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 Tosk