William Watson v. Tuthill Corporation

(Affirming Award and Decision of Administrative Law Judge)

**Injury No. 16-008686**

**Employee:** William Watson

**Employer:** Tuthill Corporation

**Insurer:** Sentry Insurance Company

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

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated September 25, 2020, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Victorine R. Mahon, issued September 25, 2020, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 13th day of September 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Robert W. Cornejo, Chairman

Reid K. Forrester, Member

Shalonn K. Curls, Member

Attest:

Secretary

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

SEPTEMBER 25, 2020

16-008686

Scan Copy

*Employee : WILLIAM B WATSON 13316647 6 9017 W FARM RD 60 WILLARD, MO 65781*Employer : TUTHILL CORPORATION 13316648 3 4840 WEST KEARNEY STREET SPRINGFIELD, MO 65803-8702#Insurer Attorney : RONALD G SPARLIN 320 W 4TH ST JOPLIN, MO 64801-2594#Employee Attorney: RICK S VASQUEZ 1736 E SUNSHINE STE 103 SPRINGFIELD, MO 65804*Insurer : SENTRY INSURANCE A MUTUAL CO 1501 N POINT DR PO BOX 8032 STEVENS POINT, WI 54481#Asst Atty General: ATTY GENERAL ERIC SCHMITT 149 PARK CENTRAL SO STE 1017 SPRINGFIELD, MO 65806

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

Continued

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


1. Are any benefits awarded herein? No.
2. Was the injury or occupational disease compensable under Chapter 287? Yes.
3. Was there an accident or incident of occupational disease under the Law? Yes.
4. Date of accident or onset of occupational disease: February 1, 2016.
5. State location where accident occurred or occupational disease was contracted: Greene County, Missouri.
6. Was above Claimant 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 Claimant was doing and how accident occurred or occupational disease contracted: He was in a cramped spot working with a bolt when his neck popped.
12. Did accident or occupational disease cause death? No. Date of death? Not Applicable.
13. Part(s) of body injured by accident or occupational disease: Neck.
14. Nature and extent of any permanent disability: None.

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

1. Compensation paid to-date for temporary disability: None.
2. Value necessary medical aid paid to date by employer/insurer? $\ 5,058.94.
3. Value necessary medical aid not furnished by employer/insurer? None.
4. Claimant's average weekly wages: $\ 956.66.
5. Weekly compensation rate: $\ 637.77 (TTD \& PTD) / $\ 464.58 PPD.
6. Method wages computation: By agreement.

1. Amount of compensation payable: None.

TOTAL: None.

1. Second Injury Fund liability: None.
2. Future requirements awarded: None.

Claimant: William Watson

Injury No. 16-008686

Dependents: Not Applicable

Employer: Tuthill Corporation

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

Insurer: Sentry Insurance a Mutual Company

Hearing Date: July 17, 2020

Before the

DIVISION OF WORKERS'

COMPENSATION

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

The undersigned Administrative Law Judge convened the Final Hearing on July 17, 2020. Two claims were tried simultaneously: 15-036120 with an injury date of April 23, 2015, and 16-008686 with an injury date of February 1, 2016. William Watson (Claimant) appeared in person and with his attorney, Rick S. Vasquez. Attorney Ron Sparlin appeared on behalf of Tuthill Corporation (Employer) and Sentry Insurance a Mutual Company (Insurer). Assistant Attorney General Michael Bang appeared on behalf the Treasurer of Missouri as Custodian of the Second Injury Fund. The parties reached the following stipulations and narrowed the issues, as follows:

(1) On April 23, 2015, and February 1, 2016, Tuthill Corporation was an employer operating under and subject to Missouri Workers' Compensation Law. Its liability was fully insured with Sentry Insurance a Mutual Company.

(2) On this same date, William Watson was an employee of Employer. Both Claimant and Employer were subject to and protected by the Missouri Workers' Compensation Law.

(3) Both accidents occurring on April 23, 2015 and February 1, 2016, arose out of and were within the course and scope of Claimant's employment with Employer.

(4) The alleged accidents occurred in Greene County, Missouri, making jurisdiction appropriate in Missouri. The parties agreed to venue in Springfield, Greene County, Missouri.

(5) Notice was provided as required by law, and the Claim for Compensation was filed within the appropriate statute of limitations.

(6) For Injury Number 15-036120, Employer and Insurer paid \$24,301.17 in temporary total disability. No temporary total disability was paid with respect to Injury Number 16 - 008686.

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

Injury No.: 16-008686

(7) For Injury Number 15 - 036120, Employer and Insurer paid $125,152.66 in medical benefits. For Injury Number 16 - 008686, Employer and Insurer paid $5058.94 in medical benefits.

(8) Claimant's average weekly wage for both cases was 956.66, yielding a temporary total and permanent total disability rate of 637.77, and the maximum rates of compensation for permanent partial disability. For the 2015 injury, the permanent partial disability rate is 451.02. For the 2016 injury, the permanent partial disability rate is 464.58.

(9) Claimant reached maximum medical improvement on July 18, 2016.

ISSUES

- Are the injuries for which benefits are being claimed medically and causally related to the work for Employer?

- What is the nature and extent of disability in each case?

- Is the Second Injury Fund liable for permanent total disability?

- Is Claimant entitled to future medical care to cure or relieve the effects of either or both the 2015 and 2016 injuries?

EVIDENCE PRESENTED

In addition to live testimony, the parties submitted the following exhibits, all of which were admitted:

**Claimant's Exhibits**

1. Notice of Intent
2. Dr. P. Brent Koprivica, Curriculum Vitae
3. Medical Report/IME - Dr. P. Brent Koprivica (November 28, 2016)
4. Addendum Report - Dr. P. Brent Koprivica (September 29, 2018)
5. Records Reviewed by Dr. Koprivica
6. Vocational Evaluation and Curriculum Vitae - Phillip Eldred
7. Deposition - Phillip Eldred (March 21, 2019)
8. Deposition - Claimant William Watson (August 21, 2017)
9. Records of the Division of Workers' Compensation

**Employer's Exhibits**

A. Answer to Claim - Injury No. 15-036120

B. Answer to Claim - Injury No. 16-008686

C. Intent to Rely Notice

D. Medical Report - Dr. Woodward (May 15, 2016)

E. Medical Report - Dr. Woodward (August 24, 2016)

F. Intent to Rely Notice

G. Medical Report - Dr. Belz (February 27, 2018)

H. Addendum Report - Dr. Belz (October 1, 2018)

I. Notice of Intent to Rely Notice

J. Supplemental Report - Dr. Belz (October 24, 2019)

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

Injury No.: 16-008686

K. Deposition - Michelle Sprecker

L. Deposition Exhibits (Michelle Sprecker)

M. Deposition - Claimant William

N. Prior Claims for Workers' Compensation

O. Disability Report - SSA

P. Function Report - SSA

The Second Injury Fund offered no exhibits.

Claimant was born September 3, 1962. He is 58 years old. He completed the 11th grade, but has no diploma and no GED.

Claimant was a forklift driver for seven years with the Zenith Corporation before he went to work for M.D. Pneumatics. That company later became Tuthill Corporation. Claimant worked 28 years for this employer. In 2015, he toiled as a senior service technician, tearing down and repairing motor or machinery parts at their physical location. He traveled 20 weeks a year throughout the world performing these duties.

Claimant described his job as a senior service technician as physically demanding, sometimes requiring him to handle 100 pounds or more. Despite this heavy work, Claimant denied ever having to miss work due to any physical condition in the years leading up to his April 23, 2015 injury. He denied having any prior limitations on how long he could sit, drive, stand, or walk.

Claimant was in the State of Maryland repairing a vacuum system for one of Employer's clients. While in a confined area, the motor began to fall. As Claimant attempted to catch the motor, he twisted to the right and injured his low back. After the work day, he spent time in the hotel whirlpool to alleviate his back pain. He then managed to return to Springfield where Employer authorized conservative treatment. An MRI on June 1, 2015, revealed marked bilateral L4-L5 facet arthrosis and a synovial cyst. Claimant continued to work during this period, which included job-related trips. Claimant described an excruciating 22-hour flight to South Africa in which he was forced to stand because the pain was intolerable when he sat.

Shortly thereafter, on August 11, 2015, Dr. Cunningham performed a posterior L4-L5 lumbar interbody fusion. Dr. Woodward provided follow-up care and initially released Claimant to light duty work on October 5, 2015. Employer did not accommodate light duty. On January 18, 2016, Dr. Woodward released Claimant to work regular duty hours a day and light duty four hours per day. Employer could not accommodate this type of transition. Claimant finally returned to work January 25, 2016, even though he still was not yet at maximum medical improvement and remained under the care of Dr. Woodward.

In his April 21, 2017 deposition, claimant said he was only able to work three days the first week he returned. He could perform just 20 percent of the job. The job to which he returned was not as physically demanding, but it was more than he could do. Claimant had difficulty getting up and down. He explained that standing on his feet was compressing his back and he would have to lie down every hour for 10 to 15 minutes as well as during his lunch time. During this time, Claimant also was on pain medication.

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

Injury No.: 16-008686

man who used to lift upwards of 100 pounds, now relied on a hoist 100 percent of the time. On February

1, 2016, he sustained a subsequent injury.

Injury of February 1, 2016

On February 1, 2016, Claimant was given tasks at work where he was in an awkward position. While

working with some bolts, he twisted and felt an acute pop in his neck. Claimant received conservative

treatment over the next several months.

Claimant's Retirement

Between January 26, 2016 (his return to work) and April 20, 2016 (date of retirement), Claimant missed 37

days of work, exhausting all of his vacation time and saved attendance points. He decided to retire rather

than risk being fired for missed days. The man who had been a loyal employee for 28 years at the same

location, did not believe he ever could work again. Claimant believes it was the April 23, 2015 back injury

and fusion surgery which effectively ended his career, without consideration of the subsequent neck injury.

Claimant was not at maximum medical improvement for either of his work injuries until after his retirement.

Dr. Woodward released Claimant from his care for the 2015 back injury until July 18, 2016.

Preexisting Disabilities

Claimant admitted that he had suffered injuries throughout his employment with Tuthill that impacted how

he performed his work, but did not stop him from working or performing all of his job duties.

1) Right shoulder - October 18, 1990

On October 18, 1990, Claimant was tightening a bolt when a board broke and injured his right shoulder,

requiring an acromioplasty for chronic impingement of the right shoulder. Claimant was off work from July

1991 to November 20, 1991. He received doctor-imposed lifting restriction of 25 pounds with the right

shoulder. Claimant admitted he was unable to work overhead with his right arm and would have to modify

tasks such as with a ladder or steps. He described nightly pain in his right shoulder if he slept on it. He had

a permanent loss of strength in the right shoulder and could not hold items out in front of him away from

his body. He settled a workers' compensation case for 28 percent of the right shoulder (64.96 weeks). Dr.

Koprivica and Dr. Belz both found that the October 18, 2019 right shoulder injury was vocationally limiting.

Dr. Belz assigned a 25 percent disability at the right shoulder (58 weeks), Dr. Woodward did not address

this injury in his report.

2) Low Back Strains - July 25, 2000 and July 2, 2002

In July 2000, while moving a 200-pound rotor with a co-worker, Claimant strained his low back. The MRI

performed on September 20, 2000 was normal. On July 2, 2002, Claimant again strained his back lifting a

blower. A March 14, 2003 MRI, revealed lower lumbar spondylosis with some chronic changes at L4-L5

and L5-S1. Claimant saw Dr. Crabtree, a neurosurgeon, who made no surgical recommendation. Dr.

Woodward treated Claimant conservatively and released him on September 16, 2013, with a 10 percent

impairment rating, 50 percent of which was assigned to underlying degeneration. Mr. Watson did not pursue

a claim for this injury and subjectively, it did not continue to bother him.

6

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

Injury No.: 16-008686

While Dr. Koprivica detailed no work impediment from the back strains, Dr. Belz would have imposed a 35-pound weight restriction and assigned a 15-20 percent disability to the whole body for the back (60-80 weeks). In his May 11, 2016 report, Dr. Woodward assigned a five percent preexisting impairment; but, he assigned no work restrictions.

3) Left Shoulder - January 18, 2003

While using a "cheater bar" on a 500 pound end plate, Claimant hurt his left shoulder, which required an arthroscopic subacromial decompression by Dr. Putnam in April 2003. Dr. Woodward later treated Claimant and returned him to full duty with a 10 percent permanent partial disability rating on October 1, 2003. The workers' compensation case settled for 15 percent of the left shoulder. Dr. Koprivica did not find this injury a significant impediment to employment and Dr. Woodward does not mention this injury in either of his reports. Dr. Belz provided a 15 percent disability of the left shoulder (34.8 weeks), and would have imposed an lifting restriction of up to 10 pounds on an occasional basis.

4) Umbilical Hernia - January 12, 2009

Claimant underwent a hernia repair with mesh and settled a workers' compensation case for five percent to the whole body. Dr. Koprivica assigned no work limitations for this injury. Dr. Woodward does not address it in his reports. Dr. Belz incorporated this injury with his limitations regarding the low back.

5) Right Elbow

On July 27, 2011, Claimant hurt his right elbow at work. An MRI revealed right elbow lateral epicondylitis and a proximal radial collateral ligament partial thickness tear. Dr. Swango diagnosed brachial plexopathy and right lateral epicondylitis. Claimant obtained a settlement for 18 percent of the right arm at the 232-week (shoulder level). Dr. Koprivica considered this injury in his cumulative total of other disabilities to the right arm. Dr. Woodward does not address the right upper extremity injury of July 27, 2011 in his opinion. Dr. Belz provided an 18 percent disability rating at the right elbow (37.8 weeks). He would restrict Claimant from the use of vibratory tools, noting that Claimant had to learn to use his non-dominant left hand to manipulate nuts and bolts which were not easily visualized.

Medical Opinions

Dr. Koprivica opined that Claimant was permanently and totally disabled due to his April 23, 2015 injury in isolation. Dr. Koprivica gave restrictions of alternating sitting, standing, and walking at will; captive sitting limited to one hour, no squatting, crawling, kneeling, or climbing; avoid vibrations or jarring; avoid lifting from the floor level; limited lifting of 20 pounds to occasional; and accommodate the need to lie down at work to relieve pain. Dr. Koprivica said if it were determined that Claimant was not disabled from the 2015 injury alone, he would assign a 50 percent permanent partial disability to the body as a whole. Dr. Koprivica also gave a 10 percent permanent partial impairment as a result of the 2016 injury, but iterated his opinion that the April 23, 2015 injury, in isolation, caused permanent total disability. He said if the fact-finder did not award permanent total disability from the April 23, 2015 back injury, alone, then Claimant is permanently and totally disabled from the April 23, 2015 back injury, when coupled with the February 1, 2016 neck injury. Dr. Koprivica recommended open future medical. He envisioned the need for pain management and medication as a result of failed back syndrome.

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

Injury No.: 16-008686

Dr. Woodward addressed the 2015 injury in his report dated May 15, 2016. He said Claimant had reached maximum medical improvement (for the 2015 injury) on April 13, 2016. Dr. Woodward afforded a 16 percent permanent partial disability in this report for that work injury, in addition to a 5 percent permanent partial disability for pre-existing low back impairment. Dr. Woodward afforded no work restrictions. For the April 23, 2015, Dr. Woodward prescribed muscle relaxants and a neuropathic pain medication for three months post release to enable claimant to undertake home exercises and then cease.

In his August 24, 2015 report, Dr. Woodward released Claimant from treatment for the February 1, 2016 neck injury. He gave a zero percent rating for the neck based on a lack of objective abnormalities.

Regarding future medical issues, Dr. Woodward had prescribed a home traction device for treatment of the February 1, 2006 neck injury. He specifically said the traction device was to be used for eight weeks, beginning July 12, 2006, and then be discontinued. Claimant thereafter purchased a traction device on his own and continues to use it. Dr. Woodward prescribed no ongoing medications for the neck injury.

Dr. Belz specifically found that Claimant was not permanently and totally disabled based on the 2015 injury in isolation, nor based on the 2016 injury in isolation. He found that Claimant was permanently and totally disabled if one combined both the 2015 and 2016 with all of the preexisting disabilities. In a supplemental report, Dr. Belz opined that Claimant would be permanently and totally disabled when considering the combination of Claimant's 2015 and 2016 injuries with the 1990 right shoulder and his back injuries from 2000 and 2012. He also found that Claimant would be permanently and totally disabled when combining the 2011 shoulder injury with the 2015 and 2016 work injuries.

As to future medical treatment, Dr. Belz believed Claimant should continue to use medication as "currently utilized" for the April 2015 injury (Ex. G, p. 31). Dr. Belz did not believe Claimant needed future medical treatment for the 2016 cervical injury, specifically stating that medications and the cervical traction device was not necessary.

Vocational Opinions

Philip Eldred concluded that Claimant is neither employable nor placeable and is permanently and totally disabled based on the April 23, 2015 injury in isolation. Mr. Eldred testified that if one assumes the opinion of Dr. Belz is accurate, then Claimant is disabled as a result of the combination of impairments as set out by Dr. Belz and remains unemployable.

Michelle Sprecker opined that based on the final reports and restrictions of Dr. Cunningham and Dr. Woodward, Claimant would still be employable. She opined that under some of the doctors' restrictions, Claimant would not be employable, which includes opinions expressed by Dr. Koprivica and Dr. Belz. As far as the reason for any potential unemployability, Ms. Sprecker testified that if Dr. Koprivica is correct in his alternate opinion that Watson is PTD from the 2015 injury combined with the 1990 right shoulder injury, she would agree with him. Likewise, she would agree with opinions expressed by Dr. Belz attributing permanent total disability to the last work injury and the 1990 shoulder injury in combination, or to the last work injury and the prior low back injury up to 2003.

Current Condition

Claimant no longer works. Before his work injuries, he participated in more than 50 fishing tournaments a year. Since his injuries, he participates in only two to four per year, and then only with limitations followed by long rest periods. He continues to have intermitted numbness and tingling in his right foot and calf. Since his release from Dr. Woodward, Claimant has undergone minimal treatment. Claimant has received

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

Injury No.: 16-008686

prescriptive relief, uses over the counter medications, uses a hot tub for pain, and the traction device for his cervical spine.

I find Claimant's testimony credible. While Dr. Belz is a credible individual and believes Claimant is permanently and totally disabled, I accept as more persuasive the opinion of Dr. Koprivica as to the cause of the permanent total disability. I also do not accept Dr. Koprivica's opinion as to future medical treatment as it relates to the February 1, 2016 neck injury. In that regard, I agree with Drs. Woodward and Belz, that no additional treatment is warranted to cure or relieve the effects of the neck injury. Having reviewed the opinions of all of the physicians and given the facts of this case, I further accept Dr. Woodward's determination of no permanent disability from the neck injury occurring on February 1, 2016. Both vocational experts are credible; however, I find Philip Eldred the most persuasive among the vocational witnesses.

Claimant has the burden to prove his right to compensation under the Missouri Workers' Compensation statute. *Duncan v. Springfield R-12 School District*, 897 S.W.2d 108, 114 (Mo. App. S.D. 1995). This includes the burden of proving all essential elements of his claim. *Decker v. Square D. Co.*, 974 S.W.2d 667, 670 (Mo. App. W.D. 1998); *Bruflat v. Mr. Guy, Inc.*, 933 S.W.2d 829, 835 (Mo. App. W.D. 1996). This includes both the burden of production as well as the burden of persuasion. *Smith v. Capital Region Medical Center*, 458 S.W.3d 406, 417-418 (Mo. App. W.D. 2014). The Administrative Law Judge must construe strictly all provisions of the Missouri Worker's Compensation Law and must weigh the evidence without giving the benefit of the doubt to any party. §§ 287.800 and 287.808 RSMo. With these legal precepts in mind, I reach the following conclusions:

#### Causation

There is no credible evidence to support a conclusion that work was not the prevailing factor in the injury of February 1, 2016.

As to the April 23, 2015 injury, Dr. Woodward, Dr. Koprivica and Dr. Belz ultimately all found the injury to be causally related to work as required by the statute. It is only Dr. Belz's first report in 2019 that suggested otherwise, opining that any disability was attributable to preexisting conditions. Dr. Belz later drafted an addendum report which sets forth work as the prevailing factor for the April 23, 2015 injury. The overwhelming evidence proves that work was the prevailing factor in the April 23, 2015 injury.

#### Degree of Disability - Primary Injuries

As noted in *Hughey v. Chrysler Corp.* 34 S.W.3d 845, 847 (Mo. App. E.D. 2000), whenever there is an allegation of permanent total disability against the Second Injury Fund, as in this case, the first determination is the degree of disability from primary or last injury. If the primary or last injury, in isolation, rendered Claimant permanently and totally disabled, then the Second Injury Fund has no liability. *Feld v. Treasurer of Missouri as Custodian of Second Injury Fund*, 203 S.W.3d 230, 233 (Mo. App. E.D. 2006). If Claimant's injury of April 23, 2015, alone causes him to be permanently and totally disabled, it is Employer/Insurer who are responsible for such benefits. The meaning of permanent total disability frequently has been discussed by the Courts of Appeal. Often cited is the test set forth in *Grgic v. P & G Const.*, 904 S.W.2d 464 (Mo. App. E.D. 1995):

MNKOI 0000811646

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

Injury No.: 16-008686

[t]he test for permanent total disability is whether, given the claimant's situation and condition, he is competent to compete in the open labor market.... The central question is whether in the ordinary course of business, an employer would reasonably be expected to hire the claimant in his present physical condition reasonably expecting him to perform the work for which he is hired.

904 S.W.2d at 465.

Because two workers' compensation cases were tried simultaneously, there plausibly are two last or primary injuries: April 23, 2015 and February 1, 2016. Employer/Insurer argue that the only true "last injury," if one strictly construes the applicable statutes, is the February 1, 2016 injury. It further argues that since no physician has found Claimant to be totally disabled from this "last" injury in time on February 1, 2016, any permanent and total disability necessarily lies with the Second Injury Fund. I disagree.

By every account, the back injury of April 23, 2015, necessitating surgery, was the major impairment, whereas the February 1, 2016 neck injury was quite minor. It did not even merit a rating of disability from the treating physician, Dr. Woodward, and only a 10 percent disability rating from Dr. Koprivica. It required no surgery or continued treatment. Claimant's use of traction device was to be temporary only and no longer is prescribed. Of the 2015 and 2016 injuries, it was the April 23, 2015 injury Claimant believed knocked him out of the labor market.

Although Claimant admitted to having pains and limitations accumulated throughout the years, he worked around every injury prior to April 23, 2015. From the time Claimant had returned to work on January 26, 2016, until his retirement in April 2016, however, he needed more than a modification or slight accommodation to continue working. After January 26, 2016, he never performed his job in the manner any employer would have expected on the open labor market. This included frequent days off work and taking multiple breaks to lie down during the day due to his back pain. At the time he "retired," Claimant still had not been released from medical care and was not at maximum medical improvement from his 2015 injury. Claimant was not released from medical care from this April 23, 2015 injury until July 18, 2016. It is abundantly clear from the record, that because of the April 23, 2015 lumbar injury, Claimant was not capable of returning to work in a job on the open labor market. As Dr. Koprivica said, he had a failed back syndrome. He was permanently and totally disabled from the April 23, 2015 injury, in isolation.

While not identical, this case is similar on its facts to Archer v. City of Cameron, 460 S.W.3d 370, 372-73 (Mo. App. W.D. 2015). Like Claimant in the instant case, Archer had brought two compensation claims against his Employer for separate accidents occurring in 2008 and 2010. Like here, Archer's claims were tried together. The administrative law judge found permanent partial disability attributable to each of the claimed injuries, but further concluded that the combined effect resulted in permanent total disability against the Second Injury Fund. On appeal, the Labor and Industrial Relations Commission reversed, and determined that Archer was rendered permanently and totally disabled by the effects of the 2008 injury considered in isolation. The Commission concluded that because the disability from the 2008 injury, no employer could reasonably be expected to hire Archer. The Commission recognized that Archer had continued to work for his employer for two years after the 2008 injury, but this was due to the employer's

1 Maximum medical improvement is defined as "the point at which the medical condition has stabilized and can no longer reasonably improved with additional medical care as determined within a reasonable degree of medical certainty." Section 287.020.12 RSMo 2018. Since Claimant's April 23, 2015 lumbar injury did not reach maximum medical improvement until after the February 1, 2016 neck injury, the lumbar injury does not qualify as a "preexisting" disability to establish Fund liability.

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

Injury No.: 16-008686

accommodations. Archer was not performing the usual duties of his employment in the manner that those are customarily performed by the average person engaged in such work. The Commission concluded that Archer sustained no permanent partial disability from the 2010 injury.

Claimant never returned to work for Employer performing his job duties in a manner that would be expected by an employer in open labor market. The neck injury of February 1, 2016, may have added to Claimant's temporary misery, but it did not, alone or with conjunction of any other injury or injuries, make him any more permanently and totally disabled. Consistent with Dr. Woodward's opinion, I find no permanency from the 2016 neck injury. Even without the neck injury in 2016, and without any of his prior disabilities or conditions, Claimant was permanently and totally disabled from the April 23, 2015 injury in isolation, as opined by Dr. Koprivica.

Because Claimant is determined to be permanently and totally disabled from the April 23, 2015 injury in isolation, there is no liability as against the Second Injury Fund. Claimant's permanent total disability begins as of the date of the maximum medical improvement on July 18, 2016.

Future Medical

Section 287.140 RSMo, requires Employer/Insurer to provide medical treatment as reasonably may be required to cure and relieve an employee from the effects of the work-related injury. To "cure and relieve" means treatment that will give comfort, even though restoration to soundness is beyond avail. *Landman v. Ice Cream Specialties, Inc.*, 107 S.W.3d 240, 249 (Mo. banc 2003).

Dr. Koprivica opined that further treatment was needed flowing from the two primary injury claim dates. Dr. Belz recommended future medications as currently utilized, but he did not recommend ongoing treatment for the neck by way of medication or traction. Dr. Woodward, recommended medication for three months for the 2015 injury date and nothing for the 2016 injury. I award future medical treatment to cure and relieve the effects of the April 23, 2015, back injury. Future medical treatment is denied as to the February 1, 2016 claim.

SUMMARY

Claimant is permanently and totally disabled from the April 23, 2015 work injury, in isolation. It is the last injury for purposes of Injury No. 15-036120.

No permanent disability is awarded for the February 1, 2016 neck injury - Injury No. 16-008686.

Employer/Insurer shall provide future medical care as may reasonably be required to cure and relieve the effects of the work injury occurring on April 23, 2015, which is Injury No. 15-036120. No future medical benefits are awarded with respect to the neck injury of February 1, 2016, which is Injury No. 16-008686.

Permanent total disability benefits in the amount of $637.77 per week shall begin effective the date of maximum medical improvement on July 18, 2016. Such benefits shall continue each week for the remainder of Claimant's lifetime, subject to review and modification as required by law.

Interest, if any, shall accrue as prescribed by law.

Attorney Rick Vasquez shall have a lien of 25 percent of the amounts awarded as a reasonable fee for necessary legal services rendered to Claimant.

11

Issued by DIVISION OF WORKERS' COMPENSATION

Claimant: William Watson

I certify that on 9:25:20, 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: __________________________

Victorine R. Mahon

Chief Administrative Law Judge

Division of Workers' Compensation