Doublin Michael v. VSM Abrasive Corp.

1 We note that the final paragraph on page 26 the Award incorrectly states “Dr. Volarich rated 4.375 weeks of disability for both the left wrist and left ankle”. Dr. Volarich assessed 5% PPD of the employee’s left wrist rated at the 175-week wrist level (8.75 weeks). Dr. Volarich assessed 5% PPD of the employee’s left ankle at the 155-week level (7.75 weeks). Transcript, p. 134. This clerical error does not affect the outcome of the ALJ’s award.

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We find that any incident or accident at work on October 31, 2012, was not the prevailing factor causing the employee's medical condition and disability. Therefore, we find that no compensable accident occurred on October 31, 2012.

These supplemental findings do not detract from the administrative law judge's denial of the employee's October 31, 2012, injury claim based on her first-hand credibility assessment of his testimony regarding an alleged work injury on that date.

Regarding the employee's claim in Injury No. 12-067160, involving a work accident on August 31, 2012, we affirm and adopt the administrative law judge's award. We further approve and affirm the administrative law judge's allowance of an attorney's fee on the compensation awarded related to that claim as being fair and reasonable.

Any past due compensation shall bear interest as provided by law.

The award and decision of Administrative Law Judge Suzette Carlisle Flowers dated December 3, 2021, is attached and incorporated herein to the extent not inconsistent with this supplemental opinion.

Given at Jefferson City, State of Missouri, this 18th 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

Concerning this injury claim, having denied all compensation for the employee's companion claim assigned Injury No. 12-107449, the administrative law judge (ALJ) erred in concluding that the employee is entitled to only permanent partial disability (PPD) benefits from the Second Injury Fund (SIF).

In finding that the employee did not sustain a work accident resulting in injury on October 31, 2012, the ALJ was bound by un-contradicted expert testimony to conclude the employee was permanently and totally disabled (PTD), and that such disability was the result of his last, August 31, 2012, work injury and preexisting disabilities, the combination of which led to his award of Social Security Disability before his left shoulder treatment from February 26, 2013, through May 7, 2013. A portion of this error relates to the ALJ's refusal to accept, in the face of unanimous and unrebutted evidence, that the employee's August 31, 2012, work injury injured his left shoulder in addition to his right arm. Had the ALJ accepted this fact, she would have been forced to conclude that the employee is PTD and that if his PTD was not the result of a compensable work injury on October 31, 2012, in combination with preexisting conditions, it must be related to his August 31, 2012, work injury.

Having found no accident occurred on October 31, 2012, the ALJ erred by awarding PPD benefits regarding the employee's August 31, 2012, claim. The evidence that the employee is PTD when considering, inter alia, his left shoulder treatment from February 26, 2013, to May 7, 2013, is unrefuted. The ALJ incorrectly considered the implications of her finding that there was no accident on October 31, 3012, and incorrectly concluded that the employee's August 31, 2012 work injury did not cause any injury to his left shoulder. In fact, the employee's left shoulder was involved in his August 31, 2012, work accident, a finding the ALJ was not free to reject.

While off work for his August 31, 2012, work injury for treatment of his post-traumatic right carpal tunnel syndrome, the employer fired the employee. The employee never returned to work and received Social Security Disability benefits effective before his 2013 failed left shoulder surgery. He left school in the $8^{\text {th }} grade and his reading and math scores are at the 6^{\text {th }}$ grade and early 3rd-grade level respectively. His current torn left rotator cuff is in the same condition it was before Dr. Andrew Gelven's most recent and last attempt at repair on April 5, 2013. Dr. David Volarich and Dr. Jay Liss testified, based on their medical assessments, when considering the employee's disability from all sources, that the employee is PTD due to the combination of his 2012 work injuries and medical/psychiatric conditions existing prior to August 31, 2012.

Since the ALJ did not find an accident after August 31, 2012, and since the evidence of the employee's current, continuing PTD since the employer discharged him on January 2, 2013, is consistent, substantial, and unrebutted, the employee's PTD must be the result of his August 31, 2012 work injury in combination with his preexisting disabilities. He is entitled to PTD benefits from the SIF.

Imprivee: Michael D Doublin

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Injury No. 12-107449

Regarding Injury No. 12-107449, the ALJ erred in finding the employee did not sustain an accident arising out of and in the course and scope of his employment on October 31, 2012. This erroneous conclusion allowed the ALJ to avoid thorny legal and factual issues improperly raised by the SIF, including arguments about the statute of limitations for the employee's October 31, 2012, claim, and a notice defense not raised until the day of the hearing.

In support of her finding that the employee did not meet his burden to show he sustained an injury by accident on October 31, 2012, the ALJ noted differences in the employee's description of the accident, although each history indicated employee's supervisor told him to lift a 200-300 pound roll of sandpaper, and that the employee was injured after lifting it. The employee did sometimes state that he fell while holding the roll, while other histories indicated he felt a "pop," either when lifting it or attempting to move it to one side.

The ALJ also took issue with the employee's claim for compensation, stating that it "does not identify a 'specific event' that occurred during a single work shift." ${ }^{2}$ However, she then recounts what is written in the claim, which does identify a specific traumatic event: "In the course and scope of employment, employee sustained trauma causing permanent injury. Employee sustained injury to his left shoulder while working."3 The employee's testimony filled in the gaps as to how the injury occurred. The employee's testimony that he reported the injury to his supervisor Mr. Tom Higgenbottom the day it happened was undisputed. The employee sustained a work accident on October 31, 2012.

Section 287.020.2 defines an accident as "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift."

The employee testified credibly and consistently both during his deposition and at trial that he sustained his October 31, 2012, work injury while attempting to lift a 300-pound roll of sandpaper from a bottom rack at the direction of his supervisor, Mr.

Higgenbottom, when he fell backward striking the back of his left shoulder on a metal wall rack. The SIF did not dispute the event's occurrence and there is no evidence suggesting the event did not happen. The employee testified as to symptoms he had at the time of the injury and identified the event that caused them.

The SIF offered Dr. James Emanuel's independent medical examination (IME) report as evidence. Dr. Emanuel evaluated the employee at the employer's request on December 17, 2015. Dr. Emanuel expressed doubt that the employee had a left shoulder injury at work on October 31, 2012. However, he stated,

[^0]

[^0]: ${ }^{2} Award, p. 31.

{ }^{3} \mathrm{Id} .$, (emphasis added).

If indeed the patient was asked by a supervisor to lift a heavy roll of sandpaper and throw it to the right and the patient heard and felt a pop in the shoulder, that injury would be the prevailing factor in the development of a re tear of the rotator cuff of the left shoulder. If there is no witness to this, or the supervisor disputes this episode from ever happening, then it is more likely than not that the patient had a re tear of the rotator cuff left shoulder as the result of poor tissue quality and attrition. ${ }^{4}$

The SIF had ample opportunity to explore Dr. Emanuel's conclusions. However, they chose to take no steps to prove that anybody disputed that the event happened. Since there was no witness disputing the event, Dr. Emanuel's opinion suggests the employee had an accident on October 31, 2012, and it was the prevailing factor in causing the re-tear of the employee's left rotator cuff.

Dr. Gelven, who ultimately repaired the employee's rotator cuff on April 5, 2013, confirmed this view. Dr. Gelven's operative summary, under the heading "Brief History", noted, "Michael is a 60-year-old male who presented complaining of left shoulder pain following a reinjury that he had in last October. He had a rotator cuff repair by Dr. Helfrey in July of last year. He sustained a re-injury around three months postoperatively."5

This history is consistent with that to which the employee credibly testified at the hearing and which is noted throughout the evidence in the record.

Dr. Volarich also noted the employee's injury by accident in both his April 22, 2015, and November 30, 2018, IME reports. Dr. Volarich also testified about the employee's various work injuries and preexisting problems. As to the employee's left shoulder, he testified,

[T]he accident that occurred on or about October of 2012 when Mr. Doublin was attempting to lift a heavy two hundred plus pound roll of sandpaper when he felt a pop in the left shoulder followed by severe pain and weakness is the primary and prevailing factor causing the recurrent rotator cuff tear that required revision open rotator cuff repair, subacromial decompression, biceps tenotomy, and debridement of synovitis.

The work injury was the prevailing factor causing his symptoms, need for treatment, and resulting disabilities. ${ }^{6}$

Dr. Volarich also assigned 35\% PPD to the left shoulder as a result of the employee's October 31, 2012, accident.

Based on the evidence in the record, the employee sustained an injury by accident to his left shoulder on October 31, 2012. There is no evidence that the event did not

[^0]

[^0]: ${ }^{4} Transcript, p. 2594.

{ }^{5} Id., p. 1223.

{ }^{6}$ Id., pp. 90-91.

Injury Nos.: 12-067160 & 12-107449

Employee: Michael D Doublin

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occur, and the history given in the medical records matches the employee's testimony during the trial and his 2015 deposition. Any differences in the exact mechanism are explained by the passage of time, the employee's obvious confusion about sequences of events, and the ALJ's determination that the employee is a very poor historian.

If the ALJ had found a compensable injury by accident on October 31, 2012, and properly rejected the SIF's flawed affirmative defenses, as discussed at length in the employee's brief, the medical and vocational evidence is clear, unrebutted, unrefuted, and unanimous. Consistent with the terms of the employee's settlement of his October 31, 2012, injury claim with the employer/insurer, the employee is entitled to PTD benefits from the SIF beginning 34.8 weeks after May 7, 2013, the date of his last left shoulder treatment.

Because the majority finds 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

DECEMBER 03, 2021

12-067160

Scan Copy

*Employee : MICHAEL D DOUBLIN* *Employee Attorney: DANIEL R KEEFE* 13318430 2 1033 SWEET RIVER DR 10 SOUTH BROADWAY #500 SAINT PAUL, MO 63366-1543 ST LOUIS, MO 63102

#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

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

W0-142 (05-21) AWARD ON HEARING NLP Relay Missouri: 800-735-2966

MISSOURI DEPARTMENT OF LABOR & INDUSTRIAL RELATIONS Missouri Division of Workers' Compensation is an equal opportunity employer/program. Auxiliary aids and services are available upon request to individuals with disabilities.

Employee: Michael Doublin

Injury No.: $\sqrt{12-067160}$ and 12-107449

Dependents: N/A

Employer: VSM Abrasive Corp.

Additional: Second Injury Fund

Insurer: Travelers Insurance Co. (Settled)

Hearing Date: August 30, 2021

Before the

Division of Workers' Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: SCF:LS

FINDINGS OF FACT AND RULINGS OF LAW Injury Nos. (12-067160 and 12107449 )

1. Are any benefits awarded herein? Yes - 12-067160, No - 12-107449.
2. Was the injury or occupational disease compensable under Chapter 287? Yes12-067160, No - 12-107449.
3. Was there an accident or incident of occupational disease under the Law? Yes- 12-067160, No - 12-107449.
4. Date of accident or onset of occupational disease: August 31, 2012- 12-067160, Alleged October 31, 2012 - 12-107449.
5. State location where accident occurred or occupational disease was contracted: St. Charles, Missouri - 12-067160 and 12-107449.
6. Was above employee in the employ of above employer at the time of the alleged accident or occupational disease? Yes - 12-067160. Yes - 12-107449.
7. Did employer receive proper notice? Yes - 12-067160. The issue is moot for 12107449 .
8. Did the accident or occupational disease arise out of and in the course of the employment? Yes - 12-067160. No - 12-107449.
9. Was claim for compensation filed within time required by Law? Yes - 12-067160, The issue is moot for 12-107449.

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

1. Was employer insured by above insurer? Yes - 12-067160 and 12-107449.

1. Describe work employee was doing and how accident occurred or occupational disease contracted:

a) 12-067160 - Claimant testified he tripped and fell over a wheel lock, injuring his right wrist.

b) 12-107449 - Claimant testified he picked up a roll of sandpaper that weighed 300 pounds, walked it backward, fell on a metal rack, and reinjured his left shoulder.¹

1. Did accident or occupational disease cause death? No - 12-067160 and 12-107449.

1. Part(s) of body injured by accident or occupational disease: 12-067160 - Right Wrist. 12-107449 - Alleged left shoulder

1. Nature and extent of any permanent disability: 20% PPD right wrist - 12-067160 (Settled with the Employer), 15% left shoulder - 12-107449 (Settled with the Employer).

1. Compensation paid to-date for temporary disability: 12-067160 - $7,142.29; 12-107449 - Disputed.

1. Value necessary medical aid paid to date by employer/insurer? 12-067160 - $21,938.90, 12-107449 - Disputed.

1. Value of necessary medical aid not furnished by employer/insurer? N/A - 12067160 and 12-107449.

1. Employee's average weekly wages: Sufficient for the following rates in Number 19.

1. Weekly compensation rate: $413.19 for Permanent partial disability and permanent total disability benefits for both 12-067160 and 12-107449.

1. Method wages computation: Stipulated by the parties for 12-067160 and 12-107449.

COMPENSATION PAYABLE

1. Amount of compensation payable: Prior to hearing, Claimant settled with the Employer and Insurer for injury numbers 12-067160 and 12-107449.

¹ In this award, Claimant provided several mechanisms of injury related to the alleged October 31, 2012 work injury.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

1. Second Injury Fund liability: Yes (12-067160) 12,602.30 Second Injury Fund liability No (12-107449) -0-2

Injury Nos. 12-067160 and 12-107449

TOTAL: \$ 12,602.30^{3}$

1. Future requirements awarded: None - 12-067160 and 12- 107449.

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of 25 % of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: Attorney Daniel Keefe for injury number 12-067160.

[^0]

[^0]: ${ }^{2} No compensation was awarded for injury number 12-107449.

{ }^{3}$ See page 27 for a breakdown of the total Second Injury Fund liability

Injury No.: 12-067160 and 12-107449

Before the Division of Workers' Compensation

Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri

On August 30, 2021, Mr. Michael Doublin, ("Claimant") appeared in person for a Hearing for a Final Award before the undersigned Administrative Law Judge, at the Missouri Division of Workers' Compensation ("DWC"), St. Louis Office. Claimant seeks permanent partial disability ("PPD") or permanent total disability ("PTD") benefits from the Second Injury Fund ("Fund").

The injury occurred in St. Charles, Missouri, but venue is proper in St. Louis City by consent of the parties. Jurisdiction properly lies with the DWC.

Attorney Daniel Keefe represented Claimant. Assistant Attorney General Caroline Bean represented the Fund. Also present for the Fund, was Assistant Attorney General Eric Doner. Court Reporter Lori Sanders transcribed the proceeding. The record closed after presentation of all the evidence on August 30, 2021. The parties submitted memorandums of law to the Court on October 7, 2021.

Claimant filed a Claim for Compensation on two injury numbers: 12-067160 and 12-107449. In this award, both claims will be discussed and decided, given the close proximity of the alleged dates of injury and overlapping voluminous exhibits. Prior to the

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

start of the hearing, Claimant settled injury number 12-067160 with VSM ("Employer") and Travelers Indemnity Company of Ct. ("Insurer"), for 20 percent permanent partial disability ("PPD") of the right wrist plus six weeks for disfigurement. In addition, Claimant settled injury number 12-107449 with the Employer and Insurer for 15 percent PPD of the left shoulder. The Employer and Insurer did not participate in the hearing.

Claimant and the Fund offered the following exhibits for both cases electronically through Box.com, all of which were admitted into evidence at the start of the hearing, without objection from either side. Any marks or highlights contained in the exhibits were made before they became a part of the record and were not placed there by the undersigned Administrative Law Judge. Any objections contained in the depositions or made during the hearing, but not ruled on during the hearing or in this award, are now overruled.

Issued by DIVISION OF WORKERS' COMPENSATION

SUMMARY OF EVIDENCE - BOTH CASES

Background

At the hearing, Claimant walked into the hearing room carrying a cane. He testified live and stated he was 69 years old and he has been married for 50 years. He lives with his wife, daughter, Marla Sadler, son-in-law and two grandchildren. The highest grade Claimant completed was eighth grade. He owns a smartphone but cannot send text messages, type, or use email or the computer, except to play a few games.

From 1989 to 1992, he worked as a production worker at a rubber factory, where he operated a mixing machine. From 1992 to 1995, he drove trucks for Amedico Health Care, where he drove locally, hauled and unloaded material. From 1995 to 1998, Claimant worked as a meat cutter for four years in a slaughter house.

WC-32-R1 (6-81)

Page 6

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

The Employer hired Claimant in 1998 as a general operator. He carried sandpaper rolls that weighed up to 75 pounds, packed them and placed them into boxes on an assembly line, and bent to place them on skids. In addition, he picked up scraps from the floor and placed them into the trash, used computers to create shipping tickets, loaded and unloaded trucks using a forklift, and operated five different machines. Before Claimant's 2012 injuries, he was not disciplined for deficient work performance.

Claimant did not think he could continue to work, but he planned to try until he retired at age 65. However, the Employer terminated him on January 2, 2013 at age 60, due to his slow work pace and being unreliable after his 2012 injuries. He has not worked since 2013. He received unemployment compensation benefits for several months. Currently, Claimant receives Social Security benefits.

**Medical Conditions before August 31, 2012**

1. **Sexual abuse:** Claimant testified his father sexually abused him and his four sisters from the time he was two years old until he was sixteen and moved out. For three months he lived in a tent. He believes his mother knew about the abuse but she denied it. This experience impacted intimacy with his wife. Claimant did not receive medical treatment for the abuse, but believes he should have. Despite this experience, he raised his children, established a long marriage, and testified the abuse did not impact his ability to perform his work duties.4

Medical records show in 2008 and 2009, Dr. Smith diagnosed Claimant with depression and generalized anxiety disorder, and prescribed medication.

1. **Coronary artery disease:** Prior to August 2012, Claimant was diagnosed with coronary artery disease. Claimant testified he did not miss time from work due to heart problems, but he has experienced heart problems since his termination.

1. **Sleep apnea:** For sleep apnea, he used a C-Pap machine, but it did not impact his ability to work.

1. On November 5, 2009, Dr. Kevin Quigley repaired Claimant's left knee meniscal tear. After surgery, his left knee symptoms improved for three months, then they returned. During recovery, Claimant missed time from work. On July 8, 2011, Dr. Helfrey treated Claimant with a four-year history of left knee pain which had become more problematic in the last few months. Leading up to August 2012, Claimant

4 Only two physicians in the case reference early sexual abuse, Dr. Volarich and Dr. Liss.

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

testified it felt like an icepick was sticking him inside his left knee. After recovery, Claimant returned to work full duty, with no restrictions. At the hearing, Claimant testified his knee mobility decreased after August 31, 2012.

1. COPD - Before August 2012, Claimant was diagnosed with COPD, and he took medication for respiratory problems. Claimant started smoking at age 13 and smoked three packs of cigarettes per day until he quit in 1998. Claimant testified that COPD did not impact his ability to perform his work duties.

1. On June 10, 2012, Claimant sought emergency room treatment after he injured his left shoulder when he tripped and fell over a tree root while fishing. X-rays were normal. He was diagnosed with a left shoulder contusion.

1. On June 30, 2012, Claimant tripped in his garage and reinjured his left shoulder. Dr. Helfrey's medical records dated July 2, 2012 revealed the following:

"NP fell 6/10/12, patient fell on left side of shoulder and knee, then fell again 6/30/12. Numbness in his Lt arm and he is unable to lift the arm. Left knee more painful than the right, both painful to walk. Went to ER 6/30/12, x-rays of Lt Shoulder X-ray bilateral knees today. Injections in: Lt shoulder & Lt knee today."

1. An MRI of his left shoulder revealed near a complete full-thickness tear of the supraspinatus and infraspinatus tendons, mild atrophy of the supraspinatus and infraspinatus muscle bellies. On July 26, 2012, Dr. Helfrey debrided a glenoid labral tear, and performed a synovectomy, open rotator cuff repair, and a subacromial decompression.

1. August 13, 2012, Claimant asked Dr. Helfrey to release him to work because he could place labels on boxes without lifting heavy items. Medical records show Claimant reported he was doing quite well, with very little pain. Dr. Helfrey agreed Claimant could return to work, provided that;

"[T]here was no overhead work whatsoever, and if they can meet that obligation, I am fine with it and certainly, by September 24th, which is the termination date if he does not return to full work duty, I will gran[t] him that full work release. However, I am concerned that if he does anything overhead, it is still going to be a problem. I am pleased with how he is doing now, we are still doing pendulum exercises and we are doing range of motion of the elbow and wrist. I am going to see him back in the office in 4 weeks. We will start him on physical therapy at that time."

1. On August 20, 2013, Dr. Helfrey returned Claimant to work with no restrictions. Claimant did not follow up with Dr. Helfrey again until February 26, 2013, when he reported he re-injured his left shoulder three months earlier.

At the hearing, Claimant testified he asked to be released to work because he was afraid he would lose his job if he did not return to work.

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

At the hearing, Claimant testified his left shoulder pain, weakness and limited range of motion have increased since 2012, and he has developed arm numbness. In November 2021, he plans to seek medical advice on treatment options to relieve his symptoms.

**Right wrist work injury - August 31, 2012**

At the hearing, Claimant testified that on August 31, 2012, he was packing boxes on the assembly line, when his shoelace became caught in a machine, and he fell, striking his left shoulder on a metal rack, and fracturing his right wrist. 6

**Medical treatment for the August 31, 2012 work injury**

Claimant arrived at the emergency department by ambulance. X-rays revealed a displaced impacted comminuted fracture of the distal radius into the articular surface, and a displaced fracture of the ulnar styloid. Frank Tull, M.D. performed an open reduction internal fixation of Claimant's right wrist on September 1, 2012, which included a plate and screws. At Claimant's request, Dr. Tull released him to work - one arm duty on September 24, 2012. On October 8, 2012, Dr. Tull released Claimant to work full duty, with no restrictions, and a return in one month for evaluation. The next records from Dr. Tull are dated January 2013.

Claimant developed numbness in his right hand. On January 16, 2013, Gihan Kader, M.D., performed electrodiagnostic studies of the upper extremities and diagnosed moderately severe right median entrapment at the wrist, right ulnar entrapment from the wrist to the forearm. Dr. Tull related carpal tunnel syndrome to Claimant's fall on August 31, 2012. On February 15, 2013, Dr. Tull performed an open right carpal tunnel release, and placed Claimant at MMI for his right wrist on April 17, 2013.

**Right Wrist Complaints**

6 During Claimant's deposition, he testified when he fell he hit his left shoulder on a machine.

WC-32-RJ (6-81)

Page 9

MNKOI 0000811624

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

Claimant testified he received short term improvement from medical treatment to his right wrist, then the pain returned. Current complaints include a squeezing pressure, pain and weakness. Claimant testified he did not seek treatment for his left shoulder after the August 31, 2012 injury, which is consistent with medical records in evidence which do not include left shoulder treatment after he fell on August 31, 2012.

Claimant settled the August 2012 case for 20% PPD of the right wrist.

Multiple Medical Appointments between November 2012 and February 2013

Medical records in evidence show Claimant treated with the following physicians between November 5, 2012 and February 20, 2013. None of the records contain any mention of a re-injury to Claimant's left shoulder on or about October 31, 2012.

1) November 5, 2012 - Dr. Smith's records dated November 5, 2012 reflect Claimant complained to Dr. Smith about multiple symptoms unrelated to his left shoulder.

2) November 7, 2012 - Dr. Tull's assistant treated Claimant for the right wrist fracture with slight backing out of a screw.

3) November 13, 2012 - Kimberly Berni, M.D. examined Claimant for fungal yeast infection.

4) November 15, 2012 - Claimant called Dr. Smith's office and requested more pain medication for his right wrist.

5) January 2, 2013 - Claimant returned to Dr. Tull with complaints of right hand numbness and right knee pain.

6) February 15, 2013 - Dr. Tull performed a right carpal tunnel release.

7) February 20, 2013 - Claimant followed up with Dr. Tull on February 20, 2012 after carpal tunnel surgery.

8) On February 26, 2013, Claimant gave Dr. Helfrey's assistant the following history:

"Michael returns today with complaint of left shoulder pain. Denies any shortness of breath. Denies any chest pain. He has had a previous surgical history back in July that was performed by Dr. Helfrey that included diagnostic operative arthroscopy of the left shoulder with debridement of glenoid labral tear and synovectomy. Also had an open rotator cuff repair with subacromial

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

decompression. Patient had gone through the postoperative protocols well, but on today's discussion the patient is very open and stating that he did not tell us that 3 months postop while he was at work his foreman asked him to lift a 200 to 300 pound roll of sandpaper in a manner that it was almost more of a demand. Patient subsequently abided by that request and tried to lift that roll of sandpaper and subsequently thereafter has been having unremitting pain and tenderness and loss of range of motion to his left shoulder, and he has failed to let either myself or Dr. Helfrey know about that. That has been 3 months ago from today's description." (Emphasis added)

Dr. Helfrey Assistant wrote:

"His rotator cuff repair has failed and given the mechanism of injury that it was only really 12 weeks postop and that he attempted to lift a 200-300 pound roll of sandpaper that this likely had very significant impact on his healing process. The patient has understand of this, he is interested in potentially having this revised. We will have him see Dr. Helfrey on Monday for repeat assessment and likely to be referred to Dr. Helfrey's partner Dr. Andrew Gelven, our shoulder subspecialist."

9) On March 5, 2013, Claimant gave Dr. Gelven a history of doing well after left shoulder surgery, but one day his boss told him to lift a heavy roll of sandpaper and he grabbed the sandpaper and threw it to the right side, and felt a pop and pain in his left shoulder. (Emphasis added) He continued therapy for the next month, but that did not reduce his pain. Since that time he has had difficulty raising his arm up to his shoulder level and he continues to have pain at night, which affects him on a daily basis.

a) An MRI arthrogram of the left shoulder dated March 14, 2013 revealed a large high-grade full-thickness tear of the supraspinatus tendon, tears in the supraspinatus tendon, and tendinosis versus tear within the subscapularis. Dr. Gelven diagnosed a recurrent left shoulder, fullthickness rotator cuff tear, discussed options, and explained a revision may be less successful than the original surgery due to poor tendon or tissue quality.

10) Claimant opted for surgery which Dr. Gelven performed on April 5, 2013.

Medical Conditions after August 31, 2012

WC-32-R1 (6-81)

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Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

1. Left shoulder - At the hearing, Claimant testified that on October 31, 2012, he picked up a roll of sandpaper that weighed 300 pounds, walked it backward, fell on a metal rack, and re-injured his left shoulder. Claimant further testified he reported the injury to his supervisor, Mr. Tom Higgenbottom, who informed Claimant that "He (would) take care of it." Claimant interpreted Mr. Higgenbottom's comments to mean he did not need to report the accident to anyone else, because Mr. Higgenbottom would handle any communication with the Employer about the accident. Claimant did not follow up with Denise, the Human Resource Director that handled his August 2012 right wrist injury.

a) Claimant testified: he was in "awful pain," but did not ask the Employer to provide medical treatment and did not seek medical treatment until 2013. Claimant testified he told Dr. Helfrey about the accident, but does not remember when, but it was in 2012. On cross examination, Claimant testified he reported the injury in 2013. Dr. Helfrey referred Claimant to Dr. Gelven.

b) On April 5, 2013, Dr. Gelven surgically repaired Claimant's full thickness left rotator cuff tear. Claimant denied subsequent left shoulder injuries. He last saw Dr. Gelven on May 7, 2013. Ongoing complaints included numbness, throbbing, and stabbing pain, and left hand weakness, which has worsened over time.

c) Arm problems prevent him from driving due to pain and lack of grip strength. He can no longer deer hunt and use a rifle because it sits on his left shoulder and the rifle "kick" is too hard. Claimant was scheduled to follow up with Dr. Gelven on September 1, 2021. During recovery, Claimant received FMLA benefits.

1. In February 2013, Dr. Tull performed a carpal tunnel release and returned Claimant to work with no restrictions, but Claimant did not return to work.

1. In 2014, Claimant was diagnosed with Parkinson's disease. Symptoms include shaking and head tremors. Medication relaxes him. After 2012, Dr. Rainey Galberto, Claimant's urologist, advised him not to drive because of drowsiness caused by the medication. His daughter, Marla, drives him wherever he needs to go. Claimant drove before he started taking medication for Parkinson disease. He has taken the medication five times per day for several years.

1. In 2018, Claimant had a left total knee replacement. Claimant told Mr. Lalk his main problem in 2018 was his left knee. Further, Claimant reported his knee complaints have increased over time.

7 This is the first time the record reflects history of Claimant hitting his left shoulder on a metal rack before he fell.

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Claimant can no longer sweep, mop, vacuum, and take out trash. His son-in-law has performed these tasks for the past six months because he can no longer do it. He developed left arm numbness a couple of years ago.

In 2015, the Claim for Compensation was filed for the left shoulder and listed the date of accident as "October of 2012." A Report of Injury reflects the administrator was notified of the injury on May 18, 2015.

According to Social Security Administration records, Claimant became disabled on January 31, 2013, and was awarded $\ 1,801.00 per month.

Mr. Temme: That is no problem at all. As far as do you recall in October, what day it was in October of 2012, that you were injured? (Page 40, Lines 1-3)

Claimant: I don't recall, sir. (Page 40, Line 4)

Mr. Temme: Okay. You know it's in October, you just don't know the day; is that (Page 40, Lines 5-6)

Claimant: Q Yes. (Page 40, Line 7)

Mr. Temme: So you said your boss, Tom Higgenbottom, came up to you and talked about moving a big roll. What was it a big roll of? (Page 42, Lines 13-15)

Claimant: Sandpaper. (Page 42, Line 16)

Claimant: It was - okay. Like there was racks, and like close together, big tall racks, and it was in the middle. It was almost down at the other end, and I was pulling it out. I slipped and fell, and fell on my - (Page 43 lines 20-24)

Mr. Temme: And were those racks - (Page 43, Line 25)

Claimant: -- my left arm. (Page 44, Line 1)

August 2012 case:

Issued by DIVISION OF WORKERS' COMPENSATION

Injury Nos. 12-067160 and 12-107449

Ms. Sommers: Now, besides the right wrist, did you also injure your left shoulder in that fall? (Page 78, Lines 1-2)

Claimant: Yes. (Page 78, Line 3)

Ms. Sommers: Okay. What happened to the left shoulder in that fall? (Page 78, Lines 4-5)

Claimant: I turned and I got my shoestring hung on that wheel lock, and I fell, and when I was falling I put my hand out to break the fall. (Page 78, Lines 15-18).

Ms. Sommers: And you're talking about your right hand? Yes. (Page 78, Line 19)

Claimant: Okay. My right hand. And I was right between two machines, and as I was going down I hit my left shoulder on the -- on the machine... (Page 78, Lines 15-24).

Ms. Sommers: Do you know if the sandpaper incident happened before or after the fall where you broke your right wrist? (Page 86, Lines 13-15)

Claimant: I don't remember that. (Page 86, Line 16)

Dr. David Volarich - Expert Medical Evidence

David Volarich, M.D., is a board certified physician in occupational medicine, independent medical examinations ("IMEs"), and nuclear medicine. At the request of Claimant's attorney, Dr. Volarich reviewed medical records, performed two IMEs, wrote four reports, and testified on behalf of Claimant.

Dr. Volarich opined Claimant had not reached MMI at the time of the first IME on April 22, 2015. For the August 31, 2012 injury, Claimant gave Dr. Volarich a history of tripping over a wheel on a bolt, falling forward onto an outstretched right wrist and striking his left shoulder on a table as he fell. Claimant stated he reported his left shoulder symptoms, but medical records do not reflect a left shoulder injury.

Dr. Volarich diagnosed the following injuries related to the work accident

1) Right wrist comminuted intra-articular impacted radial fracture, status post open reduction, internal fixation,

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2) Post traumatic right wrist carpal tunnel, status post open carpal tunnel release, 3) Severe right forearm, wrist and hand pain syndrome; and 4) Left shoulder contusion.

Dr. Volarich opined Claimant's fall was the "primary prevailing factor" that caused his right wrist distal radius injury and the need for surgery. Dr. Volarich further opined Claimant developed post traumatic carpal tunnel syndrome from the fracture and right wrist swelling. In addition, Claimant injured his left shoulder, but did not receive medical treatment.

Dr. Emanuel evaluated Claimant on December 17, 2015, and opined Claimant was unable to work full duty because of many restrictions to both shoulders: no lifting greater than ten pounds floor to waist, five pounds waist to chest, no lifting above chest height with the left upper extremity, and no repetitive chest height or above reaching, pushing, pulling or lifting with the left shoulder. The doctor opined Claimant initially tore his rotator cuff as a result of a non-work-related injury when he tripped and fell fishing and landed on his left shoulder. This resulted in surgery performed by Dr. Helfrey.

Dr. Emanuel noted the medical records contain no evidence that Mr. Doublin sustained an injury to his left shoulder as a result of the 08/31/12 injury.

Additionally, Dr. Emanuel found no medical records to support an injury on 10/31/12. Claimant did not report the injury to Dr. Helfrey, the physician who treated his left shoulder, until three months later. Dr. Emanuel conceded that if Claimant actually lifted a heavy roll of sandpaper and felt a pop in his shoulder along with pain then that injury would be the prevailing factor in the development of a re-tear of the rotator cuff of the left shoulder. The doctor suspected that it was more likely than not Claimant had a retear of the rotator cuff left shoulder as a result of poor tissue quality and attrition. Based on his clinical exam, the doctor explained that he demonstrated symptoms of a large massive tear of the right rotator cuff without history of trauma.

Professional Imaging performed an MR arthrogram of the left shoulder on 01/18 that revealed severe rotator cuff tendinopathy along with a full thickness supraspinatus tear, tear of the long head biceps tendon of uncertain age, arthritic changes, and

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postoperative changes. Dr. Emanuel issued a statement on 02/10/16 that he had reviewed the MR arthrogram and the findings did not change his opinion as stated in his evaluation of 12/17/15. Dr. Emanuel believed that the left rotator cuff repair had failed secondary to poor tissue quality and was not a work-related injury.

Dr. Emanuel concluded that Claimant had sustained a recurrent tear of the left rotator cuff and there was evidence of adhesive capsulitis bilaterally and evidence of a right shoulder rotator cuff tear. Further, Claimant's prognosis was poor secondary to his underlying health issues which included coronary artery disease, hyperlipidemia, COPD, and general anxiety disorder with depression.

Dr. David Volarich - Supplemental Report

Dr. Volarich reviewed Dr. Emanuel's IME report and follow-up note, and an MRI/arthrogram of Claimant's left shoulder dated January 18, 2016. Dr. Volarich wrote an addendum dated October 24, 2016 and concluded his opinions did not change after reviewing these documents.

Dr. Emanuel - Supplemental Report

Dr. Emanuel issued an addendum on June 14, 2017. He reviewed the addendums of Dr. Volarich and the deposition of Dr. Volarich dated 03/10/17. Dr. Emanuel explained that any further surgery to the left shoulder should be done for only one reason and that would be pain relief. He also explained that any additional surgery to the left shoulder would not be related to the work injury of 08/31/12. Because of the timing of when Claimant reported the injury of 10/31/12, Dr. Emanuel concluded that it was more likely than not that Claimant had experienced a re-tear of his surgically-fixed rotator cuff due to poor tissue quality and his underlying medical condition, unrelated to work.

Dr. Volarich - Additional Supplemental Report

On November 30, 2018, Dr. Volarich performed a second IME and wrote a third addendum to the April 15, 2015 report. After a review of additional medical records and Division records, Dr. Volarich rated the following disability which he found to be a hindrance to Claimant's employment or re-employment:

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For the August 31, 2012 injury:

a) 40 percent permanent partial disability of the right wrist for the comminuted distal radius fracture at the 200-week level;

b) 25 percent permanent partial disability of the right wrist for post traumatic carpal tunnel syndrome at the 175 week level;

c) 5 percent permanent partial disability of the left shoulder for a contusion;

For injuries before August 31, 2012, Dr. Volarich rated the following disability:

a) 35 percent permanent partial disability of the left knee due to a torn medial and lateral menisci that required partial meniscectomies in 2009;

b) 35 percent permanent partial disability of the left upper extremity at the shoulder due to the internal derangement that required arthroscopic labral debridement, open rotator cuff repair, and subacromial decompression in June of 2012;

c) 35 percent permanent partial disability of the right knee due to advanced arthritis;

d) 5 percent permanent partial disability of the left wrist due to a strain that continues to ache and decreased range of motion; and

e) 5 percent of the left ankle due to a strain that caused discomfort with prolonged weight bearing.

For the alleged October, 2012 injury, Claimant gave Dr. Volarich a history of feeling a pop in his left shoulder while lifting a roll of sandpaper that weighed over 200 pounds, with immediate onset of severe pain and weakness. Dr. Volarich diagnosed recurrent internal derangement of the left shoulder, massive rotator cuff tear, impingement, and labral tear, post arthroscopic subacromial decompression, biceps tenotomy, and debridement of synovitis with open revision rotator cuff repair. Dr. Volarich further opined the October 2012 work accident was the "primary and prevailing factor" that caused a recurrent rotator cuff tear that required a second open rotator cuff repair, subacromial decompression, biceps tenotomy and debridement of synovitis. In addition, the work accident caused his resulting disability.

Dr. Volarich rated 35 percent permanent partial disability for the October 2012 revised rotator cuff repair. During cross-examination, Dr. Volarich acknowledged his records did not contain a date of accident for the alleged October 2012 work injury.

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Dr. Volarich further testified that the combination of Claimant's disabilities creates "substantially greater disability" than the simple sum of each separate injury or illness, and a loading factor should be applied.

Dr. Volarich could not say with certainty that Claimant's Parkinson's disease existed before his work injuries. However, he testified it was probably present before the 2012 injuries due to the slow progression of the disease. Dr. Volarich concluded the Fund would not be responsible if the condition did not bother Claimant before his 2012 work injuries and was not diagnosed until two years after he last worked.

He further testified that Claimant's pre-existing disability to his left knee, left shoulder, right knee, left wrist, and left ankle had reached MMI when he sustained a work injury on August 31, 2012.

From a medical standpoint, Dr. Volarich opined Claimant was PTD as a result of injuries on August 31, 2012 and October 2012, in combination with each other and his pre-existing medical conditions and psychiatric disorders, but deferred to a psychiatric assessment.

Dr. Volarich concluded Claimant had reached MMI. He agreed with Dr. Emanuel's opinion that Claimant was a poor surgical candidate, given his age, poor tissue quality, and other medical conditions. Further, Dr. Emanuel expected Claimant to heal slowly, and predicted a third surgery most likely would fail. Dr. Volarich testified Claimant had two failed left shoulder surgeries before he evaluated Claimant. Dr. Volarich opined Claimant reached MMI on April 26, 2013 which is the date he last received medical treatment for both 2012 work injuries.

Dr. Volarich opined Claimant was PTD due to the combination of his 2012 work injuries and pre-existing medical conditions, without considering Claimant's Parkinson's disease and related symptoms. He noted vocational assessment confirmed Claimant's inability to work. A psychiatric assessment confirmed significant psychiatric disability.

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Dr. Volarich imposed multiple restrictions for the 2012 injuries and pre-existing medical conditions.

Jay L. Liss, M.D., a physician board certified in medicine and psychiatry, performed a psychiatric evaluation on July 18, 2018. Dr. Liss administered a self-reporting questionnaire, performed a psychiatric physical examination, reviewed medical records, wrote a report and testified at the request of Claimant's attorney. Claimant reported sexual abuse by his father to him and his siblings, and physical abuse by his grandmother. He reported his mother was a prostitute and encouraged his sister to become one too.

Dr. Liss diagnosed Claimant with post-traumatic stress disorder ("PTSD"), with associated anxiety and depression, and related it to the abuse he experienced during his childhood. Dr. Liss testified PTSD caused absence from work along with his physical problems. Dr. Liss stated hundreds of doctor contacts contained within four feet of medical records, including physical tests, manipulations, and surgeries, demonstrate an "overly reactive" nervous system because of PTSD. For example, Dr. Liss referred to numerous complaints about symptoms in Claimant's genital area, which Dr. Liss related to relationship problems with Claimant's wife. Dr. Liss concluded Claimant's physical injuries were magnified by psychiatric disability.

Dr. Liss concluded there was no treatment to cure PTSD and the condition gets worse with time, not age. Dr. Liss opined Claimant was PTD due to the progression of the symptoms after his injuries, combined with physical pain and disability, and rated 50 percent permanent partial psychological disability of the body as a whole.

Mr. Timothy G. Lalk is certified by the Missouri Division of Workers' Compensation as a vocational rehabilitation expert. On August 31, 2018, Mr. Lalk interviewed Claimant, reviewed medical records, administered the Wide Range

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Achievement Test, Fourth Edition ("WRAT-4"), wrote two reports, and testified at the request of Claimant's attorney.

Mr. Lalk testified that Claimant was a poor historian which impacted his ability to communicate. Claimant did not provide the chronological order for medical events, work duties, and his daily activities. Claimant informed Mr. Lalk his left shoulder injury occurred the Friday before Labor Day in 2017.

Claimant reported his lower extremity was his greatest limitation, and his left knee has worsened since 2012. During cross-examination during the hearing, Claimant confirmed this statement. Claimant reported he owns a smart phone but does not know how to text.8 Claimant denied knowing how to use a computer or email. He can play at least one game on his computer. At work, Claimant used a computer to print shipping tickets. However, Mr. Lalk testified that does not mean he knows how to use a computer for anything else.

Mr. Lalk testified the dictation contained in his 2018 report about Claimant's left knee problems is inconsistent with his notes taken during the interview. Mr. Lalk's 2018 report states,

"He can stand for about five to ten minutes and then he needs to sit down because of left knee pain." Mr. Lalk writes; "He told me that about two years ago (2016) he was able to stand for two hours."

In contrast, Mr. Lalk preferred the contents of his written notes which say in 2016, Claimant told him he could not stand for two hours. Claimant reported that his left knee pain significantly worsened to the point where he has constant pain. However, before the 2012 work injuries, Claimant reported that he performed his work duties without accommodation.

On the WRAT-4 test, Claimant scored in the ninth month of sixth grade in

8 During direct examination, Claimant denied telling Mr. Lalk he that he knows how to text.

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reading and early third grade level in math. Based on Claimant's scores, Mr. Lalk concluded he would be limited to unskilled positions that "required only simple, routine exchange of information."

Mr. Lalk identified three transferable skills that Claimant possessed: Meat cutting, flat concrete work, and forklift driving. Mr. Lalk eliminated meat cutting and flat concrete as possible skills that can transfer to other work, because they require the same or more physical exertion as his last job. Mr. Lalk concluded driving a forklift may be an option, provided Claimant is not required to do more than he is physically able to do. Mr. Lalk testified that forklift drivers may be required to pick up any items that fall off the forklift, stack items on pallets, and exchange tanks of propane that drive the forklift.

Mr. Lalk identified the following injuries that existed before Claimant's 2012 injuries that he believed constituted an obstacle or hindrance to Claimant's employment or reemployment; Claimant's left knee, right wrist and left shoulder. Mr. Lalk further opined the prior injuries combined and prevented Claimant from performing the type of manual labor he has performed in the past.

Mr. Lalk testified he could recommend work in Claimant's age bracket that did not require upper extremity strength, repetitive use of the upper extremities, and standing or walking for a length of time, if his communication skills were better. Mr. Lalk predicted Claimant would not perform well during interviews due to poor communication skills. During cross-examination, Mr. Lalk testified he did not know Claimant was diagnosed with Parkinson's disease, which could significantly impact his ability to communicate. Further, Mr. Lalk testified that he found no medical records to suggest Claimant had communication problems before August 31, 2012.

Mr. Lalk further wrote:

"Although there are unskilled, entry-level positions which allow an individual to sit, stand, and move about throughout the workday, Mr. Doublin would not be a candidate for one of these. Mr. Doublin presents himself as an individual having significant difficulty ambulating and especially demonstrating difficulty changing from a standing to sitting position and vice versa. In my experience, any employer observing these same behaviors would not consider Mr. Doublin for employment because of the potential risk of injury at the work place. Mr. Doublin has no experience, training, or vocational skills which would outweigh the potential risks to an employer considering him for an unskilled, entry-level

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position which could easily be filled by any other worker who did not demonstrate these obvious difficulties. In addition to these problems, Mr. Doublin would be unable to convince an employer that he would be an appropriate candidate for a sedentary position which would require exchange of information with the public based upon his poor communication skills.

I cannot recommend any vocational rehabilitation services for Mr. Doublin unless he can demonstrate an improvement in his ability to function without observable difficulties through a full work shift and on a regular basis.

Mr. Lalk predicted Claimant would not be hired as a Walmart greeter because the job description has changed. Workers are required to assist customers; carry large objects to cars, help customers locate items, stock items, and clean. Mr. Lalk concluded Claimant could not meet the physical demands needed to perform these duties or compete for any work in the open labor market.

Based upon a review of medical records and Mr. Lalk's interview with Claimant, he concluded Claimant could not secure and maintain employment in the open labor market. In addition, he does not have the experience or skills to enter a skilled position where he could set his pace of work and allow him to control his symptoms in a sedentary position. Claimant cannot work and stand more than five to ten minutes at a time due to left knee pain.

Mr. Lalk submitted a letter dated January 17, 2019 after reviewing a third addendum from Dr. Volarich dated April 22, 2015, and concluded his opinion did not change from his October 19, 2018 report.

INJURY NUMBER - 12-067160-(8-31-12 CLAIM) - Right Wrist

STIPULATIONS:

Prior to the hearing, the parties agreed on the following undisputed facts:

1. On August 31, 2012, Claimant was employed by the Employer;
2. Claimant sustained an accidental injury;
3. The injury arose out of and in the course of his employment in St. Charles County;
4. Parties agreed to hold the hearing in St. Louis City;

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1. Claimant and Employer operated under the Missouri Workers' Compensation Law;9

1. Employer's liability was fully insured by Travelers Indemnity Company;

1. Employer received proper notice of the injury;

1. A Claim for Compensation was timely filed;

1. Claimant's average weekly wage was sufficient for a compensation rate of $413.19 for temporary total disability ("TTD"), ("PPD") and permanent total disability ("PTD") benefits;

1. Employer paid TTD benefits totaling $7,142.29 (17 2/7 weeks);

1. Employer paid medical benefits totaling $21,938.90; and

1. Claimant reached maximum medical improvement ("MMI") on April 17, 2013.

ISSUE

The parties identified one issue for disposition: What is the nature and extent of the Fund's liability for either PPD or PTD benefits, if any?

Nature and Extent of Fund Liability

In post-hearing briefs, both parties acknowledged the Fund may be liable for PPD benefits. However, they disagree on the pre-existing disabilities that should be considered when determining Fund liability before August 31, 2012. Claimant asserts the Fund is liable for PPD benefits related to the following pre-existing disabilities: Left shoulder, right knee, left knee, left wrist, left ankle and psychological disability, and a 10 to 20 percent loading factor should be applied. In contrast, the Fund contends Claimant's pre-existing disabilities should be limited to his left knee, left shoulder and left wrist, and a 10 percent loading factor should be applied.

Relevant Legal Authority

The burden of establishing any affirmative defense is on the employer. The burden to prove entitlement to compensation under this chapter is on the employee. In asserting any claim or defense based on a factual proposition, the party asserting such claim or defense must establish that such proposition is more likely to be true than not true. Section 287.808 and *Meilves v. Morris*, 422 S.W.2d 335, 339 (Mo. 1968).

9 All references in this award are to the Mo REV. STAT. (2005), unless otherwise stated. All references in this award to the Employer also refer to the insurer, unless otherwise stated.

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To prove Fund liability for PPD benefits pursuant to Section 277.220.1, Claimant must prove:

1) The employee has permanent disability resulting from the last injury alone; and

2) There was a preexisting permanent disability that was serious enough to constitute a hindrance or obstacle to employment or re-employment which combines with the disability from the compensable work-related injury to create a greater overall disability to the employee's body as a whole than the simple sum of the disability from the work injury and the preexisting disability considered separately; and

3) There must be a determination that all of the injuries and conditions combined, including the last injury, have resulted in the employee being permanently and totally disabled.

However, if a claimant's last injury in and of itself rendered the claimant permanently and totally disabled, SIF has no liability and the employer is responsible for the entire amount. *Hughey v. Chrysler Corp.* 34 S.W.3d 845, 847 (Mo. App. 2000). Therefore, the inquiry begins with the Employer's liability.

A permanent partial award is intended to cover claimant's permanent limitations due to a work related injury and any restrictions his limitations may impose on employment opportunities. *Phelps v. Jeff Wolk Construction Co.*, 803 S.W.2d 641, 646 (Mo.App. 1991). The extent and percentage of disability is a finding of fact within the special province of the [fact finder], *Lowery v. AFC Industries, Incorporated*, 428 S.W.2d 7, 10(3) (Mo.App. 1968), (Citations omitted), and the [fact finder] is not bound by the medical testimony but may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences from other testimony in arriving at the percentage of disability, *Fogelsong v. Banquet Foods Corp.*, 526 S.W.2d 886, 892 (Mo.App. 1975) (Citations omitted).

Section 287.020.6 defines "total disability" as the inability to return to any employment and does not merely mean inability to return to the employment in which the employee was engaged at the time of the accident. Any employment means any reasonable or normal employment or occupation; it is not necessary that the employee be completely inactive or inert in order to meet this statutory definition. *Kowalski v. M-G*

10 Several cases in this award have been overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. Banc 2003). No further reference will be made to the Hampton decision in this award.

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Metals and Sales, Inc. 631 S.W.2d 919, 922 (Mo. App. 1982) (Citations omitted). The burden of establishing permanent total disability lies with the claimant. *Mell v. Biebel Bros., Inc.* 247 S.W.3d 26, 29 (Mo.App. 2008).

The test for permanent total disability in Missouri is a claimant's ability to compete in the open labor market. The central question is whether any employer in the usual course of business could reasonably be expected to employ claimant in his present physical condition. *Searcy v. McDonnell Douglas Aircraft Co.*, 894 S.W.2d 173, 178 (Mo.App. 1995).

The Fund is not responsible for conditions that arise or progress after and unrelated to the primary injury. *Lawrence v. Joplin*, 834 S.W.2d 789, 793 (Mo.App. 1992), *Michael v. Treasurer*, 334 S.W.3d 654, 665 (Mo.App. 2011).

The Fund is not bound by the terms of the settlement between Claimant and the Employer. *Seifner v. Treasurer of State-Custodian of Second Inj. Fund*, 362 S.W.3d 59, 64 (Mo. App. 2012).

**Last injury** - Claimant sustained disability from the last injury alone. Claimant's right wrist fracture was surgically repaired with a plate and screws, and an open carpal tunnel release was performed. Dr. Volarich rated 40 percent PPD for the wrist fracture and 25 percent PPD for the carpal tunnel release. Claimant credibly testified that he continues to have a "squeezing sensation" of pain and weakness in his right wrist and hand. Based on Claimant's credible testimony, Dr. Volarich's opinions, and medical records in evidence, Claimant met his burden to prove he sustained 25 percent PPD for the wrist fracture and 17.5 percent PPD for traumatic carpal tunnel syndrome caused by the August 31, 2012 work injury.

The Fund is not bound by the settlement agreement between Claimant and the Employer. No Fund attorney signed the agreement between Claimant and the Employer. Claimant did not assert the Fund was a party to the agreement signed by himself and the Employer. Finally, the record contains no evidence the Fund consented to the agreement between Claimant and the Employer, or joined the agreement.

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Claimant did not meet his burden to show he sustained a left shoulder injury on August 31, 2012. Although Dr. Helfrey released him eleven days before the August 31st accident, Claimant did not seek treatment for his left shoulder. Claimant's testimony is consistent with the absence of treatment records for his left shoulder after August 31, 2012.

Hindrance and obstacle - Claimant met his burden to show that on August 31, 2012, he had the following pre-existing disabilities that triggered Fund liability: Left shoulder, left knee, and psychological disability, that were a hindrance or obstacle to his employment or re-employment. Claimant credibly testified that prior to August 2012, his left knee problems caused him to move slowly, and made it hard to climb ladders. His left shoulder injury caused him to rely more on his non-dominant right arm. Early childhood trauma caused intimacy problems with his wife. Dr. Volarich's testimony is persuasive that Claimant's pre-existing conditions created a hindrance or obstacle to his employment or re-employment. Dr. Liss testified that Claimant's PTSD created a synergistic effect with his other disabilities, as demonstrated through "hundreds of contacts" with physicians, tests, manipulations and physical problems for "minor things." Mr. Lalk identified Claimant's right wrist, left shoulder and left knee conditions as a preexisting conditions that were a hindrance or obstacle to Claimant on or before August 31, 2012. Dr. Volarich further testified that Claimant's primary injury combined with his pre-existing disabilities to create more disability than their sum. Therefore, a 12.5 percent loading factor will apply.

Claimant did not meet his burden to show he sustained disability to his left wrist, left ankle, and right knee. At the hearing, Claimant provided no testimony about disability related to his left wrist, left ankle and right knee, leading up to August 31, 2012. Dr. Volarich reviewed no medical records for the left wrist. Minimal treatment was provided for the left ankle more than 20 years ago. Dr. Volarich rated 4.375 weeks of disability for both the left wrist and left ankle, which is below the threshold required to trigger Fund liability. Dr. Volarich reviewed no medical records for the right knee and deferred evaluation during an IME in 2015.

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PTD - Claimant testified that he planned to work another five years after Dr. Tull released him to work full duty in April 2013. However, the Employer terminated him in January 2013. Mr. Lalk's opinion is not persuasive that Claimant is PTD due to the combination of his August 31, 2012 work injury and pre-existing disabilities, because his evaluation considered medical conditions that developed or worsened after the work injury.

In 2018, Claimant told Mr. Lalk his left knee was his most limiting problem. During Mr. Lalk's deposition he learned that Claimant developed Parkinson's disease in 2014, which he testified can impact ability to communicate. Mr. Lalk found no records to show Claimant had communication problems before August 31, 2012. In addition, Claimant was advised not to drive because of medicine he takes to treat Parkinson's disease. Dr. Volarich testified that Fund would not be liable for Parkinson disease because it was diagnosed two years after the work injury. Further, Claimant told Mr. Lalk his left knee symptoms have increased since 2012.

At the hearing, Claimant testified that after 2012, his left knee problems increased, and his left shoulder numbness started several years ago and is getting worse. He plans to see a doctor in November 2021 to address his increased symptoms. Claimant's testimony about his increased symptoms is credible and consistent with medical records in evidence. Based on medical records and reports in evidence, Claimant did not meet his burden to prove he is PTD due to the August 31, 2012 work injury and pre-existing disabilities.

FINDINGS of FACT and RULINGS of LAW - Right Wrist

1. Claimant's testimony is generally credible about events surrounding the August 31, 2012, injury to his right wrist, and is consistent with medical records in evidence.

1. Claimant sustained 42.5 percent disability of the right wrist from the compensable work injury on August 31, 2012 work injury. [^1] (74.38 weeks)

a) 74.38 x 12.5 percent = 9.30 weeks owed by the Fund for the primary injury

[^1]: Disability for the primary injury of August 31, 2012 includes: 25% PPD for the right wrist fracture + 17.5% PPD for carpal tunnel syndrome.

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1. On August 31, 2012, Claimant had the following pre-existing disabilities that were a hindrance or obstacle to his employment or re-employment, and equaled at least 50 weeks of the body as a whole of 15 percent of a major extremity:

a) Left shoulder - 30 percent - (69.60 weeks) x 12.5 percent = 8.70 weeks

b) Left knee - 25 percent (40 weeks) x 12.5 percent = 5.0 weeks

c) Psychological - 15 percent (60 weeks) x 12.5 percent = 7.5 weeks

1. 9.30 + 8.70 + 5.0 + 7.5 = 30.50 weeks of Fund liability.

1. 30.50 X $413.19 = $12,602.30 Fund liability.

1. The disability from Claimant's primary injury combines with his pre-existing disabilities to create greater overall disability than the sum of the disabilities and a loading factor was applied.

1. Claimant did not sustain an injury to his left shoulder during the accident on August 31, 2012.

1. The opinions of Dr. Volarich and Mr. Lalk are not persuasive. Claimant is not PTD due to his August 31, 2012 compensable injury combined with his pre-existing disabilities.

1. The award is subject to a lien in favor of Claimant's attorney for legal services rendered.

INJURY NUMBER - 12-107449-(10-31-12 CLAIM) - Left Shoulder

STIPULATIONS:

At the start of the hearing, the parties agreed on the following undisputed facts:

1. On October 31, 2012, Claimant was employed by the Employer;

1. Venue is proper in St. Charles, but the parties agreed to a trial in St. Louis;

1. Claimant's average weekly wage was sufficient for a compensation rate of $413.19 per week for TTD, PPD, and PTD benefits; 4. TTD benefits were disputed; and

1. Medical benefits were disputed.

See the sections above for a discussion about this case related to jurisdiction, the parties, procedural history, summary of the evidence, legal authority, and exhibits.

ISSUES

At the start of the hearing, the parties identified the following issues for disposition:

1. Did Claimant sustain an accidental injury on October 31, 2012?

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1. If so, did it arise out of and in the course of his employment?

1. Was Claimant's left shoulder surgery medically causally related to his alleged work injury on October 31, 2012?

1. Did Claimant timely file a Claim for Compensation against the Second Injury Fund?

1. Did the Employer receive proper notice of Claimant's left shoulder injury?

1. When did Claimant reach MMI?

1. What is the nature and extent of the Fund's liability for either PPD or PTD benefits, if any?

**Accident/Arising out of and in the Course of Employment/Medical Causation**

At the hearing and in post-hearing briefs, Claimant asserts he injured his left shoulder on October 31, 2012 when he attempted to lift a 300 pound roll of sandpaper from a bottom rack, and fell backward, striking his left shoulder on a metal rack. The Fund contends Claimant did not sustain a left shoulder accident on October 31, 2012. Claimant did not meet his burden to show he sustained an accident on October 31, 2012 for the reasons discussed below.

**Relevant Legal Authority**

Section 287.020. (2008) defines the following words:

1. **"Accident"** is: an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and producing at the time objective symptoms of an injury caused by a specific event during a single work shift. An injury is not compensable because work was a triggering or precipitating factor.

1. (1) **"Injury"** is: an injury which has arisen out of and in the course of employment. 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.

(2) An injury shall be deemed to arise out of and in the course of the employment only if:

(a) It is reasonably apparent, upon consideration of all the circumstances, that the accident is the prevailing factor in causing the injury; and

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(b) It does not come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.

(3) An injury resulting directly or indirectly from idiopathic causes is not compensable.

For an injury to be compensable, the evidence must establish a causal connection between the accident and the injury. *Roberts v. Mo. Highway & Trans. Comm.*, 222 S.W.3d 322, 331 (Mo. App. 2007). Medical causation, 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). It is for the finder of fact to decide which of two conflicting medical opinions should be accepted. *Bock v. Broadway Ford Truck Sales, Inc.*, 55 S.W.3d 427, 439 (Mo.App.2001). A determination of what weight to be given expert opinion on the issue of medical causation lies with the [fact finder]. *Id.* at 438.

Claimant's testimony is not credible that he re-injured his left shoulder in October 2012. The Claim for Compensation does not reflect the date or time that the alleged injury occurred. At the hearing, Claimant testified that on or about October 31, 2012, he injured his left shoulder while working. (Emphasis added)

Claimant testified he told his supervisor, Mr. Higgenbottom, who said he would "take care of it." Claimant interpreted this to mean Mr. Higgenbottom would notify the front office about his injury. Claimant testified his left shoulder felt like his arm was "breaking in half," and the pain was "awful," but he could not remember if he contacted Denise the Director of Human Resources, despite her assistance with his right wrist injury the month before. Claimant testified the company policy was to report work injuries, but he did not report it the next day when he called in sick because of left arm pain. Claimant testified he trusted his boss to report it. Claimant testified he took three weeks of FMLA while off work for left shoulder surgery in April 2013.

12 During the hearing, Claimant testified Employer terminated him January 2, 2013.

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At the hearing and during deposition, Claimant gave conflicting testimony about when he sought medical treatment for his alleged October left shoulder injury. First, he testified that he reported it to Dr. Helfrey a couple of days later. Then he could not remember when he told Dr. Helfrey. Later, he denied telling Dr. Helfrey for the first time three months after it occurred. Finally, Claimant testified he reported the injury to Dr. Helfrey in 2013. This last version of events is consistent with medical records in evidence which reflect the first history of a left shoulder injury after June 2012 is recorded on February 26, 2013, when Claimant admitted he had not told Dr. Helfrey about the injury that occurred three months earlier.

In addition, medical records in evidence reflect Claimant had seven doctors' appointments between November 5, 2012 and February 20, 2013, with no history of a left shoulder injury at work in October 2012.

After the August 2012 accident, Claimant was immediately transported by ambulance to the hospital, where in-patient surgery was performed. After the alleged left shoulder injury in October 2012, Claimant continued to work. If Claimant experienced severe left shoulder pain, he could have contacted the Director of Human Resources and requested medical treatment or reported it to one of the doctors he treated with shortly after the alleged injury.

The Claim for Compensation does not identify a "specific event" that occurred during a single work shift. The claim states Claimant's activity when the injury occurred as: "In the course and scope of employment, employee sustained trauma causing permanent injury. Employee sustained injury to his left shoulder while working."

In addition, Claimant testified to multiple versions of the "specific event" that allegedly occurred on or about October 31, 2012:

1. Claimant's Deposition - At the request of Claimant's supervisor, he pulled a 300 pound roll of sandpaper from a middle rack. It was almost down at the other end,

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and he was pulling it out when he slipped and fell onto his left arm on a cement floor. 13 He walked it to the end, and it fell back, and Claimant landed on his left arm.

a) Later, Claimant testified the sandpaper injury happened "way before" he injured his right wrist.

b) Claimant testified he did not recall if the sandpaper incident happened after he injured his right wrist.

c) He did not remember if the sandpaper incident happened before or after his first left shoulder surgery.

d) Claimant's testified he was injured at work in October 2012 but did not remember the date.

1. On April 5, 2013, Dr. Gelven reported: Michael says that he grabbed the sandpaper and threw it to the right side, at which time he felt pain and a pop in the left shoulder.

1. At the hearing, Claimant testified he picked up a roll of sandpaper that weighed 300 pounds, walked it backward, fell on a metal rack, and reinjured his left shoulder.

Furthermore, the Claim for Compensation does not show Claimant sustained an injury during a "single work shift." The claim form listed the date of injury as "October 2012." Division records do not contain an amended claim related to the date of injury. During initial examination, Claimant's expert, Dr. Volarich, only referred to the date of injury as the injury in October 2012. At the hearing, Claimant testified he was injured "on or about October 31, 2012.

From a medical perspective, Claimant did not meet his burden to prove he sustained objective symptoms of injury. The evidence does not support a finding that Claimant sustained an injury that arose out of and in the course of Claimant's employment. Dr. Emanuel's opinion is persuasive that Claimant had a re-tear of the rotator cuff left shoulder as a result of poor tissue quality and attrition, not a work injury. Drs. Gelven and Volarich reached the same conclusion about the poor tissue quality of

13 During the hearing, Claimant testified when he fell in October 2012 the floor was not cement. The cement floor was in his garage. Also, Claimant testified for the first time that his left shoulder hit a metal rack.

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Claimant's left shoulder. Claimant did not establish a connection between an accident in October 2012 and his re-injured left shoulder.

During the hearing, I observed Claimant become frustrated because he could not recall the chronology of events related to the October 2012 claim. Medical records in evidence contain similar inconsistencies as well. In addition, Mr. Lalk testified Claimant was a poor historian.

Based on Claimant's lack of credible testimony about the events surrounding the alleged October 31, 2012 injury, medical records in evidence, and persuasive testimony by Dr. Emanuel, Claimant did not identify a time and place of occurrence, that produced objective left shoulder symptoms, caused by a specific event during a single work shift.

In conclusion, Claimant did not meet his burden to prove he sustained an accident to his left shoulder that arose out of and in the course of his employment on October 31, 2012, and was medically causally related to his work activities.

Having found Claimant did not sustain a compensable accident that arose out of and in the course of his employment and was medically causally related to his work activity, all other issues are moot.

FINDINGS of FACT and RULINGS of LAW - Left Shoulder

1. Claimant's testimony is not credible about the alleged October 2012 injury.

1. Claimant did not sustain a compensable accident on October 31, 2012 that arose out of and in the course of employment.

1. Claimant's left shoulder surgery in April 2013 was not medically causally related to the alleged October 31, 2021 work injury.

1. No compensation is awarded.

I certify that on Dec 03 2021 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: *V. G. Charon*

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Made by: *Suzette Carlisle-Flowers*

Suzette Carlisle Flowers

Administrative Law Judge

Missouri Division of Workers' Compensation

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