Christopher Swindle v. Alton Construction LLC

FINAL AWARD ALLOWING COMPENSATION

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

Injury No. 14-071392

Employee: Christopher Swindle

Employer: Alton Construction LLC

Insurer: Q B E Insurance Company

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

This workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by $\S 287.480$ RSMo. Having read the briefs, reviewed the evidence, and considered the whole record, we find that the award of the administrative law judge (ALJ) 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 ALJ with this supplemental opinion.

The employee, a manual laborer, alleged a work-related injury to his shoulder and neck on August 8, 2014, while using a twenty-pound sledgehammer to break concrete.

Disputed issues at the hearing were:

1. Nature and extent of permanent disability
2. Future medical
3. Second Injury Fund liability
4. Disfigurement

Chief ALJ Victorine R. Mahon's Award

Among other evidentiary rulings that are not in dispute, the ALJ sustained the Second Injury Fund's objection to the admission of exhibits containing references to employee's school records. The ALJ held, "The records [included in Claimant's Exhibit 6] were offered without a business record affidavit to satisfy $\S 490.692 RSMo, or with the testimony of a qualified witness pursuant to \S 490.680$ RSMo."1

On the merits of the employee's claim, the ALJ found that while the employee "did suffer a very significant work injury . . . he has exaggerated the degree of his physical limitations in his final hearing testimony."2

[^0]

[^0]: ${ }^{1} Award, p. 4 n. 1.

{ }^{2}$ Award, p. 9.

The ALJ discredited vocational expert Philip Eldred's opinion that the employee was permanently and totally disabled (PTD) because Mr. Eldred relied on the employee's subjective complaints. The ALJ found that the employee's Mother's testimony regarding his activities was unreliable because her full-time employment Monday through Friday in addition to a weekend job caused her to be absent from the home for the better part of most days.

The ALJ concluded that the employee is not PTD. Based on Dr. Volarich's original, August 14, 2017, assessment, she found that the employee sustained 50\% PPD of the body as a whole (BAW) related to the work injury. Based on Dr. Dale Halfaker's opinion, the ALJ concluded that the employee further had 9\% PPD to the BAW related to psychological conditions attributable to the primary work injury.

The ALJ awarded the employee six weeks of disfigurement based on the ALJ's evaluation of the employee's neck and anterior and posterior surgical scars.

She found the employee entitled to open future medical to cure and relieve the effects of his work injury, both physical and psychological, under § 287.140. In that employee's evidence establishes he had no preexisting disability that would trigger Second Injury Fund liability under § 287.220.3, the ALJ denied the employee's Second Injury Fund claim.

The employee filed a timely application for review, alleging the ALJ erred in that:

1. She incorrectly refused to admit Claimant's Exhibit 6, consisting of employee's school records, because experts for the employee and the employer/insurer relied on those records.
2. She failed to find employee PTD considering employee's transferable skills, training potential, physical limitations imposed by Dr. Volarich, multiple medications, need to lie down during the day to alleviate pain, $8^{\text {th }}$-grade education, learning disabilities, and depression and anxiety diagnoses.
3. She failed to find employee PTD because no employer would reasonably be expected to hire him, given the employee's physical condition.

Employer/insurer's answer included a request to dismiss the employee's application for review on the basis that it provided no reasoning, case law, or new or additional facts and merely re-argued employee's case. By its order of April 27, 2021, the Commission denied the employer/insurer's motion to dismiss.

The employee references $\S 287.470 as a basis for jurisdiction. { }^{3}$

[^0]

[^0]: ${ }^{3}$ Brief of Appellant, Employee Chris Swindle, p. 1.

Section 287.470 provides:

Upon its own motion or upon the application of any party in interest on the ground of a change in condition, the commission may at any time upon a rehearing after due notice to the parties interested review any award and on such review may make an award ending, diminishing or increasing the compensation previously awarded, subject to the maximum or minimum provided in this chapter, and shall immediately send to the parties and the employer's insurer a copy of the award. No such review shall affect such award as regards any money paid.

The employee does not allege that his condition has changed. Section 287.470 does not apply to the employee's application for review because the ALJ's award is not final and therefore does not constitute an "unpaid" award. The Commission only has authority to consider a change of condition motion under $\S 287.470$ if the employee's weekly payments are ongoing or if the employee's award is final and unpaid. See Johnson v. St. John's Mercy Medical Ctr. 812 S.W.2d 845 (Mo. App. 1991).

Section 287.470, therefore, does not constitute a basis for the Commission to assert jurisdiction over the employee's claim. The only basis for the Commission's authority to address the employee's claim at this juncture is $\S 287.480$, which allows a party to file an application for review to the Commission of an ALJ's award.

The employee's application for review cited no authority in support of his challenge to the ALJ's ruling on Claimant's Exhibit 6, employee's school records. Employee's brief advances no arguments supporting his contention that the ALJ's ruling on the admission of Claimant's Exhibit 6 was in error. We conclude that the employee's attorney has abandoned this issue.

Employee's brief asserts that the Commission should reverse the ALJ's award because it is "completely contrary to the weight of the evidence." ${ }^{4}$ However, the employee fails to establish that the ALJ's award is against the weight of the evidence according to the applicable legal standard. The employee does not address the evidence contrary to his position. Nor does he attempt to prove, in light of the whole record, that this evidence and its reasonable inferences are so non-probative that no reasonable mind could believe the proposition that the employee is not PTD. See Harris v. Ralls Cty., 588 S.W.3d 579, 594-596. (Mo. App. 2019).

We defer to the ALJ's first-hand assessment of the employee's credibility. We affirm her finding that the employee failed to demonstrate that he is unable to compete for any employment in the open labor market and is not, as a factual matter, PTD.

The above findings regarding issues raised in the employee's application for review of the ALJ's award do not detract from her correct analysis of the evidence in the record or her ultimate legal conclusions.

[^0]

[^0]: ${ }^{4} \mathrm{Id} ., \mathrm{p} .20$.

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

The award and decision of Chief Administrative Law Judge, Victorine R. Mahon, issued October 15, 2020, is attached and incorporated herein to the extent not inconsistent with this supplemental decision.

Given at Jefferson City, State of Missouri, this $\qquad 17th \qquad$ day of December 2021.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


Robert W. Cornejo, Chairman

Reid K. Forrester, Member

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Attest:

Secretary

I have read the briefs of the parties and reviewed the whole record. I have considered all of the competent and substantial evidence based on the record as a whole. Based on my review of the evidence and my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I find the employee has proven that injury sustained in his compensable work injury on August 8, 2014, caused permanent total disability.

In determining whether an employee can return to any employment, Missouri law allows consideration of his age and education in addition to his physical disabilities. Baxi v. United Technologies Automotive, 956 S.W.2d 340 (Mo. App. 1997). The central question is whether an employer can reasonably be expected to hire the employee in his physical condition in the ordinary course of business. Ransburg v. Great Plains Drilling, 22 S.W.3d 726,732 (Mo. App. 2000), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc, 2003).

Permanent total disability means an employee cannot compete in the open labor market. Forshee v. Landmark Excavating and Equip., 165 S.W.3d 533, 537 (Mo. App. 2005). This means the employee is unable to perform the usual duties of the employment in a manner that the average person engaged in such jobs customarily performs such tasks. Gordon v. Tri-State Motor Transit Co, 908 S.W.2d 849 (Mo. App. 1995). "Total disability" does not require that the employee be completely inactive or inert. Sifferman v. Sears Roebuck and Co., 906 S.W.2d 823, 826 (Mo. App. 1996), overruled on other grounds by Hampton v. Big Boy Steel Erection, supra. However, it requires a finding that the employee cannot work in any employment in the open labor market, and not merely the inability to return to his last job. Sullivan v. Masters Jackson Paving Co., 35 S.W.3d 879, 884 (Mo. App. 2001), overruled on other grounds by Hampton v. Big Boy Steel Erection, supra.

It is not even a close call, in this case, concerning whether or not the employee is permanently and totally disabled. Undoubtedly, he is.

Dr. Lennard, the employee's treating physician, testified that the employee will not get any better and may get worse. The employee has to lay down periodically every day simply to exist. He takes multiple medications, all prescribed by the authorized treating physician Dr. Bridges, the physician Dr. Lennard selected to treat the employee's ongoing pain management needs. This medication is necessary to help alleviate the employee's pain and simply keep him at his current level of functioning.

His injuries severely limit employee's activities. He does not lift over five pounds. He is constantly sleep-deprived because he cannot sleep through the night. His medications cause him to feel drowsy throughout the day. He has not worked since he performed a couple of weeks of light work for the employer between his first and second surgeries. The employer discharged the employee because he could not perform any work.

The employee's mental condition, which is not in dispute, further limits his ability to function. The employee suffers from depression and anxiety, the sequela of his work injuries, which include living in constant pain, a regimen of medications needed simply to function and feeling worthless.

Dr. Volarich, Dr. Green, and vocational expert Mr. Philip Eldred all agree that the employee is permanently totally disabled due to his work injuries, especially when considering who the employee was and is. The employee has little or no education and has only performed hard labor involving the use of his back and arms. He reads at the $4^{\text {th }}$-grade level. He has a learning disability. The employee did not even complete his first year of high school. He is not a candidate for retraining. Were the employee to go to a job interview, he would be able to offer a prospective employer:

- An $8^{\text {th }}$-grade education.

- No GED.

- No computer skills.

- No typing skills.

- Learning disabilities

- A second-grade level mathematics ability.

- A fourth-grade level reading ability.

- A second-grade level spelling ability.

- Medical restrictions that require him to: avoid using his arms overhead, avoid lifting, pushing, or pulling more than twenty to twenty-five pounds, limit repetitive bending, twisting, lifting, pushing, pulling, carrying, and climbing, avoid carrying any weight over long distances or uneven terrain, and to avoid remaining in a fixed position for more than forty-five to sixty minutes, including sitting and standing, and that requires him to rest when needed.

- Daily headaches are so severe he has to lie down every day.

- Constant neck pain.

- Sleep deprivation.

- Difficulty balancing a checkbook.

- Prior work experience limited to manual labor.

- Feeling drowsy due to daily-prescribed doses of Flexeril, Ability, Gabapentin, and Hydrocodone.

- A person who suffers from depression and anxiety.

- A five-year history of unemployment.

The ALJ unfairly deduced from her limited exposure to the employee at the hearing that he may, in fact, not need to lie down with the frequency he claimed. The ALJ disregarded that the conditions at the hearing were not as long as a standard work period of an hour and a half before a worker gets a break. The record documents the exact time the hearing took place, how long it lasted, and the number of breaks taken by the participants refutes the ALJ's contention that the employee "sat hours at the final hearing." ${ }^{5}$ The employee was seated for four intervals during the hearing, once for fiftyone minutes, once for thirty-six minutes, once for thirty-three minutes, and once for five minutes. The employee broke up the times he was seated by moving during two breaks. He altered his position on an average of every thirty-one minutes. These intervals are consistent with the employee's testimony that he needs to change positions frequently. ${ }^{6}$

[^0]

[^0]: ${ }^{5} Award, p. 9.

{ }^{6}$ See Transcript, pp. 1,9,52,55,90, 130, 134-135.

The employee is permanently totally disabled. No employer in the ordinary course of business can reasonably be expected to hire the employee in his physical condition. Dr. Lennard has advised that the employee's physical condition will not improve. If anything, his physical condition will only get worse. Given his medical restrictions, limited job experience, and mental capabilities, not only will no employer hire the employee, the employee could not perform and hold a job if he could get one.

Because the majority concludes otherwise, I respectfully dissent.

Shalonn K. Curls

Shalonn Kiki 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

OCTOBER 15, 2020

14-071392

Scan Copy


Injury No : 14-071392

Injury Date : 08-08-2014

Insurance No. : 301426835190001

\# Denotes that the Division sent a copy of the Award by electronic mail to the email address that the party provided. The Certificate of Service for this document is maintained in the Division's records.

JASON SHAFFER

1655 S ENTERPRISE AVE STE A2

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

SPRINGFIELD MO 65804-1864

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.

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

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: August 8, 2014.
5. State location where accident occurred or occupational disease was contracted: Springfield, 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 was swinging a sledgehammer and began feeling pain in his neck.
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 and psychological.

Christopher Swindle (Claimant) sustained a work-related injury on August 8, 2014. He appeared in person and with his attorney, John Newman. Attorney Christopher Moberg appeared on behalf of the employer, Altom Construction LLC, its insurer, QBE Ins. Co., and third party administrator (TPA), Sedgwick Claims Management. The Treasurer of the State of Missouri as Custodian of the Second Injury Fund appeared by Assistant Attorney General Skyler Burks. At the outset of the hearing, Jason Shaffer, Esq. representing Cox Health, voluntarily dismissed an outstanding medical fee dispute because the medical treatment Claimant received was not authorized and occurred two years after the date of injury. The remaining parties stipulated to certain facts and narrowed the issues, as follows:

1. On August 8, 2014, Altom Construction, LLC, was an employer operating under and subject to the Missouri Workers' Compensation Law, and during this time was fully insured.
2. On August 8, 2014, Christopher Swindle was an employee of Employer, and was working under and subject to the Missouri Workers' Compensation Law.
3. On August 8, 2014, Claimant sustained an injury, which arose out of and in the course of his employment with Employer.
4. Venue and jurisdiction are proper in Greene County, Missouri where the accident occurred.
5. Claimant notified Employer of his injury as required by § 287.420 RSMo.
6. The Claim for Compensation was filed within the time prescribed by § 287.430 RSMo.
7. Medical Maximum Improvement (MMI) was achieved on November 14, 2016.
8. Employer/Insurer paid $163,023.48 in medical expenses on behalf of Claimant.

1. Temporary total disability compensation has been provided to Claimant in the amount of $\ 16,206.05 and $\ 1,332.24 was paid to the Division of Family Support for a child support lien.
2. Claimant's disability rate for all purposes is $\ 409.89.

1. What is the nature and extent of any permanent disability as a consequence of the work accident?
2. Does Claimant require future medical care to cure and relieve the effects of the work injury?
3. What, if any, is the liability of the Treasurer of Missouri, as the Custodian of the Second Injury Fund?
4. To what extent is Claimant entitled to benefits for disfigurement?

In addition to testimony, the parties offered the following exhibits, all of which were admitted, except as indicated: ${ }^{1}$

1. Medical Records (1A - 1M) - various providers
2. Deposition - Dr. David Volarich (includes CV and reports)
3. Deposition - Dr. Dale Halfaker (includes CV and report)
4. Curriculum Vitae - Phillip Eldred
5. Vocational Report - Phillip Eldred (February 7, 2018)
6. School Records - Christopher Swindle (SIF objection sustained)
7. Ortho Film

A. Notice, 60 day, Dr. Ted Lennard

B. Report - Dr. Ted Lennard (November 29, 2016)

C. Records - relied upon by Dr. Ted Lennard (SIF objection sustained as to portions of the exhibit)

D. Vocational Report - Ben Hughes (October 4, 2018)

E. Deposition - Ben Hughes (June 27, 2019)

F. School Records - Christopher Swindle (SIF objection sustained)

I. Transcript of the Testimony of Christopher Swindle (June 21, 2018)

[^0]

[^0]: ${ }^{1}$ The Second Injury Fund's hearsay objection to the admission of exhibits containing references to school records is sustained. The records were offered without a business record affidavit to satisfy $\S 490.692 RSMo, or with the testimony of a qualified witness pursuant to \S 490.680$ RSMo.

Claimant is 43 years old. He repeated at least one grade in school, completed the $8^{\text {th }} grade, and dropped out prior to the 9^{\text {th }}$ grade after getting into trouble at school. He does not have a GED or formal training. He has no military experience. He currently lives with his mother. Claimant has no hobbies, does not own a computer, and does not type. In deposition, however, Claimant admitted he had a Facebook page and knew how to perform a Google search. Claimant has a history of substance abuse. Around 1997, Claimant had faced both state felony and federal misdemeanor drug charges. He served six months in Leavenworth.

Claimant's job history involved mostly manual labor and working one week in the fast food industry. He had worked about five years as an equipment runner for a framing company, and about a year as a glass installer at Baker Clouse Construction. Prior to that, he worked about 10 years pouring concrete for a company in Kirbyville, Missouri. Claimant worked just four weeks for Altom Construction LLC, as a laborer and equipment manager. He averaged 40 to 70 hours per week. His job required walking, standing, bending, kneeling, squatting, climbing, reaching, carrying, pushing, pulling, handling, and lifting 100 pounds occasionally.

While working for Employer on August 8, 2014, Claimant was using a 20-pound sledgehammer to break concrete. He did not remember the actual point in which he realized he had hurt his neck, but it began to ache about four hours into the job task. Claimant completed all job duties on the day of injury. He did not stop to tell anyone at work about the injury. Because the neck pain was continued and gravitated towards his right shoulder, Claimant eventually sought treatment on August 16, 2014.

When Claimant visited Cox Urgent Care on August 16, 2014, he had neck pain that radiated into his left arm to the elbow. The physician assessed cervical radiculopathy. On August 23, 2014, Claimant went to the emergency room for neck pain. X-rays showed degenerative disc disease at C5-6. He received a prescription for Norco. On August 29, 2014, Dr. Anjum Qureshi saw Claimant for left shoulder pain, which Claimant reported as 6 out of 10 without numbness or tingling. Dr. Qureshi assigned Claimant a work restriction with no lifting, pushing, or pulling more than 10 pounds. At his follow-up visit with Dr. Qureshi on September 2, 2014, Claimant reported mostly neck pain, but also pain in the shoulder and left arm and headaches. An MRI performed on September 5, 2014, revealed a disc extrusion at C5-6 with an osteophyte and impingement on the left C6 nerve root. Dr. Qureshi diagnosed a disc herniation at C6 and recommended that Claimant be evaluated by a neurosurgeon.

On September 25, 2014, Dr. Wade Ceola, the neurosurgeon, initially recommended conservative treatment; however, on November 3, 2014, Dr. Ceola performed a C5-6 anterior cervical microdiscectomy with a C56 artificial total disc replacement. While the surgery improved Claimant's symptoms, he continued to have pain in his neck with numbness in his left hand accompanied by daily headaches.

Dr. Edwin Cunningham next examined Claimant in January 2015. An x-ray revealed an anterior dislocation of the artificial disc. An EMG study performed on February 9, 2015, showed moderate to severe bilateral median neuropathy at the wrist. The next month, Claimant saw Sherrie Arment-Sturtevant at Bridges

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Christopher Swindle

Injury No.: 14-071392

Medical Services regarding his neck and obtained prescriptions. On April 29, 2015, Claimant saw Dr. Ted Lennard with complaints of daily headaches which had increased over the previous eight days. Dr. Lennard believed Claimant had reached maximum medical improvement (MMI), issued a full work release, and rated Claimant has having a 15 percent permanent partial disability (PPD) to the whole body. Claimant returned to work for Employer doing less heavy job duties, which included driving. He received no complaints, warnings, or adverse remarks about his job performance.

Six days later, on May 4, 2015, Claimant returned to Ms. Sturtevant and reported daily neck pain, with some relief since the addition of Hydrocodone. Ms. Sturtevant gave a 15-pound lifting restriction and ordered no work that required tugging or pulling, no ladder climbing, and no driving or operating heavy machinery. A cervical MRI performed on May 21, 2015, revealed a broad-based posterior disc bulge at C4-5 with stenosis and narrowing of the left neural foramina, a central posterior disc bulge at C5-6 with moderate to severe central thecal sac stenosis, severe left lateral recess stenosis with left neural narrowing, and a posterior disc bulge at C6-7 accompanied by central thecal sac stenosis and bilateral foraminal narrowing. Claimant received prescriptions for Neurontin and Hydrocodone and a referral to a surgeon.

On October 13, 2015, Dr. David Volarich performed an Independent Medical Examination (IME) and determined that Claimant had not reached MMI. He did not think physical therapy would be of any benefit. Claimant then returned to Dr. Lennard with complaints of increasing daily headaches, neck pain, and occasional burning in the shoulders. Dr. Lennard recommended injections and imposed a 15-pound restriction on pushing, pulling or lifting, with only occasional bending. Dr. Lennard noted the prior diagnostic study that showed a dislocation of the hardware placed by Dr. Ceola. Following an MRI taken on March 9, 2016, Dr. Lennard diagnosed cervical radiculopathy with a herniation at C6-7.

After a CT myelogram, Claimant returned to Dr. Cunningham on May 4, 2016, who recommended surgery, stating the need for surgery flowed from the work related injury. Dr. Cunningham performed surgery on June 23, 2016, using an anterior approach, in which he removed the artificial disc at C5-6, decompressed the space, spinal cord and bilateral nerve roots. Dr. Cunningham then performed a complete fusion from C5-C7, posteriorly. Claimant believed the second surgery and round of physical therapy substantially improved his symptoms. Claimant now rated his neck pain 2-3 compared to a 7-9 prior to the second surgery. Dr. Cunningham recorded that Claimant was improved, but still had some numbness, tingling, weakness, neck pain, and burning into the shoulders. Dr. Cunningham returned Claimant to the care of Dr. Lennard, who imposed a 10-pound weight, advised against operating heavy equipment, and returned Claimant to physical therapy. Dr. Lennard recorded on September 19, 2016, that Claimant was having daily neck pain, made worse with flexion, with right arm weakness. Dr. Lennard continued the 10-pound limit. On October 17, 2016, Dr. Lennard raised Claimant's lifting restriction to 20 pounds, noting that physical therapy was not resulting in any additional improvement.

On November 2, 2016, Dr. Cunningham released Claimant from his care. On November 3, 2016, Claimant was using Flexeril and Norco. Lidoderm patches were discontinued as they did not alleviate Claimant's pain. On November 14, 2016, Claimant again rated his pain a 2 out of 10 and Dr. Lennard placed Claimant at MMI with a 25-pound lifting, pushing, and pulling restriction, and no overhead lifting. On November 29, 2016, Dr. Lennard assigned an updated rating of 20 percent PPD to the body as a whole. Dr. Lennard found no cognitive deficits.

After his release from Dr. Lennard's care, Claimant returned to the Bridges Medical Services with complaints of ongoing neck pain and received prescriptions for Norco and an increase in Gabapentin. Claimant has continued to follow-up with his family physician on a monthly basis for pain management.

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Christopher Swindle

Injury No.: 14-071392

which has routinely included high doses of narcotic medication. In his testimony at the hearing, Dr. Lennard agreed that Claimant had need for future medical treatment, but he said Claimant had been on narcotics too long. He said long-term narcotic pain medication was not recommended in medical literature and Claimant needed to be weaned from narcotics and placed on alternative medications and treatment.

On August 14, 2017, Claimant again saw evaluating physician Dr. Volarich. As a result of this evaluation, Dr. Volarich rated Claimant as having a 50 percent PPD to the body attributable to the cervical spine due to the cervical radiculopathy and surgery. Dr. Volarich said Claimant should limit repetitive movements. He should not handle weights greater than 20-25 pounds on an occasional basis. He should not lift or carry weights overhead, away from the body, over long distances, or on uneven terrain. He should avoid fixed positions of sitting or standing after 45 to 60 minutes, continue a home exercise program, perform aerobic exercises, walk 30 minutes a day, quit smoking, and seek pain management to quit narcotics. At the time of his visit with Dr. Volarich, Claimant's prescriptions were recorded as Norco, Neurontin, and Cyclobenzaprine.

At the time of Claimant's second encounter with Dr. Volarich, the rating physician did not did not suggest that Claimant was permanently and totally disabled (PTD). It was not until May 17, 2018, after receiving the psychological opinion of Dr. Halfaker and the vocational report of Phillip Eldred, that Dr. Volarich modified his opinion from 50 percent PPD to PTD.

On November 16, 2017, Dr. Dale Halfaker saw Claimant. He opined that Claimant had reached maximum psychological improvement regarding the psychological condition associated with the accident. Dr. Halfaker diagnosed Claimant with a moderate disability associated with an adjustment disorder with mixed anxiety and depressed mood. He testified that Claimant has a chronic and enduring diagnosis under the DSM-V, warranting a nine percent PPD rating to the body as a whole as a result of the work injury. At that time of his examination with Dr. Halfaker, Claimant reported no pain in his shoulder and rated his headaches as 1 on a 0 to 10-point scale. Dr. Halfaker believed this was because Claimant's pain was responding to the medication.

Dr. Halfaker acknowledged that Claimant had a number of potential impairments or weaknesses. He said prior alcohol and drug use, like that of Claimant, can impact an individual's psychological condition. Still, Dr. Halfaker found no preexisting disability. He specifically testified that if he had found a learning disability, he absolutely would have included it in his report. As of the date of his deposition on November 15, 2018, Dr. Halfaker believed Claimant would benefit from a continuation of his psychotropic drugs for a period of at least 12 to 24 months and possibly longer.

Claimant continues to see Dr. Bridges of Bridges Medical Services monthly with complaints of arm numbness, tingling, and weakness, that subjectively worsens with prolonged or repetitive activity. At the time of the hearing on July 20, 2020, Claimant generally had been following the same medication regimen over the course of the past five years. Claimant was taking Cyclobenzaprine (Flexeril) three times per day, Aripiprazole (Abilify) once per day, Gabapentin four times per day or every six hours, and Hydrocodone 10-325, six times per day or every four hours. All parties agree that Claimant was at MMI as of November 14, 2016.

Vocational Experts

Phillip Eldred evaluated Claimant on January 25, 2018, and concluded that Claimant was PTD from the work accident, alone. He testified live at the hearing. He noted that Claimant's past work history primarily had been in manual labor, something that Claimant no longer can perform. Mr. Eldred agreed that Dr. Lennard, a treating physician, placed Claimant in the light to sedentary work level. He admitted that one

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Christopher Swindle

Injury No.: 14-071392

out of every six jobs is light to sedentary. But he still did not believe Claimant could work given a multitude of factors. These included Claimant's need to lie down during the day, lack of a high school diploma or GED, his poor results from the WRAT-IV tests, poor finger dexterity based on the Perdue Pegboard Test results, a lack of computer skills, lack of transferable job skills, and emotional issues. Mr. Eldred said that even if Claimant was capable of sedentary work, Claimant could not qualify for such work because he needs to lie down during the day and no employer will accept that. He also said that Claimant could not be retrained because of physical and emotional impairment. Mr. Eldred admitted that Claimant was not an accurate historian, but he had a pleasant personality which would be helpful in obtaining a job.

On cross-examination by the Second Injury Fund's counsel, Mr. Eldred admitted that he found no preexisting psychological or physical disability. He further agreed that Dr. Halfaker had not diagnosed Claimant with a learning disability.

Ben Hughes testified on behalf of Employer/Insurer. He said that while Dr. Cunningham imposed no restrictions, Dr. Lennard's restrictions would place Claimant at the light level of work, which makes up approximately 60 percent of the open labor market. Additionally, he testified Dr. Volarich's restrictions placed Claimant in the sedentary to potentially the lower level of the light duty work level as well. Accordingly, using Mr. Hughes' report, there are no medical restrictions precluding Claimant from accessing the open labor market. Mr. Hughes believed the doctors' restrictions qualified Claimant for some unskilled to semi-skilled positions. He emphasized that given Claimant's age, he was employable upon review of all the medical records. Contrary to Mr. Eldred's opinion, Mr. Hughes believed that Claimant could be retrained. Mr. Hughes found that during his evaluation of approximately one hour, Claimant never demonstrated a need to stand.

The undersigned Administrative Law Judge personally viewed the anterior and posterior scars on Claimant's neck that remained from the surgeries. They are small. Each scar is less than three inches in length.

Brenda Kay Swindle, Claimant's mother, currently lives with Claimant and with no one else. Ms. Swindle admitted that Claimant does not do much. He does minimal work around the house and little cooking. They no longer purchase large bags of dog food because neither she nor Claimant can lift 50-pound bags of dog food. She said Claimant did not have these issues before the date of injury. Although Ms. Swindle said Claimant lies down during the day and adheres to the doctors' restrictions, she admitted she is away from the home most days. She works a full time job Monday through Friday, and a second job on the weekends at a retirement home. Thus, she is absent from the home for the better part of most days. This necessarily limits her first-hand knowledge of her son's daily activities or inactivity. For that reason, I do not find her testimony reliable as to her son's daily activities and abilities.

Claimant has averred that he can only drive for 20 to 25 minutes due to numbness in his hands or arms. He said he has difficulty sitting upright for more than 15 minutes without neck pain. He testified at the final hearing that he could hardly do anything he used to do, with daily headaches and pain radiating into his shoulders from his neck. He said he has to alter his positions. He iterated at the final hearing that because

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Christopher Swindle

Injury No.: 14-071392

of headaches and neck pain, he lies down for hours during the day. Nothing in the record, however, substantiates that lengthy naps during the day are medically necessary or recommended.

Claimant's current contentions at hearing, and those presented to Mr. Eldred, are inconsistent with his own deposition and inconsistent with his statements to doctors. Prior to the hearing, he had reported feeling 40 percent better after the second surgery and was experiencing pain of only 2 on a scale of 0 to 10 . Claimant reported to Dr. Halfaker that he had headaches of only a " 1 " on a 0 to 10 point scale. He also reported no shoulder pain to Dr. Halfaker. Dr. Halfaker believed that Claimant's pain was reasonably controlled with the benefit of medication. Dr. Volarich opined in his report of August 14, 2017, that Claimant should be engaging in aerobic exercise, including walking 30 minutes daily. In his deposition, Claimant gave sworn testimony that he had no limitations on walking. He sat hours at the final hearing without expressing a need to lie down, or even demonstrating much need to alter his position. Similarly, vocational expert Ben Hughes reported that Claimant never attempted to stand from his seated position during his vocational evaluation which took nearly an hour. For these reasons, I do not believe Claimant's testimony that he must lie down during the day to alleviate headaches and neck pain or that he must alter he positions from sitting multiple times an hour. While Claimant did suffer a very significant work injury, I find that he has exaggerated the degree of his physical limitations in his final hearing testimony.

I also do not find credible Mr. Eldred's opinion regarding the extent of Claimant's permanent disability from the last injury, which relies in part on Claimant's subjective complaint to Mr. Eldred that he must lie down during the day to alleviate his pain. I do not accept as credible Dr. Volarich's addendum report of May 17, 2018, to the extent that Dr. Volarich relied on Mr. Eldred's vocational opinion of PTD from the last injury. I accept as credible Dr. Volarich's disability opinions as expressed in his IME report of August 14, 2017, the opinion and testimony of Dr. Lennard (except as to the exact percentage of disability), the opinions of Dr. Halfaker, and the vocational report and testimony of Ben Hughes.

Claimant bears the burden of proving all material elements of his claim to a reasonable probability. Cardwell v. Treasurer of State of Missouri, 249 S.W.3d 902, 911 (Mo. App. E.D. 2008). The Administrative Law Judge must abide by the instructions of $\S 287.800$ RSMo. That is, to weigh the evidence and resolve all factual conflicts without giving the benefit of the doubt to any party, and construe the provisions of Chapter 287 strictly.

When a claimant alleges PTD, as in the instant case, the Administrative Law Judge first must consider the liability of the employer by determining the degree of disability due to the last injury in isolation. APAC Kansas, Inc. v. Smith, 227 S.W.3d 1, 4 (Mo. App. W.D. 2007). If Claimant's last injury in and of itself rendered him PTD, then the Second Injury Fund has no liability and Employer is responsible for the entire amount. Feld v. Treasurer of Missouri as Custodian of Second Injury Fund, 203 S.W.3d 230, 233 (Mo. App. E.D. 2006).

Permanent total disability means an employee is unable to compete in the open labor market. Forshee v. Landmark Excavating and Equip., 165 S.W.3d 533, 537 (Mo. App. E.D. 2005). This means the inability to perform the usual duties of the employment in a manner that such duties are customarily performed by the average person engaged in such employment. Gordon v. Tri-State Motor Transit Co., 908 S.W. 2d 849 (Mo. App. S.D. 1995). While "total disability" does not require that one be completely inactive or inert, Sifferman v. Sears Roebuck and Co,, 906 S.W.2d 823, 826 (Mo. App. S.D. 1996), overruled on other

Issued by MISSOURI DIVISION OF WORKERS' COMPENSATION

Employee: Christopher Swindle

Injury No.: 14-071392

grounds by Hampton v. Big Boy Steel Erection, 121 S.W.2d 220 (Mo. banc 2003), it does require a finding that Claimant is unable to work in any employment in the open labor market, and not merely the inability to return to his last employment. Sullivan v. Masters Jackson Paving, Co. 35 S.W.3d 879, 884 (Mo. App. S.D. 2001), overruled on other grounds by Hampton. It is within the province of the Administrative Law Judge to determine the extent of any permanent disability. Landers v. Chrysler Corp., 963 S.W.2d 275 (Mo. App. E.D. 1998)

Dr. Ted Lennard placed Claimant at MMI with a 25-pound lifting, pushing, and pulling restriction. Vocational expert Hughes said under this restriction, a person could perform at least a light level or sedentary job. Mr. Hughes believed about 60 percent of all jobs on the labor market were available with light level or sedentary restrictions.

Claimant has stated that his neck pain and arm numbness improved following the second surgery. Claimant testified that when comparing the two surgeries, he felt much better after the second operation. And despite this improvement, he made no effort to return to any work, even though he had returned to some lighter work following his first surgery. Mr. Hughes believed Claimant can work, and cited a number of jobs in his deposition which would allow Claimant to vary his posture from sitting and standing. Although Claimant may have had some difficulty in school, he is not illiterate and Dr. Halfaker did not diagnose any learning disability. Mr. Hughes certainly believed Claimant was capable of being retrained. Therefore, given all of the evidence, I fail to find that Claimant is PTD from the last accident in isolation. Rather, I accept Dr. Volarich's earlier opinion that Claimant has a 50 percent PPD to the whole body attributable to the primary work accident. I also accept Dr. Halfaker's opinion that Claimant has a nine percent PPD to the whole person due to psychological conditions attributable to the primary work accident. This percentage of disability translates to 236 weeks of PPD. At the rate of $409.89, Employer/Insurer is liable for $96,734.04 in PPD benefits as a result of the last or primary accident.

Disfigurement is a distinct benefit under the law. Johnson v. City of Carthage, 427 S.W.3d 903, 904 (Mo. App. S.D. 2014). Section 287.190.4 RSMo, provides for up to 40 weeks of disfigurement when an injured employee is seriously and permanently disfigured about the head, neck, hands, or arms. Having personally viewed the Claimant's neck and the anterior and posterior surgical scars, I award six weeks of disfigurement. At the weekly benefit rate of $409.89, Employer/Insurer shall pay to Claimant $2,459.34 for disfigurement.

Section 287.140 RSMo, requires Employer 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). "Section 287.140.1 makes no reference to a 'prevailing factor' test... The legal standard for determining an employer's obligation to afford medical care is clearly and plainly articulated in section 287.140.1 as whether the treatment is reasonably required to cure and relieve the effects of the injury." (Emphasis in the original). Tillotson v. St. Joseph Medical Center, 347 S.W.3d 511, 518 (Mo. App. W.D. 2011).

As to the prescription regimen, both Dr. Lennard and Dr. Volarich believed Claimant needed to get off the narcotics. But it is clear from the entire record that Claimant still needs some alternative pain management.

Dr. Halfaker said Claimant needed medication for his psychological issues for at least 12 to 24 months and maybe longer. And any prescriptions for treatment necessarily requires consultation with medical professionals. Claimant is entitled to open future medical to cure and relieve the effects of work injury. Employer/Insurer shall select the healthcare providers for both the physical and psychological disabilties, as prescribed in $\S 287.140$ RSMo.

Having determined that Claimant is less than PTD from the last accident, alone, the next question is whether the Second Injury Fund is liable for PTD due to the last injury combining with a preexisting disability. Section 287.220.3 RSMo 2014, applies to all claims against the Second Injury Fund for injuries occurring after January 1, 2014. Cosby v. Treasurer of State of Missouri as Custodian for Second Injury Fund, 579 S.W.3d 202, 207 (Mo. banc 2019). Pursuant to § 287.220.3 RSMo 2014, Claimant must "a medically documented preexisting disability" equaling a minimum of " 50 weeks" of PPD which is:

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

(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

§ 287. 220.3 RSMo 2014.

The expert opinions of Dr. David Volarich, Dr. Dale Halfaker, Mr. Phil Eldred, and Dr. Ted Lennard all fail to identify a significant physical or psychological preexisting disability. Dr. Halfaker specifically said Claimant had some impairments, but nothing was significant enough to be assigned a disability rating. He explicitly found no preexisting learning disability.

Claimant and his mother likewise testified that Claimant was functioning without difficulty prior to the last accident. In his deposition, Claimant said that before August 8, 2014, he could perform all of his job duties, including lifting heavy weights. He was having no difficulty in his personal life while employed at Altom prior to August 8, 2014. He had no limitations in his ability to sit, stand, walk, or drive his personal vehicle before August 8, 2014. He was capable of managing his own finances prior to August 8, 2014. He could read the newspaper. He had no problems helping neighbors mow or put up a fence before August 8, 2014. He also said he had no prior difficulty getting a job. Thus, Claimant's evidence establishes that he did not have a preexisting disability that would trigger Fund liability prior to the August 8, 2014 injury. Claimant's claim against the Fund must be denied.

The Second Injury Fund has no liability.

Employer/Insurer shall pay to Claimant the following:

Employer/insurer shall provide future medical treatment to cure and relieve the effects of the work injury.

The Newman Law Firm, LLC, shall have a lien of 25 percent of all amounts awarded as a reasonable fee for necessary legal services rendered to Claimant.

Interest shall be paid as provided by law.

I certify that on **10-15-20**, 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 **Nay**


Made by: **Victorine R. Mahon** Chief Administrative Law Judge Division of Workers' Compensation