PPD of the right wrist and 20% PPD of the left wrist. Claimant has not worked since December 2, 2014.

EXPERT OPINIONS

Dr. Cohen examined Claimant on March 27, 2019, prepared reports with supplements, and testified on behalf of Claimant. Dr. Cohen diagnosed Claimant with repetitive trauma disorder (overuse disorder) and status post bilateral carpal tunnel releases. He felt Claimant's work for Employer was the prevailing factor in causing these conditions. He testified Claimant should be restricted from any work in which he would have to do any repetitive work with either the left or right wrist, no repetitive gripping or grasping, and no work with hands in awkward positions and to avoid vibrations.

Dr. Cohen diagnosed Claimant with an acute lumbar injury at work due to fall, status post-lumbar surgery with L4-L5 spondylolisthesis and facet arthropathy, failed lumbar laminectomy syndrome and aggravation of pre-existing, but clinically asymptomatic L4-L5 spondylolisthesis and facet arthropathy. Dr. Cohen felt that although Claimant did have pre-existing L4-L5 spondylolisthesis, the patient's history and review of records indicated the condition was clinically asymptomatic prior to the work injury of November 13, 2013. Dr. Cohen felt had Claimant not had the work-related injury to his lumbar spine, he would very likely have gone his entire life without having any lumbar spine or radicular symptoms, and therefore he opined that the work injury was the prevailing factor in causing injury to his lumbar spine, as well as the need of treatment and the resulting disability.

Dr. Cohen also discussed the pre-existing condition Claimant experienced as a youngster with neurological problems concerning his legs, which Dr. Cohen described as some type of viral exposure similar to polio. This resulted in foot drop of both feet and eventual surgery in high school to straighten Claimant's toes which were flexed and painful, which followed surgery in 8th grade on both of his Achilles Tendons in order to try to lengthen them to help Claimant ambulate. On physical examination, Dr. Cohen found diffuse sensory loss in both feet up to just past Claimant's ankles and bilateral severe foot drop with basically no motion on lifting in

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dorsiflexion or bending the feet up toward himself. Dr. Cohen found some atrophy in both legs distally and described Claimant's "steppage gait," which is the difficulty in lifting up his feet as he walked. Dr. Cohen found a synergistic effect when combining Claimant's primary and pre-existing injuries and assigned 35% PPD of each leg at the ankle.

Dr. Cohen felt the injuries to Claimant's wrists combined synergistically with Claimant's pre-existing injuries and disabilities to his lower extremities and lumbar spine to render Claimant unable to be gainfully employed in the open labor market. Furthermore, Dr. Cohen felt Claimant's low back injury of 2013 directly and significantly aggravates or accelerates the subsequent December 2014 injury to Claimant's upper extremities because Claimant would have to use his hands harder or more frequently and forcefully than if he didn't have any back problems alone.

The SIF submitted a report from Dr. David Minges, but Dr. Minges did not testify on behalf of SIF. Dr. Minges opined that Claimant's November 13, 2013, work-related injury is the primary and prevailing factor in causing an acute lumbar strain and contusion. Dr. Minges confirmed the diagnoses of L4-5 spondylolisthesis, status post L4-5 posterior lumbar interbody fusion and L4-5 nonunion/pseudoarthrosis, but did not relate these issues to the work injury. Rather, he felt Claimant's significant back problems were all related to the normal process of aging, as well as his pre-existing condition. He recommended work restrictions of no lifting, pushing, or pulling greater than 10 pounds, and no repetitive bending, stooping, or twisting of his lower back.

An IME report from Dr. Justin Malone dated March 6, 2017 indicated Dr. Malone's diagnoses of, among others, post-polio syndrome, bilateral carpal tunnel syndrome, left cubital tunnel syndrome and L4-5 spondylolisthesis and facet arthropathy status post L4-L5 posterior lumbar interbody fusion. Dr. Malone felt based upon Claimant's physical examination and also a review performed by Palmer Vocational Services, LLC, Occupational Analysis, Vocational Assessment, and Transferrable Skills Assessment, Claimant would not be able to adequately perform the duties of waste water-treatment-plant attendant. He opined based upon his medical conditions it is unlikely Claimant would be able to maintain gainful employment in other arenas.

Mr. Benjamin Hughes, a vocational expert, examined Claimant on August 20, 2019, prepared a report with supplements and testified on behalf of Claimant. Mr. Hughes testified Claimant was unemployable in the open labor market and would not reasonably be able to find an employer who could be expected to hire him for any job available in the open labor market. Mr. Hughes felt that this inability to compete in the open labor market was due to a combination of Claimant's 2014 injury to his bilateral wrists in combination with his pre-existing disabilities.

The SIF did not offer any vocational assessment analysis via expert opinion.

FINDINGS OF FACT AND RULINGS OF LAW

Based upon a comprehensive review of the evidence, my observation of Claimant at hearing, and the application of Missouri Law, I find:

Claimant is seeking permanent total disability benefits from the SIF due to a combination of his injuries. In a workers' compensation proceeding, the "claimant has the burden of proving all the essential elements of the claim." *Cook v. Sunnen Products Corp.*, 937 S.W.2d 221, 223

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Injury No. 14-105395

(Mo. App. 1996) (overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224-32 (Mo. banc 2003)). Proof is made only by competent and substantial evidence and may not rest on surmise or speculation. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo. App. 1973). Expert testimony may be required when there are complicated medical issues. Id. at 704. Extent and percentage of disability is a finding of fact within the special province of the [fact finding body, which] is not bound by the medical testimony but may consider all the evidence, including the testimony of the claimant, and draw all reasonable inferences from other testimony in arriving at the percentage of disability. Fogelsong v. Banquet Foods Corp., 526 S.W.2d 886, 892 (Mo. App. 1975) (citations omitted).

Section 287.220.3 RSMo (2014) describes when a Claimant qualifies for permanent total benefits from the Second Injury Fund:

(1) All claims against the second injury fund for injuries occurring after January 1, 2014, shall be compensated as provided in this subsection.

(2) Claims for permanent total disability under section 287.200 against the second injury fund shall be compensable only when the following conditions are met:

(a) An employee has a medically documented preexisting disability equaling a minimum of fifty weeks of permanent partial disability compensation according to the medical standards that are used in determining such compensation which is:

(ii) A direct result of a compensable injury as defined in section 287.020; or

(iii) Not a compensable injury, but such preexisting disability directly and significantly aggravates or accelerates the subsequent work-related injury and shall not include unrelated preexisting injuries or conditions that do not aggravate or accelerate the subsequent work-related injury; or

(b) Such employee thereafter sustains a subsequent compensable work-related injury, that when combined with the preexisting disability, as set forth in items i, ii, iii, or iv of subparagraph a of this paragraph, results in a permanent total disability as defined under this chapter; or

(3) When an employee is entitled to compensation as provided in this subsection, the employer at the time of the last work-related injury shall only be liable for the disability resulting from the subsequent work-related injury considered alone and of itself.

Claimant met his burden of establishing the SIF is liable for PTD benefits. There is no evidence Claimant is totally disabled because of the last injury alone. Medical records and testimony establish Claimant had a long history of significant and disabling injuries and health conditions leading up to December 2, 2014.

Pursuant to the requirements of Section 287.220, RSMo. 2014, Claimant has medically documented pre-existing disability equaling at least fifty weeks of permanent partial disability compensation which is the direct result of a compensable injury under the Missouri Workers' Compensation Law (body as a whole - low back). Claimant sustained a work related injury to his lower back in November 2013, when he fell from a machine. I find Dr. Cohen's opinion that

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Injury No. 14-105395

Claimant's significant back injury with the resulting need for major back surgery and resulting significant disability was caused by his work injury of November 13, 2013 to be credible. While Dr. Minges acknowledged Claimant's significant back difficulties, I am not persuaded by his opinion that this is simply the result of a degenerative condition related to the normal process of aging, given that fact that Claimant was only 47-year-old at the time of Dr. Minges' evaluation, and had never experienced any back symptoms before his work accident. Claimant and Employer reached a compromise lump sum settlement for this injury based upon 13.5% permanent partial disability of his body as a whole relative to his lower back. The evidence supports that level of disability. Claimant proved he had a pre-existing medically documented work injury that meets the threshold of 50 weeks of disability.

There is substantial evidence that disability from a non-compensable pre-existing disability directly or significantly aggravated or accelerated the subsequent work injury. Claimant's polio was not a compensable injury as defined in Section 287.020. Therefore, under section 287.220, the disability caused by that condition must equal 50 weeks of compensation and directly and significantly aggravate or accelerate the primary injury that occurred on December 2, 2014. Dr. Cohen credibly testified Claimant had 35% PPD of each lower extremity at the ankle, which satisfies the 50-week requirement set forth in the statute. Dr. Cohen credibly explained how the disability from the effects of his childhood polio aggravated or accelerated his work injury of December 2, 2014.

The parties stipulated Claimant sustained an occupational disease arising out of and in the course of his employment on or about December 2, 2014. His hand intensive work with Employer was the prevailing factor in causing Claimant's syndrome. Claimant credibly testified he frequently had to do heavy lifting with his hands and had to repeatedly change valves, grease equipment, and perform other hand intensive activities requiring the use of all kinds of hand tools. This led to the development of numbness and weakness in his bilateral hands during the summer of 2014, and he was referred for evaluation to a neurologist. EMG and nerve conduction studies confirmed the bilateral carpal tunnel syndrome, and he eventually underwent carpal tunnel release surgery by Dr. Brown in December of 2016. All of these conditions support the settlement for which Claimant received 22.5% PPD of the right wrist and 20% PPD of the left wrist, representing 74.375 weeks of disability.

I find the vocational assessment of Benjamin Hughes, that Claimant is permanently and totally disabled as a result of the combination of the primary and pre-existing injuries is credible and persuasive. I also find Claimant's testimony regarding his current condition to be credible. Claimant had a remarkable work ethic throughout his life, and was a highly motivated individual. Claimant's current level of pain, his need to nap frequently throughout the day, and his difficulty concentrating would preclude him from obtaining or sustaining employment in the open labor market.

The parties stipulated Claimant reached MMI on January 27, 2017. Therefore, the SIF is liable for PTD benefits commencing January 27, 2017, paying the differential rate of 232.14 for 74.375 weeks, and thereafter paying 683.16 a week for Claimant's lifetime.

WC-32-R1 (6-81)

Page 9

Issued by DIVISION OF WORKERS' COMPENSATION

This award is subject to an attorney's lien of 25% in favor of Mr. James Krispin, divided as follows: Mr. James G. Krispin – 66.7% and Mr. John Lake – 33.3%.

I certify that on **12-29-20**, I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

By __________________________


Made by: __________________________

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation