Qemal Toska v. American Pulverizer

(Affirming Award and Decision of Administrative Law Judge)

Employee: Qemal Toska

Employer: American Pulverizer

Insurer: Technology Insurance Company

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

Injury No. 17-075220

The above-entitled workers' compensation case is submitted to the Labor and Industrial

Relations Commission (Commission) for review as provided by § 287.480 RSMo.

Having reviewed the evidence and considered the whole record, the Commission finds

that the award of the administrative law judge is supported by competent and

substantial evidence and was made in accordance with the Missouri Workers'

Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award

and decision of the administrative law judge dated September 9, 2021, and awards no

compensation in the above-captioned case.

The award and decision of Administrative Law Judge Lee B. Schaefer, issued

September 9, 2021, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this 13th day of May, 2022.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

Reid K. Forrester, Chairman

DISSENTING OPINION FILED

Shalonn K. Curls, Member

Rodney J. Campbell, Member

Attest:

Secretary

I have reviewed and considered all of the competent and substantial evidence within the record. Based on my review of the evidence as well as my consideration of the relevant provisions of the Missouri Workers' Compensation Law, I believe the award of the administrative law judge (ALJ) should be reversed.

I find Dr. David Volarich's opinions to be credible and persuasive. The ALJ should have 1) found Dr. Volarich more persuasive than Dr. Daniel Kitchens; 2) determined that employee sustained an occupational disease at employer/insurer on September 8, 2017; and 3) should have made findings in regard to temporary total disability, permanent and partial disability and past medical bills.

Although permanent total disability was not directly stated as an issue for determination at the ALJ hearing, the evidence does appear to show that employee was permanently and totally disabled from the combination of his preexisting March 27, 2009, back injury and his September 8, 2017, primary back injury.

Dr. Volarich found that employee was 35\% permanent partially disabled from his preexisting 2009 back injury, and that his 2017 primary back injury resulted in an additional 35\% permanent partial disability rating. Dr. Volarich further opined that employee was permanently and totally disabled as a result of his 2009 and 2017 back injuries. Vocational expert Mr. James Israel determined that employee could not compete in the open labor market due to the combination of his 2009 and 2017 back injuries.

Because the majority of the Missouri Labor and Industrial Relations Commission has determined otherwise, I respectfully dissent.

Shalonn K. Curls Member

3315 WEST TRUMAN BLVD, P.O. BOX 58 JEFFERSON CITY, MO 65102 PHONE: (800) 775-2667

www.labor.mo.gov/DWC

SEPTEMBER 09, 2021

17-075220

Scan Copy

*Employee : QEMAL TOSKA 13318069 4 2430 TELLICHERRY DRIVE APT. 300A SAINT LOUIS, MO 63125*Employer : AMERICAN PULVERIZER 13318070 0 1319 MACKLIND AVE SAINT LOUIS, MO 63110#Insurer Attorney: JOHN M ALLEN PO BOX 1017 BUFFALO, NY 14201 #Employee Attorney: FRANK J NIESEN III 319 N FOURTH ST SUITE 200 ST LOUIS, MO 63102*Insurer : TECHNOLOGY INSURANCE COMPANY 13318071 7 c/o S & C CLAIMS SERVICES INC 3737 S ELIZABETH ST STE 101 INDEPENDENCE, MO 64057#Asst Atty General: ATTY GENERAL ERIC SCHMITT 815 OLIVE ST STE 200 ST LOUIS, MO 63101

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

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

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

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

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

DIVISION OF WORKERS' COMPENSATION

Continued

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

Employee: Qemal Toska

Injury No.: 17-075220

Dependents: N/A

Employer: American Pulverizer

Additional Party: Second Injury Fund

Insurer: Technology Insurance Company c/o

S \& C Claims Services, Inc.

Hearing Date: May 12, 2021 and June 8, 2021

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checking Date: May 12, 2021 and June 8, 2021

Checked by: LBS

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: September 8, 2017
5. State location where accident occurred or occupational disease contracted: St. Louis
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? N/A
8. Did accident or occupational disease arise out of and in the course of the employment? No
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 happened or occupational disease contracted: Claimant allegedly sustained an occupational disease that arose out of and in the course and scope of his employment due to repetitive lifting.
12. Did accident or occupational disease cause death? No
13. Parts of body injured by accident or occupational disease: Body as a Whole - low back
14. Compensation paid to-date for temporary disability: None
15. Value necessary medical aid paid to date by employer/insurer? None
16. Value necessary medical aid not furnished by employer/insurer? None

1. Employee's average weekly wages: $\ 614.40
2. Weekly compensation rate: $\$ 409.60 / 409.60$
3. Method wages computation: By agreement

1. Employer liability:

None

1. Second Injury Fund liability:

None

1. Future requirements awarded: None

Employee: Qemal Toska

Dependents: N/A

Employer: American Pulverizer

Additional Party: Second Injury Fund

Insurer: Technology Insurance Company c/o

S \& C Claims Services, Inc.

Hearing Date: May 12, 2021 and June 8, 2021

Injury No.: 17-075220

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

An evidentiary hearing was held before Administrative Law Judge Lee Schaefer in the above-referenced matter beginning on May 12, 2021 and completing on June 8, 2021. Qemal Toska ("Claimant") was present and was represented by his counsel, Frank Niesen III. Claimant testified using an interpreter. American Pulverizer ("Employer"), and its insurer, Technology Insurance Company c/o S \& C Claims Services, Inc., were represented by attorneys John Allen and Jennifer Weller. Mr. Allen was present at the May 12, 2021 hearing. Ms. Weller was present at the June 8, 2021 hearing. The Second Injury Fund ("Fund") was represented by Assistant Attorney General, Kristin Frazier.

The parties stipulated to the following facts:

1. On or about November 8, 2017, Claimant alleges he sustained an occupational disease/repetitive trauma due to repetitive lifting;
2. Claimant and Employer were operating under and subject to the provisions of the Missouri Workers' Compensation Law;
3. Claimant was an employee of Employer;
4. Claimant filed his Claim for Compensation within the time prescribed by law;
5. On November 8, 2017, Claimant was making an average weekly wage of $\ 614.40, for a total disability rate of $\ 409.60, and a permanent partial disability rate of $\ 409.60;
6. Employer did not pay any temporary total benefits;
7. Employer did not pay for any medical treatments;
8. Venue for the hearing in this matter is proper at the St. Louis Office of the Missouri Division of Workers' Compensation.

The issues to be resolved at this hearing are:

1. Did Claimant sustain an occupational disease arising out of and in the course and scope of his employment?
2. Did Claimant provide adequate Notice of his occupational disease to Employer/Insurer?
3. Is Claimant's alleged occupational disease medically casually related to Claimant's employment?
4. Did Claimant sustain any permanent partial disability as a result of his alleged occupational disease?
5. Is Employer/Insurer responsible to pay temporary total disability as a result of Claimant's alleged occupational disease?
6. Is Employer/Insurer responsible to pay medical bills for treatment of Claimant's alleged occupational disease?
7. What liability, if any, does the Second Injury Fund have?

Claimant offered and had accepted into evidence, the following Exhibits:

Exhibit 1: Deposition transcript of Dr. David Volarich

Exhibit 2: Deposition transcript of Mr. James Israel with attached Exhibits

Exhibit 3: Letter to Employer re: Short-Term Disability with Certified Return Receipt

Exhibit 4: Statement Letter with Certified Return Receipt

Exhibit 5a: Medical records of Dr. Daniel Kitchens (DOS 3/27/09-9/7/11)

Exhibit 5b: Medical records of Dr. Daniel Kitchens (DOS 9/21/17 - 1/17/18)

Exhibit 6: Medical bills of Dr. Daniel Kitchens

Exhibit 7: Medical report of Dr. Dwight Woiteshek (Admitted against Employer/Insurer, not admitted against the Fund)

Exhibit 8: Medical records of Pro Rehab ( $\mathrm{n} / \mathrm{k} / \mathrm{a} /$ Athletico)

Exhibit 9: Medical records of Dr. Donald deGrange

Exhibit 10a: Medical records of Missouri Baptist Hospital (DOS 3/4/11 - 9/13/17)

Exhibit 10b: Medical records of Missouri Baptist Hospital (DOS 10/19/17 - 1/17/18)

Exhibit 11: Medical bills of Missouri Baptist Medical Center

Exhibit 12: Medical records of SSM Physical Therapy

Employer offered and had admitted into evidence, the following Exhibits:

Exhibit A: Deposition of Qemal Toska

Exhibit B: Deposition transcript of Dr. Daniel Kitchens with Exhibits

Exhibit C: Report of Injury dated 10/19/17

The Fund did not introduce any Exhibits into evidence.

Note: Some of the records submitted at the hearing contain handwritten remarks or other marks on the exhibits. All of these marks were on these records at the time they were admitted into evidence and no other marks have been added since their admission on May 12, 2021 and/or June 8, 2021.

Claimant was born in Albania on March 22, 1958. He attended college in Albania and received degrees in Biology and Chemistry. He worked as a principal in Albania from 1985 until

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-075220

1. Claimant immigrated to the United States with his wife and two daughters in 2004. He

became a citizen of the United States in 2010.

After immigrating to the United States, Claimant took lessons in English at the

International Institute. Claimant testified that he understands some English, but used an

interpreter at the hearing because of the technical nature of his testimony.

Claimant initially worked in restaurants after arriving in St. Louis. He started working at

Employer on July 10, 2006.

Claimant was classified as a "General Helper" for Employer. He agreed that Employer's

job description was an accurate representation of his job duties. (Exhibit 30) Claimant testified

that he occasionally would use a saw at Employer. He would use the saw to cut large pieces of

metal into smaller shapes. He would use a crane to move the heavier metal pieces. The metal

was from 1 inch to 4 inches thick. The heaviest pieces of metal were 22 feet long and made of

heat treated metal which was very dense.

On March 27, 2009, Claimant sustained an injury to his back while working for

Employer. Claimant filled a dumpster with concrete and metal using a shovel. Then, he moved

the dumpster using a forklift and tried to empty the dumpster using the forklift. When he could

not empty the dumpster using the forklift, he used a shovel. When he completed this task,

Claimant had severe pain in his low back into his left leg.

After sitting for a while, Claimant got back on the forklift and drove into the shop. He

told a co-worker what happened and also reported his pain to his manager. He was sent to clinic

and to Physical Therapy. Claimant eventually saw Dr. Tate who gave him injections and

Vicodin. Neither the injections nor the pain medication helped his back and leg pain.

On September 1, 2009, Dr. deGrange operated on Claimant's low back. Dr. deGrange

operated on Claimant at the L4-5 level. The surgery did not help Claimant's back. Although

Claimant worked from October 15, 2009 through February of 2010, he had pain every day, was

bent over, and relied on Vicodin for pain management.

In February of 2010, Dr. deGrange advised Claimant to quit working. However, because

the union was on strike, Claimant did not have any health insurance to get additional treatment.

Therefore, he laid in bed and took his pain medication.

Claimant was seen by Dr. Kitchens in January of 2011. Dr. Kitchen performed a fusion

at L4-5 on August 15, 2011. The fusion helped Claimant's pain in his back; he no longer had

pain in his leg. Claimant's 2009 back injury settled for 30% body as a whole.

When Claimant returned to work following his back fusion, he had pain "all of the time"

but he was able to fully perform his job. He would take Aleve for pain. Claimant performed his

work differently than before by protecting his back and using his legs and arms to lift. He also

used objects, such as forklifts and pallet jacks, to help lift heavier items. He still performed all of

his job duties, although he was slower than before. He was never reprimanded for working too

slowly.

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In 2016, Claimant was off of work for several months due to a strike by the union. During that time period, he sat around the factory holding a sign. He did not need to take pain medication every day because he was not working and was more relaxed. However, he still had to take Aleve on a regular basis.

After the strike ended and Claimant returned to work in February 2017, his back pain began to worsen. Claimant was taking Aleve every day to be able to work. Although he was in pain, Claimant was able to complete his job duties.

Claimant testified that he began working at transportation in 2017, which involved moving material from the machine shop and other areas. If the materials were heavy, Claimant would use a forklift to move the materials. By the end of July 2017, Claimant had bad pain in his back every day and it was getting worse. Although he was still completing his job, he was having to take 2 pills a day.

The last week Claimant worked, he did his general job of cleaning and also helped a coworker with the assembly of, and adjustments to, a huge machine. There was something wrong with the new machine and it began leaking oil from a big container. Claimant had to clean the floor of the oil by using "oil dry". "Oil dry" is similar to kitty litter in consistency; it came in 50pound sacks that were stored in the back of the building. Claimant would move the sacks using a dolly or carry them.

The new machine was very large but low to the ground. Once Claimant got the "oil dry", he would bend over and shovel the "oil dry" under the machine. Claimant had to stay bent over while he shoveled the "oil dry" because the machine was so low to the ground. The process of cleaning up the oil took a long time. Claimant testified he shoveled the "oil dry" three or four times. The last day Claimant used the "oil dry" was Friday, September 8, 2017.

During his last week, his boss "Chris", also had Claimant move "junk" from the old building and from outside to the junkyard. He used his hands to move the smaller pieces onto pallets and used a forklift to move the heavier pieces. Some of the pieces weighed over 100 pounds; Claimant moved those pieces using a forklift.

On September 8, 2017, Claimant was in a lot of pain when he got to work. He took 2 Aleve in the morning and he took 2 more Aleve at lunch. Claimant was able to complete his work and do all of his jobs. When he was in the parking lot leaving work, he saw Stephen Durr and engaged in a two-minute conversation. Claimant did not tell Stephen Durr that his back was hurting.

When Claimant got home from work on September 8, 2017, he had trouble climbing the stairs to his apartment. He took a shower and went straight to bed. He had difficulty sleeping because the Aleve was not helping his pain. The next morning, Claimant's wife called his daughter and she came over to their apartment. When his daughter saw that he had tears in his eyes, she insisted they take Claimant to the emergency room. Claimant's wife and daughter helped him go down the stairs and they went to the emergency room at Missouri Baptist Hospital.

When he got to Missouri Baptist, the doctor asked him what happened. He told them that he "works very hard" and had to take Aleve all the time. He told the doctor that he had previously had surgery performed by Dr. Kitchens. Because the emergency room doctor believed Claimant needed another surgery, he recommended Claimant see Dr. Kitchens again. Although his daughter was with him in the emergency room, she had to leave and did not see Dr. Kitchens until after the surgery. Sunday morning, Dr. Kitchens came to Claimant's room and asked him what he did for his job and when he was retiring. Dr. Kitchens reportedly told Claimant he had never seen a disc "moved" like his. Dr. Kitchens performed a fusion at L3-L4, L4-L5.

On Monday morning, Claimant called Employer and asked to speak to his supervisor, Darren. Darren was not there so he spoke to another manager. Claimant told the manager that he was having surgery at noon. After surgery, Claimant saw Dr. Kitchens two more times.

On November 30, 2017, Dr. Kitchens released Claimant to light duty. Claimant went to Employer and told them that the doctor released him to light duty. Darren, Claimant's boss, said he would talk to the boss about Claimant coming back, but they never contacted Claimant. On January 17, 2018, Dr. Kitchens released Claimant to full duty with no restrictions. Again Claimant spoke with Darren about returning to work, and Darren said he would consult with the boss about Claimant returning to work. However, Darren never called Claimant back. On December 11, 2017, Claimant's application for Social Security disability was approved.

Since January 2018, Claimant can drive for 20 minutes before he has pain in his back. He has traveled to Chicago twice to see his daughter; on both of those trips, his son-in-law drove. Claimant goes grocery shopping with his wife but only lifts light items. Claimant watches television during the day. Claimant requires assistance washing his legs and tying his shoes. Claimant can walk up to one mile, but he has to stop when his back begins to hurt. Claimant can sit for 20 to 30 minutes. Claimant has difficulty sleeping because of pain and difficulty finding a comfortable position.

In a typical day, Claimant wakes up, has breakfast, and gets dressed. He then takes his wife to work. He returns to the house and stays there until he picks up his wife at the end of her workday. Claimant's wife's job is a 15 -minute drive from where they live.

Claimant developed Meniere's disease in 2011. He cannot hear out of his left ear. He is slowly losing the hearing in his right ear. Since 2011, Claimant has also had difficulty with dizziness.

On cross-examination by the attorney for Employer, Claimant testified that after his back injury in March of 2009, his pain kept increasing. In October of 2009, he was having pain every day. On March 4, 2011, Claimant saw Dr. Kitchens regarding a second surgery. Claimant was still having pain after August 2011, but did not tell anyone he needed to see a doctor.

Claimant testified that although he did not discuss his back pain with his managers, he testified that "everyone" knew he had back pain. Claimant reported he tried to manage the pain by taking Aleve and relaxing at home. Claimant never reported having back pain related to work activities. Claimant never told his managers he could not work or could not do the jobs he was assigned. The last week Claimant worked for Employer, he did not tell his managers or his

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-075220

supervisors about his back pain. He did tell some of his co-workers that his back was hurting. He did not tell Mr. Durr about his back pain when he spoke with him.

When Claimant went to the emergency room at Missouri Baptist, he did not ask to see Dr. Kitchens. However, when he reported that Dr. Kitchens had performed his previous surgery, the emergency room doctor suggested that he see Dr. Kitchens again. Claimant wanted to go to Dr. Kitchens because he trusted him because he felt that his surgery was very good the first time that he operated on Claimant.

On January 17, 2018, Claimant was released to work with no restrictions. He has received no further treatment for his back since that time. Claimant filed for short-term disability. (Exhibit B) The short-term disability application was completed by his daughter after which he signed it. Dr. Kitchens' statement, which is attached to the application, indicated Claimant was injured on August 17 when he lifted a large tank of oxygen that was very unstable and hard to keep balanced. There is nothing on the short-term disability application about the "oil dry".

Claimant has not worked since January 17, 2018, and has not applied for any jobs nor has he attended any vocational training. Claimant has also not taken any English courses. Claimant testified that he believes he cannot work due to his 2017 injury in combination with his prior condition.

On cross-examination by the attorney for the Second Injury Fund, Claimant testified that he was able to perform all of his job duties prior to his last day of work. Those job duties included shoveling large machine chips, cleaning under machines, maintaining factory surroundings, shoveling concrete shards, dumping waste and dumpsters, lifting arm bars, trash cans and oxygen tanks, and working in awkward positions with heavy exertion.

Claimant was trained on the job; he did not receive any formal training. No one at Employer spoke Albanian.

When Claimant was lifting, he would carry pieces of metal that were under 100 pounds. If they were over 100 pounds, he would use a crane. Up to September 8, 2017, Claimant did not have any permanent restrictions placed by a physician. After he returned to work in 2011 through September 8, 2017, Claimant was able to do heavy labor; although it did cause pain. From 2011 through 2017, Claimant reported that he had pain every day all day long.

Prior to September 8, 2017, Claimant performed all of his job duties even though he was in persistent pain. Claimant performed all of his job duties without accommodations. He did not depend on his co-workers to help him. Claimant did not miss any time from work because of back pain.

Claimant testified that Dr. Volarich's mention of a battery falling off of a cart was incorrect. He told Dr. Volarich he was pushing a cart and an oxygen tank fell off. No one witnessed that incident, and he did not request treatment then.

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Ani Kume is the daughter of Claimant. Ani was born in Albania and moved to the United States with her parents in January 2004. Ani was 17 when they moved to the United States. Ani attended high school in St. Louis, and then attended Webster University where she received her undergraduate and graduate degrees.

Ani constantly helps her parents with tasks that require English, such as their citizenship tests, medical appointments, legal settings (including Claimant's 2009 injury) and day-to-day activities. Following Claimant's 2009 accident, she attended all of his doctors' appointments.

In September of 2017, her mother called her and told her that her father was hurting and ill. When she arrived at Claimant's apartment, he was in tears laying down in the bedroom. Claimant was not able to walk without assistance, so Ani and her mother helped him down the two flights of stairs and took him to the emergency room. When they got to Missouri Baptist Hospital, she interpreted for her father in the emergency room. She was not able to be with him for the entire time that he was in the emergency room because her baby was ill. Ani was not present for Claimant's pre-op consultation with Dr. Kitchens. Ani was with Claimant for all of his post-op visits with Dr. Kitchens.

Ani helped Claimant complete his application for short-term disability. (Exhibit B) The application is all in her handwriting other than where Claimant signed the document. Ani would interpret the questions for Claimant, he would respond orally, and then she would write down his answers. Neither Ani nor her father filled in the parts completed by Dr. Kitchens. Ani sent a blank form to Dr. Kitchens to complete.

After Claimant was released to limited duty, he told Ani he called and told his work, but they did not call back. The same thing happened when he was released to full duty.

Stephen Durr has been the Chief Financial Officer for Employer since October 2016. Mr. Durr knows Claimant and knows Claimant is able to communicate in English because that is the only way that they could communicate at Employer.

Mr. Durr denied Claimant ever worked in transportation. His job was always as a general helper/cleaner. Mr. Durr was certain that Claimant never worked in transportation because Mr. Durr's son held that job.

On September 7, 2017, Mr. Durr was handing out paychecks when he saw Claimant. He asked Claimant why he had 6 outstanding paychecks that had not been cashed. Claimant replied that with the check he just received, he had 7 outstanding paychecks, but he would cash all of them. Claimant did not appear to be in pain nor did he complain about being in pain. Claimant never discussed his back pain with Mr. Durr nor did he ever report to Mr. Durr that he had been doing more strenuous work.

Imployer first received notice of Claimant's allegation that his back injury was workrelated on October 5, 2017; the notice was a fax from Claimant's counsel. Employer filed a first report of injury on October 9, 2017. When Claimant called Employer on September 11, 2017, to tell Employer he was having back surgery, he did not tell anyone that he had hurt his back on the job.

Mr. Durr helped Claimant apply for short-term disability. At that time, he did not know that Claimant was alleging the injury was work related. Mr. Durr did not receive any messages from Claimant's daughter regarding his return to work.

Claimant went to the emergency room at Missouri Baptist Medical Center on September 9, 2017. (Exhibit 10a) Claimant reported that over the last two months his low back pain had redeveloped. Claimant said his back worsened every day. Although he did not recall sustaining an injury, he reported that his work activities exacerbated his back pain. Then, his low back pain had become intolerable Friday night. Claimant reported his pain was 10/10 whenever he moved.

Dr. Kitchens saw Claimant on September 10, 2017. Claimant reported to Dr. Kitchens that after his surgery in 2011 he was able to return to labor type work and did not have significant numbness, tingling or pain until the last couple of months. Dr. Kitchens' assessment was a very large disk herniation at L3-4 with effacement of the dural sac with lower extremity weakness and progressive neurologic symptoms. Dr. Kitchens recommended that Claimant undergo an additional surgery.

On September 11, 2017, Dr. Kitchens performed a revision of the hardware at L4-5, and a L3-4 decompressive laminectomy, discectomy, and posterior lumbar interbody fusion at L3-4. (Exhibit 5b \& 10) Claimant was discharged from the hospital on September 13, 2017.

Following his surgery, Claimant participated in physical therapy. Dr. Kitchens released Claimant on January 17, 2018. Claimant reported mild achiness in his low back. He did not have any numbness or tingling in his legs or feet. Claimant rated his pain as $2 / 10$. Dr. Kitchens released Claimant from treatment with no permanent restrictions. (Exhibit 5b)

Claimant had a previous injury to his lumbar spine on March 27, 2009. After treating with physical therapy and injections, Claimant was seen by Dr. Donald deGrange for an independent medical examination ("IME") on August 10, 2009. (Exhibit 9) Dr. deGrange diagnosed Claimant with a herniated nucleus pulposus at L4-5, and mild degenerative disc disease at L3-4 and L4-5, with an annular tear at L3-4. Dr. deGrange recommended that Claimant undergo a lumbar microdiskectomy at L4-5. On September 1, 2009, Claimant underwent a lumbar microdiskectomy at L4-5 performed by Dr. deGrange. On December 11,

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-075220

2009, Dr. deGrange released Claimant at maximum medical improvement with respect to his L4-5 herniated disc.

Claimant returned to Dr. deGrange on March 1, 2010, following an incident at work 3-4 weeks earlier when Claimant noticed symptoms into his left lower extremity after driving the forklift. Dr. deGrange ordered an MRI and injections. On May 6, 2010, Dr. deGrange found that Claimant had returned to baseline.

Claimant went to the emergency room at Barnes-Jewish Hospital on June 13, 2010 complaining of low back pain radiating into the left lower extremity. (Exhibit 14) An MRI of the lumbar spine showed degenerative changes of the lumbar spine, most severe at L4-5. There was a generalized bulge at L3-4 with mild bilateral neural foraminal narrowing.

Because Claimant was having worsening back pain, on July 1, 2010, Dr. deGrange recommended a posterior fusion and anterior lumbar interbody fusion. (Exhibit 9)

Claimant was then sent to Dr. Kitchens by the workers' compensation carrier. Claimant first saw Dr. Daniel Kitchens on January 12, 2011. Claimant gave a history of a back injury on March 27, 2009, noting on the Accident Information Sheet "I was shoveling concrete when I felt this sudden sharp pain in my lower back which then started to go immediately down my lower leg." (Exhibit 5a) Dr. Kitchens' assessment was a recurrent disc herniation at L4-5 with persistent back pain and L5 radiculopathy. Dr. Kitchens stated the recurrent disc herniation was a consequence of the Claimant's work injury in March 2009. Dr. Kitchens recommended surgery.

On March 4, 2011, Dr. Kitchens performed a repeat L4-5 diskectomy, laminectomy, posterior lumbar interbody fusion, and posterolateral arthrodesis. Following this surgery, Claimant's back pain improved. On September 7, 2011, Claimant was released at maximum medical improvement. Dr. Kitchens found Claimant had sustained permanent partial disability of 10% body as a whole due to his back injury and two surgeries.

Claimant settled his 2009 Workers' Compensation case for 30% body as a whole regarding the low back. (Exhibit 28)

Expert Testimony

Dr. David Volarich

Dr. David Volarich performed an IME of Claimant and was later deposed. (Exhibit 1) Dr. Volarich saw Claimant one time, for purposes of an independent medical evaluation, at the request of Claimant's attorney. Dr. Volarich did not provide any treatment to Claimant.

Claimant reported to Dr. Volarich that he had been able to perform all of his usual duties at work following his 2011 surgery until September 8, 2017. Dr. Volarich testified that the heavy lifting Claimant performed at Employer was the primary prevailing cause of his severe increase in back and leg pain. Further, the subsequent treatment and surgery by Dr. Kitchens was due to his "work injury". Dr. Volarich testified that heavy lifting, moving in awkward positions, and

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Injury No.: 17-075220

twisting would lead to a herniation above the level of the previous fusion, such as the one

Claimant experienced. Dr. Volarich found Claimant's prior back injury and surgery resulted in

35% permanent partial disability. Claimant's 2017 back complaints and surgery resulted in an

additional 35% permanent partial disability. Dr. Volarich opined Claimant was permanently and

totally disabled as a result of his 2009 and 2017 back injuries.

On cross-examination, Dr. Volarich admitted Claimant did not report an accident

occurring on September 8, 2017. However, he did report an accident in July 2017. The July

2017 accident involved Claimant moving a heavy oxygen tank that was difficult to control.

Claimant reported continuing issues with his back from the time he returned to work in 2011

until 2017. Claimant reported that he self-treated his back pain from 2011 through 2017.

Dr. Volarich testified Claimant could not have worked with his physical presentation at

the emergency room on September 9, 2017. Specifically, Claimant reportedly had severe

intractable pain and could not take a step. Dr. Volarich further testified Claimant's severe

intractable pain on Saturday, September 9, 2017 was caused by the large herniated disc at L3-4

shown on Claimant's MRI.

Dr. Volarich admitted it is not unusual for adjacent level breakdown after a fusion of the

spine. Although Claimant's 2017 herniation was above rather than below prior fusion, it is an

adjacent level. Dr. Volarich conceded a disc herniation can occur spontaneously, and are more

likely in someone with pre-existing degenerative disc disease.

Mr. James Israel

Mr. James Israel conducted a vocational examination of Claimant and was later deposed.

(Exhibit 2) Mr. Israel interviewed Claimant on September 18, 2018. Mr. Israel determined that

Claimant could not compete in the open labor market due to the combination of his 2009 and

2017 back injuries. In reaching his determination, Mr. Israel considered Claimant's age,

education, prior work experience, language barrier, and physical limitations.

Dr. Kitchens

Dr. Kitchens testified by deposition. (Exhibit B) Dr. Kitchens first saw Claimant on

January 12, 2011 regarding his March 27, 2009, back injury. Claimant was referred to Dr.

Kitchens by his workers' compensation carrier. Dr. Kitchens opined that Claimant's March 27,

2009 work accident caused his back injury and performed a fusion at L4-5. After his recovery,

Claimant was returned to work with no restrictions.

Dr. Kitchens then saw Claimant on September 10, 2017 after he was consulted by the

emergency room. Dr. Kitchens believed Claimant asked to see him. Employer's workers'

compensation carrier did not ask Dr. Kitchens to evaluate Claimant on September 10, 2017.

Dr. Kitchens' completed a disability statement for Claimant. (Exhibit B) The form was

completed by Dr. Kitchens' nurse, and then he signed the document. He and his nurse discussed

the form before she completed it. Dr. Kitchens instructed his nurse to check the box indicating

Claimant's back condition was not "due to, or exacerbated by, injury or sickness arising out of

WC-32-R1 (6-81)

Page 13

his employment." Dr. Kitchens' opinion was based on the fact that Claimant gave a history of pain for a couple months that had worsened over a couple of days before he came to the hospital. Claimant did not give any indication to Dr. Kitchens that his back injury was related to any activities at work.

Dr. Kitchens noted that a diagnosis of a disc herniation has to be linked in time to a particular activity, in order for it to be medically casually linked to that activity. Claimant did not report that he was doing anything at work when he had a sudden onset of severe pain which prompted him to come to the emergency room. Instead, Dr. Kitchens opined Claimant had a spontaneous herniation due to age-related degeneration. Dr. Kitchens noted that the actual herniation was an acute event; whether it was related to age-related changes, degeneration, or an accident that was not reported. Dr. Kitchens again noted there was nothing in his medical records, or in the history he obtained from Claimant, mentioning an accident or the timing of an event at work that led to the disc herniation.

Dr. Kitchens found Claimant sustained a large disc herniation at L3-4. Given the large size of the disc herniation, Dr. Kitchens would not expect a person to be able to continue working in a heavy duty job with that large of a disc herniation. Dr. Kitchens further testified that Claimant would not have been able to work a full shift on Friday, September 8, 2017, given the amount of pain he was in on September 10, 2017.

Under the Missouri Workers' Compensation Law, an "occupational disease" is defined as "...an identifiable disease arising with or without human fault out of and in the course of employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where the diseases follow as an incident of an occupational disease ..." Greenlee v. Dukes Plastering Company, 75 S.W.3d 273, 277 (Mo banc 2002)

In order to prove an "occupational disease", Claimant must present substantial and competent evidence the he "contracted an occupationally induced disease rather than an ordinary disease of life." Id. "[This] inquiry involves two considerations: (1) whether there was an exposure to the disease which was greater than or different from that which affects the public generally, and (2) whether there was a recognizable link between the disease and some distinctive feature of the employee's job which is common to all jobs of that sort." Id. (quoting Kelley v. Banta \& Stude Constr. Co., Inc., 1 S.W.3d 43, 48 (Mo. App. 1999))

The facts necessary to support this award must come from the expert medical evidence. "Medical causation, which is not within common knowledge or experience, must be established by scientific or medical evidence showing the relationship between the complained of condition

and the asserted cause." Gordon v. City Of Ellisville, 268 S.W.3d 454, 461 (Mo.App.2008); Malam v. State, Dep't of Corr., 492 S.W.3d 926, 929 (Mo. 2016). When competing medical causation testimony is presented, it is generally the [fact-finder's] prerogative to choose which testimony to believe. Bond v. Site Line Surveying, 322 S.W.3d 165, 171 (Mo. App. W.D. 2010). The ALJ, as the initial fact-finder, "is free to believe whatever expert it chooses as long as that expert's opinion is based on substantial and competent evidence." Comparato v. Lyn Flex W., 611 S.W.3d 913, 921 (Mo. Ct. App. 2020).

After careful review of the facts, I find Claimant failed to meet his burden to prove that he sustained an occupational disease which arose out of and in the course of his employment for Employer, and which was medically causally connected to his job duties.

There is no dispute that Claimant worked a full shift for Employer on Friday, September 8, 2017. The record is also clear that Claimant had severe intractable pain when he arrived at the emergency room at Missouri Baptist Hospital on Saturday, September 9, 2017. Both Dr. Kitchens and Dr. Volarich agree Claimant could not have worked a full shift for Employer with severe intractable pain. (Exhibits $1 \&$ B) Dr. Volarich testified Claimant's severe intractable pain was the result of the large disc herniation shown on the MRI. Based on the fact that Claimant worked a full shift on September 8, 2017, the undisputed evidence demonstrates Claimant could not have had the large disc herniation while he was at work on September 8, 2017.

Despite his testimony, Dr. Volarich then opines Claimant's repetitive lifting activities during the course of his employment for Employer caused the injury to Claimant's back. In contrast, Dr. Kitchens opines that Claimant's medical condition was not due to, or exacerbated by, injury or sickness arising out of his employment. Dr. Kitchens' opined that the large herniation at L3-4 was a spontaneous disc herniation occurring due to aging, or degeneration; which Dr. Kitchens testified is the most common cause of disc herniation.

I find Dr. Kitchens' expert medical opinion more persuasive than Dr. Volarich's opinion. First, Dr. Volarich was hired by Claimant to perform an independent medical examination. Dr. Volarich did not treat Claimant. Furthermore, Dr. Volarich is not a neurosurgeon, nor does he perform back surgeries. Conversely, Dr. Kitchens treated Claimant, at Claimant's specific request. Dr. Kitchens is a board certified neurological surgeon who treats conditions like Claimant's on a routine basis. Second, Dr. Kitchens' opinion is more consistent with the undisputed facts in this case. Claimant worked his entire shift on Friday, September 8, 2017. Both Dr. Kitchens and Dr. Volarich agree Claimant could not work an entire shift with a herniated disc the size of his. This is consistent with Dr. Kitchens' opinion that the herniated disc was spontaneous, related to Claimant's degenerative disc disease, and not caused by Claimant's work activities.

Claimant has failed to prove by competent scientific or medical evidence that there was a causal link between his back injury and some distinctive feature of his work for Employer, therefore, his claim for compensation is denied.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury No.: 17-075220

Because Claimant has failed to prove he sustained an occupational disease that was causally related to some distinctive feature of his job duties for Employer, the issues of notice, permanent partial disability, temporary total disability, medical bills, and liability of the Second Injury Fund are moot.

I certify that on Sep 092021

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: $\frac{\text { H. }}{}$