Robert Powell v. LME, Inc.

-2 -

testimony, Dr. James Stuckmeyer's restrictions, and vocational expert Mr. Terry Cordray's opinion, that the employee was PTD as a result of his March 9, 2016, work injury. Accordingly, the ALJ assessed liability for the employee's PTD solely against the employer/insurer.

The ALJ awarded future medical treatment related to the employee's need for management of ongoing back pain, including consideration of a spinal cord stimulator, major depression, and somatic symptom disorder. She specifically excluded future medical treatment for the employee's preexisting ADHD or Bipolar Disorder.

The employer/insurer filed a timely application for review, alleging the ALJ erred:

- In not dismissing the employee's claim because the hearing was not concluded within thirty days as required by $\S 287.460$ RSMo.

- By misstating the legal standard that applies to proof of a compensable accident as set out in § 287.020.3(1) RSMo.

- By determining the employee to be PTD, because his psychiatric condition had not reached maximum medical improvement (MMI).

- Failing to credit the employer/insurer's experts Dr. Alexander Bailey and Dr. Neal B. Deutch, regarding the employee's ability to return to employment other than the work he was engaged in at the time of the accident.

- By relying on sitting restrictions imposed by Dr. Stuckmeyer in that Dr. Stuckmeyer provided no restrictions for the length of time the employee could or can sit.

- By finding the employee's work injury to be the prevailing factor causing his mental injury, in that the employee's testimony indicated his mental injury was related to his employment termination and therefore not compensable under § 287.120.9 RSMo. ${ }^{1}$

Whether the employee's claim should be dismissed because the ALJ failed to conclude the hearing within thirty days

Section 287.460 RSMo provides, "The hearing shall be concluded within thirty days of the date of commencement of the hearing, except in extraordinary circumstances where a lengthy trial or complex issues necessitate a longer time than ninety days." The ALJ specifically found that "extraordinary circumstances' existed in this matter that necessitated the hearing conclude longer than ninety days after commencement." ${ }^{2}$ The employee's brief included an expansive discussion of the circumstances that resulted in several continuances, including, inter alia, a change in the employee's prescription medications that adversely affected his mental state and a postponement the ALJ initiated relating to Covid concerns. The employee's attorney further noted that the employer did not object on the record to any of the requested continuances. We defer to the ALJ's judgment in conducting her hearing. We find that the ALJ properly

[^0]

[^0]: ${ }^{1}$ Section 287.190 .9 states, "A mental injury is not considered to arise out of and in the course of employment if it resulted from any disciplinary action, work evaluation, job transfer, layoff, demotion, termination or any similar action taken in good faith by the employer."

${ }^{2}$ Award, p. 3.

Improvee: Robert Powell

- 3 -

exercised discretion in allowing the hearing to last longer than thirty days, as permitted by § 287.460 RSMo.

Whether the ALJ applied the correct legal standard in determining that the employee sustained a compensable accident as set out in § 287.020.3.(1) RSMo.

Section 287.020.2(1) provides, in pertinent part, "An injury by accident is compensable only if the accident was the prevailing factor in causing both the resulting medical condition and disability. "The prevailing factor" is defined to be the primary factor, in relation to any other factor, causing both the resulting medical condition and disability."

At the hearing, the employer/insurer's attorney stipulated that "at issue [is] whether the treatment that Mr. Powell has received, whether the work injury was the prevailing factor of causing said need for treatment . . . and resulting disability therefrom." 3

We are not persuaded that the ALJ's use of the above wording to characterize the issue of the prevailing factor standard, as opposed to parroting the exact language set out in § 287.020.2(2), constituted the application of an incorrect legal standard. We find the employer/insurer's hyper-technical argument on this issue disregards the plain meaning of the ALJ's award and represents, from a logical standpoint, "a distinction without a difference". See Treasurer of Mo. v. Majors, 506 S.W.3d 348, 353 (Mo. App. 2016).

Whether the ALJ erred in determining the employee to be PTD because his psychiatric condition had not reached MMI

At hearing, all parties stipulated to April 12, 2018, the date of Dr. Bailey's release, as the date the employee reached MMI. ${ }^{4}$ We find that the employer/insurer's stipulation on this issue, on the record, precludes it from raising this issue on appeal to the Commission.

Whether the ALJ erred in failing to credit the employer/insurer's experts Dr. Bailey and Dr. Deutch, regarding the employee's ability to return to employment other than the work he was engaged in at the time of the accident

We agree that competent and substantial evidence in the record could support a different conclusion regarding the nature and extent of the employee's permanent disability. That said, we defer to the ALJ's first-hand assessment of the employee's credibility, including his self-reported physical limitations, ${ }^{5}$ her evaluation of the expert testimony produced by both sides at the hearing, and her findings relating to the nature and extent of the employee's permanent disability.

Whether the ALJ erred in relying on sitting restrictions imposed by Dr. Stuckmeyer in that Dr. Stuckmeyer provided no restrictions for the length of time the employee could or can sit

[^0]

[^0]: ${ }^{3} Transcript, pp 7-8.

{ }^{4}$ Id., p. 8. We note that the employer/insurer's attorney at this juncture of the hearing, Mr. Adam M. Brillhart, has not subsequently represented the employer/insurer in this matter.

${ }^{5}$ See Dubuc v. Treasurer of Mo. Custodian of the Second Injury Fund, WD84171 (March 8, 2022), at 11-13, Motion for Rehearing or Transfer pending.

No party disputes that Dr. Stuckmeyer did not impose sitting restrictions. We note the ALJ's award did not affirmatively find that Dr. Stuckmeyer imposed sitting restrictions. Rather, the award referenced vocational expert Mr. Cordray's testimony that "in light of Dr. Stuckmeyer's restrictions that Employee could not return to his prior employment as a truck driver which required him to twist and turn and perform prolonged sitting, as well as lifting and carrying items over 50 pounds." ${ }^{6}$

In our review of the hearing transcript we note that on direct examination, as well as in his written assessment dated November 18, 2018, Mr. Cordray specifically recounted Dr. Stuckmeyer's findings as not including specific sitting restrictions. ${ }^{7}$

This testimony was muddied when the employer/insurer's deposition attorney ${ }^{8}$ asked Mr. Cordray to confirm that Dr. Stuckmeyer was "the only Physician who restrict[ed] [the EE's] ability to sit." Mr. Cordray responded, "Yes, right." ${ }^{9}$

The employer/insurer's attorney, intentionally or unintentionally, based this question on an inaccurate premise. This created confusion and prompted Mr. Cordray to provide a response that was inconsistent with his earlier testimony and his written report. We consider this isolated, inaccurate statement by Mr. Cordray to constitute an honest mistake that does not discredit his hearing testimony as a whole and written report.

The ALJ found, consistent with Mr. Cordray's testimony, that Mr. Cordray "noted throughout his examination that Employee required the need to alternate sitting and standing throughout the two-and-a-half-hour meeting." ${ }^{10}$ Mr. Cordray further noted the employee's self-reported restriction on standing as " 30 minutes at the most."11

We find, as a factual matter, that the employee had significant standing restrictions, based on the employee's credible hearing testimony, his self-reported restrictions, and vocational expert Cordray's personal observation during his examination.

Whether the ALJ erred in finding the employee's work injury to be the prevailing factor causing his mental injury, in that the employee's testimony indicated his mental injury was related to his employment termination and therefore not compensable under $\S 287.120 .9$ RSMo.

Employer/insurer advanced no arguments relating to this alleged point in his brief. We conclude that the employer/insurer has abandoned this point.

[^0]

[^0]: ${ }^{6} Award, p. 11.

{ }^{7} Transcript, pp. 1789-1790, 1848.

{ }^{8}$ We note that attorney Ms. Abagail L. Pierpoint represented the employer/insurer in the March 9, 2016, deposition of Mr. Cordray, and has not subsequently appeared on employer/insurer's behalf in this matter.

${ }^{9} Transcript, 1817.

{ }^{10} Award, p. 11; Transcript, pp. 1787-1788.

{ }^{11}$ Transcript, p. 1806.

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

The award and decision of Administrative Law Judge Emily S. Fowler are attached hereto and incorporated herein to the extent not inconsistent with this decision and award.

Given at Jefferson City, State of Missouri, this $20^{\text {th }}$ day of April 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION


CONCURRING OPINION FILED

Reid K. Forrester, Chairman

Shalonn K. Curls, Member

VACANT

Member

Attest:

Secretary

I concur with Commissioner Curls' decision affirming the award of the administrative law judge (ALJ) in this case.

At the same time, I would like to note the following comments of Dr. Neal B. Deutch:

Dr. Deutch, a licensed psychologist with a specialty in neuropsychology, performed a neurocognitive assessment on the employee on August 20, 2019, and September 3, 2019. Dr. Deutch recorded the employee's self-described long-standing history of mood and behavior-related problems. He noted the employee's previous diagnoses of anger management issues, bipolar disorder, depression, anxiety, and attention deficit hyperactivity disorder (ADHD).

Dr. Deutch noted that the employee had two severe prior motor vehicle accidents. The employee was involved in a roll-over car accident in 2003; his Glasgow coma score upon arrival at the emergency room was a "6." Dr. Deutch testified that a low Glasgow coma score correlated with a severe traumatic brain injury in the long term. Dr. Deutch testified that there was some evidence on the MMPI personality test that the employee was over-reporting symptoms and claimed to have more problems in mood and behavior than he actually had.

Dr. Deutch opined that examination of the employee and his Social Security Disability application supported the diagnosis of bipolar disorder. He noted that the employee self-reported bipolar disorder when filling out paperwork. Dr. Deutch related the employee's sleep issues to his bipolar disorder. Dr. Deutch additionally diagnosed the employee with unspecified depressive disorder, ADHD, mild neurocognitive disorder, and unspecified substance abuse disorder, methamphetamines, and alcohol, in early remission.

Dr. Deutch concluded that, while the employee was presenting with cognitive deficits, these deficits were not due to the March 9, 2016, work event. He advised that the previous diagnoses of bipolar disorder, ADHD, and depressive disorder were not a result of the March 9, 2016, incident. Dr. Deutch believed the employee's reports of depression and family stress were contributing to his abuse of alcohol and methamphetamine. He opined that the employee's family conflict and mood disorder were longstanding and not a result of his work injury. Dr. Deutch concluded that the employee's cognitive issues were instead the result of traumatic brain injury from age sixteen and longstanding problems with cognitive functioning since childhood.

I find Dr. Deutch's opinion credible; however, I do not find it sufficiently persuasive to overturn the award and decision of the ALJ in this case. Therefore, I concur with the result of Commissioner Curls' award.

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

www.labor.mo.gov/DWC

AUGUST 11, 2021

16-015998

Scan Copy

*Employee 13317975 9

103 N. LEE STREET APT 10 BUCKNER, MO 6401-6 *Employee 13317976 6

KANSAS CITY CARTAGE CO 5801 GARDNER AVE DOCK 30 KANSAS CITY, MO 64120 *Employee 13317978 0

WREN CORP LAKEVILLE MOTOR EXPRESS PO BOX 130098 ST PAUL, MN 55113-0001 *Insurer 13317980 3

UNITED STATES FIRE INSURANCE CO 375 BISHOPS WAY STE 225 BROOKFIELD, WI 53005-4216 *Asst Atty General 13317974 2

ATTY GENERAL ERIC SCHMITT 615 E 13TH ST STE 401 KANSAS CITY, MO 64106

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

Continued

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: March 9, 2016
5. State location where accident occurred or occupational disease was contracted: Wyandotte County, Kansas
6. Was above Employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred, or occupational disease contracted: While working in the course and scope of employment, Employee attempted to stop a pallet jack from rolling down a ramp by yanking back on it when Employee felt a sudden sharp pain in his low back.
12. Did accident or occupational disease cause death? No. Date of death? N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Powell

1. Part(s) of body injured by accident or occupational disease: Back and body as a whole and psychiatric injury.

1. Nature and extent of any permanent disability: Permanent total disability

1. Compensation paid to date for temporary disability: $66,448.60 ttd/ $7,974.24 tpd

1. Value necessary medical aid paid to date by employer/insurer? $109,151.26

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

1. Employee's average weekly wages: 1,060.35

1. Weekly compensation rate: 706.90/$464.58

1. Method wages computation: By stipulation

COMPENSATION PAYABLE

1. Amount of compensation payable: Employer owes to Employee permanent total disability benefits of $706.90 per week from April 12, 2018, until so long as Employee remains permanently and totally disabled.

1. Second Injury Liability: I find no liability on behalf of the Second Injury Fund.

1. Future requirements awarded: The Employer is to provide Employee with future medical care to cure and relieve the effects of Employee's injury including, but not limited to, pain management, consideration of a spinal cord stimulator, and psychiatric care for depression.

All benefits awarded are subject to the past due child support liens filed as Respondent's Exhibit M herein.

This Court Awards attorney's fees in the sum of 25% of all benefits herein to Ms. Steffanie Stracke, attorney for Employee.

Injury No 16-015998

Revised Form 31 (2/97)

Page 2

Employee: Robert Powell

Injury No. 16-015998

Dependents: N/A

Employer: LME, Inc.

Insurer: United States Fire Insurance Company.

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

Hearing Dates: June 15, 2020; Nov 9, 2020; March 26, 2021; May 17, 2021

Checked by: ESFidrl

On May 17, 2021, the parties appeared to conclude the above-referenced final hearing, which had been previously partially heard on June 15, 2020, November 9, 2020, and March 26, 2021. Due to extraordinary circumstances the final hearing was not concluded within 30 days as mandated by 287.460 RSMo. This Court finds that "extraordinary circumstances" existed in this matter that necessitated the hearing conclude longer than ninety days after commencement. The Division has jurisdiction to hear this case pursuant to $\S 287.110$. The Employee, Robert Powell, appeared in person and with Counsel, Steffanie Stracke. The Employer at the final two hearings appeared through Counsel, Bruce Levine, and at the first two hearings through Counsel, Adam Brillhart. The Second Injury Fund appeared through Assistant Attorney General, Eric Lowe.

The parties stipulated to the following:

1) That the Employer, LME, was an employer operating under and subject to the provisions of Missouri Workers' Compensation Law on March 9, 2016 and was fully insured by United States Fire Insurance Company;

2) That Robert Powell was its employee and working subject to the law in Kansas City, Kansas, but was hired in Kansas City, Missouri;

3) That Employee suffered an injury by accident arising out of and in the course and scope of his employment on or about March 9, 2016;

4) That Employee notified the Employer of his injuries as required by law and his claim was filed within the time allowed by law;

5) That Employee's average weekly wage was $\ 1,060.35, resulting in a compensation rate of $\ 706.90 for temporary total disability and $\ 464.58 for permanent partial disability compensation;

6) That the Employer paid temporary total disability compensation benefits in the amount of $\ 66,448.60 and temporary partial disability benefits in the amount of $\ 7,974.24;

7) That the Employer paid medical expenses to cure and relieve the effects of the Employee's injury of $\ 109,151.26; and

8) Employee reached maximum medical improvement on April 12, 2018.

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

1) Whether the Employee's work injury was the prevailing factor in causing his need for treatment and resulting disability therefrom;

2) Whether the Employer must provide the Employee with future medical care;

3) Whether the Employee suffered any disability and, if so, the nature and extent of the Employee's disability, whether it is permanent partial or permanent total;

4) If permanently and totally disabled, whether the Employer or the Second Injury Fund is responsible.

The Employee, Robert Powell, testified in person and offered the following exhibits, all of which were admitted into evidence without objection:

Exhibit 1 - Notice of Filing of medical reports of Dr. James Stuckmeyer's reports dated November 13, 2018, and August 14, 2019 and all of the medical records he reviewed

Exhibit 2 - Notice of Filing of medical reports of Dr. Todd Hill's report dated February 18, 2019

Exhibit 3 - Notice of Filing of medical report of Dr. Todd Hill's report dated April 15, 2019

Exhibit 4 - Deposition Transcript of Terry Cordray

Exhibit 5 - Withdrawn

Exhibit 6 - Temporary Award Injury No. 16-015998

Exhibit 7 - Notice of Filing of medical report of Dr. Harold Hess report dated August 5, 2016

The Employer/Insurer did not call any witnesses but offered the following exhibits into evidence:

Exhibit A - Deposition of Robert Powell taken on October 18, 2016

Exhibit B - Deposition of Robert Powell taken January 23, 2020

Exhibit C - Employee's Application for Social Security Disability Benefits

Exhibit D - 60 Day Dr. Alexander Bailey dated April 17, 2018

Exhibit E - Deposition of Neal B. Deutch taken May 29, 2020

Exhibit F - Deposition of Tom Karrow taken May 5, 2020

Exhibit G- Deposition of Dr. Todd Hill taken February 11, 2020

Exhibit H- Facebook Post

Exhibit I - Facebook Post

Exhibit J - 60 Day Alexander Bailey, M.D. letter dated June 18, 2020

Exhibit K - Medical Records of Dr. Matthew John

Exhibit L - Medical Records of Blue Springs Family Care

Exhibit M- February 2021 Child Support Liens from the Department of Family Services

All of the above exhibits were admitted without objection other than the objections contained within Exhibits E and F. The Second Injury Fund did not call any witnesses and offered no additional exhibits into evidence. Based on the above exhibits and the testimony of the witnesses, this Court makes the following findings:

Robert Powell, (hereinafter referred to as Employee) is a 34-year-old male who did not graduate from high school. The highest level of education that he obtained was the $9^{\text {th }}$ grade. He has never been able to pass a GED. Employee was diagnosed with a learning disability in school including ADHD and also had behavior issues as early as elementary school. Employee, at times was home-schooled, in an alternative school, and in a lockdown residential school before he ultimately dropped out of school completely.

Employee suffered from emotional and angry outbursts as early as the fifth and sixth grade and was given Ritalin for his ADHD. Employee described his home environment as dysfunctional and that his father was physically and emotionally abusive. His twin brothers bullied him and beat the "crap out of him."

At the age of 16 Employee was working at Truckomat washing trucks, semis and tractor trailers, which involved climbing in and out of the trucks. This was a full-time job. On September 23, 2003 at the age of 16 , he was involved in a serious motor vehicle accident where he fractured a vertebrae in his back, broke his pelvis, sustained a skull fracture, and broke both legs requiring open reduction and internal fixation of his pelvic fractures and bilateral tibia fractures where he had hardware put in his pelvis as well as his legs from his hips to his knees. The lumbar fracture was treated conservatively. Employee was in a coma for eleven days following that motor vehicle accident and, due to the type of health insurance his parents had, once he was released from the hospital, he did not receive any formal rehabilitation or physical therapy. Despite that, within six months of his accident, Employee had rehabilitated himself and returned to work at Truckomat performing all of the job duties and responsibilities he previously had. He returned to fulltime unaccommodated work. Employee then changed Employers doing similar job duties of washing trucks at a company called Blue Beacon. Employee admitted on cross-examination that he was fired from Blue Beacon following an argument with a co-worker.

Then in August of 2004, Employee was involved in another motor vehicle accident where he struck his head on the windshield. The driver of the other vehicle was killed. After that accident, Employee was admitted to Two Rivers Psychiatric Hospital for problems associated with that motor vehicle accident, along with other underlying stressors in his life.

When Employee was 19 years of age, he was seen for a neuropsychological evaluation by Dr. William Blessing in March of 2006. At that time, Employee was working at Walmart doing maintenance and he reported to Dr. Blessing that he was having difficulty with his memory since his first motor vehicle accident. The hospitalization at Two Rivers Psychiatric was prompted following an apparent suicide attempt in which Employee cut his wrists and was reporting severe depression. At the time of Dr. Blessing's neuropsychological evaluation, Employee was taking Lexapro, Topamax, and Levitra and was having difficulty sleeping, but denied any issues of ongoing chronic pain. At the time of the assessment with Dr. Blessing, Employee was denying any current symptoms of depression or anxiety. After having multiple tests performed by Dr. Blessing, he concluded that the tests revealed that Employee had overall low average range of intellectual functioning and he found his attention to be extremely low to borderline. In terms of memory Dr. Blessing found that Employee was unfamiliar with randomly presented verbal

**Employee:** Robert Powell

**Injury No. 16-015998**

information and that he learned at an extremely low level overall with variability ranging from extremely low to low average levels of efficiency. Spontaneous recall was also at an extremely low level as was his delayed recall. Testing regarding his memory was viewed as valid. Dr. Blessings' analysis indicated that the results of his neuropsychological evaluation produced evidence of significant cognitive status changes. The nature of those changes was represented by abnormal attention, psychomotor slowing, memory impairment, and elements of executive dysfunction. Employee's mental processing and psychomotor reaction time are evidence of his slowing. Attention was considered to be abnormal across all domains. Memory impairment was observed for both verbal and visual memory processing. Dr. Blessing felt that his results appeared to reflect a developmental attention disorder with acquired deficit and cognitive function secondary to head trauma. Dr. Blessing opined that tasks requiring new learning or involving complexity would be performed poorly by Employee.

From 2006 to 2008 Employee performed a variety of temporary positions involving warehousing before he attended truck driving school in 2008. Since completing that schooling, trucking is the only type of employment Employee has done. He worked a series of jobs including at Central Refrigerated where he drove over the road but was not required to load or unload, but would drop trailers. Employee also worked for JB Hunt starting in 2010 and he was contracted with Home Depot where he was required to lift and carry over 50 pounds and unload with a forklift on a trailer and often had to unload the merchandise for the employer when help was needed. Employee then changed employment and began at US Express around 2011, again driving over the road, where his wife was his team driver. In this position he was not required to load or unload. Employee then switched to Rush Trucking in 2011 or 2012 doing local delivery of parts from the Ford plant. In this position he was not required to load or unload. Employee then moved to (NOTS) Northern Truck Service where he was driving local pickup and delivery where he was loading and unloading trailers with pallet jacks. Employee then changed jobs to CRH in 2013 when that company took over NOTS and he continued performing the same position.

Other than at Blue Beacon, Employee testified he generally changed jobs for better pay or benefits, but he did on several occasions voluntarily leave positions due to disagreements with a customer or superior. He did, however, always find a new position until sustaining the March 9, 2016 work injury. Employee admitted he does work better alone or without having someone look over his shoulder.

Employee began working for the primary employer LME, Inc. in 2013. In this position he performed local pickup and delivery using a semi-truck with a trailer and drove in the Kansas City Metropolitan area and a sixty-mile radius. He was required to use pallet jacks to load and unload his truck. Employee was terminated from this employment when Dr. Bailey released him. On March 24, 2017, the parties proceeded to a hardship hearing on the issue of TTD and need for additional medical treatment. The Court will take judicial notice of the Temporary Award entered April 24, 2017, finding that Employee was in need of additional treatment to cure and relieve the effects of the work incident. After the ordered medical care, Employee was unable to pass a return-to-work physical. Employee has not worked since. Employee did apply for some jobs which allowed him to collect federal pandemic assistance. Employee did not believe he could actually perform the jobs he applied for.

Employee testified that prior to the 2016 work injury, he did use a notebook in order to keep track of specific information related to certain jobs due to his memory issues, but other than

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Powell

Injury No. 16-015998

that, he felt he could perform all of the physical and mental demands of each truck driving position which he held between 2008 and 2016, which he performed on a fulltime unaccommodated basis.

The medical records evidence that he had not sought any ongoing medical treatment for the various injuries he sustained in the 2003 motor vehicle accident and medical records, which were admitted, from 2013 to 2015 from Dr. Matthew John and Blue Springs Family Care confirm that testimony. Employee testified that he would occasionally experience aching type symptoms in his back that he attributed to weather changes and sought an evaluation with Dr. Matthew John in May 2014. The medical records from his practice prior to that date of October 29, 2012, make no mention of any type of ongoing back pain nor had he sought any treatment for back pain prior to May 12, 2014. At that time, Dr. Matthew John ordered x-rays, but no follow-up care or medical treatment. When Employee returned to see Dr. Matthew John on October 25, 2014, his prior issue with back pain was not discussed. Employee testified that there was no further follow-up of any kind for his back. At that time Employee was on Effexor and Dr. John's notes indicate that Employee was the happiest he had ever been.

Employee saw a nurse case manager on May 15, 2015 where he was presenting for an ear ache and it is reported that Employee was taking Effexor for his bipolar and that he felt the Effexor helped him feel less aggressive but he was constantly tired and experiencing thoughts of suicide and his depression had increased. As a result, it is recorded that Employee had stopped using the medication and his depression was lessening but the aggression was returning. During this period of time Employee was working fulltime and did not miss time from work. Then on June 19, 2015, Employee saw a nurse practitioner at Blue Springs Family Care where Employee was not treated for back pain but was there for treatment of bipolar disorder, which was a diagnosis which had been made one month prior. He denied any depressive symptoms and was reported to be doing well with Wellbutrin.

On March 9, 2016, Employee, while in the course and scope of his employment as a delivery driver for LME, Inc., was helping a customer unload sheet metal that weighed approximately 500 pounds. The sheet metal was on a pallet jack, and when it started to roll away from him, Employee yanked back on the pallet jack. Employee immediately felt an acute pain in the middle of his lower back. While Employee continued to his next stop, he realized his pain was increasing and becoming unbearable. He then notified his team manager that he was injured and unable to continue working. Employee's wife picked him up and drove him back to the Employer's offices where he completed the necessary paperwork and was sent to the Concentra facility for treatment. Employee was placed on light duty and was referred to Dr. Galate who provided him with epidural injections and physical therapy. Employee did not feel that any of that care helped alleviate his back pain. He was then referred to Dr. Alexander Bailey who ordered physical therapy, medication and another epidural injection. Dr. Alexander Bailey then recommended back surgery in light of the failed effort at conservative treatment, but Dr. Bailey opined that he believed the prevailing factor of Employee's need for surgical intervention was his preexisting condition resulting from the L5 fracture he sustained in the motor vehicle accident and subsequent degenerative changes. Dr. Bailey ordered a functional capacity examination and released Employee at maximum medical improvement.

Employee then took this matter to a hardship hearing and the ALJ ordered that medical treatment be provided and found that the opinion of Dr. Hess was more credible than that of Dr. Alexander Bailey. I agree and incorporate and adopt her findings in the Hardship Hearing Award dated April 24, 2017 herein. Dr. Harold Hess had performed an independent medical

Page 7

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Powell

Injury No. 16-015998

examination, at the request of Employee's attorney, and compared the CT images taken at the direction of Dr. Matthew John on June 24, 2014 to those following the motor vehicle accident on April 9, 2016. He noted that the April 9, 2016 MRI showed a disc herniation at L4-L5 and that the June 4, 2014 CT did not. Given the objective findings on the MRI of the new disc herniation and the credible testimony of Employee that he was not experiencing any ongoing back pain other than slight aching with weather changes following his recovery from the 2003 motor vehicle accident, I find Employee's work accident when he attempted to stop a 500 pound pallet jack was the prevailing factor to cause his injury and need for surgical intervention ultimately performed by Dr. Alexander Bailey. I find there is no evidence that between 2004 and March 2016 Employee had any ongoing serious issues with his back. The medical records for that time frame support that finding.

On November 29, 2017, Dr. Alexander Bailey performed the following:

1) Attempted anterior retroperitoneal approach L4-5 and L5-S1 with findings of severe scar tissue from prior open-book pelvic fracture requiring the abandonment of the surgical approach for the anterior lumbar interbody fusion;

2) Posterior segmental instrumentation and fusion with bilateral pedicle screws and rod spanning L4-L5 and L5-S1;

3) Intertransverse process and interfacet joint fusion bilaterally at L4-L5 and L5-S1;

4) Lumbar spinal decompression at L4-5 and L5-S1;

5) Complete posterior radical discectomy at L5-S1;

6) Partial corpectomy of the inferior portion of L5 and superior portion of S1 with application of interbody fusion devices;

7) Complete posterior radical discectomy at L4-5 with application of interbody fusion devices; and

8) Harvest and preparation of corticocancellous autograft.

At Employee's first follow-up on December 12, 2017, Employee was reporting resolution of his leg symptoms but ongoing back pain. He was referred to light physical therapy and remained off work. In his follow-ups in January and February 2018, Employee was reporting 50 to 60 percent improvement and indicating that he was glad he had the surgery. Dr. Bailey proceeded to increase the physical therapy and eventually sent him to work conditioning and work hardening before releasing him at maximum medical improvement on April 12, 2018 with permanent restrictions of not to lift over 50 pounds which placed him at a level of medium physical demand work.

Dr. Bailey ultimately concluded Employee had a variety of abnormalities in his lumbar spine. He opined that some were related to the previous motor vehicle accident and pelvic hardware placement, and that some were potentially related to the March 9, 2016 accident. Dr. Bailey did not change his opinion regarding the prevailing factor for Employee's medical condition, but rated Employee at 12.5% permanent partial disability of the body as a whole as it applied to the potential impact of the March 9, 2016 accident on the lumbar spine following the results of the surgery.

Employee testified that once the physical therapy began, his symptoms gradually worsened and he could not maintain the level of improvement that he once experienced immediately following the surgery. Employee was seen at his attorney's request by Dr. James Stuckmeyer for an independent medical examination on August 21, 2018. Dr. Stuckmeyer offered an opinion dated November 13, 2018 and opined the work accident of March 9, 2016 was the proximate and prevailing factor of the Employee's back pain, bilateral lower extremity radiculopathy, bilateral positive straight leg raising maneuver, decreased sensation in L5-S1 dermatomes bilaterally and

Page 8

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Powell

Injury No. 16-015998

limitations in range of motion at the lumbar spine. Following the surgery performed by Dr. Bailey, Employee continued to have ongoing symptoms of daily lower back pain and bilateral lower extremity radiculopathy. Dr. Stuckmeyer opined that he did not feel like there were any further surgical options. He did opine that he felt Employee was a candidate for evaluation with a pain management specialist specifically for consideration of a spinal cord stimulator. He opined that Employee had 35% permanent partial disability and work restrictions of "no prolonged standing or walking greater than tolerated; no repetitive bending, lifting, twisting involving the lumbar spine; no lifting below waist height to exceed 20 to 25 pounds on an occasional basis and no lifting above waist height to exceed twenty pounds on an occasional basis." Then following the review of the vocational assessment performed by Terry Cordray on November 28, 2018, and the psychiatric assessment performed by Dr. Todd Hill on April 15, 2019, Dr. Stuckmeyer opined that Employee was permanently and totally disabled from the open labor market considering his injury from March 9, 2016 alone and in isolation.

Employee at the request of his counsel also underwent an independent psychiatric evaluation by Dr. Todd Hill. Employee met with Dr. Hill on February 12, 2019. At that time, Dr. Hill was concerned for Employee's psychiatric health and offered an opinion dated February 18, 2019 stating Employee was not doing well following his work accident due to his inability to work, his ongoing pain issues and lack of social environment. Employee had attempted suicide in June 2018 and sought treatment on his own from Comprehensive Mental Health. However, Dr. Hill was concerned and offered an opinion stating Employee's pressing need for psychiatric treatment was as a result of the work injury and should be offered to him by the employer.

Thereafter, Dr. Hill completed his report dated April 15, 2019. Dr. Hill noted the preexisting psychiatric issues that Employee had. He had the opportunity to review the medical records from Two Rivers Psychiatric Hospital, the neuropsychological testing of Dr. William Blessing and more current psychiatric records from Comprehensive Mental Health. Dr. Hill discussed the preadmission diagnosis Employee had at Two Rivers Psychiatric Hospital in detail and his admitting diagnosis the second time was major depressive disorder with SI (suicidal ideation), PTSD and ADHD. The psychosocial assessment did note that the Employee came from a very dysfunctional home. Employee had been having difficulty sleeping and nightmares since the motor vehicle accident in 2004 where the other driver was killed. Employee was discharged with a diagnosis of Impulse Control Disorder, Bipolar Disorder, Attention Deficit and Hyperactivity Disorder, and Post Traumatic Stress Disorder along with a head injury due to two car accidents and a GAF score of 50. He was discharged on the medications of Topamax, Abilify and Celexa.

The psychiatric assessment performed by Dr. Blessing had been at the request of Employee's primary physician, Dr. Powers, due to issues that Employee was having with memory and cognitive decline following the two motor vehicle accidents. From a psychiatric standpoint, Dr. Hill felt that Employee had experienced a decline following the work-related injury in 2016. He sought psychiatric help in July 2018 from Comprehensive Mental Health. He had suicidal thoughts. Employee had multiple stresses in his life, including his back injury from the work accident on March 9, 2016 and how his life had gone downhill since that time including his separation from his wife and son, his inability to work causing financial difficulties and homelessness. Because he had suicidal thoughts since the work injury in 2018, Employee got rid of his guns. He admitted to Dr. Hill that he had used methamphetamine off and on because he thought it would "kill the pain." Comprehensive Mental Health had diagnosed Employee with Major Depressive Disorder and Bipolar Mood Disorder. They gave him a GAF score of 37.5

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Powell

Injury No. 16-015998

which indicated serious impaired daily functioning secondary to ongoing psychiatric problems. By November 2018 his GAF score at Comprehensive Mental Health had improved to 52 which still ranked him at a moderately severe level of impairment.

Dr. Harry Chance, Employee's psychologist at Comprehensive Mental Health had concluded that Employee did not have bipolar disorder. He felt many of his mood swings and control issues were due to his traumatic brain injury. Dr. Chance noted that Employee had suffered from irritability for many years and was now having difficulty with "concentration, no motivation, no energy and seems to overeat." Employee is isolating himself and sleeping too much. Employee also shared his use of methamphetamine with Dr. Chance. Dr. Chance's diagnoses for Employee as of September 2018 were Major Depressive Disorder, recurrent, severe without psychotic features. He prescribed Prozac and also put Employee on Topamax. In November 2018, Employee discussed his suicidal thoughts with Dr. Chance and although an admission was discussed, Dr. Chance did not think he could commit Employee involuntary. Employee testified that he continued to seek treatment including substance abuse counseling at Comprehensive Mental Health on his own as the Employer did not ever offer or provide any psychiatric services or care to the Employee following Dr. Hill's recommendation.

Employee discussed the collapse of his marriage following the work accident and that his back pain affected his ability to be intimate with his wife and they began to experience financial problems following the work-related injury and this increased his issues with anger as well. He admitted to using methamphetamine to try and make his back pain feel better. He denied ever using methamphetamine prior to the work accident. He then discussed his suicidal attempts since the work accident including one where he overdosed on Valium in approximately June 2018 and one in which he considered shooting himself but did not follow through. Dr. Hill noted that Employee was extremely tearful, anxious and dysphoric throughout his examination and basically sobbed during the entire last hour of his evaluation. Employee advised Dr. Hill that his sleep is erratic and he has difficulty falling asleep and staying asleep and that he feels hopeless and helpless. He reported daily pain on a scale of one to ten starting at four and increasing throughout the day until it is a ten by mid-day. He stated the pain radiates down both of his legs and down to both of his knees. Employee admitted he still has issues with short term memory, as well as concentration and that he felt since the work accident he has lost everything. When he saw Dr. Hill in February 2019, he was taking Buspar, Effexor and Topamax.

Dr. Hill opined that Employee had the diagnosis of Major Depressive Disorder, recurrent severe without psychotic features; Somatic Symptom Disorder with predominant pain and Methamphetamine Use Disorder at moderate and early remission with preexisting psychiatric diagnosis of Mild Neurocognitive Disorder with behavior disturbances secondary to traumatic brain injury and Attention Deficit and Hyperactivity Disorder by history. Dr. Hill recommended cognitive behavior therapy including psychotherapy with ongoing medication management for Employee. Dr. Hill provided his opinion for his diagnosis of major depressive disorder at 40% disability to the body as a whole and for the somatic disorder with prominent pain, he assigned 15% permanent partial disability to the body as a whole. He also noted that for the ten years following the prior neuropsychological testing that Employee had maintained employment. While he did on occasion have difficulty with co-workers and anger control, he was able to sustain fulltime employment. As a result, Dr. Hill provided his opinion, that predating the work accident, Employee had 10% permanent partial disability due to a neurocognitive disorder secondary to traumatic brain injury which predated the March 9, 2016 work accident. Since the work accident he also assigned an additional 5% permanent partial disability to the neurocognitive disorder

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**Employee:** Robert Powell

**Injury No. 16-015998**

secondary to the traumatic brain injury as he felt it had worsened due to the work accident. Dr. Hill did not apportion any disability to the prior diagnosis of ADHD. Dr. Hill noted that Employee could not work in a high stress environment as he had significant difficulty working with other people due to his mood instability. His extreme emotional symptoms would hinder his ability to work around other people due to his crying spells and anger outbursts. He noted that while he would defer to a vocational expert, all the Employee's jobs involved physical labor and driving trucks. Dr. Hill felt that the Employee's psychiatric disabilities alone would significantly disable him. On cross-examination, Dr. Hill stated that Employee's prior 10% disability from his neurocognitive disorder did not have any significant impact on Employee's current psychological profile. Dr. Hill felt Employee's issues were under good control for the ten years prior to the work accident during which he maintained full-time employment.

Employee demonstrated many of the emotional problems documented in his psychiatric records at the hearing. At the first hearing, Employee began crying and could not stop. As a result, the hearing was continued. At the second hearing he became agitated during cross-examination and stormed out of the hearing. Another continuance was granted. At the final hearing there was a 45-minute recess due to Employee crying and being unable to stop to resume his testimony. I find these actions to be a sign of genuine emotional distress on the part of the Employee. Employee's deposition testimony, statements to medical providers, experts and his hearing testimony were all consistent, and I find him to be credible.

Employee was evaluated at his attorney's request for a vocational assessment, performed by Terry Cordray, on October 31, 2018. Mr. Cordray offered his vocational assessment dated November 28, 2018 and provided his deposition testimony. After reviewing the Employee's vocational history, the permanent work restrictions placed on him by Dr. Alexander Bailey and Dr. James Stuckmeyer, Mr. Cordray noted that Mr. Powell completed the 9th grade and did not graduate from high school nor had a GED. He had been diagnosed as having ADHD in middle school and attended alternative school. Therefore, for vocational rehabilitation purposes, Mr. Cordray considered Employee to be an individual with a limited educational background and that his lack of any computer knowledge or training related to sedentary jobs would have a limiting effect on his ability to access jobs considering his physical limitations. Terry Cordray noted that since 2008, Employee had obtained skills associated with a job of a truck driver and utilized his skills in that field for eight years performing truck driving. Employee had only performed unskilled physically demanding employment. Mr. Cordray noted throughout his examination that Employee required the need to alternate sitting and standing throughout the two and a half hour meeting. Mr. Cordray performed vocational testing on him, including the Wide Range Achievement test and the Wonderlic test. Employee scored in the 6.9 grade level in reading, 6.7 grade level in spelling and 4.5 grade level in math. He scored a 90 on the Wonderlic, which put him at the lowest level of the below average range of intelligence. Mr. Cordray opined that after considering the vocational testing and the report of Dr. James Stuckmeyer, it was his opinion that the Employee was not a candidate for vocational rehabilitation and he felt it unlikely that Employee could obtain a GED.

In light of the well documented memory problems and Employee's credible testimony, I agree and find Mr. Cordray's opinion that Employee is unlikely to ever be able to obtain a GED credible. Mr. Cordray testified that, in light of Dr. Stuckmeyer's restrictions that Employee could not return to his prior employment as a truck driver which required him to twist and turn and perform prolonged sitting, as well as lifting and carrying items over 50 pounds. Further, Mr. Cordray opined that Employee, based on his current limitations and restrictions, could not

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Injury No. 16-015998

perform any of his relevant past work. The FCE performed on April 6, 2018 measured that Employee had the ability to stand for 40 to 50 minutes and walk for 12 minutes, but it did not measure his ability to sit. Mr. Cordray noted that truck drivers are required to sit for up to ten hours per day in a truck cab. Mr. Cordray opined that, based on the restrictions of Dr. Stuckmeyer, this would mean Employee could only perform sedentary jobs and that sedentary jobs that require occasional standing no more than two hours represent less than 2 % of the labor market. Mr. Cordray opined that Employee could not perform the standing, walking and climbing requirements of any light retail job. When he considered his vocational factors of no GED education, lower intelligence, is poor in spelling and math and was unable to obtain a GED and unable to perform any of his past employment, with no transferable skills, no computer skills and is not capable of obtaining any sedentary computer skills, it was his opinion that Employee was totally vocationally disabled from the last accident on March 9, 2016 in isolation.

Employee described his daily pain on a scale of one to ten with an average level of pain a five or a six but the lowest the number it goes is a four and the highest is about an eight. He attributes that increase in pain to any type of movement. Employee testified that he can sit without needing to change positions due to an increase in pain anywhere between five and forty minutes and he cannot stand for more than fifteen minutes. Employee has given up his hobby of working on cars because he cannot stand and bend over them to perform the work. Employee testified that he has difficulty playing with his son or taking him outside to do anything. Employee testified that, if he does not follow his restrictions by avoiding bending, lifting or twisting of the lumbar spine, it will increase his pain, so he tries to stay within those restrictions. Employee testified the most he tries to lift is a 24 -pack of soda or a gallon container of milk. Otherwise, he tries to stay within the restrictions prescribed. Employee's sleep is interrupted due to pain and he constantly wakes up having to change position every couple of hours and, therefore, doesn't get much sleep which causes him to sleep throughout the day. He is always tired. At the time of the second convened hearing in this matter, Employee testified that he was taking medication prescribed by Comprehensive Mental Health for his psychiatric conditions, which include Buspar, Topamax and Effexor. He agreed with Dr. Chance's notes that he often feels that he has no energy or motivation. Employee testified that his inability to sleep also affects his ability to concentrate. Employee confirmed that prior to his accident on March 9, 2016, none of his preexisting conditions, whether it be back pain or any psychiatric condition, caused him to miss time from work or be unable to perform his work.

On cross-examination the Employee admitted that he has pending charges for alleged check forgery and possession of methamphetamine. Employee is presumed innocent, and I must consider the evidence as it was presented during the hearing. I, therefore, cannot know the outcome of those charges or how those matters will be resolved. These allegations do not change my opinion that the Employee gave credible testimony. He was always honest about his use of methamphetamine after the work accident. Mr. Cordray reached his conclusion that the Employee could not access the open labor market before those charges existed.

Dr. Deutch, a neuropsychologist, performed a neuropsychological assessment on Employee in August and September of 2019 at the Employer's request. Dr. Deutch noted that the Employee participated willingly and cooperatively. Employee admitted he did not feel his cognitive problems were related to the work accident but rather due to the motor vehicle accident he was involved in when he was 16. Employee did not feel as though his mood or behavior issues were related to the work accident in 2016. Dr. Deutch recorded that Employee reported problems with short term memory, attention, concentration, difficulty understanding what he is reading,

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Powell

Injury No. 16-015998

taking longer to do things, trouble understanding what is said to him, following directions, decision making, procrastination, initiating and completing chores, math, and unable to work. Dr. Deutch recorded that Employee has reported mood and behavioral symptoms most of the day, every day, loss of interest or pleasure in previously enjoyed activities, sleeping for days and then being unable to sleep for days, feelings of worthlessness, excessive anxiety and worry, restlessness, irritability, muscle tension and panic attacks. Dr. Deutch performed a wide range of testing procedures on Employee and concluded that Employee had given a full effort. He did note that Employee had a poor memory but felt that the testing results should be considered a valid representation of the Employee's current level of cognitive functioning. Dr. Deutch noted that Employee's response to the MMPI2 indicated significant emotional distress.

Other assessments performed by Dr. Deutch concluded that Employee's pre-morbid functioning were estimated at average and his word reading was low average, his math calculation was extremely low, sentence comprehension was low average and word reading and sentence comprehension was low average. The immediate memory for word list was extremely low as was his immediate logical and recognition memory for word lists. Dr. Deutch considered that Employee did have variability in cognitive functioning and a high level of mood and behavior related problems which he felt were related not to the work event but rather to the prior motor vehicle accident or long-standing problems with cognitive functioning since childhood. Dr. Deutch did feel that Employee required treatment for mood and behavior related problems and required psychiatric treatment to assist with the selection of medication for mood and behavior psychotherapy but concluded that those needs were not related to the work accident. Dr. Deutch is a neuropsychologist and not a psychologist or psychiatrist. Dr. Deutch did not administer any testing related to depression and did not give Employee a depression scale test. Dr. Deutsch does not appear to address or reach any conclusion whether Employee suffered from depression as a result of the work-related injury or any other psychiatric diagnosis. He appears to simply conclude that any issues related to cognitive functioning stem from his prior motor vehicle accident or developmental diagnosis. Dr. Deutch admitted on cross examination that Employee was able to manage and maintain employment prior to the work accident in 2016.

Employee was also seen by a vocational expert at the Employer's request, Tom Karrow. Mr. Karrow resides in South Dakota and in North Carolina. Employer offered into evidence a December 19, 2019 report and deposition testimony from Tom Karrow, a vocational rehabilitation consultant. Mr. Karrow reviewed an August 4, 2017 psychological evaluation by Dr. Jane Ruedi. He noted that she diagnosed Employee with mild neurocognitive disorder due to traumatic brain injury and bipolar I disorder mild. Mr. Karrow referred to a report by Dr. Michael Schwartz that opined that Employee's difficulties had more to do with his traumatic brain injury than bipolar disorder. Mr. Karrow advised that Dr. Blessing stated in the March 31, 2006 report that Mr. Powell demonstrated significant strength in visuospatial intellectual processing which would allow him to assemble objects or work on things visuospatially. Mr. Karrow noted that Dr. Hess gave Employee restrictions of no more than 10 pounds of lifting, pushing, or pulling. He noted that Dr. Bailey cleared Employee to return to medium duty lifting or carrying of 50 pounds. Mr. Karrow advised that Mr. Powell was not registered with the Missouri Workforce Center. He testified that, by not being registered there, Employee precluded himself from being considered for 25% of all positions open and available in his restrictions. Mr. Karrow testified that it was his vocational opinion that not being registered with Missouri Workforce Center indicated that Employee did not want to be employed. Mr. Karrow stated that Employee had informed him that he had not applied for any jobs. He believed that this indicated that Employee had convinced himself he could not work. Mr. Karrow concluded that there was no indication that Employee was cognitively disabled.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Powell

Injury No. 16-015998

from all forms of entry-level work. He opined that Employee was capable of finding full-time gainful employment opportunities within his physical and cognitive capabilities. Mr. Karrow advised that, based on Dr. Bailey's restrictions, Employee could return to work as he previously had done as a truck driver or in a medium duty cleaning position. He noted that some of these truck driving positions could exceed the 50 pound restriction given by Dr. Bailey. Mr. Karrow explained that Employee could also get no-touch truck driving positions that would be within the restrictions given by Dr. Bailey. He stated that the truck driving positions would require a Department of Transportation Medical Card. Dr. Karrow testified he believed that Employee could get a DOT medical card. Mr. Karrow believed sedentary positions such as Lyft, Uber, Grubhub, Door Dash, Postmates, Waitr, and Instacart, were well within Employee's restrictions. He testified that these positions did not require a CDL and that food delivery positions would require minimal contact with the public. Dr. Karrow opined that security positions at Casinos would also accommodate Employee's restrictions.

In reviewing Mr. Karrow's testimony and reports it appears Mr. Karrow authored an opinion dated December 19, 2019 wherein he referenced on page 2 all of the records he had available to him at the time of his assessment. Those records did not include the opinion of Dr. James Stuckmeyer, Dr. Todd Hill or that of Dr. Deutch. Mr. Karrow testified on cross-examination that those records were not available to him before changing his testimony and indicating that he had in fact considered them, but failed to reference them in his report. No billing entries reference a review of those records. Mr. Karrow's report does not reference Dr. Stuckmeyer, Dr. Hill or Dr. Deutch's reports. As such, I do not find his opinion to be as credible as Mr. Cordray. It is difficult to determine whether the records were available to Mr. Karrow or whether he reviewed them but did not consider them in his report or that he never received the records. I, therefore, find his opinion flawed and incomplete. Mr. Karrow did not consider the restrictions of Dr. Stuckmeyer; he did not consider the limitations on sitting, standing and walking which Dr. Stuckmeyer placed and which I find to be credible. Mr. Karrow also did not consider the neuropsychological testing performed by Employer's own expert, Dr. Neal Deutch, which clearly demonstrated deficits in Employee's memory and ability to learn new tasks.

The issues to be determined by this Court include: whether the Employee's work injury was the prevailing factor in causing his need for treatment and resulting disability therefrom; whether the Employer is liable to the Employee for future medical treatment related to the work injury; whether the Employee sustained any permanent disability as a result of the work injury and, whether the employer or the Second Injury Fund are liable if such disability is determined to be permanent total disability.

The first issue to be determined is whether the Employee's work injury was the prevailing factor in causing his need for treatment and resulting disability therefrom I find that the work accident as previously described was the prevailing factor to cause the need for surgery performed by Dr. Alexander Bailey and was the cause of the ongoing disability that Employee has of both a physical and psychiatric nature. I specifically find that the work accident caused a herniated disc at L4- L5 necessitating the extensive surgical procedure performed by Dr. Alexander Bailey. I find that, prior to the work event, Employee was only periodically experiencing aching in his back and certainly did not have any indication that he had ongoing daily back pain or leg pain that necessitated the surgery that was required following the injury on March 9, 2016. I further find that due to the work injury of Employee suffers additional psychiatric injury of Major Depression and Somatic Symptom Disorder as discussed by Dr. Hill in the form of additional depression.

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Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Robert Powell

Injury No. 16-015998

The next issue to be determined is whether the Employer is liable to the Employee for future medical treatment related to the work injury. I find that the Employer is responsible to the Employee for future medical treatment. Specifically, Dr. Stuckmeyer has recommended ongoing pain management which may include the consideration of a spinal cord stimulator to manage the Employee's ongoing pain. I further find that, while the Employee had preexisting psychiatric diagnoses for which he took medication, he did not actively require counseling nor did his psychiatric conditions prevent him from maintaining his full-time, unaccommodated work that he performed as a truck driver for the last eight years prior to the 2016 work injury. I find his diagnoses of Major Depression and Somatic Symptom Disorder were caused by the work accident and, therefore, Employer/Insurer are responsible to treat those conditions as recommended by Dr. Hill. I am not ordering treatment for Employee's preexisting diagnosis of ADHD or Bipolar Disorder.

The last issues to be determined are whether the Employee sustained any permanent disability as a result of the work injury and, whether the employer or the Second Injury Fund are liable if such disability is determined to be permanent total disability. I find that the Employee has sustained permanent total disability as a result of his work injury. The test for permanent total disability is whether, given the Employee's situation and condition, he is competent to compete in the open labor market for work. Reiner v. Treasurer Mo., 837 S.W. 2d 363, 367 (Mo.App.E.D. 1992) Total disability means the inability to return to any reasonable or normal employment. Lewis v. Kansas Univ. Medical Center, 356 S.W. 3d 796,800 (Mo.App.E.D. 2011). The term "total disability" is defined as the inability to return to any employment not merely the inability to return to employment in which the employee was engaged at the time of the accident. Id. It does not require the Employee to be completely inactive or inert. In the present matter, I believe the Employee is totally disabled. I find the restrictions of Dr. Stuckmeyer to be more credible than those of Dr. Alexander Bailey who performed a very extensive surgery on Employee and I find Employee's testimony about his ongoing symptoms credible and consistent with the nature of that surgery.

If the Employee's last injury, in and of itself, rendered him permanently and totally disabled, then the Second Injury Fund has no liability, and the employer is responsible for the entire amount. Atchison v. Missouri State Treasurer, 603 S.W. 3d 719, 725 (Mo.App.S.D. 2020). While Employee sustained serious orthopedic injuries in his 2003 car accident, within 6 months he was recovered and engaged in full-time, unaccommodated medium to heavy labor until he sustained the work injury in 2016. Further, while he clearly had a difficult childhood, has ADHD, and was treated for bipolar (whether diagnosed correctly or not), he was again working full time without accommodation until the work accident in 2016.

Changes in the Second Injury Fund law in 2014, §287.220(3) provide Second Injury Fund liability only if the Employee has fifty weeks of preexisting permanent partial disability that fall into one of the four subcategories set forth in that statute. While Dr. Stuckmeyer does opine that the Employee had 50 weeks of preexisting disability associated with the orthopedic injuries he sustained in the 2003 motor vehicle accident, there is no expert testimony that would indicate that condition of preexisting disability "directly and significantly aggravates or accelerates the subsequent related injury." Moreover, I do not find that condition represented an obstacle or hindrance to Employee's employment since Employee returned to full-time work and had no difficulty with heavy lifting or prolonged walking, standing or sitting following that accident. While Dr. Hill identified, as did Dr. Deutch, that Employee had preexisting neurocognitive disability, only Dr. Hill rated that condition. Dr. Hill assigned a 10% permanent partial disability

Page 15

**Employee:** Robert Powell

**Injury No. 16-015998**

or 40 weeks of disability to that diagnosis. Dr. Deutch did not assign any level of disability. Further, no doctor opined that his preexisting disability "aggravated or accelerated the subsequent work-related injury." It was not until the work injury in 2016 that Employee was placed under permanent work restrictions that I find would prevent him from accessing the labor market with his limited education and lack of a GED. While he is a younger worker, I agree with Mr. Cordray that he would not have the ability to obtain a GED and, moreover, could not tolerate the sitting required of a sedentary job. I find the Employee does not have the ability to successfully complete a GED and he reached his maximum level of employment as a truck driver which I find that he can no longer perform. Ultimately, I find that, based on his testimony and his ongoing restrictions of Dr. Stuckmeyer, he is disabled from all employment even without considering the preexisting disability which he had stemming from his motor vehicle accident or his prior psychiatric diagnoses. As such, I find the Employer/Insurer responsible for permanent total disability in this case. I do not find the Second Injury Fund liable for permanent total disability benefits in this matter.

This Court finds that Employee is permanently totally disabled due to the injuries he sustained from the work accident of March 9, 2016 alone. The Employer is to provide Employee with future medical care to cure and relieve the effects of Employee's injury including, but not limited to, pain management, consideration of a spinal cord stimulator, and psychiatric care for depression. Dr. Bailey placed the Employee at maximum medical improvement and the parties have stipulated that the Employee reached maximum medical improvement on April 12, 2018. Therefore, Employer/Insurer is liable for permanent total disability benefits in the amount of $706.90 per week beginning on April 12, 2018 and shall remain liable to Employee for permanent total disability of $706.90 per week for Employee for so long as he remains permanently and totally disabled.

The compensation awarded to the Employee shall be subject to a lien in the amount of 25% of all benefits awarded, by Employee's attorney Steffanie L. Stracke of Edelman & Thompson, LLC for services rendered.

The compensation awarded is also subject to the child support liens filed in this matter and should be honored according to law.

---

I certify that on **8-11-21** 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 **Mgr.**


Made by: **Emily Fowler**

Administrative Law Judge

Division of Workers' Compensation

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